Rules Clearinghouse No. November 18, 2021
THE DEPARTMENT OF AGRICULTURE, TRADE
AND CONSUMER PROTECTION’S
PROPOSED ORDER TO ADOPT PERMANENT RULES
PROPOSED ORDER
The Wisconsin department of agriculture, trade and consumer protection proposes the following rule to repeal ATCP 94.110 (3) (Note1), 94.200 (1) (a), (b), (c), (d), (e), (f), (g), (h), (i), (j) and (k), 94.210 (1) (b), Table 94.210, 94.210 (1) (c) 2., and (Note), 94.210 (2), (3) (Note), (6), and (6) (Note), 94.300 (1) (b) 8., (2) (a) 3. Note, 94.310 (2) (c), 94.310 (3) (c), 94.400 (6) and (7), and 94.410 (2); to renumber 94.200 (2) (Note1) and (Note2) to 94.200 (4) (Note1) and (Note2), 94.300 (4) (Intro.) to 94.300 (4) (a), 94.330 (1) (b) to 94.330 (2), 94.330 (1) (c) to 94.330 (3), 94.330 (2) to 94.340 (3), 94.330 (3) to 94.340 (4), and 94.410 (3) to 94.410 (6); to renumber and amend ATCP 94.110 (3), 94.240 (4), 94.300 (1) (c), 94.300 (4) (Note), 94.330 (1) (a), 94.410 (1) and (3); to amend ATCP 94.100 (8) (b), (c), (d) (Title) and (Note1), 94.110 (Title) and (3) (Title), 94.200 (1) (Intro.) and (1) (L), 94.200 (4) (Note1), 94.210 (1) (Title), (1) (a), (1) (c) 1., (1) (d) (Title), 2., 3., and 4., (1) (e) 1. and 2., and (1) (f), 94.220, 94.230, 94.240 (Title), (1), (3), and (5), 94.300 (1) (a) and (Note), 94.300 (1) (b) 1. and 2., 94.300 (2) (a), 94.310 (1) (b) 1., 94.310 (2) (a) 1., 2., 3., and (b), and (e) 1. and 2. (Note1) and (Note2), 94.310 (3) (a), 94.330 (Title) and (1) (a) and (2), 94.400 (2) and (5), and 94.410 (5); to repeal and recreate ATCP 94.100 (8) (e), 94.120, and 94.200 (2), 94.320; to create ATCP 94.100 (8) (f) and (g), 94.110 (3) (a) 1., 2., 3., 4., 5., 6., 7., 8. and (b), 94.200 (3) and (4), 94.210 (3), 94.215, 94.240 (4) (b), 94.250, 94.260, 94.270, 94.300 (1) (b) 9., (1) (c) 2., and (4) (b), 94.320 (1), 94.330 (3) (Note), 94.340 (1), (2), and (4) (Note.), 94.400 (8), (9), (10), (11), and (12), and 94.410 (1) and (2); relating to petroleum product inspections, and affecting small businesses.
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Analysis Prepared by the Department
of Agriculture, Trade and Consumer Protection
This rule implements Wis. Stat. ch. 168,, subch. I, which directs the department of agriculture, trade and consumer protection (DATCP) to promulgate rules related to minimum product grade specifications of petroleum and other liquid fuels. Statutes Interpreted
Statutory Authority
Statutory Authority: Wis. Stat. ss. 168.04 and 168.16.
Explanation of Statutory Authority
DATCP has authority, under Wis. Stat. s. 168.04, to promulgate rules that prescribe minimum product grade specifications for petroleum and other liquid fuel products. DATCP has authority, under Wis. Stat. s. 168.16, to promulgate reasonable rules relating to the administration and enforcement of Wis. Stat. ch. 168, subchapter I. Related Statutes and Rules
Wis. Stat. s. 93.06 (1p) allows the department to charge a fee to cover its cost to provide inspection, diagnostic, analytical or testing services if the service is requested and is related to an authorized department program and serves program objectives. Wis. Stat. s. 93.06 (1pm) allows the department to establish a schedule of fees for the performance or contract for performance of testing of petroleum products other than testing provided under ch. 168. Wis. Stat. ch. 168, Subchapter I, Petroleum Product Inspections, grants the department authority to promulgate rules related to product grade specifications, and administration and enforcement of the subchapter. Wis. Admin. Code ch. ATCP 93 implements Wis. Stat. ch. 168, Subchapter II, Storage of Dangerous Substances. Chapter ATCP 93 establishes the appeals process for a system shutdown, which applies to both storage systems and the fuels contained within them. Plain Language Analysis
Background
During the 1980s and early 1990s, Wisconsin’s tanks and petroleum inspection programs were housed within the Department of Industry, Labor, and Human Relations. These programs were transferred to the Department of Commerce in 1996. They were transferred from Commerce to the Department of Safety and Professional Services (DSPS) as part of the 2011-13 biennial budget (2011 Wisconsin Act 32). SPS 348 was previously titled ILHR 48 and COMM 48 before becoming the current ATCP 94. With the enactment of 2013 Wisconsin Act 20 (the biennial budget bill), the state of Wisconsin transferred the Petroleum and Other Liquid Fuel Products program, also known as the Petroleum Inspection Program, from DSPS to DATCP. Act 20 authorized the transfer of existing administrative rules with the approval of the Secretary of the Department of Administration. [See Section 9138 (2) (fm) and (4) (f).] The Legislature expected DATCP to update the rules as part of the transfer. DSPS approved a scope statement in January 2011, but the program transferred before action was taken. The DATCP Board approved a joint scope statement for ATCP 93 and ATCP 94 in September 2013, and DATCP initially considered some changes to ATCP 94. DATCP never formally presented any changes to its Board and never held a public hearing on any proposed changes. Work completed on ATCP 93, the storage tanks inspection program, with the rule’s promulgation in November 2019.
Per Wis. Stat. s. 168.04 (4) (c), no gasoline-ethanol fuel blend rule could take effect sooner than July 1, 2019. The DATCP Board approved a new scope statement for this rule at its November 7, 2019 meeting. DATCP had advocated a new scope statement be created for two main reasons: first, the nature of the industry had changed since September 2013; second, the current scope statement would have expired in February 2020, per Wis. Stat. s. 227.135 (5), and a reset of the calendar with a new scope statement best benefited a thorough re-discussion of the rule. During the ensuing rulemaking discussions, proposed amendments, and informal sharing of those revisions with industry stakeholders, DATCP staff discovered that so much in the industry had changed that the 2019 Wis. Admin. Code ch. ATCP 94 scope statement might arguably be insufficient to encompass all the revisions that might be needed to address the respective needs and interests of those in the petroleum products industry, the consumers of those products, and the broader public. Therefore, at the request of the Department, its Board approved a new scope statement at its July 22, 2021 meeting.
Rule Content
General
This rule does all of the following:
- Updates standards incorporated by reference.
- Creates definitions clarifying the meaning of important terms.
- Updates petition for variance procedures and fee authority per transfer from DSPS.
- Updates allowance for water in tanks to match national standards.
- Creates new sections on E15 and E85.
- Creates new sections on aviation fuel and racing fuel.
- Clarifies record keeping and documentation.
- Codifies the Reid Vapor Pressure waiver.
- Makes other minor updates and changes including corrections to outdated provisions.
Standards Incorporated by Reference
This rule adopts Section IV. G. of NIST Handbook 130 (2020 edition) in Wis. Admin. Code s. ATCP 94.200 to reference the most current ASTM standards for fuel. This rule repeals the direct adoption of individual ASTM standards and flexibly permits new standards to be adopted and implemented more quickly. References throughout the rule to ASTM standards have been updated. In some cases, the new rule adopts phrasing directly from these and other national standards. NIST has announced that the 2020 edition will continue through 2021 due to the cancellation of the 2020 annual meeting of the National Conference on Weights and Measures. Creation of Definitions
This rule creates and expands definitions of important terms used throughout the chapter. The current ATCP 94 defines 12 terms; the new rule, if adopted, will define 35 terms. This rule adopts many definitions from NIST Handbook 130 and others that have been used throughout industry such as the Federal Trade Commission. Wisconsin definitions will therefore more closely match those adopted and used nationally. With the adoption of these definitions, it clarifies the understanding of the rule.
Petition for Variance and Fee Authority per Transfer from DSPS
This rule repeals now-outdated procedures and creates specific requirements for requesting a variance. This rule clarifies the fee requirement and authority to request a variance. This rule repeals outdated references to Wis. Admin. Code chs. SPS 302 and SPS 305, which set fees for a variety of DSPS services and established variance procedures for a variety of DSPS programs. The fees do not increase, but the fee authority now appears in a DATCP rule rather than a DSPS rule. The rule therefore makes DATCP less reliant on another agency’s rules and helps complete the transfer of the program to DATCP authority as required by 2013 Wisconsin Act 20. Water in Tanks
This rule updates limits for water in tanks of several fuel types to match the limits specified in Wis. Admin. Code s. ATCP 93.605 (1) (g), which DATCP promulgated in November 2019. In the future, by referring to another rule, it eliminates potential contradictions between the two administrative rules and requires no additional costs since the two standards match. E15 and E85
This rule defines E15, creates sections that address E15 specifications (Wis. Admin. Code s. ATCP 94.215) and E85 specifications (Wis. Admin. Code s. ATCP 94.270), and sets labeling and dispending requirements (Wis. Admin. Code s. ATCP 94.300) that government and industry have long wanted and DATCP has long needed to create.
Aviation Fuel and Racing Fuel
