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 ATCP 74 is repealed and recreated to read: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.
(12) “Registered sanitarian or RS” means an individual, who is a Wisconsin-registered sanitarian under s. 440.98, Stats., chs. DHS 174 – 177, or is recognized as a registered environmental health specialist/registered sanitarian (REHS / RS) by the National Environmental Health Association (NEHA). (13) “Restaurant” means a retail food establishment as defined in s. 97.01 (14g), Stats. (14) “Retail food establishment” has the meaning defined in s. 97.30 (1) (c), Stats. (15) “Sanitarian” means an environmental health inspector who is qualified to conduct inspections as an agent of the department by meeting one of the following requirements:
(a) RS-eligible, which means having met one of the following criteria:
1. Holding a baccalaureate or higher degree in environmental health from an accredited college or university and completing at least 30 semester or 45-quarter hour academic credits in environmental, physical, biological, chemical or environmental health courses.
2. Holding a baccalaureate or higher degree in physical or biological sciences from an accredited college or university and completing at least 30 semester or 45 quarter hour academic credits in environmental, physical, biological, chemical, or environmental health courses.
3. Holding a baccalaureate or higher degree from an accredited college or university.
4. Holding an associate degree from an accredited college, community college or technical institute in environmental, physical, biological or chemical sciences.
(b) Being an RS in training, or
(c) Holding a Wisconsin registered sanitarian or NEHA REHS/RS credential.
(16) “Standard” means a department or agent employee who is certified as correctly interpreting and enforcing chs. ATCP 72, 73, 75, 75 Appendix, 76, 78, and 79. (17) “Standardization Exercise” means an evaluation conducted by a standard to determine if a sanitarian is correctly interpreting and enforcing chs. ATCP 72, 73, 75, 75 Appendix, 76, 78, and 79. ATCP 74.02 Scope. (1) This chapter applies to agent program inspection and regulatory oversight of licensees and establishments, as defined in this chapter.
(2) An agent program shall ensure that licensees operating retail food establishments, under its jurisdiction, comply with ch. ATCP 75 Appendix. NOTE: Pursuant to s. 227.14 (1s), Stats., the department has published ch. ATCP 75 Appendix in the format of the model food code published by the United States food and drug administration. (3) An agent program shall enforce applicable provisions in ch. ATCP 70 at retail food establishments conducting food processing operations but exempt from the requirement to hold a food processing plant license, pursuant to s. ATCP 70.07 (a) (2). ATCP 74.04 Agent Status. (1) AGENT PROPOSED PROGRAM PLAN. The local health department wishing to become a new agent shall submit a written proposal to the department, in a form specified by the department, describing the proposed agent program. The proposal shall describe all of the following:
(a) Employee positions that will issue licenses or conduct investigations and inspections.
(b) A description of the staffing and budget for issuing licenses, making investigations and inspections, providing technical assistance, and enforcing applicable state statutes and rules, and local ordinances.
(c) A list of the licenses that may be issued by the agent. A local ordinance may combine and expand license categories, so long as those categories include all of the types of retail food establishments that shall be licensed under s. ATCP 75.03 and the agent contract. (d) A list of the fees to be charged by the agent to licensees under the contract. A local ordinance may establish local license fees that differ from fees charged under s. ATCP 75.03 (3), for licenses issued by the department. However, license fees must be based on the agent’s reasonable program costs, pursuant to sub. (4) (c) and s. 97.41 (4), Stats. (e) A description of the inspection and enforcement program to be implemented by the agent, with a copy of any applicable city or county ordinance or regulation.
(f) Procedures to ensure cooperation between the agent and appropriate federal, state, local, and tribal agencies, in the event of a natural disaster or other emergency.
(g) Procedures for investigating complaints concerning licensees under the contract and unlicensed activity that may require licensing and inspection.
(h) Procedures for notifying the department when the agent receives information or a complaint concerning an establishment that may need to be licensed or inspected, within the agent’s geographical area but under the department’s jurisdiction.
(i) Procedures for investigating reports of suspected foodborne illness, including cooperation with the department.
(j) Procedures to ensure the time period, within which the agent will make a determination on an application for a license, does not exceed 30 days following receipt of a complete application.
(k) Any other information that the department requires for its review of agent’s program plan.
(2) DEPARTMENT ACTION ON PROPOSED PLAN. The department shall review the proposed agent program plan and accept or deny the application, under sub. (1), within 60 days after the department receives it.
ATCP 74.06 Terms of the Contract. (1) If the department accepts the proposal from the local health department, the department shall prepare a contract to be signed by both parties. Signing the contract indicates the agent’s agreement to comply with this chapter and chs. ATCP 72, 73, 75, 75 Appendix, 76, 78, and 79, and that all the conditions in the accepted application have been met, including adoption of ordinances that adopt the department’s rules by reference, or are at least as stringent and do not conflict with the department’s rules. (2) The contract shall be in effect for three fiscal years unless otherwise specified, and shall remain in effect unless specifically terminated, revoked, or suspended, as provided in the contract. The department shall issue contracts, for future contract periods, to the agent by January 1 of the last year of the current contract. The agent shall commit to continue as the department’s agent for the future contract period, by signing and returning the contract by March 1 of the last year of the current contract.
(3) Either party may be terminate the contract by providing written notice of termination to the other party at least 90 days before the termination is to take effect.
(4) When the contract is signed by both parties, the local health department shall assume authority and the responsibility to enforce the provisions of s. 97.30, 97.625, and 97.71, Stats., and chs. ATCP 72, 73, 74, 75, 75 Appendix, 76, 78, and 79. The agent program shall also issue licenses and perform all inspections necessary to enforce these statutes and rules. (5) Upon execution of the contract, the department shall discontinue all licensing and enforcement activities, pursuant to s. 97.30, and 97.65, Stats., in the agent’s jurisdiction for the period of time the contract is in effect, except as provided in s. ATCP 75.09 (2). (6) Notwithstanding subs. (4) and (5), the department may act under s. 97.615 (h), Stats., to take either appropriate inspection or enforcement action, or both, if the department has determined that the agent program has not acted expeditiously or appropriately to take such action. ATCP 74.08 Staffing. (1) The agent program shall employ enough people to implement the program according to the terms of the agent program’s contract with the department.
(2) The agent program shall employ at least one registered sanitarian to conduct inspections and supervise any inspectors who are not registered sanitarians. After July 1, 2017, the agent shall only hire inspectors who are sanitarians or shall become registered sanitarians within five (5) years. After July 1, 2017, existing staff who conduct inspections, and are not eligible to become sanitarians within five (5) years, shall be under the supervision of a registered sanitarian and shall be deemed competent to perform inspections by passing standardization exercises.
(3) If the agent loses its only registered sanitarian, the agent shall hire a registered sanitarian replacement within 120 days; or upon the agent's written request, the department may allow the agent additional time to hire a qualified replacement. A replacement who is not a registered sanitarian may be hired, if approved by the department, and if the agent has a signed agreement with another agent for a registered sanitarian to provide supervisory oversight. The replacement hire shall become a registered sanitarian within six months of being hired. A copy of the oversight contract shall be provided to the department and shall include the amount of time allotted for oversight activities and what specific duties the supervising registered sanitarian will provide.
(4) The agent shall designate sanitarians or registered sanitarians, as required by the department, to undergo the standardization exercise evaluating enforcement of ATCP 75 and its Appendix. After successfully completing the exercises, the staff person shall be designated as the agent standard.
(5) The agent standard shall perform department-required exercises with the department to maintain their status as the agent standard.
(6) The agent standard shall perform standardization and maintenance exercises with other environmental health inspection personnel in their jurisdiction, using procedures specified by the department.
(7) The agent is required to send at least one sanitarian or registered sanitarian to attend training provided by the department.
(8) An employee of the agent shall participate on department rule making and policy advisory committees when requested.
(9) The agent shall not permit an employee to conduct an inspection in a situation in which the employee, a member of his or her family, or an organization, with which the employee is associated, has a financial interest or where the employee’s relationship, with any person at the inspected facility, could cause the employee not to be able to conduct an objective, unbiased inspection.
(10) The agent program is solely responsible for all employment-related issues, involving the persons it employs in the program, and for the actions or omissions of the agent program’s employees, except as otherwise provided by law.
(11) Upon the agent’s request, the department will provide technical assistance and training to staff.
ATCP 74.10 Inspections. (1) Agent program sanitarians shall inspect all establishments covered in the agent contract for compliance with Wis. Stat. § 97.30 and Subchs. III and IV of ch. 97, Wis. Admin. Code chs. ATCP 72, 73, 75 and Appendix, 76, 78 and 79. (2) The agent program shall follow standard inspection methods and procedures prescribed by the department.
(3) Each fiscal year the agent shall conduct one routine inspection of each license holder’s establishments, under its jurisdiction, except for vending machines. The agent may propose a different inspection frequency to the department which may only be implemented if approved by the department, in writing.
(4) The agent program shall collect food and water samples as necessary or as requested by the department.
(5) Before issuing a new license, the agent program inspector shall perform a pre-licensing inspection of the license applicant’s establishment for compliance with all applicable ordinances, rules, and statutes. The pre-licensing inspection shall be conducted before the operator is issued a license and conducts business.
(6) The department may conduct inspections in an establishment in an agent program’s jurisdiction:
(a) For training or standardization of department staff or for staff of an agent program.
(b) In response to an emergency.
(c) For monitoring and evaluating the agent program’s licensing, inspection, and enforcement program.
(d) At the request of the agent program.
(7) Whenever possible, the department shall notify the agent program of the department’s intent to inspect an establishment in the agent program’s jurisdiction.
ATCP 74.12 Complaint Investigations. (1) Except as provided in s. ATCP 75.02, an agent program shall investigate every complaint that it receives against any licensee under its jurisdiction. The agent shall prioritize and investigate complaints according to the procedures in this section and procedures adopted by the agent program under the contract with the department. The complaints shall be addressed in order of priority as follows:
