Records and documentation requirements have been clarified in two ways: one, by repealing and recreating Wis. Admin. Code s. ATCP 94.330, so the rule will concern only the department inspection records; two, by creating Wis. Admin. Code s. ATCP 94.340, which will concern records that must be kept by industry. Reid Vapor Pressure
The 1.0 PSI additional RVP allowance in finished fuels during the wintertime months (September 16 – May 31) will permit refineries to produce a consistent base fuel for higher ethanol finished fuel blends.
Other Changes
The proposed rule makes other minor clarifying and corrective changes, as well as typical stylistic changes that occur during rulemaking.
Since the department Board approved a joint scope statement for chs. ATCP 93 and ATCP 94 in September 2013, there has been an expectation that the two rules will be in harmony. The department promulgated the current ch. ATCP 93 in November 2019. The new ch. ATCP 94 harmonizes with changes previously adopted in ch. ATCP 93 so that the two will not conflict. The rule also makes changes based on new state or federal laws and guidelines. For instance, 2019 Wisconsin Act 64 created Wis. Stat. s. 168.105 to permit nozzles to dispense differing blends, and that statute 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
The federal Clean Air Act (CAA) authorizes the 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. To reduce the risk of ozone-related health problems, 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, which might contribute to ozone-related health problems.
42 U.S.C. s. 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 model year 2001 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. Therefore, his comments were considered in the drafting of the hearing rule but did not result in any changes to the scope statement.
The department held three public hearings on the draft rule in February 2022: in Madison on February 8, in Appleton on February 15, and a cyber hearing on February 22 from Madison. After the final hearing, the department held the written comment period open for three weeks until March 15, 2022.
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, the department 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 department Board for permission to hold public hearings on the draft hearing rule. On December 18, 2020, the department 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 were posted on the department website. The department received no comments to either.
However, in its own internal review, the department 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, the department Board approved a new scope statement at its July 22, 2021 meeting, doing so after the department held a June 10, 2021 public hearing on the new scope statement. The department again sent the rule and a redline version of the rule to its stakeholders on August 9, 2021, and received no informal comments. At the request of the Wisconsin Biofuels Association, the department staff met with them on September 14, 2021, to discuss the proposed hearing draft rule. Summary of Comments Received during Public Hearings and Comment Period
Due to the complexity of this rule, the department shared drafts of the proposed Wis. Admin. Code ch. ATCP 94 with numerous industry stakeholders prior to the November 18, 2021 Board approval to hold formal public hearings on the rule. The department stressed that the drafts were preliminary and subject to change both from internal and external input. The department pointed out that the ability to comment on these drafts would not circumvent any step or aspect of the formal rulemaking process specified in statute. The department emphasized that an opportunity to comment would continue up to and including this proposed order to adopt this rule. Consequently, the department received comments throughout its process, considered the suggested changes or requests for clarifications, made changes to the draft language based on stakeholder comments, and responded to the stakeholders before release of the public hearing draft rule. A redlined version was also sent to stakeholders with the draft rule.
The department received a number of comments from the Wisconsin Legislative Council Rules Clearinghouse and considered them.
The department held three hearings on the draft rule in February 2022:
Prairie Oaks State Office Building in Madison on February 8, 2022;
Outagamie County Courthouse in Appleton on February 15, 2022; and
Zoom Virtual Hearing headquartered out of Madison on February 22, 2022.After the final hearing, the department accepted formal written comments for an additional three weeks and closed the comment period on March 15, 2022. An internal committee considered all internal and external recommended changes.
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 was posted on the department website. The department received no comments.
Fiscal Estimate and Economic Impact Analysis
The Fiscal Estimate 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.
The department briefed the Small Business Regulatory Review Board on the rule at its March 20, 2022 meeting.
A complete regulatory flexibility analysis is attached.
The department’s Regulatory Review Coordinator may be contacted by:
Email at Bradford.Steine1@wisconsin.gov Telephone at (608) 224-5024 Standards Incorporated by Reference
This rule updates the ASTM standards incorporated by reference in Wis. Admin. Code s. ATCP 94.200 to reference the most current standards. This rule directly adopts individual ASTM standards at the time of approval by the DATCP Board. In some cases, the new rule adopts phrasing and definitions directly from these and other national standards. As required by Wis. Stat. ch. 227, consent has been received 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 the department and the Legislative Reference Bureau.
