Chapter ATCP 74

ATCP 74.08(2)(c) (c) Holds a valid Wisconsin registered sanitarian or REHS/RS credential.

ATCP 74.08(3) (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 five 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 five years, shall perform inspections under the supervision of a registered sanitarian and shall be deemed competent to perform inspections by passing standardization exercises.

ATCP 74.08(4) (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.

ATCP 74.08(5) (5) The agent shall designate a sanitarian or registered sanitarian, as required by the department, to undergo the standardization exercise evaluating enforcement of ch. ATCP 75 and ch. ATCP 75 Appendix. After successfully completing the exercises, the staff person shall be designated as the agent standard.

ATCP 74.08(6) (6) The agent standard shall perform department-required exercises with the department to maintain his or her status as the agent standard.

ATCP 74.08(7) (7) The agent standard shall perform standardization and maintenance exercises with other sanitarians in their jurisdiction, using procedures specified by the department.

ATCP 74.08(8) (8) The agent is required to send at least one sanitarian or registered sanitarian to attend training provided by the department.

ATCP 74.08(9) (9) An employee of the agent shall participate on department rulemaking and policy advisory committees when requested.

ATCP 74.08(10) (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.

ATCP 74.08(11) (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.

ATCP 74.08(12) (12) Upon the agent’s request, the department shall provide technical assistance and training to staff.

ATCP 74.08(13) (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 74.08 History History: CR 16-082: cr. Register February 2018 No. 746, eff. 5-27-18; correction in (3), (5) made under s. 35.17, Stats., Register February 2018 No. 746.

ATCP 74.10 ATCP 74.10 Inspections.

ATCP 74.10(1) (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, 76, 78, and 79 and ch. ATCP 75 Appendix.

ATCP 74.10(2) (2) The agent program shall follow standard inspection methods and procedures prescribed by the department.

ATCP 74.10(3) (3) Each fiscal year the agent shall conduct one routine inspection of each licensed establishment under its jurisdiction, except for vending machines and temporary retail food establishments. The agent may propose a different inspection frequency to the department which may only be implemented if approved by the department in writing.

ATCP 74.10(4) (4) The agent program shall collect food and water samples as necessary or as requested by the department.

ATCP 74.10(5) (5) The agent program shall perform a pre-licensing inspection of a license applicant’s establishment for compliance with all applicable ordinances, rules, and statutes. The pre-licensing inspection shall be conducted before the applicant is issued a license and conducts business.

ATCP 74.10(6) (6) The department may conduct inspections at an establishment in an agent program’s jurisdiction for all of the following purposes:

ATCP 74.10(6)(a) (a) Training or standardization of department staff or agent program staff.

ATCP 74.10(6)(b) (b) In response to an emergency.

ATCP 74.10(6)(c) (c) For monitoring and evaluating the agent program’s licensing, inspection, and enforcement program.

ATCP 74.10(6)(d) (d) At the request of the agent program.

ATCP 74.10(7) (7) Whenever feasible, the department shall notify the agent program of the department’s intent to inspect an establishment in the agent program’s jurisdiction.

ATCP 74.10 History History: CR 16-082: cr. Register February 2018 No. 746, eff. 5-27-18; correction in (1) made under s. 35.17, Stats., Register February 2018 No. 746.

ATCP 74.12 ATCP 74.12 Complaint investigations.

ATCP 74.12(1) (1) 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 decreasing order of priority as follows:

ATCP 74.12(1)(a) (a) An allegation indicating a serious or imminent public health hazard is associated with a licensee or establishment under the agent program’s jurisdiction.

ATCP 74.12(1)(b) (b) An allegation indicating a potential public health problem, that is neither a serious or imminent public health hazard, is associated with a licensee or establishment under the agent program’s jurisdiction.

ATCP 74.12(1)(c) (c) An allegation of a violation, not indicating a public health hazard, associated with a licensee or establishment under the agent program’s jurisdiction.

ATCP 74.12(2) (2) Agent programs shall notify and consult with the department and other affected agencies having jurisdiction, as necessary, about complaints or foodborne or waterborne illnesses that may be of significant concern to those agencies. An agent program shall coordinate complaint investigations, as necessary, with other agencies having jurisdiction.

ATCP 74.12 History History: CR 16-082: cr. Register February 2018 No. 746, eff. 5-27-18.

ATCP 74.14 ATCP 74.14 Evaluation and training.

ATCP 74.14(1) (1) At least once each year, the agent program shall submit a self-assessment in a format determined by the department. The department shall evaluate the agent program based on the following required information in the self-assessment:

ATCP 74.14(1)(a) (a) The agent program’s compliance with the contract terms.

ATCP 74.14(1)(b) (b) The agent program’s progress in meeting program standards adopted by the department.

ATCP 74.14(1)(c) (c) The agent program’s records and reports required pursuant to s. ATCP 74.20.

ATCP 74.14(2) (2) At least once every three years, the department shall conduct an on-site evaluation of the agent’s program.

ATCP 74.14(3) (3) The department shall provide the agent program with the department’s written findings based on the review of the self-assessment or an on-site evaluation. The department may, as deemed necessary, increase the evaluation frequency.

ATCP 74.14(4) (4) The agent shall submit to the department any required corrective action plan detailing how the agent will meet contract requirements.

ATCP 74.14(5) (5) The department shall review the corrective action plan and may make additional comments or approve the corrective action plan if deemed acceptable.

ATCP 74.14(6) (6) If the agent fails to meet the conditions specified in the corrective action plan, the department shall:

ATCP 74.14(6)(a) (a) Notify the agent, in writing, of the deficiencies in meeting the corrective action plan and place the contract in a conditional status with a deadline for the agent to meet the corrective action plan conditions.

ATCP 74.14(6)(b) (b) Remove conditional status of the contract if deficiencies are corrected within the conditional time period.

ATCP 74.14(6)(c) (c) Notify the agent of its intent to terminate the contract and revoke agent status, as provided pursuant to s. ATCP 74.26, if deficiencies remain uncorrected after a conditional deadline has passed.

ATCP 74.14(7) (7) Notwithstanding these provisions, the department may exercise its right to immediately suspend a contract, pursuant to s. ATCP 74.26 (3), to protect public health or safety.

ATCP 74.14 History History: CR 16-082: cr. Register February 2018 No. 746, eff. 5-27-18; correction in (6) (c) made under s. 35.17, Stats., Register February 2018 No. 746.

ATCP 74.16 ATCP 74.16 Enforcement and sampling.

ATCP 74.16(1) (1) The agent program shall take necessary actions to enforce the provisions of s. 97.30, Stats., and subchs. III and IV of ch. 97, Stats., and related administrative rules in chs. ATCP 70, 72, 73, 75, 76, 78, and 79 and ch. ATCP 75 Appendix, and any local ordinances or regulations, adopted pursuant to ss. 97.41 (7) and 97.615 (2) (g), Stats., for establishments over which the agent program has been delegated authority under the contract between the department and the agent program.

ATCP 74.16(2) (2) Enforcement actions may include license revocation; license suspension; fines or civil forfeitures; orders to close; temporary or final hold orders on equipment, food, processes, or establishments; and the placement of conditions on licenses.

ATCP 74.16(3) (3) The agent program shall maintain a written enforcement policy that is distributed to its inspection staff and shall make it available to the department during evaluations, whenever it is substantively changed, or upon request.

ATCP 74.16(4) (4) The agent program shall notify the department, in writing within 10 days, after taking any enforcement action against an establishment involving license suspension, license revocation, or court or administrative actions.

ATCP 74.16(5) (5) The agent program shall be responsible for costs incurred in enforcement actions taken in the agent program’s jurisdiction.

ATCP 74.16(6) (6) The agent program shall take samples requested by the department.

ATCP 74.16(7) (7) The agent program may conduct any requested sample analyses in a laboratory certified by the department, pursuant to ch. ATCP 77 for those analyses. All costs associated with collecting and testing these samples shall be assumed by the agent program.

ATCP 74.16(8) (8) The agent program shall share laboratory results with the department.

ATCP 74.16(9) (9) Agent programs that do not have the laboratory capability to perform required analyses, or choose not to perform those analyses, shall submit samples to the department’s bureau of laboratory services for analysis. The agent program shall assume the cost of collecting samples and shipping them to the department’s laboratory. The department shall assume the cost of the laboratory analysis of those samples.

ATCP 74.16(10) (10) If the department has notified an agent program of deficiencies by any licensee, in complying with the enforcement provisions of this chapter or any other rules or statutes applicable under the contract, and that agent program does not act expeditiously or take effective action with the licensee, the department may act, pursuant to ss. 97.12, and 97.65, Stats., to enforce compliance with this chapter.

ATCP 74.16(11) (11) The agent, if requested by the department, shall conduct effectiveness checks after product recalls or other situations in which a license holder is required to remove food from sale or service.

ATCP 74.16 History History: CR 16-082: cr. Register February 2018 No. 746, eff. 5-27-18; correction in (1) made under s. 35.17, Stats., Register February 2018 No. 746.

ATCP 74.18 ATCP 74.18 Reimbursement and other payments for services.

ATCP 74.18(1) (1) Department reimbursement to agents.

ATCP 74.18(1)(a) (a) By September 30 of each fiscal year, the department shall reimburse agent programs for inspecting vending machines during the previous fiscal year under terms and conditions specified in the contract. The department shall, upon written request, provide any agent with information on how to request reimbursement.

ATCP 74.18(1)(am) (am) Fee reimbursements for the inspection of vending machines that have moved from one agent program’s jurisdiction to another shall be credited to the agent program making the first inspection during the fiscal year.

ATCP 74.18(1)(b) (b) The reimbursement rate may not exceed 20% of the state license fees the department sets by administrative rule for the types of establishments that the agent issues licenses. The calculation of the state fees is based on state license fees only, not pre-inspection and reinspection fees. The current reimbursement rate is set within these limits by the contract.

ATCP 74.18(2) (2) Agent reimbursement to the department.

ATCP 74.18(2)(a) (a) By September 30 of each fiscal year, agent programs shall reimburse the department for each license issued by the agent program during the preceding fiscal year as a fee for agent training, support, and oversight costs under terms and conditions specified in the contract. The reimbursement rate may not exceed 20% of the state license fees the department sets by administrative rule for the types of establishments that the agent issues licenses. The department shall provide at least one fiscal year notice before an increase in reimbursement occurs.

ATCP 74.18(2)(am) (am) Retail food and recreational establishment license fee reimbursement shall be:

ATCP 74.18(2)(am)1. 1. A fee equal to 10% of the applicable state license fee, regardless of the license fee actually charged by the local agent, if the local agent prepares and submits to the department, by September 30 of that year, an annual self-assessment as required by ss. 97.41 and 97.615, Stats.

ATCP 74.18(2)(am)2. 2. A fee equal to 20% of the applicable state license, regardless of the license fee actually charged by the local agent, if the local agent fails to submit the annual self-assessment in par. (am) to the department by September 30 of that year. A fee payment under this paragraph does not exempt the agent from the duty to prepare and submit an annual self-assessment.

ATCP 74.18(3) (3) additional department costs. If an agent program has contracted with the department, pursuant to s. 97.41, Stats., and s. ATCP 74.06, for the department to collect fees and issue licenses, the agent program shall pay the department for the actual cost of providing these services.

ATCP 74.18 History History: CR 16-082: cr. Register February 2018 No. 746, eff. 5-27-18; correction in numbering in (1), (2) made under s. 13.92 (4) (b) 1., Stats., and correction in (2) (am) 2. made under s. 13.92 (4) (b) 7., Stats., Register February 2018 No. 746.

ATCP 74.20 ATCP 74.20 Reports and records.

ATCP 74.20(1) (1) An agent program shall retain complete and accurate records including, but not limited to, copies of all reports and inspections, follow-up inspections, sampling, and all orders, for a minimum of three years after completion, and longer if required by applicable statutes, rules, or local ordinances. The records shall include accurate records of all licenses and license holders, license fee revenues, inspection charges, complaints, complaint investigations, and all program costs.

ATCP 74.20(2) (2) The agent program shall accurately and completely document the cost of the agent’s program that is administered under the contract with the department. The cost may include direct costs for licensing, inspection, complaint handling and investigation, enforcement, information management, reporting, and any other activities carried out within the limits of the contract with the department. The costs may also include documented indirect costs normally associated with the program. These costs may include staff, equipment, facilities, contract service, and other documented costs allocated to the program.

ATCP 74.20(3) (3) The agent program shall provide upon the department’s written request all information necessary to monitor the agent program’s detailed costs and revenues as specified in s. ATCP 74.20 (2), agent program performance and activities, and the status of regulated facilities.

ATCP 74.20(4) (4) The agent program shall submit to the department by the 10th of each month the following specific information:

ATCP 74.20(4)(a) (a) All new licensees under the contract within the preceding month.

ATCP 74.20(4)(b) (b) All changes in the license status of existing establishments during the previous month.

ATCP 74.20(5) (5) By September 1 of each fiscal year, the agent program shall provide the department with a complete list of the names and addresses of persons licensed by the agent program during the previous fiscal year.

ATCP 74.20(6) (6) The agent shall maintain records to demonstrate that license and other program-related fees collected by an agent program do not exceed the reasonable costs incurred by the agent program for enforcing and administering the provisions of the contract.

ATCP 74.20 History History: CR 16-082: cr. Register February 2018 No. 746, eff. 5-27-18.

ATCP 74.22 ATCP 74.22 Licensing and standards.

ATCP 74.22(1) (1) The agent program shall issue licenses in its jurisdiction, in accordance with s. 97.30, Stats., and subchs. III and IV of ch. 97, Stats., and shall ensure that no person in its jurisdiction, subject to regulation under those statutes, operates an establishment without a valid license except:

ATCP 74.22(1)(a) (a) Mobile retail food establishments, operating in more than one jurisdiction, shall be licensed by the department, pursuant to s. 97.30 (2) (a), Stats.

ATCP 74.22(1)(a)1. 1. If the mobile retail food establishment has a service base, as defined in ch. ATCP 75 Appendix Part 1-201.10 (B), located within an agent’s jurisdictional boundary, the agent shall issue the service base license.

ATCP 74.22(1)(a)2. 2. The agent may charge an inspection fee for any inspection of a department-licensed mobile retail food establishment.

ATCP 74.22(1)(b) (b) Temporary retail food establishments that operate in more than one jurisdiction shall be licensed by the department pursuant to s. 97.30 (2) (a), Stats.