Section 101.03. Unharvested suitable acreage.

 

(1)   Full payment required.

(a) General. If a contractor declines to harvest or accept delivery of suitable acreage grown under a vegetable procurement contract, the contractor shall pay the producer the full contract amount for the suitable acreage, as if the acreage had been harvested or accepted on a timely basis.

(b) Suitable acreage left unharvested because of adverse field conditions. If, because of adverse field conditions during the scheduled harvest period, a contractor is not able to harvest acreage which is otherwise suitable, the contractor shall pay for the unharvested acreage as suitable acreage under this section.

(2)   Contribution to unharvested acreage pool. Subsection (1) does not prohibit the contractor from deducting the producer's contribution to an unharvested acreage pool under s. ATCP 101.05 , provided that all of the following apply:

(a) Equivalent contributions from all producers. The producer's pool contribution, expressed as a percentage deduction from the gross amount due the producer for the unharvested suitable acreage, equals the percentage contribution on harvested acreage made by every producer of harvested acreage.

(b) Contribution clearly disclosed. The pool contribution requirement is clearly disclosed in the vegetable procurement contract, pursuant to s. ATCP 101.05 .

(c) Maximum contribution. The pool contribution does not exceed the maximum contribution specified in the vegetable procurement contract under s. ATCP 101.05 (6) .

(3)   Service charges. When paying for unharvested suitable acreage under sub. (1) , the contractor may deduct charges for seed, harvest, hauling, grading or similar supplies or services that would have been assessed against the producer had the producer's acreage been harvested. A contractor may not receive any pool funds for these services.

(4)   Estimating yield and grade of unharvested suitable acreage.

(a) General. Except as provided under par. (b) or (c) , if payment for suitable acreage is based on yield or grade, the contractor shall estimate the yield and grade of unharvested suitable acreage by means of field sampling under sub. (5) .

(b) Equivalent field sampling procedures. Rather than estimating yield or grade according to the field sampling procedures under sub. (5) , a contractor may estimate yield or grade according to equivalent field sampling procedures which are clearly specified in writing in the procurement contract.

(c) Agreement on yield and grade. If, because of adverse field conditions or because field harvest is impractical during the scheduled harvest period, a contractor is not able to harvest acreage which is otherwise suitable, the contractor and the producer may agree on the yield and grade of the unharvested acreage without field sampling under sub. (5) , provided that all of the following apply:

1. The agreement is made in writing and signed by the parties during the scheduled harvest period, and a copy is provided to the producer.

2. The agreement clearly describes the field conditions deemed adverse or the reason why field harvest was deemed impractical.

3. Before the agreement is made, the contractor discloses to the producer in writing that the producer has a right to have the field sampled for yield and grade in compliance with this subsection. If a producer requests field sampling, the contractor shall sample the field in compliance with par. (a) or (b) .

(5)   Field sampling procedure.

(a) General. If a contractor is required to estimate the yield or grade of unharvested acreage under sub. (4) (a) , the contractor shall estimate the yield or grade using the field sampling procedure under this subsection. Field samples used to estimate yield or grade shall be collected when the unharvested vegetables are at maturity, and shall be collected from areas which are reasonably representative of the field.

(b) Number of samples. Except as provided under par. (c) , the number of samples collected under par. (a) shall be based on the size of the field as follows:

1. At least 3 samples from different areas shall be taken from a field which is less than 40 acres.

2. At least 5 samples from different areas shall be taken from a field which is 40 to 100 acres.

3. At least 7 samples from different areas shall be taken from a field which is larger than 100 acres.

(c) Different crop or soil conditions within field; subdivision of field. If significant differences of crop or soil conditions exist within a field, the field shall be divided so that crop and soil conditions are reasonably uniform within each subdivision. Each subdivision shall be treated as a separate field under par. (b) .

(d) Selecting sampling areas. The samples collected under par. (b) or (c) shall be collected from sampling areas alternately selected by the contractor and the producer. After the contractor and the producer have each selected an equal number of sample areas, the contractor and the producer shall jointly select the last sample area.

(e) Sample areas defined. Each area sample under par. (d) shall consist of one of the following:

1. If the vegetable is a row crop such as sweet corn or snap beans, each sample area shall be not less than 15 linear feet of a row.

2. If vegetables, such as peas, are planted by either the drill or broadcast method, each sample area shall be a plot of not less than 25 square feet having dimensions of not less than 5 feet in length and width.

(f) Sample weights. Each sample collected under this subsection shall be individually weighed. The weights of the individual samples shall be added together to obtain a combined sample weight for the field, which shall be divided by the number of samples to determine an average sample weight. Vegetable samples shall be weighed according to the following procedures for the respective commodity:

1. Sweet corn shall be weighed after the ears are completely husked, and the stem and any excess tip are removed.

2. Snap beans shall be weighed after all beans in the sample are removed from the vines.

3. Sweet peas shall be weighed after all peas in the sample are removed from the pods.

(g) Calculating yield per acre. The yield per acre of unharvested vegetables shall be calculated by performing the following sequential operations:

1. Calculate the square footage of each sample area. For row crops, multiply the length of the row by the space between rows, measured in feet to 2 decimal places.

2. Determine the average square footage of all the sample areas.

3. Divide the square footage of one acre (43,560 sq. ft.) by the average square footage of the sample areas to determine the number of sampling units per acre.

4. Multiply the number of sampling units per acre by the average sample weight under par. (f) to determine the yield in pounds per acre.

5. Calculate the estimated yield for the unharvested field by multiplying the yield per acre by the number of acres in the field.

(h) Documenting the yield estimate. Every yield estimate under this section shall be documented in writing, and a copy shall be provided to the producer. The documentation shall include:

1. The name and address of the contractor.

2. The identity of the producer and the location of the field.

3. The date and time when the field was sampled and the yield estimate was made.

4. The size of the field, the number of samples collected, and the calculations used to estimate the yield. If sampling methods or yield estimation methods differ from those prescribed under this section, the documentation shall specify the methods used.

5. The signatures of the contractor and the producer, or their agents.

(i) Grading samples. If payment for unharvested vegetables is based on the quality or condition of the vegetables, the samples collected under this subsection shall be graded in compliance with ch. ATCP 155 .

History: Cr. Register, December, 1992, No. 444 , eff. 1-1-93.