Chapter ATCP 70

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.

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.