Chapter ATCP 140

ATCP 140.43   Record of expenditures.

ATCP 140.44   Written contracts.

ATCP 140.45   Expenditure authorizations.

ATCP 140.46   Accounting systems; audits; reports.

ATCP 140.47   Prohibited expenditures and business practices.

ATCP 140.48   Administrative services provided by department.

ATCP 140.49   Marketing board meetings; records.

ATCP 140.50   Refund of assessments.

ATCP 140.51   Collecting assessments; reports by producers and handlers; audit of amounts due.

ATCP 140.52   Marketing board code of ethics.

Ch. ATCP 140 Note Note: Chapter Ag 140 was renumbered chapter ATCP 140 under s. 13.93 (2m) (b) 1., Stats., Register, April, 1993, No. 448.

subch. I of ch. ATCP 140 Subchapter I — Definitions

ATCP 140.01 ATCP 140.01 Definitions. As used in this chapter:

ATCP 140.01(1) (1) “Department” means the state of Wisconsin department of agriculture, trade and consumer protection.

ATCP 140.01(1m) (1m) “Electronic communication” means Internet, electronic mail, facsimile, or any other form or process of communication that does not directly involve the physical transfer of paper and that is suitable for the retention, retrieval and reproduction of information by the recipient.

ATCP 140.01(2) (2) “Marketing agreement” means a marketing agreement created or proposed under ch. 96, Stats.

ATCP 140.01(3) (3) “Marketing board” means a marketing board created or proposed under ch. 96, Stats.

ATCP 140.01(4) (4) “Marketing order” means a marketing order created or proposed under ch. 96, Stats.

ATCP 140.01(5) (5) “Secretary” means the secretary of the department of agriculture, trade and consumer protection.

ATCP 140.01(6) (6) “Sponsor” means a person submitting a request or petition for the adoption, amendment or repeal of a marketing order.

ATCP 140.01 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; CR 07-067: cr. (1m) Register July 2008 No. 631, eff. 8-1-08.

subch. II of ch. ATCP 140 Subchapter II — Marketing Orders; Adoption, Amendment and Repeal

ATCP 140.10 ATCP 140.10 Rulemaking proceedings. Proceedings to adopt, amend or repeal a marketing order shall be conducted as rulemaking proceedings under ch. 227, Stats., except as otherwise provided in ch. 96, Stats. Every proposal to adopt, amend or repeal a marketing order shall be prepared in the form of a proposed order of the department adopting, amending or repealing rules under ch. 227, Stats.

ATCP 140.10 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85.

ATCP 140.11 ATCP 140.11 Decision to initiate proceedings. The secretary may, in consultation with the board of agriculture, trade and consumer protection, initiate proceedings to adopt, amend or repeal a marketing order. To initiate proceedings, the secretary shall hold a public hearing on the proposal, as provided under ss. 96.05 and 96.06, Stats., and this subchapter. The decision to initiate proceedings may be made in response to a petition under s. 96.05 (2), Stats., or on the secretary’s own motion. A decision to proceed on the secretary’s own motion may be made in response to a request by any person. A decision to initiate proceedings shall be made in writing, and set forth the basis for the decision. A decision to initiate proceedings may be withheld until the sponsors of a proposal have complied with any requirements established by the secretary under s. ATCP 140.13.

ATCP 140.11 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85.

ATCP 140.12 ATCP 140.12 Refusal to initiate proceedings; denial of petition or request.

ATCP 140.12(1) (1) The secretary may deny a petition under s. 96.05 (2), Stats., if the secretary determines that the proposal does not effectuate the declared policy of ch. 96, Stats., or exceeds the purposes or limitations of ch. 96, Stats. The secretary’s decision to deny a petition shall be made in consultation with the board of agriculture, trade and consumer protection. If a petition under s. 96.05 (2), Stats., is denied, the secretary shall publish notice setting forth the specific reasons for the denial, as provided in s. 96.05, Stats. If denied, the petition may not be reconsidered by the secretary for a period of one year from the date of notice of the denial.

ATCP 140.12(2) (2) If a proposal to adopt, amend or repeal a marketing order is not received in the form of a petition under s. 96.05 (2), Stats., the proposal may be summarily denied by the secretary, with or without a written or published explanation. The denial of a proposal does not preclude the secretary from reconsidering the proposal within one year of the denial, except as provided under sub. (1).

ATCP 140.12 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85.

ATCP 140.13 ATCP 140.13 Petition or request to initiate proceedings; requirements.

ATCP 140.13(1) (1) Before initiating proceedings on any proposal to adopt, amend or repeal a marketing order, the secretary may require the sponsors of the proposal to submit or deposit with the secretary:

ATCP 140.13(1)(a) (a) A written draft of the proposed marketing order or marketing order amendment, if the sponsors propose to adopt or amend a marketing order. A written draft shall be included with all petitions under s. 96.05 (2), Stats., and with other proposals if required by the secretary. The draft proposal may be modified by the department as provided in s. ATCP 140.14 before any hearing is held on the proposal.

ATCP 140.13(1)(b) (b) A clear statement of the substance or nature of the proposal. The statement shall be included with all petitions under s. 96.05 (2), Stats., and with other proposals if required by the secretary. If the sponsors propose to adopt a marketing order, the statement shall include:

ATCP 140.13(1)(b)1. 1. The objectives of the proposed marketing order. Objectives shall be consistent with the provisions of s. 96.03 (2), Stats.

ATCP 140.13(1)(b)2. 2. A description of the class of producers or handlers who would be affected by the proposed marketing order, including the approximate number of producers or handlers who would be affected.

ATCP 140.13(1)(b)3. 3. A specific statement describing how marketing order assessments would be computed and paid under the marketing order. The description shall indicate:

ATCP 140.13(1)(b)3.a. a. How the basis for assessments would be determined.

ATCP 140.13(1)(b)3.b. b. The situations in which handlers would be expected to collect and remit assessments.

ATCP 140.13(1)(b)3.c. c. The situations in which producers would be expected to collect and remit assessments.

ATCP 140.13(1)(b)3.d. d. The point at which assessments would become due and payable.

ATCP 140.13(1)(b)3.e. e. The records which producers or handlers would be required to keep in order to document whether assessments are due and payable, and in what amounts.

ATCP 140.13(1)(b)4. 4. The size of the marketing board and the representation of producers and handlers on the marketing board under the proposed marketing order, pursuant to s. 96.10, Stats.

ATCP 140.13(1)(b)5. 5. The amount of revenue, in the form of producer or handler assessments, needed each year to accomplish the purposes of the proposed marketing order.

ATCP 140.13(1)(b)6. 6. A proposed voting requirement to be used in determining whether the proposal is approved or disapproved in a referendum of affected producers or handlers. The voting requirement shall be chosen from among the alternative voting requirements set forth in s. 96.08, Stats. A proposal to amend or repeal a marketing order shall be subject to the same voting requirement that was used to adopt the marketing order.

ATCP 140.13(1)(c) (c) An amount of money sufficient to defray the reasonably anticipated expenses which may be incurred by the department in the proposed proceedings to adopt, amend or repeal the marketing order, pursuant to s. 96.05 (6), Stats. In lieu of a single deposit to cover the entire proceedings, the secretary may permit the sponsors of the proposed marketing order to make deposit installments at various stages of the proceedings. Deposit installments shall be sufficient to defray the department’s reasonably anticipated expenses for each stage of the proceedings. The department shall provide the sponsors with an accounting of all expenses incurred by the department, and refund any portion of the sponsor’s deposit which exceeds the department’s actual expenses. Actual expenses may include general overhead and operating expenses which are reasonably attributable to the marketing order proceedings.

ATCP 140.13(2) (2) Sponsors of a proposal to adopt, amend or repeal a marketing order may withdraw their sponsorship at any point in the proceedings. A sponsor shall be liable for any expenses incurred by the department up to the time of the withdrawal of sponsorship. If sponsorship is withdrawn, the department may terminate the proceedings or proceed at the department’s expense.

ATCP 140.13 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; CR 07-067: am. (1) (b) 3. (intro.) and a. Register July 2008 No. 631, eff. 8-1-08.

ATCP 140.14 ATCP 140.14 Hearing draft proposal; format.

ATCP 140.14(1) (1) If a decision is made to initiate proceedings for the adoption, amendment or repeal of a marketing order, a hearing draft including a proposed voting requirement shall be prepared by the department in the form required for administrative rules under s. 227.14, Stats. The proposal submitted by the sponsors of a marketing order may be modified by the department to conform with ch. 96, Stats., this chapter and other applicable law. The hearing draft of a proposed order adopting, amending or repealing a marketing order shall be submitted to the legislative council staff for review prior to hearing, as provided in s. 227.15, Stats.

ATCP 140.14(2) (2) To the maximum extent feasible, consistent with the objectives of each proposal, the department shall maintain a consistency of terms, provisions, organization and drafting style between marketing orders. Terms defined in s. 96.01, Stats., shall be used consistently in every marketing order. The following terms shall be used consistently in marketing orders and when used shall have the following meanings:

ATCP 140.14(2)(a) (a) “Producer-handler” means an affected producer who sells the affected commodity to a nonresident handler.

ATCP 140.14(2)(b) (b) “Nonresident handler” means a handler who takes title to the affected commodity outside of this state.

ATCP 140.14(2)(c) (c) “Transfer of title” means the passing of title from seller to buyer as provided in s. 402.401, Stats., or as otherwise provided under a written sales agreement.

ATCP 140.14(2)(d) (d) “Assessment due” means an assessment for which a producer, handler or producer-handler has incurred a specific legal obligation of payment under the marketing order.

ATCP 140.14(2)(e) (e) “Assessment payable” means an assessment due for which the time specified for payment under the marketing order has arrived. An assessment becomes payable on the payment date prescribed under the marketing order.

ATCP 140.14 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; corrections in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1993, No. 448; CR 07-067: am. (2) (d) Register July 2008 No. 631, eff. 8-1-08.

ATCP 140.15 ATCP 140.15 List of affected producers or handlers; compilation prior to hearing. If a decision is made to initiate proceedings for the adoption, amendment or repeal of a marketing order, the secretary shall establish a current list of producers and handlers who will be affected by the proposal, as provided in s. 96.05 (3) through (5), Stats. The list shall be used in determining whether the proposal to adopt, amend or repeal a marketing order is approved in a referendum of producers and handlers, as provided in s. ATCP 140.19. The list shall be established and updated using the procedures under s. 96.05 (3) through (5), Stats., before any notice of public hearing is issued on the proposal.

ATCP 140.15 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; am. Register, February, 1996, No. 482, eff. 3-1-96.

ATCP 140.16 ATCP 140.16 Hearing notices. Notice of hearing on any proposal to adopt, amend or repeal a marketing order shall be given as provided under ss. 96.06 and 227.17, Stats. The department may issue such press releases or public announcements concerning the hearings as it may consider appropriate. The times and places of hearing shall be determined at the discretion of the secretary and be included in the hearing notice. The hearing notice may also specify a deadline date after the conclusion of the hearings for filing written comments on the proposal. Written comments received on or before the deadline date shall be included in the hearing record.

ATCP 140.16 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; correction made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1993, No. 448.

ATCP 140.17 ATCP 140.17 Hearing. Hearings on any proposal to adopt, amend or repeal a marketing order shall be conducted as rulemaking hearings, pursuant to ss. 96.06 (2) and 227.18, Stats. Nothing in this chapter or ch. 96, Stats., shall be construed as requiring a contested case hearing within the meaning of ch. 227, Stats.

ATCP 140.17 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; correction made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1993, No. 448.

ATCP 140.18 ATCP 140.18 Decision after hearing.

ATCP 140.18(1) (1) Following hearing on a proposal to adopt, amend or repeal a marketing order, the secretary shall make and publish a decision on the proposal, as provided under s. 96.07, Stats., in consultation with the board of agriculture, trade and consumer protection. The decision shall be issued within 45 days after close of the hearing record, and shall set forth the factual basis and rationale for the decision, including the findings or determinations required under sub. (2). The decision shall determine:

ATCP 140.18(1)(a) (a) Whether the proposal is denied, or advanced to a referendum of affected producers or handlers under s. ATCP 140.19. No proposal may be advanced to a referendum unless the secretary makes findings or determinations as provided in s. 96.07 (1) (a) through (c), Stats.

ATCP 140.18(1)(b) (b) Whether, and how the proposal will be modified for referendum. The decision shall include the complete text of the final proposal to be submitted to referendum. Changes from the hearing draft proposal shall be clearly noted.

ATCP 140.18(1)(c) (c) The voting requirement to be used in determining whether the proposal is approved or disapproved upon referendum. The voting requirement shall be chosen from among the alternatives set forth under s. 96.08, Stats., and may be different from the voting requirement requested by the sponsors or included in the hearing draft. A proposal to amend or repeal a marketing order shall be subject to the same voting requirement that was used to adopt the marketing order. Bloc voting is permitted in connection with the voting requirements under s. 96.08 (1) (b) 1., 3., 5., and 6., Stats. Bloc voting is not permitted in connection with the voting requirements under s. 96.08 (1) (b) 2. or 4., Stats.

ATCP 140.18(2) (2) The secretary’s decision under sub. (1) shall include:

ATCP 140.18(2)(a) (a) A list of persons testifying at the hearings, or submitting written comments within the comment period specified in the hearing notice.

ATCP 140.18(2)(b) (b) The identity of the sponsors of the marketing order proposal, if proceedings on the proposal were initiated in response to a petition or request.

ATCP 140.18(2)(c) (c) The history of the proposal.

ATCP 140.18(2)(d) (d) The nature and objectives of the proposal, as presented by the sponsors and represented in the hearing draft.

ATCP 140.18(2)(e) (e) A discussion and analysis of the hearing arguments for and against the proposal.

ATCP 140.18(2)(f) (f) A projection and analysis of the financial impact of the proposal on affected producers and handlers.

ATCP 140.18(2)(g) (g) The projected market impact of the proposal, including the potential impact on consumers and small business.

ATCP 140.18(3) (3) If the proposal would create or expand the size of a marketing board, and if the secretary’s decision advances the proposal to referendum, the decision shall include a call for nominations to the marketing board, pursuant to s. 96.10, Stats., and s. ATCP 140.20.

ATCP 140.18(4) (4) Copies of the secretary’s findings and decision shall be mailed, within the time period provided under sub. (1), to all persons appearing at the hearings or submitting written comments for the hearing record. If the decision includes a call for nominations under sub. (3), the decision shall be announced in a statewide press release by the department.

ATCP 140.18 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85.

ATCP 140.19 ATCP 140.19 Referendum.

ATCP 140.19(1) (1) General. Based on the secretary’s decision under s. ATCP 140.18, a proposal to adopt, amend or repeal a marketing order may be submitted to a referendum of affected producers or handlers, as provided in s. 96.08, Stats. No proposal to adopt, amend or repeal a marketing order may be adopted by the department unless the proposal is approved in a referendum of affected producers and handlers. The referendum shall be scheduled and announced as provided in sub. (4), and be conducted according to the procedures set forth in this section. The results of the referendum shall be determined according to the voting requirement specified in the decision of the secretary under s. ATCP 140.18 (1) (c).

ATCP 140.19(2) (2) Voter eligibility. In a referendum held on a proposal to adopt, amend or repeal a marketing order, the eligible voters shall consist of producers or handlers who are affected by the proposed marketing order, or by the current marketing order which is to be amended or repealed under the proposal. The department may establish the marketing year or years for which the voting eligibility of a producer or handler is to be determined. Each affected producer or handler is entitled to one vote in the referendum. A corporation, partnership, trust, or other entity or association engaged in business as a producer or handler is entitled to only one vote as a producer or handler, except where an incorporated cooperative association casts a bloc vote as provided under sub. (3). A producer or handler may not vote by proxy or agent, except that the vote of a business entity or association may be cast by its officer, employee or representative. The department may audit the list of affected producers or handlers compiled under s. ATCP 140.15, or the voting status of any person casting a ballot, to ensure that all producers or handlers appearing on the list or casting ballots are eligible to vote in the referendum. The secretary may require supporting documentation from any person claiming to be an eligible producer or handler.

ATCP 140.19(3) (3) Bloc voting.

ATCP 140.19(3)(a) (a) If the secretary’s decision prescribes a referendum voting requirement under s. ATCP 140.18 (1) (c) which allows for possible bloc voting, an incorporated cooperative association engaged in marketing the affected commodity on behalf of the cooperative’s affected producer members may cast a bloc vote on behalf of its affected members, as provided in s. 96.08 (3), Stats. A bloc vote may be cast by the board of directors of the cooperative with the authorization of the cooperative members. A bloc referendum vote may be cast for or against a proposal to adopt, amend or repeal a marketing order. The bloc vote shall be counted as the equivalent of multiple individual votes, according to the number of affected producer members represented in the bloc vote. If production volume is relevant to the referendum voting requirement, the volume of the affected commodity represented by a bloc vote shall be the combined volume produced by the individual producer members represented in the bloc vote. An incorporated cooperative association marketing an affected commodity as the agent of its members, and not as a purchaser, shall exclude from its bloc vote any of its affected producer members for whom a bloc vote will be cast by a second incorporated cooperative association in which the same producers are also members, if the second incorporated cooperative association markets the affected commodity as a purchaser from the producers.

ATCP 140.19(3)(b) (b) At least 45 days prior to the referendum, an incorporated cooperative association intending to cast a bloc vote shall file the following with the secretary:

ATCP 140.19(3)(b)1. 1. A copy of the resolution adopted by the cooperative’s membership or board of directors authorizing the cooperative to cast a bloc vote in the marketing order referendum on behalf of its members.

ATCP 140.19(3)(b)2. 2. Proof that the affected producer members of the cooperative have been notified in writing of their right to vote individually and be excluded from the cooperative’s bloc vote, as provided under par. (d).

ATCP 140.19(3)(b)3. 3. A certified list of cooperative members who qualify as affected producers for purposes of the marketing order and referendum, and for whom the cooperative claims the right to cast a bloc vote in the referendum. The list shall include the names and addresses of the affected producers or handlers in a format specified by the department. At the request of the secretary, the cooperative shall submit documentation to prove that the listed producers are eligible to vote in the marketing order referendum, and that the cooperative is authorized to cast a bloc vote on their behalf.