DATCP Docket No. 21-R-06 Hearing Draft Rule
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.
