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  Conference Room #4

  WISCONSIN RAPIDS WI

  Dept. of Transportation – Superior

  1701 N. 4th St., Conference Room

  SUPERIOR WI

  Univ. of Wisc. – Extension and DNR

  Northcentral Regional Hdquarters.

  107 Sutliff Avenue, Room #1

  RHINELANDER WI

  Wis. Dept. of Agriculture, Trade and

  Consumer Protection

  Prairie Oak State Office Bldg.

  2811 Agriculture Drive

  MADISON WI

May 5, 2000   Wis. Dept. of Agriculture, Trade and

Friday   Consumer Protection (Prairie Oak

9:30 a.m. to 12:30 p.m.   State Office Bldg.)

  Conference Room 106

  (Board Room)

  2811 Agriculture Drive

  MADISON WI

The hearing sites are fully accessible to people with disabilities.

Analysis Prepared by the Department of Health & Family Services

Pursuant to ss. 254.71 (6) and 254.74 (1), Stats., the Department of Health and Family Services is required to promulgate administrative rules relative to the issuance of permits to restaurants in the State of Wisconsin. The proposed rules interpret ss. 254.61 to 254.62, 254.64 to 254.72, 254.74 and 254.85, Stats. A permit is a type of approval that signifies that the restaurant complies with the requirements intended to protect public health and safety that are set forth in ch. HFS 196.

The Department proposes to revise the Department's rules for restaurants, ch. HFS 196, Wis. Adm. Code, mainly to incorporate the 1999 Federal Food Code. The Food Code is issued by the U.S. Food and Drug Administration and contains model requirements for safeguarding public health with respect to purchased food. Adherence to the Code by restaurants promotes the offering of food that is unadulterated and honestly presented to consumers. The Federal Food Code, adapted to Wisconsin, is Appendix A to ch. HFS 196 and takes the place of current ss. HFS 196.05 to 196.19, relating to food supplies; food protection; food storage; food preparation; food display service and transportation; personnel; equipment and utensils; equipment installation and location; cleaning, sanitization and storage of equipment and utensils; sanitary facilities and controls; construction and maintenance of physical facilities; mobile restaurants; temporary restaurants; special organizations serving meals; and food protection practices certification of a restaurant operator or manager.

The Wisconsin Food Code, Appendix A, is simultaneously being included by the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) as an Appendix A to the DATCP's proposed revision of ch. ATCP 75, relating to retail food establishments. The effect of having a common Wisconsin Food Code for restaurants and retail food establishments, including convenient stores, delicatessens and bakeries, is that the same rules will apply to all types of food establishments, including combinations.

The operator of every restaurant in the state must have a permit from the Department of Health and Family Services or an agent local health department before the restaurant is opened for business and in order for it to continue in business. A permit is a type of approval that signifies that the restaurant complies with the requirements intended to protect public health and safety that are set forth in ch. HFS 196. The requirements of this chapter are enforced by either the Department or a local health department that has been designated by the Department as the Department's agent.

The Department's current rules for restaurants were established in 1985 and were formatted to be similar to the U.S. Food and Drug Administration's 1976 Food Service Sanitation Manual. The rules have been amended 6 times since 1985. The major changes currently proposed to be made to ch. HFS 196 include the following:

1.   Changing the temperatures required for the preparation, storage, holding and reheating of potentially hazardous foods to be consistent with national food safety standards. New temperature requirements for raw animal foods, cooked plant foods, wild game species, and exotic games species are provided.

2. Changing the cooling requirements for most potentially hazardous foods to allow longer cooling times. The new rule allows a maximum cooling time of 6 hours using a 2-step process. With certain exceptions, potentially hazardous food must be cooled from 140oF to 70oF in the first 2 hours and from 70oF to 41oF or below in the next 4 hours. Exceptions to the 2-step, 6-hour cooling process are that potentially hazardous foods made from ingredients at ambient temperature or foods received in compliance with laws that allow temperatures above 41oF (e.g., eggs, milk, etc.) during shipment, must be cooled to 41oF or below within 4 hours.

3. Requiring the permit holder and designated person in charge to demonstrate to the regulatory authority, upon request, knowledge of foodborne disease prevention, application of Hazard Analysis Critical Control (HACCP) principles and code requirements.

4.   Changing requirements related to handling of ready-to-eat food to specifically prohibit touching of such foods with bare hands, unless otherwise approved by the regulatory authority.

5. Adding provisions regarding the application and removal of food worker exclusions and restrictions from food preparation and service activities, based on the signs and symptoms or a physician's diagnosis of an illness that can be transmitted through food.

6.   Adding a provision requiring the date marking of ready-to-eat potentially held in a food establishment 24 hours. The proposed rules require that such foods be clearly marked to indicate that food will be consumed or discarded within 7 calendar days or within 24 hours after thawing, if receive frozen or subsequently frozen by the establishment.

7. Except for food establishments that serve a highly susceptible population, allowing a food establishment to use time (up to 4 hours) as a public health control for a working supply of potentially hazardous food before cooking, or a ready-to-eat potentially hazardous food that is displayed or held for service for immediate consumption. In order to use time as a public health control, the food establishment is proposed to be required to have a written procedure in place, approved by the regulatory authority, indicating how specific food items will be identified and procedures for discarding after 4 hours.

8.   Requiring a permit holder to obtain a variance from the Department before doing any of the following: smoking food as a method of food preservation rather than as a method of flavor enhancement; curing food; brewing alcoholic beverages; using food additives or adding components such as vinegar as a method of food preservation rather than as a method of flavor enhancement or to render a food so it is not potentially hazardous; packaging food using a reduced oxygen packaging method; or preparing food by another method that is determined by the department to require a variance.

9.   Establishing criteria for reduced oxygen packaging and require that when Clostridium botulinum is identified as a microbiological hazard in the final package form, a Hazard Analysis Critical Control Point (HACCP) plan with information specified and approved by the department must be provided.

10. Requiring the permit holder to inform consumers by brochures, deli case or menu advisories, label statement, table tents, placards, or other effective written means of the increased risk associated with eating certain animal foods that may be served raw, undercooked or otherwise not processed to eliminate pathogens.

11. Providing special requirements for food establishments serving highly susceptible populations that restrict the serving of certain foods and allow the serving of some high risk foods provided they are prepared and served in accord with an approved HACCP plan.

12. Revising and expanding food equipment certification to include certification by any ANSI-accredited equipment program or the approval of the Department of Agriculture, Trade and Consumer Protection and the Department of Health and Family Services.

13. Reducing the required minimum number of sink compartments for manually cleaning and sanitizing utensils and equipment from 4 to 3. However, the proposed rules add a requirement that an additional sink be installed for pre-cleaning if the restaurant demonstrates that it in unable to effectively clean equipment and utensils.

14. Requiring a separate food preparation sink in all new restaurants and in an existing food establishment when there is a new operator. The appropriate regulatory authority may allow an existing establishment to continue using a sanitizer compartment of a warewash sink for food preparation if the permit holder can provide evidence that there is insufficient space for a separate food preparation sink, and permission is obtained from the Department of Commerce to air-gap the warewash sink or sanitizer compartment drain to prevent backflow.

15. Changing the food manager certification section to allow certificates to be issued for a period of less than 5 years, requiring approved food manager certification examinations to be evaluated and listed by the Conference on Food Protection and extending reciprocity to persons certified by an out-of-state manager certification program approved by the Conference on Food Protection.

Contact Person

To find out more about the hearing or to obtain copies of the proposed rules, write, phone or e-mail:

Ed Rabotski, Chief

Environmental sanitation Section

Bureau of Environmental Health

P. O. Box 2659

Madison, WI 53708-2659

[phone]

[or, if you are hearing impaired,

[phone] (TDD)]

e-mail: [e-mail]

If you are hearing or visually impaired, do not speak English, or have other personal circumstances which might make communication at the hearing difficult and if you, therefore, require an interpreter, or a non-English, large print or taped version of the hearing document, contact the person at the address or phone number above. A person requesting a non-English or sign language interpreter should make that request at least 10 days before the hearing. With less than 10 days notice, an interpreter may not be available.

Written comments on the proposed rules received at the above address no later than May 12, 2000 will receive the same consideration as testimony presented at the hearing.

Fiscal Estimate

This proposal to repeal and recreate ch. HFS 196, Restaurants, will have minimal fiscal impact. The proposed rules, like the existing administrative rules, include the Department's licensing and enforcement procedures, as well as regulatory requirements for restaurants.

A significant amount of training will be necessary to familiarize affected parties with the format, style and content of the Wisconsin Food Code. The Department will absorb these costs by reallocating current training staff to develop and deliver this training.

Initial Regulatory Flexibility Analysis

Repealing and recreating ch. HFS 196, Wis. Adm. Code, Restaurants, will have a minimal fiscal impact on small businesses as defined in s. 227.114 (1) (a), Stats. Approximately 18,000 restaurant establishments are currently licensed and inspected by either the department or a local city/county health department that serves as an agent of the department. The restaurant establishments range from small establishments that have only limited food preparation and service, to large, restaurant establishments that prepare and serve large volumes of food.

The proposed restaurant establishment rule will include an “Appendix A", Wisconsin Food Code, that will update existing requirements and provide guidance for safe food handling and processing practices. The proposed restaurant rule is nearly identical to the rule being proposed by the Department of Agriculture, Trade and Consumer Protection for retail food establishments. The proposed rule is based on the 1999 model food code published by the United States Food and Drug Administration (FDA) which is applicable to restaurants as well as retail food establishments. The FDA has recommended that state and local governments adopt the model food code to provide more regulatory uniformity between restaurants and retail food establishments and across local, state and federal jurisdictions.

The proposed changes to ch. HFS 196 that may affect small businesses are the following:

•   The Wisconsin Food Code includes management and personnel standards. Restaurant management must have knowledge of principles necessary for the prevention of foodborne disease or illness and the use of a Hazard Analysis Critical Control Point (HACCP) program. Additional personnel standards address employee health, personal cleanliness and hygienic practices.

•   The proposed rule expands and clarifies the current rules regarding sanitation standards for personnel in restaurants.

•   The proposed rule expands from the current rule the procedures of how, when and where to wash one's hands and maintain one's fingernails.

•   Under the proposed rule, no restaurant may acquire food from an unlicensed, unapproved source.

•   The proposed rule adds the United States Food And Drug Administration (FDA) national shellfish safety program regulations regarding the handling of shellfish in restaurants.

•   Temperatures required for the preparation, storage, holding and reheating of potentially hazardous foods have been changed to be consistent with national food safety standards. New temperature requirements for raw animal foods, cooked plant foods, wild game species, and exotic games species are provided.

•   Cooling requirements for potentially hazardous foods are changed to allow longer cooling times.

•   Requirements related to handling of ready-to-eat food have been changed to specifically prohibit touching of such foods with bare hands, unless otherwise approved by the Department.

•   The proposed rule allows the use of time, as the only factor, rather than time in conjunction with temperature, as a public health control measure.

•   A variance from the Department will be required for specialized processing methods as a method of food preservation; such as smoking food, curing food, brewing alcoholic beverages, using food additives, using reduced oxygen packaging methods and similar specialized processing methods.

•   The Wisconsin Food Code requires the operator of a food establishment to inform consumers of the increased risk associated with eating certain animal foods that may be served raw, undercooked or not otherwise processed to eliminate pathogens.

•   The proposed rule includes special requirements for restaurants that restrict the serving of certain foods to highly susceptible populations.

•   The proposed rule, as the current rule, includes food equipment standards, and requirements for utensils, linens and other equipment. It also includes requirements for mobile and temporary food establishments, public toilet rooms, and food manager certification requirements for restaurant or food service operations.

With the exception of “Demonstration of Knowledge", the proposed rule does not propose major changes that will affect small businesses in Wisconsin.

The affect of requiring food service management to have knowledge of principles necessary for the prevention of foodborne disease (Demonstration of Knowledge) at restaurants would be minimal. Currently most restaurants have managers that are required to maintain a Food Managers Certification. This certification covers the knowledge of food safety principles. The only additional cost would entail providing an appropriate level food safety training of all staff who handle food.

The overall impact of the proposed ch. HFS 196 rule changes on small business are minimal. It will not be necessary for restaurants to retain additional professional services to comply with this rule.

Notice of Hearing