94.708(1)(1)
Definition. As used in this section, "bat control purposes" means for the purpose of killing, injuring, repelling or otherwise affecting the behavior of bats.
94.708(2)
(2) Sale prohibited. Except as provided under
sub. (4), no person may sell, hold for sale or distribute any pesticide except naphthalene for bat control purposes to a person in this state. No dealer may advertise in this state or recommend any pesticide for bat control purposes to a person in this state.
94.708(3)
(3) Use prohibited. Except as provided under
sub. (4), no person may use any pesticide except naphthalene for bat control purposes.
94.708(4)
(4) Exception. The department shall promulgate rules establishing standards for the sale, advertisement and use of pesticides for emergency bat control. The pesticide review board may issue a permit authorizing the use of a pesticide in accordance with the rules promulgated by the department only in the case of an individual bat colony after a determination that there exists an outbreak of rabies that threatens public health or another situation where the existence of a colony of bats threatens the health or welfare of any person. The pesticide review board may not base its determination on an isolated individual instance of a rabid bat.
94.708 History
History: 1983 a. 353.
94.71
94.71
Pesticides; penalties; enforcement. 94.71(1)(a)1.1. Any person who violates
ss. 94.67 to
94.71 or any rules or orders issued under
ss. 94.67 to
94.71 shall forfeit not less than $100 nor more than $500 for the first violation and not less than $200 nor more than $1,000 for any subsequent violation within 5 years.
94.71(1)(a)2.
2. Any commercial applicator, dealer or distributor who knowingly violates any provision of
ss. 94.67 to
94.71 or any rules or orders issued under
ss. 94.67 to
94.71 may be fined not more than $5,000 or imprisoned not more than one year in the county jail or both. Other persons, including private applicators who knowingly violate
ss. 94.67 to
94.71 or any rules or orders issued under
ss. 94.67 to
94.71 may be fined not more than $1,000 or imprisoned not more than 30 days or both.
94.71(1)(b)
(b) Certified applicators shall be responsible for the acts of persons who are their employes or acting under their supervision and engaged in the use or application of pesticides.
94.71(2)
(2) Seizures. If the department has reasonable cause to believe that any pesticide is in violation of
ss. 94.67 to
94.71, it may deliver to the owner or custodian of the pesticide an order prohibiting the sale or movement of the pesticide until an analysis or examination has been completed. Such holding order shall not be effective for more than 60 days from the time of delivery thereof. The pesticide described in any holding order shall not be sold or moved for any purpose without the approval of the department. If the department, after analysis or examination, determines that the pesticide described in the order is not in violation of
ss. 94.67 to
94.71, it shall promptly notify the owner or custodian of the pesticide and the notice shall terminate the holding order. If the analysis or examination shows that the pesticide is in violation of
ss. 94.67 to
94.71, the owner or custodian of the pesticide shall be so notified. Upon receipt of notice the owner or custodian shall dispose of the pesticide only in a manner authorized by the department. The owner or custodian may within 10 days of receipt of notice petition for a hearing as provided in
s. 93.18.
94.71(3)(a)(a) Examination of pesticides shall be made under the direction of the department for the purpose of determining whether they comply with the requirements of
ss. 94.67 to
94.71. The department or any person may refer the facts to the district attorney for the county in which the violation occurred. In addition to or in lieu of any other remedies provided herein, the department may apply to a circuit court for a temporary or permanent injunction to prevent, restrain or enjoin violations of
ss. 94.67 to
94.71 and any rules or special or summary orders issued thereunder.
94.71(3)(b)
(b) Every registrant or other person whose name and address appears on the label of any pesticide as the manufacturer, packer, distributor or dealer, shall, to the extent that the registrant or other person is able to furnish to the department, on request, when found by the department to be necessary to prevent or control an imminent hazard to the public, a listing of all sales locations or warehouse locations maintained by the registrant or other person in this state for the sale or distribution of products registered by the registrant or other person or bearing the registrant's or other person's name and address as such manufacturer, packer, distributor or dealer; the name and address of all distributors or dealers selling or distributing such products in this state; and the name and address of all outside sales representatives employed by the registrant or other person in this state for the sale or distribution of such products.
94.71(3)(c)
(c) In addition to other enforcement procedures, the department may issue a special order under
s. 93.18 prohibiting the use, application, storage, distribution or sale of pesticides in violation of
ss. 94.67 to
94.71 or rules issued under
ss. 94.67 to
94.71. A special order may be issued under this paragraph to prevent or control pesticide contamination of groundwater under
ss. 160.23 and
160.25. Special orders may be issued on a summary basis, without prior complaint, notice or hearing, where necessary to protect public health or the environment. A summary special order is subject to a subsequent right of hearing before the department, if requested within 10 days after the date on which the order is served. Any party affected by the order may request a preliminary or informal hearing pending the scheduling and conduct of a full hearing. Hearings, if requested, shall be conducted as expeditiously as possible after receipt of a request for a hearing. Enforcement of the order shall not be stayed pending action on the hearing.
94.71 Annotation
Legislature may constitutionally prescribe criminal penalty for violation of administrative rule. State v. Courtney, 74 W (2d) 705, 247 NW (2d) 714.
94.72
94.72
Commercial feed. 94.72(1)(a)(a) "Brand name" means any word, name, symbol or device, or any combination thereof identifying the commercial feed of a manufacturer or distributor and distinguishing it from that of others.
94.72(1)(b)
(b) "Commercial feed" means all products or materials used or distributed for use as a feed or an ingredient in the mixing or manufacturing of feed for animals or birds, except the following:
94.72(1)(b)1.
1. Unmixed whole seeds or grains; as defined by United States grain standards.
94.72(1)(b)2.
2. The unmixed meals made directly from and consisting of the entire grains of corn, wheat, rye, barley, oats, buckwheat, flaxseed, kafir, milo and other seeds or grains. Such unmixed meals shall not be sold in violation of
sub. (3).
94.72(1)(b)3.
3. Whole hays, straws, cottonseed hulls, stover and silage, when unmixed with other materials.
94.72(1)(b)4.
4. Meat and other portions of animal carcasses in their raw or natural state without further processing except freezing or denaturing.
94.72(1)(c)
(c) "Custom-mixed feed" means commercial feed consisting of a mixture of commercial feeds or feed ingredients mixed on a custom basis at the request of the final purchaser at retail, and containing only commercial feed or feed ingredients in quantities and proportions as specifically directed by the purchaser in requesting the custom-mixing of the feed.
94.72(1)(d)
(d) "Department" means department of agriculture, trade and consumer protection.
94.72(1)(e)
(e) "Distribute" means to sell, offer to sell, exchange, barter or solicit orders for the sale of a feed product or otherwise to supply or furnish a feed product to purchasers in this state, whether or not the sales or transactions are made wholly or partially in this state or another state.
94.72(1)(f)
(f) "Distributor" means any person who distributes a feed product for sale or distribution in this state.
94.72(1)(g)
(g) "Feed ingredient" means each of the constituent materials making up or used in the manufacturing of a commercial feed.
94.72(1)(h)
(h) "Feed product" means any commercial feed or other product or material used or distributed for use as a feed or an ingredient in the mixing or manufacturing of feed for animals or birds.
94.72(1)(i)
(i) "Manufacture" means to mix, blend, process, package or label commercial feed.
94.72(1)(j)
(j) "Product name" means the name of the commercial feed which identifies it as to kind, class or specific use.
94.72(2)(a)(a) All manufacturers and distributors shall before distributing any commercial feed, except as otherwise provided under
par. (b), have printed on, or attached to each bag, package, carton or delivered with each bulk lot thereof a plainly printed label in the English language clearly and truly stating:
94.72(2)(a)1.
1. The net weight of the contents of the package, bag, carton or bulk lot;
94.72(2)(a)2.
2. The product name and the brand name, if any, of the commercial feed;
94.72(2)(a)3.
3. The name and principal address of the manufacturer or person responsible for placing the commodity on the market;
94.72(2)(a)7.
7. The name of each ingredient used in its manufacture except as may be exempt by department rule. The official names of all materials which have been so defined by the association of American feed control officials shall be used in the declaration of the names of ingredients, but no ingredient statement shall be required for single ingredient feeds officially defined by the association of American feed control officials. The department may by rule permit the use of a collective term for a group of ingredients which perform a similar function;
94.72(2)(a)8.
8. In the case of mixed feeds containing more than a total of five per cent of one or more mineral ingredients, or other unmixed materials used as mineral supplements, and in the case of mineral feeds, mixed or unmixed, which are manufactured, represented and sold for the primary purposes of supplying mineral elements in rations for animals or birds, and containing mineral elements generally regarded as dietary factors essential for normal nutrition, the minimum percentage of calcium (Ca), phosphorus (P), of iodine (I) and the maximum percentage of salt (NaCl), if the same be present. Provided, that if no nutritional properties other than those of a mineral nature be claimed for a mineral feed product, the per centums of crude protein, crude fat and crude fiber may be omitted;
94.72(2)(a)9.
9. In the case of feeds containing for their principal claim dietary factors in forms not expressible by the foregoing chemical components or are thereby inadequately described, a statement of guarantee as shall be specified by rules of the department;
94.72(2)(a)10.
10. Adequate directions for the safe and effective use of commercial feed containing drugs or antibiotics, or of any other feed as required under department rules;
94.72(2)(a)11.
11. Such precautionary or warning statements as the department may by rule require for the safe and effective use of specific kinds of commercial feed.
94.72(2)(b)
(b) Custom-mixed feed shall be accompanied by a label, invoice, delivery slip or other shipping document, bearing the following information:
94.72(2)(b)4.
4. The name and net weight of each feed ingredient used in the mixture, including the product name and brand name, if any, of commercial feeds used as a feed ingredient in the custom-mixed feed.
94.72(2)(b)5.
5. Adequate directions for the safe and effective use of custom-mixed feed containing drugs or antibiotics, or of such other custom-mixed feed the department by rule requires.
94.72(2)(b)6.
6. Such precautionary or warning statements as the department may by rule require for the safe and effective use of custom-mixed feed.
94.72(3)
(3) Weed seeds. No commercial feed or unmixed meal shall be sold, distributed or offered or exposed for sale which contains germinative noxious weed seeds or other germinative weed seed excepting wild buckwheat seeds, in excess of such quantities as are unavoidably present with the most improved commercial practice of manufacture of such commercial feed or unmixed meal, provided that such germinative noxious weed seeds shall not be greater than one one-hundredths of one percent, or other germinative weed seeds excepting wild buckwheat seed shall not be greater than one-fourth of one percent, unless such presence is clearly and permanently indicated on the label. The term "noxious weed seeds" as used in this section shall mean the seeds of Canadian thistle, wild mustard and quack grass, either single or combined.
94.72(4)
(4) Materials prohibited. No compounded commercial feed shall be sold, distributed or offered or exposed for sale which contains humus, peat, sphagnum moss, sawdust or other material of an organic nature having little or no feeding value.
94.72(5)(a)(a) No person may manufacture or distribute commercial feed in this state without a commercial feed license from the department, but no license shall be required of persons distributing only:
94.72(5)(a)1.
1. Packaged commercial feed in the original packages or containers of a licensed manufacturer or distributor as packaged and labeled by the manufacturer or distributor and whose name and address appear on the label as required under
sub. (2) (a);
94.72(5)(a)2.
2. Bulk commercial feed in the form received from a licensee and labeled as required under
sub. (2) with label information furnished by such licensee, except for net weight statement; or
94.72(5)(a)3.
3. Feeds custom-mixed by a person at retail, if commercial feeds used in the mixture are obtained from a licensee under this section and the person has evidence in the form of invoices or sales receipts indicating that the inspection fees on the commercial feed ingredients have been or will be paid by the licensee.
94.72(5)(b)
(b) Applications for a license shall be made on forms prescribed by the department listing each business location used in the manufacture or distribution of commercial feed in this state and such other information the department requires. Applications shall be accompanied by a license fee of $25 for each separate place of business used in the manufacture of commercial feed, other than custom-mixed feed, in this state and an inspection fee as required under
sub. (6). Applications of manufacturers or distributors having no established place of business in this state, but otherwise subject to a license under this section, shall be accompanied by a license fee of $25 in addition to the required inspection fees. All licenses shall expire on the last day of February of each year. Licenses are not transferable and no credit or refund may be granted for licenses held for less than a full license year. No new business locations may be put into operation during the license year without the payment of an additional fee of $25 for each new location.
94.72(6)(a)(a)
Amount; reports. Annual inspection fees of 25 cents per ton shall be paid to the department on all commercial feeds distributed in this state by any person required to be licensed under
sub. (5), except as otherwise provided in this subsection. Inspection fees shall be computed on the basis of confidential annual tonnage reports setting forth the number of net tons of commercial feed sold or distributed in this state during the preceding calendar year and for which the payment of inspection fees is required. This report shall be filed with the department not later than the last day of February of each year and be accompanied by the payment of inspection fees in the required amount, with a minimum fee of $25. Records upon which the tonnage report is based shall be subject to department inspection and audit.
94.72(6)(b)
(b)
Responsibility. Except as provided in
par. (d), if more than one manufacturer or distributor is involved in the chain of distribution, the one who first sells or distributes commercial feed for further sale is responsible for the payment of inspection fees for the feed. No inspection fees are required for commercial feeds sold under the name and label of another licensee if the inspection fees have been or will be paid by a previous manufacturer or distributor in the chain of distribution as evidenced by an invoice or sales receipt. No inspection fees are required for commercial feeds on which the inspection fees have been or will be paid by a previous manufacturer or distributor in the chain of distribution as evidenced by an invoice or sales receipt.
94.72(6)(c)
(c)
Invoice or receipt. A manufacturer or distributor who distributes commercial feed to another manufacturer or distributor except an exempt buyer shall indicate on the invoice or sales receipt that the inspection fees have been or will be paid either by the manufacturer or distributor who distributes the commercial feed or by a prior manufacturer or distributor in the chain of distribution.
94.72(6)(d)
(d)
Exemption. A manufacturer or distributor who is exempted from the license requirement under
sub. (5) (a) and who maintains records required under
par. (j) is not required to file tonnage reports or to pay inspection fees.
94.72(6)(e)
(e)
Credit for feed ingredient. A manufacturer located in this state may claim an inspection fee credit for commercial feed purchased and used as a feed ingredient in manufacturing another commercial feed if the commercial feed used as a feed ingredient is purchased from a licensee who has or will pay inspection fees on that feed as evidenced by an invoice or sales receipt. The manufacturer shall identify clearly on the tonnage report the amount of commercial feed used as a feed ingredient and the names of licensees from whom it was purchased.
94.72(6)(f)
(f)
Exempt buyers. A licensed manufacturer or distributor in this state who distributes 40% or more of the tonnage amount of commercial feed it manufactures or distributes in other states may request the department to be classified as an exempt buyer. An exempt buyer is responsible for the payment of inspection fees of all commercial feed it distributes. The department shall maintain a list of all exempt buyers and make the list available on request.
94.72(6)(g)
(g)
Credit for feed sold to exempt buyers. A licensed manufacturer or distributor may claim an inspection fee credit for commercial feed distributed to an exempt buyer. The manufacturer or distributor shall identify clearly on the tonnage report the name of the exempt buyer and the type and amount of commercial feed on which an inspection fee credit is claimed.
94.72(6)(h)
(h)
Credit for sales in other states. A manufacturer or distributor classified as an exempt buyer may claim an inspection fee credit for commercial feed distributed to purchasers in other states. The exempt buyer shall identify clearly on the tonnage report the type and amount of commercial feed on which an inspection fee credit is claimed. The exempt buyer shall maintain a record of all sales to purchasers in other states for which an inspection credit is claimed. This record shall be maintained for 3 years and be made available for inspection, copying or audit on request of the department.
94.72(6)(i)
(i)
Failure to file report or pay fees. The license of any manufacturer or distributor who has failed to file reports or pay fees when due shall be subject to immediate suspension or revocation. Unpaid fees shall constitute a debt until paid. No license may be granted or renewed until the required reports are filed and the fees are paid. A penalty of 10% of the amount due, with a minimum penalty of $10, shall be assessed against the licensee for all amounts not paid when due. The department may bring an action for the recovery of all fees not paid when due, including reasonable costs of collection.
94.72(6)(j)
(j)
Records. Each licensee shall maintain a record of all quantities and brands of commercial feed purchased for resale, purchased for further use, sold or distributed by the licensee in this state. A manufacturer or distributor who is exempted from the license requirement under
sub. (5) (a) shall maintain, as a condition of the exemption, a record of all commercial feed purchased for resale or further use in the manufacture of custom-mixed feeds. This record shall include evidence in the form of invoices or sales receipts indicating that inspection fees have been or will be paid on the feed by a previous manufacturer or distributor. All records shall be maintained for a period of 3 years and be made available for inspection, copying or audit on request of the department.
94.72(8)
(8) Adulteration and misbranding. 94.72(8)(a)(a) No person may sell or distribute any feed product which is adulterated or misbranded.
94.72(8)(b)1.
1. It bears or contains any poisonous or deleterious substance which may render it injurious to the health of animals or which is unsafe within the meaning of section 406, 408 or 409 of the federal food, drug and cosmetic act,
21 USC 346,
346a and
348.
94.72(8)(b)2.
2. It is, or bears or contains any color additive which is unsafe within the meaning of section 706 of the federal food, drug and cosmetic act,
21 USC 376.
94.72(8)(b)3.
3. A valuable component is omitted or abstracted from it in whole or part or a less valuable substance is substituted for a valuable component.
94.72(8)(b)4.
4. Its composition or quality falls below or differs from that which it is purported or represented to possess by its labeling.
94.72(8)(c)1.
1. Its labeling is false or misleading in any particular.
94.72(8)(c)2.
2. It is sold or distributed under the name of another feed.
94.72(8)(c)3.
3. It is a commercial feed and is not labeled as required under
subs. (2) and
(3).
94.72(9)
(9) Inspection. The department shall have free access during regular business hours to all places of business, mills, buildings, carriages, cars, vessels and parcels used in this state in the manufacture, transportation, importation, sale or storage of any feed product. The department may open any parcel containing or supposed to contain any feed product and take from the parcel in the manner prescribed in
sub. (10) samples for analysis. The department may cause to be analyzed annually at least one sample so taken of every feed product found, exposed for sale or distributed in this state. Any feed product stored on the premises of a retail establishment shall be considered as being exposed for sale unless plainly labeled or placarded as not being offered for retail sale.
94.72(10)
(10) Sampling, analysis. No action may be maintained for a violation of this section based upon an analysis of a sample from less than 10 separate original packages, unless there are less than 10 separate original packages in the lot, in which case portions for the official sample shall be taken from each original package. If the feed product is in bulk, portions shall be taken from not less than 10 different places in the lot but this does not exclude sampling in bulk when not exposed sufficiently to take portions from 10 different places, in which case portions are to be taken from as many places as practicable. If the sample procured is larger than is required, it shall be thoroughly mixed and quartered until a sample of suitable size remains. If requested the sample shall be divided into 2 parts, placed in suitable containers and sealed and one of the containers, if requested, shall be delivered to the person apparently in charge of the feeds. In sampling canned or small packaged goods, one entire can or small package is sufficient for examination. In sampling liquids or semiliquids a portion drawn from one container is sufficient for examination. The department shall analyze, or cause to be analyzed, the sample collected, and the result of the analysis, together with additional information as the department may deem advisable, shall be promptly transmitted to the manufacturer and to the dealer or person in whose possession the product was sampled, and shall be published annually. The manufacturer or person responsible for the placing of any commodity sampled upon the market or the dealer or person in whose possession the feed was found, upon request to the department within 10 days after the report is mailed, shall be furnished with a portion of the official sample. The methods of analysis shall be those in effect at the time by the association of official analytical chemists.
94.72(11)
(11) Hearing. If it shall appear from the examination of any sample of feed or other evidence that any of the provisions of this section relating to accuracy of label statements have been violated, the department shall cause notice of such violation to be given to the manufacturer and the dealer from whom said sample was taken; any party so notified shall be given an opportunity to be heard under such rules and regulations as may be prescribed by the department. After such hearing, if it appears that any of the provisions of this section relating to accuracy of label statements have been violated, the department may certify the facts to the proper prosecuting attorney and furnish that officer with a copy of the results of the analysis or other examination of such sample, duly authenticated by the analyst or other officer making the examination, under the oath of such officer.
94.72(12)
(12) Statistics. For the purpose of obtaining information bearing directly on the agricultural situation in this state each manufacturer or distributor selling commercial feeds to purchasers in this state shall submit on request of the department a confidential statement of total tonnage of differing brands or types of feed sold during any calendar year, the tonnage to be classified as requested by the department. If accurate information is not obtainable estimates shall be made.
