Rule-Making Notices
Notice of Hearing
Agriculture, Trade and Consumer Protection
(DATCP Docket # 09-R-01)
Rule Relating to Retail Food Establishments
The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed rule relating to updating the Wisconsin Food Code contained in the Appendix of Chapter
ATCP 75, relating to Retail Food Establishments. The proposed rule will update the Code based on the 2009 version of Food and Drug Administration's (FDA's) U.S. Public Health Service's Model Food Code. The Wisconsin Department of Health Services (DHS) also uses the model Food Code to regulate restaurants under Chapter
DHS 196. DATCP and DHS cooperated in the development of this rule and these public hearings will be held jointly with DHS.
Hearing Information
DATCP will hold three public hearings at the times and places shown below.
Date: Tuesday, October 9, 2012
Time: 10:00 a.m.-2:00 p.m.
Location: Wisconsin Department of Agriculture, Trade and Consumer Protection
Board Room
2811 Agriculture Drive
Madison, WI 53718
Date: Thursday, October 11, 2012
Time: 10:00 a.m.-2:00 p.m.
Location: Waupaca County Courthouse
Room LL42
811 Harding Street
Waupaca, WI 54981
Date: Friday, October 12, 2012
Time: 10:00 a.m.-2:00 p.m.
Location: Eau Claire State Office Building
Room 129
718 W. Clairemont Ave.
Eau Claire, WI 54701
Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by
September 21, 2012, by writing to Division of Food Safety, P.O. Box 8911, Madison, WI 53708-8911; or by emailing
Timothy.Anderson@wisconsin.gov; or by telephone at (608) 224-4682.
Alternatively, you may contact the DATCP TDD at (608) 224-5058. The hearing facility is handicap accessible.
Appearances at the Hearing and Submittal of Written Comments
DATCP invites the public to attend the hearings and comment on the proposed rule. Following the public hearings, the hearing record will remain open until
October 25, 2012, for additional written comments. Comments may be sent to the Division of Food Safety at the address below, or to
Timothy.Anderson@wisconsin.gov, or to
http://adminrules.wisconsin.gov.
Copies of the Proposed Rules
You can obtain a free copy of this hearing draft rule and related documents, including the economic impact analysis, 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 can also obtain a copy by calling (608)
224-4682 or by emailing
Timothy.Anderson@wisconsin.gov. Copies will also be available at the hearing. To view the hearing draft rule online, go to:
http://adminrules.wisconsin.gov.
Comments or concerns relating to small business may also be addressed to DATCP's small business regulatory coordinator Keeley Moll at the address above, or by email to
keeley.moll@wisconsin.gov, or by telephone at (608) 224-5039.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
The Department of Agriculture, Trade and Consumer Protection (“DATCP" or “department") currently licenses and inspects retail food establishments such as grocery stores. DATCP has adopted food safety rules, including the Wisconsin Food Code, for retail food establishments. This rule updates the Wisconsin Food Code, based on changes contained in the 2009 edition of the federal model food code. This rule also makes other minor changes to clarify current rules.
This department has worked with the Department of Health Services (“DHS"), an agency that administers a separate but identical Wisconsin Food Code in the Appendix to Ch.
HFS 196, Wis. Adm. Code, which applies solely to the licensing and inspection of restaurants. The department has collaborated with DHS on the changes to its rule to maintain consistency between the DHS and DATCP food codes.
Statutory authority
Statutes interpreted
Explanation of statutory authority
Section
93.07 (1), Stats, provides the department the broad authority to make and enforce rules as it may deem necessary and to adopt such measures and make such regulations that are necessary and proper for the enforcement of chs.
93 to
100, Stats., which cover the areas of agriculture, food regulation, animal health, and agricultural markets.
DATCP's authority to make rules relating to retail food establishments, except for restaurants, is found in s.
97.30 (5), Stats., which provides that the department may promulgate rules to govern the operation of retail food establishments. Rules may include standards for the construction and maintenance of facilities; the design, installation, cleaning and maintenance of equipment and utensils; personnel sanitation; food handling, display and storage; and food sources and food labeling.
The format of the Wisconsin Food Code is different from that of most state administrative rules. DATCP and DHS are authorized, under s.
227.14(1s), Stats., to use the drafting format of the federal model food code. This rule follows that authorized format.
Related rules or statutes
Related statutes include Ch.
97, Stats., titled “Food Regulation", and food safety rules in Chs.
ATCP 55 to
88, Wis. Adm. Code.
Plain language analysis
This rule updates the Wisconsin Food Code to be consistent with the 2009 edition of the federal model food code. The rule amends the code to be consistent with the revised numbering and new prioritization system found in the 2009 edition and also makes other updates and minor changes to clarify current rules.
Background
The United States Food and Drug Administration publishes the federal model food code to provide practical, science-based guidance and enforceable provisions for mitigating risk factors known to cause foodborne illness. While the model food code is not federal law, it serves as a model for state and local regulation of retail food establishments. Forty-nine states based their retail food regulations on a version of the federal model food code. The model food code was modified and published in 1999, 2001, 2005, and 2009.
The Department of Agriculture, Trade and Consumer Protection (DATCP) currently licenses and inspects 3,667 retail food establishments, under s.
97.30, Stats. These retail food establishments include grocery stores, bakeries, and convenience stores. In addition, s.
97.41, Stats., allows cities and counties to choose to contract with DATCP as local agents and inspect retail food establishments in their jurisdiction. Currently, 44 local agents contract with DATCP to inspect 6,127 retail food establishments.
Concurrently, the Department of Health Services (DHS) will propose an identical version of DATCP's food code for their administrative rules so that the same rules will also apply to the restaurants they inspect. DHS also operates a local agent program that allows cities and counties to contract to inspect restaurants in their jurisdiction. This rule-making is a joint effort by DATCP and DHS to maintain consistent and up-to-date standards for all retail food operations. Some grocery stores include restaurants, and vice-versa. DATCP and DHS coordinate their licensing and inspection activities so that there is no regulatory overlap.
In addition to the extensive collaboration between DATCP and DHS, input has been sought from key stakeholders, including local health departments and the retail food industry. This rule was developed in consultation with an advisory committee that included local health agencies (large and small), the Wisconsin Grocers Association, the Wisconsin Restaurant Association, the Tavern League of Wisconsin, Wisconsin Technical Colleges, the Wisconsin Department of Public Instruction and the University of Wisconsin-Madison, Department of Food Science.
DATCP has adopted the model food code as an Appendix to Ch.
ATCP 75, Wis. Adm. Code (the Wisconsin Food Code). DHS has adopted the model food code as an Appendix to Ch.
DHS 196, Wis. Adm. Code.
Rule content
This rule updates the Wisconsin Food Code, which was last updated in 2006, and was based on the 2005 federal model food code. Although the substance of most of the provisions of the Wisconsin Food Code has not changed, this rule has been amended to be consistent with the internal formatting and prioritization system changes in the 2009 federal model food code. These changes include (1) the removal of the entire numbering system of definitions, (2) the use of new terms reflecting the internal prioritization system within the food code, and (3) the use of different superscript letters (reflecting the changed terms) throughout the Wisconsin Food Code.
In addition to changes in prioritization and formatting, the rule does the following:
Definitions
□ The term “potentially hazardous food" has been replaced with “potentially hazardous food
(time/temperature control for safety food)" to be consistent with the federal model food code and to clarify that “potentially hazardous food" is food that requires time and/or temperature control to promote food safety.
□ “
Potentially hazardous foods (time-temperature control for safety foods)" now include “cut leafy greens" and “cut tomatoes".
Food Establishment Management and Personnel
□ “
Food allergy awareness" has been added as part of the food safety training required to be provided to employees by the “person in charge".
□
Food establishment managers are required to inform food employees of their responsibility to report certain symptoms of illness, as they relate to diseases transmittable through food. As a result of certain symptoms or diseases, activities of food employees temporarily may be limited.
□
Food employees' bare-hand contact with ready-to-eat foods is restricted to certain limited conditions, using the detailed guidelines in the model food code (special training requirements by management must be implemented).
Food Safety and Labeling
□
Frozen, commercially processed, and packaged raw animal foods (e.g., meat) are exempted from the requirement that they be separated from ready-to eat foods (raw or cooked) during storage.
