2011 Chapter 126

126.44(9) (9) Assets excluded. A milk contractor may not include any of the following assets in the calculations under sub. (8) (c), unless the department specifically approves their inclusion:

126.44(9)(a) (a) A nontrade note or account receivable from an officer, director, employee, partner, or stockholder, or from a member of the family of any of those individuals, unless the note or account receivable is secured by a first priority security interest in real or personal property.

126.44(9)(b) (b) A note or account receivable from a parent organization, a subsidiary, or an affiliate other than an employee.

126.44(9)(c) (c) A note or account that has been receivable for more than one year, unless the milk contractor has established an equal offsetting reserve for uncollectible notes and accounts receivable.

126.44(10) (10) Entity covered. A person filing a financial statement under this section may not file, in lieu of that person's financial statement, the financial statement of the person's parent organization, subsidiary, predecessor, or successor.

126.44(11) (11) Department review. The department may analyze a financial statement submitted under this section and may reject a financial statement that fails to comply with this section.

126.44 History History: 2001 a. 16; 2003 a. 238; 2009 a. 296.

126.45 126.45  Contributing milk contractors; disqualification.

126.45(1) (1)  Required contributors.

126.45(1)(a) (a) Except as provided in sub. (3), a licensed milk contractor shall pay fund assessments under s. 126.46 if the milk contractor does not file annual and quarterly financial statements under s. 126.44.

126.45(1)(b) (b) Except as provided in sub. (3), a licensed milk contractor shall pay fund assessments under s. 126.46 if the milk contractor files an annual, quarterly, or interim financial statement under s. 126.44 that shows a current ratio of less than 1.25 to 1.0, a debt to equity ratio of more than 2.0 to 1.0, or negative equity. The milk contractor shall continue to pay fund assessments until the milk contractor files 2 consecutive annual financial statements under s. 126.44 that show a current ratio of at least 1.25 to 1.0, positive equity, and a debt to equity ratio of not more than 2.0 to 1.0.

126.45(2) (2) Voluntary contributors. Except as provided in sub. (3), a licensed milk contractor who is not required to pay fund assessments under s. 126.46 may elect to do so.

126.45(3) (3) Disqualified contractors.

126.45(3)(a) (a) A milk contractor who is required to file security under s. 126.47 (1) (a) is disqualified from the fund until the department releases that security under s. 126.47 (7) (a).

126.45(3)(b) (b) A milk contractor is disqualified from the fund if the department does any of the following:

126.45(3)(b)1. 1. Denies, suspends, or revokes the milk contractor's license.

126.45(3)(b)2. 2. Issues an order under s. 126.85 disqualifying the milk contractor from the fund.

126.45(4) (4) Effect of disqualification.

126.45(4)(a) (a) A milk contractor disqualified under sub. (3) (b) 2. may not engage in any activities for which a license is required under s. 126.41 (1) (a) if the milk contractor files an annual, quarterly, or interim financial statement under s. 126.44 that shows a current ratio of less than 1.25 to 1.0, a debt to equity ratio of more than 2.0 to 1.0, or negative equity.

126.45(4)(b) (b) The department may not return, to a disqualified milk contractor, any fund assessments that the milk contractor paid as a contributing milk contractor.

126.45(4)(c) (c) A disqualified milk contractor remains liable for any unpaid fund installment under s. 126.46 that became due while the milk contractor was a contributing milk contractor. A disqualified milk contractor is not liable for any fund installment that becomes due after the milk contractor is disqualified under sub. (3).

126.45(5) (5) Notice to producers. A milk contractor who is disqualified under sub. (3) shall immediately give written notice of the disqualification to all milk producers and producer agents to whom the milk contractor has unpaid milk payment obligations. The department may by rule or order specify the form and content of the notice.

126.45 History History: 2001 a. 16; 2003 a. 38; 2009 a. 296.

126.46 126.46  Contributing milk contractors; fund assessments.

126.46(1) (1)  General. A contributing milk contractor shall pay an annual fund assessment for each license year in the amount specified by the department by rule.

126.46(5m) (5m) Reduced assessment for certain milk contractors filing security. If a contributing milk contractor files security under s. 126.47 (1) (b), the contributing milk contractor's fund assessment is the amount specified under sub. (1) reduced by an amount determined as follows:

126.46(5m)(a) (a) Divide the amount of security that the milk contractor is required to file under s. 126.47 (3) (b) by 75 percent of the following:

126.46(5m)(a)1. 1. If the milk contractor reports unpaid milk payroll obligations under s. 126.41 (6) (b) 1. and (9) (a), the highest amount of unpaid milk payroll obligations, reported under s. 126.41 (6) (b) 1. or (9) (a), that the milk contractor had at any time during the last 12 months.

126.46(5m)(a)2. 2. If the milk contractor reports monthly milk payroll obligations under s. 126.41 (6) (b) 2. and (9) (b), the highest amount of milk payroll obligations, reported under s. 126.41 (6) (b) 2. or (9) (b), that the milk contractor incurred in any month during the last 12 months.

126.46(5m)(b) (b) Multiply the amount specified under sub. (1) by the amount determined under par. (a).

126.46(6) (6) Quarterly installments.

126.46(6)(a) (a) A contributing milk contractor shall pay the milk contractor's annual fund assessment in equal quarterly installments that are due as follows:

126.46(6)(a)1. 1. The first installment is due on June 1 of the license year.

126.46(6)(a)2. 2. The 2nd installment is due on September 1 of the license year.

126.46(6)(a)3. 3. The 3rd installment is due on December 1 of the license year.

126.46(6)(a)4. 4. The 4th installment is due on March 1 of the license year.

126.46(6)(b) (b) A contributing milk contractor may prepay any of the quarterly installments under par. (a).

126.46(6)(c) (c) A contributing milk contractor who applies for an annual license after the beginning of a license year shall pay the full annual fund assessment required under this section. The milk contractor shall pay, with the first quarterly installment that becomes due after the day on which the department issues the license, all of the quarterly installments for that license year that were due before that day.

126.46(6)(d) (d) If s. 126.45 (1) (b) requires a licensed milk contractor to become a contributing milk contractor during the license year, the milk contractor shall pay only those quarterly installments that become due after the requirement takes effect.

126.46(6)(e) (e) A contributing milk contractor who fails to pay the full amount of any quarterly installment when due shall pay, in addition to that installment, a late payment penalty of $50 or 10% of the overdue installment amount, whichever is greater.

126.46(7) (7) Notice of annual assessment and quarterly installments. When the department issues an annual license to a contributing milk contractor, the department shall notify the milk contractor of all of the following:

126.46(7)(a) (a) The amount of the milk contractor's annual fund assessment under this section.

126.46(7)(b) (b) The amount of each required quarterly installment under sub. (6) and the date by which the milk contractor must pay each installment.

126.46(7)(c) (c) The penalty that applies under sub. (6) (e) if the milk contractor fails to pay any quarterly installment when due.

126.46 History History: 2001 a. 16; 2003 a. 38; 2009 a. 296.

126.47 126.47  Milk contractors; security.

126.47(1) (1)  Security required.

126.47(1)(a) (a) A milk contractor shall file security with the department, and maintain that security until the department releases it under sub. (7), if all of the following apply when the department first licenses the milk contractor under s. 126.41 (1):

126.47(1)(a)1. 1. The milk contractor reports more than 150,000 hundredweight of milk under s. 126.41 (6) (bg).

126.47(1)(a)2. 2. The milk contractor files an annual financial statement under s. 126.44 (1) and that financial statement shows negative equity.

126.47(1)(b) (b)

126.47(1)(b)1. 1. In this paragraph, "estimated default exposure" means 75 percent of the following:

126.47(1)(b)1.a. a. If the milk contractor reports unpaid milk payroll obligations under s. 126.41 (6) (b) 1. and (9) (a), the highest amount of unpaid milk payroll obligations, reported under s. 126.41 (6) (b) 1. or (9) (a), that the milk contractor had at any time during the last 12 months.

126.47(1)(b)1.b. b. If the milk contractor reports monthly milk payroll obligations under s. 126.41 (6) (b) 2. and (9) (b), the highest amount of milk payroll obligations, reported under s. 126.41 (6) (b) 2. or (9) (b), that the milk contractor incurred in any month during the last 12 months.

126.47(1)(b)2. 2. A milk contractor shall file security with the department, and shall maintain that security until the department releases it under sub. (7) (am), if all of the following apply:

126.47(1)(b)2.a. a. The milk contractor's last annual financial statement under s. 126.44 (1) shows negative equity, a current ratio of less than 1.25 to 1.0, or a debt to equity ratio of more than 2.0 to 1.0.

126.47(1)(b)2.b. b. The milk contractor's estimated default exposure exceeds $20,000,000.

126.47(3) (3) Amount of security.

126.47(3)(a) (a) Except as provided in par. (b), a milk contractor who is required to file or maintain security under sub. (1) shall at all times maintain security in an amount equal to at least 75 percent of the following:

126.47(3)(a)1. 1. If the milk contractor reports unpaid milk payroll obligations under s. 126.41 (6) (b) 1. and (9) (a), the highest amount of unpaid milk payroll obligations, reported under s. 126.41 (6) (b) 1. or (9) (b), that the milk contractor had at any time during the last 12 months.

126.47(3)(a)2. 2. If the milk contractor reports monthly milk payroll obligations under s. 126.41 (6) (b) 2. and (9) (b), the highest amount of milk payroll obligations, reported under s. 126.41 (6) (b) 1. or (9) (b), that the milk contractor incurred in any month during the last 12 months.

126.47(3)(b) (b) A milk contractor who is required to file or maintain security only under sub. (1) (b) shall at all times maintain security equal to the milk contractor's estimated default exposure, as defined in sub. (1) (b) 1., less $20,000,000.

126.47(4) (4) Form of security. The department shall review, and determine whether to approve, security filed under this section. The department may approve only the following types of security:

126.47(4)(a) (a) Currency.

126.47(4)(b) (b) A commercial surety bond if all of the following apply:

126.47(4)(b)1. 1. The surety bond is made payable to the department for the benefit of milk producers and producer agents.

126.47(4)(b)2. 2. The surety bond is issued by a person authorized to operate a surety business in this state.

126.47(4)(b)3. 3. The surety bond is issued as a continuous term bond that may be canceled only with the department's written agreement or upon 90 days' prior written notice served on the department in person or by certified mail.

126.47(4)(b)4. 4. The surety bond is issued in a form, and subject to any terms and conditions, that the department considers appropriate.

126.47(4)(c) (c) A certificate of deposit or money market certificate, if all of the following apply:

126.47(4)(c)1. 1. The certificate is issued or endorsed to the department for the benefit of milk producers and producer agents.

126.47(4)(c)2. 2. The certificate may not be canceled or redeemed without the department's written permission.

126.47(4)(c)3. 3. No person may transfer or withdraw funds represented by the certificate without the department's written permission.

126.47(4)(c)4. 4. The certificate renews automatically without any action by the department.

126.47(4)(c)5. 5. The certificate is issued in a form, and subject to any terms and conditions, that the department considers appropriate.

126.47(4)(d) (d) An irrevocable bank letter of credit if all of the following apply:

126.47(4)(d)1. 1. The letter of credit is payable to the department for the benefit of milk producers or producer agents.

126.47(4)(d)2. 2. The letter of credit is issued on bank letterhead.

126.47(4)(d)3. 3. The letter of credit is issued for an initial period of at least one year.

126.47(4)(d)4. 4. The letter of credit renews automatically unless, at least 90 days before the scheduled renewal date, the issuing bank gives the department written notice, in person or by certified mail, that the letter of credit will not be renewed.

126.47(4)(d)5. 5. The letter of credit is issued in a form, and subject to any terms and conditions, that the department considers appropriate.

126.47(5) (5) Department custody of security. The department shall hold, in its custody, all security filed and maintained under this section. The department shall hold the security for the benefit of milk producers and producer agents.

126.47(6) (6) Additional security.

126.47(6)(a) (a) The department may, at any time, demand additional security from a milk contractor if any of the following applies:

126.47(6)(a)1. 1. The milk contractor's existing security falls below the amount required under sub. (3) for any reason, including depreciation in the value of the security, increased obligations to milk producers or producer agents, or the cancellation of any security filed with the department.

126.47(6)(a)2. 2. The milk contractor fails to provide required information that is relevant to a determination of security requirements.

126.47(6)(b) (b) The department shall issue a demand under par. (a) in writing. The department shall indicate why additional security is required, the amount of security required, and the deadline date for filing security. The department may not specify a deadline for filing security that is more than 30 days after the date on which the department issues its demand for security.

126.47(6)(c) (c) A milk contractor may request a hearing, under ch. 227, on a demand for security under par. (b). A request for hearing does not automatically stay a security demand.

126.47(6)(d) (d) If a milk contractor fails to comply with the department's demand for security under this subsection, the milk contractor shall give written notice of that fact to all milk producers and producer agents from whom the contractor procures producer milk in this state. If the milk contractor fails to give accurate notice under this paragraph within 5 days after the deadline for filing security under par. (b) has passed, the department shall promptly notify milk producers and producer agents by publishing a class 3 notice under ch. 985. The department may also give individual notice to those milk producers or producer agents of whom the department is aware.