Chapter ATCP 100

ATCP 100.98(2)(b) (b) Costs to test dairy farm milk shipments before the dairy plant operator commingles those milk shipments with other milk shipments at the dairy plant. Testing costs include lab testing, reporting and recordkeeping costs related to milk testing. Testing costs do not include costs incurred by a milk hauler to collect milk samples from dairy farms, nor do they include costs incurred because of producer’s violation of ch. ATCP 65.

ATCP 100.98(2)(c) (c) Expenses to prepare and maintain producer payroll records and process payments to producers.

ATCP 100.98(2)(d) (d) Dairy farm license fees and other routine expenses which the dairy plant operator incurs in connection with the licensing and regulation of dairy farms.

ATCP 100.98(2)(e) (e) Other costs which the department allows in writing.

ATCP 100.98(3) (3) “Base period pickup cost” means a dairy plant operator’s total cost, for the operator’s base period, to collect milk from dairy farms. “Base period pickup cost” does not include any of the following:

ATCP 100.98(3)(a) (a) Milk collection and hauling costs which the dairy plant operator charges to milk producers.

ATCP 100.98(3)(b) (b) Transportation or milk hauling costs incurred before the milk hauler arrives at the first dairy farm on the hauling route, or after the milk hauler leaves the last farm on the hauling route.

ATCP 100.98(4) (4) “Dairy plant operator” means either of the following:

ATCP 100.98(4)(a) (a) A person who holds, or is required to hold, a dairy plant license under s. 97.20, Stats., and who buys milk from producers.

ATCP 100.98(4)(b) (b) A person who operates a dairy plant outside this state, and who buys milk from Wisconsin producers for delivery to that out-of-state dairy plant.

ATCP 100.98(5) (5) “Milk price” means a producer’s average gross pay per hundredweight less hauling charges, calculated for a pay period according to s. ATCP 100.30 (9).

ATCP 100.98(6) (6) “Pay class” means a group of producers who qualify for the same volume premium.

ATCP 100.98(7) (7) “Pickup cost per hundredweight” means the cost calculated under s. ATCP 100.983 (5) for a pay class or individual producer.

ATCP 100.98(8) (8) “Producer service cost per hundredweight” means the cost calculated under s. ATCP 100.983 (4) for a pay class or individual producer.

ATCP 100.98(9) (9) “Non-price consideration” means anything of monetary value which a dairy plant operator or the operator’s agent offers or provides to a producer in return for the producer’s sale of milk to the operator, but which is not reflected in the milk price. “Non-price consideration” includes monetary payments, goods, milk hauling services, farm and household services, prizes, price and financing considerations, and other things that have direct monetary value to the producer. “Non-price consideration” includes services which a milk hauler furnishes as an agent of a dairy plant operator.

ATCP 100.98(10) (10) “Volume premium” means any form of milk price increment or non-price consideration which a dairy plant operator or the operator’s agent offers or provides to a producer based on the producer’s milk volume, or which the operator or agent offers or provides only to certain producers based on their milk volume.

ATCP 100.98 Note Note: If a dairy plant operator pays a producer a higher price per hundredweight based on the total weight of any milk component (e.g., protein or butterfat) received from that producer, that price increment is a “volume premium” as defined under sub. (9). However, a per-hundredweight price increment based solely on the percentage contents of milk components in milk is not a “volume premium.”

ATCP 100.98 History History: Cr. Register, September, 1996, No. 489, eff. 10-1-96; CR 02-113: renum. (4) to be (5) and am., cr. (4), renum. (5) to (9) to be (7) to (9), (6) and (10), am. (4) (f) Register April 2003 No. 568, eff. 5-1-03; CR 14-073: am. (2) (a), (b) Register August 2016 No. 728, eff. 9-1-16.

ATCP 100.981 ATCP 100.981 Price discrimination prohibited. Except as provided under s. ATCP 100.982, 100.983 or 100.984, no dairy plant operator may do any of the following if the operator’s action injures any producer or injures, destroys or prevents competition between competing dairy plant operators:

ATCP 100.981(1) (1) Discriminate between producers, directly or indirectly, in the milk price offered or paid to those producers.

ATCP 100.981(2) (2) Discriminate between producers, directly or indirectly, in the value of any non-price consideration offered or provided to those producers. A dairy plant operator does not discriminate under this subsection if the operator offers the same non-price consideration to all producers on equal terms, so that the same non-price consideration is effectively available to all producers who wish to receive it.

ATCP 100.981 Note Note: Section ATCP 100.981 is adopted under s. 100.20 (2), Stats., and other applicable statutes. A person who suffers a monetary loss because of a violation of s. ATCP 100.981 may therefore bring a private lawsuit against the violator under s. 100.20 (5), Stats., and may recover double damages, costs and reasonable attorney fees.

ATCP 100.981 History History: Cr. Register, September, 1996, No. 489, eff. 10-1-96.

ATCP 100.982 ATCP 100.982 Exemptions. Section ATCP 100.981 does not prohibit a dairy plant operator from doing any of the following:

ATCP 100.982(1) (1) Paying a different milk price for grade A versus grade B milk.

ATCP 100.982(2) (2) Complying with a federal milk marketing order.

ATCP 100.982(3) (3) Properly charging a producer, pursuant to ch. ATCP 65 or the procurement contract, for costs which the dairy plant operator or milk contractor incurs because of the producer’s violation of ch. ATCP 65.

ATCP 100.982(4) (4) Paying different milk prices to producers based on actual differences in the quality of their milk, or based on actual differences in the percentage content of milk components in their milk, provided that all of the following apply:

ATCP 100.982(4)(a) (a) The dairy plant operator pays for milk quality, or for the percentage content of milk components in a producer’s milk, according to a written payment schedule which the operator announces and makes available on equal terms to all producers from whom the dairy plant operator buys milk.

ATCP 100.982(4)(b) (b) The payment schedule under par. (a) clearly indicates the amounts by which payments will vary based on actual differences in milk quality, or based on actual differences in the percentage content of milk components in a producer’s milk.

ATCP 100.982(4)(c) (c) The dairy plant operator measures the differences under par. (b) using accepted scientific methods.

ATCP 100.982(4)(d) (d) The payment schedule under par. (a) does not discriminate between producers having the same milk quality, or the same percentage content of milk components in their milk.

ATCP 100.982(4)(e) (e) Milk quality and milk component payments are not based on milk volume or restricted to certain producers based on volume.

ATCP 100.982(4)(f) (f) The dairy plant operator complies with ss. ATCP 65.84 (3) and 100.30.

ATCP 100.982 History History: Cr. Register, September, 1996, No. 489, eff. 10-1-96; CR 02-113: am. (4) (f) Register April 2003 No. 568, eff. 5-1-03; CR 14-073: am. (3), (4) (f) Register August 2016 No. 728, eff. 9-1-16.

ATCP 100.983 ATCP 100.983 Cost-justification defense.

ATCP 100.983(1) (1) General. In any proceeding against a dairy plant operator, in which the operator is alleged to have discriminated between pay classes or individual producers in violation of s. ATCP 100.981, it is a defense for the operator to prove, based on documentary evidence which the operator possessed and relied upon at the time of the alleged discrimination, that the amount of the price discrimination per hundredweight between those pay classes or individual producers did not exceed, in any relevant pay period, the difference in the operator’s relevant procurement cost per hundredweight between those pay classes or producers.

ATCP 100.983(2) (2) Volume premiums based on total milk volume. A dairy plant operator shall use the following relevant procurement costs per hundredweight to justify, under sub. (1), discrimination resulting from the payment of volume premiums based on total milk volume:

ATCP 100.983(2)(a) (a) Pay class. The operator’s relevant procurement cost per hundredweight for each pay class is the operator’s “producer service cost per hundredweight” for that pay class, calculated according to sub. (4) (a).

ATCP 100.983(2)(b) (b) Individual producer. The operator’s relevant procurement cost per hundredweight for each individual producer is the operator’s “producer service cost per hundredweight” for that individual producer, calculated according to sub. (4) (b).

ATCP 100.983(3) (3) Volume premiums based on volume per pickup. A dairy plant operator shall use the following relevant procurement costs per hundredweight to justify, under sub. (1), discrimination resulting from the payment of volume premiums based on volume per pickup:

ATCP 100.983(3)(a) (a) Pay class. The operator’s relevant procurement cost per hundredweight for a pay class is the sum of the operator’s “producer service cost per hundredweight” under sub. (4) (a) and “pickup cost per hundredweight” under sub. (5) (a), except that the operator may not include “producer service cost per hundredweight” if the operator also pays volume premiums based on total volume.

ATCP 100.983(3)(b) (b) Individual producer. The operator’s relevant procurement cost per hundredweight for an individual producer is the sum of the operator’s “producer service cost per hundredweight” under sub. (4) (b) and “pickup cost per hundredweight” under sub. (5) (b), except that the operator may not include “producer service cost per hundredweight” if the operator also pays volume premiums based on milk volume.

ATCP 100.983 Note Note: If a dairy plant operator pays separate volume premiums based on total milk volume and volume per pickup, the operator must separately justify the total volume premiums under sub. (2) and the per-pickup volume premiums under sub. (3).

ATCP 100.983(4) (4) Producer service cost per hundredweight.

ATCP 100.983(4)(a) (a) For a pay class. To calculate a dairy plant operator’s “producer service cost per hundredweight” for a pay class in any pay period:

ATCP 100.983(4)(a)1. 1. Determine the operator’s base period producer service cost, as defined in s. ATCP 100.98 (2). Divide that cost by the average number of producers who shipped milk to the operator during the base period.

ATCP 100.983(4)(a)2. 2. Multiply the result under subd. 1. by the number of producers in the pay class during the relevant pay period.

ATCP 100.983(4)(a)3. 3. Divide the result under subd. 2. by the hundredweights of milk which the pay class produced during the relevant pay period. This yields the operator’s “producer service cost per hundredweight” for that pay class in that pay period.

ATCP 100.983(4)(b) (b) For an individual producer. To calculate a dairy plant operator’s “producer service cost per hundredweight” for an individual producer in any pay period:

ATCP 100.983(4)(b)1. 1. Determine the operator’s base period producer service cost, as defined in s. ATCP 100.98 (2). Divide that cost by the average number of producers who shipped milk to the operator during the base period.

ATCP 100.983(4)(b)2. 2. Divide the result under subd. 1. by the number of hundredweights of milk which the individual producer shipped to the operator during the relevant pay period. This yields the operator’s “producer service cost per hundredweight” for that individual producer in that pay period.

ATCP 100.983(5) (5) Pickup cost per hundredweight.

ATCP 100.983(5)(a) (a) For a pay class. To calculate a dairy plant operator’s “pickup cost per hundredweight” for a pay class in any pay period:

ATCP 100.983(5)(a)1. 1. Determine the operator’s base period pickup cost, as defined in s. ATCP 100.98 (3). Divide that cost by the total number of farm stops made during the base period.

ATCP 100.983(5)(a)2. 2. Multiply the result under subd. 1. by the number of stops made, during the relevant pay period, at dairy farms operated by producers in the pay class.

ATCP 100.983(5)(a)3. 3. Divide the result under subd. 2. by the hundredweights of milk collected, during the relevant pay period, from producers in the pay class. This yields the operator’s “pickup cost per hundredweight” for that pay class in that pay period.

ATCP 100.983(5)(b) (b) For an individual producer. To calculate a dairy plant operator’s “pickup cost per hundredweight” for an individual producer in any pay period:

ATCP 100.983(5)(b)1. 1. Determine the operator’s base period pickup cost, as defined in s. ATCP 100.98 (3). Divide that cost by the total number of farm stops made during the base period.

ATCP 100.983(5)(b)2. 2. Multiply the result under subd. 1. by the number of stops made at the producer’s dairy farm during the relevant pay period.

ATCP 100.983(5)(b)3. 3. Divide the result under subd. 2. by the hundredweights of milk collected from the producer’s dairy farm during the relevant pay period. This yields the operator’s “pickup cost per hundredweight” for that individual producer in that pay period.

ATCP 100.983(6) (6) Cost accounting.

ATCP 100.983(6)(a) (a) At the request of a dairy plant operator, the department may approve alternative methods for calculating relevant procurement costs per hundredweight under this section. The department shall give its approval, if any, in writing.

ATCP 100.983(6)(b) (b) Costs under this section shall be determined on the basis of generally accepted accounting principles using the accrual method of accounting.

ATCP 100.983(7) (7) Value of non-price consideration per hundredweight. If a dairy plant operator seeks to cost-justify a discrimination in non-price consideration under s. ATCP 100.981 (2), the operator shall calculate the value of that non-price consideration per hundredweight by dividing the value of the non-price consideration provided in each pay period by the hundredweights of milk which the recipient of that non-price consideration produced during that pay period.

ATCP 100.983 History History: Cr. Register, September, 1996, No. 489, eff. 10-1-96.

ATCP 100.984 ATCP 100.984 Meeting competition defense.

ATCP 100.984(1) (1) General. In any proceeding against a dairy plant operator, in which the operator is alleged to have discriminated between producers or pay classes in violation of s. ATCP 100.981, it is a defense for the operator to prove that the operator discriminated between those producers or pay classes in good faith in order to meet competition.

ATCP 100.984(2) (2) Proof required. No dairy plant operator may claim the meeting competition defense under sub. (1) unless the operator proves all of the following, based on documentary evidence which the operator possessed and relied upon when the operator engaged in the alleged discrimination:

ATCP 100.984(2)(a) (a) The operator offered the discriminatory milk price or non-price consideration in response to a competitor’s prior offer to producers in the operator’s procurement area.

ATCP 100.984(2)(b) (b) The competitor’s prior offer under par. (a) was still in effect when the operator offered the discriminatory milk price or non-price consideration.

ATCP 100.984(2)(c) (c) The operator’s discriminatory milk price or non-price consideration was similar in kind to the competitor’s prior offer under par. (a), and did not exceed the competitor’s offer.

ATCP 100.984(2)(d) (d) The operator offered the discriminatory milk price or non-price consideration only in that part of the operator’s procurement area which overlapped the competitor’s procurement area, or only to those producers who received the competitor’s prior offer under par. (a).

ATCP 100.984(3) (3) Limitations. No dairy plant operator may claim the meeting competition defense under sub. (1) for either of the following:

ATCP 100.984(3)(a) (a) A milk volume premium which exceeds, for producers shipping equivalent volumes of milk, the milk volume premium offered or paid by the competitor whose competition the operator is purporting to meet.

ATCP 100.984(3)(b) (b) Discrimination which occurred more than 30 days after the last day on which the competitor’s offer was in effect.

ATCP 100.984 History History: Cr. Register, September, 1996, No. 489, eff. 11-1-96.

ATCP 100.985 ATCP 100.985 Demanding justification.

ATCP 100.985(1) (1) The department may, by written notice, require a dairy plant operator to file with the department the documentation which that operator relies upon to justify, under s. ATCP 100.982, 100.983 or 100.984, a payment or offer which appears to discriminate between producers or pay classes in violation of s. ATCP 100.981.

ATCP 100.985(2) (2) A dairy plant operator shall file documentation in response to the department’s demand under sub. (1) within 14 days after the operator receives that demand, or by a later date which the department specifies in its demand. The department may extend the filing deadline for good cause shown.

ATCP 100.985 Note Note: See ss. 93.15 and 93.21(4), Stats.

ATCP 100.985 History History: Cr. Register, September, 1996, No. 489, eff. 10-1-96.

ATCP 100.986 ATCP 100.986 Failure to justify discrimination; notice.

ATCP 100.986(1) (1) Department notice to alleged violator. If the department finds that a dairy plant operator’s documentation under s. ATCP 100.985 fails to justify a discrimination in milk price or non-price consideration, the department may give the dairy plant operator written notice of that finding.

ATCP 100.986(2) (2) Public inspection. A notice under sub. (1) is open to public inspection under subch. II of ch. 19, Stats.

ATCP 100.986(3) (3) Not a prerequisite for enforcement. A notice under sub. (1) is not a prerequisite for an action to enforce this chapter or s. 100.22, Stats., nor is it a prerequisite for a private action under s. 100.20 (5), Stats.

ATCP 100.986(4) (4) Notice does not prove violation. A notice under sub. (1) does not prove that a dairy plant operator violated this chapter or s. 100.22, Stats.

ATCP 100.986 History History: Cr. Register, September, 1996, No. 489, eff. 10-1-96.

ATCP 100.987 ATCP 100.987 Injury to producer. In a proceeding against a dairy plant operator under s. 93.06 (7) or (8), 100.20 (5) or (6), 100.22 (4) or (5), or 100.26 (3) or (6), Stats., proof that a complaining producer received a lower milk price or non-price consideration than another producer shipping milk to the same dairy plant during the same pay period is presumptive evidence of injury to that producer.