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 consolidated 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 Federal Food and Drug Administration (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 clarify that licensing and inspection apply to all mobile retail food establishment service 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 establishments 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 bases.
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 that it will use approximately 0.10 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 DHS 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 eliminate unequal regulatory requirements for entities that operate in a very similar fashion under the Wisconsin Food Code. 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 Wisconsin’s food safety programs. The overall goal is to remove confusing inconsistency in regulatory 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 establishments, including mobile restaurants, to know which 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, and 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.
