See also ch. ATCP 151
, Wis. adm. code.
Marketing orders and agreements; creation, amendments and termination. 96.05(1)
Whenever the secretary has reason to believe that the issuance of a marketing order or agreement will effectuate the declared policy of this chapter with respect to any agricultural commodity, the secretary shall, on the secretary's own motion or upon petition of affected producers or handlers of the agricultural commodity, give due notice of and an opportunity for a public hearing upon a proposed marketing order or agreement.
If the secretary, based on periodic assessments of markets for bioenergy feedstocks, determines that the issuance of a marketing order or agreement for bioenergy feedstocks will effectuate the declared policy of this chapter, the secretary shall propose the issuance of a marketing order or agreement under sub. (1)
for bioenergy feedstocks.
Petitions for a marketing order or agreement shall be signed by at least 5% of the producers or handlers of the affected commodity. The petitions shall include the name and mailing address of each petitioner, the quantities in which the affected commodity was produced or handled by them in the last preceding year, and a clear statement of the substance or nature of the proposed order or agreement, and shall be accompanied by a draft of the proposed order or agreement. Within a reasonable time after receipt of a petition, the secretary shall either schedule the proposal for public hearing as provided in sub. (1)
, or deny the petition in writing if in the judgment of the secretary the proposal exceeds the purposes or limitations of this chapter. If the petition is denied, the secretary shall give notice, within 60 days, of the denial and the notice shall include a clear statement of the specific reasons for the denial. Notice of the denial shall be published as a class 1 notice under ch. 985
. If a petition is denied it may not be reconsidered by the secretary for a period of one year from the date of notice of the denial.
Prior to the issuance of a notice of public hearing on any proposed marketing order or agreement, the secretary shall establish a list of producers or handlers of the affected commodity or make any existing list current. The list of producers or handlers who may be affected by the proposed order or agreement may be established from other records kept by the department or records that may be available from any other reliable source. The secretary may, as necessary in establishing lists or keeping existing lists current, require producers or handlers of the affected commodity to file with the secretary a report showing the producer's or handler's name and mailing address and the yearly average quantity of affected commodities produced or handled by the producer or handler in the 5 years preceding the date of the notice, or in such lesser period as the producer or handler has produced or handled the commodity in question.
If the secretary requires the filing of reports, notice of the requirement shall be published as a class 1 notice, under ch. 985
, and otherwise distributed or publicized within the affected areas in such a manner as the secretary deems necessary to ensure that effective notice is given of the report filing requirement. All reports shall be filed with the secretary within 20 days from the date of publication of the notice or within such other period as the secretary prescribes. The secretary shall keep such lists at all times as current as possible and may require information from affected producers or handlers at various times in accordance with rules prescribed by the secretary. No marketing order for any agricultural commodity shall be issued unless the secretary finds that the list established under this section represents at least a majority of the affected producers or handlers.
The list of producers or handlers established by the department shall be final and conclusive in determining whether the issuance of a marketing order or marketing agreement has been approved by referendum or written assent, and in determining the eligibility of nominees and voters in elections for board members. Nothing in this section shall prohibit affected producers or handlers whose names and addresses are not on the department list from participating under this chapter and registering their names and addresses and, as required, quantities of commodities produced or handled by them, in connection with the execution of an assent, or the casting of a ballot in a referendum or election.
Prior to conducting any hearing, or submitting a proposed marketing order or agreement to affected producers or handlers for their approval, the secretary may require petitioners to deposit with the department funds reasonably necessary to defray the costs and expenses that may be incurred by the department in establishing producer or handler lists, sending mail, issuing notices, conducting hearings and referendum or assent proceedings, and other related costs and expenses that may be incurred prior to issuing a marketing order or agreement. The secretary shall refund to petitioners all funds in excess of those actually used.
A marketing order or marketing agreement may be amended or terminated as provided under s. 96.08
. The secretary may suspend a marketing agreement whenever the secretary finds after a public hearing duly noticed that such an agreement cannot be reasonably enforced or is contrary to the purposes of this chapter.
The secretary shall develop, maintain and distribute administrative policies and guidelines that establish uniform terms, conditions, definitions and nomenclature to be used in marketing orders and agreements.
History: 1971 c. 31
; 1981 c. 283
; Stats. 1981 s. 96.05; 2009 a. 401
Marketing orders are discussed. 64 Atty. Gen. 198.
Notice; hearing. 96.06(1)(1)
The notice for a public hearing under s. 96.05
shall be given as provided in s. 227.17
and shall be published as a class 1 notice under ch. 985
within affected areas of the state as prescribed by the secretary. Notice shall be given not less than 10 days nor more than 60 days prior to the date of hearing.
The hearing shall be conducted in accordance with s. 227.18
History: 1981 c. 283
; 1981 c. 391
; 1985 a. 182
The secretary shall make and publish findings upon every material point controverted at the hearing and required by this chapter, and upon such other matters which may be relevant to the issuance, amendment or termination of a marketing order or agreement. The secretary shall issue a decision within 45 days after the close of the hearing based upon the findings and shall cause copies of the findings and recommended decision to be delivered or mailed to all parties of record appearing at the hearing or their attorneys of record. The decision shall contain the text in full of any order or agreement or amendment or termination of an existing order or agreement, and may deny or approve the proposal in its entirety or it may recommend a marketing order or agreement containing different terms or conditions from those contained in the proposal, but such decision shall be substantially within the purview of the notice of hearing and shall be supported by evidence taken at the hearing or by documents of which the secretary is authorized to take official notice. The secretary shall not approve the issuance, amendment or termination of any marketing order or agreement unless the secretary finds all of the following:
That the proposed issuance, amendment or termination is reasonably calculated to attain the objectives sought in the proposed marketing order or agreement.
That the proposed issuance, amendment or termination is in conformity with this chapter.
That the interests of consumers of such commodity are protected in that the powers of this chapter are being exercised only to the extent necessary to attain such objectives.
The secretary shall deliver or mail copies of the decision to the same parties to whom copies of the findings are required to be sent. If the final decision denies the proposal in its entirety, no further action shall be taken by the secretary.
History: 1981 c. 283
; Stats. 1981 s. 96.07.
Referendum and assent procedures. 96.08(1)
Marketing order; referendum. 96.08(1)(a)(a)
Every proposal for the creation of a marketing order shall include a proposed voting requirement from par. (b)
to be used for the adoption of the proposal. The secretary shall receive testimony and evidence on the proposed voting requirement at the public hearing. The decision issued under s. 96.07
shall state which voting requirement will be used for the adoption of the proposal and that requirement may be different from the one contained in the proposal.
A marketing order may not become effective until the secretary finds that the needed voting requirement has been met. In determining whether the voting requirement under subd. 2.
has been met the secretary may not consider any votes cast using the bloc voting procedure under sub. (3)
. One of the following voting requirements must be used. The secretary must find that a marketing order:
Is approved by producers on record with the department in a referendum conducted among producers directly affected by the marketing order. The producers directly affected shall be deemed to have approved a proposed order if 50% or more by number of producers on record with the department vote and if, of those voting, two-thirds or more by number who produce 50% or more of the volume of the affected commodity or 50% by number who produce two-thirds or more of the volume approve the proposed marketing order. Volume shall be determined on the basis of the quantity of the commodity produced in the last preceding marketing season.
Is approved in a referendum by 50% or more of the producers of the affected commodity who produced 50% or more of the volume in the last preceding marketing season.
Is approved by not less than 50% of the producers voting provided that 50% of the producers on the established list vote in the referendum.
Is approved by more than 50% of the affected producers voting in the referendum, provided that the marketing order provides for producer refunds.
Is approved in a referendum by 50% or more of the handlers on record with the department if the marketing order directly affects handlers.
Is approved in a referendum by 50% or more of the producers and 50% or more of the handlers on record with the department if the order directly affects producers and handlers.
An amendment to, or the termination of, a marketing order may not become effective until the secretary finds that the same voting requirement is met that was used to adopt the order.
(2) Marketing agreement; assent. 96.08(2)(a)(a)
A marketing agreement may not become effective until the secretary finds that not less than 50% of the affected producers or handlers assent to the proposal.
An amendment to, or the termination of, a marketing agreement may not become effective until the secretary finds that not less than 50% of the producers or handlers who assented to the marketing agreement, assent to the proposed amendment or termination.
(3) Bloc voting and assent procedure. 96.08(3)(a)(a)
In finding whether a marketing order is approved by referendum or a marketing agreement is assented to, the secretary shall consider the approval or disapproval of any agricultural cooperative marketing association, which is authorized by its members to cast a bloc vote or assent on behalf of its members as the approval or disapproval of the producers who are members of the agricultural cooperative marketing association, but any member of a cooperative may elect to vote or assent individually and be excluded from the bloc vote or assent by notifying the cooperative and the secretary in writing. At least 45 days prior to the commencement of a referendum or assent procedure, a cooperative that intends to cast a bloc vote or assent for its members shall notify its members of their right to vote or assent individually and be excluded from the bloc vote or assent, and it shall file with the department a list of its members for whom it is eligible to vote or assent. The secretary shall delete from the list the names of those producers who have filed notice of their intent to vote or assent individually. Notice by the cooperative to the department shall include a statement that it has complied with the notice requirements of this paragraph.
A cooperative association or an unincorporated cooperative association engaged in the marketing of affected commodities as the agent of its members may cast a bloc vote or assent for its members, except that it shall exclude from its bloc vote or assent any of its members who are also member-patrons of another cooperative or unincorporated cooperative association which intends to cast a bloc vote or assent for those members.
History: 1981 c. 283
; 2005 a. 441
Marketing agreement council. 96.09(1)
The secretary may provide for the establishment of a council to assist in the administration of a marketing agreement.
If the secretary establishes a marketing agreement council, its duties shall include, but not be limited to the following:
To recommend to the secretary administrative rules relating to the marketing agreement.
To receive and report to the secretary complaints of violations of the marketing agreement.
To recommend to the secretary amendments to the marketing agreement.
To advise the secretary in the collection of such information and data as the secretary deems necessary for the proper administration of the agreement.
To recommend to the secretary methods by which administrative costs of a marketing agreement can be recovered.
A marketing agreement council is not a council under s. 15.09
and shall be governed exclusively by this chapter and s. 15.04 (1) (c)
History: 1981 c. 283
Marketing boards. 96.10(1)(1)
Every marketing order issued pursuant to this chapter shall provide for the establishment of a marketing board. If the marketing order affects directly only producers of a particular commodity, the members of the board shall be producers. If the marketing order affects directly only handlers of a particular commodity, the members of the board shall be handlers. If the marketing order affects directly both producers and handlers of a particular commodity, the board shall be composed of both producers and handlers. Each marketing order shall prescribe the representation on the board of affected parties. Each marketing order shall also prescribe the number and term of office of board members, the time limits within which nominations for the election of board members are to be filed and elections held and the manner in which vacancies are filled. Board members may be elected for staggered terms as specified in the marketing order. Persons who will serve on the board shall be selected by the affected producers and handlers by secret ballot according to area, size or any other measure providing for fair representation, as determined by the secretary, from a list of persons whose nominations have been filed with the secretary. Notice of the secretary's decision under s. 96.07
, with respect to the issuance of a marketing order, shall contain a call for nominations and limit the time within which they can be filed. No marketing order may take effect until a marketing board has been elected. Nominations shall be signed by at least 5 persons qualified to vote for the candidates.
The duties of a marketing board shall include but not be limited to the following:
To develop and recommend to the secretary administrative rules relating to the marketing order.
To receive, evaluate and report to the secretary complaints of violations of the marketing order.
To recommend to the producers and handlers directly affected by the marketing order or to the secretary amendments to the marketing order.
To develop procedures for assessments and for the collection of funds to cover expenses incurred in carrying out the programs and the administration of the marketing order.
To collect such information and data as necessary for the proper administration of the order.
To determine how the funds collected under the order are to be allocated in accordance with this chapter and the provisions of the order.
To prepare annually a report on the operation of the order for the previous marketing year.
A marketing board shall incorporate under ch. 181
as a nonstock, nonmember corporation. The articles of incorporation shall be within the purposes and limitations of this chapter and the marketing order. The articles of incorporation and any amendment may not become effective until approved by the secretary. The secretary may not approve the articles of incorporation until the secretary finds that it contains procedures that are adequate to preserve the confidentiality of any information relating to the businesses of affected producers and handlers that is obtained under this chapter or the order. The marketing board shall adopt bylaws and amendments to the bylaws in consultation with the secretary.
The marketing board shall maintain a bond on its officers and employees in an amount of not less than 50% of the annual operating budget of the order.
(5) Administrative services.
The marketing board may request the department to provide administrative services for the order. If requested, the department shall provide the services needed and the board shall reimburse the department for all of the costs incurred by the department in providing the services.
(6) Nature of a marketing board.
A marketing board elected under an order is not a board under s. 15.07
and shall be governed exclusively by this chapter.
History: 1981 c. 283
; Stats. 1981 s. 96.10.
Each marketing order issued under this chapter shall provide for the levying and collection of assessments in sufficient amounts to defray the expenses incurred by the marketing board for program operations and administration of the order. Each marketing order shall indicate the maximum rate of any such assessment which may be collected and the proportion, if any, payable by each producer or handler directly affected by the marketing order. The marketing board may recommend to the secretary the assessment rate necessary to provide sufficient funds to cover the marketing order budget. The marketing board shall determine when assessments become due and payable and the units upon which the assessment rate applies. All assessments collected are payable to the marketing board.
If the secretary finds that the marketing order budget or assessment rate exceeds the limitations of, or is contrary to, the declared purposes of this chapter or the marketing order, the secretary may disapprove the budget and any amendments to the budget, or assessment rate.
Except as provided under par. (c)
, a corn producer who sells corn that is subject to the assessment levied under sub. (1)
under the marketing order for corn shall pay an additional assessment of 0.4 cents per bushel, to be collected and remitted to the marketing board in the manner provided in the marketing order for the assessment under sub. (1)
If the marketing order for corn provides for rebates under s. 96.13 (2)
, a producer to whom subd. 1.
applies may obtain a rebate of the assessment paid under subd. 1.
in the manner provided in the marketing order for obtaining a rebate of the assessment levied under sub. (1)
The marketing board for corn shall use the moneys received under par. (a)
for the purposes of the marketing order for corn.
The department shall conduct a referendum on whether to terminate the assessment under par. (a)
if after June 30, 2011, and before January 1, 2012, 10 percent of the producers who sell corn that is subject to the assessment levied under sub. (1)
petition for a referendum. The assessment under par. (a)
does not apply after June 30, 2012, if a referendum to terminate the assessment is approved by affected producers.
If the marketing order for corn is terminated, pars. (a)
do not apply.
History: 1981 c. 283
; Stats. 1981 s. 96.11; 2007 a. 26
To ensure the proper collection of assessments, the marketing board may require:
Any person subject to the assessment to give the board adequate assurance or security for its payment.
Every affected producer or handler subject to the assessment to deposit with the board in advance an amount not to exceed 25% of the estimated total annual assessment payable by the person. At the close of the marketing year the sum so deposited shall be adjusted to the total of such assessments payable by the person.
Handlers receiving the affected commodity to collect assessments from affected producers and remit such assessments to the marketing board. Lending agencies for commodity credit corporation loans to producers shall be deemed handlers for the purpose of this subsection. Handlers who are only collecting assessments from producers under this section are not considered affected handlers under the marketing order.
History: 1981 c. 283
; Stats. 1981 s. 96.12.
Assessments collected by the marketing board under any marketing order or as an advance deposit against the assessment shall be used by the marketing board only for the purpose of carrying out the purposes and provisions of the order, including the administrative costs.
A marketing order may contain a provision granting producers who have paid an assessment under the order, and who do not favor the program developed under the order, the right to receive a refund of assessments paid upon submission of proof satisfactory to the marketing board that the assessment for which a refund is requested has been paid. Claims for producer refunds must be submitted on forms prescribed by the board and filed with the board within 90 days after the date the assessment became due and payable. All claims shall be audited and paid by the board within 60 days after receipt of the claim, or within such other reasonable period of time as may be necessary to determine the validity of the claim.
Upon termination of any marketing order, any and all moneys remaining with the marketing board and not required to defray expenses or repay obligations incurred shall be returned to the affected producers or handlers in proportion to the assessments paid by each in the 2-year period preceding the date of the termination order. If the marketing board and the secretary find that the returnable amounts are so small that the computation and return of the remaining funds is impractical, the board may use the remaining funds to further any of the basic purposes or objectives of the terminated marketing order.