(1) MARKETING ORDER; REFERENDUM. (a) Every proposal for the creation of a marketing order shall include a proposed voting requirement from par. (b) to be used for the adoption of the proposal. The secretary shall receive testimony and evidence on the proposed voting requirement at the public hearing. The decision issued under s. 96.07 shall state which voting requirement will be used for the adoption of the proposal and that requirement may be different from the one contained in the proposal. (b) A marketing order may not become effective until the secretary finds that the needed voting requirement has been met. In determining whether the voting requirement under subd. 2. or 4. has been met the secretary may not consider any votes cast using the bloc voting procedure under sub. (3). One of the following voting requirements must be used. The secretary must find that a marketing order: 1. Is approved by producers on record with the department in a referendum conducted among producers directly affected by the marketing order. The producers directly affected shall be deemed to have approved a proposed order if 50 percent or more by number of producers on record with the department vote and if, of those voting, two-thirds or more by number who produce 50 percent or more of the volume of the affected commodity or 50 percent by number who produce two-thirds or more of the volume approve the proposed marketing order. Volume shall be determined on the basis of the quantity of the commodity produced in the last preceding marketing season. 2. Is approved in a referendum by 50 percent or more of the producers of the affected commodity who produced 50 percent or more of the volume in the last preceding marketing season. 3. Is approved by not less than 50 percent of the producers voting provided that 50 percent of the producers on the established list vote in the referendum. 4. Is approved by more than 50 percent of the affected producers voting in the referendum, provided that the marketing order provides for producer refunds. 5. Is approved in a referendum by 50 percent or more of the handlers on record with the department if the marketing order directly affects handlers. 6. Is approved in a referendum by 50 percent or more of the producers and 50 percent or more of the handlers on record with the department if the order directly affects producers and handlers. (c) An amendment to, or the termination of, a marketing order may not become effective until the secretary finds that the same voting requirement is met that was used to adopt the order. (2) MARKETING AGREEMENT; ASSENT. (a) A marketing agreement may not become effective until the secretary finds that not less than 50 percent of the affected producers or handlers assent to the proposal. (b) An amendment to, or the termination of, a marketing agreement may not become effective until the secretary finds that not less than 50 percent of the producers or handlers who assented to the marketing agreement, assent to the proposed amendment or termination. (3) BLOC VOTING AND ASSENT PROCEDURE. (a) In finding whether a marketing order is approved by referendum or a marketing agreement is assented to, the secretary shall consider the approval or disapproval of any agricultural cooperative marketing association, which is authorized by its members to cast a bloc vote or assent on behalf of its members as the approval or disapproval of the producers who are members of the agricultural cooperative marketing association, but any member of a cooperative may elect to vote or assent individually and be excluded from the bloc vote or assent by notifying the cooperative and the secretary in writing. At least 45 days prior to the commencement of a referendum or assent procedure, a cooperative that intends to cast a bloc vote or assent for its members shall notify its members of their right to vote or assent individually and be excluded from the bloc vote or assent, and it shall file with the department a list of its members for whom it is eligible to vote or assent. The secretary shall delete from the list the names of those producers who have filed notice of their intent to vote or assent individually. Notice by the cooperative to the department shall include a statement that it has complied with the notice requirements of this paragraph. (b) A cooperative association or an unincorporated cooperative association engaged in the marketing of affected commodities as the agent of its members may cast a bloc vote or assent for its members, except that it shall exclude from its bloc vote or assent any of its members who are also member-patrons of another cooperative or unincorporated cooperative association which intends to cast a bloc vote or assent for those members.
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