Rule-Making Notices (Hearing Notices)

* 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

Illinois:

Illinois has no laws related to home-processed foods. All food processed for sale to the public in Illinois must be processed in a licensed facility.

Iowa:

In Iowa, individuals may annually process up to $20,000 in potentially-hazardous baked goods (including soft pies and bakery products with a custard or cream filling) at a licensed “home food establishment" for sale on the premises (the bakery goods may be consumed elsewhere). Individuals may sell non-potentially hazardous home-baked goods at a farmers' market, without a license. Canning and processing of low acid or acidified foods must be done in a licensed commercial establishment.

Minnesota:

Minnesota exempts a person from licensing as a food processor if the person produces less than $5,000 of non-potentially hazardous food or less than $5,000 of home-canned acidified food. Home-canned acidified foods may only be sold at community or social events or farmers' markets in Minnesota. A point-of-sale placard and the product label must disclose that the product was produced in an unlicensed and uninspected home setting. The product label must also disclose the name and address of the processor and the date the goods were processed. Wisconsin's new law (2009 Act 101) was influenced by Minnesota's law.

Michigan:

Michigan enacted a Cottage Food Law in July 2010 that allows individuals to manufacture and store certain types of foods in an unlicensed home kitchen. Only non-potentially hazardous foods may be manufactured in a home kitchen under this law. Potentially hazardous and canned foods must be manufactured in licensed food processing facilities. The Cottage Foods may only be sold directly to a consumer at farmers' markets, farm stands, roadside stands and similar venues. Cottage foods cannot be sold over the internet, by mail order or for wholesale distribution. Each packaged product must be labeled and contain the statement: Made in a home kitchen not inspected by the Michigan Department of Agriculture. Gross sales are limited to no more than $15,000 per household.

Data and analytical methodologies

This proposed rule is not based on any specialized data or analytical methodologies. Portions of this rule (such as pH requirements for home-canned food sold to the public) are based on well-established food science and public health principles.

Fiscal Estimate

DATCP currently licenses and inspects food processing plants under s. 97.29, Stats., This emergency rule exempts certain persons from the need to obtain a food processing plant license. These persons include: (1) a person who cans or otherwise processes certain homemade foods and sells them at farmers' markets, community or social events but receives no more than $5,000 in retail sales of these foods in a license year; and (2) a maple syrup processor that sells evaporated maple sap or syrup for further processing and receives no more than $5,000 in a license year. For purposes of this fiscal estimate, DATCP makes the following assumptions (DATCP does not have any data to document these "best guess" assumptions):

1. About 100 home canners will begin to sell their home-canned products at community or social events or farmers' markets in response to the license exemption under this rule. Few, if any, currently licensed food processing plants will qualify for the exemption or drop their current licenses.

2. About 25 maple sap processors will qualify for a license exemption under this rule. Expected revenue loss is less than $2,400.

Impact of the rule on state government

This emergency rule will have minimal fiscal impact on state government. Revenue losses will be less than $2,400 and will be offset by reduced inspection costs. DATCP will incur some costs to implement the license exemptions and provide public information. DATCP estimates that it will need to reassign 0.1 FTE from other work, and will incur $1,000 in added expense. DATCP expects to absorb these costs within its current budget.

Impact of the rule on local governments

This rule will not have any fiscal impact on local governments.

Fiscal Impact

This rule will not have a significant fiscal impact on the state of Wisconsin or on local governments.

Small Business Impact

This proposed rule implements 2009 Wis. Act 101, which removes license requirements for certain home-canners who wish to sell their products to the public at community or social events, farmers' markets and farm roadside stands. The food safety standards in this rule will help protect the public from serious food safety hazards (including botulism) that may be associated with improperly home-canned products. The prevention of food safety problems promotes public confidence and benefits the entire food industry, including home-canners.

This proposed rule may encourage some home-canning hobbyists to sell their home-canned products at community or social events, at farmers' markets, or at their own farm roadside stands. That may have an adverse competitive impact on licensed canners who currently supply those sales outlets, although the adverse effect is likely to be minimal. Larger food canning businesses that supply canned food for the mass consumer market will not be significantly affected by this emergency rule.

This proposed rule also exempts certain small maple sap processors from licensing under s. 97.29. The exemption will relieve those processors from unnecessary licensing costs and compliance burdens, while ensuring adequate food safety protection.

Environmental Impact

This rule will not have any significant environmental impact.

Agency Contact Person

Questions and comments related to this proposed rule may be directed to:

Debbie Mazanec

Department of Agriculture, Trade and Consumer Protection

P.O. Box 8911

Madison, WI 53708-8911

Telephone [phone]

E-Mail: [e-mail]

Notice of Hearing

Agriculture, Trade and Consumer Protection

rulemaking_notices CR 10-120 CR 10-120

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on rules relating to new accountability measures for economic development grants and loans under Chapter ATCP 161, required by ss. 93.07 (18) (b) 6. and 7., Stats. (created by 2007 Wisconsin Act 125).

Hearing Information

DATCP will hold the public hearing at the time and location shown below:

Tuesday, December 2, 2010

9:00 a.m. to 12:00 p.m.

WI Department of Agriculture, Trade and Consumer Protection

Board Room, 1st Floor

2811 Agriculture Drive

Madison, WI 53718

Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by November 17, 2010 by writing to Linda Merriman Hitchman, Division of Agricultural Market Development, P.O. Box 8911, Madison, WI 53708-8911, [e-mail], telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearings.

Submittal of Written Comments

DATCP invites the public to attend the hearing and comment on the rules. Following the hearing, the hearing record will remain open until Monday, December 6, 2010 for additional written comments. Comments may be sent to the Division of Agricultural Development at the address below, by email to [e-mail].

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 permanent rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Market Development, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You may also obtain copies by calling [phone] or emailing [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

This rule implements s. 93.07 (18) (b) 6. and 7., Stats. (created by 2007 Wisconsin Act 125) which require new accountability measures related to state economic development grants and loans. Under s. 93.07 (18) (b) 6. and 7., Stats., the department of agriculture, trade and consumer protection (DATCP) must adopt rules to do all of the following (other agencies that make economic development grants and loans must adopt similar rules):

* Require persons receiving more than $100,000 in economic development grants or loans to submit verified statements to DATCP, and make supporting documentation available for DATCP inspection.

* Establish procedures that will allow DATCP to withhold payments to, recover funds from, or impose financial penalties on grant or loan recipients who submit false information to DATCP or fail to honor the terms of a grant or loan contract. The new procedures must include contract provisions that will allow DATCP to impose penalties on grant or loan recipients who fail to honor contract obligations.

Statutes interpreted

Sections 93.07 (18) (b) 6. and 7., Stats.

Statutory authority

Sections 93.07 (1) and 93.07 (18) (b) 6. and 7., Stats.

Explanation of statutory authority

DATCP has general authority, under s. 93.07 (1), Stats., to interpret laws under its jurisdiction. Sections 93.07 (18) (b) 6. and 7., Stats., require DATCP to adopt certain rules imposing accountability measures related to state economic development grants and loans. This rule implements that statutory mandate.

Related statute(s) or rule(s)

2007 Act 125 also requires the departments of commerce, natural resources, tourism and transportation, the UW system, the Wisconsin technical college system, and the Wisconsin housing and economic development authority to adopt rules that are similar to this rule. DATCP also has existing contract rules for agricultural diversification and development grants (ATCP 161.07) and “buy local" grants (ATCP 161.46).

Plain language analysis

This rule requires the following accountability provisions in each contract for a DATCP economic development grant or loan:

  For a grant or loan of $100,000 or more, a provision requiring the grant or loan recipient to give DATCP a verified statement signed by a certified public accountant (CPA) and a director or principal officer of the grant or loan recipient.