Virginia Law

Article 4. Babcock and Other Machine Tests.

As used in this article, unless the context requires a different meaning:

"Holder" means a corporation, association, partnership or two or more persons having a joint or common interest.

Code 1950, § 3-415; 1966, c. 702, § 3.1-545; 2008, c. 860.

No test or apparatus shall be used for the purpose of determining the composition of milk or cream as a basis for payment in buying or selling milk or cream or dairy products other than the Babcock or other centrifugal machines unless such other test or apparatus has been approved for such use by regulation of the Board. In the event that the Board approves such other test or apparatus for such use, then the provisions of this article shall apply, mutatis mutandis, to such approved test or apparatus.

1970, c. 176, § 3.1-531.1; 2008, c. 860.

Every Babcock or other centrifugal machine, or cream test or butterfat test scale, used in the Commonwealth by any inspector of milk or cream or by any person in any milk inspection laboratory for determining the composition of milk or cream for purposes of inspection, or by any person in any milk depot, ice cream factory, confectionery, creamery, cheese factory, condensed milk factory, laboratory, or other place for determining the composition or value of milk or cream as a basis for payment in buying or selling, shall be subject to inspection at least once in each year by the Commissioner. The Commissioner may condemn any Babcock or other centrifugal scale that is, in his opinion, not giving accurate results. No Babcock or other centrifugal machine or scale that has been condemned by the Commissioner shall be used in the Commonwealth by any person for determining the composition or value of milk or cream, unless the machine or scale has been changed and approved by the Commissioner.

Code 1950, § 3-402; 1966, c. 702, § 3.1-532; 2008, c. 860.

No inspector of milk or cream, and no person in any milk inspection laboratory, shall manipulate the Babcock or other centrifugal machine for the purpose of determining the composition of milk or cream for purposes of inspection without first obtaining a certificate from the Commissioner that he is competent to perform such work. No person in any milk depot, ice cream factory, confectionery, creamery, cheese factory, condensed milk factory, or other place in the Commonwealth shall manipulate the Babcock or other centrifugal machine for the purpose of determining the composition or value of milk or cream, or shall take samples or weigh milk or cream, as a basis for payment in buying or selling, without first obtaining a certificate from the Commissioner that he is competent to perform such work. All such certificates shall be renewed annually without further examination at the discretion of the Commissioner upon application. Unless a person holding a valid tester's, weigher's, and sampler's certificate renews his certificate within one year after its expiration date, he shall be required to pass the applicable examination before a new certificate shall be issued. If any holder of a certificate is notified by the Commissioner to correct his use of a Babcock or other centrifugal machine, or his method of sampling or weighing, and the person or holder of a certificate notified fails to comply with the notice and correct his use of a Babcock or other centrifugal machine, or his methods of sampling or weighing, he shall be deemed guilty of a violation of the provisions of this article, and the Commissioner may forfeit his certificate or assess a civil penalty as provided in § 3.2-5233. No holder of a certificate whose authority to manipulate a Babcock or other centrifugal machine or to sample or weigh milk or cream has been revoked by the Commissioner shall thereafter manipulate in the Commonwealth any centrifugal machine or sample or weigh milk or cream for the purposes herein specified until his certificate has been renewed.

Code 1950, § 3-403; 1966, c. 702, § 3.1-533; 1996, c. 723; 2000, c. 993; 2008, c. 860.

The Commissioner is authorized to issue certificates of competency to persons desiring to manipulate the Babcock or other centrifugal machine or to sample or weigh milk or cream who may present certificates of competency properly filled out and signed by the professor of dairy science or other authorized officer of the Virginia Polytechnic Institute and State University, and to other persons as, in the opinion of the Commissioner, are competent to manipulate the machines, and to sample or weigh milk or cream.

Code 1950, § 3-404; 1966, c. 702, § 3.1-534; 2008, c. 860.

The Board is authorized to adopt and enforce regulations governing applications for certificates and the granting of certificates. The Board may, in its discretion, revoke the authority of any holder of a certificate who, in its opinion, is not correctly manipulating any Babcock or other centrifugal machine, or correctly sampling or weighing milk or cream or is using dirty or otherwise unsatisfactory glassware or utensils. The Board is authorized to fix such standards and to adopt such regulations as may be deemed necessary to carry out the provisions of this article.

Code 1950, § 3-405; 1966, c. 702, § 3.1-535; 2008, c. 860.

The Board shall have authority to adopt and enforce regulations governing the equipment, standards, and procedures used in the receiving, weighing, measuring, sampling, and testing of milk or other fluid dairy products when the results are to be used for the purpose of inspection, check testing, or as a basis for payment in buying or selling.

1970, c. 176, § 3.1-535.1; 2008, c. 860.

In the use of the Babcock or any other centrifugal machine, the standard milk measurer or pipettes shall have a capacity of 17.6 cubic centimeters and the standard test tubes or bottles for milk shall have a capacity of two cubic centimeters for each 10 percent marked on the necks.

Code 1950, § 3-406; 1966, c. 702, § 3.1-536; 2008, c. 860.

Cream shall be tested by weight and the standard units for testing shall be 18 grams, and nine grams. It is a violation of the provisions of this article to use any other standard of milk or cream measure where milk or cream is purchased by or furnished to creameries or cheese factories, and where the value of the milk or cream is determined by the percent of butterfat contained by the Babcock or other centrifugal test or cream test or butterfat test scales.

Code 1950, § 3-407; 1966, c. 702, § 3.1-537; 2008, c. 860.

In sampling milk or cream for composite tests to determine the percent of butterfat contained, no such sample or sampling shall be lawful unless a sample is taken from each weighing, and the quantity used shall be proportioned to the total weight of the milk or cream tested.

Code 1950, § 3-408; 1966, c. 702, § 3.1-538; 2008, c. 860.

The Commissioner shall inspect or cause to be inspected at least once each year every Babcock or other centrifugal machine or cream test or butterfat test scales used in the Commonwealth by an inspector of milk or cream or by any person in any milk inspection laboratory for purposes of inspection, or by any person in any milk depot, ice cream factory, confectionery, creamery, cheese factory, condensed milk factory, or other place for determining the composition or value of milk or cream as a basis for payment in buying or selling. The Commissioner is further authorized to enter upon any premises in the Commonwealth where any centrifugal machine or cream test and butterfat test scales are used to inspect the devices and to ascertain if the provisions of law are complied with.

Code 1950, § 3-409; 1966, c. 702, § 3.1-539; 1996, c. 723; 2008, c. 860.

Any person who shall, by himself or as the officer, servant, agent, or employee of any person falsely manipulate, underread, or overread the Babcock test or any other apparatus used for the purpose of determining the amount of milk fat in milk or cream, or who shall make any false determination of any test or apparatus used for the purpose of determining the amount of milk fat in any dairy products, is guilty of a Class 1 misdemeanor.

Code 1950, § 3-410; 1966, c. 702, § 3.1-540; 2008, c. 860.

The tender of payment for milk or cream at any given test, shall constitute prima facie evidence that such test was made.

Code 1950, § 3-411; 1966, c. 702, § 3.1-541; 2008, c. 860.

It shall be the duty of the Commissioner to see that the provisions of this article are complied with, and he may in his discretion prosecute any person violating any of its provisions. But the provisions of this article shall not be construed to affect a person using any centrifugal or other machine or test in determining the composition or value of milk or cream when such determination is made for the information of that person only and not for purposes of inspection, or as a basis for payment in buying or selling.

Code 1950, § 3-412; 1966, c. 702, § 3.1-542; 2008, c. 860.

Any person who shall hinder or obstruct the Commissioner in the discharge of the authority or duty imposed upon him by this article, and any person violating any of its provisions is guilty of a Class 2 misdemeanor.

Code 1950, § 3-414; 1966, c. 702, § 3.1-544; 2008, c. 860.

A. In addition to the penalties prescribed in § 3.2-5229 or 3.2-5232, any person violating any provision of this article or regulation adopted hereunder may be assessed a civil penalty by the Commissioner for each violation in an amount not to exceed $15,000. In determining the amount of any civil penalty, the Commissioner shall give due consideration to: (i) the previous violations committed by the person; (ii) the seriousness of the violation; and (iii) the demonstrated good faith of the person charged in attempting to achieve compliance with this article or the regulations adopted hereunder after notification of the violation. Any civil penalty shall be in addition to any payment that may be required for the wholesale value of all milk and milk products that must be destroyed as a consequence of such violation.

B. A civil penalty may be assessed by the Commissioner only after he has given the person charged with a violation an opportunity for a public hearing. Where such a public hearing has been held, the Commissioner shall make findings of fact and issue a written decision as to the occurrence of the violation and the amount of the penalty that is warranted, incorporating, when appropriate, an order therein requiring that the penalty be paid. When appropriate, the Commissioner shall consolidate such hearings with other proceedings pursuant to the provisions of this chapter. Any hearing under this section shall be a formal adjudicatory hearing in accordance with the Administrative Process Act (§ 2.2-4000 et seq.). When the person charged with such a violation fails to avail himself of the opportunity for a public hearing, a civil penalty shall be assessed by the Commissioner after the Commissioner determines that a violation has occurred and the amount of the penalty warranted, and issues an order requiring that the penalty be paid.

C. Civil penalties assessed under this section shall be paid into the general fund of the state treasury. The Board shall prescribe procedures for payment of civil penalties. The procedures shall include provisions for a person to consent to abatement of the alleged violation and pay a penalty or negotiated sum in lieu of such penalty without admission of civil liability arising from such alleged violation.

D. Final orders may be recorded, enforced and satisfied as orders or decrees of a circuit court upon certification of such orders by the Commissioner. Such orders may be appealed in accordance with provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

E. Nothing in this section shall require the Commissioner to institute proceedings for the imposition of civil penalties if the Commissioner considers the violations of this article to be minor. In such cases, the Commissioner may serve a suitable notice of warning in writing when he believes that the public interest will be served by so doing.

2000, c. 993, § 3.1-545.1; 2008, c. 860.