Section 140.51. Collecting assessments; reports by producers and handlers; audit of amounts due.

 

(1)   Collection procedure; general. The marketing board is responsible for the receipt and collection of assessments from affected producers and handlers under a marketing order, except as otherwise provided in ch. 96 , Stats. , and this chapter. Any assessment which is due and payable by an affected producer or handler under the marketing order constitutes a personal debt of the producer or handler, as provided in s. 96.17 (1) , Stats. Each marketing board shall adopt and file with the secretary written procedures and forms to govern the collection of assessments from affected producers and handlers. Procedures may include the preliminary collection procedures set forth under sub. (2) . Procedures shall comply with applicable law, and with the provisions of s. 427.104 , Stats. If a marketing board is unable, through the use of preliminary collection procedures, to obtain payment of assessments which are due and payable from a producer or handler, the marketing board may request action by the secretary under s. 96.17 , Stats. The request shall be accompanied by evidence and documentation substantiating the existence and amount of the debt, the identity and address of the debtor, and the fact that the marketing board has exhausted its preliminary collection procedures. Pursuant to s. 96.17 , Stats., the secretary may impose an assessment surcharge not exceeding 10% of the assessment to cover the department's costs of collection, and may bring a civil action against the debtor under sub. (3) to collect the assessment and surcharge. The secretary shall give the debtor at least 10 days advance written notice, by mail, of any intended civil action under this paragraph. Notice shall include a statement of any assessment surcharge imposed by the secretary under s. 96.17 , Stats.

(2)   Preliminary collection procedures. Sequential procedures used by a marketing board in the collection of marketing order assessments may include the issuance of:

(a) A generalized or personalized reminder letter.

(b) A personalized warning letter.

(c) A final demand letter, setting forth the facts and circumstances giving rise to the final demand, and stating a final deadline for payment. The final demand letter shall be personally addressed to the debtor and sent by certified mail. In its final demand letter, a marketing board may notify the debtor of the actions which will be requested by the marketing board under s. 96.17 (1) , Stats., in the event of nonpayment. A marketing board may not threaten a producer or handler with any civil forfeiture or criminal action for nonpayment of assessments, or threaten to request either action of the department.

(3)   Court action to collect assessments. Upon written request of a marketing board, the secretary may bring a civil action pursuant to s. 96.17 (1) , Stats., for the collection of unpaid marketing order assessments, together with any assessment surcharges imposed by the secretary under s. 96.17 (1) , Stats. No court action for the collection of assessments may be brought by a marketing board on its own behalf, or by the secretary except upon specific request of a marketing board. The decision to take action under s. 96.17 (1) , Stats., is discretionary with the secretary. Before bringing any court action to collect assessments, the secretary shall review the adequacy of the marketing board's preliminary collection procedures under subs. (1) and (2) .

(4)   Reports by producers and handlers. Pursuant to s. 96.14 (1) , Stats., a marketing board may request a producer or handler to file with the marketing board such information or reports as may be necessary to determine or verify the assessment amounts which may be due and payable by the producer or handler under the marketing order. If a producer or handler fails or refuses to submit information or reports upon request of a marketing board, the marketing board may request the department to exercise its authority under ch. 93 , Stats. , and s. 96.14 (1) , Stats., to compel submission of the required information or reports to the department. The exercise of the department's authority is discretionary with the department.

(5)   Audit of producers and handlers.

(a) Department audit; request by marketing board. A marketing board may request the department to audit any producer or handler, for the purposes set forth in par. (b) , if the marketing board reasonably believes that the producer or handler may be an affected producer or handler. The request shall specify the purposes for which the audit is requested. The department may conduct a requested audit at its discretion, for the purposes set forth under par. (b) . Pursuant to an audit under this subsection, the department may require a producer or handler to produce documents and records, and may otherwise exercise its authority under ch. 93 , Stats. , and s. 96.14 , Stats. The marketing board shall reimburse the department for all costs incurred by the department in conducting the audit, including general overhead and operating expenses which are reasonably attributable to the audit service.

(b) Audit purposes. A producer or handler may be audited by the department under this subsection for any of the following purposes:

1. To determine whether the producer or handler is an affected producer or handler under ch. 96 , Stats. , and the marketing order.

2. To determine or verify the assessment amounts which may be due and payable by the producer or handler under the marketing order.

3. To determine or verify the accuracy of any report or claim submitted by the producer or handler to the marketing board.

4. To determine whether the producer or handler has paid the full amount of assessments which are due and payable by the producer or handler under the marketing order.

History: Cr. Register, November, 1985, No. 359 , eff. 12-1-85.