DATCP Docket No. 14-R-11
Rules Clearinghouse No. ___
Proposed Hearing Draft
October 15, 2015
PROPOSED ORDER
OF THE WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
ADOPTING RULES
The Wisconsin department of agriculture, trade and consumer protection hereby proposes the following rule to renumber ATCP 71.01 (6m), to amend ATCP 71.05 (7) (a); and to create ATCP 70.03 (7) (f), 71.01 (2m), 71.01 (6d), (6p), and (6t), 71.02 (11), 71.025, and 71.05 (8); relating to food warehouses and food processing plant licensing, and affecting small business.
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Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
This proposed rule modifies current food warehouse rules to clarify which types of food processing activities in a food warehouse obligate a licensed food warehouse operator to obtain a separate food processing plant license. The proposed rule harmonizes the food warehouse refrigeration temperature requirement for eggs with the requirement found in ch. ATCP 88, (Eggs). To reduce confusion about which new federal food safety regulations must be followed by food warehouse operators, the proposed rule adopts federal regulations by reference for certain types of food warehouses, and indicates that other food warehouses can qualify for an exemption from most requirements of the new federal Preventive Controls – Human Food rule.
Statutes Interpreted
Statutes Interpreted: ss. 97.27, Stats. (Food warehouses), and 97.29, Stats. (Food processing plants).
Statutory Authority
Statutory Authority:   ss. 93.07 (1), 97.09 (4), 97.27 (5), and 97.29 (5), Stats.
Explanation of Statutory Authority
DATCP has broad general authority, under s. 93.07 (1), Stats., to adopt rules to implement programs under its jurisdiction. DATCP also has general authority under s. 97.09 (4), Stats., to adopt rules specifying standards to protect the public from the sale of adulterated or misbranded foods. The department has specific authority to promulgate rules related to food warehouses under s. 97.27 (5), Stats., which allows the department to establish rules related to licensing fees and sanitary operation of food warehouses, such as standards for construction and maintenance of food storage facilities, record-keeping requirements, and temperature requirements. The department also has specific authority to promulgate rules related to the sanitary operation of food processing plants under s. 97.29 (5), Stats.
Related Statutes and Rules
Wisconsin’s food warehouses and food processing plants are governed by ch. 97, Stats. (Food Regulation). Food warehouses are governed by s. 97.27, Stats., and food processing plants are governed by s. 97.29, Stats. Chapter 70, Wis. Adm. Code, interprets ch. 97, Stats., as it relates to food processing plants and Ch. 71, Wis. Adm. Code interprets state statutes relating to food warehouses.
Plain Language Analysis
This proposed rule does all of the following:
Adds definitions for “licensee dealer”, a term applicable to the regulation of molluscan shellfish and already defined in ATCP 70.21 (1) (s), and “package” to ATCP 71.01.
Modifies ATCP 70.03 to specify molluscan shellfish-handling activities that may be done in a food warehouse, under a no-fee licensee dealer certification in ATCP 70.21 (2), and for which a separate food processing plant license is not required.
Creates new exemptions allowing a licensed food warehouse to do the following without a food processing plant license: 1) re-pack foods that are already packaged and labeled for retail sale into containers for further distribution, 2) combine two or more individually packaged and labeled food items into a combination package for retail sale, and 3) manufacture ice that is used for temperature control of food during shipment or storage.
Requires the operator of a licensed food warehouse that stores fish, fishery products, or molluscan shellfish, to conduct a hazard analysis and, if indicated, develop and follow a Hazard Analysis Critical Control Point (HACCP) plan, and to meet all other applicable requirements in Subchapter IV, ATCP 70.
Harmonizes the food warehouse refrigeration temperature requirement for eggs with the requirement found in ch. ATCP 88.18 (2). This harmonization will remove confusion over the maximum refrigeration temperature for egg producers or egg handlers who receive eggs from another egg producer or egg handler and store the eggs for more than 24 hours before selling them.
Clarifies which portions of new federal Preventive Controls – Human Food regulations implementing the FDA Food Safety Modernization Act (FSMA) must be followed by Wisconsin-licensed food warehouse operators.
Summary of, and Comparison with Existing or Proposed Federal Statutes and Regulations
This proposed rule revision will ensure Wisconsin’s requirements are consistent with U.S. Food and Drug Administration (FDA) regulations and expectations for minimizing food safety hazards, while reducing the state regulatory burden on some food warehouse operations.
Fish and fishery products regulations enforced by FDA require processors of these foods to conduct a hazard analysis and, if indicated, develop and follow a Hazard Analysis Critical Control Point (HACCP) plan. In developing a HACCP plan a processor identifies key food processing steps essential for ensuring safety, and spells out how to monitor and document that each of these key steps is functioning properly and minimizing food safety risks. As part of their hazard analysis, processors are required by 21 CFR 123.6 (c) (1) to identify preventive measures for food safety hazards that could arise from contamination with microbiological, chemical, or physical hazards. Contamination of stored product may occur in a food warehouse if appropriate sanitary controls are not maintained, so a food warehouse holding fish and fishery products generally must operate in accordance with a HACCP plan.
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Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.