Rules Clearinghouse No. 15-094
ORDER
OF THE WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
ADOPTING RULES
The Wisconsin department of agriculture, trade and consumer protection hereby adopts the following rule to repeal ATCP 82.02 (1) and ATCP 82.02 (4); to amend ATCP 82.02 (title), (intro., ), (d),and (e), ATCP 82.02 (3), ATCP 82.02 (5), ATCP 82.02 (6) , and ATCP 82.02 (7) (d) (intro.); and to create ATCP 82.02 (1m); and to repeal and re-create ATCP 82.02 (7); relating to bulk milk tanker permitting regulations, and affecting small business.
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Statutes Interpreted
Statute Interpreted: s. 97.21, Stats. (Milk haulers and milk distributors). Statutory Authority
Explanation of Statutory Authority
The Department has broad general authority, under s. 93.07 (1), Stats., to adopt rules to implement programs under its jurisdiction. The Department 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 in s. 97.21(6), Stats., which allows the Department to establish rules related to the following: 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
In the past, Wisconsin required the owner of a bulk milk tanker used to transport Grade “A” milk and milk products to hold both a bulk milk tanker license and a Grade “A” permit for that tanker. The Department charged a licensing fee of $45 and issued a Grade “A” permit as an endorsement on the license. 2015 Act 55 revised s. 97.21, Stats., eliminating bulk milk tanker licensing and license fee requirements and aligned Wisconsin with most other states by removing the requirement that bulk milk tanker operators hold both a bulk milk tanker license and a Grade “A” permit. The proposed rule continues the alignment of Wisconsin with other states by maintaining the requirement that a Grade “A” permit cannot be issued to a bulk milk tanker unless that tanker has passed an inspection by the Department or a Wisconsin certified industry inspector within the preceding 24 months. Reciprocity of the Grade “A” bulk milk tanker permit is required by the US Food and Drug Administration’s Pasteurized Milk Ordinance (PMO), a cooperative agreement that governs the interstate shipment of Grade “A” milk and milk products and is the basis of each state’s Grade “A” milk requirements. The Department proposes to incorporate these revisions into ATCP 82 to reflect these recent statutory and PMO changes and remain consistent with the PMO. The rule also adopts a modest increase in the bulk milk tanker reinspection fee, so that it covers Department costs. Reinspections are conducted by the Department to verify that appropriate corrective actions have been taken, after an initial inspection indicates a bulk milk tanker does not meet one or more regulatory requirements. In 2014, only 13 tankers required reinspection. The proposed rule increases the reinspection fee from $45 to $60.
Summary of, and Comparison with Existing or Proposed Federal Statutes and Regulations
The PMO establishes minimum standards for regulation of Grade “A” milk and milk products. States must set regulatory standards equivalent to, or more stringent than, those in the PMO to be allowed to ship Grade “A” milk and milk products in interstate commerce.
Comparison with Rules in Adjacent States
Michigan, Minnesota, Iowa, and Illinois base their dairy regulations on the PMO. The proposed rule will align Wisconsin’s regulations with the PMO and these neighboring states for licensing and permitting of Grade “A” tankers. Each of these states inspects bulk milk tankers, and issues a Grade “A” permit after inspection. Some states charge a fee associated with these Grade “A” inspections.
In 2015, the National Conference for Interstate Milk Shipments, with FDA concurrence, changed the mandatory bulk milk tanker inspection frequency in the PMO from at least once every 12 months to at least once every 24 months with an inspection conducted on any date in the 24th month since the previous inspection being accepted as compliant. By maintaining consistency with the PMO, Wisconsin’s rule will be consistent with requirements in Michigan, Minnesota, Iowa, and Illinois.
Summary of Factual Data and Analytical Methodologies
Proposed rule changes were developed in response to recent statutory changes after 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 collection, sampling and transport of Grade “A” milk and milk products.
Effect on Small Business
By eliminating licensing fees, the proposed rule changes will benefit those dairy producers, dairy plants, and companies that operate bulk milk tankers, many of which are small businesses. The proposed rule includes a modest increase in the reinspection fee from $45 to $60, to cover the current cost of reinspection. This fee would only be charged if the Department finds a regulatory violation necessitating corrective action and a reinspection. In 2014, only 13 owners of bulk milk tankers were charged a reinspection fee. 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. The PMO allows for no special accommodations for small businesses.
DATCP Contact
Peter Haase, Director
Bureau of Food Safety and Inspection
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone: (608) 224-4711
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Section 1. ATCP 82.02 (title) is amended to read:
ATCP 82.02 (title) Bulk milk tanker; license; grade A permit.
Section 2. ATCP 82.02 (1) is repealed.
Section 3. ATCP 82.02 (1m) is created to read:
(1m) Permit required. No person may operate a bulk milk tanker to transport milk or fluid milk products for sale or use as grade A milk or grade A dairy products unless the department, or an equivalent regulatory agency in another state, has issued a valid grade A permit for that bulk milk tanker and the information required under sub. (7) (d) is displayed on the bulk milk tanker as required under sub. (7) (e). A grade A permit is not transferable between bulk milk tankers.
Section 4. ATCP 82.02 (2) (title) is amended to read: License application Permit application
