Chapter ATCP 40

ATCP 40.12(3)(b) (b) The name, business address, and fertilizer license number of the fertilizer manufacturer if the applicant is not the manufacturer.

ATCP 40.12(3)(c) (c) The fertilizer label.

ATCP 40.12(3)(d) (d) Proposed labeling, including any advertising or promotional materials that make content or performance claims not included on the product label.

ATCP 40.12(3)(e) (e) A statement indicating whether the applicant seeks a permit under sub. (4) or (5), or both.

ATCP 40.12 Note Note: A person may, for a single product, need permits under both subs. (4) and (5).

ATCP 40.12(3)(f) (f) A fee of $25 for each requested permit.

ATCP 40.12(3)(g) (g) The following written statement signed by the applicant:

“I hereby certify all the following:

1.   When applied for labeled purposes according to label directions, this fertilizer provides available nutrients in amounts that are efficacious and useful under Wisconsin conditions. Except as otherwise specifically disclosed on the product label, use according to label directions provides annual nutrient amounts that equal or exceed annual plant nutrient needs.

2. The statements on this fertilizer label, and in related advertising and promotional materials, are truthful. The applicant has relevant and reliable information to substantiate all product labeling, including any claim or guarantee related to product contents. The applicant has relevant scientific evidence to substantiate all express and implied performance claims.

3. This fertilizer product and its labeling comply with ch. ATCP 40, Wis. Adm. Code.”

ATCP 40.12(3)(h) (h) Other relevant information required by the department.

ATCP 40.12 Note Note: You may obtain a permit application form from the department at the following address:

ATCP 40.12 Note Department of Agriculture, Trade and Consumer Protection

ATCP 40.12 Note ARM Division

ATCP 40.12 Note PO Box 8911

ATCP 40.12 Note Madison, WI 53708-8911.

ATCP 40.12(4) (4) Special agricultural use permit. The department may issue a special agricultural use permit if the department finds, based on a review under subch. IV, that the application is complete and the fertilizer is designed and labeled as a special agricultural-use fertilizer.

ATCP 40.12(5) (5) Nonagricultural use permit. The department may issue a nonagricultural use permit if the department finds, based on a review under subch. IV, that the application is complete and the fertilizer is designed and labeled only as a nonagricultural-use fertilizer.

ATCP 40.12(6) (6) Implied warranty. A person who distributes a fertilizer product pursuant to a permit under this section implicitly warrants that the product is effective for all of the purposes recommended in the product labeling, when applied under Wisconsin conditions according to the product label. This warranty does not limit any other express or implied warranty that may apply under Wisconsin law. The department does not warrant the efficacy or usefulness of any fertilizer, or the truth of any labeling statement.

ATCP 40.12(7) (7) Permit not transferable. A permit under this section covers only one fertilizer product. A permit is not transferable between persons or products.

ATCP 40.12(8) (8) Fertilizer-additive combinations. A permit under this section does not authorize a person to distribute a fertilizer-additive combination in this state unless the person also holds a license under s. ATCP 40.20 and a permit, if required, under s. ATCP 40.28.

ATCP 40.12(9) (9) Primary nutrient guarantees. A permit under this section may authorize a minimum guarantee of less than 1.0% for any primary plant nutrient if all of the following apply:

ATCP 40.12(9)(a) (a) The primary plant nutrient guarantee is at least 0.1%.

ATCP 40.12(9)(b) (b) The total of all primary plant nutrients in the product is less than 10%.

ATCP 40.12(10) (10) Action on permit application. The department shall act on a permit application according to subch. IV.

ATCP 40.12 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05; CR 14-047: am. (2) (c) 1. Register May 2015 No. 713, eff. 6-1-15; CR16-012: am. (2) (c) 1. Register August 2016 No. 728, eff. 9-1-16; CR 18-019: am. (2) (c) 1. Register January 2020 No. 769, eff. 2-1-20.

ATCP 40.14 ATCP 40.14 Fertilizer content deficiencies.

ATCP 40.14(1) (1) Primary nutrients. A fertilizer is mislabeled if any of the following apply, based on a sample collected and tested according to s. ATCP 40.16:

ATCP 40.14(1)(a) (a) The fertilizer contains less than 90% of the label guarantee amount for any primary nutrient.

ATCP 40.14(1)(b) (b) The actual percentage amount of any primary nutrient falls at least 2 percentage points short of the percentage amount stated on the label.

ATCP 40.14 Note Note: For example, if the label states that the fertilizer contains 30% N, but testing shows that the fertilizer contains only 27.5% N, the fertilizer is mislabeled.

ATCP 40.14(1)(c) (c) The combined nutrient index of primary nutrients actually present is less than 97% of the combined nutrient index of the amounts guaranteed, where the combined nutrient index is calculated according to sub. (3).

ATCP 40.14(2) (2) Secondary and micronutrients. A fertilizer is mislabeled if, based on a sample collected and tested according to s. ATCP 40.16, the actual amount of any secondary nutrient, micronutrient or enhancing element listed in a guaranteed analysis falls short of the label guarantee by an amount that exceeds the allowable deficiency shown in Table 1.

TABLE 1

- See PDF for table

ATCP 40.14(3) (3) Combined Nutrient Index. Combined nutrient index, for purposes of sub. (1) (c), equals {total nitrogen (N) guarantee} + {available phosphate (P2O5) guarantee} + {soluble potash (K2O) guarantee}.

ATCP 40.14 Note Note: The multipliers in sub. (3) are based on approximate relative average wholesale prices for primary plant nutrients in Wisconsin. The department will conduct periodic wholesale price surveys and will adjust the multipliers, as the department deems necessary, by rule.

ATCP 40.14(4) (4) Custom mixed fertilizer. Label guarantees for a custom mixed fertilizer shall be calculated from the custom mix formulation.

ATCP 40.14 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05; CR 15-045: am. (1) (c), (3) Register March 2016 No. 723, eff. 4-1-16.

ATCP 40.16 ATCP 40.16 Fertilizer sampling and analysis.

ATCP 40.16(1) (1) Sampling methods. The department may collect official fertilizer samples to determine compliance with plant nutrient guarantees. The department shall collect official samples using applicable methods from the Inspection Manual of the Association of American Plant Food Control Officials, 8th edition (2009).

ATCP 40.16 Note Note: The Inspection Manual of the Association of American Plant Food Control Officials, 8th edition (2009) is on file with the department and the legislative reference bureau. Copies are available from the treasurer of the Association of American Plant Food Control Officials, Inc., North Carolina Department of Agriculture, P.O. Box 33508, Raleigh, NC 33636-3508, or online at http://www.aapfco.org.

ATCP 40.16(2) (2) Test methods. The department may test official fertilizer samples to determine compliance with nutrient guarantees. The department shall test official samples using applicable methods from the “Official Methods of Analysis of AOAC International,” 20th edition (2016).

ATCP 40.16 Note Note: The “Official Methods of Analysis of AOAC International,” 20th edition (2016) is on file with the department and the legislative reference bureau. Copies are available from AOAC International at 481 N. Frederick Ave., Suite 500, Gaithersburg, MD 20877-2417.

ATCP 40.16 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05; CR 14-047: am. (1) Register May 2015 No. 713, eff. 6-1-15; CR 18-019: am. (2) Register January 2020 No. 769, eff. 2-1-20; correction in (2) made under s. 35.17, Stats., Register January 2020 No. 769.

ATCP 40.18 ATCP 40.18 Fertilizer; toxic substances.

ATCP 40.18(1) (1) No fertilizer may contain any substance that is toxic or injurious to plants, animals, or humans when the fertilizer is handled or applied under reasonably foreseeable use conditions unless the substance and hazard are disclosed on the fertilizer label.

ATCP 40.18 Note Note: See s. ATCP 40.08.

ATCP 40.18(2) (2) No fertilizer may contain a metal in a concentration that exceeds the maximum allowable concentration specified for that metal in the Official Publication of the Association of American Plant Food Control Officials, No. 71 (2018), statement of uniform interpretation and policy number 25.

ATCP 40.18 Note Note: The Official Publication of the Association of American Plant Food Control Officials, No. 71 (2018), which contains the statement of uniform interpretation and policy number 25, is on file with the department and the legislative reference bureau. Copies may be obtained from the treasurer of the Association of American Plant Food Control Officials, Inc., North Carolina Department of Agriculture, P.O. Box 33508, Raleigh, NC 33636-3508, or online at http://www.aapfco.org.

ATCP 40.18 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05; CR 14-047: am. (2) Register May 2015 No. 713, eff. 6-1-15; CR 16-012: am. (2) Register August 2016 No. 728, eff. 9-1-16; CR 18-019: am. (2) Register January 2020 No. 769, eff. 2-1-20.

subch. III of ch. ATCP 40 Subchapter III — Soil or Plant Additives

ATCP 40.20 ATCP 40.20 Soil or plant additives; license.

ATCP 40.20(1) (1) Annual license required. Except as provided in sub. (2), no person may manufacture or distribute a soil or plant additive in this state without an annual license from the department. A license is not transferable between persons. A license expires on September 30 of each year.

ATCP 40.20 Note Note: Since a license is not transferable between persons, a license holder must apply for a new license if it changes its legal identity.

ATCP 40.20(2) (2) Exemption. The license requirement under sub. (1) does not apply to a person who merely distributes a soil or plant additive packaged and labeled by a license holder who also holds any permit required under s. ATCP 40.28 (1), provided the person makes no additional content or performance claims for the product.

ATCP 40.20(3) (3) License application. A person shall apply for an annual license under sub. (1) on a form provided by the department. An application shall include all of the following:

ATCP 40.20(3)(a) (a) The applicant’s correct legal name, and any trade name under which the applicant does business.

ATCP 40.20(3)(b) (b) The applicant’s social security number if the applicant is an individual. If the applicant is a partnership, the application shall include the social security number of each individual partner.

ATCP 40.20 Note Note: A social security number is required under s. 93.135 (1) (d), Stats.

ATCP 40.20(3)(c) (c) Each address from which the applicant proposes to do business in this state.

ATCP 40.20(3)(d) (d) Each address at which the applicant proposes to manufacture a soil or plant additive in this state. A license holder shall notify the department in writing before manufacturing a soil or plant additive at any other address.

ATCP 40.20(3)(e) (e) The fees required under sub. (4).

ATCP 40.20(3)(f) (f) A current list of soil or plant additives for which the applicant requires permits under s. ATCP 40.28 (1), and the current label for each of those products.

ATCP 40.20 Note Note: A license under sub. (1) does not authorize the license holder to manufacture or distribute a soil or plant additive for which a permit is required under s. ATCP 40.28 unless the license holder holds that permit.

ATCP 40.20(3)(g) (g) Other relevant information required by the department.

ATCP 40.20(4) (4) License fees. A person applying for an annual soil or plant additive license shall pay the following fees and surcharges:

ATCP 40.20(4)(a) (a) A license fee of $25.

ATCP 40.20(4)(b) (b) A late renewal fee of $5 if the applicant fails to apply for a renewal license before the prior year’s license expires.

ATCP 40.20 Note Note: See s. 93.21, Stats.

ATCP 40.20(5) (5) Action on license application.

ATCP 40.20(5)(a) (a) Except as provided in par. (d), the department shall grant or deny a license application under sub. (3) within 45 working days after the department receives a complete application.

ATCP 40.20(5)(b) (b) The department may place conditions on a license. If the department denies a license application or issues a license with conditions, the department shall give the applicant written notice of the reasons.

ATCP 40.20(5)(c) (c) A license holder may not distribute a soil or plant additive for which a permit is required under s. ATCP 40.28 (1) unless the license holder also holds that permit.

ATCP 40.20(5)(d) (d) If a license applicant does not manufacture soil or plant additives in Wisconsin, but seeks a license only to distribute a soil or plant additive for which a permit is required under s. ATCP 40.28 (1), the department may grant or deny the license application when it grants or denies the permit application.

ATCP 40.20 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05; CR 18-019: am. (1) Register January 2020 No. 769, eff. 2-1-20.

ATCP 40.22 ATCP 40.22 Soil or plant additives; tonnage reports and fees.

ATCP 40.22(1) (1) Annual tonnage report and fee payment. By September 30 of each year, a person required to hold a license under s. ATCP 40.20 shall do all of the following:

ATCP 40.22(1)(a) (a) Report to the department the number of tons of each soil or plant additive the person distributed in this state from July 1 to June 30 of the preceding year. The person shall file the report in writing, on a form provided by the department.

ATCP 40.22(1)(b) (b) Pay fees and surcharges under sub. (2). The person shall include the payment with the tonnage report under par. (a).

ATCP 40.22(2) (2) Fee amounts. A person shall pay the following fees and surcharges on tonnage reported under sub. (1) (a):

ATCP 40.22(2)(a) (a) A basic fee of 25 cents per ton, or $25, whichever is greater.

ATCP 40.22(2)(b) (b) A research fee of 10 cents per ton, or $1, whichever is greater.

ATCP 40.22(2)(c) (c) A groundwater fee of 10 cents per ton, or $1, whichever is greater.

ATCP 40.22(3) (3) Combinations and fillers. A person shall include all of the following in the tonnage reported under sub. (1) (a):

ATCP 40.22(3)(a) (a) Combination products that contain a soil or plant additive, if any.

ATCP 40.22(3)(b) (b) All fillers, carriers, and fluids included with a soil or plant additive at the time of distribution.

ATCP 40.22(4) (4) Penalties for late filing. A person who fails to comply with sub. (1) by September 30 shall pay an additional fee of 10 percent of the tonnage fees due, but not less than $10.