Rule-Making Notices (Hearing Notices)

Thursday, November 18, 2010

9:00 a.m. – 12:00p.m.

Oneida County – UW Extension

3375 Airport Road, #10

Rhinelander, WI 54501

Friday, November 19, 2010

9:00 a.m. – 12:00 p.m.

Shawano County Courthouse

311 N. Main Street

Shawano, WI 54166

Monday, November 22, 2010

8:30 a.m. – 11:30 a.m.

Fond du Lac County - UW Extension

Admin./Extension Building

400 University Drive, Room: AE 205/206

Fond du Lac, WI 54935

Monday, November 22, 2010

1:00 p.m. – 4:00 p.m.

Outagamie County - UW Extension

3365 W Brewster Street, Room: ABC

Appleton, WI 54911

Tuesday, November 23, 2010

9:00 a.m. – 12:00 p.m.

Washington County Courthouse

Room 1020 – Lower Level

432 E. Washington Street

West Bend, WI 53095

Tuesday, November 23, 2010

1:30 p.m. – 4:30 p.m.

Jefferson County - UW Extension

864 Collins Road, Room: 8/9 (on the lower level)

Jefferson, WI 53549

Wednesday, November 24, 2010

9:00 a.m. – 12:00 p.m.

Iowa County - UW Extension

222 North Iowa Street

Room: UW Extension Conference Room

Dodgeville, WI 53533

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by November 5, 2010, by writing to Deb Mazanec, Division of Food Safety, P.O. Box 8911, Madison, WI 53708-8911; e-mailing to [e-mail] or by phone at [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearings.

Appearances at the Hearing

DATCP invites the public to attend the hearings and comment on the proposed rule. DATCP also seeks public input for the development of the proposed rules, including answers to the following questions:

* Should small-scale processors of other types of foods also be exempted from food processing plant license requirements?

* If so, what food types? Under what conditions?

* If not, why not?

* Should food processors claiming an exemption be required to register with DATCP and obtain a registration certificate, to help farmers market operators and others verify their license status?

Submittal of Written Comments

Following the hearings, the hearing record will remain open until November 30, 2010 for additional written comments. Comments may be sent to DATCP's Division of Food Safety at the address below, by email to [e-mail] or online at http://AdminRules.Wisconsin.gov/ .

To provide comments or concerns relating to small business, you may also contact DATCP's small business regulatory coordinator Keeley Moll at the address above, or by emailing to [e-mail] or by telephone at [phone].

Copies of Proposed Rule

You may obtain free copies of the proposed rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Food Safety, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You may also obtain copies by calling [phone] or e-mailing [e-mail]. Copies will also be available at the hearing. To view the proposed rule online, go to: http://AdminRules.Wisconsin.gov/.

Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection

The Department of Agriculture, Trade and Consumer Protection (DATCP) administers state food processing plant license requirements under s. 97.29, Stats. This proposed rule exempts the following persons from licensing under s. 97.29, Stats., subject to certain conditions:

  *An individual who home-cans acidic, acidified or fermented vegetable or fruit products for retail sale at a community or social event, m farmers' market or farm roadside stand, and receives no more than $5,000 from those sales in any license year. This exemption implements the statutory exemption created by 2009 Wis. Act 101.

  *A person who processes maple sap to create maple syrup or concentrated maple sap that the person sells only to other processors for further processing, and who receives no more than $5,000 from those sales in any license year.

Statutes interpreted

Sections 97.09 (4), 97.29 and 227.24, Stats.

Statutory authority

Sections 93.07 (1), 97.09 (4), 97.29 (1) (g) 8. and (5), and 227.24, Stats.

Explanation of statutory authority

DATCP has broad general authority, under s. 93.07 (1), Stats., to interpret laws under its jurisdiction. Under s. 97.09 (4), Stats., DATCP may establish and enforce standards governing the production, processing, packaging labeling, transportation, storage, handling, display, sale, including retail sale, and distribution of foods that are needed to protect the public from the sale of adulterated or misbranded foods. Under s. 97.29(1)(g)8. and (5), Stats., DATCP may spell out food processing plant license requirements and exemptions.

Related rule(s) or statute(s)

DATCP administers Wisconsin's food safety and labeling laws under ch. 97, Stats., including food processing plant license requirements under s. 97.29, Stats. (as modified by 2009 Wis. Act 101). DATCP has adopted food processing plant licensing rules under ch. ATCP 70, Wis. Adm. Code.

A person who processes food for sale or distribution is generally required to hold a state food processing plant license under s. 97.29, Stats. However, there are certain exemptions. Persons who are engaged in dairy or meat processing, or who operate retail food establishments, must be licensed under other statutes. Local food license and zoning regulations may apply in some cases.

2009 Wis. Act 101 exempted, from state licensing under s. 97.29, Stats., persons who home-can acidic, acidified or fermented vegetable or fruit products for retail sale at a community or social events or farmers' markets, provided that the person receives no more than $5,000 from those sales during the license year. Act 101 does not exempt those persons from other state license requirements that may apply, nor does it exempt them from local licensing or zoning ordinances that may apply.

Plain language analysis

Home Canning For Retail Sale

Under this proposed rule, a person who home-cans acidic, acidified or fermented vegetable or fruit products for retail sale at a community or social event, farmers' market or farm roadside stand is exempt from a food processing plant license under s. 97.29, Stats, if all of the following apply:

* The person is an individual, not a legal entity such as a corporation.

* The individual receives no more than $5,000 during the license year from those sales. If 2 or more individuals home-can acidic, acidified or fermented vegetable or fruit products at the same home address, none of those individuals qualifies for the license exemption unless their combined gross receipts from the sale of those products totals no more than $5,000.

* The canned products have an equilibrium pH value of 4.6 or lower. The individual must test the first batch of canned product produced according to each separate recipe used by the individual in each license year, to verify that canned products produced according to that recipe meet this pH requirement. The individual must keep, for at least 2 years, a record of each pH test.

* The individual registers annually with DATCP. There is no cost to register, and the registrant is not required to obtain a registration certificate from DATCP.

* The individual completes a home-canning safety course, or follows a written recipe (including ingredients and canning procedures) that reliably ensures the safety of each home-canned product.

* The individual discloses to potential buyers, by means of a sign or placard, that the canned products “are homemade in a kitchen that has not been subject to state inspection."

* Each canned product is properly labeled to include all of the following:

-The name and address of the individual who canned the product.

-The date on which the product was canned.

-The following statement: “This product was made in a home not subject to state licensing or inspection."

-A list of ingredients in descending order of prominence (major ingredients must be of vegetable or fruit origin). The list must include the common name of any ingredient that originates from milk, eggs, fish, crustacean shellfish, tree nuts, wheat, peanuts or soybeans.

* The individual keeps a complete written record of every batch of canned product.

-The batch record must include the name of the product, the product recipe (including procedures and ingredients), the amount of the product batch canned and sold, the canning and sale dates, the sale location, gross sales receipts, the results of any pH test conducted on the product, and the disposition of any product not sold.

-The individual must keep the record for at least 2 years after the individual sells or otherwise disposes of the product, and must make that record available to DATCP for inspection and copying upon request.

Maple Sap Processed For Sale To Other Processors

Under this proposed rule, a person who processes maple sap to produce maple syrup or concentrated maple sap for sale to another processor for further processing is exempt from licensing under s. 97.29, Stats., if all of the following apply:

* The person receives less than $5,000 from those sales in a license year.

* The person registers annually with DATCP. There is no cost to register, and the registrant is not required to obtain a registration certificate from DATCP.

* The person keeps a written record of each sale, retains that record for at least 2 years, and makes the record available to DATCP for inspection and copying upon request. The record must include the name and address of the purchaser, the date of sale, the amount of maple syrup or concentrated maple sap sold, and the sale price.

Comparison with federal regulations

There is no federal law that addresses these issues or compels DATCP to adopt this rule.

Comparison with rules in surrounding states