Chapter 94

94.697(2)(a)5. 5. Any restricted entry interval specified on the pesticide labeling.

94.697(2)(a)6. 6. A description of where the information required to be on the pesticide label under the federal act or under ss. 94.67 to 94.71 is available for review.

94.697(2)(a)7. 7. Emergency medical contact information.

94.697(2)(b) (b) A railroad shall keep the information under par. (a) posted at the location accessible to employees of the railroad for at least 30 days after the day of application.

94.697(2)(c) (c) No later than 48 hours before applying a pesticide to a right-of-way that a railroad owns or maintains, the railroad shall provide all of the following to each individual who directly supervises employees who work in the area to be treated:

94.697(2)(c)1. 1. The information described in par. (a) 2. to 6.

94.697(2)(c)2. 2. A description of the central location where the railroad provides the pesticide safety information to employees under par. (a).

94.697(2)(e) (e) A railroad shall make available to the public on its Internet site a description of how to obtain answers to questions about pesticide use by the railroad, including a telephone number for the railroad and any toll-free number maintained by the department to provide information about pesticide use.

94.697(3) (3) Worker protection. A railroad shall provide pesticide safety training annually to its employees who work along railroad rights-of-way and in rail yards and to other employees who, due to the nature of their employment, work in areas to which pesticides have been applied and shall keep records, for each training session, of the date, the employees attending, and the name of the trainer and the trainer’s employer. In the training under this subsection, a railroad shall include information about restricted entry intervals, requirements for personal protective equipment, how to read pesticide labels, and incident and complaint reporting.

94.697 History History: 2009 a. 286.

94.70 94.70 Pesticides; prohibited acts.

94.70(1) (1) No person may distribute, sell, offer for sale, hold for sale, ship, deliver for shipment or receive for distribution, delivery or sale to any person in this state whether or not the acts or transactions take place in intrastate commerce or between points within this state through any point outside this state, any pesticide:

94.70(1)(a) (a) Which has not been registered as required under the federal act or rules of the department.

94.70(1)(b) (b) About which claims are made, or directions for use are given, which differ in substance from representations made in connection with its registration under the federal act or rules of the department.

94.70(1)(c) (c) Which differs in composition from the composition represented in connection with its registration under the federal act or rules of the department.

94.70(1)(d) (d) Unless it is in the registrant’s, manufacturer’s or packer’s unbroken immediate container and labeled as required under the federal act or rules of the department.

94.70(1)(e) (e) Which has not been colored or discolored as required under the federal act or rules of the department.

94.70(1)(f) (f) Which is adulterated or misbranded, or violates any other provision of the federal act or ss. 94.67 to 94.71 or rules of the department.

94.70(2) (2) The prohibitions of sub. (1) shall not apply to:

94.70(2)(a) (a) Any carrier while engaged in transporting a pesticide within this state, if such carrier permits the department on request to copy all records showing the transactions in and movement of the products.

94.70(2)(b) (b) Public officials of this state and the federal government engaged in the performance of their official duties.

94.70(2)(c) (c) Persons using or possessing a pesticide in accordance with the terms and conditions of an experimental use permit issued under the federal act or rules of the department.

94.70(2)(d) (d) Articles consigned for shipment to another state or for export to a foreign country, if prepared or packed according to the specifications or directions of the purchaser.

94.70(2)(e) (e) Any person shipping a substance or mixture of substances only in the conduct of screening tests to determine its usefulness or value as a pesticide or its toxicity or other properties and from which the person does not expect to receive any pest control benefit from its use.

94.70(3) (3) No person may:

94.70(3)(a) (a) Detach, alter, deface or destroy, in whole or in part, any label or labeling required under the federal act or under ss. 94.67 to 94.71 or rules under ss. 94.67 to 94.71, or add any substance to or take any substance from any pesticide in a manner that may defeat the purposes of the laws.

94.70(3)(b) (b) Use for personal advantage or reveal, other than to federal or state agencies, the courts, physicians, pharmacists or other persons requiring the information for the performance of their duties, any information relative to formulas acquired in the administration of ss. 94.67 to 94.71 which may be confidential under the federal act or otherwise constitute a trade secret as defined in s. 134.90 (1) (c).

94.70(3)(c) (c) Advertise pesticides registered for restricted-use as a registrant, manufacturer, wholesaler, dealer, retailer or other distributor without disclosing that the pesticides are classified as restricted-use pesticides.

94.70(3)(d) (d) Use or make available for use any restricted-use pesticide contrary to its labeling or other restrictions or exemptions imposed on its use under the federal act or the laws of this state.

94.70(3)(e) (e) Claim falsely to be a certified applicator in one or more uses of any pesticide.

94.70(3)(f) (f) Use or direct the use of pesticides as a certified applicator in categories of pesticide use and application for which no certification has been obtained.

94.70(3)(g) (g) Use any pesticide in a manner inconsistent with its labeling except as authorized by the department.

94.70(3)(h) (h) Use any pesticide under an experimental use permit contrary to the provisions of the permit.

94.70(3)(i) (i) Fail to maintain records or file reports as required under ss. 94.67 to 94.71 or rules under ss. 94.67 to 94.71 or falsify records or reports or any application filed with the department.

94.70(3)(j) (j) Violate any other provisions of ss. 94.67 to 94.71 or orders or rules issued under ss. 94.67 to 94.71.

94.70 History History: 1975 c. 94 s. 91 (10); 1977 c. 106; 1985 a. 236; 1987 a. 27.

94.70 Cross-reference Cross-reference: See also chs. ATCP 29, 30, and 31 and ss. ATCP 160.19 and 160.21, Wis. adm. code.

94.70 Annotation A “negligence per se” instruction was appropriate when a violation of sub. (3) (g) damaged a beekeeper’s hives. Bennett v. Larsen Co. 118 Wis. 2d 681, 348 N.W.2d 540 (1984).

94.70 Annotation Sub. (1) (b) was, as a matter of law, violated by the defendant when the federal label, which represented the minimum information that could have been submitted to the department, provided that application of the herbicide after 50 percent emergence might reduce yields, when a representative of the defendant told the plaintiff that the plaintiff’s potatoes would only be singed a little by applying the herbicide after 50 percent emergence. Perzinski v. Chevron Chemical Co. 503 F.2d 654 (1974).

94.701 94.701 Pesticides; local regulation.

94.701(1) (1) This section is an enactment of statewide concern for the purpose of providing uniform regulation of pesticides.

94.701(2) (2) In this section, “political subdivision” means a city, village, town or county.

94.701(3) (3) 

94.701(3)(a) (a) Except as provided in par. (b) or (c), a political subdivision may not prohibit the use of or otherwise regulate pesticides.

94.701(3)(b) (b) A political subdivision may enact an ordinance that does any of the following:

94.701(3)(b)1. 1. Regulates pesticide use on property in which the political subdivision has a fee simple ownership interest.

94.701(3)(b)2. 2. Zones areas with respect to pesticide manufacturing, distribution and disposal.

94.701(3)(b)3. 3. Implements any regulation of pesticides that the political subdivision is required by federal law or other state laws to implement.

94.701(3)(b)4. 4. Implements a cooperative agreement with the federal environmental protection agency under 7 USC 136u (a).

94.701(3)(b)5. 5. Prohibits conduct that is the same as conduct prohibited under ss. 94.69 to 94.71 or 7 USC 136 to 136y.

94.701(3)(b)6. 6. Requires that, when notification of pesticide use is required by state or federal law, notification of that use be given to the political subdivision.

94.701(3)(b)7. 7. Sets standards for fire prevention in the storage of a pesticide that poses a fire hazard.

94.701(3)(b)8. 8. Regulates pesticides pursuant to a storm water management program that is consistent with 40 CFR 122.26.

94.701(3)(c) (c) A political subdivision may enact an ordinance or enter into an agreement under s. 289.33 (9) relating to the storage, treatment or disposal of solid waste containing pesticides, pesticide containers or pesticide residues.

94.701(4) (4) 

94.701(4)(a) (a) A political subdivision may not enact an ordinance that is authorized under sub. (3) until it consults with the department. If a political subdivision enacts an ordinance that is authorized under sub. (3), it shall provide the department with a copy of the ordinance no later than 60 days after enactment.

94.701(4)(b) (b) Before March 1 of each year, a political subdivision with an ordinance that is authorized under sub. (3) (b) 5. shall notify the department of all enforcement actions taken under that ordinance during the preceding year.

94.701 History History: 1993 a. 116; 1995 a. 227; 2015 a. 186.

94.701 Cross-reference Cross-reference: See also chs. ATCP 29, 30, and 31 and ss. ATCP 160.19 and 160.21, Wis. adm. code.

94.701 Annotation A local government is not preempted by sub. (3) (a) from regulating the phosphorous content in weed and feed products. A weed and feed product is both a pesticide, which under sub. (3) (a), only the state can regulate, and a fertilizer, which local government can regulate. The definition of both “pesticide” and “fertilizer” as including a mixture of the two preserves both state regulation of pesticides and local regulation of fertilizers. The state regulates the pesticide components of the mixed products, local government the fertilizer components. Croplife America. Inc. v. City of Madison, 432 F.3d 732 (2005).

94.703 94.703 Pesticides; licensing of commercial application businesses.

94.703(1) (1) No commercial application business may operate in this state without a license issued by the department under this section. A natural person who operates a commercial application business as sole proprietor, and who is also an individual commercial applicator, shall be licensed under this section and s. 94.704. A license issued under this section expires on December 31 annually and is not transferable.

94.703(2) (2) An application for a license under this section shall be submitted on a form provided by the department and shall be accompanied by the license fee required under sub. (3). The license application shall include all of the following information, which shall be promptly updated by the licensee in the event of any change during the license period:

94.703(2)(a) (a) The complete name, mailing address and street address of the licensee, and the business name, if any, under which the licensee operates as a commercial application business. The application shall specify whether the applicant is a natural person, corporation or other legal entity.

94.703(2)(b) (b) The street address of every business location from which the licensee operates as a commercial applicator for hire in this state or, if the business location has no street address, its legal description.

94.703(2)(c) (c) If the licensee employs any person to use pesticides, or to direct the use of restricted-use pesticides, the complete name and license number under s. 94.704 of each person so employed.

94.703(2)(d) (d) Any other information reasonably required by the department for the administration of this section.

94.703(3) (3) 

94.703(3)(a) (a) A person applying for an annual license under this section shall pay the following annual license fee and surcharge for each business location that the person operates in this state, including each business location added during the license year:

94.703(3)(a)1. 1. A license fee of $70.

94.703(3)(a)2. 2. An agricultural chemical cleanup surcharge of $20, except as provided in subd. 3. or s. 94.73 (15).

94.703(3)(a)3. 3. If the applicant manufactures or distributes bulk pesticides in this state, an additional agricultural chemical cleanup surcharge of $25, except as provided in s. 94.73 (15).

94.703(3)(b) (b) For purposes of this subsection, a business location includes a site at which a licensee mixes or loads at least 1,500 pounds of active ingredient during a license year, excluding active ingredient that is applied at or immediately adjacent to the mixing or loading site. If a licensee mixes or loads a total of at least 1,500 pounds of active ingredient at 2 or more sites that are within 0.5 mile of each other, those sites shall be considered a single business location.

94.703(3)(c) (c)

94.703(3)(c)1. 1. The department shall deposit the fees collected under par. (a) 1. in the agrichemical management fund.

94.703(3)(c)2. 2. The department shall deposit surcharges collected under par. (a) 2. in the agricultural chemical cleanup fund.

94.703(4) (4) No commercial application business may apply any pesticide, or direct the application of any pesticide by its employee, unless the pesticide application is made by an individual commercial applicator licensed under s. 94.704 and certified under s. 94.705 in the applicable pesticide use category.

94.703(5) (5) No licensee under this section may employ any natural person as an individual commercial applicator unless the employee is licensed under s. 94.704.

94.703 History History: 1987 a. 27; 1993 a. 16; 1997 a. 27; 2007 a. 20; 2013 a. 20; 2017 a. 59.

94.703 Cross-reference Cross-reference: See also chs. ATCP 29, 30, and 31 and ss. ATCP 160.19 and 160.21, Wis. adm. code.

94.704 94.704 Pesticides; licensing of individual commercial applicators.

94.704(1) (1) No person may act as an individual commercial applicator without a license issued by the department under this section. A license expires on December 31 annually and is not transferable. A licensee shall carry the license on his or her person at all times when acting as an individual commercial applicator. No license is required of a private applicator who applies pesticides solely as a private applicator or only on an occasional or incidental basis as a commercial applicator.

94.704(2) (2) An application for a license under this section shall be submitted on a form provided by the department and shall be accompanied by the license fee and surcharge required under sub. (3). A license application shall include all of the following information, which shall be promptly updated by the licensee in the event of any change during the license period:

94.704(2)(a) (a) The complete name, mailing address and street address of the licensee.

94.704(2)(b) (b) If the licensee is engaged in business as a sole proprietor, the licensee’s business name and address if different than the licensee’s personal name and address.

94.704(2)(c) (c) If the licensee is employed by a commercial application business, the name and address of the employing commercial application business.

94.704(2)(d) (d) Any other information reasonably required by the department for the administration of this section.

94.704(3) (3) 

94.704(3)(a) (a) Except as provided in par. (b) or (bm), a person applying for an annual license under this section shall pay the following license fee and surcharge: