DATCP Docket No. 16-R-02
WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
The Wisconsin Department of Agriculture, Trade and Consumer protection hereby adopts the following emergency rule to amend ss. ATCP 75. 03 (1), and ATCP 75.03 (3) (d); and to create subs. ATCP 75.01 (5m) and (9) and 75.03 (9) (i), relating to mobile retail food establishments and the bases that support those mobile retail establishments and affecting small businesses.
Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
This emergency rule allows the Wisconsin Department of Agriculture, Trade, and Consumer Protection (“Department”) to, immediately upon publication, evaluate the bases supporting mobile retail food establishments and require licensing of the bases according to the food storage, processing, and preparation activities they perform. This will result in the immediate equalization of inspection and enforcement between the Department’s Division of Food Safety (“DFS”), which does not currently require licensing of the bases serving mobile retail food establishments under its jurisdiction, and the Wisconsin Department of Health Services (“DHS”) Food Safety and Recreational Licensing unit (“FSRL”), which currently requires licensing of the bases serving mobile restaurants under its jurisdiction. Mobile retail food establishments and mobile restaurants perform very similar food-preparation and -handling functions, differing mainly in whether they serve a “meal”. If this rule were not to be implemented, the result would be unequal inspection and enforcement – an unacceptable situation when both types of businesses will be regulated by DFS after the transfer of FSRL to DFS on July 1, 2016.
The emergency rule will take immediate effect upon publication in the state newspaper and remain in effect for 150 days. The legislature’s joint committee for review of administrative rules may extend the emergency rule for up to 120 additional days.
Under an already-approved scope statement, DFS will promulgate a new ATCP 75 after the merger with FSRL on July 1, 2016, and make the language in the emergency rule permanent.
Explanation of Statutory Authority
The Department has broad statutory authority under s. 93.07 (1), Stats., to interpret laws under its jurisdiction. The Department has specific authority under ss. 97.29(2) (a) and 97.30(2) (a) to require licenses, and the information required in the application for licenses, for businesses processing and retailing food. The Department has specific authority under ss. 97.09 (4), 97.29(5) and 97.30 (5), Stats., to write rules for businesses processing and retailing food. The Department is adopting this temporary emergency rule under the authority of s. 227.24, Wis. Stats.
Related Rules or Statutes
DHS has prepared and gained approval for three scope statements to facilitate the transfer of the Food Safety and Recreational Licensing Unit regulations to the Department’s Division of Food Safety. One approved scope statement calls for revision of DHS 196 (Restaurants) and DHS 196 Appendix (Wisconsin Food Code), which will be consolidated with ATCP 75 on July 1, 2016. The goal of the rulemaking activity under this scope statement will be to start working with restaurant owners and other stakeholders to update the Wisconsin Food Code.
This emergency rule will allow equal enforcement when DHS rules are transferred to the Department in their current form. The provisions of the emergency rule will be carried over in permanent form when the Department repeals the merged rule and re-creates a new, post-merger ATCP 75.
Plain Language Analysis
History and Background
Current law assigns DHS and the Department shared regulatory authority over food safety. Under ch. DHS 196, DHS regulates food safety in restaurants and mobile restaurants. Under 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. Both DHS 196 and ATCP 75 have a common appendix, known as the Wisconsin Food Code. The two agencies have shared the Wisconsin Food Code since 1999. Effective July 1, 2016, 2015 Wisconsin Act 55 transfers regulatory authority over food safety in restaurants from DHS to the Department. The statutes effective on that date will categorize restaurants as a type of retail food establishment under the Department’s jurisdiction. However, the term restaurant will be used throughout this document to describe an establishment serving meals. Despite DHS and the Department sharing a common food code, differences between DHS 196 and ATCP 75 have resulted in different, agency-specific regulation of the bases supporting mobile restaurants and mobile retail food establishments, respectively. DHS requires the base supporting a mobile restaurant to be appropriately licensed and inspected, while the Department has not had such a requirement for the base supporting a mobile retail food establishment.
The difference in licensing status, between bases supporting mobile retail food establishments and bases supporting mobile restaurants, cannot be eliminated at this time without the proposed emergency rule. If the Department is not able to take this action now, the resulting inequality in licensing and inspection status will delay implementation of the legislative mandate to work toward a simplified and streamlined regulatory system for Wisconsin’s food industry. The proposed emergency rule will allow the Department to extend a licensing requirement to bases serving mobile retail food establishments and provide inspection services to those bases. This will create equal regulatory treatment of all bases serving mobile food businesses and decrease the likelihood of foodborne illness caused by deficiencies in facility or practice occurring at a base associated with a mobile retail food establishment. In many cases, the business serving as a mobile retail food establishment base may already be licensed and inspected as a food processing plant or other food business. In this case, no additional license or fee will be required.
Consolidation with Department Division of Food Safety
The transfer of the DHS’s Food Safety and Recreational Licensing unit 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 operators of restaurants and retail food establishments, making it much easier for them to quickly get licensed and have their questions answered. In the spirit of consistent and efficient service, this proposed emergency rule revision will facilitate consistent oversight of mobile restaurants and other mobile retail food establishments in Wisconsin. Retail food establishments and restaurants are already regulated under the same Wisconsin Food Code. Having one agency interpret the Wisconsin Food Code and use one set of regulations will simplify compliance for industry by facilitating interpretive and regulatory consistency.
DHS 196 currently allows DHS to license and regulate the bases for mobile restaurant operations. The standards for these operations are set forth in The Wisconsin Food Code, chapter 9. The need for an emergency rule arises because current provisions in ATCP 75 do not address bases for mobile retail food establishments or allow the Department to license and regulate them. One intent of the proposed, post-merger changes to ATCP 75 is to insert clear and equitable language mandating licensed bases for both mobile retail food establishments and mobile restaurants.
Do nothing. If the Department does nothing, then the mobile restaurant operators will be treated differently from mobile retail food establishment operators. The rules carried over from DHS will mandate that a business serving as a base for a mobile restaurant must buy a license while that requirement will not apply to a base supporting a mobile retail food establishment. Effectively, the licensed mobile restaurant bases will have to adhere to standards that will not apply to bases for mobile retail food establishments. This disparity will delay implementation of a simplified, streamlined regulatory system for Wisconsin’s retail food industry.