Chapter ATCP 65

ATCP 65.72(3)(e) (e) Testing with an unapproved method. If the dairy plant uses a testing method that is not approved by the division and detects residues of one or more drugs for which the division has not required testing, under par. (b), that result shall be treated as a valid test result and reported to the division. The test result shall then either be confirmed under sub. (4) using a drug residue detection method approved by the division or the milk must be discarded under sub. (5). The dairy plant may recover the milk value, under sub. (6), if the confirmatory test result is obtained using a drug residue detection method approved by the division.

ATCP 65.72(3)(f) (f) Testing of frozen sheep milk for drug residues. A sheep milk producer intending to freeze the sheep milk before shipment must either sample or test the sheep milk for drug residues before bagging and freezing the sheep milk. The sample or test result must remain with the bag or bags of frozen sheep milk to which the sample or test result pertains. Each bag of frozen sheep milk shall be labeled to indicate the grade of milk, the dairy plant receiving the milk, the sheep milk producer, the total number of bags to which the sample or test result pertains, and the date on which the bag was filled with sheep milk. Sheep milk samples must be frozen within 24 hours of sampling, must be maintained at -15° C. (5° F.) or colder (documentation of storage temperature maintained) and must be tested with 60 days of sampling.

ATCP 65.72(4) (4) Drug residue found in bulk load; follow-up testing. If a bulk load of milk yields a confirmed positive test result for drug residue under sub. (3), the dairy plant operator shall perform a drug residue test on each of the individual milk producer samples collected for that bulk load under s. ATCP 82.12. The dairy plant operator shall test each milk producer’s sample before collecting any further milk from that producer. The drug residue test performed on each producer sample shall be sensitive to the same drug residue that was detected in the bulk load. If a milk producer’s sample tests positive for any drug residue, the dairy plant operator shall perform a confirmatory test using the same test method and sample. The dairy plant operator shall perform the confirmatory test in duplicate, with single positive and negative controls. If either confirmatory test result is positive for a drug residue, the milk producer’s sample is considered positive for that drug residue.

ATCP 65.72(5) (5) Drug residue found in bulk load; load rejected. If a bulk load of milk from one or more milk producers yields a confirmed positive test result for drug residue under sub. (3), the dairy plant operator shall reject the entire bulk load. Milk from a rejected bulk load may not be used for human food. The dairy plant operator shall denature or take responsibility for disposing of the rejected bulk load in a manner that precludes its use for human food.

ATCP 65.72(6) (6) Rejected bulk load; dairy plant recovery from producers or milk contractors.

ATCP 65.72(6)(a) (a) Dairy plant loss recovery. If a dairy plant operator properly rejects a bulk load of milk under sub. (5), the dairy plant operator may recover the value of that bulk load from producers whose milk samples, representing milk shipments contained in that bulk load, yield a confirmed positive test result for drug residue under sub. (4). If the milk has been procured by the dairy plant from a milk contractor, the dairy plant operator may recover the value of that bulk load from the milk contractor, who may then recover the value of that bulk load from the milk producers. The dairy plant operator may recover what would have been the value of the bulk load, had the load not yielded a confirmed positive test result for drug residue. The dairy plant operator shall also recover any additional bulk load disposal, transportation, and testing costs that the dairy plant operator incurs because the bulk load yielded a confirmed positive test result for drug residue.

ATCP 65.72(6)(b) (b) Pro rata recovery. The dairy plant operator, or milk contractor, if recovering milk costs under par. (a), shall recover, from each producer identified in par. (a), a pro rata share of the total recovery amount under par. (a). The pro rata recovery from each producer shall be based on the size of that producer’s shipment compared to those of any other producers in the same bulk load. If there is only one producer identified in par. (a), the operator shall recover the entire amount from that producer.

ATCP 65.72(6)(c) (c) Recovery deadline. The dairy plant operator or milk contractor shall recover the full amount owed by each offending milk producer, under par. (b), within 90 days after that producer’s milk sample yields a confirmed positive test result for drug residue under sub. (3). If the dairy plant operator or milk contractor fails to recover the full amount within that time period, the dairy plant operator shall give the department a written explanation.

ATCP 65.72(6)(d) (d) Payroll deduction. A dairy plant operator or milk contractor may deduct the amount owed by an offending milk producer, under par. (b), from the dairy plant operator’s payroll obligation to that offending milk producer.

ATCP 65.72(6)(e) (e) Notice of deduction. A dairy plant operator or milk contractor shall give a milk producer at least 30 days prior written notice of any deduction, under par. (d), unless the milk producer transfers to another dairy plant operator. The notice shall state all the following:

ATCP 65.72(6)(e)1. 1. The basis for the deduction.

ATCP 65.72(6)(e)2. 2. The total amount of the deduction.

ATCP 65.72(6)(e)3. 3. The date on which the dairy plant operator or milk contractor will make each deduction.

ATCP 65.72(6)(e)4. 4. That the dairy plant operator or milk contractor will meet with the milk producer to discuss the deduction, at the milk producer’s request.

ATCP 65.72(6)(f) (f) Meeting to discuss recovery. A dairy plant operator or milk contractor shall meet with a milk producer, at the milk producer’s request, to discuss the recovery from that milk producer under this subsection. The dairy plant operator or milk contractor shall meet with the milk producer within 10 days after the milk producer requests the meeting, unless the milk producer requests a later meeting date. If the milk producer contests the validity of the recovery, and the matter is not resolved, the dairy plant operator or milk contractor shall notify the milk producer that the milk producer may request a hearing before the department under par. (g).

ATCP 65.72(6)(g) (g) Hearing request. If a milk producer contests the validity of a recovery under this subsection, and if the parties do not resolve the matter after meeting under par. (f), the producer may request a hearing before the division. A request for hearing does not automatically stay a recovery under this subsection.

ATCP 65.72(6)(h) (h) Informal hearing. If a milk producer requests a hearing under par. (g), the division shall hold an informal hearing by telephone or at the division’s nearest office. The division shall hold the informal hearing within 20 days after the division receives the hearing request, unless the milk producer agrees to a later hearing date. The division shall include the producer and the dairy plant operator or milk contractor in the informal hearing.

ATCP 65.72(6)(i) (i) Formal hearing. If an informal hearing, under par. (h), does not resolve the matter, a milk producer may request a contested case hearing before the department under ch. ATCP 1 and ch. 227, Stats. A request for hearing does not automatically stay a recovery under this subsection. If the department grants a milk producer’s request for hearing, the department shall include the milk producer and the dairy plant operator or milk contractor as parties to the hearing.

ATCP 65.72(6)(j) (j) Invalid recovery. If the department finds that a recovery under this subsection is invalid, the department may prohibit the recovery or order the dairy plant operator or milk contractor to repay the producer. The division may issue an order under this paragraph after the division holds an informal hearing under par. (h). If the division issues an order under this paragraph, the dairy plant operator may request a contested case hearing under ch. ATCP 1 and ch. 227, Stats., to contest the division’s order. A request for hearing does not automatically stay the division’s order.

ATCP 65.72(7) (7) Producer milk shipments rejected.

ATCP 65.72(7)(a) (a) Dairy plant to reject. A dairy plant operator shall immediately notify a milk producer directly, or via the milk contractor from whom the producer’s milk was procured, and shall reject that producer’s milk shipments as required under par. (b), if any of the following occurs:

ATCP 65.72(7)(a)1. 1. A sample of the producer’s milk, under sub. (1), yields a confirmed positive test result for drug residue.

ATCP 65.72(7)(a)2. 2. A sample of the producer’s milk, under sub. (4), yields a confirmed positive test result for drug residue.

ATCP 65.72(7)(a)3. 3. A sample of the producer’s milk yields a confirmed positive test result for drug residue after that milk has been commingled with milk from other producers, regardless of whether the drug residue test is required under this chapter.

ATCP 65.72(7)(b) (b) Producer milk rejected. If a dairy plant operator is required to reject producer milk shipments under par. (a), the dairy plant operator shall reject all milk produced on that dairy farm until a sample of that milk tests negative for drug residues by the same or an equivalent test at a laboratory that is certified under s. ATCP 77.03 (2) (c) to perform confirmatory tests.

ATCP 65.72(7)(c) (c) Rejected milk; use prohibited. If a dairy plant operator rejects a producer’s milk under par. (b), no person may do any of the following:

ATCP 65.72(7)(c)1. 1. Ship, collect, or use that milk for human food.

ATCP 65.72(7)(c)2. 2. Commingle that milk with milk from any other producer.

ATCP 65.72(7)(d) (d) Transfer between dairy plants. If a dairy plant operator rejects a producer’s milk under par. (b), the milk producer or a milk contractor may not ship that producer’s milk to another dairy plant until a dairy plant operator tests that producer’s milk and the milk tests negative for drug residue on the same or an equivalent test at a laboratory that is certified under s. ATCP 77.03 (2) (c) to perform confirmatory tests.

ATCP 65.72(8) (8) Reporting drug residue findings; bulk loads. Within 2 hours after a bulk load of milk yields a confirmed positive test result for drug residue under sub. (2), the dairy plant operator shall report the drug test result to the division by telephone, electronic mail, or facsimile (FAX) transmission. The dairy plant operator shall confirm the report in writing, in a form approved by the division, within 3 business days after the drug residue test is completed. The report shall indicate the result of the drug residue test, the volume of milk contained in the bulk load, and the dairy plant’s disposition of that milk.

ATCP 65.72(9) (9) Reporting drug residue findings; producer milk shipments.

ATCP 65.72(9)(a) (a) Dairy plant to report. Whenever any of the following occurs, the dairy plant operator that performs the drug residue test shall report the test result to the division under par. (b):

ATCP 65.72(9)(a)1. 1. A milk producer sample, under sub. (1), yields a confirmed positive test result for drug residue.

ATCP 65.72(9)(a)2. 2. A milk producer sample, under sub. (4), yields a confirmed positive test result for drug residue.

ATCP 65.72(9)(a)3. 3. A sample of a producer’s milk yields a confirmed positive test result for drug residue after that milk has been commingled with milk from other producers, regardless of whether the drug residue test is required under this chapter.

ATCP 65.72(9)(b) (b) Form of report. Whenever a dairy plant operator is required to report a drug residue test result under par. (a), the dairy plant operator shall report that result to the division by telephone, electronic mail, or facsimile (FAX) transmission. The dairy plant operator shall make the report within 2 hours after the drug residue test is completed. The dairy plant operator shall confirm the report in writing, on a form approved by the division, within 3 business days after the drug residue test is completed.

ATCP 65.72(10) (10) Inspection by division; reinspection fee. The division may, in its discretion, inspect a dairy farm in response to any positive drug residue test report under sub. (8) or (9). The division shall charge a reinspection fee for the inspection under s. ATCP 65.02 (19). The division shall not charge a reinspection fee if it makes its inspection more than 3 weeks after the dairy plant operator reports the drug residue test result to the division.

ATCP 65.72(11) (11) Drug residue test results.

ATCP 65.72(11)(a) (a) Positive test result; general. For purposes of this section and s. ATCP 65.922, a drug residue test is considered positive if the detected amount of drug residue exceeds the action level specified for that drug under par. (b). The action levels, under par. (b), do not establish legal tolerances for drug residues in milk, nor do they preclude the department from taking enforcement action where drug residues are present at levels below these action levels.

ATCP 65.72(11)(b) (b) Specified drug tests; positive test result. In a test for any of the following drugs, the action level is exceeded whenever the drug residue level found in the test exceeds the level specified below:

ATCP 65.72(11)(b)1. 1. Ampicillin 10 ppb

ATCP 65.72(11)(b)2. 2. Amoxicillin 10 ppb

ATCP 65.72(11)(b)3. 3. Cephapirin 20 ppb

ATCP 65.72(11)(b)4. 4. Ceftiofur 100 ppb

ATCP 65.72(11)(b)5. 5. Cloxacillin 10 ppb

ATCP 65.72(11)(b)6. 6. Novobiocin 100 ppb

ATCP 65.72(11)(b)7. 7. Penicillin G 5 ppb

ATCP 65.72(11)(b)8. 8. Sulfadimethoxine 10 ppb

ATCP 65.72(11)(b)9. 9. Tetracyclines* 300 ppb

ATCP 65.72 Note Note: Action levels specified under this paragraph are based on tolerances and/or target testing levels specified by the United States food and drug administration, and identified in a memorandum from FDA’s Milk Safety Branch, M-I-05-5, September 27, 2005. A copy of the memorandum is on file with the department, and is available upon request.

ATCP 65.72 Note For drugs identified with an asterisk (*), the levels in this paragraph are based on “safe levels” specified by FDA. ”Safe levels” are merely enforcement guides and do not constitute legal tolerances. ”Safe levels” are not binding on the courts or the department. They do not limit the department’s discretion in any way, and they do not protect milk producers or milk itself from enforcement action. “Safe levels” do not constitute animal drug tolerances under section 512 (b) of the federal food, drug and cosmetic act.

ATCP 65.72(11)(c) (c) Test result presumed valid. For purposes of this section and s. ATCP 65.922, whenever a dairy plant operator reports a confirmed positive test result to the division under sub. (9), that test result is presumed to be valid. The milk producer may appeal the test result in an informal hearing under s. ATCP 65.928.

ATCP 65.72(12) (12) Laboratory reporting. A laboratory that performs tests under this section for a dairy plant operator may report the test results for the dairy plant operator.

ATCP 65.72(13) (13) Timely testing. Drug residue tests required under this section shall be completed within 72 hours after the tested milk, or any portion of the tested milk, was first collected from a dairy farm.

ATCP 65.72 Note Note: If a drug residue test is performed on a bulk load of milk collected from several dairy farms, the test must be completed within 72 hours after the bulk milk weigher and sampler collects milk from the first farm. Confirmation of positive drug residue screening tests, at a different laboratory than the laboratory which performed the screening tests, as required under s. ATCP 65.72 (3), must be completed within the same 72-hour period.

ATCP 65.72 History History: CR 14-073: cr. Register August 2016 No. 728, eff. 9-1-16; correction in (3) (e) made under s. 35.17, Stats., Register August 2016 No. 728.

ATCP 65.74 ATCP 65.74 Milk and dairy products; quality standards.

ATCP 65.74(1) (1) Milk held at dairy plant; bacterial count. The bacterial count of commingled grade A milk held at a dairy plant before pasteurization may not exceed 300,000 per ml. The bacterial count of grade B milk held at a dairy plant before pasteurization or processing may not exceed 750,000 per ml.

ATCP 65.74(2) (2) Pasteurized grade A dairy products.

ATCP 65.74(2)(a) (a) Bacterial counts in pasteurized grade A dairy products other than cultured dairy products may not exceed the following levels:

ATCP 65.74(2)(a)1. 1. 20,000 per ml., except as provided in subd. 2. and 3.

ATCP 65.74(2)(a)2. 2. 10,000 per g. for nonfat dry milk.

ATCP 65.74(2)(a)3. 3. 30,000 per ml. for condensed milk, whey, whey products, and dried whey.

ATCP 65.74(2)(b) (b) Coliform counts in pasteurized grade A dairy products may not exceed 10 per ml. or per gram, except that coliform counts in bulk milk tanker shipments of pasteurized grade A dairy products may not exceed 100 per ml.

ATCP 65.74(2)(c) (c) In pasteurized grade A milk without added flavors or ingredients, other than vitamins, there shall be fewer than 350 milliunits of phosphatase per liter as determined by the Fluorophos ALP method, the Charm Paslite Alkaline Phosphatase method or another test method approved by the department.

ATCP 65.74(2)(d) (d) The yeast and mold count of pasteurized cottage cheese may not exceed 10 per gram.

ATCP 65.74(3) (3) Pasteurized grade b dairy products.

ATCP 65.74(3)(a) (a) Bacterial counts in pasteurized grade B dairy products, other than cultured dairy products or frozen desserts containing nuts or other inclusions, may not exceed the following levels:

ATCP 65.74(3)(a)1. 1. 20,000 per ml., except as provided in subd. 2. or 3.

ATCP 65.74(3)(a)2. 2. 30,000 per ml. for condensed milk, whey, whey products, dried whey, and nonfat dry milk.

ATCP 65.74(3)(a)3. 3. 50,000 per gram for frozen desserts, except that the bacterial count for frozen-dessert mixes may not exceed 20,000 per gram.

ATCP 65.74(3)(b) (b) Coliform counts in pasteurized grade B dairy products, other than grade B dairy products made with natural or added cultures and all natural cheeses, may not exceed 10 per ml. or per gram, except that coliform counts in bulk milk tanker shipments may not exceed 100 per ml.

ATCP 65.74(4) (4) Fortified dairy products. Whenever milk or a fluid milk product is fortified with vitamin A or D the fortification shall comply with Appendix O of the PMO.

ATCP 65.74(5) (5) Pathogen confirmed in ready-to-eat dairy product; sale prohibited. A dairy plant operator may not sell or distribute any ready-to-eat dairy product in which a microbiological test or laboratory analysis has confirmed the presence of a pathogenic organism or toxin. Results of the microbiological test or laboratory test shall be reported to the division, under s. ATCP 65.46 (2).

ATCP 65.74 Note Note: Copies of PMO Appendix O are on file with the department and the legislative reference bureau. Copies may be obtained from the department at cost or online at:www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/Milk.

ATCP 65.74 History History: CR 14-073: cr. Register August 2016 No. 728, eff. 9-1-16.

ATCP 65.76 ATCP 65.76 Milk quality testing.

ATCP 65.76(1) (1) Required testing.

ATCP 65.76(1)(a) (a) A dairy plant operator shall test raw milk from dairy farms as required under this chapter.

ATCP 65.76(1)(b) (b) A dairy plant operator shall test milk and dairy products held or processed at a dairy plant for compliance with standards specified under s. ATCP 65.74 (1) to (4). The dairy plant operator shall test the milk and dairy products as often as necessary to provide reasonable statistical assurance of compliance.

ATCP 65.76(2) (2) Laboratory.

ATCP 65.76(2)(a) (a) Except as provided under par. (b), milk quality tests required under this chapter shall be performed in a laboratory that is all of the following:

ATCP 65.76(2)(a)1. 1. Approved by the department to conduct milk quality tests.

ATCP 65.76(2)(a)2. 2. Certified by the department under s. ATCP 77.03, or by an equivalent certifying agency in another state, to conduct milk quality tests.

ATCP 65.76(2)(b) (b) A laboratory that is not certified under s. ATCP 77.03 to perform a drug residue test under s. ATCP 65.72 may perform that test as a screening test if all of the following apply:

ATCP 65.76(2)(b)1. 1. The department has approved that laboratory to perform that screening test under s. ATCP 77.23 (1).

ATCP 65.76(2)(b)2. 2. The department has approved the person who performs the screening test under s. ATCP 77.23 (2).

ATCP 65.76(2)(b)3. 3. A different laboratory performs a confirmatory test if the screening test result is positive for drug residue. The laboratory performing the confirmatory test shall be certified to do so under s. ATCP 77.03. The laboratory shall perform the confirmatory test on the same test sample using the same or an equivalent test method and shall complete the confirmatory test within the time period specified in s. ATCP 65.72 (8).

ATCP 65.76(2)(c) (c) The department may withdraw its approval under par. (a) or (b) for cause, including false or inaccurate test results or reports, or failure to conduct tests according to required procedures.