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.
ATCP 140.19(3)(b)4.
4. Any other information or documentation required by the secretary in order to determine the validity of the cooperative's bloc vote.
ATCP 140.19(3)(c)
(c) At any time before or during a referendum, the secretary may invalidate the bloc vote of an incorporated cooperative association if the secretary determines that the cooperative has failed to file the information and documentation required under
par. (b).
ATCP 140.19(3)(d)
(d) If an incorporated cooperative association intends to cast a bloc vote in a marketing order referendum, it shall so notify its individual members in writing at least 45 days prior to the referendum. The notice shall further inform the members of their right to vote as individuals and be excluded from the cooperative's bloc vote, as provided under
par. (e). Notice published in an official publication of the cooperative, and distributed to all members of the cooperative, constitutes adequate written notice. Notice need not state whether the cooperative intends to cast its bloc vote for or against the marketing order proposal.
ATCP 140.19(3)(e)
(e) Affected producers who are members of an incorporated cooperative association may, by notifying the secretary in writing during the referendum period, exclude themselves from the cooperative's bloc vote in the referendum, and may cast their votes as individuals. Upon receiving notice from an affected producer, the department shall remove the producer from the list of cooperative members included in the cooperative's bloc vote, and shall mail an individual referendum ballot to the producer.
ATCP 140.19(3)(f)
(f) The bloc vote of an incorporated cooperative association shall be cast within the referendum period prescribed under
sub. (4). The secretary may prescribe a separate ballot for cooperative bloc voting, or the cooperative may cast a bloc vote in the form of a letter addressed to the secretary and sent by certified mail.
ATCP 140.19(4)(a)(a) The referendum on a proposal to adopt, amend or repeal a marketing order shall begin on the date set forth in the secretary's final decision under
s. ATCP 140.18 advancing the proposal to referendum. The referendum period during which affected producers or handlers may cast their votes shall extend for at least 14 days.
ATCP 140.19(4)(b)
(b) At least 10 days before the start of the referendum period, the department shall issue a statewide press release announcing the referendum. The department may publish additional notices to affected areas or persons. Notice under this paragraph shall state:
ATCP 140.19(4)(b)3.
3. The class of affected producers or handlers who are eligible to vote in the referendum.
ATCP 140.19(4)(b)4.
4. The voting requirement under s.
96.08, Stats., which will be used to determine the results of the referendum.
ATCP 140.19(4)(b)5.
5. Whether bloc voting by incorporated cooperative associations is permitted in the referendum. If bloc voting is permitted, the notice or announcement shall set forth the procedure by which producer members may be excluded from a cooperative's bloc vote and be permitted to cast their votes individually.
ATCP 140.19(4)(b)6.
6. Balloting instructions, indicating whether the referendum is to be conducted by mail or electronic communication, or at polling places under
sub. (5) (e). If the referendum is to be conducted at polling places, rather than by mail or electronic communication, the notice of announcement shall give the locations of polling places and the times during which votes may be cast at the polling places.
ATCP 140.19(4)(b)7.
7. Instructions to eligible producers and handlers for obtaining a ballot if the producer or handler does not receive a ballot by mail from the department.
ATCP 140.19(5)(a)(a) Referendum ballots and related materials shall be prepared and distributed by mail or electronic communication, or at polling places pursuant to
par. (e). Every ballot shall be designed and handled so as to insure the secrecy
of the producer's or handler's vote. Ballots shall be accompanied by the instructions required under
par. (b). Every ballot shall be accompanied by a separate certificate, certifying that the producer or handler is eligible to vote in the referendum. No vote is valid unless accompanied by a certificate of eligibility. Ballots and certificates shall be returned together, but shall be designed and handled so that the department removes and separates the certificates from the ballots before any vote can be examined or counted, so that no vote when revealed can be identified with a certificate.
ATCP 140.19(5)(b)
(b) Every referendum ballot shall be accompanied by instructions to the producer or handler. Instructions shall include:
ATCP 140.19(5)(b)2.
2. An explanation of voter eligibility requirements for producers or handlers wishing to vote in the referendum.
ATCP 140.19(5)(b)3.
3. Instructions for entering a vote on the ballot and returning the certificate of eligibility which accompanies the ballot. Instructions shall state that no vote may be counted unless returned with a valid certificate of eligibility.
ATCP 140.19(5)(b)4.
4. Instructions for reporting the volume of the affected commodity produced or handled by the voter, if the applicable voting requirement under s.
96.08, Stats., takes volume into consideration. Ballot forms shall be designed and handled so that reported volumes may be tabulated without being identifiable to an individual producer or handler.
ATCP 140.19(5)(b)5.
5. Instructions for returning the ballot and certificate. If the referendum is to be conducted by mail ballot, the instructions shall include mailing instructions.
ATCP 140.19(5)(b)6.
6. The time period within which the ballot must be delivered to the department or otherwise cast. Ballots cast by mail shall be postmarked not later than the last day of the referendum period prescribed under
sub. (4) (a). Ballots postmarked after the last day of the referendum period are invalid.
ATCP 140.19(5)(c)
(c) Except as provided in
par. (e), the department shall mail or send by electronic communication a referendum ballot to every producer or handler who is included on the list of affected producers or handlers compiled by the department under
s. ATCP 140.15. The department shall exclude from its mailing list those producers for whom an incorporated cooperative association has been authorized to cast a bloc vote, and who are listed by the cooperative as being represented in the bloc vote. A producer or handler who is not on the department's mailing list, or who did not receive a referendum ballot, may request a ballot from the department. A producer who desires to be excluded from a cooperative's bloc vote may request an individual ballot as provided in
sub. (3) (e). The department may require documentation to verify that any person requesting a ballot is eligible to vote in the referendum.
ATCP 140.19(5)(d)
(d) Ballots mailed to producers or handlers under
par. (c) shall be mailed first class unless third class mail is approved by the secretary. Outbound envelopes for third class mail shall contain the statement “FORWARDING AND ADDRESS CORRECTION REQUESTED," or the statement “RETURN POSTAGE GUARANTEED." Producers or handlers to whom ballots are mailed shall be provided with postage paid return envelopes, pre-addressed to the department at a post office box reserved exclusively for the receipt of marketing order referendum and election ballots.
ATCP 140.19(5)(e)
(e) If the secretary determines that it would be unreasonably costly or difficult to conduct a referendum by mail or electronic communication, the secretary may direct that ballots be cast at polling places announced by the secretary as provided in
sub. (4) (b) 6. The secretary may further direct that ballots be pre-distributed to producers by mail or electronic communication, rather than at the designated polling places.
ATCP 140.19(6)(a)(a) Referendum ballots shall be tabulated by the department, according to procedures set forth in this subsection. Before tabulating ballots, the department shall examine voting certificates to determine the validity of each ballot cast. All referenda, including referenda conducted at polling places, shall be conducted so as to exclude ineligible voters and assure the secrecy of individual votes. Certificates of eligibility shall be obtained from all voters in conjunction with the casting of ballots, but shall be separated from all ballots before any vote is examined or counted, so that no vote can be identified with a certificate of eligibility.
ATCP 140.19(6)(b)
(b) A ballot shall be invalidated before being counted if the department determines that:
ATCP 140.19(6)(b)3.
3. The certificate of eligibility required to accompany the ballot was not properly returned.
ATCP 140.19(6)(b)4.
4. The person casting the ballot was included in a valid bloc vote of an incorporated cooperative association, and did not file a timely request to be excluded from the bloc vote.
ATCP 140.19(6)(b)5.
5. The ballot duplicates another ballot cast by the same person, or the same business entity.
ATCP 140.19(6)(b)6.
6. The person casting the ballot failed to report the volume of the affected commodity produced or handled by that person, if that information is required by the applicable voting requirement under s.
96.08, Stats.
ATCP 140.19(6)(c)
(c) Every ballot which is invalidated by the department shall be marked “INVALID," and be subscribed with a notation stating the reason for invalidation. Invalidated ballots shall not be counted in determining the outcome of the referendum but shall be separately counted and recorded by the department as provided in
par. (e).
ATCP 140.19(6)(d)
(d) After the department has excluded all invalid ballots, the department shall record the total number of ballots validly cast, the number of valid ballots cast in favor of the referendum proposal, and the number of valid ballots cast in opposition to the referendum proposal. An unmarked ballot shall not be invalidated if otherwise validly cast, and shall be counted among the total ballots validly cast. If the applicable voting requirement under s.
96.08, Stats., takes into consideration the volume of the affected commodity produced or handled by each voter, the volume shall be counted accordingly, based on information supplied by the voter on the ballot or on a related form provided to the voter by the department. Based on validly cast ballots counted and recorded, the department shall apply the applicable voting requirement under s.
96.08, Stats., to determine the result of the referendum.
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(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)(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.
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(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 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.
