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.
