DATCP Docket No. 14-R-14 Proposed Hearing Draft
Rules Clearinghouse No. ___ April 29, 2015
PROPOSED ORDER OF THE WISCONSIN DEPARTMENT OF AGRICULTURE, TRADE AND CONSUMER PROTECTION
AMENDING RULES
The Wisconsin department of agriculture, trade and consumer protection proposes the following order to amend ATCP 40.14 (1) (c) and (3), relating to the manufacture and distribution of fertilizer.
Analysis Prepared by the Department of Agriculture,
Trade and Consumer Protection
The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) regulates the manufacture and sale of fertilizer, pursuant to s. 94.64 Stats. DATCP regulates fertilizer to protect farmers and consumers against unfair and deceptive sales practices. Regulation is designed to prevent fraudulent sales of products, deceptive ingredient and performance claims, and latent safety hazards. This rule updates standards for the nutrient content of fertilizer.
Statutes Interpreted
Statutes interpreted: s 94.64, Stats.
Statutory Authority
Explanation of Agency Authority
DATCP has authority under s. 93.07 (1), Stats., to make regulations as necessary for the proper enforcement of Chapters 93 to 100, Stats., including the administration of the fertilizer program under s. 94.64, Stats. DATCP has express authority to promulgate rules regulating the sale and labeling of fertilizer, governing methods of sampling, testing fertilizer and prescribing the manner in which grade and guaranteed analysis are declared on the product label. See s. 94.64 (9), Stats. Related Rules or Statutes
Wisconsin statutes and rules relating to the manufacture, distribution, and use of fertilizer are set forth in ss. 94.64 to 94.645, Stats. and ch. ATCP 40, Wis. Admin. Code. Plain Language Analysis
This proposed rule amends s. ATCP 40.14 (1) and (3), Wis. Admin. Code, relating to fertilizer content deficiencies. Background
DATCP is authorized to regulate the manufacture, distribution, labeling, and storage of fertilizer. Fertilizer is a substance that contains one or more recognized plant nutrients, is used for plant nutrient content, and is designed for use or claimed to have value in promoting plant growth. See s. 94.64 (1) (e), Stats. Under current fertilizer rules, a manufacturer or distributor that labels fertilizer is required to list percent guarantees of primary nutrients on the fertilizer’s label. Primary nutrients consist of nitrogen (“N”), phosphorus (“P”), and potassium (“K”). Current rules also require that DATCP collect and analyze various samples of fertilizers.
Under current s. 40.16, Wis. Admin. Code, the department will analyze a fertilizer sample to determine if the content of the sample meets the guarantees of N, P, and K listed on the label. If the sample tested is found to be deficient in content of N, P, or K because it fails to meet one or more of the three standards in the rule, then the fertilizer is considered “mislabeled” under s. ATCP 40.14 (1), Wis. Admin. Code. The third standard requires that the economic value of primary nutrients actually present be not less than 98% of the economic value of the amounts guaranteed, where economic value is calculated according to s. ATCP 40.14 (3), Wis. Admin. Code. The formula contained in s. ATCP 40.14 (3), Wis. Adm. Code is based upon wholesale prices for the nutrients.
Economic Value
After convening a group of representatives of the fertilizer industry and agrichemical associations, and reviewing recent data concerning the wholesale prices of primary nutrients, the group concluded that the existing rule contains an outdated formula for the economic value of fertilizer. That formula was based on average wholesale prices of primary plant nutrients prior to its enactment in the 1970s.
Rule Content
The proposed rule does the following:
1. In place of the 2:2:1 ratio of N, P, and K, in the current s. ATCP 40.14 (3), Wis. Admin. Code, the proposed rule substitutes a ratio 1:1:1 of N, P, and K: Current formula: Economic value = {[total nitrogen (N) guarantee] x 2} +
{[available phosphate (P2O5) guarantee] x 2} + {soluble potash (K2O) guarantee}
