Statement of Scope
Department of
Agriculture, Trade and Consumer Protection
(D
ATCP
)
Rule No:
ATCP 75 (Retail Food Establishments)
Relating to:
Mobile R
etail Food Establishments
1. Description of the objective of the
emergency
rule:
On July 1, 2016,
the Department of Agriculture, Trade and Consumer Protection’s (
D
epartment
)
Division of Food Safety (DFS) and
the
D
epartment of
H
ealth
S
ervice (DHS)
Food Safety and Recreational Licensing
S
ection
(FSRL)
will merge
.
With this merger, all restaurants, including mobile restaurants, will be deemed retail food establishments for purposes of licensing and inspection by the Department.
The new legislation has the expectation that all of these retail food establishments,
restaurants and
those
current
ly titled
retail food establishments
, will follow the same licensing and inspection standards.
To accomplish this, on July 1, 2016,
ch.
DHS 196
(Restaurants)
will be consolidated with
ch.
ATCP 75
(Retail Food Establishments)
.
In addition, both restaurants and current retail food establishments
are
already
required to follow the standards set forth in the Wisconsin Food Code, which is an Appendix to both ATCP 75 (Retail Food Establishments) and DHS 196 (Restaurants).
Although this
Appendix
requires
all mobile retail food establishments
, including
restaurants
,
to
have a service base, as defined in
Part
1-201.10 (B
)
of the
Appendix to
ch.
ATCP 75
and
ch.
DHS 196
,
Wis. Admin. Code
,
only
ch.
DHS 196
at this time
specifically
authorizes the
licens
ing
and inspection
of
bases for mobile restaurants
. Chapter
ATCP 75
is silent on the licensing
and inspection
of
service
bases
for
all other types of
mobile retail food establishments.
While
ch.
DHS 196
will merge into
ch.
ATCP 75
on July 1, 2016, it will still be a separate subchapter, applying only to restaurants, until further modifications
are completed for
ch.
ATCP 75
.
I
n order to assure
, with the merger,
that all
service bases for
mobile retail food establishments will be similarly licens
ed
and
inspected
,
as intended by the Legislature,
the proposed emergency rule will create language that ensures all
mobile retail food establishment
service bases are licensed and inspected.
Th
e emergency rule is
necessary because the license year for mobile retail food establishments is July 1-June 30 of each year
, and a new licensing year would
begin
before the completion of the regular rule-making process
, which is expected to be approximately June 1, 2017
.
While there is already an approved scope statement allowing the Department and DHS to begin consolidating
ch.
DHS 196
into
ch.
ATCP 75
and make all associated modifications, th
e
work
on the permanent rule amendments
will not be completed before the licens
e year beginning July 1, 2016.
The proposed emergency rule will create language in ATCP 75 to
assure similar
licensing and
inspection for all mobile retail food establishments that will be under the Department’s jurisdiction on July 1, 2016.
T
he emergency rule language is expected to
be proposed as part of
the
permanent rule
provisions
unde
r the currently
approved scope statement for
ch.
ATCP 75
and
Appendix
,
Wisconsin Food Code
.
The Department intends to complete this permanent rulemaking process before the license year beginning July
1, 2017 so there will be no gap between the language proposed in the emergency rule and the language in the permanent rule.
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,
the Department and
DHS divide regulatory authority over food safety.
In
ch.
ATCP 75
,
the Department
regulates food safety in retail food establishments such as grocery stores, supermarkets
, mobile retail
food
establishments,
and most convenience stores.
In
ch.
DHS 196
,
DHS
regulates food safety in restaurants
, including
mobile restaurants.
2015 Wisconsin
Act 55
transfer
red
regulatory authority over food safety in restaurants from DHS to
the Department
, effective
July 1, 2016. From
statutory
and
regulatory perspective
s
, restaurants will b
e
considered
a
category
of retail food establishment
at the time the transfer goes into effect
.
Nature of the Emergency
An emergency rule is necessary
to
immediately address the
need for
consistent licensing and inspection of
all mobile retail food establishment
service bases
. It
will allow the Department to put the procedures in place to
licens
e
and
provide
inspection services
to
ensure that
all of these establishments
comply with
the Wisconsin Food Code.
If
the Department
is not able to take this action now, it will delay
the
Legislature’s
mandate
to
simplify
and streamline
regulatory oversight of
all
Wisconsin
mobile retail food establishments
.
W
ithout
adoption of
this emergency
rule
there will be
an immediate impact on industry at the time of the merger
– inconsistent licensing requirements and inspection for service bases
.
The proposed emergency rule will benefit
industry
by “
leveling the playing field”
through consistent licensing and oversight
to ensure
food safety.
Consolidation with
Division of Food Safety.
T
he transfer of the D
HS
’s
FSRL Section
to
the Department
’s Division of Food Safety
will
improve services for Wisconsin’s food and recreational industries
.
It
will create a
"one-stop" contact point for retail food establishments,
including restaurants,
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
allow
continue
d
consistent oversight of
restaurants and other
retail food establishment
s
in Wisconsin.
All
retail food establishments
, including restaurants
,
must comply with requirements of
the
Wisconsin
F
ood
C
ode. Having one
department
interpret
one set of rules and the
Wisconsin F
ood
C
ode
will
encourage consistency.
Related Rulemaking Activities
In addition to this scope statement, DHS has prepared
a
scope statement
related to
the
consolidation
of
DHS 196 (Restaurants) and DHS 196 Appendix (Wisconsin Food Code), with ATCP 75
and ATCP 75 Appendix (Wisconsin Food Code)
.
The goal of this rulemaking activity will be to
work
with
operators of
restaurants and other retail food establishments, along with
other stakeholders
,
to update
provisions of
the Wisconsin Food Code and
the
consolidate
d
DHS 196
and
ATCP 75.
Policy Alternative
Do nothing.
If DATCP does nothing,
similar types of retail food establishments will not be licensed and inspected the same, as
intended
by the Legislature.
If
the Department
and DHS do not
identify and
remove inconsistent
approaches
in regulations
, it will delay implementation of a simplified, streamlined regulatory system for Wisconsin’s retail food
establishments
.
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 restaurants. The
F
ederal
F
ood and
D
rug
A
dministration (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
clarify
that
licensing and inspection
apply to all mobile retail food establishment
s
ervice bases
, not just
to service bases of
mobile
restaurants currently licensed and inspected by DHS or its local city and county agents.
Some
retail food establishment operators
will
bear
an additional small cost for the
service base
license
and associated inspection
.
Depending on the complexity of the
washing, sanitizing,
or
food preparation
done at an establishment’s service base,
some
establishment
s
may need to add or modify procedures
; or
add, repair or change equipment, to
ensure compliance with these rules.
However, the consistent application of these licensing and inspection rules will mean that
the Department provides consistent oversight of
all mobile retail food establishment
service base
s.
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:
The Department
estimates th
at it will use approximately
0
.
1
0
FTE staff
time to develop this
emergency
rule. This includes research, drafting, preparing related documents, holding public hearings, and communication with affected persons and groups.
The Department
will assign existing staff to develop this rule.
The Department
will
also
work jointly with D
HS staff
to facilitate seamless consolidation of
ch.
DHS
196
with
ch.
ATCP 75
.
7. Anticipated economic impact
:
The proposed
emergency
rule is not expected to have any
major
economic impact
.
It will
eliminat
e
unequal
regulatory requirement
s
f
o
r
entities that operate in a very similar fashion under the
Wisconsin Food C
ode.
By adopting
equal
licensing and
food safety
provisions
, the proposed
emergency
rule will ensure Wisconsin’s food regulations
uniformly impose provisions
for protecting public health.
If adopted, the proposed
emergency and permanent
rule will
be
part of the larger initiative to consolidate and streamline W
isconsin’s food safety programs.
The overall goal is to
remove
confusing inconsistency in
regulat
ory requirements
and ensure consistent
application
of retail food
establishment
regulations.
The development of the proposed emergency and permanent rules
will make it easier for
mobile
retail food establishment
s, including
mobile
restaurant
s
, to know wh
ich regulations apply to them, and
to contact
the Department for
licensing and regulatory questions.
The
emergency
rule
is not cost-neutral, but it will achieve industry
-
wide equity in the mobile
retail food establishment
category
. While requiring licensing and inspection for all mobile retail food establishment service bases, the small
increase in cost
for some licensees
is matched by the ability of the Department to
provide
mandated
food safety inspections at
all of
the locations
where mobile retail
food establishments
clean, sanitize,
process, a
nd store
food and equipment
.
Contact Person:
Tim Anderson
, Director of Field Services, Bureau of Food Safety and Inspection, Division of Food Safety (608) 224-4716,
timothy.anderson@wisconsin.gov
.
