Wisconsin Department of Agriculture, Trade and Consumer Protection
Initial
Regulatory Flexibility Analysis
Rule Subject:
Retail Food Establishment, Lodging, and Recreational Safety Agent Program
Adm. Code Reference:
ATCP
74
Rules Clearinghouse #:
TBD
DATCP Docket #:
1
5-R-19
Rule Summary
On July 1, 2016,
ch
.
DHS 192
and part of
ch
.
ATCP 75
,
both
dealing with agent programs
,
were combined into a new ATCP 74
,
involving
the relationship of the new Division of Food and Recreational Safety (DFRS) and its agent programs. Under the authority of an approved DHS scope statement, the
Department
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 spells out 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; the revised rule clarifies the
D
epartment’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 the 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
p
rograms seeking to enter into a contractual relationship, the procedures to follow 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
a
gent
p
rogram 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
a
gent 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
a
gent 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 reimbursements owed to the Department, the payments-for-services that the
a
gent program may be required to make to the Department, and the types of financial records that the agent program must make available to the Department upon request. In particular, it spells out the responsibility of
a
gent
p
rograms to demonstrate that the fees charged by the local program are reasonable and used only for maintaining the local program.
Small Businesses Affected
This rule change is anticipated to have no impact on small business, as local agents were already handling the licensing,
investigation
, and inspection for
many of
these businesses, when the programs were in two agencies, this Department and the Department of Health Services.
Accommodation for Small Business
A primary focus of this new rule
is the clarification of the contractual relationship and responsibilities for the inspection of retail food, lodging, and recreational facilities between the Department and the
local agent programs
.
No accommodation for small business
can reasonably be expected
since the rules enforced by the state and its agent programs deal with fundamental food safety issues that must be followed by any retail food establishment wishing to produce, process, and sell food to the consuming public
,
regardless of the size or scope of the regulated business.
Conclusion
The provisions in this proposed rule will
have minimal effect on Wisconsin’s retail food, lodging, or recreational communities since it is a rule for the relationship between the State and the
a
gent
program
Health Departments and does not change any of the rules
under which
the business
es
in the
a
gent
p
rogram areas operate.
This new rule
does spell out the mutual responsibilit
ies under the contract between the State and the local
a
gent
p
rograms more clearly
and this should aid the agent programs
develop plans for their programs by
clarifying the expectations of the state
.
This rule will not have a significant adverse effect on “small business” and is not subject to the delayed “small business” effective date provided in s.
227.22(2)(e)
, Stats.
The Department
will, to the maximum extent feasible, seek voluntary compliance with this rule
when dealing with
agent programs
.
