CR_12-033 Revise Appendix of Chapter ATCP 75 Appendix, relating to retail food establishments.

Wisconsin Administrative Register No. 680, 8/31/2012

Rule-Making Notices

Notice of Hearing

Agriculture, Trade and Consumer Protection

CR 12-033

(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 [e-mail] ; or by telephone at [phone]. Alternatively, you may contact the DATCP TDD at [phone]. 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 [e-mail] , 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 [phone] or by emailing [e-mail] . 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 [e-mail] , or by telephone at [phone].

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

Sections 93.07 (1) , 97.30 (5) and 227.14 (1s) , Stats.

Statutes interpreted

Section 97.30 , Stats.

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.

□   Serving hamburgers and other ground meats in an undercooked form upon a consumer's request is no longer an option for items offered on a children's menu.

□   Certain requirements related to methods for processing of foods stored in reduced-oxygen packaging, such as "cook-chill" and "sous vide", are described.

□   Criteria are provided for using a non-continuous process for cooking of raw animal foods (meat, in particular).

Federal and surrounding state programs

Federal Programs

Federal law, like state law, generally prohibits the sale of adulterated or misbranded food. There are no federal regulations that specifically address retail food operations. However, FDA publishes a model food code that is based on the best available science and information related to retail food safety.

The FDA (part of the United States Department of Health and Human Services), and the United States Department of Agriculture encourage state and local governments to adopt retail food safety regulations that are consistent with the federal model food code. The current Wisconsin Food Code is based on the 2005 edition of the federal model food code. This rule updates the Wisconsin Food Code to incorporate changes contained in the 2009 edition of the federal model food code.

State Programs

The states adjacent to Wisconsin have all adopted retail food regulations based on some version of the federal model food code:

Minnesota – Minnesota's current regulations are based on the 1997 edition of the federal model food code.

Iowa - Iowa's current regulations are based on the 2005 edition of the federal model food code. Iowa reported they plan to update their rules to the 2009 food code.

Illinois – Illinois' current regulations are based on the 2005 edition of the federal model food code.

Michigan – Michigan's current regulations are based on the 2005 edition of the federal model food code.

Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis

No supporting documents were used. DATCP relied on information obtained through an advisory group (See Data and Analytical Methodologies, below), as well as any comments received through the Economic Impact Analysis comment period.

Data and analytical methodologies

This rule is based primarily on the Model Food Code 2009, U. S. Department of Health and Human Services, Public Health Service, Food and Drug Administration, College Park, MD 20740. In developing the rule, DATCP and DHS sought input from an advisory group that included local health agencies, the Wisconsin Grocers Association, the Wisconsin Restaurant Association, the Tavern League of Wisconsin, Wisconsin Technical Colleges, the Wisconsin Department of Public Instruction, and the UW-Madison Department of Food Science. Surrounding states were contacted to determine the extent to which they have adopted the 2009 federal model food code.

Standards incorporated by reference

This rule incorporates, by reference, U. S. Public Health Service, Food and Drug Administration National Shellfish Sanitation Program Guide for the Control of Molluscan Shellfish , 2009, and U. S. Public Health Service Publication, Food and Drug Administration, Grade "A" Pasteurized Milk Ordinance , 2011. Consent has been requested from the Attorney General to incorporate these standards by reference. A copy of these documents will be kept on file with DATCP and the Legislative Reference Bureau. The National Shellfish Sanitation Program Guide for the Control of Molluscan Shellfish is also available in electronic format at: http://www.issc.org/client_resources/2009%20nssp%20guide/2009%20nssp%20guide%20updated%2008-08-2011.pdf and the 2011 version of the Grade "A" Pasteurized Milk Ordinance may be found in electronic format at: http://www.fda.gov/downloads/Food/FoodSafety/ProductSpecificInformation/MilkSafety/NationalConferenceonInterstateMilkShipmentsNCIMSModelDocuments/UCM291757.pdfDATCP Contact .

Fiscal Estimate

Revisions to Chapter ATCP 75 and the Wisconsin Food Code will have no ongoing fiscal effect on state or local government. Proposed revisions will not significantly alter state or local retail food enforcement activities.

Staff time for developing and drafting the rule revisions, conducting public hearings and finalizing the rule, and training affected personnel and businesses on the revisions, should be no more than 1000 hours.

Cost to local government agencies would be limited to staff time to attend training. A complete fiscal estimate is attached.

Business Impact Analysis and Effects on Small Business

This rule is not expected to have a major impact on business, including small business, because the food sanitation requirements contained in this rule are similar to those that currently apply. This rule will require some additional training of retail food establishment personnel. However, it should not be necessary for retail food establishments to hire additional professional services to comply with this rule.

DATCP will provide training, fact sheets, and handouts to Wisconsin retail food establishments, including small businesses, to help explain and implement the modified requirements contained in this rule.

DATCP Contact

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

Mr. Tim Anderson

Chief, Regulatory and Technical Services

Department of Agriculture, Trade and Consumer Protection-Division of Food Safety

P.O. Box 8911

Madison, WI 53708-8911

Telephone [phone]

E-mail: [e-mail]

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA 2049 (R 07/2011) ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
X Original Updated Corrected
Administrative Rule Chapter, Title and Number
Appendix to ATCP 75, Retail Food Establishments
Subject
Revision to ATCP 75 appended Wisconsin Food Code
Fund Sources Affected			Chapter 20 , Stats. Appropriations Affected
X GPR FED X PRO PRS SEG SEG-S			20.115 (1) (1a) and 20.115 (1) (gb)
Fiscal Effect of Implementing the Rule
X No Fiscal Effect Indeterminate	Increase Existing Revenues Decrease Existing Revenues		Increase Costs X Could Absorb Within Agency's Budget Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
State's Economy X Local Government Units		X Specific Businesses/Sectors Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? Yes X No
Policy Problem Addressed by the Rule
This rule will update the Wisconsin Food Code for retail food establishments, which is included as an appendix to chapter ATCP 75, Retail Food Establishments. The United States Food and Drug Administration (FDA) publishes the federal model food code to provide practical, science-based guidance and enforceable provisions for mitigating risk factors known to cause foodborne illness. FDA updates the food code every four years. The Wisconsin Food Code for retail food establishments was last updated in 2006 and is based on the 2005 federal model food code. This rule generally does the following: •   Incorporates the 2009 federal model food code into the Wisconsin Food Code for retail food establishments to reflect current food science standards. The revised rule clarifies previously undefined terms and will reduce error in interpreting the rules. •   Makes technical and other minor changes to correct or update the current rules relating to retail food establishments and the Wisconsin Food Code. •   Coordinates DATCP's licensing requirements for food establishments with the licensing requirements for restaurants, which are regulated by the Department of Health Services (DHS) under DHS's Admin. Code DHS 196, Restaurants. The agencies have collaborated to consistently modify their food codes.
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
Businesses and Business Sectors This rule applies to retail food establishments regulated by DATCP under Admin. Code ATCP 75, Retail Food Establishments. Specific businesses affected include groceries, bakeries, and convenience stores. DATCP licenses 3,667 of these retail food establishments. In addition, s. 97.41, Stats., allows cities and counties to choose to contract with DATCP as local agents to inspect retail food establishments in their jurisdiction. Currently, 44 local agents contract with DATCP to inspect 6,127 retail food establishments. The rule will also apply to these establishments. The Department of Health Services (DHS) is proposing identical rules for the restaurants they inspect, as well as restaurants inspected under their local agent program. DATCP worked with DHS and sought advice about the content and potential impact of the rule from an advisory group that included local health agencies, the Wisconsin Grocers Association, the Wisconsin Restaurant Association, the Tavern League of Wisconsin, Wisconsin Technical Colleges, the Wisconsin Department of Public Instruction, and the UW-Madison Department of Food Science. Although DATCP worked with an advisory group to determine the impact of the rule, it is unable to specifically quantify the compliance costs to businesses of this rule due to unavailability of specific data. But DATCP does not expect the proposed rule to have a significant economic or fiscal impact on large or small retail food establishments licensed by DATCP. It is likely that many establishments have already implemented the requirements contained in the rule and will incur no additional compliance costs. The department also expects that retail food establishments will be able to implement this rule with their existing personnel. DATCP will assist with providing training materials to businesses. Finally, the rule will not increase licensing fees for retail food establishments. Local Governmental Units Revisions to the Wisconsin Food Code will have no ongoing fiscal effect on state or local government. Proposed revisions will not significantly alter state or local retail food enforcement activities. Cost to local government agencies would be limited to staff time to attend training offered by the department. This training will be incorporated into annual training the department already provides to local food enforcement officials. Public Utility Rate Payers The rule will have no impact on public utility rate payers as a group. State's Economy This rule will not adversely affect the economy, productivity, jobs or the economic competitiveness of the state. Adopting this rule, as other states across the country also adopt rules based on the 2009 federal model food code, may help Wisconsin retail food companies operate more efficiently if they have locations in multiple states. General Implementation Costs The department will provide training, fact sheets, and handouts to Wisconsin retail food establishments and our regulatory partners to help implement the modified requirements contained in this rule. The cost for these outreach activities is estimated to be $2,500 or less and will be covered by the department's existing budget. Staff time for developing and drafting the rule revisions, conducting public hearings and finalizing the rule, followed by delivery of limited training on the revisions, should be no more than 1,000 hours. Economic Impact Analysis Comments DATCP posted the proposed rule online as required under Wis. Stat. s. 227.137 and solicited comments from businesses, local government units, and the public about the potential economic impact of the rule. The department did not receive any comments about the potential economic impact of the rule.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
Benefits of Implementing the Rule This rule will benefit retail food establishments and the general public. Retail Food Establishments This rule will help small businesses maintain public confidence in the retail food supply by adopting the most current, generally accepted practices for reducing risk associated with foodborne illness. A foodborne illness outbreak has the potential to decrease sales and threaten the economic viability of an industry. The rule will also clarify certain requirements. For example, requirements related to methods of reduced oxygen packaging are described in the rule and criteria for non-continuous cooking have been added, making it easier for businesses to safely prepare food using these methods. Also, the revised rule has been directly compared and altered along with DHS's proposed rule to change its version of the food code, which will also help prevent inconsistent regulation of retail food establishments and restaurants. General Public Retail establishments that implement the 2009 model food code will be using the most current methods identified by FDA as effective for protecting public health and ensuring food provided to consumers at retail food establishments is safe. Alternative to Implementing the Rule If the rule is not adopted, retail food establishments will continue to be regulated under the version of the Wisconsin Food Code which is based on the 2005 edition of the federal model food code and Wisconsin's regulations will not be consistent with current best practice. As other states adopt the 2009 version of the food code, Wisconsin's code could become outdated and inconsistent with national standards. In order to be a full partner in an integrated national food safety system, Wisconsin must comply with the FDA Retail Food Regulatory Program Standards, which require Wisconsin to have an up-to-date regulatory foundation for its program activities. Failure to adopt this rule may jeopardize Wisconsin's ability to integrate into the national food safety system and obtain technical and funding assistance from FDA.
Long Range Implications of Implementing the Rule
There are no long range fiscal implications of implementing the rule. In the long run, the rule changes will benefit businesses and the general public by better protecting public health through use of current practices for preventing foodborne illness.
Compare With Approaches Being Used by Federal Government
Federal law, like state law, generally prohibits the sale of adulterated or misbranded food. There are no federal regulations that specifically address retail food operations. However, FDA publishes a model food code that is based on the best available science and information related to retail food safety. FDA and the United States Department of Agriculture encourage state and local governments to adopt retail food safety regulations that are consistent with the federal model food code. The current Wisconsin Food Code is based on the 2005 edition of the federal model food code. This rule updates the Wisconsin Food Code to incorporate changes contained in the 2009 edition of the federal model food code.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota )
Minnesota- Minnesota's current regulations are based on the 1997 edition of the federal model food code. Iowa- Iowa's current regulations are based on the 2005 edition of the federal model food code. Iowa reported plans to update their food code to the 2009 version soon. Illinois- Illinois' current regulations are based on the 2005 edition of the federal model food code. Michigan- Michigan's current regulations are based on the 2005 edition of the federal model food code.
Name and Phone Number of Contact Person
Tim Anderson Chief, Regulatory & Technical Services Department of Agriculture, Trade and Consumer Protection-Division of Food Safety PO Box 8911 Madison, Wisconsin 53708-8911 Telephone: [phone] Email: Timothy. [e-mail]