§ 3111 Babcock test requirement.
No person or his or her agents or servants engaged in the business of buying milk or cream on the basis of, or in any manner with reference to, the amount or percentage of butterfat contained therein, shall take, collect or use for testing purposes an unfair or an inaccurate sample, or underread, overread or erroneously manipulate the test commonly known as the "Babcock test" used for determining the percentage of such fat in said milk or cream, or falsify the record thereof, or make the "Babcock" reading except when the fat has a temperature of 135 degrees to 145 degrees Fahrenheit, or use for such test quantities other than 17.6 cubic centimeters in the case of milk and 9 grams or 18 grams in the case of cream. In all tests of cream, the cream shall be weighed and not measured into the test bottle.
§ 3112 Licensed tester.
Every person or agent or servant thereof engaged in the business of receiving or buying milk or cream on the basis of, or in any way with reference to, the amount of butterfat contained therein, or on the basis of tests made for official inspection or public records as determined by the "Babcock test" shall have the test or tests made only by a licensed tester who shall be responsible for the same and who shall keep a proper and permanent record of all tests made and a copy of such record shall be kept by the owner or manager of the plant.
§ 3113 Qualifications and duties of licensed tester; fee; renewal of license.
For the purpose of this subchapter, a licensed tester is any person who, having furnished satisfactory evidence of good character and having passed a satisfactory examination in milk and cream testing conducted by the Department of Agriculture or its agents, has received a certificate of proficiency from the Department. Each applicant for examination for a certificate shall pay a fee of $3.45 to the Department of Agriculture or its agents. The Department shall issue a certificate of proficiency in the name of the approved applicant and under a serial number. The Department upon receipt of this certificate of proficiency, together with the payment of a fee of $3.45, shall issue a license to the applicant good for 1 calendar year. This license shall be renewed annually without further examination at the discretion of the Department upon the payment of a fee of $3.45. Each certified tester shall post the certified tester's license in plain view in the testing room in which the certified tester is employed. The Department shall revoke the license for failure to post it as above required or for any other just cause.
§ 3114 Licensed weigher and sampler; qualifications and duties; fee; renewal of license.
(a) Every person engaged in the business of buying milk or cream on the basis of, or in any way with reference to, the amount of butterfat contained therein or on the basis of tests made for official inspection or public record shall have the samples taken for testing purposes either by a licensed tester or by a person licensed or certified to weigh and sample milk and cream.
(b) For the purpose of this subchapter, a person certified to weigh and sample milk or cream is any person who, having furnished satisfactory evidence of good character and having passed a satisfactory examination in weighing and sampling milk and cream conducted by the Department of Agriculture or its agents, has received a certificate of proficiency from the Department.
(c) Each applicant for an examination for such certificate shall pay a fee of $1.75 to the Department. The Department shall issue a certificate of proficiency in the name of the approved applicant and under a serial number. The Department of Agriculture upon receipt of this certificate of proficiency, together with the payment of a fee of $3.45, shall issue a license to the applicant good for 1 calendar year. This license shall be renewed annually without further examination at the discretion of the Department of Agriculture upon the payment of $3.45.
(d) Each licensed weigher and sampler shall post his or her license in plain view in the plant in which he or she is employed. The Department of Agriculture may revoke the license for failure to post it as above mentioned or for any other just cause.
§ 3115 Frequency of testing, holding, retesting and reporting.
(a) Any person or milk plant or agent thereof in the State or out of the State engaged in the business of buying milk on the basis of percentage of butterfat contained therein shall make a test of the milk at least once every 16 days. The milk purchased from each milk producer shall be represented by a composite sample taken from the entire delivery of each of the several lots purchased from the milk producer and shall cover a period of not more than 16 days. A composite sample shall contain a preservative and it shall contain aliquot parts from each lot of milk collected. The preservative must be capable of keeping the composite sample in suitable condition for testing for a period of at least 30 days. Each composite sample shall be held in an airtight bottle, to be labeled with the name or number of the milk producer.
(b) After the composite samples have been tested, their residues shall be held intact and in a suitable condition for retesting for a period of 15 days.
(c) All milk producers shall be notified within 5 days after the close of the period giving such producer the results of the butterfat test on the composite sample. If the producer desires a retest, such request shall be made directly to the milk plant or through the field man within 24 hours after the receipt of the butterfat test. The retest shall be made immediately and reported to the producer.
(d) The Department of Agriculture may at any time require out-of-state milk plants to deliver 1 or all composite samples to the Department of Agriculture laboratories for retesting purposes. An alternative shall be for the out-of-state milk plant to grant the Department of Agriculture or its agents permission to enter its plant for the purpose of taking samples for rechecking purposes. If the composite sample should in some manner be destroyed during the period and it becomes necessary to use fresh samples as the basis of settlement at least 3 fresh samples shall be taken from 3 separate deliveries of milk.
(e) Reports of all butterfat tests shall be made to the Department of Agriculture at the close of each testing period. If butterfat tests vary more than 0.02% from one testing period to the next testing period, a retest shall be made and reported.
(f) The Secretary of the Department of Agriculture may, by written permission, grant any person or milk plant or agent thereof engaged in the business of buying milk on the basis of percentage of butterfat contained therein the right to use a fresh sample method as approved by the Secretary.
§ 3116 Percentage of fat used as basis of payment.
No percentage of fat ascertained from a sample containing milk or cream that has been so treated as to cause it to test lower or higher than the test of the milk or cream from which it was taken shall be used as a basis of payment for milk or cream purchased or sold.
§ 3117 Approved weight or measure or butterfat test as basis of payment.
(a) No person purchasing or selling milk or cream or both by weight or measure or butterfat test, and no agent or servant of any such person, shall use as a basis of payment for such purchase any weight or measure or butterfat test other than the approved weight or measure or butterfat test of the milk or cream purchased or sold.
(b) Only procedures approved by the Association of Official Analytical Chemists or the American Public Health Association and adopted or prescribed by the State Department of Agriculture may be used. The Babcock test or the automated light scattering method for determining fat content of raw unhomogenized milk are hereby adopted as procedures for the determination of the fat content of milk as a basis of payment to producers.
§ 3118 Butterfat statement given producers; contents.
(a) Every person or agent or servant thereof purchasing or receiving milk or cream from the producer thereof for manufacturing purposes or for reselling the same shall, at each time of payment to the producer for milk or cream, or where the producer of milk or cream is selling the same to the purchaser or receiver by or through a cooperative association or other agency and the payment thereof is being made by the purchaser or receiver to the cooperative or other agency, at the time the purchaser or receiver makes each payment to the cooperative association or other agency, give each producer delivering milk a statement showing the amount delivered daily during the time for which payment is made and the average per centum butterfat test of same, provided payment is made on the basis of the butterfat content.
(b) The statement shall contain the name or number of the producer or seller of the milk or cream, the date of delivery thereof, and the amount delivered. The statement shall be given in the terms of the unit used as a basis for determining the value thereof. A purchaser or receiver may, in lieu of the monthly statement of weights, give daily to the producer or to his agent at the time of delivery of milk or cream to the purchaser or receiver, a written statement of the amount of milk or cream received or purchased.
§ 3119 Authority to enter premises and examine books, records and testing apparatus.
The Department of Agriculture or its agents may enter the premises and examine the books, the records and testing apparatus of any person, for the purpose of carrying out this subchapter.
§ 3120 Violations and penalties.
(a) Whoever violates this subchapter, except § 3111 of this title, shall be fined not less than $10 nor more than $50, or imprisoned not less than 10 nor more than 30 days, or both.
(b) Whoever violates § 3111 of this title shall be fined not less than $100 nor more than $1,000, or imprisoned not more than 9 months.
§ 3121 Persons responsible for violations.
For violation of any of this subchapter proceedings may be instituted against the owner or manager who is responsible for the business transacted, together with the certified tester or the person weighing and sampling, and either or all of them shall be held equally responsible.
40 Del. Laws, c. 92, § 12; Code 1935, § 642; 3 Del. C. 1953, § 3121.;
§ 3122 Payment of fines and other money; disposition.
All fines and penalties received for violations of this subchapter and all moneys received in compliance with this subchapter shall be paid to the Department of Agriculture or its agents and shall thereafter be paid into the State Treasury for the use of the State.
§ 3123 Purchase of milk or cream by state institutions.
Whenever a state institution purchases milk or cream pursuant to competitive bids based on the butterfat contents of the milk or cream supplied or to be supplied pursuant to such bid or bids, the tests to determine the butterfat contents thereof shall be made pursuant to and in compliance with the testing requirements provided under this subchapter. Whenever any bid has been accepted by any state institution to supply milk or cream or both of a required percentage of butterfat, the successful bidder shall be deemed to be in compliance with the requirements of the bid whenever any tests of the milk or cream shall be made, and such tests to determine the amount of the butterfat in such milk or cream or both shall be made pursuant to and in compliance with the provisions of this subchapter. The successful bidder shall not be required to satisfy any other tests made by any other sources than those prescribed under this subchapter.
Code 1935, § 646A; 43 Del. Laws, c. 89, § 1; 3 Del. C. 1953, § 3123.;