Section 65.04. Dairy plant licenses and permits; fees.

 

(1)   Dairy plant license required.

(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.

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

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.

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.

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.

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) .

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

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

7. A dairy plant that is exempted from licensing by department rule.

(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:

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

(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.

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

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

(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.

(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:

(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.

(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.

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

(5)   Temporary license.

(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.

(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.

(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.

(6)   Pre-license inspection.

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

(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.

(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) :

(a) Fluid milk products.

(b) Cheese and cheese products.

(c) Ice cream or frozen desserts.

(d) Dairy products dried at the dairy plant.

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

(8)   Annual dairy plant license fees.

(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.

(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.

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

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.

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.

3. For a grade A receiving station, a supplementary license fee of $370.

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

(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.

(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) .

(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.

(10)   Milk procurement fee; monthly payment.

(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.

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

1. For each 100 pounds of grade A milk procured from milk producers, 1.048 cent.

2. For each 100 pounds of grade B milk procured from milk producers, 0.2 cent.

(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.

(11)   Reinspection fees.

(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.

(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:

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.

2. For a grade B processing plant, a supplementary reinspection fee of $210.

3. For a grade A receiving station, a supplementary reinspection fee of $90.

(12)   Dairy product grading fee.

(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.

(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.

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

(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.

(14)   Grade A permit required.

(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.

(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) .

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

(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) .

(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) .

(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) .

(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.

(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.

(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.

(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:

(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.

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

(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) .

(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.

CR 14-073 : cr. Register August 2016 No. 728 , eff. 9-1-16; correction in (1) (a), (b) (intro.), 6., (2) (intro.), (7) (intro.), (9) (a), (b), (16), (20) (a) Register August 2016 No. 728 .

Note

See ss. 97.20 , and 126.40 , Stats. Microsoft Windows NT 6.1.7601 Service Pack 1 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. Microsoft Windows NT 6.1.7601 Service Pack 1 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. Microsoft Windows NT 6.1.7601 Service Pack 1