DATCP Docket No. 15-R-19  
Proposed Hearing Draft
Rules Clearinghouse No. ___
November 30, 2016
The Wisconsin department of agriculture, trade and consumer protection hereby proposes the following rule to repeal and recreate ATCP 74 relating to agent status for local health departments to license, investigate, and inspect retail food, vending, lodging, and recreational establishments and ensure public health.
Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
This rule repeals and recreates chapter ATCP 74 (Retail Food Establishments; Local Government Regulation) as “Local Agents and Regulation.”
Statutes Interpreted
Statutes Interpreted: ss. 97.41, Stats., “Retail food: agent status for local health departments,” 97.615, Stats., “Agent status for local health departments,” and 97.625, Stats., “Powers of the department and local health departments.”
Statutory Authority
Statutory Authority: ss. 93.07 (1), 97.41 (2) and (5), and 97.615 (2) (b) and (e), Stats.
Explanation of Statutory Authority
The Department of Agriculture, Trade and Consumer Protection (“department”) has broad general authority, under s. 93.07 (1), Stats., to adopt rules to implement programs under its jurisdiction. The department has specific authority, under ss. 97.41 (2) and (5) and 97.615 (2) (b) and (e), Stats., to promulgate rules to establish standards and fees for local health departments granted agent status to license, investigate, and inspect the operations of retail food, lodging, and recreational establishments within a designated jurisdiction.
Related Statutes and Rules
Wisconsin’s retail food establishments, vending, lodging, and recreational establishments (including pools and water attractions, recreational and educational camps, and campgrounds) are governed by ch. 97, Stats. Section 97.30, Stats., “Retail food establishments,” contains requirements related to retail food establishment, including restaurants, for licensing, fees, and inspection. Subchapter III, ch. 97, Stats., “LODGING AND VENDING MACHINES,” contains requirements related to these establishments for licensing, fees, and inspection. Finally, Subchapter IV, ch. 97, Stats., “RECREATIONAL SANITATION,” contains requirements, related to recreational establishments, for licensing, fees, and inspection.
Plain Language Analysis
On July 1, 2016, ch. DHS 192 and the section of ch. ATCP 75, dealing with agent programs, were combined into a new ch. ATCP 74, dealing with the relationship of the department’s new Division of Food and Recreational Safety (DFRS) and its agent programs. Under the authority of an approved DHS scope statement, the new DFRS is now revising ch. ATCP 74.
The new rule standardizes language from ATCP 75 and DHS 192. It also standardizes, expands, and clarifies definitions of agent program terms. In doing so, it clarifies department expectations for persons hired by agent programs to hold, or be eligible to work toward holding, the Registered Sanitarian (RS) certification.  The RS certification is the preferable credential to be held by agent-program sanitarians doing food inspections and the revised rule clarifies the department’s expectations regarding inspection done by those sanitarians who have not yet earned the RS certification, as well as the staffing procedures to be followed by agent programs if certified RS staff leave the program.
The revised ATCP 74 also clarifies the department’s expectations for agent-program inspection systems and databases, and spells out the terms to be covered by forthcoming department-agent contracts. It adds a mandatory expiration date, after which the contract may be renewed. The rule clarifies the expectations of the department for agent programs seeking to enter into a contractual relationship and the procedures to enter into that agreement, and it clarifies the procedures for either or both entities to end the contractual relationship.  The rule also updates and clarifies the roles that both the department and the agent program shall play under the contractual relationship and the types of support, levels of training, and information that are to be shared by each of the partners in the contractual relationship.
This new rule clarifies the responsibilities of the agent programs to enforce the Wisconsin Food Code, to inform the department of their enforcement activities, and do such sampling as is required by the department. It also clarifies the financial responsibilities of the agent programs for that sampling. In addition, the new rule clarifies the responsibilities of the department to provide general and specialized training, and laboratory support for the agent programs.
ATCP 74 further clarifies statutory requirements, including reimbursements owed to the department, the payments for services the agent program may be required to make to the department, and the types of financial records that the agent program shall make available to the department upon request. In particular, it spells out the responsibility of agent programs to demonstrate that the fees charged by the local program are reasonable and used only for maintaining the local program. 
Federal and Surrounding State Programs
Federal Programs – The Federal Food and Drug Administration (“FDA”) lacks jurisdiction over retail food establishments. The department uses the FDA’s model Food Code as the basis for its Wisconsin Food Code (ATCP 75 Appendix) that spells out retail food establishment requirements, so the department expects its agent programs to enforce the same standards in the Wisconsin Food Code.
Surrounding State Programs – This chapter is specifically intended to clarify the relationship between the department’s DFRS and the local health departments that wish to act as agents of DFRS. The practices of surrounding states have little bearing on this relationship or the contract between a local health department and DFRS.
Minnesota currently has only seven local health department agent programs that perform retail food establishment inspections under the oversight of the Minnesota Department of Agriculture (MDA). All other food-related inspections are completed under the oversight of the Minnesota Department of Health (MDH). The agent programs have their own fee structure and issue their own licenses. The MDA has taken parts of the 2005 FDA model Food Code and incorporated them into their administrative rules. They require a Registered Environmental Health Sanitarian (REHS) certification for inspection staff or a degree-equivalent in order to perform food inspections. They also require new hires without the REHS to earn that credential within two years and to operate under the supervision of a credentialed inspector until they earn the credential. The MDH has similar requirements.
Iowa also has agent-program food inspectors regulating retail food establishments. The agent programs perform only retail food inspections, follow Iowa’s state rules, and must use Iowa’s inspection program. They must also use Iowa’s fee structure for licenses. An RS or REHS certification or supervision by a certified person for food inspections is not required, but Iowa is working toward meeting Standard 2 (Trained Regulatory Staff) in the FDA’s National Voluntary Program Standards. Iowa’s policies and program expectations may change as the Iowa program meets FDA’s retail food inspection regulatory standards.
Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.