Chapter 94

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:

94.704(3)(a)1. 1. A license fee of $40, except that the license fee is $30 for the license years that begin on January 1, 1999, January 1, 2000, January 1, 2001, and January 1, 2002.

94.704(3)(a)2. 2. An agricultural chemical cleanup surcharge of $10, except as provided in s. 94.73 (15).

94.704(3)(b) (b) No license fee is required under par. (a) for a government employee or an employee of a public or private educational institution if the employee’s activities as an individual commercial applicator fall within the scope of his or her employment by the governmental unit or educational institution.

94.704(3)(bm) (bm) No license fee is required under par. (a) for an individual who is eligible for the veterans fee waiver program under s. 45.44.

94.704(3)(c) (c)

94.704(3)(c)1. 1. The department shall deposit license fees collected under par. (a) 1. in the agrichemical management fund.

94.704(3)(c)2. 2. The department shall deposit the surcharges collected under par. (a) 2. in the agricultural chemical cleanup fund.

94.704(4) (4) No licensee under this section may use or direct the use of any pesticide unless the licensee is certified under s. 94.705 in the applicable use category.

94.704 History History: 1987 a. 27; 1993 a. 16; 1995 a. 27; 1997 a. 27; 1999 a. 9; 2007 a. 20; 2011 a. 209; 2013 a. 20; 2017 a. 59.

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

94.705 94.705 Pesticides; certification requirements and standards.

94.705(1) (1) Certification requirements.

94.705(1)(a) (a)

94.705(1)(a)1. 1. No person may use or direct the use of a restricted-use pesticide as a private applicator unless the person is certified as a private applicator in the applicable pesticide use category under this section.

94.705(1)(a)2. 2. No person may use or direct the use of any pesticide as a commercial applicator unless the person is all of the following:

94.705(1)(a)2.a. a. Certified as a commercial applicator in the applicable pesticide use category under this section.

94.705(1)(a)2.b. b. Licensed as an individual commercial applicator under s. 94.704. This subd. 2. b. does not apply to a private applicator who uses or directs the use of a pesticide as a commercial applicator on an occasional or incidental basis only.

94.705(1)(b) (b) Applications for certification shall be submitted on forms prescribed by the department and shall specify the category of pesticide use and application for which application for certification is made. Certifications shall be valid for a period of 5 years from date of issuance or renewal, unless terminated or suspended by the department for failure to comply with the terms and conditions of its issuance or for violation of ss. 94.67 to 94.71 or rules or orders issued under ss. 94.67 to 94.71. Certifications may be changed or amended during the 5-year period for which issued by the addition of other categories of pesticide use and application for which the applicator was not certified at the beginning of the certification period, but all the changes or amendments shall expire concurrently with the end of the 5-year certification period.

94.705(1)(c) (c) A certified private applicator may be granted an additional 5 years of certification upon the expiration of his or her certification, under one of the certification options under sub. (5). A certified commercial applicator may be granted an additional 5 years of certification upon the expiration of his or her certification, subject to a written examination approved by the department.

94.705(1)(d) (d) Except as provided under sub. (4), no commercial applicator may be certified except upon satisfactory completion of a written examination. The examination shall be designed to test the applicant’s competency in each category of pesticide use for which the applicant seeks certification.

94.705(2) (2) Certification standards. The department shall, by rule, adopt standards for the training and certification of private and commercial applicators, at least equal to but not to exceed federal standards adopted under the federal act. In the adoption of the standards, separate categories of pesticide use and application may be established for certification purposes depending on the specific types of pesticides used, the purposes for which they are used, types of equipment required in their application, the degree of knowledge and skill required and other factors which may warrant the creation of different categories. The standards shall provide that individuals to be certified must be competent with respect to the use and application of pesticides in the various categories of pesticide use and application for which certification is desired. For commercial applicators, competence in the use and handling of pesticides shall be determined on the basis of written examinations.

94.705(2m) (2m) Military instruction. Any relevant training that an applicant for certification under this section has obtained in connection with any military service, as defined in s. 111.32 (12g), counts toward satisfying the requirements for training for certification under this section if the applicant demonstrates to the satisfaction of the department that the training obtained by the applicant is substantially equivalent to the training required for certification.

94.705(3) (3) Records; reports. Certified commercial applicators, including nonresident commercial applicators, shall maintain records of amounts, dates, types, places and uses of all pesticides as prescribed by the department. Records shall be kept for 2 years and shall be open to and available for inspection at all reasonable times by the department or cooperating governmental enforcement agencies.