Chapter ATCP 101

Register June 2011 No. 666

Chapter ATCP 101

VEGETABLE CONTRACTORS

Subchapter I — Vegetable Procurement Practices

ATCP 101.01   Definitions.

ATCP 101.02   Vegetable procurement contracts.

ATCP 101.03   Unharvested suitable acreage.

ATCP 101.04   Abandoned acreage.

ATCP 101.05   Unharvested acreage pool.

ATCP 101.06   Prohibited contract provisions.

ATCP 101.07   Prohibited practices.

Subchapter II — Financial Standards and Security

ATCP 101.20   Definitions.

ATCP 101.22   General requirements.

ATCP 101.23   Vegetable contractor license fees.

ATCP 101.24   Financial statement.

ATCP 101.245   Vegetable contractor fund assessments.

ATCP 101.25   Fund assessment temporarily affected by merger or acquisition; partial refund.

ATCP 101.255   Reduced fund assessment for contributing vegetable contractors who also maintain security.

ATCP 101.26   Disclosure to producers.

Ch. ATCP 101 Note Note: Chapter Ag 101 was renumbered chapter ATCP 101 under s. 13.93 (2m) (b) 1., Stats., Register, April, 1993, No. 448.

subch. I of ch. ATCP 101 Subchapter I — Vegetable Procurement Practices

Subch. I of ch. ATCP 101 Note Note: This subchapter is adopted under authority of s. 100.20 (2), Stats., Violations of this subchapter may be prosecuted under s. 100.20 (6) or 100.26 (3) or (6), Stats. A person who suffers a monetary loss because of a violation of this subchapter may sue the violator directly under s. 100.20 (5), Stats., and may recover twice the amount of the loss, together with costs and reasonable attorneys’ fees.

ATCP 101.01 ATCP 101.01 Definitions. In this subchapter:

ATCP 101.01(1) (1) “Abandoned acreage” means vegetable acreage, grown under a vegetable procurement contract, which the contractor declares to be abandoned under s. ATCP 101.04.

ATCP 101.01(2) (2) “Contractor” means a person who buys or offers to buy vegetables in this state from a producer, or who contracts or offers to contract with a producer to grow vegetables in this state, regardless of whether the contractor is located in this state or is engaged in food processing. “Contractor” does not include any of the following:

ATCP 101.01(2)(a) (a) A person who procures vegetables primarily for unprocessed fresh market use and is licensed under the federal perishable agricultural commodities act, 7 USC 499.

ATCP 101.01(2)(b) (b) A restaurant or retail food establishment that procures vegetables solely for retail sale at the restaurant or retail food establishment.

ATCP 101.01(3) (3) “Pool acreage” means vegetable acreage assigned to an unharvested acreage pool under s. ATCP 101.05.

ATCP 101.01(4) (4) “Pool contributor” means any of the following:

ATCP 101.01(4)(a) (a) A producer who contributes, either directly or by means of a deduction or reduced compensation under a vegetable procurement contract, to an unharvested acreage pool.

ATCP 101.01(4)(b) (b) A contractor who contributes to an unharvested acreage pool as a producer under s. ATCP 101.05 (8).

ATCP 101.01(4)(c) (c) A contractor who makes a matching contribution to an unharvested acreage pool under s. ATCP 101.05 (7).

ATCP 101.01(5) (5) “Pool contribution” or “contribution” means an amount of money contributed to an unharvested acreage pool by a pool contributor. A producer’s “contribution” to an unharvested acreage pool includes any contribution in the form of a deduction or reduced compensation under a vegetable procurement contract.

ATCP 101.01(6) (6) “Pool funds” means all contributions made by pool contributors as part of an unharvested acreage pool.

ATCP 101.01(7) (7) “Pool participant” means a producer assigned to an unharvested acreage pool under s. ATCP 101.05. “Pool participant” includes a contractor who participates in an unharvested acreage pool as a producer under s. ATCP 101.05 (8).

ATCP 101.01(8) (8) “Producer” means a person who produces and sells vegetables, or who grows vegetables under contract.

ATCP 101.01(9) (9) “Suitable acreage” means all vegetable acreage grown under a vegetable procurement contract, other than acreage which the contractor declares to be abandoned under s. ATCP 101.04.

ATCP 101.01(10) (10) “Unharvested acreage” means both of the following:

ATCP 101.01(10)(a) (a) Vegetable acreage which a contractor leaves unharvested for any reason, regardless of whether the vegetable crop is suitable or abandoned.

ATCP 101.01(10)(b) (b) Acreage used to produce a vegetable crop which is rejected by the contractor for any reason, regardless of whether the crop is suitable or abandoned.

ATCP 101.01(11) (11) “Unharvested acreage pool” or “pool” means a contractual arrangement under s. ATCP 101.05 between a contractor and producers, under which producers make contributions in order to help finance a contractor’s payments to other producers under s. ATCP 101.05 (4) (a) or (b).

ATCP 101.01(12) (12) “Vegetable” means sweet corn, snap beans or peas that are grown or sold for use in food processing, whether or not they are actually processed as food.

ATCP 101.01(13) (13) “Vegetable procurement contract” means an agreement between a contractor and a producer, under which the contractor buys vegetables from the producer or contracts with the producer to grow vegetables in this state.

ATCP 101.01 History History: Cr. Register, December, 1992, No. 444, eff. 1-1-93; CR 02-113: am. (intro.). Register April 2003 No. 568, eff. 5-1-03.

ATCP 101.02 ATCP 101.02 Vegetable procurement contracts.

ATCP 101.02(1) (1) Contract in writing; copy to producer. Every vegetable procurement contract shall be in writing, and shall include the name, address and telephone number of the contractor. The contractor shall provide a copy of the signed contract to the producer after the producer signs the contract.

ATCP 101.02(2) (2) Producer’s right to cancel. A producer may cancel a vegetable procurement contract by mailing a written cancellation notice to the contractor within 72 hours after the producer receives a copy of the signed contract, or before a later cancellation deadline if a later deadline is specified in the contract. The producer’s right to cancel, the method by which the producer may cancel, and the deadline for canceling the contract shall be clearly disclosed in every vegetable procurement contract.

ATCP 101.02(3) (3) Clear disclosure of terms.

ATCP 101.02(3)(a) (a) Every vegetable procurement contract shall clearly and conspicuously disclose both of the following:

ATCP 101.02(3)(a)1. 1. The amount which the contractor agrees to pay the producer for suitable acreage, including unharvested suitable acreage under s. ATCP 101.03.

ATCP 101.02(3)(a)2. 2. The amount, if any, which the contractor agrees to pay the producer for abandoned acreage under s. ATCP 101.04. If the contractor offers no payment for abandoned acreage, that fact shall be clearly disclosed in the contract.

ATCP 101.02(3)(b) (b) If the amounts under par. (a) are variable, depending on crop yield, grade or other factors to be determined at the time of harvest, the contract shall clearly disclose the formula or method by which the amounts will be determined.

ATCP 101.02(3)(c) (c) The contract shall clearly disclose every charge or deduction which may affect the net amount paid to the producer under the contract.

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.