WSR 09-15-178

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed July 22, 2009, 7:49 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 09-10-037.

Title of Rule and Other Identifying Information: Chapter 16-662 WAC, Weights and measures -- National handbooks, the department is proposing to adopt:

(1) The 2009 edition of the National Institute of Standards and Technology (NIST) Handbook 44 (Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices) as required by RCW 19.94.195;

(2) The 2009 edition of NIST Handbook 130 (Uniform Laws and Regulations in the Areas of Legal Metrology and Engine Fuel Quality);

(3) Modifications to the multi-tier pricing requirements specified in NIST Handbook 44 relative to motor fuels; and

(4) Clarifications to currently existing state retail dispenser labeling requirements for lower blends of biodiesel, so that the rule remains understandable in the context of recent organizational changes in the latest version of NIST Handbook 130.

Hearing Location(s): Washington State Department of Agriculture, Natural Resources Building, Conference Room 271, 1111 Washington Street S.E., Olympia, WA 98504-2560, on August 27, 2009, at 3:00 p.m.

Date of Intended Adoption: September 3, 2009.

Submit Written Comments to: Henri Gonzales, P.O. Box 42560, Olympia, WA 98504-2560, e-mail hgonzales@agr.wa.gov, fax (360) 902-2094, by August 27, 2009.

Assistance for Persons with Disabilities: Contact Henri Gonzales by August 20, 2009, TTY (800) 833-6388.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is proposing to adopt the most recent version of NIST Handbook 44 and 130, modifications to the multi-tier pricing requirements specified in NIST Handbook 44, and clarification of the retail dispenser labeling requirements relative to lower blends of biodiesel specified in NIST Handbook 130.

Reasons Supporting Proposal: Multi-tier pricing of motor fuels means the fuel is offered for sale at more than one unit price, depending on the payment method the consumer uses. The requirements for multi-tier pricing of motor fuels are outlined in NIST Handbook 44. These requirements no longer meet the needs of retail fuel establishments in this state. The department is proposing to adopt new modifications to NIST Handbook 44 that would allow fuel retailers and customers more flexibility in method of payment.

RCW 19.112.020 requires fuel pumps offering biodiesel to be labeled with the blend percentage. The department adopts the requirements outlined in NIST Handbook 130 regarding labeling, with the exception of existing modifications to the handbook to comply with state law relative to lower percentage blends of biodiesel. The proposed amendments clarify the existing rule.

RCW 19.94.195 requires that the most current version of NIST Handbook 44 be adopted every year. The department also adopts the current version of NIST Handbook 130 and NIST Handbook 133 in order to maintain uniformity with other states. The currently adopted edition (January 2005) of NIST Handbook 133 (Checking the Net Contents of Packaged Goods) remains the most current.

Statutory Authority for Adoption: Chapters 19.94, 19.112, and 34.05 RCW.

Statute Being Implemented: Chapters 19.94 and 19.112 RCW.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Washington state department of agriculture, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Kirk Robinson, 1111 Washington Street, Olympia, WA 98504-2560, (360) 902-1856.

No small business economic impact statement has been prepared under chapter 19.85 RCW. RCW 19.85.030 (1)(a) requires that an agency must prepare a small business economic impact statement (SBEIS) for proposed rules that impose a more than minor cost on small businesses in an industry. Analysis of the economic effects of the proposed rule amendments demonstrate that the changes will not be more than a minor cost to the regulated industry and, therefore, an SBEIS is not required.

A cost-benefit analysis is not required under RCW 34.05.328. The Washington state department of agriculture is not a listed agency under RCW 34.05.328 (5)(a)(i).

July 22, 2009

Mary A. Martin Toohey

Assistant Director

OTS-2566.1


AMENDATORY SECTION(Amending WSR 07-05-083, filed 2/21/07, effective 3/24/07)

WAC 16-662-100   What is the purpose of this chapter?   (1) This chapter establishes requirements for the state of Washington that are reasonably consistent with the uniform rules adopted by the National Conference on Weights and Measures and that are in effect in other states.

(2) This chapter applies specifically to the:

(a) Uniform specifications, tolerances and other technical requirements for weighing and measuring devices addressed in the National Institute of Standards and Technology (NIST) NIST Handbook 44;

(b) Uniform procedures for checking the net contents of packaged goods addressed in NIST Handbook 133;

(c) Uniform packaging and labeling regulation addressed in NIST Handbook 130;

(d) Uniform regulation for the method of sale of commodities addressed in NIST Handbook 130;

(e) Uniform examination procedure for price verification addressed in NIST Handbook 130; and

(f) Engine fuels, petroleum products, and automotive lubricants regulation addressed in NIST Handbook 130.

(3)(a) NIST Handbook 44, NIST Handbook 130 and NIST Handbook 133, may be purchased from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402. They are also available on the National Institute of Standards and Technology web site at ((http://ts.nist.gov/ts/htdocs/230/235/owmhome.htm)) http://ts.nist.gov/WeightsAndMeasures/index.cfm.

(b) For information regarding the contents and application of these publications, contact the weights and measures program at the Washington State Department of Agriculture, P.O. Box 42560, Olympia, Washington 98504-2560, telephone number 360-902-1857, or e-mail wtsmeasures@agr.wa.gov.

[Statutory Authority: Chapters 19.112 and 34.05 RCW. 07-05-083, 16-662-100, filed 2/21/07, effective 3/24/07. Statutory Authority: Chapters 19.94 and 34.05 RCW. 05-10-088, 16-662-100, filed 5/4/05, effective 6/4/05; 03-08-017, 16-662-100, filed 3/25/03, effective 4/25/03. Statutory Authority: Chapter 19.94 RCW. 97-12-075, 16-662-100, filed 6/4/97, effective 7/5/97.]


AMENDATORY SECTION(Amending WSR 08-05-007, filed 2/7/08, effective 3/9/08)

WAC 16-662-105   What national weights and measures standards are adopted by the Washington state department of agriculture (WSDA)?   The WSDA adopts the following national standards:


National standard for: Contained in the:
(1) The specifications, tolerances, and other technical requirements for the design, manufacture, installation, performance test, and use of weighing and measuring equipment ((2008)) 2009 Edition of NIST Handbook 44 - Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices
(2) The procedures for checking the accuracy of the net contents of packaged goods Fourth Edition (January 2005) of NIST Handbook 133 - Checking the Net Contents of Packaged Goods
(3) The requirements for packaging and labeling, method of sale of commodities, examination procedures for price verification, and engine fuels, petroleum products and automotive lubricants ((2008)) 2009 Edition of NIST Handbook 130 - Uniform Laws and Regulations in the areas of legal metrology and engine fuel quality, specifically:
(a) Weights and measures requirements for all food and nonfood commodities in package form Uniform Packaging and Labeling Regulationas adopted by the National Conference on Weights and Measures and published in NIST Handbook 130, ((2008)) 2009 Edition
(b) Weights and measures requirements for the method of sale of food and nonfood commodities Uniform Regulation for the Method of Sale of Commodities as adopted by the National Conference on Weights and Measures and published in NIST Handbook 130, ((2008)) 2009 Edition
(c) Weights and measures requirements for price verification Examination Procedure for Price Verification as adopted by the National Conference on Weights and Measures and published in NIST Handbook 130, ((2008)) 2009 Edition
(d) Definitions and requirements for standard fuel specifications; classification and method of sale of petroleum products; retail storage tanks and dispenser filters; condemned product((s)); product registration; and test methods and reproducibility limits Uniform Engine Fuels((, Petroleum Products,)) and Automotive Lubricants Regulation as adopted by the National Conference on Weights and Measures and published in NIST Handbook 130, ((2008)) 2009 Edition

[Statutory Authority: Chapters 19.94 and 34.05 RCW. 08-05-007, 16-662-105, filed 2/7/08, effective 3/9/08. Statutory Authority: Chapters 19.112 and 34.05 RCW. 07-05-083, 16-662-105, filed 2/21/07, effective 3/24/07. Statutory Authority: Chapters 19.94 and 34.05 RCW. 07-01-115A, 16-662-105, filed 12/20/06, effective 1/20/07; 06-08-102, 16-662-105, filed 4/5/06, effective 5/6/06; 05-10-088, 16-662-105, filed 5/4/05, effective 6/4/05; 04-12-025, 16-662-105, filed 5/26/04, effective 6/26/04; 03-08-017, 16-662-105, filed 3/25/03, effective 4/25/03. Statutory Authority: Chapter 19.94 RCW. 02-12-029, 16-662-105, filed 5/29/02, effective 6/29/02. Statutory Authority: RCW 19.94.195. 01-16-005, 16-662-105, filed 7/19/01, effective 8/19/01; 00-14-005, 16-662-105, filed 6/23/00, effective 7/24/00; 99-07-056, 16-662-105, filed 3/16/99, effective 4/16/99; 98-13-072, 16-662-105, filed 6/15/98, effective 7/16/98. Statutory Authority: Chapter 19.94 RCW. 97-12-075, 16-662-105, filed 6/4/97, effective 7/5/97.]


AMENDATORY SECTION(Amending WSR 07-01-115A, filed 12/20/06, effective 1/20/07)

WAC 16-662-110   Does the WSDA modify NIST Handbook 44?   The WSDA adopts the following modifications to NIST Handbook 44, which is identified in WAC 16-662-105(1):


Modified Section: Modification:
General Code: Section G-UR.4.1. Maintenance of Equipment In the last sentence of G-UR.4.1., Maintenance of Equipment, change the words "device user" to "device owner or operator." As a result of this modification, the last sentence of G-UR.4.1. will read:
"Equipment in service at a single place of business found to be in error predominantly in a direction favorable to the device owner or operator shall not be considered "maintained in a proper operating condition.""
Liquid-Measuring Devices: Section S.1.6.4.1. Unit Price Modify subsection (b) under section S.1.6.4.1. Unit Price, to read: Whenever a grade, brand, blend, or mixture is offered for sale from a device at more than one unit price, then all of the unit prices at which that product is offered for sale shall be displayed or shall be capable of being displayed on the dispenser using controls available to the consumer prior to the delivery of the product or after prepayment for the product but prior to its delivery. It is not necessary that all of the unit prices for all grades, brands, blends, or mixtures be simultaneously displayed prior to the delivery of the product. This subsection shall not apply to fleet sales, other contract sales, or truck refueling sales (e.g., sales from dispensers used to refuel trucks).

[Statutory Authority: Chapters 19.94 and 34.05 RCW. 07-01-115A, 16-662-110, filed 12/20/06, effective 1/20/07; 05-10-088, 16-662-110, filed 5/4/05, effective 6/4/05; 03-08-017, 16-662-110, filed 3/25/03, effective 4/25/03. Statutory Authority: RCW 19.94.195. 01-16-005, 16-662-110, filed 7/19/01, effective 8/19/01; 99-07-056, 16-662-110, filed 3/16/99, effective 4/16/99. Statutory Authority: Chapter 19.94 RCW. 97-12-075, 16-662-110, filed 6/4/97, effective 7/5/97.]


AMENDATORY SECTION(Amending WSR 07-05-083, filed 2/21/07, effective 3/24/07)

WAC 16-662-115   Does the WSDA modify NIST Handbook 130?   The WSDA adopts the following modifications to the Uniform Regulation for the Method of Sale of Commodities requirements published in NIST Handbook 130, identified in WAC 16-662-105 (3)(b):


Modified Section: Modification:
(1) Section 2.20. Gasoline-Oxygenate Blends Modify section 2.20.1. Method of Retail Sale ((-)). Type of Oxygenate must be Disclosed, to read: All automotive gasoline or automotive gasoline-oxygenate blends kept, offered, or exposed for sale, or sold at retail containing at least 1.5 mass percent oxygen shall be identified as "with" or "containing" (or similar wording) the predominant oxygenate in the engine fuel. For example, the label may read "contains ethanol." The oxygenate contributing the largest mass percent oxygen to the blend shall be considered the predominant oxygenate. Where mixtures of only ethers are present, the retailer may post the predominant oxygenate followed by the phrase "or other ethers." In addition, gasoline-methanol blend fuels containing more than 0.15 mass percent oxygen from methanol shall be identified as "with" or "containing" methanol. This information shall be posted on the upper fifty percent of the dispenser front panel in a position clear and conspicuous from the driver's position in a type at least 12.7 mm (1/2 in.) in height, 1.5 mm (1/16 in.) stroke (width of type). Methanol at one percent or greater, by volume, in gasoline for use as motor vehicle fuel must be labeled with the maximum percentage of methanol contained in the motor vehicle fuel. Ethanol at no less than one percent and no more than ten percent, by volume, must be labeled "Contains up to 10% Ethanol." Ethanol at greater than ten percent by volume must be labeled with the capital letter E followed by the numerical value volume percent denatured ethanol and ending with the word "ethanol." (Example: E85 Ethanol.)
Modify section 2.20.2. Documentation for Dispenser Labeling Purposes, to read: At the time of delivery of the fuel, the retailer shall be provided, on an invoice, bill of lading, shipping paper, or other documentation a declaration of the predominant oxygenate or combination of oxygenates present in concentrations sufficient to yield an oxygen content of at least 1.5 mass percent in the fuel. Where mixtures of only ethers are present, the fuel supplier may identify the predominant oxygenate in the fuel (i.e., the oxygenate contributing the largest mass percent oxygen). In addition, any gasoline containing more than 0.15 mass percent oxygen from methanol shall be identified as "with" or "containing" methanol. This documentation is only for dispenser labeling purposes; it is the responsibility of any potential blender to determine the total oxygen content of the engine fuel before blending. When ethanol and/or methanol is blended at one percent or greater, by volume, in gasoline for use as motor vehicle fuel, documentation must include the volumetric percentage of ethanol and/or methanol.
(2) Section 2.23. Animal Bedding Add a new subsection((,)) which reads: 2.23.1. Sawdust, Barkdust, Decorative Wood Particles, and Similar Products. As used in this subsection, "unit" means a standard volume equal to 200 cubic feet. When advertised, offered for sale, or sold within Washington state, quantity representations for sawdust, barkdust, decorative wood particles, and similar loose bulk materials must be in cubic measures or units and fractions thereof.
(3) Section 2.31.2 Labeling of Retail Dispensers Add a new subsection which reads: 2.31.2.5. Labeling of Retail Dispensers Containing Not More Than 5% Biodiesel. Each retail dispenser of biodiesel or biodiesel blend containing not less than two percent and not more than five percent biodiesel must be labeled "Contains up to 5% Biodiesel." Retail dispensers containing less than two percent biodiesel may not be labeled as dispensing biodiesel or biodiesel blends.
Add a new subsection which reads: 2.31.2.6. Labeling of Retail Dispensers Containing More Than 5% Biodiesel. Each retail dispenser of biodiesel or biodiesel blend containing more than five percent biodiesel must be labeled with the capital letter B followed by the numerical value representing the volume percentage of biodiesel fuel and ending with either "biodiesel" or "biodiesel blend" (examples: B100 Biodiesel; B60 Biodiesel Blend).
(4) Section 2.31.4. Exemption Delete section 2.31.4.

The WSDA adopts the following modifications to the Uniform Engine Fuels((, Petroleum Products,)) and Automotive Lubricants Regulation requirements published in NIST Handbook 130, identified in WAC 16-662-105 (3)(d):


Modified Section: Modification:
(1) Section 2.12. Motor Oil Delete section 2.12.
(2) Section 2.13. Products for Use in Lubricating Manual Transmissions, Gears, or Axles Delete section 2.13.
(3) Section 2.14. Products for Use in Lubricating Automatic Transmissions Delete section 2.14.
(4) Section 3.2.6. Method of Retail Sale. Type of Oxygenate must be Disclosed Modify section 3.2.6 to read: All automotive gasoline or automotive gasoline-oxygenate blends kept, offered, or exposed for sale, or sold at retail containing at least 1.5 mass percent oxygen shall be identified as "with" or "containing" (or similar wording) the predominant oxygenate in the engine fuel. For example, the label may read "contains ethanol." The oxygenate contributing the largest mass percent oxygen to the blend shall be considered the predominant oxygenate. Where mixtures of only ethers are present, the retailer may post the predominant oxygenate followed by the phrase "or other ethers." In addition, gasoline-methanol blend fuels containing more than 0.15 mass percent oxygen from methanol shall be identified as "with" or "containing" methanol. This information shall be posted on the upper fifty percent of the dispenser front panel in a position clear and conspicuous from the driver's position in a type at least 12.7 mm (1/2 in.) in height, 1.5 mm (1/16 in.) stroke (width of type). Methanol at one percent or greater, by volume, in gasoline for use as motor vehicle fuel must be labeled with the maximum percentage of methanol contained in the motor vehicle fuel. Ethanol at no less than one percent and no more than ten percent, by volume, must be labeled "Contains up to 10% Ethanol." Ethanol at greater than ten percent by volume must be labeled with the capital letter E followed by the numerical value volume percent denatured ethanol and ending with the word "ethanol" (example: E85 Ethanol).
(5) Section 3.2.7. Documentation for Dispenser Labeling Purposes Modify section 3.2.7 to read: The retailer shall be provided, at the time of delivery of the fuel, on an invoice, bill of lading, shipping paper, or other documentation, a declaration of the predominant oxygenate or combination of oxygenates present in concentrations sufficient to yield an oxygen content of at least 1.5 mass percent in the fuel. Where mixtures of only ethers are present, the fuel supplier may identify the predominant oxygenate in the fuel (i.e., the oxygenate contributing the largest mass percent oxygen). In addition, any gasoline containing more than 0.15 mass percent oxygen from methanol shall be identified as "with" or "containing" methanol. This documentation is only for dispenser labeling purposes; it is the responsibility of any potential blender to determine the total oxygen content of the engine fuel before blending. When ethanol and/or methanol is blended at one percent or greater, by volume, in gasoline for use as motor vehicle fuel, documentation must include the volumetric percentage of ethanol and/or methanol.
(6) Section 3.8.2. ((Retail Dispenser)) Labeling Requirements ((Modify section 3.8.2 to read: Each retail dispenser of not less than one percent and not more than ten percent, by volume, fuel ethanol must be labeled "Contains up to 10% Ethanol.")) Add a new subsection which reads: (c) Each retail dispenser of greater than ten percent fuel ethanol by volume must be labeled with the capital letter E followed by the numerical value volume percent denatured ethanol and ending with the word "ethanol" (example: E85 Ethanol).
(7) Section 3.9.2. Retail Dispenser Labeling ((Modify section 3.9.2 to read:)) Add a new subsection which reads: (c) Each retail dispenser of fuel methanol shall be labeled by the capital letter M followed by the numerical value maximum volume percent and ending with the word "methanol." (Example: M85 Methanol.)
(8) Section 3.13. Oil Delete section 3.13.
(9) Section 3.14. Automatic Transmission Fluid Delete section 3.14.
(10) Section 3.15.2. Labeling of Retail Dispensers ((Containing between 5% and 20% Biodiesel)) ((Modify section 3.15.2 to read: 3.15.2.)) Add a new subsection which reads: 3.15.2.5. Labeling of Retail Dispensers Containing Not More Than 5% Biodiesel. Each retail dispenser of biodiesel blend containing not less than two percent and not more than five percent biodiesel must be labeled "Contains up to 5% Biodiesel." ((3.15.2.1.)) Retail dispensers containing less than two percent biodiesel may not be labeled as dispensing biodiesel or biodiesel blends.

((Delete section 3.15.2.2.))

Add a new subsection which reads: 3.15.2.6. Labeling of Retail Dispensers Containing More Than 5% Biodiesel. Each retail dispenser of biodiesel or biodiesel blend containing more than five percent biodiesel must be labeled with the capital letter B followed by the numerical value representing the volume percentage of biodiesel fuel and ending with either "biodiesel" or "biodiesel blend" (examples: B100 Biodiesel; B60 Biodiesel blend).
(((11) Section 3.15.3. Labeling of Retail Dispensers Containing more than 20% Biodiesel Modify section 3.15.3 to read: 3.15.3. Labeling of Retail Dispensers Containing More Than 5% Biodiesel. Each retail dispenser of biodiesel or biodiesel blend containing more than five percent biodiesel must be labeled with the capital letter B followed by the numerical value representing the volume percentage of biodiesel fuel and ending with either "biodiesel" or "biodiesel blend" (examples: B100 Biodiesel; B60 Biodiesel blend).))
(((12))) (11) Section ((3.15.5)) 3.15.4. Exemption Delete section ((3.15.5)) 3.15.4.
(((13))) (12) Section 7. Test Methods and Reproducibility Limits Add a new subsection ((that)) which reads: 7.3. Biodiesel Blends ((-)). The test method for determining the percent biodiesel in a blend of biodiesel and diesel fuel shall be EN 14078 "Liquid petroleum products - Determination of fatty methyl esters (FAME) in middle distillates - Infrared spectroscopy method." When ASTM develops a comparable standard test method, the ASTM method will become the standard method for purposes of this rule.

[Statutory Authority: Chapters 19.112 and 34.05 RCW. 07-05-083, 16-662-115, filed 2/21/07, effective 3/24/07. Statutory Authority: Chapters 19.94 and 34.05 RCW. 05-10-088, 16-662-115, filed 5/4/05, effective 6/4/05; 03-08-017, 16-662-115, filed 3/25/03, effective 4/25/03. Statutory Authority: RCW 19.94.195. 98-13-072, 16-662-115, filed 6/15/98, effective 7/16/98. Statutory Authority: Chapter 19.94 RCW. 97-12-075, 16-662-115, filed 6/4/97, effective 7/5/97.]

Washington State Code Reviser's Office