Chapter ATCP 101

ATCP 101.02 Note Note: Sections ATCP 101.03 (2) (b), 101.04 (1) (b) and (c) and (3) (b) 2., and 101.05 (1), (5), and (6) also include contract disclosure requirements.

ATCP 101.02(4) (4) Unharvested acreage pool.

ATCP 101.02(4)(a) (a) If a vegetable procurement contract requires a producer to participate in an unharvested acreage pool, the contract shall clearly specify the terms and conditions of the pool, pursuant to s. ATCP 101.05.

ATCP 101.02(4)(b) (b) Except for pool contributions under ss. ATCP 101.03 (2), 101.04 (3) and 101.05, no vegetable procurement contract may provide for any deduction or reduced payment to a producer because of a contractor’s obligations to other producers.

ATCP 101.02(5) (5) Harvest responsibilities. Every vegetable procurement contract shall clearly specify whether the contractor or the producer is responsible for harvesting the vegetable crop. If the producer is responsible for harvest, the contract shall not state or imply that the contractor will provide harvest equipment or services unless the contractor is equipped to meet the reasonably foreseeable demand for harvest equipment and services on a timely basis.

ATCP 101.02(6) (6) Arbitration of disputes. Under every vegetable procurement contract, the contractor shall agree to submit contract disputes to impartial arbitration at the request of the producer.

ATCP 101.02 History History: Cr. Register, December, 1992, No. 444, eff. 1-1-93.

ATCP 101.03 ATCP 101.03 Unharvested suitable acreage.

ATCP 101.03(1) (1) Full payment required.

ATCP 101.03(1)(a) (a) General. If a contractor declines to harvest or accept delivery of suitable acreage grown under a vegetable procurement contract, the contractor shall pay the producer the full contract amount for the suitable acreage, as if the acreage had been harvested or accepted on a timely basis.

ATCP 101.03(1)(b) (b) Suitable acreage left unharvested because of adverse field conditions. If, because of adverse field conditions during the scheduled harvest period, a contractor is not able to harvest acreage which is otherwise suitable, the contractor shall pay for the unharvested acreage as suitable acreage under this section.

ATCP 101.03(2) (2) Contribution to unharvested acreage pool. Subsection (1) does not prohibit the contractor from deducting the producer’s contribution to an unharvested acreage pool under s. ATCP 101.05, provided that all of the following apply:

ATCP 101.03(2)(a) (a) Equivalent contributions from all producers. The producer’s pool contribution, expressed as a percentage deduction from the gross amount due the producer for the unharvested suitable acreage, equals the percentage contribution on harvested acreage made by every producer of harvested acreage.

ATCP 101.03(2)(b) (b) Contribution clearly disclosed. The pool contribution requirement is clearly disclosed in the vegetable procurement contract, pursuant to s. ATCP 101.05.

ATCP 101.03(2)(c) (c) Maximum contribution. The pool contribution does not exceed the maximum contribution specified in the vegetable procurement contract under s. ATCP 101.05 (6).

ATCP 101.03(3) (3) Service charges. When paying for unharvested suitable acreage under sub. (1), the contractor may deduct charges for seed, harvest, hauling, grading or similar supplies or services that would have been assessed against the producer had the producer’s acreage been harvested. A contractor may not receive any pool funds for these services.

ATCP 101.03(4) (4) Estimating yield and grade of unharvested suitable acreage.

ATCP 101.03(4)(a) (a) General. Except as provided under par. (b) or (c), if payment for suitable acreage is based on yield or grade, the contractor shall estimate the yield and grade of unharvested suitable acreage by means of field sampling under sub. (5).

ATCP 101.03(4)(b) (b) Equivalent field sampling procedures. Rather than estimating yield or grade according to the field sampling procedures under sub. (5), a contractor may estimate yield or grade according to equivalent field sampling procedures which are clearly specified in writing in the procurement contract.

ATCP 101.03(4)(c) (c) Agreement on yield and grade. If, because of adverse field conditions or because field harvest is impractical during the scheduled harvest period, a contractor is not able to harvest acreage which is otherwise suitable, the contractor and the producer may agree on the yield and grade of the unharvested acreage without field sampling under sub. (5), provided that all of the following apply:

ATCP 101.03(4)(c)1. 1. The agreement is made in writing and signed by the parties during the scheduled harvest period, and a copy is provided to the producer.

ATCP 101.03(4)(c)2. 2. The agreement clearly describes the field conditions deemed adverse or the reason why field harvest was deemed impractical.

ATCP 101.03(4)(c)3. 3. Before the agreement is made, the contractor discloses to the producer in writing that the producer has a right to have the field sampled for yield and grade in compliance with this subsection. If a producer requests field sampling, the contractor shall sample the field in compliance with par. (a) or (b).

ATCP 101.03(5) (5) Field sampling procedure.

ATCP 101.03(5)(a) (a) General. If a contractor is required to estimate the yield or grade of unharvested acreage under sub. (4) (a), the contractor shall estimate the yield or grade using the field sampling procedure under this subsection. Field samples used to estimate yield or grade shall be collected when the unharvested vegetables are at maturity, and shall be collected from areas which are reasonably representative of the field.

ATCP 101.03(5)(b) (b) Number of samples. Except as provided under par. (c), the number of samples collected under par. (a) shall be based on the size of the field as follows:

ATCP 101.03(5)(b)1. 1. At least 3 samples from different areas shall be taken from a field which is less than 40 acres.

ATCP 101.03(5)(b)2. 2. At least 5 samples from different areas shall be taken from a field which is 40 to 100 acres.

ATCP 101.03(5)(b)3. 3. At least 7 samples from different areas shall be taken from a field which is larger than 100 acres.

ATCP 101.03(5)(c) (c) Different crop or soil conditions within field; subdivision of field. If significant differences of crop or soil conditions exist within a field, the field shall be divided so that crop and soil conditions are reasonably uniform within each subdivision. Each subdivision shall be treated as a separate field under par. (b).

ATCP 101.03(5)(d) (d) Selecting sampling areas. The samples collected under par. (b) or (c) shall be collected from sampling areas alternately selected by the contractor and the producer. After the contractor and the producer have each selected an equal number of sample areas, the contractor and the producer shall jointly select the last sample area.

ATCP 101.03(5)(e) (e) Sample areas defined. Each area sample under par. (d) shall consist of one of the following:

ATCP 101.03(5)(e)1. 1. If the vegetable is a row crop such as sweet corn or snap beans, each sample area shall be not less than 15 linear feet of a row.

ATCP 101.03(5)(e)2. 2. If vegetables, such as peas, are planted by either the drill or broadcast method, each sample area shall be a plot of not less than 25 square feet having dimensions of not less than 5 feet in length and width.

ATCP 101.03(5)(f) (f) Sample weights. Each sample collected under this subsection shall be individually weighed. The weights of the individual samples shall be added together to obtain a combined sample weight for the field, which shall be divided by the number of samples to determine an average sample weight. Vegetable samples shall be weighed according to the following procedures for the respective commodity:

ATCP 101.03(5)(f)1. 1. Sweet corn shall be weighed after the ears are completely husked, and the stem and any excess tip are removed.

ATCP 101.03(5)(f)2. 2. Snap beans shall be weighed after all beans in the sample are removed from the vines.

ATCP 101.03(5)(f)3. 3. Sweet peas shall be weighed after all peas in the sample are removed from the pods.

ATCP 101.03(5)(g) (g) Calculating yield per acre. The yield per acre of unharvested vegetables shall be calculated by performing the following sequential operations:

ATCP 101.03(5)(g)1. 1. Calculate the square footage of each sample area. For row crops, multiply the length of the row by the space between rows, measured in feet to 2 decimal places.

ATCP 101.03(5)(g)2. 2. Determine the average square footage of all the sample areas.

ATCP 101.03(5)(g)3. 3. Divide the square footage of one acre (43,560 sq.

ATCP 101.03(5)(g)3.ft. ft.) by the average square footage of the sample areas to determine the number of sampling units per acre.

ATCP 101.03(5)(g)4. 4. Multiply the number of sampling units per acre by the average sample weight under par. (f) to determine the yield in pounds per acre.

ATCP 101.03(5)(g)5. 5. Calculate the estimated yield for the unharvested field by multiplying the yield per acre by the number of acres in the field.

ATCP 101.03(5)(h) (h) Documenting the yield estimate. Every yield estimate under this section shall be documented in writing, and a copy shall be provided to the producer. The documentation shall include:

ATCP 101.03(5)(h)1. 1. The name and address of the contractor.

ATCP 101.03(5)(h)2. 2. The identity of the producer and the location of the field.

ATCP 101.03(5)(h)3. 3. The date and time when the field was sampled and the yield estimate was made.

ATCP 101.03(5)(h)4. 4. The size of the field, the number of samples collected, and the calculations used to estimate the yield. If sampling methods or yield estimation methods differ from those prescribed under this section, the documentation shall specify the methods used.

ATCP 101.03(5)(h)5. 5. The signatures of the contractor and the producer, or their agents.

ATCP 101.03(5)(i) (i) Grading samples. If payment for unharvested vegetables is based on the quality or condition of the vegetables, the samples collected under this subsection shall be graded in compliance with ch. ATCP 155.

ATCP 101.03 History History: Cr. Register, December, 1992, No. 444, eff. 1-1-93.

ATCP 101.04 ATCP 101.04 Abandoned acreage.

ATCP 101.04(1) (1) Declaration that acreage is abandoned. For payment purposes under s. ATCP 101.03, contracted vegetable acreage is considered suitable unless the contractor declares that the acreage is abandoned under this section. A contractor may declare that acreage is abandoned if any of the following apply:

ATCP 101.04(1)(a) (a) The vegetable crop is destroyed, or rendered clearly unsuitable for processing, by drought, flood, wind, hail, frost or other natural peril.

ATCP 101.04(1)(b) (b) The crop yield or grade, determined according to the procedure specified for unharvested suitable acreage under s. ATCP 101.03 (4), fails to meet the contractor’s reasonable minimum standard for harvest as specified in the vegetable procurement contract.

ATCP 101.04(1)(c) (c) The crop is not suitable for processing because it contains illegal pesticide residues, or pesticide residues which exceed limits specified in the vegetable procurement contract.

ATCP 101.04 Note Note: Pesticide residues are illegal if, for example, they exceed legal tolerances on the vegetable crop, or if they resulted from the use of a pesticide which is not registered or labeled for use on that vegetable crop.

ATCP 101.04(2) (2) Form of declaration. If a contractor declares that acreage is abandoned under sub. (1), the contractor shall make that declaration in writing to the producer. The contractor shall specify the basis for the declaration under sub. (1).

ATCP 101.04(3) (3) Contribution to unharvested acreage pool.

ATCP 101.04(3)(a) (a) Subject to par. (b), a contractor may require a producer of abandoned acreage to contribute to an unharvested acreage pool under s. ATCP 101.05, and may deduct the producer’s contribution from the amount paid to the producer for the abandoned acreage.

ATCP 101.04(3)(b) (b) A contractor may not require a producer of abandoned acreage to contribute to an unharvested acreage pool unless all of the following apply:

ATCP 101.04(3)(b)1. 1. The producer’s pool contribution, expressed as a percentage deduction from the gross amount due the producer for the abandoned acreage, equals the percentage contribution made by every other producer of abandoned acreage.

ATCP 101.04(3)(b)2. 2. The pool contribution requirement is clearly disclosed in the vegetable procurement contract, pursuant to s. ATCP 101.05.

ATCP 101.04(3)(b)3. 3. The pool contribution does not exceed the maximum contribution specified in the vegetable procurement contract under s. ATCP 101.05 (6).

ATCP 101.04(3)(b)4. 4. The pool contribution does not result in any net payment from the producer to the contractor.

ATCP 101.04(4) (4) No net charge to producer.

ATCP 101.04(4)(a) (a) If a contractor declares that acreage is abandoned under this section, the contractor may not require the producer to pay any supply or service charges, or make any pool contribution, which would result in a net payment from the producer to the contractor.

ATCP 101.04(4)(b) (b) Paragraph (a) does not limit charges for supplies and services which the producer was free to obtain from sources other than the contractor.

ATCP 101.04(5) (5) Contractor fault. This section does not relieve a contractor from any contract claim which a producer may have against a contractor because of the contractor’s failure to perform the contractor’s obligations under the contract.

ATCP 101.04 History History: Cr. Register, December, 1992, No. 444, eff. 1-1-93.

ATCP 101.05 ATCP 101.05 Unharvested acreage pool. A contractor may establish an unharvested acreage pool under this section. The unharvested acreage pool shall comply with all of the following requirements:

ATCP 101.05(1) (1) Terms specified in contract. In each vegetable procurement contract with a pool participant, the contractor shall clearly specify the terms and conditions of the pool, including terms related to producer contributions, contractor contributions, and the use of pool funds. The same terms and conditions shall apply to every producer who participates in the pool.

ATCP 101.05(2) (2) Pool coverage. Pool funds may be used only to pay for vegetable acreage contracted with pool participants. No pool may apply to more than one contract year. If a pool applies to more than one vegetable crop, the vegetable procurement contract shall clearly identify the crops included in the pool.

ATCP 101.05(3) (3) Producers and acreage assigned to pool.

ATCP 101.05(3)(a) (a) Pool participants and pool acreage shall be assigned to a specific pool when those participants sign vegetable procurement contracts for that acreage. Pool participants and pool acreage, once assigned to a pool, may not be reassigned to a different pool.

ATCP 101.05(3)(b) (b) If any pool participants are located outside this state, the vegetable procurement contract shall identify all of the states in which pool participants are located.

ATCP 101.05(4) (4) Use of pool funds; general.

ATCP 101.05(4)(a) (a) A contractor may use pool funds to pay for unharvested suitable acreage or abandoned acreage.

ATCP 101.05(4)(b) (b) If, because of low crop yield or grade, a producer is entitled to a smaller contract payment for harvested acreage than if that harvested acreage had been abandoned, a contractor may use pool funds to pay the producer the difference between the harvested acreage payment and the higher contract guarantee for abandoned acreage.

ATCP 101.05(4)(c) (c) A contractor may not use pool funds for any purpose other than those specified under par. (a) or (b). Payments under pars. (a) and (b) are subject to the terms of the vegetable procurement contract.

ATCP 101.05(5) (5) Producer contributions. In every vegetable procurement contract with a pool participant, the contractor shall clearly specify both of the following:

ATCP 101.05(5)(a) (a) The circumstances under which the participant will be required to contribute to the pool, and the method by which contributions will be assessed.

ATCP 101.05(5)(b) (b) The amount of the participant’s contribution to the pool, or the formula by which that contribution will be determined, subject to the maximum specified under sub. (6).

ATCP 101.05(6) (6) Maximum producer contribution.

ATCP 101.05(6)(a) (a) In every vegetable procurement contract with a pool participant, the contractor shall specify the participant’s maximum potential contribution to the pool.

ATCP 101.05(6)(b) (b) The maximum contribution under par. (a) shall be stated as a maximum percentage deduction from the gross amount due the producer under the vegetable procurement contract. Producers of abandoned acreage may be subject to a different maximum contribution than producers of suitable acreage, provided that the different maximum contribution is clearly specified in the contract.

ATCP 101.05(6)(c) (c) No contractor may require a pool participant to contribute more than the applicable maximum amount specified under this subsection.