Chapter ATCP 105

subch. III of ch. ATCP 105 Subchapter III — Motor Fuel Pricing

ATCP 105.21 ATCP 105.21 Calculating cost of motor fuel. For the purpose of calculating the cost of motor fuel under s. 100.30, Stats., the following terms have the following meanings:

ATCP 105.21(1) (1) “At the close of business on the determination date,” as used in s. 100.30 (2) (a), Stats., means the time at which the petroleum price reporting service no longer posts new price data.

ATCP 105.21 Note Note: As of May, 1998, this time was 4:00 p.m. eastern time for the largest petroleum price reporting service.

ATCP 105.21(2) (2) “Cost of doing business” means the allocation of all costs of a seller related to sales of motor vehicle fuel meeting all of the following requirements.

ATCP 105.21(2)(a) (a) Operating costs are allocated between sales of motor vehicle fuel and sales of all other products.

ATCP 105.21(2)(b) (b) Cost allocations are based on overall average sales of motor vehicle fuel.

ATCP 105.21(2)(c) (c) Marginal costs or decreasing costs for each additional gallon of fuel sold are excluded in calculating the cost of doing business.

ATCP 105.21(3) (3) “Terminal located closest to the retail station” or “terminal located closest to the retailer,” as used in s. 100.30 (2), Stats., means the closest terminal based on straight line distance, not road distance.

ATCP 105.21 History History: Cr., Register, May, 1999, No. 521, eff. 6-1-99; correction in (3) made under s. 35.17, Stats., Register May 2024 No. 821.

ATCP 105.22 ATCP 105.22 Unavailability of average posted terminal price for fuel sold. When calculating “cost to retailer” under s. 100.30 (2) (am) 1m., Stats., if an average posted terminal price for the specific grade of motor vehicle fuel sold by a retailer or retail station is unavailable from the terminal located closest to the seller, the seller shall use one of the following:

ATCP 105.22(1) (1) The average posted terminal price at the next closest terminal that is based upon the prices of 3 or more suppliers for the same grade of motor vehicle fuel sold, as required under s. 100.30 (2) (j), Stats.

ATCP 105.22(2) (2) The average posted terminal price at the closest terminal for a fuel which is most nearly similar in terms of octane rating and content to the motor vehicle fuel sold.

ATCP 105.22 History History: Cr., Register, May, 1999, No. 521, eff. 6-1-99.

ATCP 105.23 ATCP 105.23 Notice of price offered to meet competition. Except as provided in s. ATCP 105.009 (5) (c):

ATCP 105.23(1) (1) Time of notice. A person who purports to justify a motor fuel selling price by giving notice to the department under s. 100.30 (7), Stats., shall send that notice on the same day that the person lowers the price of motor fuel to that price. The person shall send the notice before the actual close of the person’s motor fuel selling business at the relevant location on that day or, if that business remains open for 24 hours a day, before the time at which the business day ends for accounting purposes.

ATCP 105.23 Note Note: Section 100.30 (7), Stats., only requires sellers of motor vehicle fuel to file a notice on the day that they lower their price to meet a competitor’s price. It is not necessary for a seller to provide notice on a day they did not change their price, even if they are selling motor vehicle fuel below cost in order to meet competition. The department recommends that sellers maintain daily price surveys [see s. ATCP 105.009 (3)], especially for days that they are selling motor vehicle fuel below cost, as defined in s. 100.30 (2), Stats.

ATCP 105.23(2) (2) Method of giving notice. A person giving notice to the department under s. 100.30 (7), Stats., shall give that notice in writing. The person shall give the written notice in one of the following ways:

ATCP 105.23(2)(a) (a) Electronically, by transmitting a facsimile to a receiving number specified by the department. Notice under this paragraph is rebuttably presumed to be timely under sub. (1) if the department receives it by midnight of the day on which the person is required to give the notice.

ATCP 105.23(2)(b) (b) Electronically, by transmitting an e-mail message to an e-mail address specified by the department. Notice under this paragraph is rebuttably presumed to be timely under sub. (1) if the department receives it by midnight of the day on which the person is required to give the notice.

ATCP 105.23(2)(bm) (bm) Electronically, by transmitting a web-based notification to a website specified by the department. Notice under this paragraph is presumed to be timely under sub. (1) if the department receives it by midnight of the day on which the person is required to give the notice, but this presumption may be rebutted.

ATCP 105.23(2)(c) (c) By United States mail, to a post office box number specified by the department. Notice under this paragraph is rebuttably presumed to be timely under sub. (1) if it is postmarked by midnight of the day on which the person is required to give the notice.

ATCP 105.23(2)(d) (d) By commercial courier delivery to the department’s headquarters. Notice under this paragraph is rebuttably presumed to be timely under sub. (1) if the commercial courier takes custody of the notice by midnight of the day on which the person is required to give the notice.

ATCP 105.23(2)(e) (e) By personal delivery to the department’s headquarters. Notice under this paragraph is rebuttably presumed to be timely under sub. (1) if it is delivered to the department’s headquarters by 4:30 p.m. of the day on which the person is required to give the notice.

ATCP 105.23(3) (3) Notice contents. A person giving notice under s. 100.30 (7), Stats., shall include all of the following in that notice:

ATCP 105.23(3)(a) (a) The person’s name, including any trade name under which the person sells motor fuel at the price which the notice purports to justify.

ATCP 105.23(3)(b) (b) The address and telephone number of each business location at which the person is offering motor fuel at the price which the notice purports to justify.

ATCP 105.23(3)(c) (c) The motor fuel selling price which the notice purports to justify, the effective date and time that the person established that selling price, and the identity and grade of motor fuel to which that selling price applies.

ATCP 105.23(3)(d) (d) The name of the competitor whose price the person is purporting to meet, and the address at which that competitor is offering that price.

ATCP 105.23(3)(e) (e) The competitor’s price which the person is purporting to meet, the relevant dates on which the competitor offered that price, and the identity and grade of motor fuel to which that price applies.

ATCP 105.23(4) (4) Falsified notice. A person giving notice under this section may not falsify any of the information contained in that notice. The person may not claim that a competitor offered a motor fuel selling price on a specified date at a specified address if the competitor was not open for business on that date at that address.

ATCP 105.23 Note Note: Section 100.30, Stats., prohibits sales of motor fuel below “cost” as defined in the statute. A seller may claim, as a defense, that the seller sold motor fuel below cost in order to meet the existing price of a competitor. Under s. 100.30 (7), Stats., a seller who wishes to establish a presumptive “meeting competition” defense must notify the department of the below-cost selling price on the day the seller offers that price to meet a competitor’s price. The seller must give notice “in the form and manner required by the department.” Section ATCP 105.23 spells out the “form and manner” in which a seller must give the required notice. Section ATCP 105.23 does not affect or replace s. ATCP 105.009.

ATCP 105.23 History History: Cr., Register, May, 1999, No. 521, eff. 6-1-99; cr. (intro.), Register, March, 2000, No. 531, eff. 4-1-00; CR 18-019: cr. (2) (bm) Register January 2020 No. 769, eff. 2-1-20; correction in (2) (bm) made under s. 35.17, Stats., Register January 2020 No. 769.