After July 1, 2016, regulatory authority for DHS 192 (Cities, Counties, and Villages Designated as Agents of the Department for Public Health) will be transferred to DATCP 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.
DHS has also 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. DHS and DATCP staff will work with stakeholders to evaluate the content of DHS 198 and determine whether or how to streamline these regulations, transferring relevant provisions into ATCP 75 Appendix (Wisconsin Food Code) and eliminating any duplicative provisions.
In addition to the three scope statements prepared by DHS, DATCP has also prepared a scope statement for ATCP 75 and ATCP 75 Appendix to amend regulations related to retail food establishments and to consolidate DHS restaurant and vending regulations transferred to DATCP on July 1, 2016.
Policy Alternatives. Do nothing. If DHS and DATCP do 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 DHS and DATCP do 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 parties may be faced with conflicting rules across the range of retail food establishment activities. If DHS and DATCP 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):
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.
254.74 Powers of the department and local health departments.
(1) The department shall do all of the following: (a) Administer and enforce this subchapter, the rules promulgated under this subchapter and any other rules or laws relating to the public health and safety in hotels, tourist rooming houses, bed and breakfast establishments, restaurants, vending machine commissaries, vending machines and vending machine locations.
(am) Promulgate rules, in consultation with the department of safety and professional services, under which the department of health services shall conduct regular inspections of sealed combustion units, as required under s. 101.149 (5) (c), for carbon monoxide emissions in hotels, tourist rooming houses, and bed and breakfast establishments. The rules shall specify conditions under which it may issue orders as specified under s. 101.149 (8) (a). The rules may not require the department of health services to inspect sealed combustion units during the period in which the sealed combustion units are covered by a manufacturer’s warranty against defects. (b) Require hotels, tourist rooming houses, restaurants, vending machine operators and vending machine commissaries to file reports and information the department deems necessary.
(c) Ascertain and prescribe what alterations, improvements or other means or methods are necessary to protect the public health and safety on those premises.
(d) Prescribe rules and fix standards, including rules covering the general sanitation and cleanliness of premises regulated under this subchapter, the proper handling and storing of food on such premises, the construction and sanitary condition of the premises and equipment to be used and the location and servicing of equipment. The rules relating to the public health and safety in bed and breakfast establishments may not be stricter than is reasonable for the operation of a bed and breakfast establishment, shall be less stringent than rules relating to other establishments regulated by this subchapter and may not require 2nd exits for a bed and breakfast establishment on a floor above the first level.
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:
DHS estimates that it will use approximately 0.50 FTE staff time to develop this rule. This includes research, drafting, preparing related documents, holding public hearings, and communication with affected persons and groups. DHS will assign existing staff to develop this rule. DHS will work jointly with DATCP staff, who are separately proposing to revise ATCP 75 and ATCP 75 Appendix, to facilitate seamless consolidation of DHS 196 and 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 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.
