Chapter ATCP 40

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.

ATCP 40.62 ATCP 40.62 Administrative appeals.

ATCP 40.62(1) (1) Request for hearing. A person who is the subject of any of the following department actions may request a hearing and reconsideration of that action:

ATCP 40.62(1)(a) (a) The denial or restriction of a permit or initial license under this chapter.

ATCP 40.62(1)(b) (b) A stop sale order or holding order under s. ATCP 40.58.

ATCP 40.62 Note Note: See also s. ATCP 40.56 (2) (c).

ATCP 40.62(2) (2) Request form and contents. A request under sub. (1) shall be in writing, and shall include all of the following:

ATCP 40.62(2)(a) (a) A copy of the notice or order under sub. (1) that the requester asks the department to reconsider.

ATCP 40.62(2)(b) (b) The requester’s objections to the department’s action, including disputed facts and conclusions.

ATCP 40.62(2)(c) (c) The harm allegedly caused to the requester by the department’s action.

ATCP 40.62(2)(d) (d) Identification of all the information that supports the requester’s objections and alleged harm.

ATCP 40.62(2)(e) (e) The legal basis for the requester’s objections.

ATCP 40.62(2)(f) (f) The requested remedy.

ATCP 40.62(3) (3) Informal conference.

ATCP 40.62(3)(a) (a) If the department receives a written request that complies with sub. (2), the administrator of the department’s agricultural resource management division shall schedule an informal conference with the requester. The administrator or the administrator’s designee shall initiate the conference within 10 working days after the department receives the request unless the requester agrees to a later date.

ATCP 40.62(3)(b) (b) Following completion of the informal conference, the administrator or designee shall decide whether to affirm, reverse, or modify the disputed action. The administrator or designee shall issue a written decision and provide a copy to the requester. The administrator or designee shall issue the decision as soon as reasonably possible, but not more than 30 working days after completion of the informal conference.

ATCP 40.62(4) (4) Formal hearing.

ATCP 40.62(4)(a) (a) If an issue is not resolved by the informal conference under sub. (3), an adversely affected party may request a contested case hearing on the unresolved issue, pursuant to ch. 227, Stats., and ch. ATCP 1. Hearing requests shall comply with sub. (2).

ATCP 40.62(4)(b) (b) A hearing on the denial or restriction of a permit or initial license shall be conducted as a class 1 contested case under ch. 227, Stats. A hearing on the suspension, revocation, or restriction of an issued license or permit shall be conducted as a class 2 contested case under ch. 227, Stats.

ATCP 40.62 History History: CR 04-140: cr. Register September 2005 No. 597, eff. 10-1-05.