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.
• The Wisconsin Food Code is rearranged to help clarify its contents and applications. It is also expanded to stay current with recent federal and state initiatives.
Small Businesses Affected
The rule should not have a major economic effect on retail food establishments since it mainly replaces and updates current rules.
For those retail food establishments requiring a licensed base, already-licensed mobile restaurants will see no change in requirements because their bases were licensed under the DHS rules that were transferred to the department. Mobile retail food establishments that operate at special events or at temporary events will not need this license, just as mobile restaurants operating at temporary events (such as farmers’ markets) currently do not need the licensure.
For those operators with a base serving mobile retail food establishments that only sell non-perishable packaged foods, the effect will also be minimal. The only operators who may face increased regulatory requirements, and the associated expenses to meet them, are those operators who are also doing complex processing and preparation of potentially hazardous food. Some activities performed in those settings must also be done under the HACCP system, such as fish processing that would require implementation of a Seafood HACCP system (as required in 21 CFR part 123, as cited in s. ATCP 70.18), juice processing that would require implementation of a Juice HACCP system (as required in 21 CFR part 120, as cited in s. ATCP 70.23), or the processing and/or repacking of marine shellfish that would require compliance with the HAACP-based Marine Shellfish Program found in s. ATCP 70.21. The major change in ch. ATCP 75 is the change in the criteria for assigning license fees. The rule more realistically ties the cost of the license to the complexity and food safety hazards of the processing activities going on and not to the size of the establishment and dollar volume of sales. In many cases, larger establishments that may have been paying a higher license fee because of the sales volume will now pay a lower fee if their processing is not complex or hazardous. The Department’s analyses suggest that the overall change in total license fees charged will be negligible. The proposed licensing fee criteria more fairly reflects the time and personnel costs to the Department for the inspection. The additional retail license should not pose a major fiscal impact on plants operating under state or federal meat inspection programs. Both meat inspection programs require all inspected products to be produced under HACCP. The retail program will be willing to accept state or federal HACCP plans for cured or shelf-stable products, and already requires them under the retail program. If the proposed rule is not approved, it may not be possible for establishments operating under USDA or Wisconsin meat inspection programs to continue to operate unlicensed, uninspected retail outlets.
Reporting, Bookkeeping and other Procedures
The proposed rule would not require any additional reporting, bookkeeping or other procedures.
Professional Skills Required
The proposed rule does not require any new professional skills by small businesses.
Accommodation for Small Business
A major change in these rules is the chart that assigns points for risk in processing. This replaces the chart that assigned a license based on the size of the operation and the dollar volume of sales. This rule does not actually make an accommodation for the size of the business as much as it makes accommodation for the complexity of the business. The FDA does not make accommodations for food safety practices based on size, so Wisconsin does not do so either, but non-complex operations of any size are now charged less for a license than a complex operation even if the dollar volume of sales is much higher for the non-complex.
Feedback on the rule was solicited from members of the Food Safety Advisory Council (FSAC), a group comprised of business and local health department agent representatives. The proposed changes in criteria for license fees were tested by applying the criteria to businesses familiar to FSAC members and by evaluating the license fee change to each retail food establishment in a representative county.
Conclusion
The provisions in this proposed rule will benefit Wisconsin’s retail food industry and is expected to impose very limited additional costs. It is quite possible that many large, non-complex establishments will actually see a reduction in cost since they are no longer charged based on size and dollar volume of sales.
This rule will not have a significant adverse effect on “small business” and is not subject to the delayed “small business” effective date provided in s. 227.22(2)(e), Stats. DATCP will, to the maximum extent feasible, seek voluntary compliance with this rule.
