Chapter ATCP 65

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:

ATCP 65.922(4)(a) (a) Discard one shipment of milk, as defined by the department, pursuant to s. ATCP 65.72 (7), or pay a civil forfeiture for the maximum amount, under s. 97.72 (2), Stats., for one violation of this subsection.

ATCP 65.922(4)(b) (b) Attend and present a certificate of completion for a drug residue prevention course approved by the department within 180 days of the warning notice taking effect. The certificate of course completion shall be signed by the milk producer, a licensed veterinarian, and the field representative of the dairy plant to which the milk producer’s milk is shipped.

ATCP 65.922(5) (5) Deadline and penalties after a third violation within 12 months. If, at least 24 hours after a second confirmed positive drug residue test result is reported to the division under sub. (4), and not more than 12 months after a first confirmed positive drug residue test result is reported to the division under sub. (4), the division receives a notice under s. ATCP 65.72 (9) of another confirmed positive drug residue test result on a milk sample 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’s grade A producer permit, under s. ATCP 65.920, for at least 10 days unless the milk producer agrees within 15 days of the warning notice taking effect to do all of the following:

ATCP 65.922(5)(a) (a) Discard two shipments of milk, as defined by the department, pursuant to s. ATCP 65.72 (7), or pay a civil forfeiture for the maximum amount, under s. 97.72 (2), Stats., for two violations of this subsection.

ATCP 65.922(5)(b) (b) Develop and implement a drug residue prevention program approved by the department and present documentation indicating that this program has been implemented for at least 90 days after the warning notice taking effect.

ATCP 65.922 Note Note: The drug residue prevention course shall cover proper administration of animal medications, be approved by the department, and require collaboration between the milk producer and a licensed veterinarian.

ATCP 65.922(6) (6) Right to informal hearing. If a milk producer receiving a warning notice under this section disputes the drug residue findings on which the notice is based, the milk producer may request an informal hearing to discuss the drug residue findings. A request for hearing does not automatically stay the warning notice. If the milk producer requests an informal hearing, the division shall hold an informal hearing at the division’s office or by telephone. The division shall hold the informal hearing within 20 days after the division receives the request for hearing, unless the milk producer agrees to a later hearing date. The division may withdraw a warning notice if it appears that the notice was not justified.

ATCP 65.922 History History: CR 14-073: cr. Register August 2016 No. 728, eff. 9-1-16; correction in (5) made under s. 35.17, Stats., Register August 2016 No. 728.

ATCP 65.925 ATCP 65.925 Suspension notice; requirements. Whenever the division suspends a milk producer license under s. ATCP 65.920 (3), or a grade A producer permit, under s. ATCP 65.920 (6) or 65.922 (2) or, the suspension notice shall comply with all of the following requirements:

ATCP 65.925(1) (1) Issued by authorized person. A suspension notice shall be issued by one of the following:

ATCP 65.925(1)(a) (a) The division administrator.

ATCP 65.925(1)(b) (b) A person that the division administrator designates in writing, by name or position.

ATCP 65.925(1)(c) (c) A division representative if the suspension notice is issued under s. ATCP 65.920 (6) (a) 4.

ATCP 65.925(2) (2) Reason for suspension. A suspension notice shall specify the reasons for which the suspension notice is issued.

ATCP 65.925(3) (3) Term of suspension; reinstatement requirement. A suspension notice shall indicate the term of the suspension or, if the suspension is for an indefinite term, the conditions that the milk producer must meet in order to obtain reinstatement of the milk producer license or grade A producer permit. Conditions for reinstatement shall be reasonably related to the reasons for which the license or permit is suspended. A summary license suspension notice under s. ATCP 65.920 (2) may authorize a dairy plant operator to receive milk from the suspended milk producer directly or via a milk contractor, on a conditional basis, pending full reinstatement of the milk producer’s license, provided that the dairy plant operator or milk contractor performs inspections or tests specified in the suspension order.

ATCP 65.925(4) (4) Reinstatement application form. A notice suspending a grade A producer permit, under s. ATCP 65.920 (6) (a), shall be accompanied by a reinstatement application form which may be used by the affected milk producer to apply for reinstatement of the milk producer’s grade A producer permit. The form shall include a statement, to be signed by the affected milk producer, that all requirements for the reinstatement of the grade A producer permit have been met to the best of the milk producer’s knowledge. If a milk producer requests a hearing on a suspension under s. ATCP 65.928, a request for reinstatement under this subsection does not constitute an admission or waiver by the milk producer with respect to any fact, issue or cause of action.

ATCP 65.925(5) (5) Notice of right to hearing. A suspension notice shall include a notice that the milk producer may request a hearing on the suspension, as provided under s. ATCP 65.928.

ATCP 65.925(6) (6) Service on milk producer. A suspension notice shall be served on the affected milk producer by one of the following methods:

ATCP 65.925(6)(a) (a) By delivering the notice in person to the milk producer or to a competent member of the milk producer’s household who is 14 years of age or older.

ATCP 65.925(6)(b) (b) By mailing the notice to the milk producer. Service may be proved by an affidavit of mailing or by a return receipt signed by the milk producer. Absent proof of later delivery, a notice served by mail is considered served three business days after the date of mailing.

ATCP 65.925(6)(c) (c) For a notice suspending a grade A producer permit, under s. ATCP 65.920 (6), by posting the suspension notice in a prominent location in the milk producer’s milkhouse. A notice posted in the milkhouse under this paragraph is considered served at the time of posting.

ATCP 65.925(7) (7) Copy provided to dairy plant operator. A copy of every suspension notice shall be mailed or delivered to the dairy plant operator or milk contractor who normally procures milk from the milk producer at least three days before the start of the suspension. Failure to mail or deliver a copy to the dairy plant operator or milk contractor does not invalidate a suspension notice.

ATCP 65.925 History History: CR 14-073: cr. Register August 2016 No. 728, eff. 9-1-16; correction in (intro.) made under s. 35.17, Stats., Register August 2016 No. 728.

ATCP 65.926 ATCP 65.926 Dairy plant license and grade A permit suspension or revocation.

ATCP 65.926(1) (1) The department may suspend or revoke a dairy plant license or grade A dairy plant permit, as provided in s. 93.06 (7), Stats., except as provided under sub. (2), the department may not suspend or revoke a dairy plant license or grade A dairy plant permit 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 dairy plant license or grade A dairy plant permit. Pending completion of the proceedings, the secretary or the secretary’s designee may issue interim orders as necessary to protect the public health, safety and welfare. If an inspection is required for the reinstatement of a dairy plant license or grade A dairy plant permit 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 65.926(2) (2) The department may suspend or revoke a dairy plant license or grade A dairy plant permit, as provided under s. 93.06 (7), Stats., for cause including any of the following:

ATCP 65.926(2)(a) (a) A violation of this chapter or ch. ATCP 100.

ATCP 65.926(2)(b) (b) Interference with lawful inspection or sampling by the department or a certifying agency under s. ATCP 65.930, or refusal to permit lawful inspection or sampling by the department or a certifying agency under s. ATCP 65.930.

ATCP 65.926(2)(c) (c) Refusal to permit the lawful inspection or copying of documents under s. ATCP 65.44 (2).

ATCP 65.926(2)(d) (d) Failure to pay fees required under s. ATCP 65.04.

ATCP 65.926 Note Note: The procedure for suspending or revoking a dairy plant license or grade A permit is specified in ch. ATCP 1.

ATCP 65.926(3) (3) The suspension or revocation of a dairy plant license automatically suspends or revokes any grade A permit that the dairy plant operator holds for that dairy plant.

ATCP 65.926 Note Note: Violations of this chapter may also result in court prosecution under s. 97.72 or 97.73, Stats.

ATCP 65.926 History History: CR 14-073: cr. Register August 2016 No. 728, eff. 9-1-16; correction in (2) (c) made under s. 35.17, Stats., Register August 2016 No. 728.

ATCP 65.927 ATCP 65.927 Holding orders; identification and disposal of adulterated milk.

ATCP 65.927(1) (1) Holding order. Whenever a division representative has reasonable cause to believe that milk or a milk product examined by the division representative is adulterated or misbranded and is dangerous to health or misleading to the injury or damage of a purchaser or consumer, the division representative may issue a temporary holding order to allow for further testing or examination of the milk or milk product, pursuant to s. 97.12 (2), Stats. A holding order shall be written and shall identify the milk or milk product that is subject to the holding order. The division may extend or terminate a holding order by written notice, as provided in s. 97.12 (2), Stats. A notice extending a holding order shall be signed by the division administrator, or a person authorized in writing by the division administrator. A holding order and every notice extending a holding order shall include a notice of the recipient’s right to hearing under s. ATCP 65.928.

ATCP 65.927(2) (2) Disposal order. If analysis or examination shows that milk or a milk product is adulterated or misbranded and is dangerous to health or misleading to the injury or damage of a purchaser or consumer, the division may issue a summary disposal order under s. 97.12 (2) (c), Stats., requiring the disposal or other disposition of the milk or milk product. A disposal order may be issued by the division representative who examines the milk, or by the division administrator, or by a person whom the administrator designates in writing. Where appropriate, an order may require relabeling of misbranded milk in lieu of disposal. A holding order under sub. (1) is not a prerequisite to a disposal order under this subsection. A disposal order shall be issued in writing, and shall include a notice of the recipient’s right to hearing under s. ATCP 65.928.

ATCP 65.927(3) (3) Identification of adulterated milk. If milk is found to be adulterated and hazardous to health, a division representative may identify the milk for disposal or disposition in compliance with a notice under sub. (2). To identify the adulterated milk, the division representative may tag the milk container and may add a harmless food grade color to the milk to prevent its sale or use for human food purposes.

ATCP 65.927 History History: CR 14-073: cr. Register August 2016 No. 728, eff. 9-1-16.

ATCP 65.928 ATCP 65.928 Right of hearing.

ATCP 65.928(1) (1) Hearing request. A person adversely affected by any of the following division actions may ask the department to hold a hearing on that action:

ATCP 65.928(1)(a) (a) The denial of a milk producer license application or grade A producer permit application under s. ATCP 65.02.

ATCP 65.928(1)(b) (b) The summary suspension of a milk producer license, under s. ATCP 65.920 (3).

ATCP 65.928(1)(c) (c) The issuance of a warning notice, under s. ATCP 65.920 (5) (a).

ATCP 65.928(1)(d) (d) The suspension of a grade A producer permit, under s. ATCP 65.920 (6) (a).

ATCP 65.928(1)(e) (e) The denial of a reinstatement application, under s. ATCP 65.920 (5) (d) or (7).

ATCP 65.928(1)(f) (f) A holding order, disposal order, or other summary action, under s. ATCP 65.927.