My suggested changes to the Raw Milk Rules to be presented tomorrow during rulemaking review

The reasoning for the suggested changes:

"The unworkable nature of the Raw Milk Herdshare rules are evidenced in the lack of participation we are seeing in legal WV herdsharing, even though hundreds of farmers across the state have long expressed sincere need and desire to operate a herdshare.

I know the legislature intended for this law to actually create opportunities for farmers and allow consumers to buy into herds Of dairy cattle and goats if they desire, but unfortunately, as things are now, that will not happen.

This means many thousands of consumers are still buying milk or buying into herd in VA, Ohio, Maryland (where pet milk sales are legal now), Kentucky and Pennsylvania.

This means farmers are still being forced to operate as they have so many years, under the table, if they are within West Virginia and breaking laws they

Cannot reasonably ever follow.

The emergency rules are too restrictive and are more than the average farmer will ever be able to work under for simply sharing ownership of his/her livestock in a herdshare.

The original language of the law that passed said rules could be imposed in keeping with national standards, and the national standard for herdshare operation does NOT include any of the current rules. None at all. So truly, this is an overreach of what the herdshare law even allows.

Remember, these are not sales, after all. They are far cry from sales. These rules are even more restrictive than the regulations governing on farm milk sales nationally.

Title 61

Legislative Rule

Department of Agriculture

Series 36

Herd Sharing

§61-36-1.  General.

1.1    Scope. – This rule establishes guidelines for shared animal ownership agreements to consume raw milk.

1.2    Authority. – W. Va. Code §19-1-7

1.3     Filing Date. -

1.4    Effective Date. –

1.5    Sunset Date. – (Five years from effective date)

§61-36-2.  Definitions and Terms.

             2.1 “Adulterated” means the addition or inclusion of unclean, unwholesome, inferior, impure or foreign materials into food product; the production, distribution or sale of raw milk or raw milk products from a facility that does not possess a valid permit from the Department or is not registered with the Department as a Herd Share program or any raw milk producer or facility that fails to meet any of the requirements of these rules.

            2.2. “Animal health requirements” means the requirements for milk-producing animals established by the state veterinarian, in accordance with state and national standards.

            2.3. “Brucella” means a type of aerobic bacteria that causes brucellosis, also known as Malta fever, a disease that causes fever, weakness and bodily pain.  The bacterium is transmissible to humans through contact with infected dairy products or animals.

            2.4. “Campylobacter” means a rod-shaped bacterium that causes infections in cattle and humans.  Unpasteurized milk infected with campylobacter is a common cause of gastroenteritis. 

            2.5.  “Code of federal regulations (CFR)” means the codification of the general and permanent rules and regulations published in the Federal Register by the executive departments and agencies of the federal government of the United States.

            2.6. “Commissioner” mean the Commissioner of Agriculture for the State of West Virginia or his or her duly authorized agent.

            2.7. “Department” means the Department of Agriculture of the State of West Virginia.

   

            2.8.  “E.coli” (Eschericihia coli) means one of several types of bacteria that normally inhabit the testine of huns and animals.

            2.9.   “Herd Seller” means any person over the age of eighteen (18), who owns milk producing animals and enters into a Shared Animal Ownership Agreement with a Responsible Party to obtain a share or shares of the milk producing animal for the purpose of obtaining raw milk from the milk-producing animal for consumption for a single household.

[This section is attempting to make acquiring a share for your entire household, meaning children and spouse, impossible and attempts to criminalize giving the milk to another adult or child in a household. We know that currently if a farmer owners a cow on his land, it is not illegal to give that milk to his household, meaning spouse or children. We must not overreach and say that if you only own a portion of a dairy animals, you do not have the right to enjoy this same freedom. Striking this language only means we give herdshare members the same rights as any other dairy animal owner enjoys now. It does not mean that the milk from their animals can be circulated outside their household]

2.10.   “Herd Share Owner” means any person who has purchased share(s) of a milk producing animal, as well as their household residing at the same physical address as the owner of the shares.

[Containing here to assure an entire household as the rights to what the family buys into with co-owners of a  dairy animal or herd]

            2.11.   “Herd Health Plan” means a written document between the Herd Seller and their primary veterinarian showing how they will manage the milk-producing animals regarding housing, nutrition and medical care to ensure the animals are healthy and well cared for.      

            2.12. “Listeria” means a genus of small gram-positive flagellated rod-shaped bacteria that do not form spores, are aerobic or facultatively anaerobic,  have a tendency to grow in chains and that include one L. monocytogenes causing listeriosis.

            

2.13.  “Local health department” means the executive office of the local board of health or his or her duly authorized representatives.

            

2.14.  “Milk Producing Animal” means any animal that is capable of producing milk for human consumption.  These include but are not limited to cattle, buffalo, goat, sheep, camel, donkey, horse, reindeer and yak.

            2.15. “Official Sample” means any sample taken in accordance with the provision of this article.

            2.16.  “Person” means any individual, partnership, association, fiduciary, firm, company, corporation or any organized group of people whether incorporated or not.  The term person extends to the agents, servants, officers and employees of the person.  

            2.17.   “Potable Water” means free of coliform and fit for human consumption.

  2.18. “Responsible Party” means an individual that is legally able to exercise control over a decision or action and are therefore liable for the outcome.  All Responsible Parties who wish to enter into a legally binding contractual Shared Animal Ownership Agreement must be at least eighteen (18) years old.  

            2.19.  “Salmonella” means any of a genus Salmonella of usually motile enterobacteria that are pathogenic for humans and other warm-blooded animals that cause food poisoning, gastrointestinal inflammation, typhoid fever or septicemia.

            2.20.  “Shared Animal Ownership Agreement” means a written agreement between a Herd Seller of a milk-producing animal and a Responsible Party in order to consume raw milk.  

               2.21. “State Veterinarian” means the state animal health official, employed by the Commissioner of Agriculture.

            

§61-36-3. Shared Animal Ownership Agreement.

             3.1. Each Herd Seller shall complete, sign and date a Shared Animal Ownership Agreement on a form distributed by the Commissioner with the following information:

                        3.1.a. Name, physical and mailing addresses and telephone numbers of the Herd Seller and Herd Share Owner and Responsible Party(ies);

                        3.1.b. The percentage ownership interest of each Herd Share Owner in a milk-producing animal;

                        3.1.c. Language evidencing the agreement of each Herd Share Owner to pay the Herd Seller for the percentage ownership interest for the care and boarding of the milk-producing animal;

                        3.1.d. An acknowledgement by all parties of the inherent dangers of consuming raw milk that may contain bacteria, such as Brucella, Campylobacter, Listeria, Salmonella and E. coli, that has not been pasteurized to remove bacteria and that is particularly dangerous to children, pregnant women and those with compromised immunity;

                        3.1.e. An acknowledgement by the Herd Share Owner agreeing to release the Herd Seller of liability for the inherent dangers of consuming raw milk. This release of liability does not release the Herd Seller for deliberate or negligent acts unrelated to consuming raw milk; and

                        3.1.f. An acknowledgement that no party to the Shared Animal Ownership Agreement may distribute raw milk, even if no financial gain is realized.  Raw milk cannot be given away.  Sale or resale or the offer of sale of raw milk obtained from a share is strictly prohibited.  

            3.2. The signed and executed Shared Animal Ownership Agreement shall be filed by the Herd Seller with the Commissioner of Agriculture.  The Commissioner of Agriculture will provide written acknowledgement of the receipt of the Shared Animal Ownership Agreement to the Herd Seller within fifteen (15) business days.  Herd Sellers must still comply with the Animal Health Report Requirements including having both a Herd Health Plan in place before raw milk can be distributed to any Herd Share Owners or other Responsible Party(ies).

[Strike the Department of Agriculture’s written acknowledgement requirement. A signed agreement being online with the Department should be sufficient on the part of the herdseller]

            3.3. The Commissioner of Agriculture will maintain all records submitted by Herd Sellers, testing results and Shared Animal Ownership Agreements as public records.

§61-36-4. Animal Health Reporting

            4.1. The Herd Seller shall meet the animal health requirements for milk-producing animals established by the State Veterinarian in accordance with state and national standards including the following:

                        4.1.a. Raw milk from milk-producing animals intended for human consumption shall be from a herd that tested negative within the previous twelve (12) months for brucellosis, tuberculosis and other diseases as required by the State Veterinarian;

[The original legislative language requires only brucellosis and tuberculosis testing. Open ended testing by the state veterinarian allows extreme testing to be required outside the financial scope of most or all small farmers. Keep in mind, brucellosis and tuberculosis testing alone is $500 to $1,000 or more per year, and West Virginia is a brucellosis and tuberculosis free state, like the bulk of the United States, so that requirement is already extreme when risk is of these diseases is essentially non-existent]

                        4.1.b. Shall submit a Herd Health Plan to the State Veterinarian.  The Herd Health Plan shall include expected testing dates for tuberculosis and brucellosis

[This section is an overreach when we are not discussing sales of milk here. We are talking about co-owning livestock only]

                        

                        4.1.c. Shall have an initial inspection from the State Veterinarian, or his/her designee; or a licensed and accredited veterinarian; and

4.1.e.8. 4.1.c.1.  Any other info required by the State Veterinarian.

4.1.d.   Shall have negative test results for milk-producing animal(s) tested thirty (30) days prior to entering the herd sharing program; 

[This is an attempt to further put back the ability of the farmer to enter into herdshare sales. There is no reason to require a negative test result a full month before being able to offer shares.]

4.1.e.   as required in Parts 77 & 78, Title 9, CFR 

            4.2. Any Party to a Shared Animal Ownership Agreement or any physician who becomes aware of an illness directly related to consuming raw milk shall report the illness to the Local Health Department and the Commissioner of Agriculture.

[Requiring a farmer or co-owner to report possible illness is a government overreach of power]

            4.3. Upon notification of an illness directly related to consuming raw milk, the Commissioner or his/her designee shall contact and warn other parties consuming raw milk from the same Herd Seller, in addition to other reporting requirements.

                        

§61-36-5. Raw Milk Dairy Industry  Herdshare Handling Standards [We are not discussing the sale of raw milk, so the title is misnomer]

5.1.  Testing of raw milk shall will be completed at a by the Department laboratory approved by the Department.  Initially and yearly, at no expense to the Herd Seller.  All results shall be reported by the laboratory to the Department within thirty (30) days.

            5.1.a.  Additional testing of raw milk conducted by the Department, or a Department approved laboratory shall be the responsibility of the Herd Seller.

5.2.  The Herd Seller shall have raw milk tested initially and yearly for the following:

                        5.2.a.  Coliform testing is based on a rolling three-month average and should be less than 25 coliforms per ml raw milk; 

            

5.2.b.  Standard Plate Count (SPC) Somatic Cell Count (SCC) per ml raw milk; and

5.2.c.  Test negative for E. Coli 0157:H7, Listeria Monocytogenes, Salmonella Spp., and Campylobacter Species.

5.3.  Commingling of raw milk from other dairies is not permitted.

5.4.  The milking team should be healthy and use good biosecurity techniques

5.5.  Potable water should be used to clean raw milk handling equipment. All equipment used for milking must should be cleaned and sanitized between milking to decrease bacterial contamination.  Only food grade cleaners and sanitizers shall be used in the cleaning and sanitizing of raw milk equipment and containers.

5.6.  Protection and security of raw milk after milking is complete is accomplished by using only clean and sanitized containers for milk storage, handling and distribution of raw milk.

                        

5.7.Milk  should be cooled to forty (40) degrees Fahrenheit within two (2) hours of completing milking to inhibit bacterial growth.  Thereafter, the Herd Seller should maintain raw milk at forty five (45) degrees Fahrenheit or lower, until distribution.  

[We are not selling raw milk. These rules seek to regulate the product that isn’t being sold. The only thing sold in a herdshare agreement is a portion of ownership in an animal that produces milk. The rules under a herdshare should not seek to regulate the product produced by the animals being sold anymore than they do when only one owner is present. These types of regulations are found in raw milk sales rules, but they are never once found in any herdshare laws in the nation. They make it impossible for a small farmer selling an interest in his herd to operate]

            

§61-36-6. Prohibited Acts.

            6.1. Distribution of raw milk, in any quantity, by the Herd Seller to anyone other than Responsible Parties who have signed a Shared Animal Ownership Agreement with the Herd Seller is prohibited.  This includes selling, reselling, donating or giving away raw milk.

                        

6.1.a. In accordance with the provisions of Part 21, Title 1240, CFR (Code of Federal Regulations) No person shall deliver, sell or otherwise distribute any milk or milk product in final package form for direct human consumption unless the product has been pasteurized or is made from dairy ingredients (milk or milk products) that have all been pasteurized, except where alternative procedures to pasteurization are provided for curing of certain cheese varieties.

[Open to gross misinterpretation and pertains to Grade A dairies and collection only]

6.1.b.  Deliveries of raw milk from the Herd Seller to the Share Owner shall take place within West Virginia.

            6.2. Distribution of raw milk, by Responsible Parties, obtained under a Shared Animal Ownership Agreement to anyone, in any quantity whatsoever, is prohibited.  This includes selling, reselling, advertising for sale, donating or giving away raw milk.

            6.3. Raw milk shall not be offered for sale or distributed to any restaurant, food establishment, grocery store or farmers’ market by anyone whosoever. 

            6.4. Distribution of any adulterated raw milk for human consumption is prohibited.

            6.5. The use of any misleading marks, words or endorsements on the label of a container of raw milk is prohibited.  Registered trade designs or similar terms on the bottle cap or label may be used if the Department determines that the designs or terms are not misleading. Any misleading labeling on the final container will cause the product to be considered misbranded.

§61-36-7. Hearings, Appeals and Penalty

            7.1. Adulterated raw milk may be impounded and disposed of by the Department if the Department learns of, discovers or is made aware of adulterated raw milk distribution. The Herd Seller, or animal owner if not a Herd Seller, shall be issued a written cease and desist order, signed by the Commissioner, and no raw milk shall be offered for human consumption until such time as subsequent official samples are found to comply with each condition and standard set forth in this rule and the Commissioner lifts the cease and desist order.  

7.2. The Commissioner of Agriculture may impose an administrative penalty not to exceed $100.00 for a person who violates the provisions of this rule.  Any penalty imposed under this subsection may be contested by the person against whom it is imposed pursuant to article five, chapter twenty-nine-a of the Code of the State of West Virginia and is afforded all relief available thereunder.

            

7.3. Any person aggrieved by any action taken under this article shall be afforded the opportunity for a hearing before the Commissioner pursuant to article five, chapter twenty-nine-a of the Code of the State of West Virginia and any other relief available thereunder.