Statutory authority: ss. 93.07 (1), 97.29 (5) and 97.34 (2) (a) and (c)

Statutes interpreted: ss. 97.02, 97.03, 97.10, 97.29 and 97.34

The Department of Agriculture, Trade and Consumer Protection currently licenses and regulates food processing plants under s. 97.29, Stats. This rule amends the Department's current rules under ch. ATCP 70, Wis. Adm. Code, related to food processing plants. Among other things, this rule does the following:

• Authorizes the Department to grant a variance from a food processing plant construction standard if the variance is reasonable and necessary, and will not compromise the purpose served by the construction standard.

• Updates current water supply standards for food processing plants, including bottling establishments.

• Modifies current standards for handling distressed and salvaged food (e.g, food affected by a fire, flood or other casualty).

• Requires a food processor to report any lab tests showing that ready-to-eat food contains pathogenic organisms or toxins, unless the food is identified by production lot and the processor still owns and controls the entire affected lot.

• Gives fish processors greater flexibility to package and sell fish in reduced oxygen packages if the fish are processed to eliminate botulism risks.

• Requires fish processors to prepare and follow a HACCP (“hazard analysis and critical control point”) plan. Under a HACCP plan, a processor prevents food safety hazards by monitoring and controlling critical control points to ensure that critical limits are met.

• Updates current food safety standards related to:

  • Raw fish processing.

  • Smoked fish processing and labeling.

  • Caviar processing.

“Potentially Hazardous” Foods; Safe Temperatures

Under current rules, potentially hazardous foods must be held at safe temperatures. A “potentially hazardous food” means a food such milk, eggs, meat, poultry or fish, which is in a form capable of supporting rapid and progressive growth of pathogenic or toxigenic microorganisms.

This rule clarifies the current definition of “potentially hazardous food.” For example, it includes certain foods of plant origin which are capable of supporting botulism growth, and excludes hard boiled eggs with intact shells. It excludes foods in hermetically sealed packages that are processed to remain commercially sterile without refrigeration.

Current rules specify the following “safe temperatures” for potentially hazardous foods:

  • 150°F. (65°C.) or above for potentially hazardous heated foods.

  • 40°F. (5°C.) or below for potentially hazardous refrigerated foods.

  • 0° F. (-17°C.) or below for potentially hazardous frozen foods.

• This rule establishes new “safe temperatures” as follows:

  • 140°F. (60°C.) or above for potentially hazardous heated foods.

  • 41°F. (5°C.) or below for potentially hazardous refrigerated foods, other than fish or fish products.

  • 38°F. (3.4°C.) or below for refrigerated fish or fish products.

  • 0° F. (-17°C.) or below for potentially hazardous frozen foods.

Facilities and Equipment

Current rules establish ventilation standards for food processing plants. This rule eliminates the current requirement that ventilation systems comply with standards under s. ILHR 64.67, but adds a new standard for intake filters.

This rule authorizes the Department to grant a written variance from a food processing plant construction standard if the variance is reasonable and necessary, and will not compromise the purpose served by the construction standard. The administrator of the Department's division of food safety may issue a waiver on behalf of the Department. The Department must keep a copy of the waiver on file for the duration of the waiver.

Personnel Sanitation

Current rules spell out sanitation standards for personnel in food processing plants. Under the current rules, if a person is infected with a disease that is communicable by food handling, that person may not work in a food processing plant in any capacity which may result in food contamination.

This rule expands and clarifies the current rules. This rule prohibits a person from working in any capacity which may result in the contamination of food, equipment or utensils if that person has any of the following:

• A communicable disease.

• Flu or flu-like symptoms.

• A sore or lesion on the hands, arms or other exposed portion of the body.

Water Supply

Current rules spell out standards for “operations water” (e.g., wash water) and “ingredient water” used in food processing. This rule makes non-substantive organizational and drafting changes to the current standards.

This rule also adds new provisions related to reclaimed water. Under this rule:

• Reclaimed water may not be used as operations water or ingredient water unless all of the following apply:

  • The reclaimed water meets all normal standards for operations or ingredient water.

  • The operator tests the reclaimed water for bacterial and organic content according to this rule.

  • The distribution system for the reclaimed water has no cross-connections to any municipal or private water supply system, and is effectively designed and labeled to prevent misuse of reclaimed water.

• Reclaimed water may not be used as ingredient water unless it is reclaimed by condensation (or by another reclamation process which the Department approves), and is used within 24 hours after it is reclaimed.

• Reclaimed water may not be used as an ingredient in bottled water or in any soda water beverage.

Under this rule, chemicals used to suppress bacterial growth in water, or to prevent off-tastes or off-odors in water, must be approved for that purpose by the federal food and drug administration. Chemicals must be used according to label directions, and may not contribute to the adulteration of food.

Distressed and Salvaged Food

Under current rules, a food processing plant operator must notify the Department whenever food is subjected to possible contamination in a fire, flood or other casualty.

This rule eliminates the current notification, inspection and approval requirements, but spells out standards for the sale and handling of distressed food. Under this rule, an operator:

• Must separate distressed food from other food.

• May not reprocess unwholesome or adulterated food for sale as human food.

• May not sell or distribute food in packages which are not fully labeled, or which have been damaged to the point that food may be exposed to contamination.

• Must keep records showing the source and disposition of distressed food.

• May not sell reprocessed or reconditioned distressed food without notifying the purchaser, in writing, that the food is reprocessed or reconditioned. Notice must include the name and address of the reprocessor or reconditioner and the date on which the food was reprocessed or reconditioned.

Ready-to-Eat Foods; Reporting Pathogens and Toxins

Under this rule, a food processing plant operator must report to the Department any lab test results showing that ready-to-eat food produced by that operator contains pathogenic organisms or toxins. However, the operator need not report the lab test results if the food is identified by a lot number and the operator retains ownership and control over that entire lot.

Fish Processing Plants; HACCP Plan

Under this rule, every fish processing plant must have and follow a written HACCP (“hazard analysis critical control point”) plan by January 1, 1997. A plant processing fish for sale in reduced oxygen packages must have and follow a HACCP plan not later than the effective date of this rule. Under a HACCP plan, an operator prevents food safety hazards by monitoring and controlling food safety variables at critical control points in the production process.

For each fish product, a HACCP plan must identify all of the following:

• Potential food safety hazards.

• Critical control points in the production process at which the operator will monitor critical variables, such as time, temperature, pH or water activity, to ensure that critical limits are met.

• The critical limits which must be met at each critical control point to prevent unacceptable food safety hazards.

• Procedures which the operator will use to monitor critical variables at each critical control point to ensure that critical limits are met.

• Effective corrective actions which the operator will take whenever a critical limit is violated. Corrective actions must do all of the following:

  • Correct the process to restore compliance with critical limits.

  • Evaluate the safety of food processed while the critical limit was violated.

  • Prevent the sale or distribution of any food which presents an unacceptable food safety hazard.

• The methods which the operator will use to ensure that HACCP procedures are followed.

• HACCP records, including food safety monitoring records, which the operator will keep. The operator must retain HACCP records for at least 6 months.

Processing Raw Fish

Current rules spell out standards for handling raw fish. Fish must be inspected, eviscerated and washed before they are processed. (Small fish such as anchovies and herring sprats need not be eviscerated if processed in certain ways.) Fish must be frozen or treated for parasites unless they are cooked during processing or by the consumer. This rule makes minor changes to clarify the current rules.

Packaging Fish in Reduced Oxygen Packages

Under current rules, fish may not be packaged in a hermetically sealed package unless one of the following applies:

• The package is heat processed after sealing to destroy botulism bacteria and spores.

• The packaged fish product is frozen and labeled as a frozen food according to current rules.