Chapter ATCP 70

ATCP 70.02(39) (39) “Roe” as used in s. ATCP 70.48 means fish eggs, including fish eggs that are still enclosed in the ovarian membrane.

ATCP 70.02(40) (40) “Safe temperatures” for the holding or storage of potentially hazardous foods means one of the following as appropriate:

ATCP 70.02(40)(a) (a) Temperatures at or above 135° F (57° C) for heated foods.

ATCP 70.02(40)(b) (b) Temperatures at or below 41° F (5° C) for refrigerated foods, except as provided in par. (c).

ATCP 70.02(40)(c) (c) Temperatures at or below 38° F (3.4° C) for refrigerated, raw fish, cold smoked fish, or raw fish products, that are vacuum packed and have only refrigeration as a critical control point.

ATCP 70.02(40)(d) (d) Temperatures that maintain frozen food in a constantly frozen condition.

ATCP 70.02(41) (41) “Salt content” means the percent salt (sodium chloride) as determined by the method described in sections 18.034 and 18.035 of the Official Methods of Analysis, multiplied by 100 and divided by the sum of the percent salt (sodium chloride) and the percent moisture in the finished product as determined by the method described in section 24.002 of the Official Methods of Analysis.

ATCP 70.02(42) (42) “Sanitize” means the application of cumulative heat or chemicals that, when evaluated for efficacy, is sufficient to yield a reduction of 5 logs, which is equal to a 99.999% reduction of representative disease-causing microorganisms of public health importance on a food contact surface that has been previously cleaned of all soil, residue, and visible contaminants.

ATCP 70.02(43) (43) “Single-service” means any utensil, container, or package, or any part of a utensil, container, or package, which is designed to be used only once.

ATCP 70.02(44) (44) “Smoked fish” means any food obtained by subjecting fresh fish, frozen fish, dried fish, or cured fish to the direct action of smoke or smoke flavor, whether by burning wood or a similar burning material, or by applying a smoke-flavored solution, for the primary purpose of imparting the flavor and color of smoke to fish. This includes both cold-process smoked and hot-process smoked fish, and is considered “fish processing”.

ATCP 70.02(45) (45) “Soda water beverage” means all beverages commonly known as soft drinks or soda water, whether carbonated, uncarbonated, sweetened, or flavored. “Soda water beverage” does not include alcohol beverages.

ATCP 70.02(46) (46) “Utensil” means a hand-held or similarly portable container or device, such as a set of tongs, spatula, strainer, or scoop, which has one or more food contact surfaces and is used in the processing or handling of food at a food processing plant. “Utensil” does not include a food package.

ATCP 70.02(47) (47) “Wholesale” means the sale of any food to a person or commercial entity who will either resell it, distribute it for resale, or use it as an ingredient in a product that will be then offered for sale. “Wholesale” includes those activities in which the processor relinquishes control of the food. “Wholesale” does not include the movement of food between two food processing plants or retail food establishments licensed to the same licensee, except for the movement of dairy products as specified in s. ATCP 65.04.

ATCP 70.02 History History: CR 17-073: cr. Register January 2020 No. 769, eff. 2-1-20; correction in (16), (22) (j), (29), (33), (40) (c), (47) made under s. 35.17, Stats., Register January 2020 No. 769.

subch. II of ch. ATCP 70 Subchapter II — General Requirements

ATCP 70.04 ATCP 70.04 Federal and record keeping requirements.

ATCP 70.04(1) (1) Facilities and qualified facilities. A food processing plant that is also a facility or a qualified facility shall comply with the requirements of this chapter and applicable requirements of 21 CFR part 117.

ATCP 70.04(2) (2) Record requirements and retention.

ATCP 70.04(2)(a) (a) The operator of a food processing plant that is a facility shall create all records to meet the requirements for records in 21 CFR 117.305, unless otherwise specified in this chapter or in 21 CFR part 120 or 21 CFR part 123.

ATCP 70.04(2)(b) (b) All records generated under par. (a) shall be retained and made available to the department, in accordance with the provisions set forth in 21 CFR 117.315, unless otherwise specified in this chapter or in 21 CFR part 120 or 21 CFR part 123.

ATCP 70.04(2)(c) (c) The license holder shall maintain on site at the food processing plant, and make available to the department or its agent when requested, all applicable approvals, variances, waivers, plans, and licenses pertaining to the operation and maintenance of the plant.

ATCP 70.04 History History: CR 17-073: cr. Register January 2020 No. 769, eff. 2-1-20; correction in (1), (2) (a), (b) made under s. 35.17, Stats., Register January 2020 No. 769.

ATCP 70.06 ATCP 70.06 Food processing plants; licensing; fees.

ATCP 70.06(1) (1) License required. Except as provided under sub. (11), no person may operate a food processing plant without a valid license issued by the department for that food processing plant under s. 97.29, Stats. A food processing plant license expires on March 31 annually. A license is not transferable between persons or food processing plants.

ATCP 70.06(2) (2) License application. Application for an annual license to operate a food processing plant shall be made on a form provided by the department. The application shall include applicable fees required under this section.

ATCP 70.06(3) (3) Annual license fee. An applicant for a license to operate a food processing plant shall pay an annual license fee. Except as provided in sub. (4), the fee amount is as follows:

ATCP 70.06(3)(a) (a) For operating a food processing plant that has an annual production of at least $25,000 but less than $250,000, and the operator is engaged in processing potentially hazardous food or in canning, an annual license fee of $400.

ATCP 70.06(3)(b) (b) For operating a food processing plant that has an annual production of at least $250,000, and the operator is engaged in processing potentially hazardous food or in canning, an annual license fee of $835.

ATCP 70.06(3)(c) (c) For operating a food processing plant that has an annual production of at least $25,000 but less than $250,000, and the operator is not engaged in processing potentially hazardous food or in canning, an annual license fee of $160.

ATCP 70.06(3)(d) (d) For operating a food processing plant that has an annual production of at least $250,000, and the operator is not engaged in processing potentially hazardous food or in canning, an annual license fee of $520.

ATCP 70.06(3)(e) (e) For operating a food processing plant that has an annual production of less than $25,000, an annual license fee of $95.

ATCP 70.06(4) (4) Canning operations; license fee surcharge. If an operator of a food processing plant is engaged in canning operations and has annual food sales of more than $25,000, the operator shall pay an annual license fee surcharge of $320, which shall be added to the license fee under sub. (3).

ATCP 70.06(5) (5) Surcharge for operating without a license. An applicant for a license under sub. (1) shall pay a license fee surcharge of $100 if the department determines that, within one year prior to submitting the license application, the applicant operated the food processing plant without a license in violation of sub. (1). Payment of this license fee surcharge does not relieve the applicant of any other civil or criminal liability which results from the unlicensed operation of the food processing plant, but does not constitute evidence of a violation of any law.

ATCP 70.06(6) (6) Reinspection fee.

ATCP 70.06(6)(a) (a) If the department reinspects a food processing plant because the department has found a violation of ch. 97, Stats., or this chapter, on a regular inspection, the department shall charge the licensee the reinspection fee specified under par. (b). A reinspection fee is payable when the reinspection is completed, and is due upon written demand from the department. The department may issue a demand for payment when it issues a license renewal application form to a licensee.

ATCP 70.06(6)(b) (b) The reinspection fee required under par. (a) is as follows:

ATCP 70.06(6)(b)1. 1. For a license holder of a food processing plant that has an annual production of less than $250,000, and the license holder is engaged in processing potentially hazardous food or in canning, the reinspection fee is $255.

ATCP 70.06(6)(b)2. 2. For a license holder of a food processing plant that has an annual production of at least $250,000, and the license holder is engaged in processing potentially hazardous food or in canning, the reinspection fee is $525.

ATCP 70.06(6)(b)3. 3. For a license holder of a food processing plant that has an annual production of less than $250,000, and the license holder is not engaged in processing potentially hazardous food or in canning, the reinspection fee is $150.

ATCP 70.06(6)(b)4. 4. For a license holder of a food processing plant that has an annual production of $250,000 or more, and the license holder is not engaged in processing potentially hazardous food or in canning, the reinspection fee is $490.

ATCP 70.06(6)(b)5. 5. For a license of a food processing plant that has an annual production of less than $25,000, the reinspection fee is $60.

ATCP 70.06(7) (7) Action on license application. The department shall grant or deny a license application within 30 business days after the department receives a complete application. If the department denies the license application, the department shall notify the applicant, in writing, of the reasons for the denial. Except as provided under sub. (9), the department may conditionally grant a license application by issuing a temporary license under sub. (8).

ATCP 70.06(8) (8) Temporary license.

ATCP 70.06(8)(a) (a) The department may issue a temporary license, for a period not to exceed 40 business days, pending final action on an application for an annual food processing plant license. The department shall grant or deny the annual license application before the temporary license expires. If the department denies an annual license application before the applicant’s temporary license expires, the temporary license is automatically terminated when the applicant receives written notice of the denial.

ATCP 70.06(8)(b) (b) The holder of a temporary license may not procure raw agricultural products as defined in s. 97.01 (14), Stats., from producers, except as specifically authorized by the department in writing. The department may not authorize an operator to procure farm products from producers unless the operator complies with subch. VI of ch. 126, Stats.

ATCP 70.06(8)(c) (c) The holder of a temporary license acquires no license rights beyond those conferred by the temporary license. A temporary license may not be issued in response to a renewal application by the holder of an existing license.

ATCP 70.06(9) (9) Pre-license inspection. The department may inspect a food processing plant, as the department deems necessary, before issuing a license to operate the food processing plant. The department may not issue a license or temporary license to operate a new food processing plant until the department inspects the new food processing plant for compliance with this chapter. A previously licensed food processing plant may not be considered a new food processing plant under this subsection solely because of a change of ownership.

ATCP 70.06(10) (10) Denial, suspension, or revocation of license; conditional license. The department may deny, suspend, or revoke a license, or impose conditions on a license as provided under s. 93.06 (7) and (8), Stats. Except as otherwise provided by statute or rule, the suspension or revocation of a license shall comply with the prior notice requirements of s. 227.51, Stats.

ATCP 70.06(11) (11) License exemptions. A license to operate a food processing plant is not required under s. 97.29, Stats., or this section for:

ATCP 70.06(11)(a) (a) An operator of a retail food establishment engaged in food processing if all of the following apply:

ATCP 70.06(11)(a)1. 1. The operator is licensed by the department under s. 97.30, Stats., or by an agent, as defined in s. ATCP 74.01 (1) under ss. 97.30 and 97.41, Stats.

ATCP 70.06(11)(a)2. 2. Wholesale receipts from food processing operations at the retail food establishment comprise no more than 25% of gross annual food sales from the retail food establishment. If the operator of a licensed retail food establishment is also licensed to operate a dairy plant under s. 97.20, Stats., or to operate a meat establishment under s. 97.42, Stats., sales of dairy or meat and poultry products processed at the establishment shall be excluded from the calculation of food sales receipts under this subdivision.

ATCP 70.06(11)(a)3. 3. The operator is not engaged in canning of food products at the retail food establishment.

ATCP 70.06(11)(a)4. 4. The operator may move food between retail food establishments licensed to the same operator.

ATCP 70.06(11)(b) (b) A license holder under s. 97.605, Stats., operating a retail food establishment serving meals, if all of the following apply:

ATCP 70.06(11)(b)1. 1. The operator does not process food for wholesale distribution in excess of 25% of total food sales and is not engaged in canning of food products. The operator may brew fermented malt beverages at the retail food establishment serving meals under the provisions in s. 125.295, Stats.

ATCP 70.06(11)(b)2. 2. The operator of the retail food establishment is licensed and exempt from licensing as a food processing plant under par. (a).

ATCP 70.06(11)(c) (c) Food processing operations conducted at a dairy plant licensed under s. 97.20, Stats., if both of the following apply:

ATCP 70.06(11)(c)1. 1. Receipts from non-dairy food processing operations at that location comprise no more than 25% of gross annual dairy and non-dairy food sales from that location.

ATCP 70.06(11)(c)2. 2. The operator of the dairy plant is not engaged in canning foods other than dairy products, or the processing of fish.

ATCP 70.06(11)(d) (d) Food processing operations conducted at a meat establishment, by the operator of the meat establishment, if all of the following apply:

ATCP 70.06(11)(d)1. 1. The operator of the meat establishment is licensed under s. 97.42, Stats., or inspected under 21 USC 601 et seq. or 21 USC 451 et seq.

ATCP 70.06(11)(d)2. 2. The operator is also licensed at the meat establishment to operate a retail food establishment under s. 97.30, Stats., and not engaged in the canning of food products other than meat or poultry products canned under s. 97.42, Stats., or the production of cold-smoked fish or fishery products.

ATCP 70.06(11)(e) (e) The processing of maple sap to produce maple syrup or concentrated maple sap if all of the following apply:

ATCP 70.06(11)(e)1. 1. The processor sells the maple syrup or concentrated maple sap only to other processors for further processing.

ATCP 70.06(11)(e)2. 2. The processor’s combined gross receipts from all sales under subd. 1. during the license year total less than $5,000.

ATCP 70.06(11)(e)3. 3. The processor keeps a written record of every sale under subd. 1., retains that record for at least 2 years, and makes the record available for inspection and copying by the department upon request. The record shall include the name and address of the purchasing processor, the date of sale, the amount of maple syrup or concentrated maple sap sold, and the sale price.

ATCP 70.06(11)(e)4. 4. The processor registers with the department before engaging in any processing activities under this paragraph in any license year ending March 31. A registration expires at the end of the license year. A processor shall register in writing on a form provided by the department, or shall register online at http://datcp.wi.gov. The registration shall include information reasonably required by the department, including the registrant’s name and address and information related to the nature, location, and scope of the registrant’s processing activities and product sales. There is no fee to register, and the registrant is not required to hold a registration certificate from the department.

ATCP 70.06 Note Note: A registration form under subd. 4. may be obtained by contacting the department at the following address:

ATCP 70.06 Note Department of Agriculture, Trade and Consumer Protection

ATCP 70.06 Note Division of Food and Recreational Safety

ATCP 70.06 Note P.O. Box 8911

ATCP 70.06 Note Madison, WI 53708

ATCP 70.06(11)(f) (f) The operator of a licensed food warehouse under s. 97.27, Stats., at which one or more of the following activities are the only food processing activities performed:

ATCP 70.06(11)(f)1. 1. Reshipping marine molluscan shellfish, provided that the licensed warehouse operator holds a licensee dealer certification as required by the U.S. food and drug administration’s Guide for the Control of Molluscan Shellfish, The Model Ordinance, that annual inventory value of molluscan shellfish reshipped at the licensed warehouse does not exceed 25% of the gross annual inventory value of the food warehouse, and the licensed food warehouse meets all of the applicable requirements of subch. IV of ch. ATCP 70.

ATCP 70.06(11)(f)2. 2. Packing food items that are already packaged and labeled for retail sale into containers for further distribution.

ATCP 70.06(11)(f)3. 3. Combining 2 or more food items that are already individually packaged and labeled for retail sale into a combination package for retail sale, if the label on each individual item inside the combination package remains visible or if the package of combined items is labeled for retail sale. All packaging and labels shall comply with s. ATCP 70.26.

ATCP 70.06(11)(f)4. 4. Manufacturing ice for use in the shipment of foods, or to cool or keep foods cold while in transit or stored in the warehouse. Ice used for this purpose must meet the standards in s. ATCP 70.20 (8). Ice must be made on site in a commercial ice machine and may not be bagged, distributed or sold separately from food items that it is used to cool.

ATCP 70.06 History History: CR 17-073: cr. Register January 2020 No. 769, eff. 2-1-20; corrections in (11) (a) 1. made under ss. 13.92 (4) (b) 7. and 35.17, Stats., and corrections in (11) (b) 1., (f) 1. made under s. 35.17, Stats., Register January 2020 No. 769.

ATCP 70.08 ATCP 70.08 Construction and maintenance.

ATCP 70.08(1) (1) Construction and maintenance; general. Food processing plants shall be soundly constructed and maintained in order to prevent adulteration as defined in s. 97.02, Stats. The license holder shall maintain in a clean and sanitary condition all buildings, facilities, and equipment used in food processing operations. The interior and exterior portions of a food processing plant, and the premises on which the food processing plant is located, shall be maintained in a sanitary condition in compliance with this chapter.

ATCP 70.08(2) (2) Floors, walls, ceilings, and service sinks.

ATCP 70.08(2)(a) (a) Walls and ceilings in processing areas shall be light colored.

ATCP 70.08(2)(b) (b) Floors, walls, and ceilings in processing areas, toilet rooms, and areas used for the cleaning or storage of equipment or utensils shall be constructed of smooth, impervious, and easily cleanable materials. This does not prohibit the use of easily cleanable anti-slip floors.

ATCP 70.08(2)(c) (c) All floors, walls, and ceilings shall be kept clean and in good repair.

ATCP 70.08(2)(d) (d) A food processing plant constructed or altered in a manner that changes the dimensions of a processing area after June 30, 1989, or a food processing plant that is initially licensed or is licensed to a new operator after June 30, 1989, shall conform to the following requirements:

ATCP 70.08(2)(d)1. 1. The junctions of walls and floors in processing areas shall be coved, or otherwise constructed so that each junction does not form a right angle, to facilitate cleaning.

ATCP 70.08(2)(d)2. 2. Floors that are water flushed for cleaning, or on which water or fluid wastes are discharged, shall have an adequate number of floor drains and be adequately sloped to ensure proper drainage to the floor drains.

ATCP 70.08(2)(d)3. 3. An adequate number of service sinks or curbed floor drains shall be provided for use in the cleaning of mops or wet floor cleaning tools, and for the disposal of mop water or similar liquids.