DATCP Docket No. 16-R-04 Final Rule
Rules Clearinghouse No. 17-072 June 22, 2018
ORDER OF THE
WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
The Wisconsin department of agriculture, trade and consumer protection hereby adopts the following rule to repeal ATCP 55.02 (6) (Note), (21), (29) (Note), (31) (Note), and 55.03 (2) (e) 3. (Note); to renumber 55.07 (13) (c); to renumber and amend ATCP 55.03 (4); to amend ATCP 55 (Title), 55.01 (1), (2) (a) and (c), 55.02 (1), (1m), (2), (3), (5) and (5) (Note), (14), (16) to (20), (23) to (25), 55.03 (1), (2) (b), (c), (d) (intro.), (d) 1. to 3., (e) (intro.), (e) 1. to 3., (2) (e) 4., 5. and 6., (2) (f), (11) (a), (b) 2. and 4. to 7., (12) (Title), (a), (b) (intro.) and 1. to 3., (c) (intro.) and (Note), and (d), 55.04 (Title), (1) (a), (1) (a) (Note) and (1) (c) (intro.) and 1. to 3., (1m), (2), (3) (a) 2., (4) (Title) and (b), (5) (Title), (6), and (8), 55.06 (2), (4) and (5) (a), (e), (f) and (g), 55.07 (Title), (1) (Title), (a), and (b), (2) (Title), (a) (intro.) and 2., (b), (c) (intro), 1. and 2., (3) (Title), (a) (intro.) and 2., and (b), (4), (5), (6) (intro.), (d) and (Note), (9) (b), (e) 2., and (Note), (10) (b), (d) and (e) and (11) (g), 55.08 (Title), (1) (intro.), (d), (d) (Note) and (e), (1) (f) to (h), (2) (a) and (Note), (2) (c) and (3) (a) (intro.), 55.09 (Title), (1), (2) (a), (3) (a) and (b), (4) to (6), and (8) (b), 55.10 (1), (2) (intro.), (a) to (f), and (g) (intro.), (3) (a), (b), and (d) 1., 3., and (Note), (4), and (5) (a) and (b), (6), (7) (a) to (c) and (f), 55.11, 55.12 (6) (a) (intro.) and 4. and 5., 55.13 (1), (3) and (4), 55.14 (2), (3), (5), and (6) (Title), and 55.15 (1) (b); to repeal and recreate ATCP 55.02 (6), (29), and (31); and to create ATCP 55.01 (2) (d), 55.02 (1g), (4g), (19m), and (26m), 55.03 (4) (a) and (b), 55.04 (1) (d), and (9), 55.06 (5) (k), 55.07 (13) (c), 55.08 (1) (e) (Note), 55.09 (9), 55.10 (5) (d), and 55.13 (6) (f) relating to meat and poultry products, and affecting small business.
Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
The Department of Agriculture, Trade and Consumer Protection (“Department”) operates the nation’s largest state meat and poultry inspection program, with approximately 260 meat establishments. State meat and poultry inspection programs operate under a cooperative agreement with United States Department of Agriculture (“USDA”) Food Safety and Inspection Service (“FSIS”). State meat and poultry inspection programs provide unique and scale-appropriate services to small meat and poultry establishments.
Statute Interpreted: Wis. Stat. § 97.42
Statutory Authority: Wis. Stat. §§ 97.42 (4), 97.09 (4), and 93.07 (1).
Explanation of Statutory Authority
The Department has specific authority under Wis. Stat. § 97.42 (4) to establish rules to regulate the slaughter and processing of animals and poultry for human consumption. The Department also has general authority under Wis. Stat. § 97.09 (4) to adopt rules specifying standards to protect the public from the sale of adulterated or misbranded foods. Additionally, the Department has general authority under Wis. Stat. § 93.07 (1) to adopt rules to implement programs under its jurisdiction.
Related Statutes and Rules
Wisconsin’s state meat and poultry inspection program is governed by Wis. Stat. ch. 97, Food, Lodging and Recreation, which includes Wis. Stat. § 97.42, compulsory inspection of livestock or poultry, and meat or poultry products. Wis. Admin. Code ch. ATCP 55 interprets and implements Wis. Stat. ch. 97 as it relates to Meat and Meat Food Products. State meat and poultry inspection programs operate under a cooperative agreement with the USDA FSIS to provide inspection services to meat establishments not engaged in interstate commerce. These establishments are generally very small in size. State meat and poultry inspection programs were established by the Wholesome Meat Act of 1967 and the Wholesome Poultry Products Act of 1968, which amended the Federal Meat Inspection Act (“FMIA”) to create 21 USC 661 and the Poultry Products Inspection Act (“PPIA”) to create 21 USC 454. Section 11015 of Title XI of the Food, Conservation, and Energy Act of 2008 (the 2008 “Farm Bill”), enacted on June 18, 2008, amended FMIA and PPIA to establish a new voluntary program allowing certain selected state-inspected meat establishments to sell their products in interstate commerce. Title 9, Animal and Animal Products, of the Code of Federal Regulations (“CFR”), interprets and implements the federal FMIA and PPIA. Wis. Stat. § 97.42 (4m) and Wis. Admin. Code §§ ATCP 55.06 (2), (3), (4), and (5)(d), and 55.07 (1), (2), and (3) currently adopt certain relevant sections of Title 9 relating specifically to inspection of meat and meat food products, meat and poultry and food products, the cooperative interstate shipment program, and poultry and poultry products inspection. Effective April 1, 2018, Wis. Stat. § 97.42(4m) will no longer cite the specific federal regulations. Instead, all specific federal regulations will be incorporated by reference in Wis. Admin. Code ch. ATCP 55.
Plain Language Analysis
Wisconsin operates the nation’s largest state meat and poultry inspection program, with approximately 260 meat establishments. Twenty-seven states currently operate state meat and poultry inspection programs. All state-inspected Wisconsin meat and poultry establishments are very small (as defined by USDA) and fill an important niche in the State’s economy. According to USDA, state meat and poultry inspection programs provide unique services to these very small establishments by “providing more personalized guidance to establishments in developing their food safety oriented operations.” USDA provides half of the funding for state meat and poultry inspection programs.
State meat and poultry inspection programs operate under a cooperative agreement with USDA FSIS. Under this agreement, states must provide inspection services “at least equal to” federal meat and poultry inspection. Each state program conducts a self-assessment annually and USDA FSIS conducts an on-site audit every three years to determine whether the program meets federal “at least equal to” requirements. Wisconsin’s program currently meets these “at least equal to” standards and has done so since the program’s inception.
Revised Fee Structure
Currently, a licensed meat establishment is required to pay a $200 annual license fee or an annual license fee of $80 if the owner is solely engaged in custom processing at that establishment. After consultation with industry, the Department is replacing the $200 annual fee with a new fee structure based on the activities done at the licensed meat establishment (effective January 1, 2019). The maximum fee for any single licensed meat establishment will not exceed $200 in a year. Fees will not increase for any licensed meat establishment and may decrease for most establishments under the new fee structure:
- A person who is solely engaged in custom processing will continue to pay an $80 annual license fee.
- A licensed meat establishment will pay annual fees, not to exceed $200, of:
- $100 for processing cooked meat or poultry products or processing shelf-stable uncooked meat or poultry products,
- $100 for the slaughter of livestock, other than rabbits, and captive game animals,
- $50 for processing not shelf stable uncooked meat or poultry products,
- $50 for the slaughter of poultry – unless exempt from the license fee – ratites, and captive game birds, and/or
- $25 for the slaughter of more than 3,000 rabbits annually. All rabbit slaughter establishments must be licensed, but there shall be no charge for the slaughter of 3,000 or fewer rabbits annually.
Based on the establishments listed in the 2016-2017 Meat Establishment Directory (subtracting two establishments which are no longer in business), licensing fees charged to official establishments, industry-wide, would decrease by $18,550. Under the proposed rule, an estimated 76 establishments would still pay $200, 88 establishments would pay $150, 5 establishments would pay $100, and 91 establishments would pay $50.