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.
Michigan allows local jurisdictions to perform only restaurant inspection. All other retail food establishment inspection is done by the state. Michigan does not require restaurant inspectors to hold an RS or an REHS credential, but does have state accreditation standards that are roughly similar, and require twenty Continuing Education Units (CEUs) of on-going education per year as well as the successful completion of an audit. The agent programs are allowed to issue licenses and set fees.
Illinois does not perform any retail food inspection on a state level. Local programs perform all the retail and restaurant inspection. They do not issue licenses locally, but are funded by a state grant, the Local Health Program Grant. The state requires a Licensed Health Professional certification, which is Illinois’ version of Wisconsin’s RS or the national REHS. This certification requires five CEUs per year. The state evaluates the local programs at the same rate Wisconsin does, and their program depends on passing an evaluation.
Data and Analytical Methodologies
This rule was developed using chs. DHS 192 and ATCP 75 and the department’s new contract with agent programs. Enquiries were also made to surrounding states in an effort to ascertain their requirements and practices for similar programs. Effect on Small Business
This rule change is anticipated to have no impact on small business, as local agents were already handling licensing, investigations, and inspection for many of these businesses, when the programs were in two agencies, this department and the Department of Health Services.
DATCP Contact
Questions and comments (including hearing comments) related to this rule may be directed to:
Peter Haase, Director
Bureau of Food and Recreational Businesses
Division of Food and Recreational Safety
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone: (608) 224-4711
Rule comments will be accepted up to two weeks after the last public hearing is held on this rule. Hearing dates will be scheduled after this rule is approved by the Board of Agriculture, Trade and Consumer Protection.
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Section 1. ATCP 74 is repealed and recreated to read:
LOCAL AGENTS AND REGULATION
ATCP 74.01 Definitions.
ATCP 74.02 Scope.
ATCP 74.04 Agent status.
ATCP 74.06 Terms of the contract.
ATCP 74.08 Staffing.
ATCP 74.10 Inspections.
ATCP 74.12 Complaint investigations.
ATCP 74.14 Evaluation and training.
ATCP 74.16 Enforcement and sampling.
ATCP 74.18 Reimbursements and other payments for services.
ATCP 74.20 Reports and records.
ATCP 74.22 Licensing and standards.
ATCP 74.24 License denial, suspension or revocation.
ATCP 74.26 Contract denial, termination, revocation or suspension.
Note: Chapter ATCP 74 was created from applicable portions of ch. ATCP 75 and ch. DHS 192, to facilitate the oversight of agent programs, formerly under the Department of Health Services, by the Department of Agriculture, Trade and Consumer Protection. ATCP 74.01 Definitions. As used in this chapter:
(1) “Agent” means a local health department of a village, city, county, or portions of counties, or consortium of counties that has entered into a contract with the department and is authorized under the terms of that contract to administer a retail food establishment, lodging and recreational safety program, under s. 97.41 and 97.615 (2) (b), Stats., in the health department’s area of jurisdiction. (2) “Agent program” means the retail food establishment, lodging, and recreational safety regulatory program operated by an agent.
(3) “Department” means the Wisconsin department of agriculture, trade, and consumer protection.
(4) “Contract” means a signed, written agreement between a local health department seeking agent status and the department setting forth the obligations of each party in the operation of an agent program.
(5) “Establishment” means a retail food establishment under s. 97.30, Stats., a hotel or motel, tourist rooming house, bed and breakfast establishment, food vending operation, camping resort or other campground, recreational camp, educational camp, public pool, or water attraction under s. 97.615 (2), Stats. (6) “Fiscal Year” means the July 1 of one year through June 30 of the next year.
(7) “Food” has the meaning defined in s. 97.01 (6), Stats. (8) “Inspection fee” means a fee charged by the agent program, the amount of which is reasonably related to the cost of performing an assessment of an establishment’s compliance with the statutes and rules, under which a license is granted.
(9) “Inspector” means any employee inspecting retail food establishments or other facilities for the department or the agent under the jurisdiction of an agent program.
(10) “Licensee” means the person or entity licensed to operate an establishment.
(11) “New agent” means an agent that has entered into its first contract with the department or an agent that has applied to re-enter into a contract with the department after termination of a previous contract.
