Statement of Scope
Department of
Agriculture, Trade and Consumer Protection
(D
ATCP
)
Rule No:
ATCP 75 (Retail Food Establishments) and ATCP 75 Appendix (Wisconsin Food Code)
, ATCP 55 (Meat and Meat Products), ATCP 70 (Food Processing Plants), and ATCP 88 (Eggs)
Relating to:
Retail Food Establishments
1. Description of the objective of the rule:
The primary objective of
this rule revision is to
amend
ch.
ATCP 75
Appendix
, “
Wisconsin Food Code
”
to conform to the
2013 Federal M
odel Food Code, with policies and procedures used
by both the Department of Health Services (DHS) and the Department of Agriculture, Trade and Consumer Protection (DATCP)
in current
food safety
practice, and to reflect additional modifications proposed by the National Conference on Food Protection (NCFP).
This proposed rule revision is part of
the
transfer
of
food safety and recreationa
l licensing regulations from DHS
t
o DATCP
.
2015 Wisconsin Act 55
authorized the transfer of the D
HS
’s Food Safety and Recreational Licensing Section to DATCP’s Division of Food Safety, effective July 1, 2016. On July 1, 2016, DHS 196 will be renumbered as
subch
. III of ATCP 75. Both DATCP and DHS adopt identical versions of the Wisconsin Food Code and only one version of the amended Wisconsin Food Code
will be needed
as an appendix to the amended version of ATCP 75 after the effective date of the transfer. In addition, on July 1, 2016,
subch
. III of ATCP 75
(
Local Regulation of Retail Food Establishments
)
will be renumbered and become a subchapter of a newly created ATCP 74. DHS 198
(
Vending of Food
)
will be renumbered as a newly created
subch
. IV of ATCP 75.
DATCP
will work cooperatively with DHS to establish a Food Code Advisory Committee consisting of stakeholders to provide advice
on
the content of rule amendments and best approaches for consolidating rules.
Adopting this scope statement will allow DHS and DATCP to begin work amending chs.
DHS 196
and
DHS 196 Appendix
and identifying approaches for consolidating portions of ch.
DHS 196
in
ch.
ATCP 75
and
ATCP 75 Appendix
in preparation for the upcoming consolidation.
It will
also
a
llow DHS and DATCP staff to
review and revise, if necessary, retail food exemption provisions found in other DATCP rules, specifically ATCP 55, 70, and 80. Approval of companion scope statements will also allow DHS and DATCP staff to identify approaches for consolidating and amending other
DHS
rules related to the consolidation.
2. Description of existing policies relevant to the rule and of new policies proposed to be included in the rule and an analysis of policy alternatives; the history, background and justification for the proposed rule:
History and Background
. Under current law, DHS and DATCP divide regulatory authority over food safety. Under ch.
DHS 196
,
DHS
regulates food safety in restaurants. Under ch.
ATCP 75
, DATCP regulates food safety in retail food establishments such as grocery stores, supermarkets and most convenience stores.
2015 Wisconsin
Act 55
transfers
regulatory authority over food safety in restaurants from DHS to DATCP on July 1, 2016. From a regulatory perspective, restaurants will b
e categorized as
a type of retail food establishment.
The F
ederal Model Food Code is fully updated every four years to provide
practical, science-based guidance and enforceable provisions for mitigating risk factors known to cause foodborne illnes
s.
The 2013 F
ederal Model Food Code is the most recent full edition published by the FDA. However, the
current Wisconsin Food Code, appended to ch.
ATCP
75
for retail food establishments and to ch.
DHS 196
for restaurants, is ba
sed on the 2009 version of the F
ederal Model Food Code
.
Consolidation with DATCP Division of Food Safety.
T
he transfer of the D
HS
’s Food Safety and Recreational Licensing Section to
DATCP’s Division of Food Safety
will
improve services for Wisconsin’s food and recreational industries
.
It
will create a
"one-stop" contact point for
restaurants and
retail food establishments, making it much easier for them to quickly get licensed and
have their questions answered. Most significantly for this proposed rule revision,
i
t will
continue
consistent oversight of
restaurants and other
retail food establishment
s
in Wisconsin. Both restaurants and retail food establishments (grocery stores, etc.) are
already
regu
lated under the same Wisconsin Food C
ode. Having one agency interpret the
Wisconsin F
ood
C
ode
using one set of regulations
will encourage consistency.
Amending ATCP 75 Appendix, the Wisconsin Food Code, will ensure that industry and government have a rule that is based on the
most updated guidance.
Proposed Policies
. The proposed rule aims to revise the Wisconsin Food Code to i
ncorporate changes in the 2013 F
ederal Model Food Code, while retaining certain regulations that are unique to Wisconsin. This rule will ensure that the Wisconsin Food Code is in step with the latest model food safety regulations, which will reduce confusion and increase efficiency for concerned
stakeholders
in the retail food and restaurant industries.
The proposed rule will also explore
approaches for
reconciling any differences between chs.
ATCP 75
and
DHS 196
in order to facilitate the transfer of regulatory authority over food safety in restaurants from DHS to DATCP.
Reconciling any differences between chs.
ATCP 75
and
DHS 196
will bring consistency to
the Wisconsin Food Code and associated regulations
and provide clarity to
operators of
retail food and restaurant
businesses
.
Proposed rulemaking activities will also focus on
integrating provisions from ch
.
DHS 198
related to vending machines
, which are scheduled to be transferred to DATCP on July 1, 2016, with ATCP 75.
Finally, rulemaking activities will also examine whether and to what extent the consolidation will require revisions related specifically to retail food exemption provisions in DATCP rules, including ATCP 55
(
Meat and Meat Products
)
,
ATCP 70
(
Food Processing Plants
)
,
and ATCP 88
(
Eggs
).
Related Rulemaking Activities
In addition to this scope statement, DHS has prepared
three scope statements to facilitate the transfer of the Food Safety and Recreational Licensing Section
regulations
to DATCP’s Division of Food Safety
. First, they prepared a scope statement for DHS 196 (Restaurants) and DHS 196 Appendix (Wisconsin Food Code), which will be consolidated with ATCP 75 on July 1, 2016.
The goal of this rulemaking activity will be to
begin working with restaurant
owners and other stakeholders
to update the Wisconsin Food Code and to seek approaches for consolidating DHS 196 with ATCP 75 on July 1, 2016.
DHS has also prepared a scope statement for revising DHS 192. R
egulatory authority for DHS 192 (Cities, Counties, and Villages Designated as Agents of the Department for Public Health) will
also
be transferred to DATCP
on July 1, 2016
and DHS 192 will be renumbered as
a newly created
ATCP 74
(
Local Agents and Regulation
.)
At that t
ime,
subch
. III
of
ATCP 75
(
Local Regulation of Retail Food Establishments
)
will also become a subchapter of ATCP 74.
The goal of this rulemaking activity will be to work with local health agents and other stakeholders to develop rules that integrate DHS and DATCP approaches for regulating local health agents and developing one integrated set of rules to ensure a single, consistent approach for regulating local health agents.
Finally, DHS
has prepared a scope statement for DHS 198
(
Vending of Food
).
DHS 198 will be renumbered
as
a newly created
subch
. IV of ATCP 75 on July 1, 2016.
Under this proposed rulemaking activity,
DHS and DATCP staff will work with stakeholders to evaluate the content of DHS 198 and determine how to streamline these regulations, transferring relevant provisions into ATCP 75
and ATCP 75
Appendix (Wisconsin Food Code), and eliminating any duplicative provisions.
Adopting this scope statement, along with the companion scope statements from DHS, will allow DHS and DATCP to begin work amending and consolidating rules. It will minimize the amount of time between
when
DHS rules are transferred to DATCP
in their current form
and
adoption of
streamlined rules that will be easier for industry to use.
Policy Alternatives
.
Do nothing.
If DATCP does nothing, then the Wisconsin Food Code will b
e out of step with the current F
ederal Model Food Code.
In addition, food business operators
will
have to meet requirements for sous vide processing and reduced oxygen packaging that are more onerous than
those
now accepted as
sufficient
for safety. The Wisconsin Food Code’s provisions may no longer be based on the latest science and food customers may be protected less effectively and efficiently.
Furthermore, if DATCP does not reconcile differences between chs.
ATCP 75
and
DHS 196
in light of the transfer of regulatory authority over food safety in restaurants, then concerned
stakeholders
may be faced with
conflicting rules across the range of retail food establishment activities. If DATCP and DHS do not begin identifying approaches for integrating rules that are scheduled to be transferred, it will delay implementation of a simplified, streamlined regulatory system for Wisconsin’s retail food industry.
3. Statutory authority for the rule (including the statutory citation and language):
93.07 Department duties.
It shall be the duty of the department:
(1)
Regulations.
To make and enforce such regulations, not inconsistent with law, as it may deem necessary for the exercise and discharge of all the powers and duties of the department, and to adopt such measures and make such regulations as are necessary and proper for the enforcement by the state of chs.
93
to
100
,
Stats.,
which regulations shall have the force of law.
97.09 Rules
.
(4)
The department may, by rule, establish and enforce standards governing the production, processing, packaging, labeling, transportation, storage, handling, display, sale, including retail sale, and distribution of foods that are needed to protect the public from the sale of adulterated or misbranded foods.
97.30 Retail food establishments.
(5)
Rule making.
The department may promulgate rules to establish the fees required under sub. (3)
or
to govern the operation of retail food establishments. Rules may include standards for the construction and maintenance of facilities; the design, installation, cleaning and maintenance of equipment and utensils; personnel sanitation; food handling, display and storage; and food sources and food labeling.
227.14 Preparation of proposed rules.
(1s)
Exception; preparation of certain rules based on federal food code. Notwithstanding sub. (1), if the department of agriculture, trade and consumer protection or the department of health services prepares a proposed rule based on the model food code published by the federal food and drug administration, the proposed rule may be in the format of the model food code.
4.
Summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule:
There is no federal law related to retail food establishments, including rest
aurants. The FDA publishes the F
ederal Model Food Code as a model for states to use in developing its food safety regulations for retail food establishments.
5. Description of all entities that may be impacted by the rule:
This rule will revise regulations for restaurants currently licensed and inspected by DHS or its local city and county agents.
6.
Estimate of the amount of time that state employees will spend to develop the rule and of other resources necessary to develop the rule:
D
ATCP
estimates th
at it will use approximately
.5
0
FTE staff
time to develop this rule. This includes research, drafting, preparing related documents, holding public hearings, and communication with affected persons and groups.
D
ATCP
will assign existing staff to develop this rule. D
ATCP
will work jointly with D
HS staff
to facilitate seamless consolidation of DHS
regulations with
ch.
ATCP 75
.
7. Anticipated economic impact
:
The proposed rule is not expected to have any negative economic impact and
will positively affect operators of food service operations, state and local food safety inspectors and the public health.
By adopting the most current practices in food safety, the proposed rule revision will ensure Wisconsin’s food regulations reflect best practice for protecting public health.
If adopted, the proposed rule will include less onerous provisions for sous vide processing and reduced oxygen packaging.
As part of the larger initiative to consolidate and streamline Wisconsin’s food safety programs, it will
remove unnecessary duplication of regulations and ensure consistent interpretation of retail food regulations. It will make it easier for retail food establishment
operators
, including restaurant owners, to know who to contact for information with licensing and regulatory questions.
Both DATCP and DHS will work closely with stakeholders to ensure the rule revisions protect public health without imposing an undue economic burden.
The rule will not raise fees.
