DATCP Docket: 25-R-05
Clearinghouse Rule:
Preliminary Rule Draft
May 8, 2025
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 an order to amend ATCP 92.01 (10h) and (Note); and to create ATCP 92.01 (5m) relating to weights and measures and affecting small business.
_Toc20021611Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection Statutes Interpreted:
Statutory Authority:
Explanation of Agency Authority
Wisconsin Stat. s. 98.03 (2) states, “The department may issue rules governing the construction, installation, and use of commercial weights and measures and prescribing tolerances therefor. The specifications, tolerances, and regulations for commercial weighing and measuring devices issued by the national institute of standards and technology shall apply in this state except as modified by such rules or by statute.” Wisconsin Stat. s. 98.07 (4) provides, “In order to prevent consumer deception, the department shall prescribe, by rule, standards for determining and declaring weight, measure or count, including the conspicuousness of quantity declarations.” The Wisconsin Department of Agriculture, Trade and Consumer Protection (department) currently regulates electric vehicle (EV) charging stations as timing devices per Wis. Admin. Code ch. ATCP 92 and adopted standards in NIST Handbook 44. A change to the statutory definition of the term “public utility” means the department must expand its regulation of such devices to include the sale of electricity by kilowatt-hours. Related Statutes and Rules
Wisconsin Stat. ch. 77, Subchapter XIII: Electric Vehicle Charging Tax
The Wisconsin Department of Revenue collects an excise tax of 3 cents per kilowatt-hour (kWh), imposed on electricity delivered from an electric vehicle charging station into the battery or other energy storage device of an electric vehicle. This tax excludes chargers in residential homes. Wisconsin law on weights and measures is set forth in Wis. Stat. ch. 98 and in Wis. Admin. Code chs. ATCP 90, 91, and 92. Plain Language Analysis
The department proposes to amend Wis. Admin. Code ch. ATCP 92 to include regulatory standards for commercial electric vehicle charging stations as weights and measures devices. Until recently, Wisconsin statutes did not permit the department to adopt and enforce commercial weights and measures device regulations on the sale of electricity by kWh due to the devices being considered a public utility under state law. 2023 Wisconsin Act 121, s. 9 created Wis. Stat. s. 196.01 (5) (b) 8. effective March 22, 2024. Under Wis. Stat. s. 196.01 (5) (b) 8., the term "public utility" does not include a person who supplies electricity through electric vehicle charging stations to charge electric vehicles and charges a fee based on the amount of kWh of electricity consumed, provided that is the only electricity the person sells to the public and the person only sells electricity received as a retail customer of a public utility or retail electric cooperative. As a result, meters for measuring the amount of electricity consumed at such devices now fall within the Wis. Stat. s. 98.01 (7) definition of "weights and measures" and are subject to Wis. Stat. ch. 98 and the rules promulgated thereunder. The department’s Bureau of Weights and Measures is responsible for monitoring the accuracy of gas pumps, price scanners, scales, package weights, and other commercial weights and measures devices statewide to ensure a fair and balanced marketplace, as well as ensuring that consumers receive what they pay for. Wisconsin Admin. Code ch. ATCP 92 helps to achieve that by adopting the National Institute of Standards and Technology (NIST) Handbook 44, Specifications, Tolerances and Other Technical Requirements for Weighing and Measuring Devices. Wisconsin Stat. s. 98.03 (2) states, “The department may issue rules governing the construction, installation, and use of commercial weights and measures and prescribing tolerances therefor. The specifications, tolerances, and regulations for commercial weighing and measuring devices issued by the national institute of standards and technology shall apply in this state except as modified by such rules or by statute.” _Hlk191571080Wisconsin Stat. s. 98.07 (4) provides, “In order to prevent consumer deception, the department shall prescribe, by rule, standards for determining and declaring weight, measure or count, including the conspicuousness of quantity declarations.” This rule makes two meaningful revisions to Wis. Admin. Code ch. 92: — incorporates section 3.40. Electric Vehicle Fueling Systems of the NIST Handbook 44 (2024 edition) into rule, repealing previous language that specifically excluded section 3.40; and
— includes definitions related to the inclusion of electric vehicle charging stations as a weights and measures device.
Incorporating section 3.40. Electric Vehicle Fueling Systems of the NIST Handbook 44 (2024 edition) provides a nationally recognized framework for electric vehicle supply equipment (EVSE) maintenance, operation, and regulation within the state of Wisconsin.
Presently, Wis. Admin. Code ch. ATCP 92 adopts NIST Handbook 44 (2024 edition) except for Section 3.40. Electric Vehicle Fueling Systems. This rulemaking effort focuses on adoption of standards and regulatory framework for electric vehicle charging infrastructure and looks to adopt NIST Handbook 44 (2024 edition) in whole. Definitions
The addition of EVSE as a weights and measures device requires an additional definition within Wis. Admin. Code s. ATCP 92.01 for Electric Vehicle Supply Equipment (EVSE). The inclusion of this definition provides greater clarity to Wis. Admin. Code ch. ATCP 92 while not affecting the non-EVSE aspects of the chapter. — Electric Vehicle Supply Equipment or EVSE means a device or system designed and used specifically to transfer electrical energy to an electric vehicle, either as charge transferred via physical or wireless connection, by loading a fully charged battery, or by other means. That definition mirrors the definition in Appendix D. Definitions in NIST Handbook 44 (2024 edition).
Additionally, a change to existing definition of NIST Handbook 44 in 92.01 (10h) to:
— “NIST Handbook 44” means NIST Handbook 44 (2024 edition) published by the National Institute of Standards and Technology, United States department of commerce.
Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations
2023 Wisconsin Act 121, s. 9 created Wis. Stat. s. 196.01 (5) (b) 8. effective March 22, 2024. Under the newly created Wis. Stat. s. 196.01 (5) (b) 8., the term "public utility" does not include a person who supplies electricity through the person's EVSE to fuel electric vehicles and imposes a fee that is based on the amount of kilowatt-hours of electricity consumed, provided that is the only electricity the person sells to the public and the person only sells electricity received as a retail customer of a public utility or retail electric cooperative. Because a person who operates any such EVSE is not a "public utility" per Wis. Stat. s. 196.01 (5) (b) 8., the meter for measuring the amount of kilowatt-hours consumed by a purchaser at such a charging station now falls within the Wis. Stat. s. 98.01 (7) definition of "weights and measures" devices subject to Wis. Stat. ch. 98. Therefore, under Wis. Stat. s. 98.07 (4), to prevent consumer deception, the department must prescribe, by rule, standards for determining and declaring the measure of kWh of electricity consumed at such EVSE, including the conspicuousness of quantity declarations.
