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.
Subchapter VI – Micro Markets
ATCP 75.44 Applicability of rules.
ATCP 75.46 Location.
ATCP 75.48 License holder responsibilities.
ATCP 75.50 Nature and source of food and beverages offered for sale.
ATCP 75.52 Equipment.
ATCP 75.54 Security.
ATCP 75.56 Routine maintenance at a micro market.
Subchapter I — Definitions and General Provisions
ATCP 75.01 Authority and purpose.
(1)
The department licenses and regulates retail food establishments as defined in this chapter under s. 97.30, Stats. Under s. 97.41 (1m), Stats., the department may also authorize local health departments as local agents of the department to license and regulate retail food establishments. (2)
The department has adopted this chapter under authority provided in ss. 93.07 (1), 97.12, 97.30 (5), 97.33, 97.613, 97.62, 97.625, 97.65 and 227.14 (1s), Stats., which authorizes the department to prescribe rules for retail food establishments and to enforce those rules for the purpose of protecting public health and safety. This chapter, including ch. ATCP 75 Appendix, establishes definitions; sets standards for management and personnel and for safe food operations, equipment, and facilities; provides for retail food establishment plan review, license issuance, inspection, and enforcement actions; and requires food protection practices certification for retail food establishment operators. (3)
During an inspection to evaluate compliance with this chapter and the Appendix, the department or its agent shall assess existing facilities or equipment that were in use before the effective date of this chapter and the Appendix….[LRB inserts date] based on all of the following considerations: (a)
Compliance with food-contact surface requirements in ch. ATCP 75 Appendix, part 4-101. (b)
Compliance with requirements for cooling, heating, and holding temperature capability in equipment, under ch. ATCP 75 Appendix part 4-301.11. ATCP 75.02 Applicability.
(1)
The provisions of this chapter, including ch. ATCP 75 Appendix, apply to any retail food establishment as defined in this chapter. (2)
A business or an organization operating as a retail food establishment that is exempt from licensing as a retail food establishment shall still meet the requirements as specified under sub. (1).
ATCP 75.03 Adoption of Wisconsin food code. As permitted by s. 227.14 (1s), Stats., an amended version of the 2013 U.S. food and drug administration (FDA) model food code, adopted as ch. ATCP 75 Appendix, is adopted and retitled the Wisconsin food code and is in the format of the FDA−recommended food code to ensure uniformity. ATCP 75.04 Definitions. In this chapter:
(1)
“Active managerial control” means the purposeful incorporation of systems in a retail food establishment that proactively reduce the risk of foodborne illness hazards through monitoring and verification. (2)
“Additional area” means a non-contiguous, separately located area that is on the same premises, but that is not a part of the primary food processing or warewashing operation, but contributes to the overall food operation. “Additional area” includes but is not limited to a banquet staging area, bakery preparation area, produce preparation area, or outdoor cooking area. (3)
“Adulterated” has the meaning specified in 21 USC 342. (4)
“Agent” means the city, county, village, or consortium health department designated by the department, in accordance with s. 97.41 Stats., to issue licenses and make investigations and inspections of retail food establishments under this chapter. (5)
“Amenable” means animal species or products made from animal species subject to mandatory inspection under state or federal meat and poultry inspection regulations. (6)
“Catering” means contracting for the preparation and service of a defined amount of food at a specific location, other than the licensed retail food establishment, to a defined set of guests at a wedding or similar event, or to participants in an organized group or activity. Catering does not include sale of individual meals directly to the consumer.(7)
“Certified food protection manager” means a person who holds a valid certificate of food protection practices issued under s. 97.33, Stats. (8)
“Cold holding” means maintaining a time/temperature controlled for safety food (TCS) under refrigeration at a temperature of 41F or below.
