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. Regulatory 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 time, 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 be out of step with the current Federal 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 restaurants. The FDA publishes the Federal 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:
DATCP estimates that it will use approximately .50 FTE staff time to develop this rule. This includes research, drafting, preparing related documents, holding public hearings, and communication with affected persons and groups. DATCP will assign existing staff to develop this rule. DATCP will work jointly with DHS 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.
