Rule-Making Notices
Notice of Hearing
Agriculture, Trade and Consumer Protection
The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on its emergency rule to revise section
ATCP 70.03, relating to food processing plant license exemptions. DATCP adopted a temporary emergency rule, effective April 22, 2010, to create license exemptions for certain small-scale home canners and maple syrup processors. DATCP is also soliciting public input to assist DATCP in developing “permanent" rules related to food processing plant license exemptions (DATCP has not yet proposed “permanent" rules).
Hearing Information
Tuesday, May 25, 2010
9:30 a.m. – 12:30 p.m.
WI Dept. of Agriculture, Trade & Consumer Protection
2811 Agriculture Drive – Board Room, 1st Floor
Madison, WI 53718
DATCP will hold the public hearing at the time and location shown above. DATCP invites the public to attend the hearing and comment on the emergency rule (summarized below). DATCP also seeks public input for the development of proposed “permanent" rules, including answers to the following questions:
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Should small-scale processors of other types of foods also be exempted from food processing plant license requirements?
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If so, what food types? Under what conditions?
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If not, why not?
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Should food processors claiming exemption be required to register with DATCP and obtain a registration certificate, to help farmers market operators and others verify their license status?
Accessibility
Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by May 7, 2010, by writing to Deb Mazanec, Division of Food Safety, P.O. Box 8911, Madison, WI 53708-8911; e-mailing to
Debbie.mazanec@wi.gov or by phone at (608) 224-4712. Alternatively, you may contact the DATCP TDD at (608) 224-5058. Handicap access is available at the hearings.
Submittal of Written Comments
Following the hearing, the hearing record will remain open until
Monday, June 7, 2010 for additional written comments. Comments may be sent to DATCP's Division of Food Safety at the address below, by email to
Debbie.mazanec@wi.gov or online at
http://AdminRules.Wisconsin.gov/
Copies of Emergency Rule
You may obtain free copies of the temporary emergency rule by contacting the Wisconsin Dept. of Agriculture, Trade and Consumer Protection, Division of Food Safety, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You may also obtain copies by calling (608) 224-4712 or e-mailing
deb.mazanec@wi.gov. Copies will also be available at the hearing. To view the proposed rule online, go to:
http://adminrules.wisconsin.govKeeley.Moll@datcp. state.wi.us.
Analysis Prepared by Department of Agriculture, Trade and Consumer Protection
The Department of Agriculture, Trade and Consumer Protection (DATCP) administers state food processing plant license requirements under s.
97.29, Stats. This temporary emergency rule exempts the following persons from licensing under s.
97.29, Stats., subject to certain conditions:
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An individual who home-cans acidic, acidified or fermented vegetable or fruit products for retail sale at a community or social event, farmers' market or farm roadside stand, and receives no more than $5,000 from those sales in any license year. This exemption implements the statutory exemption created by
2009 Wis. Act 101.
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A person who processes maple sap to create maple syrup or concentrated maple sap that the person sells only to other processors for further processing, and who receives no more than $5,000 from those sales in any license year.
DATCP is adopting this temporary emergency rule pending the adoption of a “permanent" rule to cover the same matters.
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This emergency rule is needed to implement
2009 Act 101, to provide clear guidance to home canners who wish to sell their products to the public, and to protect the public against potentially serious food safety risks.
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This emergency rule is also needed to relieve certain maple sap processors from unnecessary cost and compliance burdens, while ensuring adequate food safety protection.
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A temporary emergency rule is needed now because a “permanent" rule cannot be completed in time for this year's farmers market and maple syrup production seasons.
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This emergency rule will take effect immediately upon publication in the official state newspaper, and will remain in effect for 150 days. The Legislature's Joint Committee for Review of Administrative Rules may extend this emergency rule for up to 120 additional days.
Statutes interpreted
Statutory authority
Explanation of agency authority
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DATCP has broad general authority, under s.
93.07(1), Stats., to interpret laws under its jurisdiction.
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Under s.
97.09(4), Stats., DATCP may establish and enforce standards governing the production, processing, packaging labeling, transportation, storage, handling, display, sale, including retail sale, and distribution of foods that are needed to protect the public from the sale of adulterated or misbranded foods.
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Under s.
97.29(1)(g)8. and
(5), Stats., DATCP may spell out food processing plant license requirements and exemptions.
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DATCP is authorized to adopt temporary emergency rules under s.
227.24, Stats., if emergency rules are needed to protect the public health, safety or welfare pending the adoption of “permanent" rules on the same subject.
Related statutes and rules
DATCP administers Wisconsin's food safety and labeling laws under ch.
97, Stats., including food processing plant license requirements under s.
97.29, Stats. (as modified by
2009 Wis. Act 101). DATCP has adopted food processing plant licensing rules under ch.
ATCP 70, Wis. Adm. Code.
A person who processes food for sale or distribution is generally required to hold a state food processing plant license under s.
97.29, Stats. (there are certain exemptions). Persons who are engaged in dairy or meat processing, or who operate retail food establishments, must be licensed under other statutes. Local food license and zoning regulations may apply in some cases.
2009 Wis. Act 101 exempted, from state licensing under s.
97.29, Stats., persons who home-can acidic, acidified or fermented vegetable or fruit products for retail sale at a community or social events or farmers' markets, provided that the person receives no more than $5,000 from those sales during the license year. Act 101 does not exempt those persons from other state license requirements that may apply, nor does it exempt them from local licensing or zoning ordinances that may apply.
Plain language analysis
Home Canning for Retail Sale
Under this emergency rule, a person who home-cans acidic, acidified or fermented vegetable or fruit products for retail sale at a community or social event, farmers' market or farm roadside stand is exempt from a food processing plant license under s.
97.29, Stats, if all of the following apply:
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The person is an individual, not a legal entity such as a corporation.
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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.
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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.
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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.
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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.
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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."
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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."
