Scope Statements
Agriculture, Trade and Consumer Protection
This statement of Scope was approved by the governor on June 13, 2013.
Rule No.
Relating to
Egg grading, handling, packaging, labeling, and retail sales.
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
N/A.
2. Description of the Objective of the Rule
This proposed rule would modify ch.
ATCP 88, Wis. Adm. Code, related to egg grading, handling, and labeling, thereby addressing concerns related to the viability of small agricultural operations, assurance of accurate egg marketing, and protection of public health. This revision may also modify ch.
ATCP 70, Food Processing Plants, ch.
ATCP 71, Food Warehouses, and ch.
ATCP 75, Retail Food Establishments, as needed to adopt appropriate provisions related to egg packaging and retail sales of eggs. The proposed rule would help businesses by clarifying licensing and inspection requirements, as well as safety and sanitation requirements applying to the collection, cleaning, grading, packaging, and distribution of eggs. In particular, the proposed rule would: define licensing, facility, and temperature-control requirements; remove obsolete provisions in the existing rule; provide explanatory text to improve rule clarity; and modernize requirements to ensure consistency with existing federal and state egg safety regulations.
3. Description of Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives; the History, Background, and Justification for the Proposed Rule
History and background
Egg production is important to Wisconsin's agricultural economy. Wisconsin ranks 18th in the nation in egg production, producing 1.37 billion eggs each year. Wisconsin also ranks first in the nation in the number of farms producing organic eggs, a market that saw a 39 percent increase for Wisconsin farmers between 2008 and 2011.
Frequent phone and e-mail inquiries to DATCP indicate that ch.
ATCP 88 should be revised to clarify licensing and inspection requirements, particularly for egg producers who sell eggs at farmers' markets. In order to sell eggs at a farmers' market, an egg producer must hold the retail food establishment license required for selling processed items at retail. The retail food establishment regulations (ch.
ATCP 75) require foods sold at retail to be obtained from approved sources that comply with law. This requirement is interpreted to mean that washing and packing of eggs for retail sale must be done in a licensed food processing plant (under ch.
ATCP 70). However, this requirement is not clearly stated in statute or administrative rules and should therefore be clarified.
The existing ch.
ATCP 88 (Egg Grading, Handling and Labeling), created in 1996, consolidated and replaced an earlier version of chs. ATCP 88 (Egg Grade and Quality Standards) and 89 (Eggs, Unfair Practices; which was repealed). The intent of consolidating egg-related rules is sound and will only be strengthened by the proposed rule. Chapter
ATCP 88 should be revised to reflect the needs of egg processors, including the need to clarify jurisdictional boundaries between state regulations and new federal rules related to flock management, sanitation, microbiological testing, and evolving food safety concerns related to eggs in general (e.g. transovarian infection of eggs with
Salmonella enteritidis).
Proposed policies
One goal of the rule revision is to clarify existing requirements. For example, the proposed rule will explicitly state licensing requirements and contain explanatory text added to improve the understanding of requirements associated with operating an egg processor (e.g., requirements related to wash water temperature, prohibiting the freezing of shell eggs, and minimizing condensation). The proposed rule would also include modernized sections to replace obsolete or confusing language (e.g., out-of-print citations, unclear differentiation between mechanical and visual egg-evaluation systems) and more comprehensive requirements, replacing those that are only partially stated in ch.
ATCP 88 (e.g., control of domestic animals is mentioned in ch.
ATCP 88, but other pest control is addressed in ch.
ATCP 70) or are unclear (use of the undefined term “average ambient temperature"), making the rule difficult for producers to understand.
Working closely with industry representatives, DATCP will also explore whether specific facility, sanitation, and temperature-control requirements for eggs during post-collection handling, cleaning, grading, packaging, and distribution in the rule should be revised. DATCP will examine both federal regulations and egg-related regulations in force in other states to identify potential approaches that could be integrated into Wisconsin's egg rule to reduce health risks associated with egg processing and sales licensed by the department. DATCP will strive to ensure that any provision incorporated into a proposed rule is scale-appropriate and does not conflict or overlap with federal regulations generally applying to producers who sell eggs from egg-laying flocks of more than 3,000 birds. The consequences of flock infection, exacerbated by poor sanitation or temperature control, in these operations could have important public health implications. The department plans to continue to exempt licensing for eggs sold on the premises where the eggs are produced directly to household consumers and will evaluate options for licensing and inspection of egg producers selling their eggs directly to consumers at farmers' markets.
Policy alternatives
If the department does not alter the current rules, there will continue to be confusion about licensing, facility, sanitation, and temperature-control requirements for the collection, cleaning, grading, packing, distribution, and off-farm sale of eggs. To the extent that sanitation and refrigeration are inadequate because of obsolete or unclear regulations, the risk of contaminated eggs causing salmonellosis increases.
4. Statutory Authority for the Rule (Including the Statutory Citation and Language)
93.07 Department duties. It shall be the duty of the department:
(1) Regulations. To make and enforce such regulations, not inconsistent with law, as it may deem necessary for the exercise and discharge of all the powers and duties of the department, and to adopt such measures and make such regulations as are necessary and proper for the enforcement by the state of chs.
93 to
100, which regulations shall have the force of law.
97.09 Rules.
(4) The department may, by rule, establish and enforce standards governing the production, processing, packaging, labeling, transportation, storage, handling, display, sale, including retail sale, and distribution of foods that are needed to protect the public from the sale of adulterated or misbranded foods.
97.29 Food processing plants.
(1) Definitions. In this section:
(g) “Food processing" means the manufacture or preparation of food for sale through the process of canning, extracting, fermenting, distilling, pickling, freezing, baking, drying, smoking, grinding, cutting, mixing, coating, stuffing, packing, bottling or packaging, or through any other treatment or preservation process. “Food processing" includes the activities of a bakery, confectionary or bottling establishment, and also includes the receipt and salvaging of distressed food for sale or use as food. “Food processing" does not include any of the following:
8. Any other activity exempted by the department by rule.
97.30 Retail food establishments.
(1) Definitions. In this section:
(b) Exemptions. 1. A license is not required under this section for any of the following:
c. A retail food establishment which is exempted from licensing by the department by rule. If a restaurant or other establishment for which a permit has been issued under s.
254.64 is incidentally engaged in operating a retail food establishment at the same location, the department may exempt by rule the restaurant or establishment from licensing under this section. Rules under this subd. 1. c. shall conform to a memorandum of understanding between the department and the department of health services, under which the department of health services agrees to inspect the retail food establishment operations on behalf of the department.
5. Estimate of the Amount of Time that State Employees will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
DATCP estimates that it will use approximately 0.50 FTE staff to develop this rule. That includes time required for investigation and analysis, rule drafting, preparing related documents, coordinating advisory committee meetings, holding public hearings, and communicating with affected persons and groups. DATCP will use existing staff to develop this rule.
6. Description of all Entities that may be Impacted by the Rule
This rule will affect Wisconsin egg processors who sell eggs at locations other than where the eggs were produced. It will provide clear guidance for persons seeking to begin an egg business.
7. Summary and Preliminary Comparison of any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
In general, rules designed to ensure egg safety and consistent egg quality cover activities that include ensuring the health of a flock and sanitation at the farm; egg grading, sanitation, temperature control, packaging, and labeling at egg processing facilities; and safe transportation, handling, and storage of eggs for the retail sale. Federal egg regulations consist of a patchwork of rules involving several agencies that are each responsible for different portions in the continuum of activities designed to promote egg safety and consistent egg quality. One objective of this rulemaking process will be to more clearly differentiate Wisconsin's role from the jurisdiction of federal agencies in regulating egg packaging and sales.
Federal egg regulations
The Egg Products Inspection Act (Title 21 USC, Chapter
15) authorized USDA to create regulations (
7 CFR Part 57) for egg processing operations. Egg processing operations generally make products other than shell eggs, such as pasteurized whole eggs and dried egg whites. Additional USDA regulations created under this act authorize at least yearly inspection of hatcheries and at least quarterly inspection of businesses that pack shell eggs for the ultimate consumer. As part of these inspections, USDA assures that egg packages are labeled “Keep Refrigerated" and stored at 45
°F or less. For eggs moving in interstate or foreign commerce, federal law and regulations pre-empt state law and regulations relating to temperature control, quality, or grade, condition, weight, or quantity. A voluntary egg grading service is administered by USDA, using essentially the same egg grading standards currently contained in ATCP 88. Regulations governing the voluntary grading of shell eggs are found in Title 7, Part 56 of the Code of Federal Regulations.
Under the Federal Food, Drug, and Cosmetic Act (Title 21 USC, Chapter
9), and the Public Health Service Act (Title 42 USC, Chapter
264), the FDA has enacted egg safety regulations that apply to shell egg producers (
21 CFR 118) with 3,000 or more laying hens at a particular farm who are not selling all of the eggs directly to consumers. These regulations require egg producers to register with FDA and to develop a written
Salmonella enteritidis prevention plan for each farm. The plan must address procurement of chicks, environmental testing, cleaning and disinfection, biosecurity, pest control, and egg refrigeration. The regulations also require testing of eggs for
Salmonella enteritidis.
Federal and state regulatory roles
Various federal agencies regulate egg quality and safety. Within USDA, the Animal and Plant Health Inspection Service (APHIS) is responsible for activities related to disease control in flocks of laying hens; the Agricultural Marketing Service (AMS) is responsible for quality grading for shell eggs and the Shell Egg Surveillance program, which ensures eggs for sale meet Grade B or better standards; and the Food Safety and Inspection Service (FSIS) is responsible for inspecting egg products sold in interstate commerce and re-inspecting imported egg products. The U.S. Food and Drug Administration (FDA), on the other hand, is responsible for ensuring sanitation and safety control measures at the farm, monitoring safe handling and good manufacturing practices in shell egg packaging plants that do not use USDA's shell egg grading service, and for issuing recalls involving shell eggs or egg products inspected by either FDA or USDA.
State and local agencies typically are responsible for working in cooperation with FDA to inspect shell egg packaging plants that do not use USDA's shell egg grading service and for inspecting retail food establishments. Wisconsin currently regulates voluntary egg grading in plants that do not use USDA's shell egg grading service, egg packaging and warehouse activities, and retail sales of eggs.
8. Anticipated Economic Impact
DATCP expects the proposed rule to have only a positive economic impact statewide and locally. The rule revision is expected to assist both new and existing egg production businesses by clarifying licensing and inspection requirements. Since most egg businesses that wash, pack, or sell eggs are already licensed and inspected, rule revisions are expected to result in no or minimal costs to these establishments. The rule will not increase licensing fees for egg washing, packaging, or sales and the department will continue to exempt from licensing eggs sold directly to a household consumer on the premises where the eggs are produced. The expected rule revisions will have no economic impact on local governmental units or public utility taxpayers.
Contact Person
Steve Ingham, Division of Food Safety Administrator, DATCP; Phone (608) 224-4701.
Agriculture, Trade and Consumer Protection
This statement of Scope was approved by the governor on June 14, 2013.
Rule No.
Revises Chapter
ATCP 82, Wis. Adm. Code.
Relating to
Partial collection of milk from bulk tanks on dairy farms and affecting small business.
Rule Type
Emergency.
1. Description of the Objective of the Rule
The department proposes an emergency rule adopting a provision of the Food and Drug Administration's (FDA) Pasteurized Milk Ordinance (PMO) allowing milk haulers to make partial collections of milk from bulk tanks on dairy farms under certain conditions. Currently, Wisconsin Administrative Code requires that bulk milk tanks must be emptied each time milk is collected. The department also plans to propose permanent rule changes to ch.
ATCP 82 to incorporate this, along with other, rule changes.
2. Description of Existing Policies Relevant to the Rule and of New Policies Proposed to be Included in the Rule and an Analysis of Policy Alternatives; the History, Background, and Justification for the Proposed Rule
Wisconsin ranks second nationally in milk production and operates the nation's largest state dairy inspection program. Wisconsin has by far the largest number of dairy farms operated by licensed dairy producers; the milk from each of these farms is shipped to one of the 400+ licensed dairy plants in the state, or to a licensed dairy plant in another state. Milk must be collected from each farm in a licensed bulk milk tanker, and a licensed bulk milk weigher sampler must properly record the amount of milk collected and sample the milk on each farm for testing.
Current Wisconsin regulations in ch.
ATCP 82 require that all milk present in a bulk tank must be collected when a collection is made, i.e. partial collection is forbidden. The intent of this regulation was to ensure that a dairy producer's bulk tank(s) was regularly cleaned and sanitized, and to ensure that collection-to-collection transfers of illegal drug residues did not occur, which could result in increased financial losses to dairy producers forced to dump multiple loads of milk.
The requirement prohibiting partial collection of milk from a bulk tank is outdated. Farm sanitation methods have improved since Wisconsin's rule was first adopted. More frequent testing allows dairy plants to catch issues regarding bulk tank cleanliness faster than in the past. At the same time, the number of dairy farms has decreased, farms have become larger and per cow milk production has risen and many farms have purchased larger bulk tanks, creating new challenges for managing milk collection. For example, some farms now have bulk milk tanks that hold 7,000 or more gallons of milk, while other farms may have several smaller tanks. The average milk truck carries approximately 6,000 gallons of milk. Allowing partial collection of milk from bulk tanks will give dairy plants the tools they need to better manage milk collection from these farms and load trucks to full capacity. This rule will reduce the number of trips required to haul milk, thus saving fuel and reducing wear and tear on the roadway and potentially resulting in significant cost savings.
The PMO allows partial collection of milk provided that the bulk tank is emptied, cleaned and sanitized within at least 72 hours. The PMO also requires an acceptable temperature-recording device to be installed and operating on any bulk tank from which partial collections are made. The bulk milk weigher sampler, and regulatory personnel are required to observe temperature records to be sure that loss of temperature control, which can lead to unacceptable bacterial growth, did not occur following a partial collection. In absence of a temperature-recording device, partial pickups are permitted under the PMO as long as the bulk tank is emptied completely, cleaned and sanitized prior to the next milking. This proposed emergency rule adopts the PMO standards in order to allow partial collections, increase flexibility for managing milk pickups, and potentially save fuel costs and decrease roadway damage.
Policy Alternatives
If the department does not alter the current rules, Wisconsin dairy plants will continue to lack the same flexibility as dairy plants in other states that adopt the PMO standard and allow plants to collect partial loads of milk. They will be prevented from managing their milk hauling practices in the most cost efficient and profitable manner and will be required to continue to empty bulk tanks each time they make a pickup, even if that means trucks are not filled to capacity or they have to dump over-capacity milk. Not changing this policy has the potential to negatively impact dairy plant and producer costs, causing companies to incur unnecessary fuel and other costs associated with hauling milk, putting them at an economic disadvantage to dairy producers in other states that have adopted the PMO standard. These unnecessary trips also may damage Wisconsin roads.
3. Statutory Authority for the Rule (Including the Statutory Citation and Language)
93.07 Department duties. It shall be the duty of the department:
(1) Regulations. To make and enforce such regulations, not inconsistent with law, as it may deem necessary for the exercise and discharge of all the powers and duties of the department, and to adopt such measures and make such regulations as are necessary and proper for the enforcement by the state of chs.
93 to
100, which regulations shall have the force of law.
97.09 Rules.
(4) The department may, by rule, establish and enforce standards governing the production, processing, packaging, labeling, transportation, storage, handling, display, sale, including retail sale, and distribution of foods that are needed to protect the public from the sale of adulterated or misbranded foods.
97.21 Milk haulers and milk distributors.
(6) Rule making. The department may promulgate rules to establish amounts of fees required under sub. (4) or to regulate bulk milk tanker operators and milk distributors. The rules may include standards for the construction, maintenance and sanitary operation of bulk milk tankers, milk distribution vehicles and milk distribution facilities; the design, installation, cleaning, and maintenance of equipment and utensils; personnel sanitation; storage and handling of milk and fluid milk products; identification of bulk milk tankers and milk distribution vehicles; and record keeping.
4. Estimate of the Amount of Time that State Employees will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
DATCP estimates that it will use approximately 0.10 FTE staff to develop this rule. That includes time required for investigation and analysis, rule drafting, preparing related documents, coordinating advisory committee meetings, holding public hearings and communicating with affected persons and groups. DATCP will use existing staff to develop this rule.
5. Description of all Entities that may be Impacted by the Rule
Dairy producers will gain increased flexibility regarding volume of any bulk milk tanks they purchase to store increased milk volumes. For example, a producer may choose to install a second, smaller bulk tank (to reduce capital equipment costs) because the milk hauler could collect all the milk in the larger tank on the existing schedule and collect the additional milk accumulated in the smaller tank less often. Under the proposed rule, milk haulers will also gain increased flexibility in scheduling collections. For example, fewer milk tanker trips could be necessary for a producer who has two bulk tanks, one of which is completely emptied on the existing schedule and the other one which is used to “top up" a tanker for two consecutive days and is then emptied completely into a second tanker every third day. Reducing the number of milk tanker trips in situations like this could reduce damage to roadways and hauling costs for the dairy plant. Dairy producers and milk haulers would also benefit in the situation where the amount of milk in the farm bulk tank exceeds the remaining capacity of a milk tanker. Currently, the excess milk must be dumped. Under the proposed rule, the milk tanker could be filled to its limit, and the remaining milk held over for an additional collection by a truck with appropriate capacity.
6. Summary and Preliminary Comparison of any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
The proposed rule would adopt federal PMO regulations related to partial collection of milk from bulk tanks. The federal guidelines in the PMO allow partial collection of milk, but compliance with the PMO is a voluntary effort by state regulatory agencies. Wisconsin's current regulations are more stringent than the PMO and do not allow for partial collection of milk from bulk tanks.
7. Anticipated Economic Impact
This proposed rule change is anticipated to have no negative impact, but rather a positive economic impact for Wisconsin's dairy industry. It will make Wisconsin's regulations regarding partial collection of milk from bulk tanks consistent with practices in other states, including those elsewhere in the Upper Midwest. It will allow dairy plants to manage their milk hauling practices more efficiently and profitably. Although the proposed rule will allow partial collection of bulk milk, it is not anticipated to be a widespread practice, but one tool that a dairy plant may use to manage milk hauling practices. The rule will not modify fees or have an economic impact on local governmental units or public utility taxpayers.
Contact Person
Steve Ingham, Division of Food Safety Administrator, DATCP; Phone (608) 224-4701.
Agriculture, Trade and Consumer Protection
This statement of Scope was approved by the governor on June 14, 2013.
Rule No.
Revises Chapter
ATCP 82, Wis. Adm. Code.
Relating to
Milk haulers and affecting small business.
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
N/A.
2. Description of the Objective of the Rule
Chapter
ATCP 82 (Milk Haulers) regulates bulk milk tanker licensing, construction, maintenance, cleaning and sanitizing requirements; bulk milk weigher sampler requirements, and mandatory procedures for collecting milk from dairy farms, collecting milk samples for testing, and delivering milk from a dairy farm to a dairy plant. The department proposes a rule in ch.
ATCP 82 adopting a provision of the Food and Drug Administration's (FDA) Pasteurized Milk Ordinance (PMO) which would allow milk haulers to make partial collections of milk from bulk tanks on dairy farms under certain conditions. Currently, bulk milk tanks must be emptied each time milk is collected. The proposed revision would allow partial collections and would necessarily also entail revision of requirements for milk agitation and cooling, bulk tank milk temperature measurement, the cessation of pumping milk to a bulk tank when a partial collection is being made from that tank, bulk tank cleaning and sanitizing, and the applicability of a positive drug residue test result to all partial loads containing milk from the same milking. The department also proposes to make other changes to ch.
ATCP 82 dealing with an exemption of Wisconsin license requirements for trucks holding a Grade “A" permit from another state, exemption of tanker Grade “A" permit requirements for employees of an already permit-holding bulk milk tanker owner, bulk milk weigher sampler license renewal requirements, re-inspection of bulk milk weigher samplers, washing and sanitizing of bulk milk tankers and associated hoses and pumps, thermometer calibration, rinsing of bulk tank volume measurement rods, supplies required for milk collection and sampling, and sealing of the bulk milk tanker access port. The other changes proposed would be made to ensure consistency between ch.
ATCP 82 and the PMO, and would reflect evolving industry standards.
2. Description of Existing Policies Relevant to the Rule and of New Policies Proposed to be Included in the Rule and an Analysis of Policy Alternatives; the History, Background, and Justification for the Proposed Rule
Wisconsin ranks second nationally in milk production and operates the nation's largest state dairy inspection program. Wisconsin has by far the largest number of dairy farms operated by licensed dairy producers; the milk from each of these farms is shipped to one of the 400+ licensed dairy plants in the state, or to a licensed dairy plant in another state. Milk must be collected from each farm in a licensed bulk milk tanker, and a licensed bulk milk weigher sampler must properly record the amount of milk collected and sample the milk on each farm for testing.
Current Wisconsin regulations in ch.
ATCP 82 require that all milk present in a bulk tank must be collected when a collection is made, i.e. partial collection is forbidden. The original intent of this regulation was to ensure that a dairy producer's bulk tank(s) was regularly cleaned and sanitized, and to ensure that collection-to-collection transfers of illegal drug residues did not occur, which could result in increased financial losses to dairy producers forced to dump multiple loads of milk.
Despite the worthwhile intentions which led to it being written, the requirement prohibiting partial collection of milk from a bulk tank is outdated. Farm sanitation methods have improved since Wisconsin's rule was first adopted. Frequent testing allows dairy plants to quickly address problems related to bulk tank cleanliness. As the number of dairy farms has decreased, farms have become larger, and per cow milk production has risen, many farms have purchased larger bulk tanks, creating new challenges for managing milk collection. For example, some farms now have bulk milk tanks that hold 7,000 or more gallons of milk, while other farms may have several smaller tanks. A typical milk truck carries approximately 6,000 gallons of milk. Allowing partial collection of milk from bulk tanks will give dairy plants the tools they need to more efficiently manage milk collection from these farms and avoid loading trucks beyond legal capacity. In the long run, increased flexibility for collection of milk could result in fewer trips required to haul milk, with associated fuel savings, and less wear and tear on roadways.
The PMO allows partial collection of milk provided that the bulk tank is emptied, cleaned and sanitized within at least 72 hours. The PMO also requires an acceptable temperature-recording device to be installed and operating on any bulk tank from which partial collections are made. The bulk milk weigher sampler, and regulatory personnel are required to observe temperature records to be sure that loss of temperature control, which can lead to unacceptable bacterial growth, did not occur following a partial collection. In absence of a temperature-recording device, partial pickups are permitted under the PMO as long as the bulk tank is emptied completely, cleaned and sanitized prior to the next milking. This proposed rule adopts these PMO standards.
Approximately 4,000 bulk milk tankers from Wisconsin and other states deliver milk to Wisconsin dairy plants. By regulation each of these trucks must be licensed in Wisconsin and, if carrying Grade “A" milk, hold a Grade “A" permit. It is logistically challenging to license all of these tankers, particularly those which are infrequently in Wisconsin. The department will consider removing the licensing requirement and fee while accepting Grade “A" permits issued by any state and instituting a Grade “A" permit inspection fee for bulk milk tankers based in Wisconsin. This change would benefit the milk hauling industry and allow re-assignment of department sanitarians to other tasks. The department will also consider removing a confusing exemption of tanker Grade “A" permit requirements for employees of an already permit-holding bulk milk tanker owner. Removal of this exemption will bring Wisconsin requirements in line with the PMO and create a level playing field for milk haulers.
The department currently licenses about 3,700 bulk milk weigher samplers, who measure the weight of milk collected and obtain a representative sample of each producer's milk for mandatory testing. The PMO requires a biennial field examination of each bulk milk weigher sampler before license renewal to ensure that s/he is using proper sample collection technique. Wisconsin regulations make the field examination optional. In order to improve consistency with the PMO, the department will consider changing the current bulk milk weigher sampler examination regulations, along with the re-inspection procedure used to evaluate bulk milk weigher samplers who have been found to be in violation of Wisconsin food safety law.
The department will also consider updating requirements for washing and sanitizing of bulk milk tankers and associated hoses and pumps, thermometer calibration, rinsing of bulk tank volume measurement rods, supplies required for milk collection and sampling, and sealing of the bulk milk tanker access port. These updates will improve consistency between Wisconsin rules and the PMO, while reflecting current industry standard practices.
Policy alternatives
If the department does not alter the current rules, Wisconsin dairy plants will lack the flexibility dairy plants have in other states that adopt the PMO standard and allow plants to collect partial loads of milk. Dairy plant operators will be prevented from managing their milk hauling practices in the most cost efficient and profitable manner and will be required to continue to empty bulk tanks each time they make a pickup, even if that means trucks are not filled to capacity or over-capacity milk is dumped. Not changing this policy has the potential to negatively impact dairy plant and producer costs, causing companies to incur unnecessary fuel and other costs associated with hauling milk, putting them at an economic disadvantage to dairy producers in other states that have adopted the PMO standard. These unnecessary trips also may damage Wisconsin roads. In addition, failure to update requirements, such as those related to tanker permits, bulk milk weigher sampler examination and re-inspection, and washing and sanitizing of bulk milk tankers and associated hoses and pumps, decreases the department's flexibility in assigning work while increasing the likelihood of obtaining an unacceptable score when the department's milk regulatory program is evaluated for PMO-compliance by the FDA.
3. Statutory Authority for the Rule (Including the Statutory Citation and Language)
93.07 Department duties. It shall be the duty of the department:
(1) Regulations. To make and enforce such regulations, not inconsistent with law, as it may deem necessary for the exercise and discharge of all the powers and duties of the department, and to adopt such measures and make such regulations as are necessary and proper for the enforcement by the state of chs.
93 to
100, which regulations shall have the force of law.
97.09 Rules.
(4) The department may, by rule, establish and enforce standards governing the production, processing, packaging, labeling, transportation, storage, handling, display, sale, including retail sale, and distribution of foods that are needed to protect the public from the sale of adulterated or misbranded foods.
97.21 Milk haulers and milk distributors.
(6) Rule making. The department may promulgate rules to establish amounts of fees required under sub. (4) or to regulate bulk milk tanker operators and milk distributors. The rules may include standards for the construction, maintenance and sanitary operation of bulk milk tankers, milk distribution vehicles and milk distribution facilities; the design, installation, cleaning and maintenance of equipment and utensils; personnel sanitation; storage and handling of milk and fluid milk products; identification of bulk milk tankers and milk distribution vehicles; and record keeping.
4. Estimate of the Amount of Time that State Employees Will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
DATCP estimates that it will use approximately 0.10 FTE staff to develop this rule. That includes time required for investigation and analysis, rule drafting, preparing related documents, coordinating advisory committee meetings, holding public hearings, and communicating with affected persons and groups. DATCP will use existing staff to develop this rule.
5. Description of all Entities that may be Impacted by the Rule
Dairy producers will gain increased flexibility regarding volume of bulk milk tanks they purchase to store increased milk volumes. For example, a producer may choose to install a second, smaller bulk tank (to reduce capital equipment costs) because the milk hauler could collect a truckload from the larger tank on the existing schedule and less often collect a partial load from the larger tank plus the additional milk accumulated in the smaller tank. Under the proposed rule, milk haulers will also gain increased flexibility in scheduling collections. For example, fewer milk tanker trips could be necessary for a producer who has two bulk tanks, one of which is completely emptied on the existing schedule and the other one which is used to “top up" a tanker for two consecutive days and is then emptied completely into a second tanker every third day. Reducing the number of milk tanker trips in situations like this could reduce damage to roadways and hauling costs for the dairy plant. Dairy producers and milk haulers would also benefit in the situation where the amount of milk in the farm bulk tank exceeds the remaining capacity of a milk tanker. Currently, the excess milk must be dumped. Under the proposed rule, the milk tanker could be filled to its limit, and the remaining milk held over for an additional collection by a truck with appropriate capacity. Dairy plant operators and milk haulers would benefit from Wisconsin recognizing other states' Grade “A" milk tanker permits. More consistent evaluation of bulk milk weigher samplers would reduce the likelihood of measurement error or invalid milk quality testing results – outcomes that could benefit dairy producers and dairy plant operators alike.
6. Summary and Preliminary Comparison of any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
The proposed rule would adopt federal PMO regulations related to partial collection of milk from bulk tanks. The federal guidelines in the PMO allow partial collection of milk. Wisconsin's regulations are more stringent than the PMO and do not allow for partial collection of milk from bulk tanks. Several other provisions of the PMO would be adopted, thus decreasing the likelihood of inconsistencies in milk regulation between states. Although compliance with the PMO is technically a voluntary effort by state regulatory agencies, Wisconsin is periodically evaluated by the FDA for compliance with PMO standards. Failure to pass the FDA audit would jeopardize the state's interstate and international dairy industry.
7. Anticipated Economic Impact
This rule change is anticipated to have no negative impact, but a positive economic impact for Wisconsin's dairy industry. It will make Wisconsin's regulations regarding partial collection of milk from bulk tanks, and other milk hauling procedures, consistent with practices in other states, including those elsewhere in the Upper Midwest. It will allow dairy plants to manage their milk hauling practices more efficiently and profitably. Although the proposed rule will allow partial collection of bulk milk, it is not anticipated to be a widespread practice, but one tool that a dairy plant may use to manage milk hauling practices. The rule may reduce milk tanker licensing costs to industry. The rule will not modify fees or have an economic impact on local governmental units or public utility taxpayers.
Contact Person
Steve Ingham, Division of Food Safety Administrator, DATCP; Phone (608) 224-4701.
Government Accountability Board
This statement of Scope was approved by the governor on June 13, 2013.
Rule No.
Relating to
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
N/A.
2. Detailed Description of the Objective of the Proposed Rule
The Government Accountability Board's rule on ballot security, under ss.
7.23 and
7.51, Stats., has become outdated because of advances in technology and because of heightened administrative and public concerns about ballot security in light of recent security and chain-of-custody problems in elections both in Wisconsin and in other states. To address those concerns and to update ballot security procedures in Wisconsin, the Board proposes to repeal and re-create chapter GAB 5, the ballot security rule.
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
Existing policy
Chapter
GAB 5 was originally published in 1992 and has not been amended except for renumbering and a correction in 2008. (Registers April 2008 No. 628 and June 2008 No. 630). Numerous statutory amendments have been made since 1992 for which ch.
GAB 5 applies. For example, current ch.
GAB 5 is silent as to the security of present-day electronic voting systems.
Proposed policy
Recreated Chapter
GAB 5 will address the statutory changes that have occurred since 1992 and create security instructions for the safeguarding of electronic tabulating voting equipment memory devices for periods before, during, and after elections. The rule also provides flexibility for counties to request approval to implement alternative security procedures.
Alternatives
A)
Do Nothing — leave ch.
GAB 5 as it is.
1)
Pros: This alternative means that no rule revision is necessary and staff resources will not be diverted from other tasks and duties needing the attention of the GAB.
2)
Cons: The absence of rule revision in this instance will perpetuate the already out of date security measures and instructions provided in ch.
GAB 5 which are largely due to technological innovations. As the pace of technology ever quickens and ch.
GAB 5 lags behind even further, the actual and perceived problems of ballot security will only become more egregious.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Section
7.23, Stats., establishes timelines for the destruction of election materials. Section
7.51, Stats., establishes requirements for securing ballots and electronic voting equipment and documenting their chain of custody.
Section
5.05 (1) (f), Stats., expressly authorizes the Board to promulgate rules under ch.
227, Stats., for the purpose of interpreting or implementing the laws regulating the conduct of elections or election campaigns or ensuring their proper administration.
Section
227.11 (2) (a), Stats., expressly authorizes the Board to promulgate rules to interpret the provisions of statutes the Board enforces or administers.
5. Estimate of Amount of Time that State Employees will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
20 hours.
6. List with Description of all Entities that may be Affected by the Proposed Rule
This rule will affect county and municipal election officials.
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
Federal law does not apply to the preparation, printing, or security of ballots. Federal law does require that materials, including ballots, relating to any election in which a federal office is on the ballot, must be preserved for not fewer than 22 months.
8. Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to have a Significant Economic Impact on Small Businesses)
The anticipated economic impact from the implementation of the proposed order is minimal to none. There may be some minimal economic impact on local officials, but will not affect small businesses.
Contact Person
Safety and Professional Services
Professional Services, Chs.
1-
299
This statement of scope was approved by the governor on June 10, 2013.
Rule No.
Relating to
Firearms and other dangerous weapons for private security personnel, private detectives, and private investigators or special investigators.
Rule Type
Permanent.
1. Finding/Nature of Emergency (Emergency Rule Only)
N/A.
2. Detailed Description of the Objective of the Proposed Rule
The objective of the proposed rule revision is to update this chapter so that the chapter no longer conflicts with
2011 Wisconsin Act 35 (Wisconsin's Concealed Carry Law).
3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives
This chapter currently establishes (1) qualifications and other requirements that apply to private security personnel, private detectives, and private investigators or special investigators, who carry firearms or other dangerous weapons or who transport loaded firearms — and to the employers of those individuals; (2) qualifications and other requirements that apply to instructors who certify the firearms proficiency of the individuals who carry firearms; and (3) qualifications and other requirements that apply to entities which train and certify those firearms instructors. The Department enforces compliance with these qualifications and requirements primarily through (1) issuance and annual renewal of a firearms permit for each individual who carries a firearm; and (2) issuance and biennial renewal of a firearms-proficiency-certifier approval for each firearms instructor.
The rule revision under this Scope Statement is primarily expected to exempt all of the requirements in this chapter from applying to anyone who carries a concealed weapon in accordance with a permit issued under section
175.60 of the Statutes and Chapters
Jus 17 and
18.
Alternatives to this revision include continuing to apply all of this chapter's requirements that currently determine
who can carry a firearm — but updating the requirements that determine
how these individuals can carry a firearm; that is, whether the firearm can be concealed rather than carried openly. This alternative would include modifying the current restrictions against concealed carry so that they no longer conflict with
2011 Act 35. The alternatives also include updating the chapter wherever needed so that it is consistent with contemporary industry and regulatory practices.
4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)
Section
227.11 (2) (a) of the Statutes authorizes the Department to “promulgate rules interpreting the provisions of any statute enforced or administered" by the Department, if the rule is considered necessary to effectuate the purpose of the statute.
Section
440.26 (2) (c) of the Statutes states “the Department shall prescribe, by rule, such qualifications as it deems appropriate" relating to the professional competence of private security personnel, private detectives, and private investigators or special investigators. To fulfill this duty, the Department has codified the qualifications described in section 3 above, along with qualifications that apply independent of whether a firearm is carried.
Section
440.26 (3m) of the Statutes states the “Department shall promulgate rules relating to the carrying of dangerous weapons by a person who holds a license or permit issued under [section 440.26] or who is employed by a person licensed under [section
440.26]." Section
440.26 (3m), Stats., also requires these rules to allow carrying concealed weapons in the manner permitted under section
175.60 of the Statutes.
5. Estimate of Amount of Time that State Employees will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule
The Department estimates approximately 100 hours will be needed to perform the review and develop the proposed rule revisions. This time includes meeting with stakeholders, drafting the rule revisions, and processing the revisions through public hearings, legislative review, and adoption. The Department will assign existing staff to perform the review and develop the rule revisions, and no other resources will be needed.
6. List with Description of all Entities that may be Affected by the Proposed Rule
Private security personnel, private detectives, and private investigators or special investigators, who carry firearms or transport loaded firearms — and the employers of those individuals.
7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule
An Internet-based search found only the following two federal regulations that specifically address carrying of firearms by private security personnel, private detectives, and private investigators or special investigators: (1) under section 2201a of title 42 of the United States Code, private security personnel at nuclear power facilities may be authorized to carry standard weapons after passing a background check and successfully completing specified training in the use of firearms; and (2) appendix B of part 73 of title 10 of the Code of Federal Regulations contains the corresponding requirements for the weapons training, and requires demonstration of the specified firearms proficiency at least every 12 months. As Noticed in the
Federal Register on February 3, 2011, and January 10, 2013, and as authorized under the Energy Policy Act of 2005, the Nuclear Regulatory Commission has proposed revising
10 CFR 73 to address (1) voluntary use of enhanced weapons — such as machine guns and semi-automatic, large capacity assault weapons — at these facilities, including at-reactor independent spent fuel storage installations; (2) preemption of any other federal, state, or local requirements that would otherwise prohibit use of these enhanced weapons; and (3) screening all security personnel who use standard or enhanced weapons, through the National Instant Criminal Background Check System, as maintained by the U.S. Department of Justice.
Under sections 926B and 926C of title 18 of the United States Code, individual states and their political subdivisions are not allowed to restrict qualified current and former law enforcement officers from carrying concealed firearms, except on state- or local-government-owned property or on private property that is restricted against such carry by the property owner.
According to the rule analysis issued by the Wisconsin Department of Justice for Chapters
Jus 17 and
18, there are no federal regulations that relate to the licensing of concealed carry by persons other than current and former law enforcement officers, nor are there any federal regulations governing the certification of firearms instructors for concealed-carry purposes.
Various sections of the U.S. Code and the Code of Federal Regulations, such as
18 U.S.C. 930, address possession of firearms or other dangerous weapons in federal facilities and on federal property, such as post offices, Internal Revenue Service offices, federal court buildings, military facilities, Veterans Administration facilities, federal correctional facilities, Amtrak trains and facilities, Corps of Engineers-controlled property, and national parks and wildlife preserves.
Under
18 U.S.C. 922 (d), felons, illegal aliens, and other specified persons are prohibited from purchasing or possessing firearms — and this prohibition is partly enforced by States through background checks under part 25 of title 28 of the Code of Federal Regulations during an application process for a concealed-carry or other firearm permit. As Noticed in the April 23, 2013,
Federal Register, the U.S. Department of Health and Human Services is considering rule revisions to reduce any unnecessary legal barriers relating to the Health Insurance Portability and Accountability Act and use of the federal National Instant Criminal Background Check System.
Under
18 U.S.C. 922 (q), possession of a firearm is prohibited in a school zone, except as authorized in that section.
None of the intended rule revisions are expected to conflict with the above federal regulations.
8. Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to have a Significant Economic Impact on Small Businesses)
Since individuals other than former federal law enforcement officers who would obtain a concealed-carry permit under Chapters
Jus 17 and
18 in lieu of obtaining a firearms permit under Chapter
SPS 34 would renew their permit once every five years instead of demonstrating their firearms proficiency annually under Chapter
SPS 34, those individuals and their employers would likely incur lower costs if this intended rule revision is implemented. However, firearms-proficiency certifiers for these individuals would likely receive lower revenues.
Contact Person
Sam Rockweiler, at telephone (608) 266-0797.
