The proposed rule revision will not impose any new recordkeeping requirements on small businesses.
Professional Skills Required to Comply
Small businesses will not need to acquire or retain additional professional skills or services to comply with the rule revisions.
Notice of Hearing
Health & Family Services
(Health, Chs. HFS/HSS 110--)
Notice is hereby given that pursuant to ss. 254.47, 254.64 (1) (d), 254.68 and 254.74 (1), Stats., the Department of Health and Family Services will hold a public hearing to consider the amendment of s. HFS 196.03 (11r), Wis. Adm. Code, relating to the definition of “incidental food service,” and emergency rules now in effect on the same subject as well as emergency rules now in effect that amend chs. HFS 172, 175, 178 and 195 to 198, Wis. Adm. Code, relating to permit and related fees for Department-regulated public swimming pools, camps, campgrounds, hotels and motels, tourist rooming houses, bed and breakfast establishments, food vending operations and food vending commissaries.
Hearing Information
The public hearing will be held:
Date & Time Location
August 5, 1998 Room 260
Wednesday Municipal Building
Beginning at 215 Martin L. King, Jr. Blvd.
1:00 p.m. MADISON WI
The hearing site is fully accessible to people with disabilities.
Analysis Prepared by the Dept. of Health & Family Services
Section HFS 196.03 (11r) Proposed Permanent Rule
Many retail food establishments, that is, grocery stores, convenience stores, delicatessens and bakeries, have in recent years added a food service operation to their business, in effect establishing a restaurant within the store, often with sit-down dining and full service food preparation. Also, some restaurants have added retail food sales, a bakery operation, for instance, to their business. A retail food establishment that also operates a restaurant on the same premises and a restaurant that also operates a retail food establishment on the same premises may be subject to regulation by both the Department of Agriculture, Trade and Consumer Protection (DATCP), which regulates retail food establishments under s. 97.30, Stats., and ch. ATCP 75, and the Department of Health and Family Services (DHFS), which regulates restaurants under subch. VII of ch. 254, Stats., and ch. HFS 196. This means that if under current regulations a business is found to be both a retail food establishment and a restaurant, the business must have two annual approvals (a license, permit), pay two annual approval (license, permit) fees, be subject to two inspections on the basis of two sets of rules that will not always require the same thing (although both sets of rules are directed at protecting the public's health), and perhaps have to deal with two different inspection agencies.
Section HFS 196.04 (1) (b) currently exempts “incidental food services” from the requirement to have a restaurant permit. “Incidental food service” is defined in s. HFS 196.03 (11r) as meals offered to the general public that are not a primary activity of a retail food establishment, comprise no more than 25% of the gross annual food sales of the business and do not involve full service food preparation. This order changes that definition to exclude more food service operations in retail food establishments from being regulated separately as restaurants, as one measure being taken to eliminate “double licensing,” that is, two different approval processes, both directed at protecting the public's health. The principal modification increases the percentage of the gross annual food sales of the business that may be derived from the sale of meals from at most 25% to less than 50%. The language relating to meals that do not involve “full service food preparation” is being deleted because the term which, like the definition of incidental food service, dates from 1990, has never been operationalized so that it is not a factor in deciding if a food service operated by a retail food establishment is an incidental food service for purposes of exempting it from the requirement that it have a permit to operate a restaurant.
Chs. HFS 172, 175, 178 and 195 to 198 and s. HFS 196.03 (11r) Published Emergency Rules
The Department and agent local health departments regulate all campgrounds, camps, the operation of swimming pools that serve the public, restaurants, hotels and motels, tourist rooming houses, bed and breakfast establishments and food vending operations in the state under the authority of ss. 254.47 and 254.61 to 254.88, Stats., to ensure that these facilities comply with the Department's health, sanitation and safety standards set out in administrative rules. The Department's rules for these facilities are found in chs. HFS 172, 175, 178, 195, 196, 197 and 198 of the Wisconsin Administrative Code. None of the facilities may operate without having a permit issued by the Department or an agent local health department. A permit is evidence that the facility complies with the Department's rules. Under the Department's rules, facilities are charged permit and related fees. Fee revenue supports the regulatory program.
This rulemaking order amends the Department's rules for operation of these facilities effective July 1, 1998 to increase, for Department-regulated facilities only, permit fees by 18%, the penalty for late payment of a permit fee from $50 to $75 and the pre-inspection fee for a new facility (applies only to hotels and motels, tourist rooming houses, restaurants, bed and breakfast establishments and vending machine commissaries), and to impose on Department-regulated facilities only a one-time technology improvement surcharge of $15 to $25 payable on July 1, 1998.
These rule changes have been promulgated by emergency order to protect public health and safety. Current revenues from permit fees are not sufficient to fully support the Department's existing regulatory staff and to finance necessary upgrading of computer systems. The fee increases and the one-time technology improvement surcharge will enable the Department to maintain the regulatory program at its current levels for frequency of routine inspections, responding promptly to complaints from the public and undertaking necessary enforcement action, and to modernize its permit issuance and information system.
This rulemaking order also amends the definition of “incidental food service” in ch. HFS 196, the Department's rules for restaurants. The significance of that definition is that s. HFS 196.04 (1) (b) exempts an incidental food service from the requirement to have a restaurant license. An incidental food service is currently defined as meals offered to the general public by a retail food establishment, such as a grocery store, a convenience store or a bakery, licensed by the Department of Agriculture, Trade and Consumer Protection (DATCP), which are not a primary activity of the retail food establishment, comprise no more than 25% of the gross annual food sales of the business and do not involve full service food preparation. This order modifies the definition, mainly to increase the percentage of the gross annual food sales of a retail food establishment that may be derived from the sale of meals from at most 25% to less than 50%. The effect of the change is to exclude more food service operations in retail food establishments from being regulated separately as restaurants, as one measure being taken jointly by the Department and DATCP to eliminate “double licensing,” that is, regulation (inspections, approvals and fees, enforcement) of an establishment by both the Department and DATCP for the same purpose of protecting the public's health.
The modification of the definition of “incidental food service” is effective for permits issued by the Department starting with the permit period beginning July 1, 1998, but as a mandated change will be delayed for one year, by amendment of the agent agreements, for permits issued by agent local health departments.
This rule change was promulgated by emergency order for preservation of the public welfare. Retail food establishments licensed by DATCP that serve meals on the premises to the public will be required to have only a license issued by DATCP and not also a permit issued by the Department. It has become possible at this time, at the beginning of a new restaurant permit period and regulatory cycle and in view of changes occurring lately in the retail food industry, to eliminate duplicative and at times conflicting regulation that does not serve a public purpose, and therefore it should be eliminated promptly.
Contact Person
To find out more about the hearing or to request copies of the proposed permanent or published emergency rules, write or phone:
Edward Rabotski, (608) 266-8294 or,
if you are hearing-impaired, (608) 266-1511 (TTY)
Environmental Epidemiology and Prevention Section
Division of Health
P.O. Box 309
Madison WI 53701-0309
If you are hearing- or visually-impaired, do not speak English, or have other personal circumstances which might make communication at the hearing difficult and if you, therefore, require an interpreter, or a non-English, large print or taped version of the hearing document, contact the person at the address or phone number above. A person requesting a non-English or sign language interpreter should make that request at least 10 days before the hearing. With less than 10 days notice, an interpreter may not be available.
Written comments on the proposed rule changes received at the above address no later than August 12, 1998 will be given the same consideration as testimony presented at the hearing.
Fiscal Estimate
Section HFS 196.03 (11r) Permanent Rule
The change in the definition of “incidental food service” means that the Department and its agents will regulate fewer restaurants and therefore revenues from the issuance of permits will decrease. The Department currently (3/3/98) regulates 9,583 restaurants, whereas the 28 agents (15 cities and 13 counties) regulate 10,126 restaurants.
It is estimated that approximately 1,000 establishments that are now issued permits by the Department will be affected by the modification. The average fee collected from an establishment is $148 per year. Therefore, the Department will lose an estimated $148,000 in annual fee revenue because these facilities will no longer be required to have a restaurant permit. In addition, approximately 1,100 facilities will no longer be issued restaurant permits by local health departments serving as agents of the Department. It is estimated that the average fee collected by these agents is now $165 per facility per year, so that the total loss of fee revenue for the agents would amount to $165,200 per year. Of the $165 average fee, $14.80 is paid to the Department for training and monitoring. Consequently the Department is expected to lose an additional $16,300 received from local public health departments, which means that the total fiscal effect to the Department of the change in the definition of “incidental food service” is a loss of revenue of approximately $164,300 per year.
Chapters HFS 172, 175, 178 and 195 to 198 and s. HFS 196.03 (11r) Emergency Rules
The Department issues permits for the operation of campgrounds, camps, public swimming pools, restaurants, hotels and motels, tourist rooming houses, bed and breakfast establishments and food vending machines, operators and commissaries. An annual fee (biennial for a bed and breakfast establishment) is charged for a permit. An additional fee is charged if a permit fee is paid late. There is a one-time pre-inspection fee for a new facility, which applies only to hotels, motels, tourist rooming houses, restaurants, bed and breakfast establishments and vending machine commissaries. These fees must cover the costs of regulation by the Department. Fee revenue for FY 1998-99 is projected at about $2.2 million a year without fee increases.
This order increases Department fees effective July 1, 1998, to cover increased program costs. The fee increases are expected to generate $637,557 annually in increased program revenues ($372,557 from permit fees, $240,000 from preinspection fees and $25,000 from late fees).
This order also provides for a one-time technology improvement surcharge of $15 to $25 to be paid by each permit-holder at the time the permit fee is paid for the July 1, 1998 to June 30, 1999 permit period. The one-time technology improvement surcharge is expected to generate $332,355, which will be used to update the regulatory program's computerized information and processing system.
The Department directly regulates 9469 restaurants, 2346 hotels and motels, 1663 tourist rooming houses, 384 bed and breakfast establishments, 107 food vending operations (70 operators and 37 commissaries), 909 campgrounds, 196 educational and recreational camps and 977 swimming pools. A few campgrounds, camps and swimming pools are operated by the Wisconsin Department of Natural Resources (DNR), the University System and local governments. Permit fees are increased 18% and the technology improvement surcharge is a one-time payment of $15 to $25 for each permit-holder, which means that the impacts of the revised fees and the one-time surcharge on state government and local governments are minimal.
This order in addition modifies the definition of “incidental food service” in ch. HFS 196, the rules for restaurants. That definition is modified mainly to increase the percentage of the gross annual food sales of a retail food establishment that may be derived from the sale of meals to less than 50%. This will have the effect of eliminating “double licensing” of some retail food establishments by the Department and the Department of Agriculture, Trade and Consumer Protection, because a separate restaurant permit will no longer be required. The change will also have the effect of reducing Department revenues from permit and related fees. The change, which will take effect for permits issued by the Department starting with the permit period that begins July 1, 1998, is expected to reduce fee revenue for the 1998-99 SFY by $148,000 (1000 establishments x average fee of $148).
Initial Regulatory Flexibility Analysis
Section HFS 196.03 (11r) Permanent Rule
The proposed amendment of the definition of “incidental food service” in the Department's rules for restaurants will affect approximately 2100 retail food establishments. These are establishments that are licensed by the Department of Agriculture, Trade and Consumer Protection (DATCP) or one of its agent local health departments and that have offered meals for sale to the general public within the retail food establishment, the sale of which amounts to more than 25% but less than 50% of the gross annual food sales of the store, and consequently have been required to also have a restaurant permit issued by the Department of Health and Family Services or one of its agent local health departments. The effect of the change in the definition is to no longer require a separate restaurant permit for these retail food establishments.
About one-third of the 2100 affected retail food establishments are small businesses as “small business” is defined in s. 227.114 (1) (a), Stats.
No new reporting, bookkeeping or other procedures are required for compliance with the rule change.
No new professional skills are necessary for compliance with the rule change.
Chapters HFS 172, 175, 178 and 195 to 198 and s. HFS 196.03 (11r) Emergency Rules
The requirement for an initial regulatory flexibility analysis does not apply to emergency rules (s. 227.114 (8) (a), Stats.). An initial regulatory flexibility analysis was published as a section of the hearing notice for the proposed permanent rules relating to permit fee increases and the technology improvement surcharge (see Wisconsin Administrative Register, March 31, 1998, p. 23).
Notice of Hearing
Natural Resources
(Fish, Game, etc.,
Chs. NR 1--)
Notice is hereby given that pursuant to ss. 29.085, 29.174(3), 227.11(2)(a) and 227.24(1)(a), Stats., interpreting ss. 29.085 and 29.174(2)(a), Stats., the Department of Natural Resources will hold a public hearing on Natural Resources Board Emergency Order No. FH-48-98(E) relating to sport fishing for yellow perch in Sauk creek, Ozaukee county. The emergency rule affects Lake Michigan sport fishing rules. It closes the sport fishing season for yellow perch in Sauk creek, Ozaukee county, a tributary to Lake Michigan, during June and establishes a daily bag limit of 5 for the remainder of the year.
Hearing Information
July 24, 1998 Room 709
Friday GEF #2 Bldg.
at 1:30 p.m. 101 S. Webster Street
Madison
Notice is hereby further given that pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call William Horns at (608) 266-8782 with specific information on your request at least 10 days before the date of the scheduled hearing.
Written Comments
Written comments on the emergency rule may be submitted to Mr. William Horns, Bureau of Fisheries Management and Habitat Protection, P.O. Box 7921, Madison, WI 53707 no later than July 24, 1998. Written comments will have the same weight and effect as oral statements presented at the hearing. A copy of the emergency rule [FH-48-98(E)] may be obtained from Mr. Horns.
Fiscal Estimate
These rule changes will have no fiscal impact on state or local units of governments.
Notice of Submission of Proposed Rules to the Presiding Officer of each House of the Legislature, Under S. 227.19, Stats.
Please check the Bulletin of Proceedings for further information on a particular rule.
Ch. ILHR 60 - Relating to design and construction of public buildings and places of employment used as child day care facilities.
Ch. ETF 52 - Relating to the administration of the duty disability benefit program under s. 40.65, Stats.
SS. PI 3.03 and 3.05 - Relating to environmental education requirements and an urban education license.
