Rule-Making Notices (Hearing Notices)

(DATCP DOCKET # 13-R-03 )

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed rule to revise Chapter ATCP 82, relating to milk haulers.

DATCP will hold three public hearings at the times and places shown below. DATCP invites the public to attend the hearings and comment on the proposed rule.

Hearing Information

Date:   Wednesday, January 15, 2014
Time:   10:00 a.m. to 12:00 p.m.
Location:   Room 129
  Eau Claire State Office Building
  718 West Clairemont Avenue
  Eau Claire, Wisconsin 54701

Date:   Thursday, January 16, 2014
Time:   9:00 a.m. to 11:30 a.m.
Location:   Room 090 (Training Room)
  Department of Agriculture, Trade and
  Consumer Protection
  2811 Agriculture Drive
  Madison, Wisconsin 53718

Date:   Friday, January 17, 2014
Time:   10:00 a.m. to 12:00 p.m.
Location:   Room 152B
  200 N. Jefferson Street
  Green Bay, Wisconsin 54301

Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by January 3, 2014, by writing to Sandra Cleveland, Division of Food Safety, P.O. Box 8911, Madison, Wisconsin 53708-8911; or by emailing [e-mail]; or by telephone at [phone]. Alternatively, you may contact the DATCP TDD at [phone]. The hearing facility is handicap accessible.

Place where Comments are to be Submitted and Copies of the Rule

Following the public hearings, the hearing record will remain open until January 31, 2014 for additional written public comments. Comments may be sent to the Division of Food Safety at the address below, or to [e-mail], or to http://adminrules.wisconsin.gov.

You can obtain a free copy of this hearing draft rule and related documents including the economic impact analysis by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Food Safety, 2811 Agriculture Drive, P.O. Box 8911, Madison, Wisconsin 53708. You can also obtain a copy by calling Sandra Cleveland at [phone] or by emailing [e-mail]. Copies will also be available at the hearing. To view the hearing draft rule online, go to: http://adminrules.wisconsin.gov.

Comments or concerns relating to small business may also be addressed to DATCP's small business regulatory coordinator Keeley Moll at the address above, or by email to [e-mail], or by telephone at [phone].

Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection

Chapter ATCP 82 (Milk Haulers) regulates bulk milk tanker licensing, construction, maintenance, cleaning, and sanitizing requirements; bulk milk weigher and sampler requirements, and mandatory procedures for collecting milk from dairy farms and delivering milk to a dairy plant and collecting milk samples for testing. This rule revision will align Wisconsin's regulations with the Food and Drug Administration's (FDA) Pasteurized Milk Ordinance (PMO) by allowing bulk milk weighers and samplers to collect partial loads of milk.

Statutes interpreted

Section 97.21, Stats., (Milk haulers and milk distributors).

Statutory authority

Sections 93.07 (1), 97.09 (4), and 97.21 (6), Stats.

Explanation of statutory authority

DATCP has broad general authority, under s. 93.07 (1), Stats., to adopt rules to implement programs under its jurisdiction. DATCP also has general authority under s. 97.09 (4), Stats., to adopt rules specifying standards to protect the public from the sale of adulterated or misbranded foods. The department has specific authority to promulgate rules related to milk haulers under s. 97.21 (6), Stats., which allows the department to establish rules related to: fees and regulations for bulk milk tanker operators and milk distributors; 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.

Related statutes and rules

Wisconsin's milk haulers are governed by ch. 97, Stats. (Food Regulation). Milk haulers and milk distributors are regulated under s. 97.21, Stats., (Milk haulers and milk distributors). Chapter 82, Wis. Adm. Code, interprets ch. 97, Stats., as it relates to milk haulers and milk distributors.

Plain language analysis

The dairy industry is an important part of Wisconsin's economy. Wisconsin ranks second nationally in milk production and has 10,900 licensed dairy farms. Milk is shipped from each of these farms in a licensed bulk milk tanker (approximately 4,000 in Wisconsin) to one of more than 400 licensed dairy plants in the state or to a licensed dairy plant in another state. Safe and sanitary handling of milk throughout the collection and transportation process is critical for protecting the quality of milk produced in this state. Accurate measurement of collected milk and proper sampling of milk for analysis help ensure fair payment and milk safety, respectively.

The following proposed rule changes are needed to maintain Wisconsin's reputation for its world class dairy products by ensuring that inspection practices are aligned with the Food and Drug Administration's (FDA's) Grade “A" Pasteurized Milk Ordinance (PMO). The PMO establishes minimum standards for Grade “A" dairy products. Wisconsin dairy producers and bulk milk weighers and samplers must meet state regulatory standards equivalent to or more stringent than those in the PMO to be allowed to ship Grade “A" milk in interstate commerce. The PMO standards are established by the National Conference on Interstate Milk Shipments (NCIMS), which consists of voting representatives from dairy regulatory agencies in each state.

Partial collections of milk from bulk milk tanks

The rule proposes adopting a provision of the PMO that allows bulk milk weighers and samplers to make partial collections of milk from bulk tanks on dairy farms under certain conditions. Currently, ch. ATCP 82 essentially requires bulk milk weighers and samplers to empty a bulk milk tank each time they collect milk from the farm. The regulation states that no milk can be added to the bulk milk tank until after the tank has been emptied. The original intent of the regulation was to ensure that a dairy producer's bulk tank 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 these worthwhile intentions, 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 can allow dairy plants to quickly address problems related to bulk tank cleanliness and drug residues. As the number of dairy farms has decreased, farms have become larger, and per cow milk production has risen, many farms have purchased larger or additional bulk tanks, thereby creating new challenges for managing milk collection. On other farms, milk production increases have outpaced the expansion of milk tank volume, which also creates milk collection challenges. Allowing partial collection of milk from bulk tanks will provide industry with the flexibility needed to manage milk collection from farms more efficiently. In the long run, increased flexibility for collection of milk may 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 certain practices are used to maintain the quality of milk. The proposed rule adopts these practices, which include a requirement that the bulk tank is emptied, cleaned and sanitized within 72 hours and that an acceptable temperature-recording device is installed and operating on the tank. To ensure proper regulatory oversight of partial collections of milk, the proposed rule also requires a bulk milk weigher and sampler to record when a partial pickup is made and when the bulk tank is emptied.

Bulk milk tanker grade “A" permit reciprocity

The proposed rule also seeks to clarify and strengthen reciprocity requirements for bulk milk tanker Grade “A" permits. The PMO requires that each bulk milk tank truck delivering Grade “A" raw milk and milk products bear a Grade “A" permit. Grade “A" permits may only be issued after satisfactory completion of an inspection that addresses specific items outlined in the PMO. Each bulk milk tanker is required to be inspected once per year and the bulk milk tanker operator must be able to show proof of a current permit and passed inspection to deliver Grade “A" milk and milk products. The PMO requires that each bulk milk tanker only need bear one permit from an appropriate state regulatory agency and that each permit be recognized by the appropriate regulatory agencies in other states under the reciprocal agreements of the NCIMS.

Under s. 97.21 (2) (a) and (b), Stats., any bulk milk tanker that operates in Wisconsin must hold a license and a Grade “A" permit. Under the current rule, a Grade “A" permit is routinely issued for each tanker as an endorsement on the license. Since any tanker that operates in Wisconsin must hold a license, Grade “A" permits are issued both to tankers based in Wisconsin and out-of-state tankers that operate in Wisconsin. However, because Wisconsin-licensed tankers are not necessarily based in Wisconsin, it may not be possible to conduct the annual inspection required to make the Grade “A" permit valid.

The proposed rule will end the practice of routinely providing a Grade “A" permit as part of the licensing process and clarify that a Grade “A" permit will only be granted after completion of the required annual inspection, as required by the PMO. It also clarifies that the department will recognize valid Grade “A" permits issued by another equivalent state regulatory agency if the bulk milk tanker operator can provide proof of a current passed inspection. These changes will allow out-of-state tankers to seek Grade “A" inspections from the regulatory agency in the state in which their tankers are based and will bring Wisconsin into compliance with reciprocity requirements of the PMO and the NCIMS.

Certified industry inspection program for bulk milk tankers

Often, logistical issues make it difficult for the department to schedule annual bulk milk tanker inspections in a timely manner. Bulk milk tankers must hold a valid Grade “A" permit and demonstrate they've passed an annual inspection to deliver Grade “A" milk and milk products. If a Wisconsin tanker tries to deliver Grade “A" milk or milk products without a current inspection, the tanker load may be turned away or another state regulatory agency may conduct an inspection and charge the tanker operator a fee. To ensure that all Wisconsin-based bulk milk tankers receive an annual inspection, the proposed rule will also establish a certified industry inspection program for inspecting bulk milk tankers.

Section 5 of the PMO allows state regulatory agencies to certify certain industry personnel to carry out bulk milk tanker inspections. Certified industry inspections are carried out under a cooperative arrangement with the state regulatory agency. Section 97.32, Stats., also establishes procedures that allow the department to appoint industry personnel to conduct special food and dairy inspections. The proposed rule allows the department to select industry inspection personnel for the certified inspection program in accordance with s. 97.32, Stats., and adopts PMO procedures for conducting certified industry inspections. The PMO establishes stringent procedures for ensuring proper regulatory oversight of industry inspections so that inspections are conducted consistently and that they effectively evaluate bulk milk tanker equipment construction, cleaning, sanitation and repair. The rule authorizes certified industry inspectors to perform all regulatory actions associated with issuing a Grade “A" permit for bulk milk tankers, establishes selection procedures, establishes a certification period of 3 years, and establishes record retention requirements. The proposed rule allows the department to revoke certification if a certified industry inspector fails to meet the requirements of the program. Under the proposed rule, bulk milk tankers must be inspected annually by the department, another equivalent regulatory agency, or a certified industry inspector.

Other changes to modernize Chapter ATCP 82

In addition to clarifying practices for recognizing reciprocity with other states for bulk milk tanker Grade “A" permits and allowing partial collection of milk from bulk tanks, the proposed rule also makes other changes designed to modernize the rule and further align the rule with the PMO. The proposed rule:

•   Removes the definition of “milk hauler" and use of the term “milk hauler" and instead defines and uses “bulk milk weigher and sampler" to reflect current terminology which more fully encompasses the tasks performed. The definitions are also revised to clarify that use of the term “department" throughout the rule refers to the Department of Agriculture, Trade and Consumer Protection.

•   Removes the requirement that a bulk milk tanker operator must clean and sanitize the milk tankers and instead specifies that the tanker must be cleaned and sanitized adequately. The proposed rule focuses on the task that must be accomplished, rather than who must accomplish it.

•   Clarifies that personnel at the entity responsible for cleaning and sanitizing a bulk milk tanker must remove the old cleaning tag and retain it, and put a new cleaning tag on the tanker. Formerly, the tanker operator retained the old tag. The proposed rule thereby keeps the records at the location where the documented action occurred.

•   Adds a requirement that, in addition to obtaining a license, a Bulk Milk Weigher and Sampler who seeks to hold the Grade “A" permit necessary for collection of Grade “A" samples must be inspected every two years. This requirement will bring Wisconsin's bulk milk weigher and sampler requirements into compliance with the PMO. There will be no additional fees for these inspection and permit requirements.

•   Removes the requirements that the tanker access port(s) be sealed after the tanker is filled with milk, and that a broken seal(s) must be reported to the department. This requirement was originally added to ch. ATCP 82 in response to industry concerns about intentional adulteration (tampering). However, the PMO does not require tanker access ports to be sealed after filling, and the Wisconsin requirement to report broken seals to the department has only been occasionally invoked. When the requirement has been invoked, it has proven to be superfluous in light of existing industry food defense practices.

Summary of, and comparison with existing or proposed federal statutes and regulations

The PMO establishes minimum standards for regulation of Grade “A" dairy products. States must set standards equivalent to, or more stringent than, those in the PMO to be allowed to ship Grade “A" milk in interstate commerce. These rule changes will bring Wisconsin's regulations regarding milk pick up, sampling and delivery in line with the 2011 PMO.

Comparison with rules in adjacent states

Michigan, Minnesota, Iowa, and Illinois adopt the PMO as part of their dairy regulations and therefore already allow partial collection of milk from bulk milk tanks. The proposed rule will also align Wisconsin's regulations with the PMO and these neighboring states for licensing and permitting of Grade “A" tankers and Bulk Milk Weighers and Samplers. Each of these states licenses milk tankers, and issues a Grade “A" permit after inspection. Some states charge a fee associated with these inspections.

Summary of factual data and analytical methodologies

Proposed rule changes were developed after consultation with industry, a review of PMO requirements, and a review of practices in neighboring states.

Analysis and supporting documents used to determine effect on small business

The PMO makes no distinction between large and small businesses in establishing requirements for Grade “A" collecting, sampling and transporting milk and milk products. The expected cost for installing a 7-day temperature recording device was determined after consultation with industry.

Effect on Small Business

The proposed rule changes will impact dairy producers, dairy plants, and companies that operate bulk milk tankers, many of which may be small businesses. The proposed rule does not substantially alter requirements which dairy-related businesses already meet. The rule does not increase license or permit fees. All Grade “A" dairy businesses, whether large or small, must meet regulations that are substantially in compliance with the FDA's PMO in order to collect, sample, and transport Grade “A" dairy products and no special accommodation may be made for small businesses. Allowing partial collection of milk from bulk tanks will be voluntary, but will provide management flexibility to businesses of all sizes, including small businesses. Other provisions, such as clarifying reciprocity procedures and adopting a certified industry inspection program for bulk milk tankers, will also benefit small businesses by ensuring the timely inspection of tankers for Grade “A" permits. A valid Grade “A" permit is required to transport and deliver Grade “A" dairy products.

If the proposed rule is adopted, some dairy producers may incur costs if they need to purchase a 7-day temperature recording-device for their bulk milk tank. The PMO requires all bulk milk tanks produced after January 1, 2000 to be equipped with an approved temperature recording device, but dairy producers who own older tanks may need to purchase a temperature recording device to allow partial collection of milk from their bulk tanks. However, partial collection of milk from bulk tanks will be voluntary and individual dairy businesses will determine whether to use this option based on their own business needs. Producers will not be required to install a 7-day temperature recording device if partial collections of milk are not made from the tank. Producers who have partial collections of milk from their bulk tanks may expect to offset some costs through reduced water and chemical use for bulk tank cleaning.

Proposed rule changes related to inspecting and providing Grade “A" permits for bulk milk tankers and bulk milk weighers and samplers who seek to hold a Grade “A" permit will have no impact on small business since bulk milk tankers and bulk milk weighers and samplers are already required to be licensed and inspected. The rule does not increase license or permit fees.

The proposed rule also assists small businesses by simplifying regulations regarding cleaning and sanitizing milk tankers, clarifying procedures for retaining bulk milk tanker cleaning tags, and removing an unnecessary requirement for reporting broken seals on tankers.

Regulatory Flexibility Analysis

Rule summary

The following proposed rule changes are needed to maintain Wisconsin's reputation for its world class dairy products by ensuring that inspection practices are aligned with the Food and Drug Administration's (FDA's) Grade “A" Pasteurized Milk Ordinance (PMO). The PMO establishes minimum standards for Grade “A" dairy products. Wisconsin dairy producers and bulk milk weighers and samplers must meet state regulatory standards substantially equivalent to, or more stringent than, those in the PMO in order for Wisconsin Grade “A" milk to enter interstate commerce. The PMO standards are established by the National Conference on Interstate Milk Shipments (NCIMS), which consists of voting representatives from dairy regulatory agencies in each state.

Partial collection of milk from bulk milk tanks

The rule proposes adopting a provision of the PMO that allows, but does not require, bulk milk weighers and samplers to make partial collections of milk from bulk tanks on dairy farms. The PMO allows partial collections if certain practices are used to maintain the quality of milk. The proposed rule adopts these practices, including a requirement that the bulk tank is emptied, cleaned and sanitized within 72 hours and that an acceptable temperature-recording device is installed and operating on the tank. To ensure proper regulatory oversight of partial collections of milk, the proposed rule also requires a bulk milk weigher and sampler to record when a partial pickup is made and when the bulk tank is emptied.

Bulk milk tanker grade “A" permit reciprocity

The proposed rule also clarifies and strengthens reciprocity requirements for bulk milk tanker Grade “A" permits. The PMO requires that each bulk milk tank truck delivering Grade “A" raw milk and milk products bear a Grade “A" permit, which may only be issued after satisfactory completion of an annual inspection. The bulk milk tanker operator must be able to show proof of a current permit and passed inspection to deliver Grade “A" milk and milk products. The PMO requires that each bulk milk tanker only need bear one permit from an appropriate state regulatory agency and that each permit be recognized by the appropriate regulatory agencies in other states under the reciprocal agreements of the NCIMS.

Under s. 97.21 (2) (a) and (b), Stats., any bulk milk tanker that operates in Wisconsin must hold a license and a Grade “A" permit. Under the current rule, a Grade “A" permit is routinely issued for each tanker as an endorsement on the license. Since any tanker that operates in Wisconsin must hold a license, Grade “A" permits are issued both to tankers located in Wisconsin and out-of-state tankers that operate in Wisconsin. However, because some Wisconsin-licensed tankers are not necessarily based in Wisconsin, it may not be possible to conduct the annual inspection required to make the Grade “A" permit valid.

The proposed rule will end the current practice of routinely providing a Grade “A" permit as part of the licensing process and clarifies that a Grade “A" permit will only be granted after completion of the annual inspection, as required by the PMO. It also clarifies that the department will recognize valid Grade “A" permits issued by an equivalent regulatory agency in another state if the bulk milk tanker operator can provide proof of a current passed inspection. These changes will allow out-of-state tankers to seek Grade “A" inspections from the regulatory agency in the state in which their tankers are located and will bring Wisconsin into compliance with reciprocity requirements of the PMO.

Certified industry inspection program for bulk milk tankers

Often, logistical issues make it difficult for the department to schedule annual bulk milk tanker inspections in a timely manner. If a Wisconsin tanker tries to deliver Grade “A" milk or milk products outside Wisconsin without proof of a current inspection, the tanker load may be turned away or another state regulatory agency may conduct an inspection and charge the tanker operator an inspection fee. To further ensure that all Wisconsin-based bulk milk tankers receive an annual inspection in a timely manner, the proposed rule will also establish a voluntary certified industry inspection program, in accordance with the PMO, for inspecting bulk milk tankers. The PMO requires, and the proposed rule adopts, stringent procedures for ensuring proper regulatory oversight of certified industry inspections so that inspections are conducted consistently and that they effectively evaluate bulk milk tanker equipment, construction, cleaning, sanitation and repair. The proposed rule would allow the department to select industry inspection personnel who wish to participate in the program in accordance with s. 97.32, Stats., which outlines procedures for the department to appoint special food and dairy inspectors.

Other changes to modernize Chapter ATCP 82

The proposed rule also makes other changes designed to modernize the rule and further align the rule with the PMO, including:

•   Replacing the term “milk hauler" with “bulk milk weigher and sampler" to reflect current terminology which more fully encompasses the tasks performed by a bulk milk weigher and sampler. The definitions would also be revised to clarify that use of the term “department" throughout the rule refers to the Department of Agriculture, Trade and Consumer Protection.

•   Removing the requirement that a bulk milk tanker operator must clean and sanitize the milk tankers, while maintaining the requirement that the tanker must be cleaned and sanitized adequately. The proposed rule focuses on the task that must be accomplished, rather than who must accomplish it.

•   Clarifying that personnel at the entity responsible for cleaning and sanitizing a bulk milk tanker must remove the old cleaning tag and retain it, and put a new cleaning tag on the tanker. Formerly, the tanker operator retained the old tag. Under the proposed rule the records would be kept at the location where the documented action occurred.

•   Adding a requirement that, in addition to obtaining a license, a bulk milk weigher and sampler who seeks to hold the Grade “A" permit necessary for collection of Grade “A" samples must be inspected every two years. There will be no additional fee for the inspection and permit.

•   Removing the requirements that the tanker access port(s) be sealed after the tanker is filled with milk, and that a broken seal(s) must be reported to the department. This requirement was originally added to ch. ATCP 82 in response to industry concerns about intentional adulteration (tampering). However, the PMO does not require tanker access ports to be sealed after filling, and the Wisconsin requirement to report broken seals to the department has only been occasionally invoked. When the requirement has been invoked, it has proven to be superfluous in light of existing industry food defense practices.

Small businesses affected

The proposed rule changes will impact dairy producers, dairy plants, and companies that operate bulk milk tankers, many of which may be small businesses. The proposed rule does not substantially alter requirements dairy-related businesses already meet. The rule does not increase license or permit fees. All Grade “A" dairy businesses, whether large or small, must meet regulations that are substantially in compliance with the FDA's PMO in order to collect, sample, and transport Grade “A" dairy products and no special accommodation may be made for small businesses. Allowing partial collection of milk from bulk tanks will be voluntary, but will provide management flexibility to businesses of all sizes, including small businesses. Other provisions, such as clarifying reciprocity procedures and adopting a certified industry inspection program for bulk milk tankers, will also benefit small businesses by ensuring the timely inspection of tankers for Grade “A" permits. A valid Grade “A" permit is required to transport and deliver Grade “A" dairy products.

If the proposed rule is adopted, some dairy producers may incur costs if they need to purchase a 7-day temperature recording-device for their bulk milk tank. The PMO requires all bulk milk tanks produced after January 1, 2000 to be equipped with an approved temperature recording device, but dairy producers who own older tanks may need to purchase a temperature recording device to allow partial collection of milk from their bulk tanks. However, partial collection of milk from bulk tanks will be voluntary and individual dairy businesses will determine whether to use this option based on their own business needs. Producers will not be required to install a 7-day temperature recording device if partial collections of milk are not made from the tank. Producers who have partial collections of milk from their bulk tanks may expect to offset some costs through reduced water and chemical use for bulk tank cleaning.

Proposed rule changes related to inspecting and providing Grade “A" permits for bulk milk tankers and bulk milk weighers and samplers who seek to hold a Grade “A" permit will have no impact on small business since bulk milk tankers and bulk milk weighers and samplers are already required to be licensed and inspected. The rule does not increase license or permit fees.

The proposed rule also assists small businesses by simplifying regulations regarding cleaning and sanitizing milk tankers, clarifying procedures for retaining bulk milk tanker cleaning tags, and removing an unnecessary requirement for reporting broken seals on tankers.

Reporting, bookkeeping and other procedures

The proposed rule would require a bulk milk weigher and sampler to record when they make a partial collection of milk from a bulk milk tank. The rule would not require any additional reporting, bookkeeping or other procedures.

Professional skills required

The proposed rule does not require any new professional skills by small businesses.

Accommodation for small business

All Grade “A" dairy businesses, whether large or small, must meet regulations that are substantially in compliance with the Food and Drug Administration's Pasteurized Milk Ordinance in order to collect, sample, and transport Grade “A" dairy products. The provision in the rule allowing partial collection of milk from bulk tanks is optional and while it is expected to primarily benefit larger businesses, it could also provide small businesses with more management flexibility. Other provisions in the rule will not substantially alter current practice. No special accommodation for small business may be made.

Conclusion

The provisions in this proposed rule will benefit Wisconsin's dairy industry. If adopted, this rule will provide more flexibility for dairy-related businesses that collect and transport bulk milk. It will clarify and simplify Grade “A" permit requirements for milk tankers and bulk milk weighers and samplers. It will remove an unnecessary reporting requirement. Implementation costs associated are expected to be minimal and the rule does not increase license or permit fees.

This rule will not have a significant adverse effect on “small business" and is not subject to the delayed “small business" effective date provided in s. 227.22 (2) (e), Stats.

DATCP will, to the maximum extent feasible, seek voluntary compliance with this rule.