DATCP Docket No. 14-R-14
Rules Clearinghouse No. 15-045
ORDER OF THE WISCONSIN DEPARTMENT OF
AGRICULTURE, TRADE AND CONSUMER PROTECTION
AMENDING RULES
The Wisconsin department of agriculture, trade and consumer protection adopts the following order to amend ATCP 40.14 (1) (c) and (3), relating to the manufacture and distribution of fertilizer.
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Analysis Prepared by the Department of Agriculture,
Trade and Consumer Protection
This rule amends s. ATCP 40.14 (1) and (3), Wis. Admin. Code, relating to fertilizer content deficiencies. The Wisconsin Department of Agriculture, Trade and Consumer Protection (“Department”) regulates the manufacture and sale of fertilizer, pursuant to s. 94.64, Stats. The Department 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
The Department 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. The Department has express authority to promulgate rules regulating the sale and labeling of fertilizer, governing methods of sampling, testing and analyzing fertilizer and prescribing the manner in which grade and guaranteed analysis are declared on the product label. See s. 94.64 (9), Stats. Related Statutes and Rules
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
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 the Department collect and analyze various samples of fertilizers.
The Department analyzes fertilizer samples 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. 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
This rule amends s. ATCP 40.14 (1) and (3), Wis. Admin. Code, relating to fertilizer content deficiencies. This rule will do the following:
1. Replace the term “economic value” with “combined nutrient index” wherever it appears in s. ATCP 40.14, Wis. Admin. Code. The proposed new term represents a more accurate description of the index used in developing the multipliers within the formula. 2. 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}
to
Amended formula: Combined Nutrient Index = {total nitrogen (N) guarantee}
+ {available phosphate (P2O5) guarantee} + {soluble potash (K2O) guarantee}
