Chapter ATCP 65

ATCP 65.02 Note Note: No new grade A producer permit is necessary when a producer transfers to a different dairy plant.

ATCP 65.02(17) (17) Grade A milk producer shipping milk to more than one dairy plant. A milk producer holding a grade A producer permit may concurrently ship milk to more than one dairy plant operator, including a milk contractor that submits a milk producer license application on behalf of a milk producer and thereby certifies that the milk producer’s dairy farm and milking operations comply with applicable requirements under this chapter, if the milk producer and dairy plant operators comply with s. ATCP 65.02 (7) and only one of the dairy plants accepts the milk producer’s milk as grade A milk.

ATCP 65.02(18) (18) Temporary discontinuation of grade A milk shipments.

ATCP 65.02(18)(a) (a) A dairy plant operator, including a milk contractor that submits a milk producer license application on behalf of a milk producer and thereby certifies that the milk producer’s dairy farm and milking operations comply with applicable requirements under this chapter, shall notify the department if a grade A milk producer temporarily discontinues milk shipments without transferring milk shipments to another dairy plant. The dairy plant operator shall notify the department in writing within 3 business days after the producer discontinues shipments and within 3 business days after the producer resumes milk shipments.

ATCP 65.02(18)(b) (b) A milk producer’s grade A producer permit remains in effect if the milk producer resumes milk shipments, under par. (a), within 60 days after temporarily discontinuing milk shipments to the dairy plant to whom the milk producer is assigned, provided shipments were not transferred to another dairy plant. If the milk producer does not resume milk shipments within 60 days, the department shall summarily revoke the milk producer’s grade A producer permit. The department shall give the producer a written revocation notice at least 5 business days before the effective date of the notice.

ATCP 65.02(19) (19) Re-inspection fee requirement. If a division representative, on behalf of the department, conducts a reinspection, the department shall charge a reinspection fee of $30 for the reinspection, or $60 if the reinspection is required for reinstatement of a milk producer’s license or grade A producer permit pursuant to s. 97.22 (4), Stats. A reinspection fee is payable when the reinspection is completed, and is due upon written demand from the department.

ATCP 65.02(20) (20) Fee payment obligations; enforcement. If no dairy plant pays the fees required under this subchapter on behalf of a milk producer, the department may demand payment from the milk producer. If, after reasonable notice and demand for payment, a milk producer fails to pay a fee that was due and payable before the current license year, the department may suspend the milk producer’s license or grade A producer permit.

ATCP 65.02(21) (21) BTU Requirements. Each farm in a BTU shall be operated by a licensed milk producer who holds a grade A producer permit, shall be included in only one BTU, and shall produce milk for pasteurization that is collected by a bulk milk weigher and sampler licensed under s. ATCP 82.04.

ATCP 65.02 History History: CR 14-073: cr. Register August 2016 No. 728, eff. 9-1-16; correction in (21) made under s. 35.17, Stats., Register August 2016 No. 728.

ATCP 65.04 ATCP 65.04 Dairy plant licenses and permits; fees.

ATCP 65.04(1) (1) Dairy plant license required.

ATCP 65.04(1)(a) (a) License required. Except as provided under par. (b), no person may operate a dairy plant, or act as a milk contractor who submits a milk producer license application on behalf of a milk producer and thereby certifies that the milk producer’s dairy farm and milking operations comply with applicable requirements under this chapter, without a valid license issued by the department for that dairy plant or milk contractor. A dairy plant license expires on April 30 annually and is not transferable between persons or locations. A dairy plant receiving or procuring milk from milk producers shall hold a current milk contractor license.

ATCP 65.04 Note Note: See ss. 97.20, and 126.40, Stats.

ATCP 65.04(1)(b) (b) License exemptions. A dairy plant license is not required, under par. (a), for any of the following:

ATCP 65.04(1)(b)1. 1. A farm manufacturing or processing dairy products solely for consumption by the owner or operator of the farm, members of the farm household, or nonpaying farm guests or employees.

ATCP 65.04(1)(b)2. 2. The retail preparation or processing of meals for sale directly to consumers or through vending machines if the preparation and processing of dairy products, made from commercially pasteurized dairy products, is covered under a restaurant license or other license issued under s. 97.605, Stats. Packaging of grade A dairy products for retail sale by exempted establishments under this section is prohibited.

ATCP 65.04(1)(b)3. 3. A retail food establishment, including a restaurant, licensed under s. 97.30, Stats., if the establishment processes non-grade A dairy products made from commercially pasteurized and packaged dairy products solely for retail sale at the establishment.

ATCP 65.04(1)(b)4. 4. A milk receiving station or transfer station operated at the same location, and by the same person, as a processing plant licensed under sub. (1).

ATCP 65.04(1)(b)5. 5. A milk transfer station operated at the same location, and by the same person, as a milk receiving station licensed under sub. (1).

ATCP 65.04(1)(b)6. 6. A food processing plant licensed, under s. 97.29, Stats., that meets the requirements of s. 97.20 (2) (e) 5., Stats.

ATCP 65.04(1)(b)7. 7. A dairy plant that is exempted from licensing by department rule.

ATCP 65.04(2) (2) License application. An application for a dairy plant license shall be made on a form provided by the department and shall be accompanied by each applicable non-refundable fee required under this section. The application shall include the following information, and any other information reasonably required by the department for licensing purposes:

ATCP 65.04(2)(a) (a) The correct legal name of the dairy plant operator and any trade name used by the operator.

ATCP 65.04(2)(b) (b) The dairy plant address, including number, street name, and zip code; and telephone number of the dairy plant to which the license application pertains, and the name of a responsible person who may be contacted at that address.

ATCP 65.04(2)(c) (c) A statement indicating whether the dairy plant is a processing plant, receiving station, or transfer station.

ATCP 65.04(2)(d) (d) A description of the processing operations, if any, conducted at the dairy plant.

ATCP 65.04(3) (3) Action on license application; deadline. The department shall grant or deny a license application, under sub. (2), within 40 days after the department receives a complete application, or before the expiration date of any temporary license issued under sub. (5), whichever occurs later.

ATCP 65.04(4) (4) Prerequisites for licensing. The department shall not issue or renew a dairy plant license, or issue a temporary license under sub. (5), unless all of the following conditions are met:

ATCP 65.04(4)(a) (a) The license applicant has paid all fees and surcharges, set forth in a statement from the department, that are due and payable by the applicant under this section. The department shall refund a fee or surcharge paid under protest if the department determines that the fee or surcharge is not due and payable under this section.

ATCP 65.04(4)(b) (b) The license applicant has filed all financial information and security that the department requires of that applicant under ch. ATCP 100. If an applicant has not filed required financial information or security, the department may issue a conditional license that prohibits the licensed operator from buying milk or fluid milk products from producers or their agents, but allows the operator to buy milk or fluid milk products from other sources.

ATCP 65.04(4)(c) (c) The division has inspected the dairy plant under sub. (6) (b) if the dairy plant is not currently licensed.

ATCP 65.04(5) (5) Temporary license.

ATCP 65.04(5)(a) (a) Except as provided under par. (c), the department may issue a temporary dairy plant license to an applicant, under sub. (2), pending the department’s final action on that person’s license application. A temporary license may be issued for a period of not more than 40 days. If the department denies a 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 65.04(5)(b) (b) The holder of a temporary license, under par. (a), acquires no rights beyond those conferred by the temporary license. The holder of a temporary license may not purchase milk or fluid milk products from milk producers or their agents, but may purchase milk or fluid milk products from other sources.

ATCP 65.04(5)(c) (c) The department may not issue a temporary license, under par. (a), in response to a license renewal application by the holder of an existing license.

ATCP 65.04(6) (6) Pre-license inspection.

ATCP 65.04(6)(a) (a) The division may inspect a dairy plant, as the department deems necessary, before issuing a license for that dairy plant.

ATCP 65.04(6)(b) (b) The department may not issue a dairy plant license, under sub. (1), or a temporary license, under sub. (5), for a dairy plant that is not currently licensed until the division inspects that dairy plant for compliance with this chapter.

ATCP 65.04 Note Note: The department is not required to inspect a currently licensed dairy plant before renewing the license of the current operator, or before issuing a license to a new operator of that dairy plant.

ATCP 65.04(7) (7) Added operations. No dairy plant operator may add a new category of operations at a licensed dairy plant during the time period for which the license was issued unless the operator notifies the division and obtains written authorization for the new category of operations. A dairy plant operator adding the processing of low-acid or acidified foods packaged in hermetically sealed containers, seafood or juice, shall comply with the applicable requirements in ch. ATCP 70. In this subsection, “new category of operations” includes the manufacture or processing of any of the following that was not identified in the operator’s most recent license application under sub. (2):

ATCP 65.04(7)(a) (a) Fluid milk products.

ATCP 65.04(7)(b) (b) Cheese and cheese products.

ATCP 65.04(7)(c) (c) Ice cream or frozen desserts.

ATCP 65.04(7)(d) (d) Dairy products dried at the dairy plant.

ATCP 65.04(7)(e) (e) Multi-ingredient dried dairy products blended at the dairy plant.

ATCP 65.04(8) (8) Annual dairy plant license fees.

ATCP 65.04(8)(a) (a) Fees based on receipts or production. An applicant for a dairy plant license shall pay an annual license fee. The license fees in this subsection are not refundable. Except as provided under par. (b), license fees are based on the dairy plant’s milk receipts or production during the previous calendar year, regardless of who operated that dairy plant in the previous calendar year.

ATCP 65.04(8)(b) (b) Fees for plants with no milk receipts or production during previous year. If a dairy plant had no milk receipts or production during the previous calendar year, license fees shall be based on projected milk receipts or production during the license year for which application is made. At the end of that license year, the license holder shall report the actual milk receipts or production during the license year, and the department shall determine the appropriate fee, under par. (a), based on actual receipts or production. If the fee based on actual receipts or production differs from the fee based on projected receipts or production, the license holder shall pay the balance due or receive a credit from the department on the next year’s license fee.

ATCP 65.04(8)(c) (c) License fee amounts. The license fee, under par. (a), is $120 plus whichever of the following applies:

ATCP 65.04(8)(c)1. 1. For a grade A processing plant, a supplementary license fee of $955 if the plant received more than 2,000,000 pounds of milk from milk producers, or a supplementary license fee of $735 if the plant received 2,000,000 pounds or less of milk from producers.

ATCP 65.04(8)(c)2. 2. For a grade B processing plant that manufactured or processed more than 1,000,000 pounds of dairy products or more than 200,000 gallons of frozen dairy products, a supplementary license fee of $400.

ATCP 65.04(8)(c)3. 3. For a grade A receiving station, a supplementary license fee of $370.

ATCP 65.04(9) (9) Surcharge and past fees for operating without license.

ATCP 65.04(9)(a) (a) An applicant for a dairy plant license shall pay a license fee surcharge if the department determines that, within 365 days before submitting the license application, the applicant operated the dairy plant without a license in violation of sub. (1). The amount of the surcharge is $100, or $500 if the dairy plant operator procured milk or fluid milk products from milk producers or their agents.

ATCP 65.04(9)(b) (b) In addition to paying the license fee surcharge under par. (a), an applicant who violated sub. (1) shall pay all fees, set forth in a statement from the department, that are due for the license year in which the applicant violated sub. (1).

ATCP 65.04(9)(c) (c) Payment of the license fee surcharge and past fees, under pars. (a) and (b), does not relieve the applicant of any other civil or criminal liability that results from the unlicensed operation of a dairy plant, but does not constitute evidence of any violation of law.

ATCP 65.04(10) (10) Milk procurement fee; monthly payment.

ATCP 65.04(10)(a) (a) Monthly fee required. On or before the 25th day of each month, a dairy plant operator, including a milk contractor that submits a milk producer license application on behalf of a milk producer and thereby certifies that the milk producer’s dairy farm and milking operations comply with applicable requirements under this chapter, shall pay a milk procurement fee in the amount specified under par. (b). The monthly fee shall be based on the amount of milk that was procured by the dairy plant or milk contractor, directly from milk producers in the month preceding the month when the fee payment is due, regardless of who procured the milk during that preceding month.

ATCP 65.04(10)(b) (b) Fee amounts. Milk procurement fees, required under par. (a), are as follows:

ATCP 65.04(10)(b)1. 1. For each 100 pounds of grade A milk procured from milk producers, 1.048 cent.

ATCP 65.04(10)(b)2. 2. For each 100 pounds of grade B milk procured from milk producers, 0.2 cent.

ATCP 65.04(10)(c) (c) Out-of-state milk shipments. A milk producer who ships milk to an out-of-state dairy plant shall pay a monthly milk procurement fee on that milk, as required under par. (a), in the amount specified under par. (b), unless the operator of that out-of-state dairy plant voluntarily pays that fee for the milk producer.

ATCP 65.04(11) (11) Reinspection fees.

ATCP 65.04(11)(a) (a) Dairy plant to pay reinspection fee for milk producer. A dairy plant operator, including a milk contractor that submits a milk producer license application on behalf of a milk producer and thereby certifies that the milk producer’s dairy farm and milking operations comply with applicable requirements under this chapter, shall pay the dairy farm reinspection fee under this section for a milk producer if, at the time of a reinspection, the producer was assigned to that operator for licensing purposes under s. ATCP 65.02. The department may issue a statement of reinspection fees payable by a dairy plant operator and may demand payment from the dairy plant operator when it issues an application form for the renewal of the dairy plant operator’s license under s. 97.20, Stats.

ATCP 65.04(11)(b) (b) Fee amounts. The reinspection fee required, under par. (a), includes, for each reinspection, a basic reinspection fee of $60 plus a supplementary reinspection fee as follows:

ATCP 65.04(11)(b)1. 1. For a grade A processing plant, a supplementary reinspection fee of $240 if the plant received more than 2,000,000 pounds of milk from milk producers during the previous calendar year, or a supplementary reinspection fee of $190 if the plant received 2,000,000 pounds or less of milk from milk producers during the previous calendar year.

ATCP 65.04(11)(b)2. 2. For a grade B processing plant, a supplementary reinspection fee of $210.

ATCP 65.04(11)(b)3. 3. For a grade A receiving station, a supplementary reinspection fee of $90.

ATCP 65.04(12) (12) Dairy product grading fee.

ATCP 65.04(12)(a) (a) A person applying for a license to produce gradable butter, for which grading is required under s. 97.176, Stats., or cheese at a grade B dairy plant shall pay an annual grading fee under s. 97.177, Stats.

ATCP 65.04(12)(b) (b) The grading fee, under par. (a), is 1.35 cents per 100 pounds of butter and cheese for which grading is required under s. 97.176 or 97.177, Stats., and that is produced at the dairy plant by any operator during the previous calendar year. If the dairy plant was not in operation during the previous calendar year, the license applicant shall pay a grading fee based on estimated production for the calendar year in which the application is made. At the end of the license year, the license holder shall report the actual calendar year production, and the department shall re-calculate the grading fee based on that actual production. If the grading fee based on actual production differs from the fee based on estimated production, the license holder shall pay the balance due or receive a credit from the department on the next year’s grading fee.

ATCP 65.04(12)(c) (c) For purposes of this subsection, ungraded cheese in 55 gallon metal or fiber barrels shall not be graded.

ATCP 65.04(13) (13) Dairy trade practices fee; monthly payments. A dairy plant operator shall pay a monthly dairy trade practice fee if required under s. 100.201 (6), Stats.

ATCP 65.04 Note Note: A dairy plant operator is required to pay a monthly dairy trade practice fee under s. 100.201 (6), Stats., if the operator sells milk, fluid milk products, ice cream, or other frozen desserts at wholesale or retail, in consumer package form, to persons in this state.

ATCP 65.04(14) (14) Grade A permit required.

ATCP 65.04(14)(a) (a) Except as provided under sub. (15), no person operating a dairy plant at which milk or fluid milk products are received, transferred, or processed may sell or distribute that milk or those fluid milk products as grade A milk or grade A milk products unless that person holds a valid grade A dairy plant permit issued by the department for that dairy plant. If a grade A receiving station or transfer station is operated at the same location as a grade B processing plant, a grade A permit is required for that receiving station or transfer station.

ATCP 65.04(14)(b) (b) A grade A dairy plant permit expires on April 30 annually and is not transferable between persons or locations. A grade A dairy plant permit may be issued in the form of an endorsement on a dairy plant license under sub. (1).

ATCP 65.04(15) (15) Grade A permit exemptions. A grade A permit is not required, under sub. (14), for any of the following:

ATCP 65.04(15)(a) (a) A grade A receiving station or transfer station operated at the same location, and by the same person, as a grade A processing plant covered by a permit under sub. (14).

ATCP 65.04(15)(b) (b) A grade A transfer station operated at the same location, and by the same person, as a grade A receiving station covered by a permit under sub. (14).

ATCP 65.04(16) (16) Grade A permit application. An application for a grade A dairy plant permit shall be made on a form provided by the department. A grade A permit application may be made in conjunction with a dairy plant license application under sub. (2).

ATCP 65.04(17) (17) Surcharge for operating without a grade A permit. An applicant for a grade A dairy plant permit shall pay a permit surcharge of $100 if the department determines that, within 365 days before submitting the permit application, the applicant operated the dairy plant as a grade A dairy plant without a grade A permit in violation of sub. (14). Payment of the surcharge does not relieve the applicant of any other civil or criminal liability that results from the operation of a grade A dairy plant without a grade A permit, but does not constitute evidence of any violation of law.

ATCP 65.04(18) (18) Action on grade A permit application; deadline. The department shall grant or deny a permit application, under sub. (16), within 40 days after the department receives a complete application or before the expiration of any temporary permit issued under sub. (19), whichever occurs later.

ATCP 65.04(19) (19) Temporary grade A permit. The department may issue a temporary grade A permit to an applicant, under sub. (16), pending final action on that person’s permit application. A temporary permit may be issued for a period of not more than 40 days and may not exceed the term of the dairy plant license or temporary license. If the department denies a permit application before the term of the temporary permit expires, the temporary permit is automatically terminated when the applicant receives notice of the denial. The department may not issue a temporary permit in response to a permit renewal application by the holder of an existing permit.

ATCP 65.04(20) (20) Prerequisites for grade A permit. The department may not issue or renew a grade A dairy plant permit, or issue a temporary permit under sub. (19), unless all of the following conditions are met:

ATCP 65.04(20)(a) (a) The permit applicant holds a dairy plant license under this section or the department issues the permit and license simultaneously. The department may issue a temporary grade A permit, under sub. (19), to an applicant holding a temporary dairy plant license under sub. (5) or may issue the temporary permit and temporary license simultaneously.

ATCP 65.04(20)(b) (b) The division inspects the dairy plant if the dairy plant is not currently covered by a grade A dairy plant permit.

ATCP 65.04(20)(c) (c) The applicant pays any surcharge, set forth in a statement from the department, which is due and payable by the applicant under sub. (9). The department shall refund a surcharge paid under protest if the department determines that the surcharge was not due and payable under sub. (9).

ATCP 65.04(21) (21) Grade A standards. A grade A dairy plant shall comply with standards applicable to the receipt, testing, transfer, processing, and distribution of grade A milk and grade A milk products under this chapter. A grade A dairy plant may not receive, transfer, or process grade B milk unless the receipt, transfer, or processing is authorized by the division in writing.