Chapter 94

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)

94.72(14)(a)1. 1. A person who violates this section or an order issued or a rule promulgated under this section shall forfeit not less than $100 nor more than $500 for the first violation and not less than $200 nor more than $1,000 for any subsequent violation within 5 years.

94.72(14)(a)2. 2. A manufacturer or distributor who knowingly violates this section or an order issued or a rule promulgated under this section may be fined not more than $5,000 or imprisoned not more than one year in the county jail or both. Any other person who knowingly violates this section or an order issued or a rule promulgated under this section may be fined not more than $1,000 or imprisoned not more than 30 days or both.

94.72(14)(b) (b) In addition to any other penalty, an adulterated feed product is subject to seizure by court action, condemnation and disposition as the court directs and the proceeds from any sale shall be paid into the state treasury. The court may release the feed product seized when the requirements of this section have been complied with, and upon payment of all costs and expenses incurred by the state in any proceedings connected with the seizure.

94.72 History History: 1975 c. 39, 198, 199; 1977 c. 29 s. 1650m (4); 1979 c. 34; 1983 a. 189; 1985 a. 138; 1991 a. 39, 112; 1995 a. 4; 1997 a. 27, 253; 1999 a. 9; 2015 a. 244; 2017 a. 59.

94.72 Cross-reference Cross-reference: See also ch. ATCP 42, Wis. adm. code.

94.73 94.73 Agricultural chemical cleanup program.

94.73(1) (1) Definitions. In this section:

94.73(1)(a) (a) “Agricultural chemical” means a substance that is a fertilizer or a nonhousehold pesticide and that is a hazardous substance, as defined in s. 299.01 (6).

94.73(1)(b) (b) “Corrective action” means action that is taken in response to a discharge and that is necessary to restore the environment to the extent practicable and to minimize the harmful effects of the discharge to the air, lands or waters of this state. “Corrective action” includes action taken or ordered by the department of natural resources under s. 292.11 (7) in response to a discharge, but does not include action ordered by the department of natural resources under s. 291.37 (2) or 291.95. “Corrective action” does not include action taken, or ordered to be completed, before January 1, 1989.

94.73(1)(c) (c) “Corrective action costs” means reasonable costs incurred in taking corrective action.

94.73(1)(e) (e) “Discharge” means the discharge, as defined in s. 292.01 (3), of an agricultural chemical.

94.73(1)(f) (f) “Fertilizer” has the meaning given in s. 94.64 (1) (e), except that it does not include nitrates or other forms of nitrogen found in the environment that cannot be attributed to a discharge.

94.73(1)(g) (g) “Nonhousehold pesticide” has the meaning given in s. 94.681 (1) (c).

94.73(1)(h) (h) “Responsible person” means a person who owns or controls an agricultural chemical that is discharged, a person who causes a discharge or a person on whose property an agricultural chemical is discharged or any of their successors in interest.

94.73(2) (2) Corrective action ordered or authorized by the department.

94.73(2)(a) (a) The department may issue an order requiring a responsible person to take corrective action. Except as provided in a memorandum of understanding under sub. (12), if a discharge involves a hazardous substance that may also become a hazardous waste, the department and the department of natural resources shall consult to determine whether corrective action should be taken under this section or s. 291.37 (2), 291.95 (1) or 292.31 (3).

94.73(2)(b) (b) An order under par. (a) shall include all of the following:

94.73(2)(b)1. 1. The name and address of the responsible person.

94.73(2)(b)2. 2. A description of the property on which the responsible person is required to take the corrective action.

94.73(2)(b)3. 3. A description of the corrective action required to be taken.

94.73(2)(b)4. 4. A date by which the responsible person is required to complete the corrective action.

94.73(2)(bg) (bg) The corrective action ordered under par. (a) may include any of the following:

94.73(2)(bg)1. 1. Investigation to determine the extent and severity of environmental contamination caused by the discharge.

94.73(2)(bg)2. 2. Containment, removal, treatment or monitoring of environmental contamination caused by the discharge if the containment, removal, treatment or monitoring complies with chs. 281 to 285 and 289 to 299.

94.73(2)(bg)3. 3. Transportation, storage, land application or disposal of contaminated materials, in compliance with chs. 281 to 285 and 289 to 299, except s. 281.48.

94.73(2)(c) (c) The department may issue an order under par. (a) on a summary basis without prior notice or a prior hearing if the department determines that a summary order is necessary to prevent imminent harm to public health or safety or to the environment. If the recipient of a summary order requests a hearing on that order, the department shall hold a hearing within 10 days after it receives the request unless the recipient agrees to a later hearing date. The department is not required to stay enforcement of a summary order issued under this paragraph pending the outcome of the hearing. If the responsible person prevails after a hearing, the department shall reimburse the responsible person from the appropriation under s. 20.115 (7) (wm) for the corrective action costs incurred as the result of the department’s order.

94.73(2)(d) (d) Soil or water removed from a discharge site as part of a corrective action may only be spread on land if that spreading on land is in compliance with chs. 281 to 285 and 289 to 299 and if the department has given its written authorization.

94.73(2m) (2m) Corrective action ordered by the department of natural resources. The department of natural resources may take action under s. 292.11 (7) (a) or may issue an order under s. 292.11 (7) (c) in response to a discharge only if one or more of the following apply:

94.73(2m)(a) (a) The action or order is necessary in an emergency to prevent or mitigate an imminent hazard to public health, safety or welfare or to the environment.

94.73(2m)(b) (b) The department of agriculture, trade and consumer protection requests the department of natural resources to take the action or issue the order.

94.73(2m)(c) (c) The secretary of natural resources approves the action or order in advance after notice to the secretary of agriculture, trade and consumer protection.

94.73(2m)(d) (d) The department of natural resources takes action under s. 292.11 (7) (a) after the responsible person fails to comply with an order that was issued under s. 292.11 (7) (c) in compliance with this subsection.

94.73(2m)(e) (e) The department of natural resources takes the action or issues the order in compliance with a memorandum of understanding under sub. (12) between the department of agriculture, trade and consumer protection and the department of natural resources.

94.73(3) (3) Eligibility for reimbursement. A responsible person who takes corrective action may apply to the department for reimbursement of corrective action costs. Except as provided in sub. (3m), an applicant is eligible for reimbursement if all of the following conditions are met:

94.73(3)(a) (a) The applicant submits an application that complies with sub. (5) within 3 years after incurring the corrective action costs or after October 14, 1997, whichever is later.

94.73(3)(b) (b) The department finds that the corrective action costs incurred by the applicant are reasonable and the corrective action taken is necessary.

94.73(3)(c) (c) The applicant demonstrates, to the department’s satisfaction, that the corrective action costs are not covered by insurance and have not been reimbursed from other sources.

94.73(3)(d) (d) The applicant has complied with every corrective action order issued to the applicant by the department under sub. (2) or the department of natural resources under s. 292.11 (7) (c).

94.73(3)(f) (f) The applicant, upon discovery of the discharge, promptly reported the discharge to the department or, if the applicant was required to report the discharge under s. 292.11 (2), to the department of natural resources.

94.73(3)(g) (g) If the discharge occurred at a pesticide mixing and loading site owned or operated by the applicant, the applicant has fully complied with rules promulgated by the department under sub. (11) (d) requiring registration of pesticide mixing and loading sites.

94.73(3)(h) (h) If the applicant was required to submit a work plan under sub. (4), the corrective action taken by the applicant was in accordance with a work plan approved by the department.

94.73(3m) (3m) Costs not eligible for reimbursement. An applicant under sub. (3) is not eligible for reimbursement of any of the following costs:

94.73(3m)(a) (a) Costs for corrective action taken in response to a discharge that is an intentional use of an agricultural chemical for agricultural purposes, unless the corrective action is ordered by the department under sub. (2) or by the department of natural resources under s. 292.11 (7) (c).

94.73(3m)(b) (b) Costs of reimbursing the department of natural resources for action taken under s. 292.11 (7) (a) or 292.31 (1), (3) or (7) because the applicant failed to respond adequately to a discharge.

94.73(3m)(c) (c) Costs for corrective action that a pesticide manufacturer or labeler takes in response to a discharge by that pesticide manufacturer or labeler.

94.73(3m)(d) (d) Costs for corrective action taken in response to a discharge that occurs while the agricultural chemical is being held or transported by a common carrier.

94.73(3m)(e) (e) Costs for corrective action taken in response to a discharge from a facility that is required to be licensed under s. 289.31 or that would be required to be licensed except that the department of natural resources has issued a specific exemption under s. 289.43 or rules promulgated under s. 289.05 (1) or (2).

94.73(3m)(f) (f) The cost of an activity that the department determines does not contribute to cleaning up a discharge.

94.73(3m)(g) (g) A cost related to the repair, replacement or upgrading of a facility, structure or equipment, except that, if a responsible person who applies for reimbursement demonstrates to the department’s satisfaction that the removal of an existing structure is the least expensive corrective action alternative, the department may reimburse the responsible person the depreciated value of the structure as determined by the department by rule.

94.73(3m)(h) (h) Loss of income.

94.73(3m)(i) (i) Attorney fees.

94.73(3m)(j) (j) Costs of permanent relocation of residents.

94.73(3m)(k) (k) Decreased property values.

94.73(3m)(L) (L) The cost of a responsible person’s time spent in planning and implementing the corrective action.

94.73(3m)(m) (m) Costs incurred for the review of corrective action work plans.