Chapter 94

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

94.71 Annotation The legislature may constitutionally prescribe a criminal penalty for the violation of an administrative rule. State v. Courtney, 74 Wis. 2d 705, 247 N.W.2d 714 (1976).

94.715 94.715 Pest management for schools.

94.715(1) (1) Definition. In this section, “pesticide” has the meaning given in s. 94.67 (25), except that “pesticide” does not include a germicide, sanitizer, or disinfectant.

94.715(2) (2) Requirements for school boards. A school board shall do all of the following:

94.715(2)(dm) (dm) Authorize pesticide application in a school or on school grounds to be conducted only by persons who are certified in the applicable pesticide use categories under s. 94.705.

94.715(2)(g) (g) Post notice of each pesticide application in a school or on school grounds at the time of the application and for at least 72 hours following the application.

94.715 History History: 2001 a. 16; 2021 a. 238 ss. 44, 45.

94.72 94.72 Commercial feed.

94.72(1) (1) Definitions.

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)(im) (im) “Manufacturer” means any person who manufactures 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) (2) Labeling.

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)4. 4. The minimum percentage of crude protein;

94.72(2)(a)5. 5. The minimum percentage of crude fat;

94.72(2)(a)6. 6. The maximum percentage of crude fiber;

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 5 percent of one or more mineral ingredients, or other unmixed materials used as mineral supplements, and in the case of mineral feeds, mixed or unmixed, that are manufactured, represented and sold for the primary purposes of supplying mineral elements in rations for animals or birds, and that contain mineral elements generally regarded as dietary factors essential for normal nutrition, the minimum percentage of calcium (Ca), phosphorus (P) and iodine (I) and the maximum percentage of salt (NaCl), if those elements are present. If no nutritional properties other than those of a mineral nature are claimed for a mineral feed product, the percentages 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)1. 1. Name and address of the manufacturer.

94.72(2)(b)2. 2. Name and address of the purchaser.

94.72(2)(b)3. 3. Date of delivery.

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) (5) Commercial feed license.

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) (6) Inspection fees.

94.72(6)(a) (a) Fee amounts. Except as otherwise provided in this subsection, a person required to be licensed under sub. (5) shall pay the following annual inspection fees on all commercial feeds distributed in this state:

94.72(6)(a)2. 2. A feed inspection fee of 23 cents per ton, except that if the person distributes less than 200 tons of commercial feed in a year, the feed inspection fee is $46.

94.72(6)(a)3. 3. A weights and measures inspection fee of 2 cents per ton, except that if the person distributes less than 200 tons of commercial feed in a year, the weights and measures inspection fee is $4.

94.72(6)(am) (am) Tonnage reports and fee payments.

94.72(6)(am)1. 1. By the last day of February annually, a person who is required to be licensed under sub. (5) shall file a tonnage report with the department showing the number of net tons of commercial feed that the person sold or distributed in this state during the preceding calendar year. By the last day of February annually, the person shall also pay the fees under par. (a) for commercial feed that the person sold or distributed in this state during the preceding calendar year, based on the tonnage report.

94.72(6)(am)2. 2. At the request of the department, a person filing a tonnage report under subd. 1. shall make the records upon which the tonnage report is based available to the department for inspection, copying and audit.

94.72(6)(am)3. 3. The department may not disclose information obtained from a tonnage report under subd. 1.

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 in this state or to a person in this state 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)(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)(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 percent 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) (b) A feed product is adulterated if:

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)(b)5. 5. It contains materials prohibited under sub. (4).

94.72(8)(c) (c) A feed product is misbranded if:

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.

94.72(13) (13) Authority. The department may:

94.72(13)(a) (a) Enforce the provisions of this section and prescribe and enforce administrative rules and regulations which shall be in harmony with the provisions of this section and the official pronouncements of the association of American feed control officials;

94.72(13)(b) (b) Temporarily order withdrawn from distribution any lot of a feed product if the department has reasonable cause to believe that it is being distributed in this state in violation of this section by serving written notice on the owner or custodian. A temporary order prohibits the distribution, movement or disposition of the feed product for up to 60 days after the service of the notice without the prior approval of the department pending further inspection, sampling or laboratory examination. If the department determines that the feed product is not being distributed in violation of this section after the inspection, analysis or examination, it shall immediately withdraw the order and promptly notify the owner or custodian. If the department determines that the feed product is being distributed in violation of this section, the department may extend the order by serving written notice on the owner or custodian. An extended order prohibits the distribution, movement or disposition of the feed product without the prior approval of the department. An extended order remains in effect until the final disposition of the feed is agreed upon or the feed is otherwise disposed of as the department authorizes or directs. If the final disposition is not agreed upon within 30 days after the service of notice of the extended order, the feed product shall be disposed of as the department by notice in writing may authorize or direct. Any order under this paragraph has the effect of a special order under s. 93.18 and is subject to the right to a hearing before the department if a request is received within 10 days after the service of the notice.

94.72(13)(c) (c) Cooperate with any agency of the United States government in the inspection of medicated feeds and establishments where such feed is manufactured.

94.72(13)(d) (d) Require persons manufacturing or distributing in this state any feed product to furnish the department with a label or facsimile thereof for the feed product sold or distributed by them.

94.72(14) (14) Penalty.

94.72(14)(a) (a)