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}
The amended formula more accurately reflects the value of fertilizer ingredients sold in the marketplace than the current formula, which was developed over forty years ago.
3. The proposed rule changes the standard in s. ATCP 40.14 (1) (c), Wis. Admin. Code, for the economic value (proposed combined nutrient index) formula, so that the guarantee percentage, which currently is listed in the rule as 98%, is reduced to 97%. This conforms to the Department’s prior guarantee percentage in the rule, and is consistent with the percentage used by other states, such as Minnesota and Illinois. Comparison with Existing or Proposed Federal Statutes and Regulation
There are no established federal laws regulating the content deficiencies for fertilizer, although there is regulation by other states (see below).
Comparison with Rules in Adjacent States
State fertilizer regulators have organized a national Association of American Plant Food Control Officials (AAPFCO) to promote uniform state laws related to fertilizer. Most surrounding states follow AAPFCO principles and have similar basic laws which benefit consumers, fertilizer manufacturers, and distributors doing business in multiple states. However, there are minor variations in fertilizer regulations between states.
Illinois
Illinois requirements look at the total combined value of the fertilizer as well as the value for each fertilizer ingredient, and the product is deficient if the actual amount is 97% or less than the guarantee for both the individual ingredient and the total combined value.
Iowa
Iowa uses a combined nutrient index value (called relative value) which is determined based on a formula that is identical to the current Wisconsin requirements, with a formula of relative value equal to 2N + 2P + K and a 98% deficiency threshold allowed between the actual and guaranteed relative values.
Michigan
Michigan has adopted the AAPFCO requirements that deem fertilizer deficient if the overall index value of the fertilizer is below 98%. The overall index value is calculated by comparing the guarantee of the nutrients to the actual value found within the sample. Michigan uses unit values for each of the fertilizer nutrients. These values vary and are based on annual publications of the annual values per unit of each primary nutrient.
Minnesota
Minnesota uses the same formula and multipliers as the current Wisconsin requirements, but it considers a fertilizer deficient if the overall economic value is below 97% of the guaranteed value.
Summary of Factual Data and Analytical Methodologies
The Department developed this rule in consultation with an industry working group that included representative members from agricultural associations and fertilizer manufacturers and distributors. A listening session was held with representatives of multiple agrichemical associations, fertilizer manufacturers, and suppliers. Some members of this group previously had brought to the Department its concerns over the economic value calculation that has been in use by the Department since the 1970s. They questioned the effects that the current pricing structure has on the labeling of fertilizer content, when compared with how prior pricing models had affected the calculation of the economic value on numerous fertilizer blends over recent years.
