Rules Clearinghouse No. 17-072 June 22, 2018
ORDER OF THE
WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
ADOPTING RULES
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.
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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.
Statutes Interpreted
Statute Interpreted: Wis. Stat. § 97.42 Statutory Authority
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.
Definition of Livestock
2015 Wisconsin Act 243 broadened the range of animals, defined as “livestock”, for which slaughter inspection is provided without fee by the Department. Alpacas, bison, llamas, and rabbits are now considered livestock, and the slaughter inspection fees are eliminated for alpaca, bison, and llama producers who previously had to pay for voluntary inspection of slaughter. The Department recently learned that rabbit slaughter, done in uninspected facilities (often on-farm) rather than under voluntary for-fee inspection, has been a fairly common practice in Wisconsin. This practice had uncertain legality before the passage of 2015 Wisconsin Act 243, and is now clearly prohibited by a statutory requirement. Rabbits must be slaughtered in a licensed establishment. Effective January 1, 2019, this proposed rule legalizes the commercial slaughter and processing of rabbits by creating a no-cost license category for the slaughter of 3,000 or fewer rabbits annually ($25 if more than 3,000 are slaughtered). The proposed rule institutes baseline sanitation and recordkeeping requirements to adequately safeguard public health while allowing low-volume rabbit producers to develop their businesses. The rule exempts low-volume rabbit slaughter from slaughter inspection requirements, provided the rabbits are slaughtered at the same premises where raised, and recordkeeping and licensing requirements are met.
Retail Food Exemptions
This rule revision ensures that exemptions from the requirement in rule to hold a meat establishment license are consistent with those created by 2015 Wisconsin Act 243. The exemptions affect a greater number of retail food establishments than were previously considered exempt, making the statutory and rule language consistent with USDA regulations. Many licensed meat establishments operate a retail food establishment on the same premises. These licensed meat establishments may manufacture some meat products solely for the retail food establishment part of their business. The packages containing these products are not required to bear the inspection legend that is required for meat products being sold wholesale. However, the existing rule has long been interpreted as requiring that the formula and label of each of these products must be pre-approved by the Department before retail sale. Some business operators have questioned the fairness of this interpretation, as there are no such requirements for other, non-meat, potentially hazardous foods made for retail sale (i.e., fish sausage). In addition, retail food establishments not linked to a meat establishment commonly make and sell meat items without formula (recipe) or label approval, e.g. rotisserie chicken. This rule clarifies the retail meat and poultry products formula and labeling packaging exemptions.
Other Revisions
The rule revision updates terminology and adds definitions to improve clarity. Some revisions are made to align the rule terminology with recent changes in state and federal law. Among these revisions are the following:
- The rule aligns the list of exemptions related to custom processing with statutes. The definition of custom processing is clarified to include both slaughter and processing of meat or poultry products. Currently, meat or poultry may be used for the owner’s own consumption, consumption by members of the owner’s immediate household, and nonpaying guests. The rule was revised to reflect statutory language that allows consumption by the owner, members of the owner’s household, and the owner’s nonpaying guests and employees.
- The rule adds the Martin Luther King, Jr. Day holiday to the list of holidays for the purposes of scheduling inspection.
- The rule simplifies the list of applicable federal regulations, while incorporating 9 CFR 412, which relates to labeling requirements. - The rule replaces the term “meat and meat food products” with “meat and poultry products” throughout to reflect modification of this definition.
Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations
The FMIA and the PPIA gave USDA FSIS the responsibility for ensuring the safety and wholesomeness of meat and poultry distributed in commerce for use as human food. FSIS conducts ante mortem and post mortem slaughter inspection, inspection of meat and poultry food products, and inspection of basic sanitation practices. FSIS also ensures that meat and poultry businesses meet labeling requirements and use humane handling procedures during slaughter, as required by federal law. The agency also reviews Hazard Analysis and Critical Control Point (“HACCP”) systems. HACCP is a system employed by each establishment to ensure the safety of meat and poultry products.
