(a) During any consecutive six months, at least four samples of raw milk intended for use in the manufacture of frozen desserts shall be collected and examined by the department. In addition, during any consecutive six months, the department shall collect and examine at least four samples of frozen desserts from dairy retail stores, food service establishments, grocery stores, and other places where frozen desserts are sold may be examined periodically as determined by the department. Proprietors of such establishments shall furnish the department, upon request, with the names of all distributors from whom frozen desserts, or frozen desserts mix are obtained. The examination of samples of pasteurized mix, and/or frozen desserts shall be performed in an official laboratory or in an officially designated laboratory.
(b) Bacterial counts, coliform determinations, phosphatase, tests, and other laboratory and screening tests shall conform to the procedures in the latest edition of "Standard Methods for the Examination of Dairy Products" of the American Public Health Association. Examinations and tests shall include such other biological, chemical, and physical determinations as the department shall deem necessary for the detection of adulteration.
(c) Whenever two of the last four consecutive bacterial counts, coliform determinations, or cooling temperatures taken on separate days exceed the limit of the standard for the milk, cream, milk products, mix or frozen desserts, the department shall send a written notice thereof to the person concerned. This notice shall be in effect so long as two of the last four consecutive samples exceed the limit of the standards. An additional sample shall be taken within 21 days of the date of such notice, but not before the lapse of three days. Immediate product suspension or other appropriate department or court action shall be instituted whenever the standard is violated by three of the last five bacterial counts, coliform determinations or cooling temperatures of samples collected within the six-month period.
(d) The department shall establish the frequency of sampling pasteurized mix or frozen desserts during each six month period for adequate pasteurization as determined by a phosphatase test. In the case of a confirmed positive result, the probable cause shall be determined by and corrected to the satisfaction of the department before the mix is frozen or the frozen dessert is sold.
(e) No process or manipulation other than pasteurization as set forth in §217.1 of this title (relating to Definitions), processing methods integral therewith, and appropriate refrigeration shall be applied to milk and milk products for the purpose of removing or deactivating organisms, provided, that nothing shall be construed as barring any other process found equivalent to pasteurization for milk and milk products, which has been recognized by the United States Food and Drug Administration (FDA) as provided in 21 U.S.C. §343(h)(3) of the Federal Food, Drug and Cosmetic Act. Only such FDA recognized processes and no other shall be considered by the department.
(f) Raw milk for use in the manufacture of frozen desserts shall comply with all standards set forth in §217.73 of this title (relating to Raw Milk for Manufacturing Purposes).
(g) Frozen desserts and mix shall comply with the following standards:
  (1) bacterial, coliform, and temperature standards for pasteurized mix and frozen desserts as shown in the following chart:
Attached Graphic
  (2) bacterial, coliform, and temperature standards for nondairy frozen desserts and nondairy frozen desserts mix as shown in the following chart:
Attached Graphic

Source Note: The provisions of this §217.45 adopted to be effective July 4, 2010, 35 TexReg 3038