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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 ATCP 74 is repealed and recreated to read: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 termination, revocation, refusal to renew, 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 as defined in s. 250.01 (4), Stats., 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 regulatory program, pursuant to s. 97.41 and 97.615 (2), 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) “Contract” means a signed, written agreement between a local health department and the department setting forth the obligations of each party in the operation of an agent program.
(4) “Department” means the Wisconsin department of agriculture, trade, and consumer protection.
(5) “Establishment” means a retail food establishment, hotel or motel, tourist rooming house, bed and breakfast establishment, vending machine, vending machine commissary, camping resort or other campground, recreational camp, educational camp, public pool, or water attraction licensed pursuant to ch. 97, Stats. (6) “Fiscal year” means July 1 of one year through June 30 of the next year.
(7) “Food” has the meaning given 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 establishments for the department or the agent under the jurisdiction of an agent program.
(10) “License” means the legal authority granted by the department or its agent to operate an establishment.
(11) “Licensee” means the person or entity licensed to operate an establishment as defined in sub. (5).
(12) “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.
(13) “Registered environmental health specialist/registered sanitarian” or “REHS/RS” means a person who holds a REHS/RS credential awarded by the National Environmental Health Association.
(14) “Registered sanitarian” or “RS” means an individual who is a Wisconsin-registered sanitarian, pursuant to s. 440.98, Stats., and chs. DHS 174 – 177, or is recognized as a registered environmental health specialist/registered sanitarian. (15) “Restaurant” means a retail food establishment as defined in s. 97.01 (14g), Stats. (16) “Retail food establishment” has the meaning defined in s. 97.30 (1) (c), Stats. (17) “Sanitarian” means a person who is qualified to conduct inspections as an agent of the department and meets the requirements under s. ATCP 74.08 (2). (18) “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. (19) “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 70.03 (7) (a), Wis. Adm. Code. ATCP 74.04 Agent status. (1) Agent proposed program plan. To become a new agent, a local health department shall submit a written proposed program plan to the department, in a form specified by the department, describing the proposed agent program. The proposed program plan shall describe all of the following:
(a) Employee positions that will issue licenses or conduct investigations and inspections.
(b) Staffing and budget plans 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 establishments that shall be licensed under the agent contract.
(d) A list of the fees to be charged by the agent to licensees. A local ordinance may establish local license fees that differ from fees charged under chs. ATCP 72, 73, 75, 75 Appendix, 76, 78, and 79 for licenses issued by the department. All license fees shall be based on the agent’s reasonable program costs, pursuant to s. 97.41 (4), Stats. (e) A description of the inspection and enforcement program to be implemented by the agent including a copy of applicable village, city, or county ordinances or regulations.
(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 may reasonably require for its review of the agent’s program plan.
(2) Local health department outreach to affected license holders. The local health department shall provide opportunities for affected licensees to review the proposed program plan and provide comments and feedback to the local health agency and the department.
(3) Department action on proposed plan. The department shall review the proposed program plan and accept or deny the application, pursuant to sub. (1), within 60 days after the department receives it.
ATCP 74.06 Terms of the contract. (1) If the department accepts the proposed program plan from the local health department, the department shall prepare a contract to be signed by both parties, whereby the agent agrees to comply with this chapter and chs. ATCP 72, 73, 75, 75 Appendix, 76, 78, and 79 and has met all the conditions in the accepted program plan, including enactment of local 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 during the three fiscal years 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 fiscal 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 fiscal year of the current contract.
(3) Either party may 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 ss. 97.30, 97.617, and 97.67, Stats., and chs. ATCP 72, 73, 74, 75, 75 Appendix, 76, 78, and 79. The agent program shall 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 in the agent’s jurisdiction, for the period of time the contract is in effect, pursuant to ss. 97.30 and 97.65, Stats. (6) Notwithstanding subs. (4) and (5), the department may act, pursuant to ss. 97.41 (8) and 97.615 (2) (h), Stats., to take 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. (7) Whenever feasible, the department shall provide notice to an agent program at least one fiscal year before making any changes to department policies and procedures not specified in the contract that would adversely affect the budget of an agent program.
ATCP 74.08 Staffing. (1) The agent program shall have sufficient employees to implement the program according to the terms of the agent program’s contract with the department.
(2) Sanitarians employed by agent programs shall meet one of the following requirements:
(a) Is 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) Is an RS in training.
(c) Holds a valid Wisconsin registered sanitarian or REHS/RS credential.
(3) The agent program shall employ at least one registered sanitarian to conduct inspections and supervise any inspectors or sanitarians who are not registered sanitarians. The agent shall only hire sanitarians who are registered sanitarians or will become registered sanitarians within 5 years after the date of hire. Inspectors or sanitarians who were employed by the agent program prior to July 1, 2018, and are not eligible to become registered sanitarians within 5 years, shall perform inspections under the supervision of a registered sanitarian and shall be deemed competent to perform inspections by passing standardization exercises.
(4) If an 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, if the agent has a signed agreement with another agent for a registered sanitarian to provide supervisory oversight and the replacement hire shall become a registered sanitarian within six months of being hired. A copy of the supervisory 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.
(5) The agent shall designate a sanitarian or registered sanitarian, 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.
(6) The agent standard shall perform department-required exercises with the department to maintain his or her status as the agent standard.
(7) The agent standard shall perform standardization and maintenance exercises with other sanitarians in their jurisdiction, using procedures specified by the department.
(8) The agent is required to send at least one sanitarian or registered sanitarian to attend training provided by the department.
(9) An employee of the agent shall participate on department rulemaking and policy advisory committees when requested.
(10) The agent may 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 or 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.
(11) 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.
(12) Upon the agent’s request, the department shall provide technical assistance and training to staff.
(13) The agent shall report to the department in writing any change in the assignment of a supervisor of sanitarians and any change in the organization of the staff including authority line changes within 10 days after the date on which it takes place. For those agents employing one or two sanitarians, the agent shall also report any change in assignment of inspection staff who are providing services under the contract.
ATCP 74.10 Inspections. (1) Agent program sanitarians shall inspect all establishments covered in the contract for compliance with s. 97.30, Stats., subchs. III and IV of ch. 97, Stats., and chs. ATCP 72, 73, 75 and Appendix, 76, 78 and 79, Wis. Adm. Code. (2) The agent program shall follow standard inspection methods and procedures prescribed by the department.
