As part of its overall review of ch.
ATCP 60, the department will explore alternatives, consistent with the PMO, for conducting Grade A farm inspections more efficiently. The department will also re-evaluate rules that require progressive corrective actions to be taken by dairy producers. For example, the department will assess the adequacy of the current rule specifying a corrective action to be taken after the first milk sample yielding a positive drug residue result. The department may also evaluate whether ch.
ATCP 60 provides adequate milk safety regulatory oversight when cattle sold for slaughter by a dairy producer are found to contain drug residues. The department may propose rule changes addressing these topics, as needed.
Policy alternatives
FDA revises the PMO every two years and the department must periodically revise ch.
ATCP 60 to incorporate changes to ensure compliance with the PMO. If the department does not alter the current rule, the rule may not remain consistent with the PMO, which could eventually lead to problems when the FDA audits the Wisconsin dairy inspection program for compliance. A failing regulatory audit score could jeopardize the ability of Wisconsin dairy producers and plants to participate in the Grade “A" program and to maintain Wisconsin's reputation as the Dairy State. Current regulations may not be adequate for addressing emerging economic and food safety issues related to dairy farming. For example, maintaining the current SCC standard may result in many of the state's Grade “A" dairy producers trying to meet different SCC standards if they export Grade “A" dairy products to countries with a more stringent SCC standard than the one currently in place in ch.
ATCP 60. Without a rule revision, the department would continue trying to enforce rules that were designed for more traditional milking operations without consideration of innovative dairying practices such as robotic milking. Finally, if the current rules are not revised, the department may miss opportunities to improve the cost-effectiveness of on-site dairy farm inspections.
3. Statutory Authority for the Rule (Including the Statutory Citation and Language)
93.07 Department duties. It shall be the duty of the department:
(1) Regulations. To make and enforce such regulations, not inconsistent with law, as it may deem necessary for the exercise and discharge of all the powers and duties of the department, and to adopt such measures and make such regulations as are necessary and proper for the enforcement by the state of chs.
93 to
100, which regulations shall have the force of law.
97.09 Rules.
(4) The department may, by rule, establish and enforce standards governing the production, processing, packaging, labeling, transportation, storage, handling, display, sale, including retail sale, and distribution of foods that are needed to protect the public from the sale of adulterated or misbranded foods.
97.22 Milk producers.
(8) Rule making. The department may promulgate rules to establish the fees required under sub. (2) (b) or (4) (a) or to govern the operation of dairy farms by milk producers. The rules may include standards for any of the following:
(a) The safety, wholesomeness and quality of milk.
(b) The sanitary construction and maintenance of dairy farm facilities used in milk production.
(c) The availability of safe and adequate water supplies for milk production.
(d) The sanitary construction, maintenance and cleaning of equipment and utensils used in milk production.
(e) Personnel sanitation related to milk production.
(f) Sanitary procedures for the production of milk, including but not limited to the handling, transfer, and storage of milk on a dairy farm.
4. Estimate of the Amount of Time that State Employees Will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
DATCP estimates that it will use approximately 0.20 FTE staff to develop this rule. That includes time required for investigation and analysis, rule drafting, preparing related documents, holding public hearings, and communicating with affected stakeholders. DATCP will use existing staff to develop this rule.
5. Description of all Entities that may be Impacted by the Rule
Dairy producers and dairy plant operators will benefit from increased consistency of Wisconsin regulations with the PMO. Consumers and the department will benefit from greater cost-effectiveness in conducting on-site dairy farm inspections.
6. Summary and Preliminary Comparison of any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
The proposed rule makes ch.
ATCP 60 more consistent with the PMO. Although compliance with the PMO is technically a voluntary effort by state regulatory agencies, Wisconsin is periodically evaluated by the FDA for compliance with the PMO. Failure to pass the FDA audit would jeopardize the state's interstate and international dairy industry.
7. Anticipated Economic Impact
This rule change is anticipated to have no negative impact, but a positive economic impact for Wisconsin's dairy industry. In many respects, it will make Wisconsin's regulations consistent with practices in other states, including those elsewhere in the Upper Midwest which have adopted the latest version of the PMO by reference. The rule will not modify fees or have an economic impact on local governmental units or public utility taxpayers.
8. Contact Person
Steve Ingham, Division of Food Safety Administrator, DATCP
Phone: (608) 224-4701
Agriculture, Trade and Consumer Protection
This statement of scope was approved by the Governor on October 15, 2013.
Rule No.
Chapters ATCP 93 (existing as ch. SPS 310 — to be renumbered by LRB) and 94 (existing as ch. SPS 348 — to be renumbered by LRB); sections SPS 305.02, 305.06, 305.68, and 305.82 to 305.89, Wis. Adm. Code.
Relating to
Flammable, Combustible and Hazardous Liquids; and Petroleum and Other Liquid Fuel Products.
Rule Type
Permanent.
1. Description of the Objective of the Rule
1.1 Incorporating programs transferred from DSPS
With the enactment of
2013 Wisconsin Act 20 (the biannual budget bill), the state of Wisconsin transferred the
Flammable, Combustible and Hazardous Liquids program (“tanks inspection program") and
Petroleum and Other Liquid Fuel Products program (“petroleum inspection program") from the Department of Safety and Professional Services (“DSPS") to the Department of Agriculture, Trade and Consumer Protection (“DATCP"). Act 20 authorizes the transfer of existing administrative rules relating to these programs from DSPS to DATCP (with the approval of the Secretary of the Department of Administration). [See Section 9138, (2) (fm) and (4) (f).] The Legislative Reference Bureau will use its authority to renumber the affected rules from Chapters
SPS 310 and
348 to Chapters
ATCP 93 and
94.
Other aspects of the transfer must be addressed through administrative rulemaking. DATCP intends to initiate rule revisions to make technical and organizational changes to the portions of chs.
SPS 302 and
305 that relate specifically to the tanks and petroleum inspection programs. Chapters
SPS 302 and
305 also contain general administrative provisions (licensing, enforcement, etc.) that relate to a wide variety of DSPS regulatory programs. DATCP will consider incorporating similar provisions directly into Chs.
SPS 310 and
SPS 348 as necessary to administer the tanks and petroleum inspection programs. These changes will integrate the tanks and petroleum inspection programs into DATCP's other regulatory programs and will provide clarity to regulated industries.
1.2 Updating existing rule relating to tanks
Before these programs were transferred to DATCP (effective July 1, 2013), tanks inspection program staff and DSPS legal staff had been actively working on rule changes to SPS 310. The scope statement for this rulemaking was published in January, 2011. A working draft of a proposed rulemaking order has been transferred to DATCP. DATCP intends to evaluate and further develop this draft and incorporate many of the proposed changes into this rulemaking project. The proposed revisions would make numerous minor technical changes to the rule to make it more readable and practical. The proposed revisions would also bring the rule into alignment with current EPA standards and current generally accepted industry practices.
DATCP will also consider updating the fee structure for underground storage tank permits to conform to other DATCP licensing and permit programs. Currently, there is no financial penalty for tank operators who fail to file permit renewals by the annual expiration date. Many similar DATCP programs incorporate a late surcharge or other penalty.
1.3 Updating existing rule relating to petroleum and other liquid fuel products.
Chapter
SPS 348 incorporates by reference ASTM standards for fuel specifications and testing procedures. Many of the standards referenced in the current version of SPS 348 are from 2007 or 2008. DATCP will consider updating these references to more recent versions of the ASTM standards. The more recent standards for gasoline require gasoline to meet specifications after ethanol is mixed into the gasoline.
2. Description of Existing Policies Relevant to the Rule and of New Policies Proposed to be Included in the Rule and an Analysis of Policy Alternatives; the History, Background, and Justification for the Proposed Rule
History and background
During the 1980's and early 1990's, Wisconsin's tanks and petroleum inspection programs were housed within the Department of Industry Labor, and Human Relations (DILHR). These programs were transferred to the Department of Commerce (“Commerce") in 1996. They were transferred from Commerce to DSPS as part of the 2011-13 Biannual Budget (
2011 Wisconsin Act 32). Chapter
SPS 310 was previously titled chs. ILHR 10 and
Comm 10. Chapter
SPS 348 was previously titled chs. ILHR 48 and
Comm 48. In 2008, Commerce completed an extensive and comprehensive update to ch.
SPS 310 (which was ch.
Comm 10 at the time).
Proposed policies
DATCP will reorganize the rules to conform to other ATCP chapters of the administrative rules. Generally, each existing ATCP chapter consists of an individual program or subject matter, and is largely self-contained. In contrast, existing SPS chapters of the administrative code are organized by function as well as by subject matter. For example, a number of individual DSPS programs (including tank inspection and petroleum inspection) rely on ch.
SPS 302 to designate fee amounts, ch.
SPS 303 to establish administrative procedures, and ch.
SPS 305 to specify required licenses, certifications, and registrations. DATCP intends to reorganize chs.
SPS 310 and
348 to incorporate fees, enforcement provisions, licensing requirements, and other administrative topics directly into the chapters.
DATCP proposes to continue work begun by DSPS on a number of updates and revisions to ch.
SPS 310. These updates and revisions are, generally technical in nature, clarify existing requirements, or update requirements to conform to EPA requirements.
DATCP will also consider updating the fee structure for underground storage tank permits and reinspections to conform to other DATCP licensing and permit programs. Currently, there is no financial penalty for tank operators who fail to file permit renewals by the annual expiration date or tank operators who fail to fix relatively minor problems, thereby requiring inspectors to make multiple reinspection trips. Many similar DATCP programs incorporate surcharges or other penalties.
DATCP proposes to review ch.
SPS 348 and revise it as necessary to conform to recent industry practices and the latest nationally accepted fuel specifications and testing procedures (as published by ASTM International).
DATCP will also contemplate adapting by reference the engine fuel quality standards published in NIST Handbook 130. About 15 states (including Illinois but not Wisconsin's other neighbors) have adopted this model regulation.
Policy alternatives
Do nothing. If the department does not alter the structure of the existing rules, its authority to administer the tanks and petroleum inspection programs will continue to rely on a non-statutory provision (Section 9138) of
2013 Act 20. This would become increasingly impractical and confusing as time goes on.
If the department does not implement the numerous technical updates, the rule would be more difficult to understand than necessary, and remain inconsistent with the latest national standards.
3. Statutory Authority for the Rule (Including the Statutory Citation and Language)
168.04 Standards. (1) The department by rule shall prescribe minimum product grade specifications for gasoline, automotive gasoline, gasoline-alcohol fuel blends, reformulated gasoline, as defined in s.
285.37 (1), and kerosene and may prescribe product grade specifications for aviation gasoline, fuel oils, and diesel fuel.
(2) (a) Except as provided in par. (b), the rules required under sub. (1) shall prohibit gasoline, automotive gasoline, gasoline-alcohol fuel blends, and reformulated gasoline, as defined in s.
285.37 (1), beginning on August 1, 2004, from containing more than 0.5%, by volume, of methyl tertiary-butyl ether.
(b) The rules required under sub. (1) shall not prohibit racing fuel used at racing events or in preparation for racing events from containing any amount of methyl tertiary-butyl ether.
(3) Except as otherwise provided in this section, rules promulgated under this section shall be in conformity with nationally recognized standards, specifications, and classifications, such as those published by the American Society for Testing and Materials, the Society of Automotive Engineers, and the U.S. Environmental Protection Agency. The department may not promulgate or enforce a rule prohibiting the placement of additional information on the dispensing device.
168.16 (4) The department may promulgate reasonable rules relating to the administration and enforcement of this subchapter.
168.23 Rules. (1) The department shall promulgate by rule construction, maintenance and abandonment standards applicable to tanks for the storage, handling or use of liquids that are flammable or combustible or are federally regulated hazardous substances, and to the property and facilities where the tanks are located, for the purpose of protecting the waters of the state from harm due to contamination by liquids that are flammable or combustible or are federally regulated hazardous substances. The rule shall comply with ch.
160. The rule may include different standards for new and existing tanks, but all standards shall provide substantially similar protection for the waters of the state. The rule shall include maintenance requirements related to the detection and prevention of leaks. The rule may require any person supplying heating oil to any noncommercial storage tank for consumptive use on the premises to submit to the department, within 30 days after the department requests, the location, contents and size of any such tank.
(2) The department may transfer any information which the department receives under sub. (1) to any other agency or governmental unit. The department and any such agency shall treat the name of the owner and the location of any noncommercial storage tank which stores heating oil for consumptive use on the premises, required to be submitted to the department under sub. (1), as confidential and shall not permit inspection or copying under s.
19.35 of any record containing the information.
(3) The rule promulgated under sub. (1) may require the certification or registration of persons who install, remove, clean, line, perform tightness testing on and inspect tanks and persons who perform site assessments. Any rule requiring certification or registration shall also authorize the revocation or suspension of the certification or registration. The department may not require an individual who is eligible for the veterans fee waiver program under s.
45.44 to pay any fee that may be charged pursuant to such a rule.
(4) The department shall promulgate a rule specifying fees for plan review and inspection of tanks for the storage, handling, or use of flammable or combustible liquids and for any certification or registration required under sub. (3).
(5) (a) Subject to par. (b), in addition to any fee charged by the department by rule for plan review and approval for the construction of a new or additional installation or change in operation of a previously approved installation for the storage, handling or use of a liquid that is flammable or combustible or a federally regulated hazardous substance, as defined in s.
168.21 (3), the department shall collect a groundwater fee of $100 for each plan review submittal. The moneys collected under this subsection shall be credited to the environmental fund for environmental management.
(b) Notwithstanding par. (a), an installation for the storage, handling or use of a liquid that is flammable or combustible or a federally regulated hazardous substance, as defined in s.
168.21 (3), that has a capacity of less than 1,000 gallons is not subject to the groundwater fee under par. (a).
168.28 (2) Inventory of storage tanks. The department shall undertake a program to inventory and determine the location of aboveground storage tanks and underground storage tanks. The department may require its deputies and any person engaged in the business of distributing petroleum products to provide information on the location of aboveground storage tanks and underground storage tanks.
4. Estimate of the Amount of Time that State Employees Will Spend to Develop the Rule and of Other Resources Necessary to Develop the Rule
DATCP estimates that it will use approximately 0.50 FTE staff to develop this rule. That includes time required for investigation and analysis, rule drafting, preparing related documents, coordinating advisory committee meetings, holding public hearing,s and communicating with affected persons and groups. DATCP will use existing staff to develop this rule.
5. Description of all Entities that may be Impacted by the Rule
Businesses that design, install, inspect, or operate storage tank systems for flammable, combustible, or hazardous liquids may be impacted by this rule. This may include retail gasoline stations, fuel wholesalers or distributors, fleet operators, or farmers. It also may include petroleum equipment service companies and fire prevention inspectors.
This rule may also impact businesses that sell or distribute petroleum and other liquid fuel products; either at wholesale or retail. It may also impact businesses that manufacture, sell or distribute chemical liquids regulated under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). These businesses are already regulated under the existing rule, but there may be minor changes to the specific requirements.
If DATCP adopts the model regulations published in NIST Handbook 130, businesses that sell or distribute engine lubricants may be impacted. The current rule contains technical specifications and requirements for fuel, but not lubricant. The NIST Handbook 130 contains specifications for lubricants.
6. Summary and Preliminary Comparison of any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Rule
Federal regulations for aboveground storage tanks do not address fire and public safety issues or groundwater pollution issues, except for protecting potable water supply sources. Federal regulations for underground storage tanks do not address fire and public safety issues or surface water pollution issues, except for protecting potable water supply sources. The planned rule changes are not expected to conflict with these federal regulations.
The EPA regulates standards for gasoline in a number of ways. EPA regulates the amount of sulfur in gasoline and certain toxic substances that can be emitted when fuel is burned. EPA also mandates reformulated gasoline (RFG) in certain metropolitan areas. EPA also mandates that fuels sold during the summer meet certain Reid vapor pressure standards to reduce emissions that contribute to smog.
7. Anticipated Economic Impact
The proposed rule may have moderate economic impact statewide and locally. The majority of the proposed rule is limited to updating and reorganizing provisions in the current rule and therefore would have a minimal economic impact — if any at all. However, adopting more recent fuel quality standards may have a moderate economic impact on certain businesses within the petroleum industry.
8. Contact Person
Kevin LeRoy, Program and Policy Analyst, DATCP
Phone: (608) 224-4928
Safety and Professional Services
