DATCP Docket No. 17-R-05 Final Rule
Rules Clearinghouse No. 17-073 December 11, 2019
OF THE WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
The Wisconsin department of agriculture, trade and consumer protection hereby proposes the following rule to repeal and recreate ATCP 70 relating to food processing plants, and affecting small business.
Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection
This rule repeals and recreates Wis. Admin Code ch. ATCP 70 (Food Processing Plants.) The rule is necessary to update and clarify Wisconsin’s food processing plant standards, and to incorporate new federal requirements designed to improve the nation’s food safety system.
- Wis. Stat. § 97.29, “Food processing plants.” - Wis. Stat. § 97.30, “Retail food establishments.” - Wis. Stat. § 97.34, “Bottled drinking water and soda water beverage; standards; sampling and analysis.” - Wis. Stat. § 97.42, “Compulsory inspection of livestock or poultry, and meat or poultry products.” - Wis. Stat. § 97.605, “Lodging and vending licenses.” - Wis. Stat. § 97.61, “Vending machine commissary outside the state.”
Explanation of Statutory Authority
The Wisconsin Department of Agriculture, Trade and Consumer Protection (“DATCP”) has broad general authority, under Wis. Stat. § 93.07 (1), to adopt rules to implement programs under its jurisdiction. DATCP 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. DATCP has specific authority, under Wis. Stat. § 97.29 (5), to adopt rules establishing fees; setting facility construction and maintenance standards; and setting rules for the design, installation, maintenance, and cleaning of equipment and utensils; personnel sanitation; food handling and storage; sanitary production and food processing; and food sources and food labeling.
Related Statutes and Rules
21 CFR 117, Current Good Manufacturing Practice, Hazard Analysis, and Risk based Preventive Controls for Human Food, is a critical foundation for the current rule. Related Wisconsin administrative rules include those pertaining to retail food establishments (Wis. Admin. Code ch. ATCP 75 and the Appendix to that rule); dairy plants (Wis. Admin. Code ch. ATCP 65), food warehouses (Wis. Admin. Code ch. ATCP 71), and meat and poultry establishments (Wis. Admin. Code ch. ATCP 55).
Plain Language Analysis
The proposed rule updates Wis. Admin. Code ch. ATCP 70 by adopting certain federal regulations that implement the requirements of the federal Food Safety Modernization Act (“FSMA”) for facilities subject to the new requirements. Specifically, the revised rule incorporates multiple subparts of 21 CFR 117, Current Good Manufacturing Practice, Hazard Analysis, and Risk based Preventive Controls for Human Food, which has superseded 21 CFR 110, Current Good Manufacturing Practice in Manufacturing, Packaging, or Holding Human Food. The subparts of 21 CFR 117 pertain to preventive food safety systems, and have already been referenced in Wis. Admin. Code chs. ATCP 65 (Milk and Milk Products) and ATCP 71 (Food Warehouses and Milk Distributors). Since the majority of Wisconsin federally-registered food facilities subject to 21 CFR 117 are licensed as food processing plants, this rule features similar referencing to inform affected businesses. This revision also ensures that the requirements for Wisconsin-licensed food processing plants that are not subject to the federal rule, are clearly articulated.
The transfer of the Department of Health Services’ (DHS) Food Safety and Recreational Licensing program to DATCP’s Division of Food Safety necessitated the merger of two food safety regulatory systems. One regulatory issue was particularly in need of resolution: Restaurant operators were not allowed to wholesale food under the DHS regulation, while retail food establishment operators under DATCP’s authority could engage in a limited amount of wholesaling without holding a food processing plant license. By statute, restaurants are now licensed as retail food establishments and therefore also enjoy the same limited ability to wholesale food. In the current rule-making process, DATCP initially proposed to retain certain existing limits and requirements from its prior rule concerning food processing activities for wholesale conducted by a retail food establishment. The Board of Agriculture, Trade and Consumer Protection (“Board”) approved a draft rule reflecting this approach at its January 2018 meeting. This final draft also for the first time included definitions of “wholesale” and “retail”. However, after the Board meeting, it became apparent that industry participants felt that less restrictive limits and definitions would still adequately protect public health.
As a result of this feedback, DATCP formed a work group comprised of industry personnel and local health department agent program representatives. The group was tasked with further revision of the rule. During deliberations, the work group concluded that the safety of many wholesale food processing activities, when performed by retail food establishments, could be ensured by compliance with Wis. Admin. Code ch. ATCP 75 and the appendix thereto, Wisconsin Food Code. Thus, compliance with the additional requirements in Wis. Admin. Code ch. ATCP 70 was unnecessary. The work group recognized that additional training would be needed for local health department agent personnel, as well as DATCP sanitarians, who were assigned to retail food establishments performing these wholesale food processing activities. DATCP, as part of its ongoing mission to thoroughly train food safety personnel at the state and local level, is committed to providing both the necessary initial training and ongoing technical support.
The work group’s efforts culminated in a newly revised final draft of Wis. Admin. Code ch. ATCP 70 that redefined “wholesale” and “retail”, clarified the exemption for retail food establishments from the requirement to hold a food processing plant license when conducting limited (not more than 25% of gross annual food sales) wholesale food processing activities, and redrew the boundaries for permitted types of wholesale food processing activities. Perhaps the most salient change was that a transfer of food between two food processing plants or retail food establishments is not regarded as wholesaling, as long the two businesses involved are operated by the same licensed entity, and the firm transferring the food does not relinquish control of the food. This change reflects current guidance from the United States Food and Drug Administration (“FDA”) and the United States Department of Agriculture, Food Safety and Inspection Service.
The revised definitions of “wholesale” and “retail” reflect industry practice and the current interpretation of these terms in the marketplace, as well as FDA’s recent guidance and its sanction of industry practice. The revised definitions also appear in the pending revision to Wis. Admin. Code ch. ATCP 75 (Retail Food Establishments). While the revised rule continues to prohibit retail food establishments from processing canned low-acid or acidified foods for wholesale without holding a food processing plant license and complying with Wis. Admin. Code ch. ATCP 70 requirements, DATCP expects the other updates to clarify and facilitate enhanced business opportunities for retail food establishments in Wisconsin.
Another theme of early discussions of the proposed rule revision was the question of whether additional regulations were necessary to ensure sanitary conditions in food processing plants sharing a building with a residence. The initial draft of the revised rule forbade the licensing of any new or remodeled food processing plant in this situation. However, the working group agreed there was no need for an outright ban or other additional regulation to ensure adequate separation between residential and processing activities or access for DATCP inspections. Accordingly, the proposed revision was deleted.
In addition to resolving these complex issues, the revised rule makes several other changes. The rule adopts the Model Ordinance for molluscan shellfish, now marine shellfish, with the Ordinance replacing all of Wis. Admin. Code s. ATCP 70.21 except for the existing subsection addressing illnesses and outbreaks associated with shellfish. This modification will keep Wisconsin’s regulations current with national standards for shellfish processing and marketing.
This revised rule also:
- Updates the definition of “food processing” to include the activities of a vending machine commissary.
- Updates the definition of “food processing plant” to conform to the statutory definition.