Chapter ATCP 65

ATCP 65.910(3) (3) Variances. The division administrator, or the division administrator’s designee, may issue a written waiver granting a variance from a dairy farm standard under subch. II if the division determines that the variance is reasonable and necessary under the circumstances, it will not compromise the purpose served by the standard, and the milk producer does not hold a grade A farm permit.

ATCP 65.910 History History: CR 14-073: cr. Register August 2016 No. 728, eff. 9-1-16.

ATCP 65.912 ATCP 65.912 Performance-based grade A dairy farm inspections.

ATCP 65.912(1) (1) General. The division shall use the performance standards in this section to determine grade A dairy farm inspection frequency. The division shall evaluate each grade A dairy farm every 3 months, on the basis of information including inspection reports, milk quality tests, and department compliance actions taken during the preceding 12 months. As provided in subs. (2) to (5), the division shall place each dairy farm in one of the following categories:

ATCP 65.912(1)(a) (a) Twelve-month inspection interval.

ATCP 65.912(1)(b) (b) Six-month inspection interval.

ATCP 65.912(1)(c) (c) Four-month inspection interval.

ATCP 65.912(1)(d) (d) Three-month inspection interval.

ATCP 65.912(2) (2) Twelve-month inspection interval. The division shall inspect a grade A dairy farm in the twelve-month inspection interval category at least once every 12 months. The division shall place a dairy farm in this category if all the following apply, based on dairy farm inspection reports, milk quality tests, and department compliance actions, during the preceding 12 months:

ATCP 65.912(2)(a) (a) None of the milk producer’s reported standard plate count (SPC) results exceed 25,000 per ml., except that one reported SPC result may exceed 25,000 per ml. if it is not more than 100,000 per ml.

ATCP 65.912(2)(b) (b) None of the milk producer’s reported somatic cell count (SCC) results exceed 500,000 per ml.

ATCP 65.912(2)(c) (c) None of the milk shipped by the milk producer has been found to contain a drug residue, and the department has not issued any warning to the milk producer under s. ATCP 65.920 (5) (c) or 65.922 (1).

ATCP 65.912(2)(d) (d) No dairy farm inspection report shows more than 5 violations, a violation observed during consecutive inspections, a violation that creates a substantial risk of adulteration, or a violation that creates an imminent health hazard.

ATCP 65.912(2)(e) (e) The department has not suspended the producer’s grade A dairy farm permit or milk producer license.

ATCP 65.912(2)(f) (f) The producer’s latest water supply test does not show any violation of s. ATCP 65.10.

ATCP 65.912(2)(g) (g) The milk producer has not violated any milk temperature or cooling standards under this chapter.

ATCP 65.912(3) (3) Six-month inspection interval. The division shall inspect a grade A dairy farm in the six-month inspection interval category at least once every 6 months. The division shall place a dairy farm in this category if all the following apply, based on dairy farm inspection reports, milk quality tests, and department compliance actions, during the preceding 12 months:

ATCP 65.912(3)(a) (a) The dairy farm fails to qualify under sub. (2).

ATCP 65.912(3)(b) (b) The department has issued no more than one warning to the milk producer under s. ATCP 65.920 (5) (a) 1. to 3.

ATCP 65.912(3)(c) (c) None of the milk shipped by the milk producer has been found to contain a drug residue, and the department has not issued any warning to the milk producer under ss. ATCP 65.920 (5) (c) or 65.922 (1).

ATCP 65.912(3)(d) (d) No dairy farm inspection report shows more than 5 violations, a violation observed during consecutive inspections, a violation that creates a substantial risk of adulteration, or a violation that creates an imminent health hazard.

ATCP 65.912(3)(e) (e) The department has not suspended the producer’s grade A dairy farm permit or milk producer license.

ATCP 65.912(3)(f) (f) The producer’s latest water supply test does not show any violation of s. ATCP 65.10.

ATCP 65.912(3)(g) (g) The milk producer has not violated any milk temperature or cooling standards under this chapter.

ATCP 65.912(4) (4) Four-month inspection interval.

ATCP 65.912(4)(a) (a) The division shall inspect a grade A dairy farm in the four-month inspection interval category at least once every 4 months. The division shall place a dairy farm in this category if subs. (2), (3), and (5) do not apply and if any of the following apply based on dairy farm inspection reports, milk quality tests, and department compliance actions, during the preceding 12 months:

ATCP 65.912(4)(a)1. 1. At least one load of milk shipped by the milk producer has been found to contain a drug residue.

ATCP 65.912(4)(a)2. 2. At least one violation for improper milk cooling under s. ATCP 65.18 (4), drug use and storage under ss. ATCP 65.20 (5) and 65.22 (8), or cleaning and sanitization of utensils and equipment under s. ATCP 65.12 was noted during the most recent inspection.

ATCP 65.912(4)(b) (b) Once the division places a dairy farm in the four-month inspection interval category, the division may not reassign the dairy farm to any inspection category under sub. (2) or (3) until a date that is at least 12 months after the division’s next 3-month evaluation of the dairy farm under this section.

ATCP 65.912(5) (5) Three-month inspection interval.

ATCP 65.912(5)(a) (a) The division shall inspect a grade A dairy farm in the three-month inspection interval category at least once every 3 months. The division shall place a dairy farm in this category if subs. (2) to (4) do not apply and if any of the following apply based on dairy farm inspection reports, milk quality tests, or department compliance actions, during the preceding 12 months:

ATCP 65.912(5)(a)1. 1. The department issued more than one warning to the milk producer under s. ATCP 65.920 (5).

ATCP 65.912(5)(a)2. 2. The department issued more than one warning to the milk producer under s. ATCP 65.922 (1).

ATCP 65.912(5)(a)3. 3. The division conducted more than one reinspection of the dairy farm.

ATCP 65.912(5)(a)4. 4. The department suspended the milk producer’s license or grade A dairy farm permit.

ATCP 65.912(5)(b) (b) Once the division places a dairy farm in the 3-month inspection interval category under par. (a), the division may not reassign the dairy farm to any inspection category under subs. (2) to (4) until a date that is at least 12 months after the division’s next 3-month evaluation of the dairy farm under this section.

ATCP 65.912 History History: CR 14-073: cr. Register August 2016 No. 728, eff. 9-1-16; correction in (2) (c), (3) (b), (c) made under s. 35.17, Stats., Register August 2016 No. 728.

ATCP 65.920 ATCP 65.920 Suspension or revocation of grade A producer permit or milk producer license.

ATCP 65.920(1) (1) General. The department may suspend or revoke a milk producer’s license, as provided in s. 93.06 (7), Stats. The suspension or revocation of a milk producer’s license also suspends or revokes a grade A producer permit held by the milk producer. A dairy plant shall not receive milk from a milk producer whose milk producer’s license is suspended or revoked.

ATCP 65.920(2) (2) Order for suspension or revocation. Except when a summary suspension is ordered as provided under sub. (3), the department may not suspend or revoke a milk producer’s license except by order of the secretary or the secretary’s designee, as provided in ch. ATCP 1, after notice and opportunity for hearing under subch. III of ch. 227, Stats. The division may file a written complaint with the department, seeking the suspension or revocation of a milk producer’s license. Pending completion of the suspension or revocation, the secretary or secretary’s designee may issue interim orders as necessary to protect the public health, safety, and welfare.

ATCP 65.920(3) (3) Summary suspension by the division. The division may issue a written notice summarily suspending a milk producer’s license if the division makes a written finding in its suspension notice that the milk producer has refused to permit inspection or sampling authorized by law, or that one or more conditions in pars. (a) to (e) are present, or one or more conditions indicate the sale or shipment of milk from the milk producer’s dairy farm poses an imminent hazard to public health and there is a reasonable likelihood that the hazard will continue if the milk producer’s license is not summarily suspended. A summary suspension notice shall comply with s. ATCP 65.925 and becomes effective when served on the milk producer. A milk producer served a summary suspension may request a hearing on the summary suspension notice, as provided in s. ATCP 65.928.

ATCP 65.920(3)(a) (a) An inspection of the milk producer’s dairy farm reveals gross violations of dairy farm standards under subchapter II, or reveals violations that constitute an acute hazard to public health.

ATCP 65.920(3)(b) (b) A confirmed standard plate count or plate loop count on the milk producer’s milk exceeds 1,000,000 per ml.

ATCP 65.920(3)(c) (c) Milk from the milk producer’s dairy farm is reasonably believed to contain pesticides or toxic substances that may be harmful to humans.

ATCP 65.920(3)(d) (d) An infectious disease, transmissible to humans through milk, is diagnosed by a licensed veterinarian in the milk producer’s herd.

ATCP 65.920(3)(e) (e) The producer has not made an agreement with the division for the disposition of violations, as required in any warning notice issued under s. ATCP 65.922 (4) or (5).

ATCP 65.920(4) (4) Inspection before reinstatement; reinspection fee. If an inspection is required for reinstatement of a grade A producer permit or milk producer license that is suspended or revoked under this section, the department shall charge a reinspection fee under s. ATCP 65.02 (19) for the inspection.

ATCP 65.920(5) (5) Warning notice preceding a suspension of a grade a milk producer permit.

ATCP 65.920(5)(a) (a) The division shall mail, serve in person, or prominently post in the milkhouse a written warning to a milk producer holding a Grade A milk producer permit whenever any of the following occurs:

ATCP 65.920(5)(a)1. 1. Two of the last 4 bacterial counts reported to the division under s. ATCP 65.70 (2) (d) exceed 100,000 per ml., in violation of the standard for grade A milk under s. ATCP 65.70 (2).

ATCP 65.920(5)(a)2. 2. Two of the last 4 somatic cell counts reported to the division under s. ATCP 65.70 (4) (e) exceed 750,000 per ml., for cow or sheep milk, or 1,000,000 per ml. for goat milk, in violation of the standard under s. ATCP 65.70 (4).

ATCP 65.920(5)(a)3. 3. Two of the last 4 milk temperature readings violate standards for grade A milk under s. ATCP 65.70 (5).

ATCP 65.920(5)(a)4. 4. A division representative finds a key violation as defined in s. ATCP 65.01 (33) during an inspection, including one or more repeat violations during 2 consecutive inspections, on a grade A dairy farm.

ATCP 65.920(5)(b) (b) A warning notice, under par. (a) 1. to 3., shall state that the milk producer’s grade A producer permit will be suspended if milk quality testing indicates a subsequent violation of the standard under s. ATCP 65.70 to which the warning notice pertains. A copy of the notice shall be mailed to the dairy plant operator who receives the milk producer’s milk. A warning notice becomes effective 3 business days after it is mailed, and remains in effect as long as the standard cited in the warning notice is violated on 2 of the last 4 reported tests.

ATCP 65.920(5)(c) (c) A warning notice, under par. (a) 4., shall state that the department will suspend the milk producer’s grade A producer permit if the producer does not correct the violation by a deadline date specified in the notice. The division representative shall specify a correction deadline based on the seriousness of the key violation and the time reasonably required to correct the key violation. The correction deadline shall be not less than 3 days nor more than 65 days after the division representative issues the warning notice. The division representative shall mail or deliver a copy of the warning notice to the dairy plant operator or milk contractor who procures milk from the milk producer. The warning notice shall include a notice of the milk producer’s right to hearing under s. ATCP 65.928.

ATCP 65.920(5)(d) (d) Not less than 3 calendar days nor more than 21 calendar days after a warning notice under par. (a) 1. to 3. becomes effective, the dairy plant operator, who receives the milk from the warned milk producer, shall obtain and test a sample of the milk producer’s milk for compliance with the milk quality standard cited under par. (a) 1. to 3. A milk sample collected under s. ATCP 65.38 and tested by a dairy plant operator under subchapter V satisfies this requirement, provided that the sample is obtained and tested within the time period specified under this paragraph, and the dairy plant operator reports the test result to the division within the applicable reporting time specified under subch. V.

ATCP 65.920(6) (6) Suspension of a grade a milk producer permit.

ATCP 65.920(6)(a) (a) The division shall mail a written notice to a milk producer suspending the milk producer’s grade A producer permit, if any of the following occurs while a warning notice under s. ATCP 65.920 (5) remains in effect:

ATCP 65.920(6)(a)1. 1. Three of the last 5 bacterial counts reported to the division under ss. ATCP 65.70 (2) (d) and 65.920 (5) (c) exceed 100,000 per ml.

ATCP 65.920(6)(a)2. 2. Three of the last 5 somatic cell counts reported to the division under ss. ATCP 65.70 (4) (e) and 65.920 (5) (c) exceed 750,000 per ml.

ATCP 65.920(6)(a)3. 3. Three of the last 5 milk temperature readings violate standards for grade A milk under s. ATCP 65.70 (5).

ATCP 65.920(6)(a)4. 4. If within 7 days after the correction deadline under sub. (5) (a) 4. the division representative finds that the milk producer has not corrected a key violation cited in the warning notice issued under sub. (5) (a) 4.

ATCP 65.920(6)(b) (b) The suspension of a milk producer’s grade A producer permit becomes effective when the suspension notice is served under s. ATCP 65.925 (6). The department shall give prior oral or written notice of the suspension, and mail or deliver a copy of the suspension notice, to the dairy plant operator who receives the milk producer’s milk. The suspension notice shall comply with s. ATCP 65.925. If a suspension notice is served under par. (a) 4., the division representative shall, within 24 hours, notify the dairy plant operator who receives the milk producer’s milk, and place a tag indicating that the milk is now to be handled as grade B milk on the outlet valve of the bulk tank or the outlet valve of a bulk milk tanker into which milk is directly transferred by a milking system under s. ATCP 65.16 (5), in order to notify the bulk milk weigher and sampler of the suspension. A person adversely affected by the suspension notice may request a hearing on the notice as provided under s. ATCP 65.928.

ATCP 65.920(7) (7) Reinstatement of grade a milk producer permit.

ATCP 65.920(7)(a) (a) A milk producer may ask the department to reinstate a grade A producer permit suspended under s. ATCP 65.920 (6). The milk producer shall make the request in writing, on a form provided by the department under s. ATCP 65.925 (4). If the suspension occurred because of a violation of sub. (6) (a) 1. to 3., the request shall include the result of a milk quality test performed by the dairy plant operator who receives the milk producer’s milk on a milk sample collected after the effective date of the suspension, showing that the milk producer is no longer violating the relevant milk quality standard.

ATCP 65.920(7)(b) (b) Within 7 days after the department receives a complete reinstatement request that complies with par. (a) the department shall do one of the following:

ATCP 65.920(7)(b)1. 1. If the milk producer seeks reinstatement of a grade A producer permit suspended under sub. (6) (a) 1. to 3., the department shall reinstate the grade A producer permit. The department shall notify the milk producer and the dairy plant operator who receives the milk producer’s milk of the reinstatement within 24 hours.

ATCP 65.920(7)(b)2. 2. If the milk producer seeks reinstatement of a grade A producer permit suspended under sub. (6) (a) 4., the department shall inspect the dairy farm and charge a reinspection fee under s. ATCP 65.02 (19). A division representative shall reinstate the grade A producer permit if the division representative finds that the milk producer has corrected all the conditions potentially responsible for the violations cited in the suspension notice. The division representative shall notify the dairy plant operator who receives the milk producer’s milk of the reinstatement within 24 hours.

ATCP 65.920(7)(c) (c) If a milk producer does not request reinstatement, under par. (a), within 6 months after the producer’s grade A producer permit is suspended under this section, the permit is automatically revoked at the end of the 6-month period. Once revoked, the grade A producer permit may not be reinstated except upon the filing of a new application under s. ATCP 65.02 (10). Written notice of the reinstatement process shall be provided to the milk producer at the time of suspension. This paragraph does not apply if the suspension of the milk producer’s grade A producer permit has been contested, and the contested case proceedings are still pending. The time limit for the reinstatement request is measured from the conclusion of the contested case proceedings concerning the suspension of the milk producer’s grade A producer permit.

ATCP 65.920 Note Note: Subsection (7) does not prohibit the division from summarily suspending a milk producer’s license and grade A producer permit under s. ATCP 65.920 without prior warning if the division determines that any of the circumstances identified under s. ATCP 65.920 (3) exist.

ATCP 65.920 History History: CR 14-073: cr. Register August 2016 No. 728, eff. 9-1-16; correction in (5) (b), (c), (6) (a) 4. made under s. 35.17, Stats., Register August 2016 No. 728.

ATCP 65.922 ATCP 65.922 Enforcement actions taken in response to drug residue violations.

ATCP 65.922(1) (1) Warning notice. Whenever the division receives notice under s. ATCP 65.72 (9) that a milk producer milk sample has yielded a confirmed positive test result for drug residue, the division shall mail a warning notice to that milk producer. The warning notice takes effect 3 business days after it is mailed. The warning notice shall include all of the following:

ATCP 65.922(1)(a) (a) A description of the positive drug residue findings that caused the division to issue the notice.

ATCP 65.922(1)(b) (b) The deadlines and penalties specified in subs. (2), (4), or (5).

ATCP 65.922(1)(c) (c) Notice of the milk producer’s right to hearing under sub. (6).

ATCP 65.922(1)(d) (d) Notice that a division representative will conduct an investigation under sub. (3).

ATCP 65.922(2) (2) Deadlines and penalties after a first violation in 12 months.

ATCP 65.922(2)(a) (a) Grade A producer permit suspension; 21-day deadline. The warning notice under par. (a) shall state that, no less than 21 days after the effective date of the warning notice, the department will suspend the milk producer’s grade A producer permit unless, prior to that date, the milk producer certifies to the division that the milk producer has implemented a drug residue prevention program on the milk producer’s dairy farm in consultation with a licensed veterinarian.

ATCP 65.922(2)(b) (b) Notice suspending grade A producer permit. If the division does not receive a milk producer certification within the 21-day period specified under sub. (2) (a), the department shall mail a notice to the milk producer suspending the milk producer’s grade A producer permit. The suspension notice shall comply with s. ATCP 65.925. The suspension notice takes effect when the suspension notice is served under s. ATCP 65.925 (6). The division shall notify the dairy plant operator or milk contractor who procures milk from the milk producer of the suspension, and shall provide that dairy plant operator or milk contractor with a copy of the suspension notice.

ATCP 65.922(2)(c) (c) Grade A producer permit reinstatement. If the department suspends a milk producer’s grade A producer permit, under par. (a), the milk producer may request the department to reinstate the permit. Written notice of the reinstatement process shall be included in the suspension notice under par. (a), and shall also be provided to the milk producer at the time of suspension.

ATCP 65.922(2)(c)1. 1. The milk producer shall file the reinstatement request in writing, on a form provided by the department, under s. ATCP 65.925 (4). The request shall include a certification or attestation that the milk producer has implemented a drug residue prevention program on the milk producer’s dairy farm in consultation with a licensed veterinarian.

ATCP 65.922(2)(c)2. 2. Within 7 business days after the department receives a complete reinstatement request under subd. 1., the division shall inspect the milk producer’s dairy farm. The department shall charge a reinspection fee for the inspection, pursuant to s. ATCP 65.02 (19). If, upon inspection, it appears that all conditions potentially responsible for the positive drug residue finding have been corrected and the milk producer has implemented a qualified drug residue prevention program in consultation with a licensed veterinarian, the division representative shall reinstate the milk producer’s grade A producer permit and shall notify the dairy plant operator or milk contractor of the reinstatement within 24 hours.

ATCP 65.922(2)(c)3. 3. If a milk producer does not request reinstatement under subd. 1., within 6 months after the milk producer’s grade A producer permit is suspended under par. (a), the permit is revoked automatically at the end of the 6-month period. A permit, once revoked, may not be reinstated unless the milk producer files a new application under s. ATCP 65.02 (11). This subdivision does not apply if the milk producer contests the grade A producer permit suspension and the contested case proceeding is pending. The time limit for the reinstatement request is measured from the conclusion of the contested case proceedings concerning the suspension of the milk producer’s grade A producer permit.

ATCP 65.922(2)(d) (d) Milk producer license suspension; 45-day deadline. The warning notice under par. (a) shall state that, no less than 45 days after the effective date of the warning notice, the department will initiate action to suspend the milk producer’s license unless, prior to that date, the milk producer certifies to the division that the milk producer has implemented a drug residue prevention program on the milk producer’s dairy farm in consultation with a licensed veterinarian.

ATCP 65.922(2)(e) (e) Milk producer license suspension; failure to implement drug residue prevention program. If the division does not receive a milk producer certification within the 45-day period specified under par. (d), the division shall file a complaint asking the department to suspend the milk producer’s license until the milk producer implements a drug residue prevention program.

ATCP 65.922 Note Note: The drug residue prevention program under this section should conform to the “Milk and Dairy Beef Quality Assurance Program” published by Agri-Education, Inc. A copy of that manual is on file with the division and the legislative reference bureau and may be obtained from the Milk & Dairy Beef Quality Assurance Center, 801 Shakespeare Avenue, Stratford, Iowa, 50249, telephone [phone], website www.dqacenter.org/catalog.htm.

ATCP 65.922(3) (3) Investigation. After the division issues a warning notice under sub. (1), the division representative shall conduct an investigation to determine the cause of the drug residue violation and to identify milk producer actions that may be necessary to prevent future violations. The division may direct the dairy plant operator or milk contractor who procures milk from the milk producer to conduct the investigation as the division’s agent and report its findings to the division, in writing.

ATCP 65.922(4) (4) Deadline and penalties after a second violation within 12 months. If, at least 24 hours and not more than 12 months after a confirmed positive drug test result is reported to the division, the division receives a notice under s. ATCP 65.72 (9) of another confirmed positive drug residue test result on a milk sample from a shipment received from the dairy farm operating under the same milk producer license, a warning notice under sub. (1) (a) shall be mailed to the milk producer. The warning notice takes effect 3 business days after it is mailed and shall include the information under sub. (1) (a), (c), and (d). The warning notice shall state that the department shall suspend the milk producer license under s. ATCP 65.920 for at least 5 days unless the milk producer agrees within 15 days of the warning notice taking effect to do all of the following: