Room G1131

1825 Bluemound Dr.

Appleton, WI 54913-2277

Wisconsin Rapids

Dept. of Transportation

Room 120

1681 2nd Ave. S

P.O. Box 8021

Wisconsin Rapids, WI 54495-8021

Eau Claire

Eau Claire State Office Building

Room 139

718 W. Clairemont Ave.

Eau Claire, WI 54702

Spooner

WI DNR Northern Region Office

Conference Room

810 West Maple St.

Spooner, WI 54801

The Department of Agriculture, Trade and Consumer Protection (“DATCP") currently licenses and inspects retail food establishments, such as grocery stores. DATCP has adopted food safety rules for retail food establishments. The current rules are based on the federal Model Food Code. This rule updates the Wisconsin Food Code, based on changes contained in the most current (2001) edition of the federal Model Food Code. This rule also makes other minor changes to clarify current rules.

The Wisconsin Department of Health and Family Services (“DHFS") is proposing nearly identical rules for restaurants. This is a joint effort by DATCP and DHFS to maintain consistent and up-to-date standards for all retail food operations. Some grocery stores include restaurants, and vice-versa. DATCP and DHFS coordinate their licensing and inspection activities so that there is no regulatory overlap.

Statutory Authority:   ss. 93.07 (1), 97.30 (5) and 227.14 (1s), Stats.

Statute Interpreted: s. 97.30, Stats.

DATCP has broad authority, under s. 93.07 (1), Stats., to adopt rules needed to implement laws under its jurisdiction. DATCP licenses retail food establishments under s. 97.30, Stats. DATCP may adopt rules for retail food establishments, pursuant to s. 97.30 (5), Stats. 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 DHFS 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.

The United States Food and Drug Administration (“FDA") publishes a federal model food code. The model food code provides practical, science-based food safety standards for grocery stores, restaurants and other retail food establishments. Many states base their retail food regulations on the federal model food code.

Current DATCP and DHFS rules are based on the 1999 version of the model food code. DATCP has adopted the model food code as an Appendix to ch. ATCP 75, Wis. Adm. Code (the Wisconsin Food Code). DHFS has adopted the model food code as an Appendix to ch. HFS 196, Wis. Adm. Code.

FDA updated the model food code in 2001. This rule updates the Wisconsin food code based on the 2001 updates to the federal model food code. This rule also makes other minor changes and clarifications to current rules.

Rule Content

This rule makes a large number of updates and technical changes to current DATCP rules. The following are some of the more significant changes:

Food Temperatures

Under current rules, “potentially hazardous foods" must be kept sufficiently hot (or sufficiently cold) to prevent the rapid and progressive growth of infectious or toxigenic microorganisms. This rule changes the required minimum temperature of hot “potentially hazardous" foods from 140o F. to 135o F. This rule also allows cold “potentially hazardous" foods (which are normally refrigerated at 41o F. or lower) to remain unrefrigerated for up to 6 hours if certain procedures are followed.

Definitions

A restaurant is a place that prepares or serves “meals." This rule modifies the definition of “meal" so that it no longer includes individual pastry items served with a beverage. For example, a grocery store will no longer be subject to potential regulation as a “restaurant" merely because it serves doughnuts and coffee. This rule also makes a number of other technical changes to current definitions.

Food Employees

This rule clarifies current standards related to food employee health and sanitation. Among other things, this rule does the following:

-- Allows employees to contact ready-to-eat food with bare hands under certain limited conditions (special requirements apply).

-- Clarifies current provisions limiting food contact by employees affected with certain illnesses or symptoms.

-- Clarifies current requirements related to food employee hand-washing, and requires employees to wash hands before putting on gloves to work with food.

Food Safety and Labeling

This rule clarifies current standards related to the safety and labeling of food offered for sale in a retail food establishment. Among other things, this rule does the following:

-- Clarifies current requirements related to food sources.

-- Clarifies provisions related to the handling and sale of raw eggs and shellfish.

-- Requires hazard control (HACCP) procedures or warning labels for unpasteurized juice.

-- Clarifies date-marking requirements for ready-to-eat “potentially hazardous" foods.

-- Requires warning disclosures related to the sale of certain uncooked ready-to-eat foods, including uncooked meat, fish, eggs and shellfish.

Food Equipment and Utensils

This rule makes minor clarifications related to current standards for food equipment and utensils.

Water, Plumbing and Waste

This rule makes minor technical changes suggested by the Department of Commerce, Wisconsin's plumbing code agency. It also makes minor technical changes related to handwash sinks and temporary food establishments.

Buildings and Facilities

This rule does the following:

-- Prohibits facility configurations that cause the general public to enter or exit a retail food establishment through a food processing area.

-- Requires food establishments to comply with applicable provisions of the Wisconsin commercial building code.

-- Makes other minor technical changes related to standards for retail food buildings and facilities.

License Fee Correction

Current rules incorrectly set an annual license fee of $60 for retail food establishments with annual food sales of less than $25,000. This rule corrects (reduces) the license fee to $40, which is the fee established by s. 97.30(3m)(cm), Stats.

This rule will have no significant fiscal effect on state or local government. The rule will not alter state or local retail food enforcement activities. A fiscal estimate is attached.

Business Impact

This rule affects retail food establishments such as grocery stores, bakeries and convenience stores. Many of these businesses are small businesses. This rule will benefit affected businesses by clarifying existing regulatory requirements. In some cases, this rule gives affected businesses wider latitude to choose a preferred method of compliance. This rule will not have a significant economic impact on small business, and is not subject to the delayed small business effective date provision in s. 227.22 (2) (e), Stats.

The rule adds some minor new requirements for some retail food establishments, but these requirements are not expected to impose any significant burdens. This rule will benefit businesses that have combined grocery and restaurant operations, because it will maintain consistency with DHFS restaurant rules. A small business analysis (“initial regulatory flexibility analysis") is attached.

Under 2003 Wis. Act 145, DATCP and other agencies must adopt rules spelling out their rule enforcement policy for small businesses. DATCP has not incorporated a small business enforcement policy in this rule, but will propose a separate rule on that subject. DATCP will, to the maximum extent feasible, seek voluntary compliance with this rule.

Federal Regulation

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, 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 1999 edition of the federal model food code. This rule updates the Wisconsin Food Code to incorporate changes contained in the 2001 (most recent) edition of the federal model food code.

Regulatory Approach and Supporting Information

FDA developed and published the federal model food code based on the best available science and information related to retail food safety. The federal model food code encourages consistent state and local regulation of retail food establishments. Numerous states have adopted state retail food regulations based on the federal model food code. FDA periodically updates the federal model food code. FDA adopted the latest edition in 2001 and added a supplement in 2003.

The current Wisconsin Food Code is based on the 1999 edition of the federal model food code. This rule updates the Wisconsin Food Code based on the 2001 edition of the federal model food code (as supplemented in 2003). DATCP and DHFS made minor adjustments to the model food code in consultation with Wisconsin local health agencies, the Wisconsin Conference on Food Protection, and the National Conference on Food Protection. DATCP and DHFS also drew on 2 years of field experience with the current rule.

DATCP and DHFS also developed this rule 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 and the University of Wisconsin Extension-Food Science.

Surrounding 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 1997 edition of the federal model food code.

Illinois – Illinois' current regulations are based on the 1995 edition of the federal model food code. Like Wisconsin, Illinois is proposing to update its regulations based on the 2001 edition of the federal model food code.

Michigan – Michigan's current regulations, like Wisconsin's, are based on the 1999 edition of the federal model food code.

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Dentistry Examining Board in ss. 15.08 (5) (b). 227.11 (2) and 447.02 (2) (b), Stats., and interpreting s. 447.02 (2) (b), Stats., the Dentistry Examining Board will hold a public hearing at the time and place indicated below to consider an order to repeal ss. DE 11.11 and 11.12; to amend s. DE 11.02 (1) to (4); to repeal and recreate ss. DE 11.02 (5) and 11.03 to 11.10; and to create s. DE 11.02 (1m), (3m) and (6) to (11), relating to the requirements for administering the office facilities and equipment for safe and effective administration and the applicable standards of care, and to provide for reporting of adverse occurrences related to anesthesia.

Date:   November 3, 2004