Chapter ATCP 70

Subchapter VII — Effect of Rules on Local Ordinances

ATCP 70.62   Effect of rules on local ordinances.

Subchapter VIII — Variances

ATCP 70.64   Variances.

Ch. ATCP 70 Note Note: Chapter Ag 40 as it existed on October 31, 1989, was repealed and a new chapter Ag 40 was created effective November 1, 1989; Chapter Ag 40 was renumbered ch. ATCP 70 under s. 13.93 (2m) (b) 1., Stats., Register, April, 1993, No. 448; Chapter ATCP 70 as it existed on January 31, 2020, was repealed and a new chapter ATCP 70 was created effective February 1, 2020.

subch. I of ch. ATCP 70 Subchapter I — Scope and Definitions

ATCP 70.01 ATCP 70.01 Scope. This chapter applies to all food processing plants, as defined in s. ATCP 70.02 (23).

ATCP 70.01 History History: CR 17-073: cr. Register January 2020 No. 769, eff. 2-1-20.

ATCP 70.02 ATCP 70.02 Definitions. As used in this chapter:

ATCP 70.02(1) (1) “Alcohol beverage” means an alcohol beverage as defined in s. 125.02 (1), Stats.

ATCP 70.02(2) (2) “Approved sanitizing solution” means a substance or compound approved by the department for the sanitizing of equipment or utensils under s. ATCP 70.28 (5).

ATCP 70.02(3) (3) “Bakery” means any place where bread, cookies, crackers, pasta, or pies, or any other food product for which flour or ground meal is the principal ingredient, are baked, cooked, or dried, or prepared or mixed for baking, cooking, or drying, for sale as food.

ATCP 70.02(4) (4) “Bottle” means the immediate package or container in which bottled drinking water, soda water beverage, or alcohol beverage is sold or distributed for consumption. “Bottle” includes a bottle cap or other seal for a bottle.

ATCP 70.02(5) (5) “Bottled drinking water” means all water packaged in bottles or similar containers and sold or distributed for drinking purposes. “Bottled drinking water” includes distilled water, artesian water, spring water, and mineral water, whether carbonated or uncarbonated.

ATCP 70.02(6) (6) “Bottling establishment” means any place where drinking water, soda water beverage, or alcohol beverage is manufactured or bottled for sale. “Bottling establishment” does not include a retail establishment either engaged in the preparation and sale of beverages, under a license issued under s. 125.26 or 125.51, Stats., or licensed under s. 97.30 or s. 97.605, Stats.

ATCP 70.02(7) (7) “C-I-P system” means equipment which is designed, constructed, and installed to be cleaned in place by the internal circulation of cleaning and sanitizing solutions onto product contact surfaces. “C-I-P System” includes separate equipment used to store or deliver cleaning and sanitizing solutions to the food contact surfaces.

ATCP 70.02(8) (8) “Canning” means the preservation and packaging in hermetically sealed containers of low-acid or acidified foods.

ATCP 70.02(9) (9) “Cold-process smoked fish” or “cold-process smoke flavored fish” means fish which is treated with smoke or smoke flavoring to give it a smoked flavor, but which is not fully cooked or heat treated to coagulate protein in fish loin muscle. “Cold-process smoked fish” or “cold-process smoke flavored fish” may not be heated above 90° F during processing because the safety of the treatment is partially dependent on the survival of harmless microorganisms indigenous to the fish.

ATCP 70.02(10) (10) “Confectionary” means any place where candy, fruit, nut meats, or any other food product is manufactured, coated, or filled with saccharine substances for sale as food.

ATCP 70.02(11) (11) “Continuous operation” means operating without interruption beyond 24 hours, with no interruptions after 24 hours longer than a period approved by the department.

ATCP 70.02(12) (12) “Critical control point” means a step in food processing at which a failure to monitor a food safety parameter such as pH, temperature, time, or water activity (aw), or a failure to control any food safety parameter within critical limits or according to specific criteria, may result in the unacceptable risk of a potentially adverse impact on human health.

ATCP 70.02(13) (13) “Department” means the state of Wisconsin department of agriculture, trade and consumer protection.

ATCP 70.02(14) (14) “Equipment” means an implement, vessel, machine, or apparatus, other than a utensil, which has one or more food contact surfaces and is used in the handling or processing of food at a food processing plant. “Equipment” includes C-I-P systems.

ATCP 70.02(15) (15) “Facility” as used in s. ATCP 70.04 has the meaning given in 21 CFR 117.3.

ATCP 70.02(16) (16) “Fish” means fresh or saltwater finfish; crustaceans; forms of aquatic life other than birds or mammals including, but not limited to, alligators, frogs, aquatic turtles, jellyfish, sea cucumber, sea urchin, and their roe; and all mollusks, if intended for human consumption.

ATCP 70.02(17) (17) “Fish processing plant” means a food processing plant which produces processed fish or fishery products.

ATCP 70.02(18) (18) “Fishery product” means any human food product in which fish is a characterizing ingredient.

ATCP 70.02(19) (19) “Food” means:

ATCP 70.02(19)(a) (a) Articles ingested as food or drink by persons.

ATCP 70.02(19)(b) (b) Chewing gum.

ATCP 70.02(19)(c) (c) Components of articles specified in pars. (a) and (b).

ATCP 70.02(20) (20) “Food contact surface” means any surface of equipment, utensils, or food packages with which food normally comes in direct contact, or from which materials may drain, drip, or otherwise be drawn into or onto food.

ATCP 70.02(21) (21) “Food package” means the immediate container in which food is sold or shipped from a food processing plant. “Food package” includes a bulk container or shipping container which has one or more food contact surfaces.

ATCP 70.02(22) (22) “Food processing” means the manufacture or preparation of food for sale through the process of canning, extracting, fermenting, distilling, pickling, freezing, baking, drying, smoking, grinding, cutting, mixing, coating, stuffing, packing, bottling or packaging, or through any other treatment or preservation process. “Food processing” includes the activities of a bakery, confectionary, vending machine commissary licensed under s. 97.605, Stats., or bottling establishment, and also includes the receipt and salvaging of distressed food for sale or use as food. It also includes the packaging of seeds that have been harvested, and dried after the harvest for sale as food. These seeds include unpopped popcorn whether shelled or on the cob, black beans, wild rice, sunflower seeds, pumpkin seeds, and soybeans. “Food processing” does not include any of the following:

ATCP 70.02(22)(a) (a) Activities performed under a dairy plant license issued under s. 97.20, Stats.

ATCP 70.02(22)(b) (b) Activities performed under a meat establishment license issued under s. 97.42, Stats.

ATCP 70.02(22)(c) (c) The retail preparation and processing of meals for sale directly to consumers or through vending machines if the preparation and processing is covered under a retail food establishment license issued under s. 97.30, Stats., or other license issued under s. 97.605, Stats.

ATCP 70.02(22)(d) (d) Activities inspected by the United States department of agriculture under 21 USC 601 et seq. or 21 USC 451 et seq.

ATCP 70.02(22)(e) (e) The extraction of honey from the comb, or the production and sale of raw honey or raw bee products by a beekeeper from their own apiaries.

ATCP 70.02(22)(f) (f) The washing and packaging of fresh fruits and vegetables if the fruits and vegetables are not otherwise processed at the packaging establishment.

ATCP 70.02(22)(g) (g) The receipt and salvaging of distressed food for sale or use as food if the food is received, salvaged, and used solely by a charitable organization, and if contributions to the charitable organization are deductible by corporations in computing net income under s. 71.26 (2) (a), Stats.

ATCP 70.02(22)(h) (h) The collection, packing, and storage of eggs from a flock of not more than 150 laying birds by an egg producer who only sells the eggs directly to consumers at the premises where the eggs were laid, at a farmers’ market, or on an egg-sales route as defined in s. ATCP 88.01.

ATCP 70.02(22)(i) (i) The collection, packaging, and storage of nest-run eggs, as defined in s. ATCP 88.01, from a flock of laying birds by an egg producer who is registered with the department in accordance with s. ATCP 88.02 and who sells the nest-run eggs to an egg handler.

ATCP 70.02(22)(j) (j) The packaging of seeds that have not been harvested until they have dried naturally in the field and are only handled by harvesting, storing, and packaging for sale as food.

ATCP 70.02(23) (23) “Food processing plant” means any place used primarily for food processing, where the processed food is not intended to be sold or distributed directly to a consumer. “Food processing plant” does not include any mobile establishment, retail food establishment subject to the requirements of s. 97.30, Stats., or any restaurant or other establishment holding a license under s. 97.605, Stats., to the extent that the activities of that establishment are covered by s. 97.30, Stats., or the license under s. 97.605, Stats.

ATCP 70.02(24) (24) “Hazard analysis and critical control point plan” or “HACCP plan” means a food processing plan under which a food processing plant operator effectively identifies, and prevents, controls, or eliminates food safety hazards by monitoring food safety parameters at critical control points, and by controlling those parameters within critical limits.

ATCP 70.02(25) (25) “Hot-process smoked fish” or “hot-process smoke flavored fish” means fish that is either of the following:

ATCP 70.02(25)(a) (a) Fully cooked or heat treated, or sold or represented as being fully cooked or heat treated, so that the internal temperature of the fish has been maintained for at least 30 minutes at not less than 145° F (62.8° C) or an equivalent process validated for lethality against pathogenic organisms.

ATCP 70.02(25)(b) (b) Fully cooked or heated in accordance with par. (a) and treated with smoke or smoke flavoring to give it a smoked flavor.

ATCP 70.02(26) (26) “Ingredient water” means water used by a food processing plant as an ingredient for food.

ATCP 70.02(27) (27) “Juice” means aqueous liquids expressed or extracted from fruits or vegetables, purées of the edible portions of fruits or vegetables, or combinations or concentrates of those liquids or purées, which are used as whole beverages or beverage ingredients.

ATCP 70.02(28) (28) “Loin muscle” means the longitudinal quarter of the great lateral muscle of a fish, freed from skin, scales, visible blood clots, bones, gills, and viscera, and from the non-striated part of such muscle, which part is known anatomically as the median superficial muscle.

ATCP 70.02(29) (29) “Major food allergen” includes any food or food ingredient, other than highly refined oil or an ingredient derived from highly refined oil, which contains protein derived from milk, eggs, finfish, crustacean shellfish, tree nuts, wheat, peanuts, or soybeans. “Major food allergen” does not include a food that is exempted by the secretary of the United States department of health and human services pursuant to 21 USC 321 (qq) (2).

ATCP 70.02(30) (30) “Official Methods of Analysis” means the Official Methods of AOAC International, eighteenth edition revision 2 (2007).

ATCP 70.02 Note Note: Those portions of the “Official Methods of Analysis” cited in this chapter are on file with the department and the legislative reference bureau. The Official Methods of Analysis of AOAC International may be obtained from the AOAC International, 2275 Research Blvd., Rockville, MD 20850.

ATCP 70.02(31) (31) “Operations water” means water used by a food processing plant for cleaning equipment and utensils, transporting food, handwashing, or other cleaning or sanitizing purposes.

ATCP 70.02(32) (32) “Organoleptic quality” means quality as assessed by means of sight, smell, touch, or taste.

ATCP 70.02(33) (33) “Potentially hazardous food” also means “TCS (time/temperature controlled for safety) Food”, and has the meaning given in ch. ATCP 75 Appendix (Wisconsin Food Code), part 1-201.10 (B).

ATCP 70.02(34) (34) “Processed fish” means fish that is preserved for human consumption by means of hot or cold smoking, curing, salting, drying, marinating, pickling, fermenting, or related processes. “Processed fish” does not include fish processed in accordance with ss. ATCP 70.36 or 70.38.

ATCP 70.02(35) (35) “Qualified facility” as used in s. ATCP 70.04 has the meaning given in 21 CFR 117.3.

ATCP 70.02(36) (36) “Ready-to-eat food” has the meaning given in ch. ATCP 75 Appendix (Wisconsin Food Code), part 1-201.10 (B).

ATCP 70.02(37) (37) “Reduced oxygen packaging” has the meaning given in ch. ATCP 75 Appendix (Wisconsin Food Code), part 1-201.10 (B).

ATCP 70.02(38) (38) “Retail” means selling food or food products directly to any consumer only for consumption by the consumer or the consumer’s immediate family or non-paying guests.

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.