After evaluating local public health department agent program and industry comments, the Department originally chose to add requirements for making recent inspection results available to the public, and a prohibition against any grading or scoring of RFEs based on inspection reports or other criteria. The intent of these provisions was to avoid problems arising in the event that different jurisdictions utilized discrepant grading or scoring systems or some jurisdictions employed a grading system while others did not. The Department believes that actual inspection reports tend to be more informative than grades or scores and allow consumers to draw their own conclusions about the merits of a given RFE. The Department has been aware that the City of Milwaukee, which is an agent of the Department, received a grant from the FDA contingent upon it implementing a grading program. Milwaukee’s grading program is now entering its third year. Because there is no clear statutory authorization or prohibition of grading or scoring systems, and because ATCP 75 as currently written is silent on this issue, the Department has removed rule language pertaining to a grading or scoring system.
This revised rule also harmonizes the different requirements that previously existed across DHS and DFS rules as to mobile RFE bases. The enforcement of divergent sets of rules had created a licensing inequity as between various individual operations, depending on the agency conducting oversight. The proposed rule eliminates these inconsistencies and standardizes the requirements for those bases.
The Department is statutorily bound to base licensing fees for RFEs not serving meals on “gross receipts from food sales at the retail food establishment during the previous license year.” The Department is not statutorily prohibited from considering food safety risks associated with activities at these RFEs, as the original license fees in statute are also based on whether potentially hazardous food is processed. Statute also allows the Department to revise in rule license fees for RFEs not serving meals. In accordance with these statutory boundaries, the Department has added an additional gross food sale receipt volume range and several risk factors to the criteria for setting licensing fees for RFEs not serving meals.
Finally, the rule renumbers and consolidates many provisions in the Wisconsin Food Code so as to enable greater ease of use and to allow for the intercalation of provisions pertaining to micro-markets and vending machines.
Federal and Surrounding State Programs
Federal Programs
The FDA does not directly regulate retail food safety, but it does issue the Model Food Code for direct adoption by state programs or for use as a guide used in formulating state regulations.
Surrounding State Programs
This rule is generally consistent with rules in neighboring states. The states surrounding Wisconsin have each adopted various versions of the FDA Model Food Code. Wisconsin’s criteria for calculating RFE license fees differ somewhat from those in surrounding states as to the emphasis placed on complexity and risk of food safety hazards.
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RFEs in Illinois are licensed at the county or municipal level. Cook County does not have a separate category for mobile RFE bases. Licensing fees for RFEs are based on whether the establishment has seats for customers, and if not, the total area occupied by the business. Chicago differentiates between licenses for mobile food dispensers and mobile food preparers. •
Minnesota employs different license categories for mobile and stationary retail food businesses, with fees based on sales volume. There is no separate Minnesota license category for mobile RFE bases. RFEs (other than restaurants) in Minnesota are primarily regulated by the Department of Agriculture. Minnesota restaurants are primarily regulated by county or municipal agencies. Hennepin County, for example, sets license fees based on menu breadth, degree of hazard of menu items, and size of operation, with separate categories for mobile and itinerant businesses. •
Iowa has a separate license category for a commissary serving a mobile RFE. RFEs in Iowa include restaurants. •
Michigan includes restaurants as a type of RFE and categorizes mobile operations and mobile commissary operations separately.Data and Analytical Methodologies
The Department reviewed past changes to the FDA Model Food Code as well as pending changes adopted in recent Conference for Food Protection meetings. The Department has also reviewed Wisconsin statutes and rules for food processing plants, meat and poultry inspection, and dairy plants, as well as current industrial practices to identify areas where greater consistency can be achieved and discrepancies eliminated between the two food inspection programs existing prior to July 2016. The Department solicited feedback on the rule from members of the Food Safety Advisory Council (FSAC), a group comprised of businesspeople and local health department agent representatives. The Department tested proposed changes in license fee criteria for RFEs not serving meals by applying the criteria to businesses familiar to FSAC members and by evaluating any license fee change for each RFE in a representative county. Upon learning of industry concerns about the proposed licensing and regulatory requirements for RFEs conducting food processing for wholesale activities and/or transferring food between different businesses within a single company, a work group comprised of industry and local health department agent personnel was convened to review and revise the requirements. This work group approved the requirements in the present revised rule.
Analysis and Supporting Documents for Effect on Small Business
As noted, the Department utilized and incorporated the 2013 FDA Model Food Code where it did not conflict with the Department’s compliance and enforcement programs. The Department worked to combine the duties, activities, and expectations of both DHS and DATCP in a way that eliminates duplication, clarifies expectations, and, to the extent possible, ensures that small businesses do not need multiple licenses. Within statutory boundaries, the Department has also revised the license fee criteria for RFEs not serving meals, adding a category of gross food sale receipts volume and by considering food safety risks. The Department tested the fiscal effect of these changes by hypothetically applying the criteria to businesses in a representative county and evaluating the license fee change to each RFE.
Effect on Small Business
The rule is not anticipated to have a major economic effect on RFEs since the rule serves mainly to replace and update current rules. Already-licensed mobile RFEs serving meals will see no change in requirements, because their bases were licensed under the DHS rules that were transferred to the Department. For operators with a base, serving mobile RFEs that only sell nonperishable packaged foods, the effect will be minimal regulatory and fee changes. The only operators who may face increased regulatory requirements and associated expenses are those operators of bases who perform complex processing and preparation of potentially hazardous food.
Certain food processing activities for wholesale performed in RFEs, in which all of these activities account for not more than 25% of gross annual food sales, must also be done under the federally-mandated HACCP system. Specifically, fish and fishery products processing must be performed under a Seafood HACCP system (as required in 21 CFR 123), and juice processing must be performed under a Juice HACCP system (as required in 21 CFR 120).
The proposed rule modifies the criteria for assigning license fees. For purposes of pragmatism, the rule tethers the cost of a given license to the complexity and risk of the food safety hazards associated with the particular activity, and not solely to the size of the RFE and the dollar volume of sales. In many cases, larger RFEs that may have been paying a higher license fee because of their sales volumes will now pay lower fees if their processing is not complex or high-risk. The Department’s analyses suggest that the overall change in total license fee revenue will be negligible. The proposed licensing fee criteria more fairly reflect the time and personnel costs to the Department for inspections, as the inspection process itself is risk-based.
Eliminating the exemption from the requirement to obtain an RFE license, in order to conduct retail sales of meat or poultry products that do not bear an inspection legend, should not pose a major fiscal impact on meat establishments operating under state or federal meat inspection programs. Both meat inspection programs require all inspected products to be produced under HACCP. HACCP plans for cured or shelf-stable products, developed in compliance with state or federal meat inspection requirements, will meet requirements in the revised rule applicable to such products made only under an RFE license.
DATCP Contact
Questions and comments related to this rule may be directed to:
Steve Ingham, Administrator
Division of Food and Recreational Safety
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone: (608) 224-4701
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SECTION 1. ATCP 75 is repealed and recreated to read:
RETAIL FOOD ESTABLISHMENTS
Subchapter I – Definitions and General Provisions
ATCP 75.01 Authority and purpose.
ATCP 75.02 Applicability.
ATCP 75.03 Adoption of Wisconsin food code.
ATCP 75.04 Definitions.
Subchapter II – Licensing and Fees
ATCP 75.06 Retail food establishments; licensing.
ATCP 75.063 Retail food establishments; license exemptions.
ATCP 75.065 Retail food establishments; license exemption for food processing.
ATCP 75.067 License holder responsibilities.
ATCP 75.07 Mobile retail food establishment base; licensing.
ATCP 75.075 Plan review.
ATCP 75.08 Retail food establishment fees.
Subchapter III – Enforcement and Appeals
ATCP 75.10 Enforcement.
ATCP 75.12 Suspension or revocation of license.
ATCP 75.14 Appeals of actions by the department; right of hearing.
ATCP 75.16 Appeals of actions by agent health departments.
Subchapter IV – Standards for Retail Food Establishments
ATCP 75.18 Qualifications of an authorized representative conducting inspections.
ATCP 75.20 Inspections.
Subchapter V – Vending Machines
ATCP 75.30 Applicability.
ATCP 75.32 Approval of vending machines and related equipment.
ATCP 75.34 Vending machine records.
ATCP 75.36 Maintenance and service connections.
ATCP 75.38 Sanitization.
ATCP 75.40 Waste disposal.
ATCP 75.42 Delivery of foods.
