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.
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)(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)(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)(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 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85.
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)(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(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)(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)(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.
ATCP 140.44(2)(f)4.
4. File interim and final reports with the marketing board on contract performance.
ATCP 140.44(2)(f)5.
5. File with the marketing board a copy of the contractor's annual financial statement or security for performance.
ATCP 140.44(3)
(3) Contract records; inspection. Contracts and purchase orders shall be made available for inspection, copying and audit by the department. Proposed contracts and purchase orders shall be made available for inspection by the department prior to execution, if requested by the secretary. Contracts and purchase orders shall be kept on file with the marketing board for at least 7 years after the completion date specified in the contract or purchase order. Upon termination of a marketing order, all contracts and purchase orders shall be filed with the department.
ATCP 140.44 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85.
ATCP 140.45(1)
(1)
Persons authorized. No person may expend, or contract for the expenditure of moneys on behalf of a marketing board except under a direct written delegation of authority from the marketing board. Upon request by the secretary, a marketing board shall identify every person who is authorized to expend or contract for the expenditure of moneys on behalf of the marketing board.
ATCP 140.45(2)
(2) Approval of expenditures. No person, including any person authorized under
sub. (1), may expend or contract for the expenditure of moneys on behalf of a marketing board unless the expenditure has been specifically approved by the marketing board. Procedures for the approval of expenditures shall be set forth in the bylaws of the marketing board. A marketing board may, by means of a budget authorization, grant prospective approval for routine overhead or operating expenditures, and may delegate authority to a bonded officer or employee to make individual payments or expenditures pursuant to the budget authorization. The budget authorization shall specify the nature of the authorized expenditures, the maximum total expenditure authorized in each expenditure subcategory, and the time period to which the authorization is applicable. The marketing board shall adopt bylaws or written procedures for the exercise of delegated expenditure authority by a bonded officer or employee, including any required requisition and voucher procedures.
ATCP 140.45 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85.
ATCP 140.46
ATCP 140.46 Accounting systems; audits; reports. ATCP 140.46(1)(1)
Accounting system. Every marketing board shall maintain a complete accounting system for the management of marketing board receipts and expenditures. Accounting procedures shall conform to generally accepted accounting principles. Accounting systems shall provide for the periodic generation of balance sheets, income statements, statements of account balances, and other indicators of marketing board financial position. A marketing board shall provide the secretary with such reports of a marketing board's financial position as the secretary may require.
ATCP 140.46(2)(a)(a) Marketing board receipts, expenditures, accounts and fiscal operations shall be independently audited on an annual basis by a certified public accountant, in accordance with generally accepted accounting and audit principles. The audit shall include a review of compliance with applicable law, and with the established bylaws and procedures of the marketing board. The results of the audit shall be filed with the secretary within 120 days after the end of the marketing board's fiscal year.
ATCP 140.46(2)(b)
(b) Marketing board receipts, expenditures, accounts, fiscal operations, and all other records and operations of a marketing board may be audited by the department at any time, for the purpose of ascertaining compliance with applicable law. The department may exercise its authority under
ch. 93, Stats., in support of its audit.
ATCP 140.46(3)
(3) Financial statements. Every marketing board shall prepare a year-end financial statement, independently audited and certified by a certified public accountant. The financial statement shall be filed with the secretary within 120 days after the end of the marketing board's fiscal year.
ATCP 140.46(4)
(4) Annual reports. Every marketing board shall prepare an annual report on marketing board operations for each fiscal year, to be published at the conclusion of the fiscal year. The annual report shall include, at a minimum, a description of the projects funded during the year, the progress or results of each funded project, and the audited financial statement prepared under
sub. (3). The annual report shall be filed with the secretary within 120 days after the end of the fiscal year. The annual report shall be made available for inspection and copying by the public. Within 180 days after the end of the fiscal year, the marketing board shall either mail a free copy of the annual report to each affected producer or handler, or publish notice to affected producers and handlers informing them that the annual report is available for free distribution to affected producers and handlers upon request.
ATCP 140.46 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85.
ATCP 140.47
ATCP 140.47 Prohibited expenditures and business practices. A marketing board may not:
ATCP 140.47(1)(a)
(a) For any purpose which is not authorized under
ch. 96, Stats., and the marketing order, or which is inconsistent with
ch. 96, Stats., and the marketing order.
ATCP 140.47(1)(c)
(c) Whose aggregate amount exceeds the annual receipts of the marketing board for the fiscal year in which the expenditures occur. Annual receipts, for purposes of this paragraph, include any surplus receipts carried over from the preceding fiscal year. This paragraph does not prohibit a marketing board from contracting for the expenditure of anticipated receipts during the current fiscal year in which the receipts are anticipated, if the expenditure is budgeted and approved in compliance with
ss. ATCP 140.42 and
140.45. A marketing board shall periodically review its projections of anticipated receipts during the fiscal year, to determine whether the projections are accurate, and whether any adjustment of proposed expenditures may be necessary to comply with this paragraph.
ATCP 140.47(1)(d)
(d) To promote or fund any other marketing order. This does not prohibit joint funding of marketing order projects and programs with other marketing boards.
ATCP 140.47(1)(e)
(e) To influence state or federal legislation or rulemaking. This does not prohibit any of the following activities, unless the secretary determines that expenditures for activities are excessive in relation to the purposes for which the marketing order is created:
ATCP 140.47(1)(e)1.
1. The publication and distribution of information describing the programs, activities and accomplishments of the marketing board.
ATCP 140.47(1)(e)2.
2. The publication and distribution of information related to any proposal under subch.
I for the amendment or repeal of the marketing order, if the information is published and distributed prior to the secretary's decision under
s. ATCP 140.18 advancing the proposed amendment or repeal to a referendum of producers or handlers.
ATCP 140.47(1)(e)3.
3. Communication by a marketing board member or employee with any state public official or employee concerning the proposed amendment or repeal of the marketing order, or concerning any other rulemaking which is directly related to the marketing order.
ATCP 140.47(1)(e)4.
4. The publication and distribution of information concerning an impending advisory referendum on the marketing order, provided that the marketing board does not directly recommend or suggest how producers or handlers should vote in the advisory referendum.
ATCP 140.47(1)(f)
(f) For salaries, administrative expenses, travel expenses or personal expenses, except those which are reasonable and necessary for the operation of the marketing board, or which are a reasonable and necessary incident to the performance of administrative or contract services for the marketing board.
ATCP 140.47(1)(g)
(g) For any market development program which makes false or unwarranted claims on behalf of an affected commodity or disparages the quality, value, sale or use of any other agricultural commodity.
ATCP 140.47(1)(h)
(h) For any market research or development program which makes reference to, or which exclusively promotes a private brand or trade name of the affected commodity.
