WSR 19-21-058

PROPOSED RULES

DEPARTMENT OF AGRICULTURE

[Filed October 11, 2019, 11:18 a.m.]

Original Notice.

Expedited Rule Making—Proposed notice was filed as WSR 19-08-081.

Title of Rule and Other Identifying Information: Chapter 16-125 WAC, Farm milk storage tanks and bulk milk tanker—Requirements, the department is proposing to repeal WAC 16-125-035 Farm tank pickup and washing requirements. By repealing this section, the department is deferring to the standards for picking up milk from farm tanks and for washing and sanitizing the tanks specified in the 2017 pasteurized milk ordinance (PMO) that is adopted under chapter 16-101 WAC, Washington state milk and milk products standards.

Hearing Location(s): On November 26, 2019, at 9:00 a.m., at the Natural Resources Building, Room #172, 1111 Washington Street S.E., Olympia, WA 98501.

Date of Intended Adoption: December 3, 2019.

Submit Written Comments to: Gloriann Robinson, Agency Rules Coordinator, P.O. Box 42560, Olympia, WA 98504-2560, email wsdarulescomments@agr.wa.gov, fax 360-902-2092, by November 26, 2019.

Assistance for Persons with Disabilities: Contact Angela Starr, phone 360-902-1967, fax 360-902-2087, TTY 800-833-6388, email astarr@agr.wa.gov, by November 19, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: WAC 16-125-035 requires that (1) all milk must be picked up at least every forty-eight hours from farm tanks, and (2) all farm tanks must be emptied, washed, and sanitized at least once every forty-eight hours. Northwest Dairy Association and Darigold petitioned the department, requesting that these time requirements be changed to align with the 2017 PMO, which was adopted under chapter 16-101 WAC on April 5, 2019.

Reasons Supporting Proposal: RCW 15.36.021 authorizes the department to, by rule, establish, amend, or both, definitions and standards for milk and milk products and states that those definitions and standards shall conform, insofar as practicable, with the definitions and standards for milk and milk products adopted by the federal Food and Drug Administration (FDA) which are published in PMO. FDA designs PMO to protect consumers from milk borne diseases in both grade "A" pasteurized and raw milk and encourages all states to adopt the most recent version in order to promote uniformity with other states. The 2017 PMO specifies a seventy-two hour requirement for farm tank pickup and washing under Item 10r – Utensils and Equipment - Cleaning. The 2017 version of PMO, including the seventy-two hour requirement for farm milk pickup and tank washing, was adopted by the department in April 2019 under chapter 16-101 WAC thus making the forty-eight hour requirement in WAC 16-125-035 conflict with the requirements adopted in chapter 16-101 WAC and confusing for stakeholders to follow. By repealing WAC 16-125-035, which requires milk pickup and tank washing every forty-eight hours, this rule will not conflict with the requirements specified in PMO as adopted under chapter 16-101 WAC. Its repeal improves consistency with national standards and facilitates the interstate shipment of grade "A" and manufactured food dairy products.

PMO has established that seventy-two hours between tank washings is effective for managing bacterial growth when proper sanitation practices at the farm and plant are maintained. The forty-eight hour requirement is not necessary to protect public health.

Statutory Authority for Adoption: RCW 15.36.021.

Statute Being Implemented: Chapter 15.36 RCW.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Northwest Dairy Association of Darigold, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: David Smith, 1111 Washington Street S.E., Olympia, WA 98501, 360-902-1952.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328. The Washington state department of agriculture is not a listed agency under RCW 34.05.328 (5)(a)(i).

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rules are adopting or incorporating by reference without material change federal statutes or regulations, Washington state statutes, rules of other Washington state agencies, shoreline master programs other than those programs governing shorelines of statewide significance, or, as referenced by Washington state law, national consensus codes that generally establish industry standards, if the material adopted or incorporated regulates the same subject matter and conduct as the adopting or incorporating rule.

Is exempt under RCW 34.05.310 (4)(c).

Explanation of exemptions: PMO, published by FDA, outlines minimum standards and requirements for grade "A" milk and milk products pertaining to production, processing, packaging, and sale. FDA developed PMO with the assistance of milk regulatory and rating agencies at every level of federal and state government, including both health and agriculture departments; all segments of the dairy industry, including producers, milk plant operators, equipment manufacturers, and associations; and educational and research institutions.

RCW 15.36.021 authorizes the department to, by rule, establish, amend, or both, definitions and standards for milk and milk products and states that those definitions and standards shall conform, insofar as practicable, with the definitions and standards for milk and milk products adopted by FDA which are published in PMO. Under chapter 16-101 WAC, Washington state milk and milk products standards, the department adopts most provisions of PMO. The rule specifies which provisions of PMO that the department does not adopt.

PMO specifies a seventy-two hour requirement for picking up milk from farm tanks and for washing and sanitizing the tanks. When conducting rule making under chapter 16-101 WAC earlier this year, the department did not adopt an exception to PMO related to the schedule for picking up milk from farm tanks and for washing and sanitizing the tanks. This means that under chapter 16-101 WAC, milk producers must follow PMO's requirements. However, WAC 16-125-035 specifies a forty-eight hour milk pick up from farm tanks and a forty-eight hour washing and sanitizing schedule.

In order to respond to a petition for rule making and also correct the conflict between rules, the department is proposing to repeal WAC 16-125-035 thereby making it clear that milk producers in Washington state must follow the standards specified in FDA's PMO for picking up milk from farm tanks and washing and sanitizing the tanks.

A copy of the detailed cost calculations may be obtained by contacting Gloriann Robinson, Agency Rules Coordinator, P.O. Box 42560, Olympia, WA 98504-2560, phone 360-902-1802, fax 360-902-2092, TTY 800-833-6388, email wsdarulescomments@agr.wa.gov.

October 11, 2019

Steve Fuller

Assistant Director

The following section of the Washington Administrative Code is repealed: