Wednesday, June 14, 2017

Raw Milk Herdshare sales: The Risk and Insurance

Did you know that the vast majority of farmers operating herdshare agreements in the Nation do not have liability insurance?

Did you know last time I spoke with Attorney and national raw milk advocate, Pete Kennedy, with the Farm to Consumer Legal Defense fund, he started the organization knew of NO successful law suits in the USA to ever take place against a HERDSHARE provider?

Did you know the law is written in such a way that if you aren't negligent, you are NOT liable? You are protected under the law unless you mishandle the milk and make gross mistakes.

Someone can sue at anytime for any reason, and this is true of anything you sell and in life (in general), but they cannot collect damages UNLESS you are proven negligent in your process collection and handling of the milk that made the milk risker than raw milk is by nature as an uncooked food?
Did you know liability insurance typically doesn't cover you if you're intentionally negligent? This is important because given that a person is putting themselves out there as a dairy professional, if it could be proven you didn't follow standard practice, your company, should have gain insurance, my seek to prove you were intentionally negligent, at at any rate, to avoid paying out.

There are always questions about risks, insurance and negligence when you talk about farming and sales, and especially with raw milk.

The very best source for information has been and will remain The FTCLDF

It is $125 to join, and this gives you the strong backing of a team of attorneys more familiar with raw milk issues than anyone else nationwide, and should you be sued, if you're a member, they can represent you if they believe you're innocent. This can ONLY happen if you're a member.

or visit @Farm-to-Consumer Legal Defense Fund

For local raw milk news, helpful guides and more, visit:

https://farmtoconsumer.site-ym.com/general/register_member_type.asp?_ga=2.261461775.301628091.1497460714-832722929.1497460714

http://www.wvherdshares.com/

Sunday, December 11, 2016

How to Safely Handle Raw Milk for a Herdshare Program as taught by long time dairy farmer, Marilyn Grossman


This class was taught by Marilyn Grossman and facilitated by Tinia Creamer in the Summer of 2016.

Keep in mind the reference to the rules was prior to rules being withdrawn, so disregard the concerns about future rule making.

Tuesday, December 6, 2016

Raw Milk Freedom for Herdshares in WV: Amazing News for West Virginia Raw Milk Farmers, Herdshare buyers and Liberty

Amazing news for Farmers in West Virginia! Freedom Wins at the last hour!



I had been asked by the House Sponsor and a Senate Co-sponsor of the original bills from 2016/2015 to come before the committee to speak Tuesday concerning the Herdshare rule-making changes. I kew the committee, mostly being in strong support of the herdshare law and farmers, planned to fight to take away as much of the Department of Agriculture's rules as possible. They knew I would make a solid case for why these rules could not stand.

                                                           

As I was waiting in the Judiciary conference room, we received awesome news.

The  Department of Agriculture withdrew the Emergency rules and the Agency Amended rules that were set forth to be the permanent rules to govern the Herdshare law just minutes before the Legislative Rule-Making Committee would have met (12/6/16).

While this was not expected, and as far as we know, unprecedented, it is an amazing win for us!

Public pressure, noise and social media blitz that has continued for these past few years, as well as the election that puts a raw milk friendly Commissioner into officer (Kent Leonhardt) in January, as well as additional support gained in the legislature post election, all definitely factored in and created this amazing change.

The rules set forth through emergency action by the Department of Agriculture this summer were tp have been in effect for 15 months from the July, had they not been withdrawn Tuesday, even had the legislative body rejected any or all part(s) of the said Ag rules.

So when I entered the Capitol today, I had no hopes of being able to leave knowing that farmers, as of Tuesday, the 6th of December, could operate in a marginally regulated free manner with their herdshare programs from that day forth in West Virginia.

At best, I saw cutting down on 50% of the rules set forth in the summer by Agriculture and farmers being able to operate by this time NEXT YEAR when the emergency rules expired.

What we achieved is a TOTAL withdraw of ALL rules, a Legislative body that decided to add no rules to the law and the ability to operate solely under the LAW as it passed in the spring.

We once again has a perfectly workable herdshare law sans rules.

With the new Commissioner stepping in come January, it is extremely unlikely we will ever see rules from the Department of Agriculture.

I was reminded by the Senate and House members how we had already kept the Health Department out of Rule Making and how we had been able to assure the Department of Agriculture wasn't "required" to create any rules by the legislature's use of the work "May" verses "Shall." The saving grace is in the details, which I remember talking so much about this last year. To think we have this win on top of all of that we so many, some even being farmers said we couldn't do this, is amazing.

I saw farmers will to try to work with the Health Department lobbyist over and over, willing to compromise freedom and small farming's ability to thrive out of desperation over and over during the course of this fight, but we've proven we just had to stay the course.

https://www.facebook.com/LucasFarm/videos/1569479623066089/

Essentially, now all a farmer must do is:

Have the dairy herd tested for Brucellosis and Tuberculosis yearly (which can be costly depending on your vet rates and herdsize)
&
Mail each signed herdshare contract into the Department of Agriculture.

Read the Law here



Monday, December 5, 2016

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.         

Sunday, December 4, 2016

Legislative Rulemaking meets TUESDAY for Raw Milk Herdshare Rules, so let your voice be heard (or Herd. . .Pun intended)

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.

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.

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.

Remember, these are not sales, after all. They are far cry from sales.

It is a gross overreach over the government in West Virginia to attempt to heavily regulate a contract of co animal ownership, and this is our chance to straighten out what the Department of Agriculture under Walt Helmick so ran away with in the summer.

The legislative rule making committee will meet Tuesday. They are the representatives we elect, and they make the final call on the rules. Your voice matters here and now so very much!

Read over the Layman's Rules Explanation here

In a paragraph or two, explain what about these rules need to be excluded in Legislative rulemaking. Remember, this cannot exclude anything (like tuberculosis and brucellosis testing or filing an agreement with the Department of Ag) that was included in the passing law language. We can only request striking the emergency rules, such as the age restriction, the milk testing, the ability for the state vet to impose open ended additional testing, farm inspections by the state vet, the need to submit a health plan to the Department of Agriculture and the requirement to have your animals in the federal identification program.

All of the above truly must be removed from the rules before farmers will be able to take part. 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 a single rule listed above. So truly, this is an overreach of what the herdshare law even allows.

Take a moment to email each member of the committee below Today. It must be today, as they meet Tuesday. I have been asked to be present and will speak on behalf of the farmers and would be co-owners interests, as I always have, but I am only one person. They still need to hear from you.

Senate:
http://www.wvlegislature.gov/committees/Senate/SenateCommittee.cfm?Chart=rul

House:
http://www.wvlegislature.gov/committees/House/HouseCommittee.cfm?Chart=hrls

Monday, December 5th by clicking here

Senator Maynard - Chair
Senator Boley
Senator Karnes
Senator Miller
Senator Snyder
Senator Sypolt 
Delegate Sobonya - Chair
Delegate Frich - Vice Chair
Delegate Fleischauer
Delegate Hanshaw
Delegate Moffatt
Delegate Rowe 

Feel free to Edit the Below Statement if you would like but do not have much time and email to the representatives:

"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.


I wish to see the age restriction, the milk testing (which was added by the Dept of Ag, and isn’t the same as the blood testing of the animals), the ability for the state vet to impose open ended additional testing, farm inspections by the state vet, the need to submit a health plan to the Department of Agriculture and the requirement to have your animals in the federal identification program removed from the rules. 

All of the above truly must be removed from the rules before farmers will be able to take part.

Regards,

List your name
County"



Wednesday, August 31, 2016

The rules in Layman's terms for Raw Milk Herdshares

I am not an attorney. These are the rules in lay person terms as best I can tell: You have to file a Shared Animal Ownership Agreement form with the Dept of Ag. This form comes from the Department of Agriculture. Request one by calling: (304) 558-3550 The form has the seller and share owner’s name, address and telephone numbers. It explains what percentage is owned by the share owner, what they pay for board and care, and then it lists an understanding of the risks and liability release of the herd owner. It explains the share buyer cannot give the milk away to other parties. You will received acknowledgement from the Ag Commissioner within 15 days of filing the agreement. Before filing, you need to, as the herd owner, have Animal Health Report Requirements completed, which will include a herd health plan. All of this will be public record. The way the law reads, only individuals over 18 can be herd share members and receive milk. All animals providing milk for your herdshare must have a negative test for both tuberculosis and brucellosis (date of testing or scheduled date). These tests are usually done by a licensed vet each 12 month period. Have a vet or vet’s designee inspect your ground when there for tuberculosis and brucellosis testing. You must have your testing for tuberculosis and brucellosis 30 days before offering herdshares Have your animals in the Federal Identification system. Typically registered animals’ tattoos suffice for identification. But this requires you to be part of APHIS. You will NOT need to tag goats if they are registered and tattooed. Report raw milk illness to authorities. Have your milk tested before starting a share program at the expense of the Department, NOT at your expense, and then once yearly. The testing will be for coliform (should be less than 25), Standard Plate Count and negative for E Coli 0157:h7, Listeria Monocytogenes, Salmonella Spp., and Campylobacter Species. You cannot mix raw milk from other farms with your milk to provide to share members. Equipment must be cleaned and sanitized before reuse. Food Grade supplies only for cleaning and sanitizing. Suggestions but not required by rules are: You should have healthy animals in your milking herd and use good biosecurity. You should use clean water to wash equipment. The other should be potable. Milk should be cooled to 40 degrees within 2 hours of milking. You should keep it at 45 degrees until distribution. You cannot give the milk to anyone who isn’t the herd share buyer. You can deliver the milk to the share member in West Virginia. The milk cannot be given to food establishments, farmer’s markets or other locations like this. You cannot endorse the milk on the containers. You are subject to a fine of not more than $100 if you do not follow these rules.

The Existing Emergency Rules for West Virginia's Raw Milk Herdshare law



While these aren't ideal, your comments did create a lot of positive change. Keep in mind, these rules are what you will be subject to UNTIL Legislative rule making takes place and for 15 months following those final rules. The legislators are able to change these greatly. I suggest we work hard to press our rule making committees to REJECT these rules entirely.  Now, rule making may meet before 2017, and if so, we have a lot of favorable representation in there on the senate and house side. Unfortunately, it may take a year or more to have final rules created by the House and Senate, and much likely will change (and not to our benefit). We need to request rule making take place before 2017 through the committee chairs here.

5 pages of rules is NOT in keeping with herdshare laws nationally. These regulations are FAR OUTSIDE what national herdshare industry standards are, and they break the actual law in doing so.

Freedom isn't found with this law. It is a mockery of our state motto and the concept of freedom in the USA. 

It embarrasses me to have worked this many years on something to have "BUREAUCRATS" who have salaries we pay and didn't elect (and would never elect) destroy a minor step forward toward farming and food freedom. But bemoaning the rules will not create change. So contact your rule makers in the House and Senate. Request these emergency rules be ignored during rule making. While their rules would not go into effect until 15 months have passed, it is still something to work toward. 

I caution you to be careful. The Depart of Agriculture and the DHHR would love nothing more than to harass you, as a farmer, if you do anything they discover to be in error. They do not support this law, they are angry it passed and just make sure you give them no "obvious" and "discover-able" to  cause to create problems for you as a farmer.



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.

            2.7. “Distributor” means any person who sells, exposes for sale, offers for sale, exchanges, barters, gives, parcels out, allots, shares or dispenses raw milk under West Virginia Code §19-1-7.

            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.

2.10.   “Herd Share Owner” means any person who has purchased share(s) of a milk producing animal.

            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   “RAMP” (Risk Analysis and Management Program) means an individual farm’s written food safety plan that identifies potential risks, hazards, critical limits and corrective actions associated with that farm.
           
            2.19.   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.

            2.20.   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.

            2.21.   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. 

            2.22.   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 and a RAMP in place before raw milk can be distributed to any Herd Share Owners or other Responsible Party(ies).

            3.3. The Commissioner of Agriculture will maintain all records submitted by Herd Sellers, including the RAMP, 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;

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

                        4.1.d. Shall provide a copy of the ownership agreement to the State Veterinarian or his/her designee;

                        4.1.e.  Shall produce and provide a copy of the Risk Analysis and Management Program (RAMP) to the State Veterinarian.  The RAMP shall be the Herd Seller’s documentation of risks associated with their individual herd share unit and a plan to minimize risk.  The information contained within each RAMP shall include, but not be limited to, the following:  

4.1.e.1. Introduction of animals to the milk sharing herd, or other animals which may come into contact or close proximity thereto;
4.1.e.2. Testing and care protocols for existing animals;
4.1.e.3. Sanitary conditions including cleaning protocols and documentation of cleaning procedures;
4.1.e.4. Animal husbandry practices;
4.1.e.5. Environmental concerns;
4.1.e.6. Training of milking team, milk handling protocols, milking protocols, milk temperatures, milk management and storage, protection and storage of milk after milking is complete and milk distribution protocols;
4.1.e.7. Maintenance and administration of microbial and other required tests; and
4.1.e.84.1.c.1.  Any other info required by the State Veterinarian.

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

                        4.1.g. Shall provide potable water test results to the State Veterinarian;

                        4.1.h.   4.1.e.  Shall apply for and m  Maintain official identification of all animals involved in the herd share program; and as required in Parts 77 & 78, Title 9, CFR

                        4.1.j. Shall vaccinate herd share animals yearly against the rabies virus.

            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.

            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 Standards

            5.1. The Herd Seller shall be responsible for any costs related to testing the raw milk associated with the Shared Animal Ownership Agreement milk-producing animal. 

5.2.  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.

            5.3.  5.2.  The Herd Seller shall have raw milk tested once a month initially and yearly for the following:

                        5.3.a.  5.2.a.  Coliform testing is based on a rolling three-month average and should be less than 10 25 coliforms per ml raw milk;
           
5.3.b5.2.b.  Standard Plate Count (SPC) testing target is and should be less than 30,000 per ml raw milk and/or 750,000 Somatic Cell Count (SCC) per ml raw milk; and

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

5.3.  The Herd Seller shall have a potable water supply for the milk producing animal that is tested once every three (3) months.  The Herd Share seller shall furnish a copy of potable water tests to the State Veterinarian.

5.5.   5.3.  Commingling of raw milk from other dairies is not permitted.

5.6.   5.4.  The milking team should be healthy and use good biosecurity techniques, such as wearing mask if ill and wearing disposable gloves at all times.

5.7.   5.5.  Potable water shall should be used to clean raw milk handling equipment. All equipment used for milking must 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.

5.8.   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.
                       
5.9.   A written recall and critical incident management plan shall be documented and ready for use in the case of an outbreak.

5.10.   5.7.Milk must should be cooled to forty (40) degrees Fahrenheit within two (2) hours of completing milking to inhibit bacterial growth.  Thereafter, the Herd Seller must  should maintain raw milk at forty five (45) degrees Fahrenheit or lower, until distribution.  A Herd Seller must record and maintain raw milk temperature logs for two (2) years and allow the State Veterinarian access to all records, upon written request.

            5.11.   The Herd Seller shall share all test results and temperature logs with the Herd Share Owners and Responsible Party(ies) if so requested.
           
            5.12.   Herd Sellers shall maintain a RAMP as outlined in section 4.1.e herein.
           
5.13.   All documents relating to raw milk shall be made available to the Commissioner or his/her designee.

            5.14.   Whenever three (3) of the last five (5) consecutive bacteria, coliform or somatic cell tests exceed any of the raw milk quality standards listed in this rule, the Herd Seller shall be notified in writing, by the issuance of a cease and desist order signed by the Commissioner, that no raw milk shall be offered for human consumption until such time as subsequent official samples are found to meet the standards set forth in these rules and the Commissioner lifts the cease and desist order.

            5.15.  Whenever a Herd Seller fails to comply with the reporting requirements or other terms and conditions contained in this rule, they are subject to a written cease and desist order, signed by the Commissioner, and no raw milk shall be offered for human consumption until such time as reporting requirements or other terms and conditions are met and the Department determines three (3) officials samples in three (3) consecutive months are found to comply with each condition and standard set forth in this rule and the Commissioner lifts the cease and desist order. 
           
§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.
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.