Chapter ATCP 140

ATCP 140.19(6)(e) (e) In addition to recording the validly cast ballots to determine the results of the referendum under par. (d), the department shall separately record:

ATCP 140.19(6)(e)1. 1. The total number of ballots cast in the referendum, whether valid or invalid.

ATCP 140.19(6)(e)2. 2. The total number of invalid ballots cast. The department shall identify the principal reasons for which ballots were invalidated, and shall record the number of ballots invalidated for each principal reason cited.

ATCP 140.19(7) (7) Referendum results; announcement; effect. After the results of the referendum are determined, the secretary shall issue a referendum decision certifying the results. If the proposal to adopt, amend or repeal a marketing order is approved by referendum, the department shall proceed toward adopting the proposal by rule, pursuant to ch. 227, Stats. A proposed rule to adopt, amend or repeal a marketing order is subject to legislative committee review prior to adoption, as provided in ch. 227, Stats., and may be submitted for review prior to referendum. If the proposal is disapproved by referendum, the proceedings to adopt the proposal shall be terminated. Referendum results may not be published or disseminated until the secretary’s decision is issued.

ATCP 140.19(8) (8) Invalidation of referendum by secretary. The secretary may invalidate a referendum if the secretary determines that the outcome of the referendum was significantly affected by electioneering practices of the type prohibited under ch. 12, Stats.; by errors or omissions in referendum procedure; or by wrongful claims of voter eligibility. If a referendum is invalidated, the secretary may extend or reschedule the referendum. If the referendum is invalidated because of fraud or prohibited electioneering practices by the sponsors of a marketing order proposal, proceedings to consider the proposal may be terminated.

ATCP 140.19 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; CR 07-067: am. (4) (b) 6., (5) (a), (b) 3., (c), (e), (6) (a) and (b) 3. Register July 2008 No. 631, eff. 8-1-08.

ATCP 140.20 ATCP 140.20 Election of marketing board.

ATCP 140.20(1) (1) Initial election. Every proposed marketing order shall provide for the establishment of a marketing board, pursuant to s. 96.10, Stats. No marketing order may take effect until a marketing board has been elected. The secretary’s decision under s. ATCP 140.18 advancing a proposed marketing order to referendum shall include a call for marketing board nominations, and shall further specify a deadline by which nominations must be filed with the secretary. Marketing board members shall be elected by affected producers or handlers from the list of candidates nominated in accordance with sub. (5), or entered as write-in candidates. If the election results in a tie between candidates, the secretary may determine the winner by means of an impartial method, such as the drawing of lots. The election of marketing board members may be held concurrently with the referendum under s. ATCP 140.19, at the discretion of the secretary.

ATCP 140.20(2) (2) Election procedure; general. The election of marketing board members shall be conducted by the department according to applicable procedures set forth under s. ATCP 140.19 for marketing order referenda. In a marketing board election, as an alternative to sending a ballot to every producer and handler, the department may send to each producer or handler a notice by mail, electronic communication or other effective means explaining how the producer or handler may obtain a ballot. The department may also make other changes in the procedure under s. ATCP 140.19 that are necessary to accommodate relevant differences between a marketing order referendum and an election of marketing board members. Supplementary procedures, not inconsistent with this chapter, may be set forth in the marketing order. A marketing board shall reimburse the department for its costs in conducting an election of marketing board members. Bloc voting is not permitted in the election of marketing board members.

ATCP 140.20(3) (3) Election districts; constituency. Pursuant to s. 96.10, Stats., marketing board members shall be elected by affected producers or handlers according to area, size or any other measure providing for fair representation, as determined under the marketing order and approved by the secretary. Except when marketing board members are to be elected at large, the electoral district represented by each marketing board member shall be set forth in the marketing order, and be identified by the secretary in the secretary’s call for marketing board nominations and in the notice of the marketing board election. Separate ballots and voting instructions for affected producers or handlers shall be distributed in each electoral district.

ATCP 140.20(4) (4) Term of office. Every marketing order shall prescribe the terms of office for marketing board members. A term of office may not exceed 4 years, or be less than one year. A marketing order may prescribe terms of varying lengths for members elected to the initial marketing board, and uniform terms for all members elected thereafter, so that terms will be staggered and a proportionate number of marketing board members will be elected at each regular election.

ATCP 140.20(5) (5) Nominations.

ATCP 140.20(5)(a) (a) Only an affected producer or handler may serve as a member of a marketing board, or nominate another affected producer or handler for election to a marketing board. The secretary shall certify the eligibility of all persons nominated for election to a marketing board.

ATCP 140.20(5)(b) (b) The secretary shall call for nominations for the initial election of members to a marketing board as provided in sub. (1). Nominations for any subsequent election may be called for by the secretary, or by the marketing board as provided in the marketing order, but shall in all cases be filed with the secretary within the time period prescribed in the call for nominations. The call for nominations shall precede the deadline date for the filing of nominations by at least 14 days, and shall announce the availability of nomination forms from the department. Nominations need not be filed on official forms, but shall be filed in writing according to instructions included in the call for nominations.

ATCP 140.20(5)(c) (c) If an insufficient number of nominations are filed with the secretary during the time period prescribed by the secretary or the marketing board in the call for nominations, the secretary or marketing board may extend the nomination period until sufficient nominations are received to fill the available positions on the marketing board.

ATCP 140.20 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; CR 07-067: am. (2) Register July 2008 No 631, eff. 8-1-08.

ATCP 140.21 ATCP 140.21 Producer and handler assessments; rate adjustments.

ATCP 140.21(1) (1) Producer and handler assessments shall be levied at the rates established in the marketing order. A marketing order may provide for a variable assessment rate, to be determined annually by the marketing board, provided the annual rate does not exceed a maximum rate established in the marketing order. An annual adjustment in the variable assessment rate may be made by the marketing board, without a rule amendment under ch. 227, Stats., if approved by a two-thirds vote of the marketing board and by the secretary. If approved by the secretary, the adjusted assessment rate shall take effect on the first day of the marketing board’s next fiscal year, provided the marketing board gives notice to affected producers and handlers as required under sub. (3).

ATCP 140.21(2) (2) No adjustment of a variable assessment rate is effective unless approved by the secretary. A proposed adjustment approved by the marketing board shall be referred to the secretary at least 60 days before the adjustment is intended to take effect, unless the 60 day advance referral requirement is waived by the secretary. The proposal shall be accompanied by a written justification of the adjustment, and by an annual budget proposal which reflects the adjustment. The secretary shall approve or disapprove a proposed adjustment within 30 days after receipt. Pursuant to s. 96.11 (2), Stats., the secretary may disapprove a proposed assessment rate adjustment if the secretary determines that the adjustment violates ch. 96, Stats., or the marketing order.

ATCP 140.21(3) (3) No adjustment of a variable assessment rate is effective unless the marketing board mails written notice of the adjustment to affected producers and handlers at least 30 days prior to the scheduled effective date, unless this requirement is waived by the secretary. Notice shall be mailed to every producer or handler who paid an assessment during the fiscal year in which the adjustment is approved.

ATCP 140.21 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85.

subch. III of ch. ATCP 140 Subchapter III — Marketing Agreements

ATCP 140.30 ATCP 140.30 Adoption, amendment, and repeal.

ATCP 140.30(1) (1) Proceedings to adopt, amend or repeal a marketing agreement shall be conducted as rulemaking proceedings under ch. 227, Stats., in accordance with procedures set forth under ss. ATCP 140.10 through 140.20, except as otherwise provided in ch. 96, Stats., or this section.

ATCP 140.30(2) (2) No marketing agreement may be adopted until the secretary finds that at least 50% of the affected producers or handlers assent to the proposed marketing agreement. The percentage of affected producers or handlers assenting to the proposed marketing agreement shall be determined according to s. ATCP 140.19, except as provided in this section.

ATCP 140.30(3) (3) Except as provided in s. ATCP 140.35, no marketing agreement may be amended or repealed until the secretary finds that at least 50% of the current assentors to the marketing agreement have assented to the amendment or repeal. Current assentors include current affected producers or handlers who assented to the marketing agreement at the time of its adoption, or at any time subsequent to its adoption pursuant to sub. (4), and who have not withdrawn their assent. The percentage of current assentors who assent to the proposed amendment or repeal shall be determined according to the procedures under s. ATCP 140.19, except as otherwise provided under this section.

ATCP 140.30(4) (4) A marketing agreement, once adopted, is binding only upon producers or handlers who assent to the agreement. A marketing agreement shall permit eligible producers or handlers to assent to the marketing agreement at any time after the marketing agreement is adopted. A marketing agreement shall further permit assenting producers or handlers to withdraw their assent at the end of each year by giving the secretary advance notice in writing of their intent to withdraw. To be effective, notice of withdrawal shall be given to the secretary at least 30 days prior to the anniversary date of the agreement, except as otherwise provided in the marketing agreement. A withdrawal of assent shall be effective on the anniversary date of the marketing agreement, following written notice as provided in this subsection.

ATCP 140.30(5) (5) In an assent proceeding under this section, the department shall distribute assent forms on which affected producers or handlers may certify their eligibility to participate in the assent proceeding, and signify their assent to the proposed adoption, amendment or repeal of a marketing agreement. The assent forms serve in place of ballots and certificates of eligibility under s. ATCP 140.19. The secret ballot requirements of s. ATCP 140.19 do not apply to assent proceedings under this subsection.

ATCP 140.30 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85.

ATCP 140.31 ATCP 140.31 Marketing agreement provisions. A marketing agreement may include only those provisions enumerated under s. 96.04 (2), Stats. A marketing agreement may not include any provision which is authorized solely for marketing orders under s. 96.03 (2), Stats. Marketing agreement fees collected by the department under s. 96.04 (2) (f), Stats., and s. ATCP 140.33 may be used only to compensate the department for costs incurred by the department in the administration and enforcement of the marketing agreement. Fees may not be used for any other purpose.

ATCP 140.31 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85.

ATCP 140.32 ATCP 140.32 Marketing agreement councils.

ATCP 140.32(1) (1) General. The secretary shall appoint a marketing agreement council if a council is authorized by the marketing agreement. The marketing agreement shall specify the number of council members and all requirements related to their selection, term of office, and duties. Duties of a marketing agreement council shall include, but not be limited to those set forth in s. 96.09 (2), Stats.

ATCP 140.32(2) (2) Qualifications. A marketing agreement council member shall be an affected producer or handler who has assented to the marketing agreement. A new council member shall be appointed to fill the unexpired portion of the term of office of any council member who fails to meet the qualifications for serving on the council.

ATCP 140.32(3) (3) Term of office. Each marketing agreement shall set forth the term of office for marketing agreement council members. A term of office may be not less than one nor more than 4 years. Initial terms of office may extend for varied lengths of time to allow for regular staggered terms over the duration of the marketing agreement.

ATCP 140.32(4) (4) Nominations. Procedures for nominating affected producers or handlers for appointment to the council may be set forth in the marketing agreement or by the secretary. The call for nominations shall be published by the secretary at least 14 days prior to the deadline date for filing of nominations. The call for nominations shall be published in a statewide press release issued by the department. An advance notice, announcing the impending call for nominations, shall also be published in a statewide press release, issued at least 10 days prior to the publication of the call for nominations. The department may publish additional notices to specifically affected areas or persons. Nominations shall be filed with the secretary within the time period specified in the call for nominations.

ATCP 140.32(5) (5) Appointments. The secretary may appoint members to the marketing agreement council from those persons nominated in accordance with sub. (4).

ATCP 140.32 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85.

ATCP 140.33 ATCP 140.33 Marketing agreement administration; fees. The department shall administer every marketing agreement adopted under ch. 96, Stats. Pursuant to s. 96.04 (2) (f), Stats., every marketing agreement shall include provisions for the collection of fees from affected producers or handlers as reimbursement for costs incurred by the department in the administration and enforcement of the marketing agreement. A written schedule of fees shall be established by the secretary, and distributed to affected producers or handlers. Fees shall be assessed against affected producers or handlers on an equitable basis. Fees may include reimbursement for general overhead and operating expenses of the department which are reasonably attributable to the administration of the marketing agreement. Affected producers or handlers shall be liable for the payment of fees in the manner set forth in the marketing agreement. Fees due from affected producers or handlers under any marketing agreement shall constitute a personal debt of the producer or handler, collectable pursuant to s. 96.17, Stats. The department shall notify producers or handlers of changes in a fee schedule at least 60 days prior to the beginning of the fiscal year in which the change becomes effective.

ATCP 140.33 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85.

ATCP 140.34 ATCP 140.34 Records and audits. The department shall keep separate records of all fees received and deposited and all expenses incurred in the administration of each marketing agreement. The department shall prepare an annual operating statement, and review annually all receipts and expenses for each marketing agreement. A copy of the annual operating statement shall be made available to affected producers or handlers within 120 days after the close of the fiscal year.

ATCP 140.34 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85.

ATCP 140.35 ATCP 140.35 Suspension of marketing agreements. The secretary may suspend a marketing agreement if after public hearing, the secretary determines that the marketing agreement cannot be reasonably enforced, or is contrary to the purposes of ch. 96, Stats.

ATCP 140.35 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85.

subch. IV of ch. ATCP 140 Subchapter IV — Marketing Board Organization and Operation; Procedures

Subch. IV of ch. ATCP 140 Note Note: Marketing boards are incorporated as nonstock, nonprofit corporations under ch. 181, Stats., and are authorized to administer marketing orders under ch. 96, Stats. Under ch. 96, Stats., the department is not directly involved in the administration of marketing orders, but is authorized to monitor marketing board operations for compliance with law.

ATCP 140.40 ATCP 140.40 Articles of incorporation and bylaws. Every marketing board shall adopt articles of incorporation and bylaws, as provided in s. 96.10 (3), Stats. Proposed articles of incorporation, bylaws, and amendments to bylaws shall be developed in consultation with the secretary, and shall be submitted to the secretary for review prior to final adoption. No articles of incorporation may be filed with the department of financial institutions or become effective until approved by the secretary. The secretary may disapprove proposed articles of incorporation or bylaws if the secretary determines that the proposed articles of incorporation or bylaws are inconsistent with ch. 96, Stats., the marketing order or this chapter, or otherwise violate applicable law. No articles of incorporation may be approved by the secretary until the articles of incorporation meet the requirements of s. 96.10 (3), Stats., and s. ATCP 140.49 (6) concerning procedures for assuring the confidentiality of business information.

ATCP 140.40 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85; CR 04-005: am. Register October 2004 No. 586, eff. 11-1-04.

ATCP 140.41 ATCP 140.41 Written operating procedures; general.

ATCP 140.41(1) (1) Every marketing board shall adopt written operating procedures to govern essential operations of the marketing board, including the procedures required under sub. (2). Operating procedures may be adopted as bylaws. Proposed operating procedures shall be filed with the secretary for review prior to adoption by a marketing board. Operating procedures shall conform to ch. 96, Stats., the marketing order and this chapter.

ATCP 140.41(2) (2) The written operating procedures of a marketing board shall include provisions for:

ATCP 140.41(2)(a) (a) Receiving and depositing assessments.

ATCP 140.41(2)(b) (b) Collecting assessments from producers and handlers, pursuant to s. ATCP 140.51.

ATCP 140.41(2)(c) (c) Receiving and acting upon requests by producers or handlers for assessment refunds pursuant to s. ATCP 140.50, if the marketing order provides for refunds.

ATCP 140.41(2)(d) (d) Developing and adopting annual budgets and approving expenditures, pursuant to ss. ATCP 140.42 and 140.45.

ATCP 140.41(2)(e) (e) Soliciting and evaluating project proposals, and reviewing the progress and results of projects funded by the marketing board.

ATCP 140.41(2)(f) (f) Protecting the confidentiality of business information pertaining to producers and handlers under s. ATCP 140.49 (6). This is in addition to procedures required to be set forth in the articles of incorporation under s. 96.10 (3), Stats.

ATCP 140.41(2)(g) (g) Monitoring compliance with the marketing order by producers and handlers, reviewing compliance problems, and referring compliance problems to the department for appropriate action pursuant to ch. 96, Stats., and this chapter.

ATCP 140.41(2)(h) (h) Preparing and disseminating the annual report of the marketing board, pursuant to s. ATCP 140.46 (4).

ATCP 140.41(2)(i) (i) Calling for nominations to fill a membership vacancy on the marketing board, pursuant to ch. 96, Stats., this chapter and the marketing order.

ATCP 140.41(2)(j) (j) The custody, handling and disposition of marketing board documents and records, pursuant to s. ATCP 140.49.

ATCP 140.41 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85.

ATCP 140.42 ATCP 140.42 Annual budget.

ATCP 140.42(1) (1) Requirement. Every marketing board shall adopt a budget for each fiscal year. The budget shall comply with the requirements of this section. The marketing board shall adopt and file the budget with the secretary prior to the start of the fiscal year, or prior to contracting for any expenditure which was not contracted for during the preceding fiscal year. The fiscal year shall begin on July 1 of each year except as otherwise provided in the marketing order or bylaws of the marketing board. The marketing board may not expend or contract for the expenditure of moneys until the budget is filed, unless the expenditures were properly contracted for during the preceding fiscal year. No expenditure may be made or committed by a marketing board except pursuant to a budget filed under this subsection, except as provided under sub. (6). A marketing board may continue to meet normal administrative operating and overhead expenses and prior contractual obligations pending the timely filing of its budget and pending review of the budget by the secretary under sub. (4).

ATCP 140.42(2) (2) Contents. The marketing board’s annual budget shall include:

ATCP 140.42(2)(a) (a) A statement of projected annual receipts, including a separate statement of each of the following:

ATCP 140.42(2)(a)1. 1. Projected receipts from producer and handler assessments, and the specific assumptions or methods by which the projection was derived.

ATCP 140.42(2)(a)2. 2. Surplus receipts carried over from the preceding fiscal year, if any.

ATCP 140.42(2)(a)3. 3. Other projected receipts, if any, and the sources of the receipts.

ATCP 140.42(2)(b) (b) A statement of projected annual expenditures. Projected expenditures shall be categorized by program objective, pursuant to s. 96.03, Stats., and the marketing order. General overhead and operating expenditures, if not identifiable to a program objective, may be set forth in a separate expenditure category. Within each expenditure category, the budget shall identify the nature and amount of proposed expenditures. Expenditures for salaries, supplies, travel expenses, or other routine overhead and operating expenses incurred in the ordinary course of program operations may be budgeted as a maximum authorized total for each expenditure subcategory. Expenditure subcategories shall be identified to facilitate budget review under sub. (4). The proposed budget shall include a description of proposed contract expenditures, including the nature of each proposed expenditure, the specific program objective toward which the proposed expenditure is directed, and the identity of the proposed contract recipient if known.

ATCP 140.42(2)(c) (c) A reasonable contingency reserve consisting of a projected surplus of receipts over expenditures, sufficient to protect the marketing board against unforeseen revenue shortages or cost increases, or other unforeseen contingencies which may affect the accuracy of the budget projections and the ability of the marketing board to meet its payment obligations.

ATCP 140.42(3) (3) Budget amendments. A marketing board shall file a budget amendment with the secretary if, at any time during the fiscal year, the marketing board anticipates a significant change in the previously submitted budget. The secretary may require a marketing board to submit a current, revised budget at any time during the fiscal year.

ATCP 140.42(4) (4) Budget review. The department shall review marketing board budgets and budget amendments for compliance with ch. 96, Stats., and this chapter. Pursuant to s. 96.11 (2), Stats., the secretary may disapprove a budget or a proposed expenditure if the secretary determines that the budget fails to comply with the requirements of this subsection, or that the proposed expenditure violates s. ATCP 140.47. Written notice of disapproval shall be issued to the marketing board within 30 days after the budget or budget amendment is submitted to the secretary. Notice shall specify the reasons for disapproval, and the budget provisions or proposed expenditures which are disapproved. Failure to disapprove a budget or budget amendment within 30 days does not prevent the secretary from disapproving the budget or budget amendment at a later time, if the disapproval is based on information which was not available to the secretary during the original 30-day review period, and if the information reveals that the budget or budget amendment is not in compliance with ch. 96, Stats., or this chapter. No marketing board may make or contract for any expenditure which is disapproved under this subsection, or which is proposed pursuant to a disapproved budget.

ATCP 140.42(5) (5) Additional information. The secretary may require a marketing board to file additional information which the secretary deems necessary for the review of a marketing board budget or expenditure under this subsection. The secretary may disapprove a budget or proposed expenditure upon failure of a marketing board to submit the required information.

ATCP 140.42(6) (6) Waiver; first year of marketing board operations. The secretary may waive the filing of an annual budget for the first fiscal year of marketing board operations, provided that the marketing board submits its proposed contracts and expenditures for review by the secretary as they are proposed during the fiscal year. Additional conditions may be established at any time, if deemed necessary by the secretary. The secretary may disapprove a proposed expenditure if the secretary determines that the proposed expenditure violates s. ATCP 140.47. No marketing board may expend or contract for any expenditure of moneys if the proposed expenditure has been disapproved by the secretary.

ATCP 140.42 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85.

ATCP 140.43 ATCP 140.43 Record of expenditures. Every marketing board shall maintain a written or retrievable computerized record of each expenditure of moneys by the marketing board. The record shall identify the amount of the expenditure, the recipient, and the purpose for which the expenditure was made. Records shall be kept on file by the marketing board for at least 7 years, and be made available for inspection, copying and audit by the department. Upon termination of a marketing order, all records shall be filed with the department.

ATCP 140.43 History History: Cr. Register, November, 1985, No. 359, eff. 12-1-85.

ATCP 140.44 ATCP 140.44 Written contracts.

ATCP 140.44(1) (1) Requirement. All expenditures of marketing board funds shall be made pursuant to a written contract or purchase order, except for budgeted expenditures for employee salaries, supplies, travel expenses, and other overhead and operating expenses incurred by a marketing board in the ordinary course of its operations.

ATCP 140.44(2) (2) Contents. Every contract or purchase order under this section shall include:

ATCP 140.44(2)(a) (a) The names and addresses of the contracting parties.

ATCP 140.44(2)(b) (b) A specific description of the materials to be provided, or the services to be performed under the contract or purchase order.

ATCP 140.44(2)(c) (c) The time period for contract performance.

ATCP 140.44(2)(d) (d) The amount to be paid by the marketing board under the contract or purchase order, the time of payment, and any applicable terms and conditions of payment. If a contract or purchase order provides for payment out of funds receivable by a marketing board in any future fiscal year, other than the current budgeted fiscal year, the contract or purchase order shall be made contingent on the availability of revenues for the contract or purchase order in the future fiscal year.

ATCP 140.44(2)(e) (e) A provision whereby the contractor agrees to provide documentation which may be reasonably necessary for the marketing board to review contract performance. The secretary may direct a marketing board to review a contractor’s contract performance, and provide answers to specific questions asked by the secretary. Marketing boards may be audited by the department at the discretion of the secretary to determine whether expenditures under contracts executed by the marketing board are in accordance with s. ATCP 140.47 or ch. 96, Stats.

ATCP 140.44(2)(f) (f) Any other provision which the secretary may require prior to the execution of a contract or purchase order, including a provision requiring a contractor to:

ATCP 140.44(2)(f)1. 1. Maintain segregated accounts for moneys received from a marketing board, if necessary, to assure that expenditures are made in accordance with ch. 96, Stats., and s. ATCP 140.47.

ATCP 140.44(2)(f)2. 2. Use generally accepted accounting principles when accounting for moneys received from a marketing board.