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
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
