DATCP Docket No. 15 – R - 16 Proposed Hearing Draft
Rules Clearinghouse No. ___ September 21, 2017
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 repeal and recreate ATCP 75 relating to retail food establishments, and to repeal and recreate ATCP 75, Appendix, The Wisconsin Food Code, also relating to the regulation of retail food establishments and affecting small business
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Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
The Wisconsin Department of Agriculture, Trade and Consumer Protection (“Department”) proposes to repeal and recreate ATCP 75 (Retail Food Establishments) and also repeal and recreate ATCP 75, Appendix (Wisconsin Food Code). This rule is necessary to update the Wisconsin Food Code, as the Department is currently operating on the Wisconsin version of the 2009 Federal Food and Drug Administration (FDA) Model Food Code. This new rule, if adopted, will bring Wisconsin into substantial accord with the FDA 2013 Model Food Code, currently in use.
Normally, the Department updates the Wisconsin Food Code every four years, but this cycle the Department is also updating ch. ATCP 75 (Retail Food Establishments) due to the merger of the Department’s Division of Food Safety with the Department of Health Service’s (DHS’) Food Safety and Recreational Licensing section in July of 2016. The current Division of Food and Recreational Safety (DFRS) must merge, clarify, and update the rules regulating all retail food establishments, both meal-serving (restaurants) and non-meal serving, as DFRS now oversees licensing and inspection of both business types.
Statutes Interpreted
Statutes Interpreted: ss. 97.30, Stats., “Retail food establishments:” 97.29, Stats., “Food processing plants;” 97.42, Stats., “Compulsory inspection of livestock or poultry, and meat and poultry products; 97.605, “Lodging and vending licenses,” and 97.61, Stats, “Vending machine commissary outside the state.” Statutory Authority
Statutory Authority: ss. 93.07 (1), 97.09 (4), 97.30 (5), 97.29 (5), Stats.
Explanation of Statutory Authority
The Department has broad general authority, pursuant to s. 93.07 (1), Stats., to adopt rules to implement programs under its jurisdiction. The Department also has general authority, pursuant to 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, pursuant to s. 97.30 (5), Stats., to adopt rules for retail food establishments dealing with fees; setting facility construction and maintenance standards; setting rules for the design, installation, maintenance, and cleaning of equipment and utensils; personnel standards; food handling and storage; sanitary production and processing of food; food sources; and food labeling. Related Statutes and Rules
Since the merger with DHS’s Food Safety and Recreational Licensing section in July of 2016, the Department regulates food from farm to table. Once it leaves the farm, food is almost entirely the responsibility of DFRS, and it is regulated, pursuant to ch. 97, Stats., as well as various, inter-related administrative rules that often either mirror or reference federal law. Relevant administrative rules cover retail food establishments (ATCP 75 and its Appendix), food processing plants (ATCP 70), dairy plants and farms (ATCP 65), and food warehouses (ATCP 71), as well as meat and poultry inspection and processing (ATCP 55). The Department also references and mirrors much of the 2013 FDA Model Food Code, as well as FDA Model Food Code updates accepted by the FDA since 2013. Plain Language Analysis
The Department is updating ch. ATCP 75 by incorporating large parts of repealed ch. DHS 196 (Restaurants) and repealing rules in ch. ATCP 75 dealing with agent programs. These agent program rules are now found in the new ch. ATCP 74 (Local Agents and Regulation), which also incorporates rules from the repealed ch. DHS 193.
With the merger, changes must be made to merge the different rules used by the two agencies. In addition to new language clarifying the responsibilities of food retailers who take advantage of the exemption from the requirement to hold a food processing plant license under ch. ATCP 70 but wholesale up to 25% of their gross food sales, the proposed ch. ATCP 75 will incorporate, for the first time, specific definitions for “wholesaling” and “retailing” which are now being incorporated into chs. ATCP 70 and ATCP 55 to provide guidance, clarity, and uniformity for food processors and retailers in Wisconsin. As previously stated, the proposed ATCP 75 contains language that specifically clarifies the responsibilities for retail food establishments exempt from the requirement to hold a food processing plant license but also doing a limited amount of wholesaling, and to follow the ATCP 70 safety, processing, and labeling requirements for the food produced for wholesaling. This not only ensures that all persons doing similar business activities are similarly regulated, but also ensures that all businesses selling at remote locations have the enhanced food safety processes in place, such as a written recall plan and a written food safety production plan as required by rules in ch. ATCP 70. A major change in this rule is the elimination of the exemption from the requirement to hold a retail food establishment license for persons holding either a meat establishment license issued by the Department or a grant of meat / poultry inspection from the federal government. Prior to the adoption of this rule, those meat establishments were allowed to retail up to 25% of total meat sales without a retail license because of the pervasive state or federal inspection of meat processing. However, recent discussions between the regulators in food and meat inspection have made it clear that meat and poultry products, sold at retail but not imbued with the state or federal mark of inspection, and other aspects of a retail food establishment, were not being inspected by meat inspection staff. The result of this oversight means that those establishments with meat establishment licenses or federal grants of inspection would not be able to retail any product other than meat or poultry products bearing the legend. With the proposed rule, the department would make it possible for them to continue to sell a full line of products while assuring the consuming public that the food products were subject to a proper inspection. It also levels the playing field for businesses already licensed to produce meat and poultry products only for retail sale.
The Department worked to combine the duties, activities, and expectations of both the merged agencies in a way that eliminates duplication, clarifies expectations, and, to the extent possible, ensures that multiple licenses are not needed. The Department has, however, balanced these objectives with its responsibility to the public and its mission as food safety regulators to ensure that all food is produced according to law and under some form of inspection. For some situations, such as meat establishments that produce some products under state or federal inspection with a mark of inspection and some product without that inspection or mark, the proposed rule will allow an additional retail license from the state or local agency with jurisdiction in that area, as well as the state meat establishment license or federal grant of inspection.
The new rule focuses on defining and clarifying the rules for micro-markets, vending machines, and the commissaries that serve both of those business types. The commissaries for both micro-markets and vending machines are now to be licensed as food processing plants, which reflects the operations of these commissaries. In addition, micro-markets are defined with the recognition that they operate without a person in charge at all times in overseeing their operations, which is a requirement for other types of retail food establishments.
Greater clarification is also given to the Department‘s rules for Hazard Analysis Critical Control Point (“HACCP”) Plans and HAACP variances, including the procedure for variance applications. New language also simplifies the protocols that establishments must follow for doing vacuum packing and sous-vide processing.
A significant change in the Wisconsin Food Code deals with cheese curds. The Department proposes to include language that references a process authority study on cheese curds, which validates the 24-hour at-room temperature rule and, moreover, allows the Department to meet Standard 1 of the FDA’s Retail Food Regulatory Standards Program.
This proposed rule harmonizes the different licensing rules used by DHS and the Department for mobile retail food establishment bases. The application of the different sets of rules created a licensing inequity between those operations, depending on the overseeing agency. These inconsistencies have now been eliminated, and the proposed rule also clarifies the rules for using those bases.
The Department renumbered and consolidated many provisions in the Wisconsin Food Code to achieve greater ease in use and to allow for the incorporation of rules on micro-markets and vending machines. The Department has also revisited the criteria for licensing fees, changing from income-and-sales-volume-based fees to risk-complexity-based fees.
Other clarifications, changes, and additions include the following:
• Language and terminology are standardized and clarified between the two merged programs.
• The definitions section is expanded to facilitate understanding of the merged language and the new programs.
