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Makes other minor updates and changes including corrections to outdated provisions.Standards Incorporated by Reference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 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. Creation of Definitions
This rule creates and expands definitions of important terms used throughout the chapter. The current ch. ATCP 94 defines 12 terms; the new rule, if adopted, will define 36 terms. This rule adopts many definitions from NIST Handbook 130 and others used throughout industry. Wisconsin definitions will therefore more closely match those adopted and used nationally. Adoption of these definitions clarifies the rule and thereby makes it easier to understand. 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This rule repeals now-outdated procedures and creates specific requirements for requesting a variance.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 This rule repeals outdated references to Wis.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 entirely in a department rule rather than in the department rule with a cross reference to a DSPS rule. The rule therefore is easier to understand and helps complete the transfer of the program to the department 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 the department promulgated in November 2019. Thus, the rule 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 and E85 (Wis. Admin. Code s. ATCP 94.120 (14) and (15)), 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 dispensing requirements (Wis. Admin. Code s. ATCP 94.300) that government and industry have long wanted. Aviation Fuel and Racing Fuel
In the current rule, the standards for aviation fuels are in Wis. Admin. Code s. ATCP 94.210 (2). In the new proposed rule, aviation fuel specifications are 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 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;
