Chapter ATCP 40

ATCP 40.42 ATCP 40.42 Initial review of permit application. The department may review a permit application to the extent that it deems appropriate, based on product uses, content, labeling, and performance claims. The department may do all of the following as part of its review:

ATCP 40.42(1) (1) Review product labeling for compliance with this chapter.

ATCP 40.42(2) (2) Review the efficacy and usefulness of the product, under Wisconsin conditions, when the product is used according to label directions.

ATCP 40.42(3) (3) Review labeling statements, including statements related to product contents and performance, to determine whether they are accurate, truthful, and properly substantiated.

ATCP 40.42 Note Note: For example, the department may review performance claims such as the following:

ATCP 40.42 Note • “Product X helps develop stronger, deeper root systems to help plants fight against minor diseases and insect infestations.”

ATCP 40.42 Note • “Product X will provide plant nutrients needed to give your lawn a golf course look.”

ATCP 40.42(4) (4) Review for possible health, safety, and environmental hazards, and for proper labeling of products containing potentially hazardous or toxic ingredients.

ATCP 40.42(5) (5) Review any analytical methodology proposed by the applicant under s. ATCP 40.28 (2) (g).

ATCP 40.42(6) (6) Review for compliance with other requirements under this chapter.

ATCP 40.42 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

ATCP 40.44 ATCP 40.44 Action on permit application. Within 60 working days after the department receives a complete permit application under s. ATCP 40.12 or 40.28, the department shall do one of the following:

ATCP 40.44(1) (1) Issue the permit. The department may limit the time period for which the permit is effective, or impose other permit conditions that it deems necessary. If the department imposes permit conditions, the department shall give the applicant written notice of its reasons.

ATCP 40.44(2) (2) Deny the permit. If the department denies the permit, the department shall give the applicant written notice of its reasons.

ATCP 40.44(3) (3) Notification. Notify the applicant, in writing, that the department will conduct a supplementary review under s. ATCP 40.46. The notice shall do all the following:

ATCP 40.44(3)(a) (a) Identify the reasons for the supplementary review.

ATCP 40.44(3)(b) (b) Identify the scope of the supplementary review.

ATCP 40.44(3)(c) (c) Identify any additional information that the department requires of the applicant under s. ATCP 40.46 in order to conduct the supplementary review. The department may specify the form in which the applicant must submit the information.

ATCP 40.44 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

ATCP 40.46 ATCP 40.46 Supplementary review.

ATCP 40.46(1) (1) General.

ATCP 40.46(1)(a) (a) The department may conduct a supplementary review of a permit application under s. ATCP 40.12 or 40.28 if the department has reasonable grounds to conclude that the supplementary review is needed to determine compliance with this chapter. The department may require the applicant to submit information under this section that may be relevant to the supplementary review. The department may deny a permit application if the applicant fails to provide the information.

ATCP 40.46 Note Note: The department may request assistance from the University of Wisconsin, college of agriculture and life sciences in evaluating any substantiating evidence under this section.

ATCP 40.46(1)(b) (b) In its supplementary review, the department may consider any information that the department considers relevant, including information provided by the applicant. The department may consider whether the information is accurate, relevant, material, reliable, properly documented, substantiated, scientifically valid, persuasive, consistent with generally accepted scientific knowledge, consistent with other reliable information, applicable under Wisconsin conditions, and applicable in light of recommended uses, use rates, and use directions.

ATCP 40.46(3) (3) Review period. The department shall complete a supplementary review under sub. (1) as soon as reasonably possible, and within 120 working days after the department receives all of the supplementary information requested under sub. (1) (a).

ATCP 40.46(4) (4) Action following supplementary review. When the department completes its supplementary review, the department shall do one of the following:

ATCP 40.46(4)(a) (a) Issue the permit. The department may limit the time period for which the permit is effective, or impose other permit conditions that it deems necessary. If the department imposes permit conditions, the department shall give the applicant written notice of its reasons.

ATCP 40.46(4)(b) (b) Deny the permit. If the department denies the permit, the department shall give the applicant written notice of its reasons.

ATCP 40.46 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

ATCP 40.48 ATCP 40.48 Scientific substantiation. Test data and reports submitted in support of a permit application are not considered scientific unless all of the following apply:

ATCP 40.48(1) (1) The test data and reports result from tests conducted by competent scientific researchers, using appropriate scientific methods.

ATCP 40.48(2) (2) Test data and reports include all information needed to replicate the tests.

ATCP 40.48(3) (3) Field test data and reports, if any, result from field tests that comply with the standards in Appendix D.

ATCP 40.48(4) (4) Field test reports, if any, comply with the standards in Appendix E.

ATCP 40.48 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

ATCP 40.50 ATCP 40.50 Withdrawing or modifying a permit application. A permit applicant may withdraw or modify an application at any time. An applicant may modify product contents or labeling to resolve issues presented in the permit review process. The department may, in its discretion, advise on label revisions at any point in the permit review process. Within 60 working days after the department receives a modified application that is complete, the department shall take action as provided in s. ATCP 40.44.

ATCP 40.50 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

ATCP 40.52 ATCP 40.52 Permit reconsideration. The department may, at any time, reconsider the issuance of any permit under s. ATCP 40.12 or 40.28. The department may require a permit holder to submit relevant information as for a supplementary review under s. ATCP 40.46.

ATCP 40.52 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

subch. V of ch. ATCP 40 Subchapter V — Prohibitions

ATCP 40.54 ATCP 40.54 Prohibitions.

ATCP 40.54(1) (1) Applications and reports. No person may do any of the following in connection with a license or permit application under this chapter, or in connection with any report or statement filed with the department under this chapter:

ATCP 40.54(1)(a) (a) Misrepresent or falsify any information.

ATCP 40.54(1)(b) (b) Make any statement that is not substantiated, to the extent required under this chapter, at the time the statement is made.

ATCP 40.54(2) (2) Advertising and promotional statements. No person may do any of the following in connection with the labeling, advertising, promotion, or distribution of any fertilizer or soil or plant additive:

ATCP 40.54(2)(a) (a) Make any representation that is false, deceptive, or misleading.

ATCP 40.54 Note Note: See also s. 100.18, Stats. A federally trademarked product name is not considered false, deceptive, or misleading under par. (a).

ATCP 40.54(2)(b) (b) Make any representation that is inconsistent with the product label.

ATCP 40.54(2)(c) (c) Represent that a product contains a plant nutrient or other beneficial substance, unless the guaranteed analysis includes a guarantee for that substance.

ATCP 40.54(2)(d) (d) Make any representation or warranty that is not substantiated, to the extent required under this chapter, at the time the representation or warranty is made.

ATCP 40.54(2)(e) (e) Represent that the department endorses or warrants the product.

ATCP 40.54(2)(f) (f) Make any performance, use, or efficacy claim for a product, distributed pursuant to a permit under s. ATCP 40.12 or 40.28, that exceeds or is inconsistent with the product label contained in the approved permit application. This does not apply to a performance, use, or efficacy claim that the department approves in writing.

ATCP 40.54(2)(g) (g) Distribute a fertilizer, pursuant to the exemption in s. ATCP 40.12 (2) (a), to a person in this state who is not licensed under s. ATCP 40.04.

ATCP 40.54 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

subch. VI of ch. ATCP 40 Subchapter VI — Enforcement and Appeals

ATCP 40.56 ATCP 40.56 License or permit action.

ATCP 40.56(1) (1) The department may, for cause, deny, suspend, revoke, or impose conditions on a license or permit issued under this chapter. Cause includes any of the following:

ATCP 40.56(1)(a) (a) Failure to comply with s. 94.64 or 94.65, Stats., or this chapter.

ATCP 40.56(1)(b) (b) Failure to provide information required under s. 94.64 or 94.65, Stats., or this chapter.

ATCP 40.56(1)(c) (c) Failure to comply with the terms and conditions of a license or permit issued under this chapter. This may include violations resulting from material changes in product contents, product labeling, or product advertising or promotional claims.

ATCP 40.56(1)(d) (d) In the case of a permit issued under s. ATCP 40.12 or 40.28, the permit holder no longer holds a license under s. ATCP 40.04 or 40.28 that is required for the validity of the permit.

ATCP 40.56(1)(e) (e) In the case of a permit issued under s. ATCP 40.12 or 40.28, the permit holder has not distributed any product pursuant to the permit for at least 12 months.

ATCP 40.56 Note Note: Sections 93.06 (7) and (8), Stats., authorize the department to deny, suspend, revoke, or impose conditions on licenses or permits.

ATCP 40.56(2) (2) Summary permit suspension.

ATCP 40.56(2)(a) (a) The department’s division of agricultural resource management may, by written notice, summarily suspend or impose conditions on a permit issued under s. ATCP 40.12 or 40.28, for any of the reasons identified in sub. (1).

ATCP 40.56(2)(b) (b) A summary suspension under par. (a) shall take effect on a date specified in the suspension notice, but not sooner than 10 days after the suspension notice is served on the permit holder. The division administrator shall sign the suspension order.

ATCP 40.56(2)(c) (c) A permit holder may request a hearing on a summary suspension under this subsection, pursuant to s. ATCP 1.03. The administrative law judge or final decision maker may stay the summary suspension pending hearing or decision, but a request for hearing does not automatically stay a summary suspension.

ATCP 40.56 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

ATCP 40.58 ATCP 40.58 Stop sale and holding orders.

ATCP 40.58(1) (1) Stop sale order. The department may issue a written order prohibiting the distribution or movement of a product if the department finds that the product is distributed in violation of s. 94.64 or 94.65, Stats., or this chapter. No person may distribute or move a product in violation of the department’s order.

ATCP 40.58 Note Note: See ss. 94.64 (11) (a) and (b) and 94.65 (10) (b), Stats.

ATCP 40.58(2) (2) Temporary holding order.

ATCP 40.58(2)(a) (a) The department may issue a written holding order, temporarily prohibiting the distribution or movement of a product, if the department has reason to believe that the product is distributed in violation of s. 94.64 or 94.65, Stats., or this chapter. The department may issue a temporary holding order pending further examination or analysis to determine whether there is a violation of s. 94.64 or 94.65, Stats., or this chapter. No person may distribute or move a product in violation of a temporary holding order.

ATCP 40.58 Note Note: See ss. 94.64 (11) (b) and 94.65 (10) (a), Stats.

ATCP 40.58(2)(b) (b) A temporary holding order on a fertilizer remains in effect for 15 days unless the department extends or withdraws the order. The department may extend the temporary holding order for up to 15 days to complete sampling, analysis, and evaluation of the fertilizer and its labeling.

ATCP 40.58(2)(c) (c) A temporary holding order on a soil or plant additive or a fertilizer-additive combination remains in effect for 60 days unless the department withdraws the order.

ATCP 40.58(3) (3) Serving an order. The department shall serve an order under sub. (1) or (2) by delivering or mailing a copy to the owner or custodian of the product, or by posting a copy in a conspicuous place on or near the product.

ATCP 40.58(4) (4) Releasing an order. The department may release an order if any of the following apply:

ATCP 40.58(4)(a) (a) The department finds that the violation has been corrected.

ATCP 40.58(4)(b) (b) The department determines, upon further investigation, that there is no violation.

ATCP 40.58(4)(c) (c) The department determines that the order is not necessary or appropriate, or is no longer necessary or appropriate.

ATCP 40.58 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.

ATCP 40.60 ATCP 40.60 Court enforcement. The department may seek court action to enforce this chapter, including any of the following actions that may be appropriate:

ATCP 40.60(1) (1) Fertilizer seizure. The department, or a district attorney at the request of the department, may ask a court to seize and dispose of a fertilizer as provided in s. 94.64 (11) (c), Stats.

ATCP 40.60(2) (2) Injunction and restitution. The department, or a district attorney at the request of the department, may ask a court to issue a temporary or permanent injunction under s. 94.64 (11) (d) or 94.65 (10) (d), Stats., to restrain a violation of this chapter. The department may also ask a court to order restitution.

ATCP 40.60(3) (3) Civil forfeiture. The department may ask a district attorney to seek a court-ordered civil forfeiture under s. 94.64 (12) (a) or 94.65 (11) (a), Stats.

ATCP 40.60(4) (4) Criminal prosecution. The department may ask a district attorney to initiate a criminal prosecution under s. 94.64 (12) (a) or 94.65 (11) (b), Stats.

ATCP 40.60 Note Note: A buyer injured by a violation of this chapter may sue the violator for any contract remedies that may apply. If the violation pertains to a soil or plant additive, the person may also sue for double damages, costs, and reasonable attorney fees under s. 94.65 (12), Stats.

ATCP 40.60 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.