DATCP Docket No.
14
-R-14
Rules Clearinghouse No.
15-045
ORDER OF THE WISCONSIN DEPARTMENT OF
AGRICULTURE, TRADE AND CONSUMER PROTECTION
AMENDING
RULES
The Wisconsin department of agriculture, trade and consumer protection
adopts the following
order
t
o
amend
ATCP 40
.14
(1) (c)
and
(3)
, relating to the manufacture and distribution of fertilizer.
________________________________________________________________________
Analysis Prepared by the Department of Agriculture,
Trade and Consumer Protection
This rule amends s.
ATCP 40.14 (1)
and
(3)
, Wis. Admin. Code, relating to fertilizer content deficiencies.
The Wisconsin
D
epartment of
A
griculture,
T
rade and
C
onsumer
P
rotection
(
“
D
epartment”
)
regulates the
manufacture and sale of fertilizer,
pursuant to
s.
94.64
,
Stats. The Department
regulates
fertilizer
to protect farmers
and
consumers against unfair and deceptive sales practices. Regulation is designed to prevent fraudulent sales of products, deceptive ingredient and performance claims, and latent safety hazards.
This rule
update
s
standards
for the nutrient content of
fertilizer.
Statutes Interpreted
Statutes
i
nterpreted:
s
.
9
4
.
64
, Stats.
Statutory Authority
Explanation of Agency Authority
The Department
has authority under
s.
93.07 (1)
, Stats., to
make regulations as necessary for the proper enforcement of Chapters
93
to
100
, Stats.,
includ
ing
the administration of
the fertilizer program
under
s
.
94.64
, Stats
.
The Department
has express authority to promulgate rules
regulat
ing
the sale and labeling of fertilizer
, g
overning methods of sampling, testing and analyzing fertilizer
and
prescribing the manner in which grade and guaranteed analysis
are
declared
on
the product label.
See s.
94.64 (9)
, Stats.
Related Statutes
and Rules
Wisconsin statutes and rules relating to the manufacture, distribution, and use of
fertilizer
are set forth in ss.
94.6
4
to
94.
645
,
Stats.,
and ch.
ATCP
40
, Wis. Admin. Code.
Plain Language Analysis
Under current fertilizer rules,
a
manufacturer or distributor that labels fertilizer is required to list percent guarantees of primary nutrients on the fertilizer’s label.
Primary nutrients consist of nitrogen (“N
”), phosphorus (“P”), and potassium
(“K”).
Current
rules also require that the Department
collect and analyze various samples of fertilizers.
T
he D
epartment analyze
s
fertilizer sample
s
to determine if the content of the sample meets the guarantees of N, P, and K
listed on the label.
If the sample tested is found to be deficient in content of N, P, or K because it fails to meet one or more of the three standards in the rule, then the fertilizer is considered “mislabeled” under s.
ATCP 40.14
(1)
, Wis. Admin. Code.
After convening a group of representatives of the fertilizer industry and agrichemical associations, and reviewing recent data concerning the wholesale prices of primary nutrients, the
group
concluded that t
he existing rule contain
s
an outdated formula for the economic value of fertilize
r
. That formula was
based on average wholesale
p
rices of primary plant nutrients
prior to its enactment in the
1970s.
Rule Content
This rule amends s.
ATCP 40.14 (1)
and
(3)
, Wis. Admin. Code, relating to fertilizer content deficiencies.
Th
is
rule
will
do the following
:
1.
Replace the
term “economic value” with “combined nutrient index” wherever it appears in s.
ATCP 40.14
, Wis. Admin. Code. The proposed new term represents a more accurate description of the index used in developing the multipliers within the formula.
2.
In
place
of
the
2:2:1 ratio of N, P, and K,
i
n the current s.
ATCP 40.14
(3)
, Wis. Admin. Code,
the proposed rule
substitutes
a
ratio 1:1:1 of N, P, and K:
Current formula
:
Economic value =
{[total nitrogen (N) guarantee
]
x 2
} +
{[
available
phosphate (P
2
O
5
) guarantee
] x 2
} +
{
soluble potash (K
2
O) guarantee
}
to
Amended formula
:
Combined Nutrient Index
=
{
total
nitrogen (N) guarantee}
+
{
available
phosphate (P
2
O
5
) guarantee} + {soluble
potash (K
2
O) guarantee}
Th
e
amended
formula
more ac
c
urately
reflects the
value
of fertilizer ingredients
sold
in the marketplace than the current formula, which was developed over forty years ago.
3
.
The proposed rule changes the
standard in s.
ATCP
40.14
(1)
(c)
, Wis. Admin. Code,
for
the economic value
(proposed
combined nutrient index)
formula, so that the guarantee percentage, which currently is listed in the rule as 98%,
is
reduced
to 97%. This conforms to the D
epartment’s prior guarantee percentage in the rule, and is consistent with the percentage used by other states, such as Minnesota and Illinois.
Comparison with Existing or Proposed
Federal
Statutes and
Regulation
There
are
no
established
federal
laws regulating the content deficiencies
for
fertilizer, although there is regulation by
other
states (see below).
Comparison with Rules in Adjacent
State
s
State fertilizer regulators have organized a national Association of American Plant Food Control Officials (AAPFCO)
to
promote
uniform state laws related to fertilizer. Most surrounding states follow AAPFCO principles and have similar basic laws
which benefit consumers
,
fertilizer manufacturers
,
and distributors doing business in multiple states
.
However,
t
here are minor variations
in fertilizer regulations
between states.
Illinois
Illinois requirements look at the
total combined value of the fertilizer
as well as t
he value for each fertilizer ingredient
, and the product
is deficient if the actual amount is 97% or less than the guarantee
for both the individual ingredient and the total combined value
.
Iowa
Iowa uses a combined nutrient index
value (called relative value)
which
is
determined based on a
formula
that is identical to the current Wisconsin requirements
, with a formula of relative value
equal to 2N + 2P + K
and a 98% deficiency threshold
allowed between the actual and guaranteed relative values.
Michigan
Michigan has
adopted the AAPFCO
requirements that deem fertilizer deficient if the overall index value of the fertilizer is below 98%. The overall index value is calculated by comparing the guarantee of the nutrients to the actual value found within the sample. Michigan uses unit values for each of the fertilizer nutrients. These values
vary and are
based on
annual publications of the
annual
values per unit of
each
primary
nutrient.
Minnesota
Minnesota uses th
e
same formula and multipliers as the current Wisconsin requirements, but
it
considers a fertilizer deficient if the overall economic value is below 97% of the
guaranteed value.
Summary of Factual Data and Analytical Methodologies
The Department
developed this rule in consultation with
an
industry working
group
that included representative members from agricultural associations and fertilizer manufacturers and distributors. A
l
istening session was held
with
representatives
of
multiple agrichemical associations,
fertilizer
manufacturers
,
and suppliers
.
Some members of this group
previously had brought to the D
epartment its concerns over the economic value calculati
on that has been in use by the D
epartment since the 1970s. They questioned the effects that the current pricing structure has on the labeling of fertilizer content, when compared with how prior pricing models had affected the calculation of the economic value on numerous fertilizer blends over recent years.
The D
epartment
reviewed
the current relative average wholesale prices for primary plant nutrients N, P, and K, using
statistics and
information gathered from the United States Department of Agriculture (USDA)
regarding
fertilizer ingredient pricing.
The D
epartment
later considered data from statistics
and information that were specific to the r
egional pric
ing
of fertilizer
ingredients as
published
with
in the
annual
Wisconsin Agricultural Statistics Bulletin.
The formula used to determine the economic value of the fertilizers was no longer found to be accurate in relation to the multipliers used in the formula for the primary nutrients N and P. Additionally, it was found that the prices for these primary nutrients, as well as that of K, were similar to one
another.
The D
epartment heard concerns over the value used in calculating the threshold percentage of the economic value guarantee
, which addressed
variations such as granular size, overall availability of nutrients, and the lack of consistency between lots of primary nutrients
.
The D
epartment
reviewed s
ample results of the past years to show that a change from
98% to 97% would
be a change
tak
ing
into account the
variati
on in granular size and the lack of consistency between lots of primary nutrients, while continuing to
ensure
that
the fertilizer contains the nutrients guaranteed on the
product
label.
Analysis and Supporting Documents Used to Determine Effect on Small Business or in Preparation of an Economic Impact Analysis
The Department
considered data on wholesale nutrient prices obtained from
USDA reports referenced in the listening
session (See Summary of Data and Analytical Methodologies, above),
and later
considered data from statistics
of
regional prices of fertilizer in our area of the country
, published in the Wisconsin Agricultural Statistics Bulletin
.
No
comments
were
received through the economic impact analysis comment period.
Fiscal Impact
This rule will have no
f
iscal impact on the Department
or local units of government.
This rule will clarify
existing
regulations and improve program administration.
The Department
does not anticipate any additional costs or staffing needs.
A complete fiscal estimate
and economic impact analysis
is attached.
Effects on Small
Business
The Department
anticipates that this rule revision will have no
negative
economic impact on small business.
The proposed rule will continue to benefit certain small businesses such as farmers, landscape and
lawncare
companies, farm supply stores, and cooperatives.
This rule revision is designed to update
the
formulas
used in analyzing
fertilizer for
its
economic value and content deficiencies.
This rule will
continue
to prevent unfair and deceptive sales practices
,
while adjusting formulas used to reflect updated fertilizer ingredient costs.
There are approximately
70
0 persons
licensed to manufacture or distribute fertilizers in Wisconsin.
Up to 30% of these license holders may be small businesses.
Affected businesses include farm centers and cooperatives,
lawncare
businesses, and manufacturers of nonagricultural and specialty fertilizers.
The fertilizer industry serves about 30,000 Wisconsin farmers, many of whom are small businesses.
This rule will benefit farmers, by
continuing to
prevent
unfair and deceptive sales practices
,
while adjusting formulas used to reflect
current
fertilizer ingredient costs
.
Because this rule will not have a significant adverse impact on small business, it is not subject to the delayed small business effective date provision in s.
227.22
(2)
(e)
, Stats.
A business analysis (“
final
regulatory flexibility analysis”) is attached.
DATCP Contact Information
Questions and comments related to this rule may be directed to:
Amy Basel
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone: (608) 224-454
1
(See PDF for image)
S
ection 1
.
ATCP 40
.14
(1) (c)
is
amended
to read:
ATCP 40.14
(1)
(c
) The
economic value
combined nutrient index
of primary
nutrients actually present is less than
98%
97
%
of the
economic value
combined nutrient index
of the amounts guaranteed, where
economic value
the
combined nutrient index
is calculated according to sub. (3).
S
ection
2
.
ATCP 40.14 (3) is amended to read:
ATCP 40.14
(3
)
E
conomic
value
Combined Nutrient Index
.
Economic value
Combined nutrient index
, for purposes of sub. (1)
(c)
, equals
{
[
total nitrogen (
N
)
guarantee
x 2]
}
+
{
[
available phosphate (
P
2
O
5
)
guarantee
x 2]
}
+
{soluble potash
(
K
2
O
)
guarantee
}
.
S
ection
3.
Effective
d
ate
.
This rule takes effect on the first day of the month following publication in the Wisconsin administrative register, as provided under s.
227.22 (2) (intro.)
