Aviation Fuel and Racing Fuel
In the current rule, the standards for aviation fuels were included in Wis. Admin. Code s. ATCP 94.210 (2). In the new proposed rule, aviation fuel specifications have been expanded and moved to a newly created section (Wis. Admin. Code s. ATCP 94.250). Also, due to numerous questions about racing fuels, a new section, Wis. Admin. Code s. ATCP 94.260, has been created in an effort to make the rule match the changing needs of industry. Record Keeping and Documentation
Records and documentation requirements have been clarified and streamlined in a newly created Wis. Admin. Code s. ATCP 94.340. The rule does this by renumbering portions of s. ATCP 94.330 into the new section but leaves a few provisions in the old Wis. Admin. Code s. ATCP 94.330 and renames it “Department records.” Reid Vapor Pressure Waiver
In March 2020 due to the COVID-19 crisis, Governor Evers allowed the Department to grant a waiver providing gasoline sellers extra time before they must shift to selling gasoline with low Reid Vapor Pressure. In October 2020, the Department revised the guidance document to extend the waiver. The proposed rule change would make the waiver permanent.
Other Changes
The proposed rule makes other minor clarifying and corrective changes to the rule as well as typical, cosmetic changes that occur during rulemaking.
Since the DATCP Board approved a joint scope statement for ATCP 93 and ATCP 94 in September 2013, there had been an expectation that the two rules would follow a similar path. As DATCP promulgated ATCP 93 in November 2019, the new ATCP 94 harmonizes with changes adopted in ATCP 93 so that the two will not conflict.
The rule also makes changes based on new state or federal guidelines. For instance, 2019 Wisconsin Act 64 created Wis. Stat. s 168.105 to permit nozzles to dispense differing blends. In order to reflect this change, it required the creation of Wis. Admin. Code s. ATCP 94.300 (1) (c) 2. The rule change also attempts to anticipate emerging technologies.
Summary of and Comparison with Existing or Proposed
Federal Statutes and Regulations
Federal Programs
The federal Clean Air Act (CAA) authorizes Environmental Protection Agency (EPA) to establish emissions standards for motor vehicles to address air pollution that may reasonably be anticipated to endanger public health or welfare. EPA also has authority to establish fuel controls to address such air pollution. 40 CFR Parts 79, 80, 85 and 86 establish fuel quality and emissions standards by rule, which are enforced by EPA. These rules incorporate by indirect reference ASTM International standards and test methods. EPA regulates the vapor pressure of gasoline sold at retail stations during the summer ozone season to reduce evaporative emissions from gasoline that contribute to ground-level ozone and diminish the effects of ozone-related health problems.
42 U.S.C. § 7545 regulates fuels and allows for a temporary waiver of a control or prohibition respecting the use of a fuel or fuel additive. By this authority, EPA may grant partial waivers allowing for gasoline-ethanol blends greater than 10 percent up to 15 percent (E15) for use in MY2001 and newer light-duty vehicles. 40 CFR Part 80 establishes E15 labeling and survey requirements, and transfer document requirements for gasoline-oxygenate blends. Summary of Comments Received during Preliminary
Comment Period and at Public Hearing on Statement of Scope
During the June 10, 2021 hearing on the statement of scope, only Preston Searles from the American Petroleum Institute testified. His stated concerns pertained to the rule itself rather than the scope statement.
Comparison with Rules in Adjacent States
Illinois
Illinois adopts by reference the most recent revisions of ASTM standards regarding motor fuel. Illinois adopts by reference sections of the most current revision of NIST Handbook 130, including the standards and test methods regarding gasoline-ethanol blends, which include E15 as gasoline. Illinois allows the sale of E15 as gasoline. Illinois requires fuel to meet specifications at base and blend.
Iowa
Iowa adopts ASTM standards and test methods regarding motor fuel. Iowa allows the sale of E15 as gasoline. Iowa requires fuel to meet specifications at base and blend.
Michigan
Michigan adopts standards and test methods regarding gasoline, motor fuel additives and grading. Michigan allows the sale of E15 as gasoline. Michigan requires fuel to meet specifications at base and blend.
Minnesota
Minnesota requires petroleum products to meet ASTM standards, and allows for gasoline-ethanol blends to be blended up to any percentage specifically authorized by an EPA waiver under the Clean Air Act. Minnesota allows the sale of E15 as gasoline. Minnesota requires fuel to meet specifications at base or blend.
Summary of Factual Data and Analytical Methodologies
To develop this rule, DATCP reviewed federal and state laws related to fuel quality specifications, current fuel quality inspection practices, national and international fuel quality standards and test methods, and stakeholder input. The Department also considered comments offered to its scope statement and offered during various industry meetings and phone calls with staff. In June 2020, a draft and redline were sent to industry stakeholders to seek informal comments before presentation to the DATCP Board for permission to hold public hearings on the draft hearing rule. On December 18, 2020, DATCP sent responses to those comments, a new hearing draft rule, and a redline of changes. From January 5 to 19, 2021, the fiscal estimate and regulatory flexibility analysis posted on the DATCP website. DATCP received no comments to either.
However, in its own internal review, DATCP staff discovered the Wis. Admin. Code ch. ATCP 94 scope statement might arguably be insufficient to encompass all the revisions that might be needed to make these proposed changes. Therefore, at the request of the Department, its Board approved a new scope statement at its July 22, 2021 meeting after holding a June 10, 2021 hearing on the new scope statement. DATCP again sent the rule and a redline to its stakeholders on August 9, 2021, and received no informal comments. At the request of the Wisconsin Biofuels Association, DATCP staff met with them on September 14, 2021, to discuss the proposed hearing draft rule. Analysis and Supporting Documents used to Determine Effect on Small Business in Preparation of an Economic Impact Analysis
The effect on small business was determined by reviewing stakeholder input and internal discussion as to how the proposed changes would affect regulated industries. From August 31 to September 14, 2021, the fiscal estimate and regulatory flexibility analysis posted on the DATCP website. DATCP received no comments.
Fiscal Estimate and Economic Impact Analysis
The Fiscal Esitmate and Economic Impact Analysis is attached.
Effect on Small Business
This rule may impact businesses that sell or distribute petroleum and other liquid fuel products, either at wholesale or retail. These businesses are already regulated under the existing rule, but they may need to make minor changes to comply with updated requirements.
Many of the businesses affected by this rule are “small businesses.” However, given the subject matter, there are very few accommodations or special exceptions that can be made for small businesses by the Department. Therefore, the Department does not propose any.
A complete regulatory flexibility analysis is attached.
The Department’s Regulatory Review Coordinator may be contacted by:
Telephone at (608) 224-5024
Standards Incorporated by Reference
This rule incorporates, by reference, portions of NIST Handbook 130 (2020 edition) published by the National Institute of Standards and Technology, United States Department of Commerce. As required by Wis. Stat. ch. 227, consent will be requested from the Attorney General to incorporate these standards by reference after the public hearings and prior to seeking the Governor’s assent to the final draft rule. A copy of these documents will be kept on file with DATCP and the Legislative Reference Bureau. NIST Handbook 130 is also available in electronic format at: www.nist.gov. DATCP Contact
David A. Woldseth
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53708-8911
Telephone (608) 224-5164
Where Comments May Be Submitted
David A. Woldseth
