DATCP Docket No. 15-R-19           Final Rule
Rules Clearinghouse No. 16-082             January 23, 2018
The Wisconsin department of agriculture, trade and consumer protection hereby adopts 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 Wis. Admin. Code Ch. ATCP 74 (Retail Food Establishments; Local Government Regulation) as Local Agents and Regulation.”
Statutes Interpreted
Statutes Interpreted: Wis. Stat. § 97.41, “Retail food: agent status for local health departments, Wis. Stat. § 97.615, “Agent status for local health departments,” and Wis. Stat. § 97.625, Powers of the department and local health departments.
Statutory Authority
Statutory Authority: Wis. Stat. §§ 93.07 (1), 97.41 (2) and (5), and 97.615 (2) (b) and (e).
Explanation of Statutory Authority
The Department has specific authority, under Wis. Stat. §§ 97.41 (2) and (5) and 97.615 (2) (b) and (e), 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. The Department of Agriculture, Trade and Consumer Protection (“Department”) has broad general authority, under Wis. Stat. § 93.07 (1), to adopt rules to implement programs under its 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), as governed by Wis. Stat. § Ch. 97, Section 97.30, Retail food establishments, contains requirements related to retail food establishments (including restaurants) for licensing, fees, and inspection. Subchapter III, Wis. Stat. § Ch. 97, LODGING AND VENDING MACHINES, contains requirements related to these establishments for licensing, fees, and inspection. Finally, Subchapter IV, Wis. Stat. § Ch. 97, RECREATIONAL SANITATION, contains recreational establishment requirements for licensing, fees, and inspection.
Plain Language Analysis
On July 1, 2016, Wis. Admin. Code Ch. DHS 192 and the section of Wis. Admin. Code Ch. ATCP 75 related to agent programs were combined to create a new Wis. Admin. Code Ch. ATCP 74, dealing with the relationship of the Department’s new Division of Food and Recreational Safety (DFRS) and its local health department agent programs. Under the authority of an approved DHS scope statement, the new DFRS has now revised Wis. Admin. Code Ch. ATCP 74.
The new rule standardizes language from Wis. Admin. Code Ch. ATCP 75 and Wis. Admin. Code Ch. DHS 192. It also standardizes, expands, and clarifies definitions of agent program terms. In doing so, it clarifies Department expectations for persons hired by an agent program 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 inspections done by those sanitarians who have not yet earned the RS certification, as well as the staffing procedures to be followed by an agent program, if certified RS staff leave the program.
The revised Wis. Admin. Code Ch. 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 Department’s expectations for an agent program 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 an agent program to enforce the Wisconsin Food Code, to inform the Department of its enforcement activities, and do such sampling as is required by the Department. It also clarifies the financial responsibilities of the agent program for that sampling. In addition, the new rule clarifies the responsibilities of the Department to provide general and specialized training, as well as laboratory support for the agent programs.
Wis. Admin. Code Ch. 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 the agent program to demonstrate that the fees charged by the local program are reasonable and used only for maintaining the local program. 
Summary of, and Comparison with Existing or Proposed Federal Statutes and Regulations
The Federal Food and Drug Administration (“FDA”) does not have 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. The Department expects its agent local health department programs to enforce the same standards in the Wisconsin Food Code.
Comparison with Rules in Adjacent States
This rule clarifies the unique relationship between the department and any local health department in Wisconsin that requests to act as an agent of the Department. Local jurisdictions in each state provide state-specific and unique levels of service, so comparison of rules adopted in surrounding states with Wisconsin’s rules, related to local health department agents, is of limited benefit.
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 requires 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.
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.