ATCP 140.13 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85;
CR 07-067: am. (1) (b) 3. (intro.) and a. Register July 2008 No. 631, eff. 8-1-08. ATCP 140.14
ATCP 140.14 Hearing draft proposal; format. ATCP 140.14(1)
(1) If a decision is made to initiate proceedings for the adoption, amendment or repeal of a marketing order, a hearing draft including a proposed voting requirement shall be prepared by the department in the form required for administrative rules under s.
227.14, Stats. The proposal submitted by the sponsors of a marketing order may be modified by the department to conform with
ch. 96, Stats., this chapter and other applicable law. The hearing draft of a proposed order adopting, amending or repealing a marketing order shall be submitted to the legislative council staff for review prior to hearing, as provided in s.
227.15, Stats.
ATCP 140.14(2)
(2) To the maximum extent feasible, consistent with the objectives of each proposal, the department shall maintain a consistency of terms, provisions, organization and drafting style between marketing orders. Terms defined in s.
96.01, Stats., shall be used consistently in every marketing order. The following terms shall be used consistently in marketing orders and when used shall have the following meanings:
ATCP 140.14(2)(a)
(a) “Producer-handler" means an affected producer who sells the affected commodity to a nonresident handler.
ATCP 140.14(2)(b)
(b) “Nonresident handler" means a handler who takes title to the affected commodity outside of this state.
ATCP 140.14(2)(c)
(c) “Transfer of title" means the passing of title from seller to buyer as provided in s.
402.401, Stats., or as otherwise provided under a written sales agreement.
ATCP 140.14(2)(d)
(d) “Assessment due" means an assessment for which a producer, handler or producer-handler has incurred a specific legal obligation of payment under the marketing order.
ATCP 140.14(2)(e)
(e) “Assessment payable" means an assessment due for which the time specified for payment under the marketing order has arrived. An assessment becomes payable on the payment date prescribed under the marketing order.
ATCP 140.14 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85; corrections in (1) made under s. 13.93 (2m) (b) 7., Stats.,
Register, April, 1993, No. 448;
CR 07-067: am. (2) (d) Register July 2008 No. 631, eff. 8-1-08. ATCP 140.15
ATCP 140.15 List of affected producers or handlers; compilation prior to hearing. If a decision is made to initiate proceedings for the adoption, amendment or repeal of a marketing order, the secretary shall establish a current list of producers and handlers who will be affected by the proposal, as provided in s.
96.05 (3) through
(5), Stats. The list shall be used in determining whether the proposal to adopt, amend or repeal a marketing order is approved in a referendum of producers and handlers, as provided in
s. ATCP 140.19. The list shall be established and updated using the procedures under s.
96.05 (3) through
(5), Stats., before any notice of public hearing is issued on the proposal.
ATCP 140.15 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85; am.
Register, February, 1996, No. 482, eff. 3-1-96.
ATCP 140.16
ATCP 140.16 Hearing notices. Notice of hearing on any proposal to adopt, amend or repeal a marketing order shall be given as provided under ss.
96.06 and
227.17, Stats. The department may issue such press releases or public announcements concerning the hearings as it may consider appropriate. The times and places of hearing shall be determined at the discretion of the secretary and be included in the hearing notice. The hearing notice may also specify a deadline date after the conclusion of the hearings for filing written comments on the proposal. Written comments received on or before the deadline date shall be included in the hearing record.
ATCP 140.16 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85;
correction made under s. 13.93 (2m) (b) 7., Stats.,
Register, April, 1993, No. 448.
ATCP 140.17
ATCP 140.17 Hearing. Hearings on any proposal to adopt, amend or repeal a marketing order shall be conducted as rulemaking hearings, pursuant to ss.
96.06 (2) and
227.18, Stats. Nothing in this chapter or
ch. 96, Stats., shall be construed as requiring a contested case hearing within the meaning of
ch. 227, Stats.
ATCP 140.17 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85; correction made under s. 13.93 (2m) (b) 7., Stats.,
Register, April, 1993, No. 448.
ATCP 140.18(1)
(1) Following hearing on a proposal to adopt, amend or repeal a marketing order, the secretary shall make and publish a decision on the proposal, as provided under s.
96.07, Stats., in consultation with the board of agriculture, trade and consumer protection. The decision shall be issued within 45 days after close of the hearing record, and shall set forth the factual basis and rationale for the decision, including the findings or determinations required under
sub. (2). The decision shall determine:
ATCP 140.18(1)(a)
(a) Whether the proposal is denied, or advanced to a referendum of affected producers or handlers under
s. ATCP 140.19. No proposal may be advanced to a referendum unless the secretary makes findings or determinations as provided in s.
96.07 (1) (a) through
(c), Stats.
ATCP 140.18(1)(b)
(b) Whether, and how the proposal will be modified for referendum. The decision shall include the complete text of the final proposal to be submitted to referendum. Changes from the hearing draft proposal shall be clearly noted.
ATCP 140.18(1)(c)
(c) The voting requirement to be used in determining whether the proposal is approved or disapproved upon referendum. The voting requirement shall be chosen from among the alternatives set forth under s.
96.08, Stats., and may be different from the voting requirement requested by the sponsors or included in the hearing draft. A proposal to amend or repeal a marketing order shall be subject to the same voting requirement that was used to adopt the marketing order. Bloc voting is permitted in connection with the voting requirements under s.
96.08 (1) (b) 1.,
3.,
5., and
6., Stats. Bloc voting is not permitted in connection with the voting requirements under s.
96.08 (1) (b) 2. or
4., Stats.
ATCP 140.18(2)(a)
(a) A list of persons testifying at the hearings, or submitting written comments within the comment period specified in the hearing notice.
ATCP 140.18(2)(b)
(b) The identity of the sponsors of the marketing order proposal, if proceedings on the proposal were initiated in response to a petition or request.
ATCP 140.18(2)(d)
(d) The nature and objectives of the proposal, as presented by the sponsors and represented in the hearing draft.
ATCP 140.18(2)(e)
(e) A discussion and analysis of the hearing arguments for and against the proposal.
ATCP 140.18(2)(f)
(f) A projection and analysis of the financial impact of the proposal on affected producers and handlers.
ATCP 140.18(2)(g)
(g) The projected market impact of the proposal, including the potential impact on consumers and small business.
ATCP 140.18(3)
(3) If the proposal would create or expand the size of a marketing board, and if the secretary's decision advances the proposal to referendum, the decision shall include a call for nominations to the marketing board, pursuant to s.
96.10, Stats., and
s. ATCP 140.20.
ATCP 140.18(4)
(4) Copies of the secretary's findings and decision shall be mailed, within the time period provided under
sub. (1), to all persons appearing at the hearings or submitting written comments for the hearing record. If the decision includes a call for nominations under
sub. (3), the decision shall be announced in a statewide press release by the department.
ATCP 140.18 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85.
ATCP 140.19(1)
(1)
General. Based on the secretary's decision under
s. ATCP 140.18, a proposal to adopt, amend or repeal a marketing order may be submitted to a referendum of affected producers or handlers, as provided in s.
96.08, Stats. No proposal to adopt, amend or repeal a marketing order may be adopted by the department unless the proposal is approved in a referendum of affected producers and handlers. The referendum shall be scheduled and announced as provided in
sub. (4), and be conducted according to the procedures set forth in this section. The results of the referendum shall be determined according to the voting requirement specified in the decision of the secretary under
s. ATCP 140.18 (1) (c).
ATCP 140.19(2)
(2) Voter eligibility. In a referendum held on a proposal to adopt, amend or repeal a marketing order, the eligible voters shall consist of producers or handlers who are affected by the proposed marketing order, or by the current marketing order which is to be amended or repealed under the proposal. The department may establish the marketing year or years for which the voting eligibility of a producer or handler is to be determined. Each affected producer or handler is entitled to one vote in the referendum. A corporation, partnership, trust, or other entity or association engaged in business as a producer or handler is entitled to only one vote as a producer or handler, except where an incorporated cooperative association casts a bloc vote as provided under
sub. (3). A producer or handler may not vote by proxy or agent, except that the vote of a business entity or association may be cast by its officer, employee or representative. The department may audit the list of affected producers or handlers compiled under
s. ATCP 140.15, or the voting status of any person casting a ballot, to ensure that all producers or handlers appearing on the list or casting ballots are eligible to vote in the referendum. The secretary may require supporting documentation from any person claiming to be an eligible producer or handler.
ATCP 140.19(3)(a)(a) If the secretary's decision prescribes a referendum voting requirement under
s. ATCP 140.18 (1) (c) which allows for possible bloc voting, an incorporated cooperative association engaged in marketing the affected commodity on behalf of the cooperative's affected producer members may cast a bloc vote on behalf of its affected members, as provided in s.
96.08 (3), Stats. A bloc vote may be cast by the board of directors of the cooperative with the authorization of the cooperative members. A bloc referendum vote may be cast for or against a proposal to adopt, amend or repeal a marketing order. The bloc vote shall be counted as the equivalent of multiple individual votes, according to the number of affected producer members represented in the bloc vote. If production volume is relevant to the referendum voting requirement, the volume of the affected commodity represented by a bloc vote shall be the combined volume produced by the individual producer members represented in the bloc vote. An incorporated cooperative association marketing an affected commodity as the agent of its members, and not as a purchaser, shall exclude from its bloc vote any of its affected producer members for whom a bloc vote will be cast by a second incorporated cooperative association in which the same producers are also members, if the second incorporated cooperative association markets the affected commodity as a purchaser from the producers.
ATCP 140.19(3)(b)
(b) At least 45 days prior to the referendum, an incorporated cooperative association intending to cast a bloc vote shall file the following with the secretary:
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.
