WSR 11-22-098

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed November 2, 2011, 8:20 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 11-15-095.

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

(1) The 2011 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 2011 edition of NIST Handbook 130 (Uniform Laws and Regulations in the Areas of Legal Metrology and Engine Fuel Quality) as required by RCW 19.112.140;

(3) The 2011 edition of NIST Handbook 133 (Checking the Net Contents of Packaged Goods); and

(4) Modifications to increase rule clarity and readability.

Hearing Location(s): Washington State Department of Agriculture (WSDA), 1111 Washington Street S.E., Natural Resources Building, Conference Room 259, Olympia, WA 98504-2560, on December 8, 2011, at 2:00 p.m.

Date of Intended Adoption: December 15, 2011.

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 December 8, 2011.

Assistance for Persons with Disabilities: Contact Henri Gonzales by December 1, 2011, 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, 130, and 133. These handbooks are national consensus codes that establish industry standards for weighing and measuring devices, metrology, engine fuel quality, and net contents of packaged goods.

Reasons Supporting Proposal: RCW 19.94.195 requires that the most current version of NIST Handbook 44 be adopted every year. RCW 19.112.140 requires that the most current version of NIST Handbook 130 be adopted all or in part every year. The department also adopts the current version of NIST Handbook 133 in order to maintain uniformity with other states.

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: WSDA, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Jerry Buendel, 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. These handbooks are national consensus codes that establish industry standards.

A cost-benefit analysis is not required under RCW 34.05.328. WSDA is not a listed agency under RCW 34.05.328 (5)(a)(i).

November 2, 2011

Mary A. Martin Toohey

Assistant Director

OTS-4429.2


AMENDATORY SECTION(Amending WSR 09-19-007, filed 9/3/09, effective 10/4/09)

WAC 16-662-100   ((What is the purpose of this chapter?)) Purpose.   (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/WeightsAndMeasures/index.cfm)) http://www.nist.gov/pml/wmd/pubs/handbooks.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 19.94, 19.112, and 34.05 RCW. 09-19-007, 16-662-100, filed 9/3/09, effective 10/4/09. 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 10-18-088, filed 9/1/10, effective 10/2/10)

WAC 16-662-105   ((What national weights and measures)) Standards ((are)) adopted by the Washington state department of agriculture (WSDA)((?)).   Except as otherwise modified in this chapter, 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 ((2010)) 2011 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)) 2011 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 ((2009)) 2011 Edition of NIST Handbook 130 - Uniform Laws and Regulations in the areas of legal metrology and engine fuel quality. ((Effective June 1, 2011, the 2010 Amendments to the 2009 Edition of NIST Handbook 130 to Section 2.1 Gasoline and Gasoline-Oxygenate Blends in the Engine Fuels and Automotive Lubricants Regulation.)) Specifically:
(a) Weights and measures requirements for all food and nonfood commodities in package form Uniform Packaging and Labeling Regulation as adopted by the National Conference on Weights and Measures and published in NIST Handbook 130, ((2009)) 2011 Edition. ((Effective June 1, 2011, the 2010 Amendments to the 2009 Edition of NIST Handbook 130 to Section 2.1. Gasoline and Gasoline-Oxygenate Blends in the Engine Fuels and Automotive Lubricants Regulation))
(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, ((2009)) 2011 Edition. ((Effective June 1, 2011, the 2010 Amendments to the 2009 Edition of NIST Handbook 130 to Section 2.1. Gasoline and Gasoline-Oxygenate Blends in the Engine Fuels and Automotive Lubricants Regulation))
(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, ((2009)) 2011 Edition. ((Effective June 1, 2011, the 2010 Amendments to the 2009 Edition of NIST Handbook 130 to Section 2.1. Gasoline and Gasoline-Oxygenate Blends in the Engine Fuels and Automotive Lubricants Regulation))
(d) Definitions and requirements for standard fuel specifications; classification and method of sale of petroleum products; retail storage tanks and dispenser filters; condemned product; product registration; and test methods and reproducibility limits Uniform Engine Fuels and Automotive Lubricants Regulation as adopted by the National Conference on Weights and Measures and published in NIST Handbook 130, ((2009)) 2011 Edition. ((Effective June 1, 2011, the 2010 Amendments to the 2009 Edition of NIST Handbook 130 to Section 2.1. Gasoline and Gasoline-Oxygenate Blends in the Engine Fuels and Automotive Lubricants Regulation))

[Statutory Authority: Chapters 19.94, 19.112, 34.05 RCW, and 2010 c 96. 10-18-088, 16-662-105, filed 9/1/10, effective 10/2/10. Statutory Authority: Chapters 19.94, 19.112, and 34.05 RCW. 09-19-007, 16-662-105, filed 9/3/09, effective 10/4/09. 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 10-18-088, filed 9/1/10, effective 10/2/10)

WAC 16-662-110   ((Does the WSDA modify)) Modifications to 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 (see also Introduction, Section Q) 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:)) At the end of the first sentence of S.1.6.4.1.(b), Unit Price, add the words "or after prepayment for the product but prior to its delivery." As a result of this modification, the sentence will 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)) customer 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, 19.112, 34.05 RCW, and 2010 c 96. 10-18-088, 16-662-110, filed 9/1/10, effective 10/2/10. Statutory Authority: Chapters 19.94, 19.112, and 34.05 RCW. 09-19-007, 16-662-110, filed 9/3/09, effective 10/4/09. 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 10-18-088, filed 9/1/10, effective 10/2/10)

WAC 16-662-115   ((Does the WSDA modify)) Modifications to NIST Handbook 130((?)).   The WSDA adopts the following modifications to the listed sections of 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 2.20.1. ((Gasoline-Oxygenate Blends)) Method of Retail Sale 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.)"
(2) Section 2.20.2. Documentation for Dispenser Labeling Purposes 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))) (3) Section 2.23. Animal Bedding Add a new subsection which reads: ((2.23.1)) "2.23.2. 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))) (4) 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 more than five percent biodiesel must be labeled "May contain up to 5% Biodiesel.""
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))) (5) Section 2.31.4. Exemption Delete section 2.31.4.

The WSDA adopts the following modifications to the listed sections of the Uniform Engine Fuels 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: "Type of Oxygenate must be disclosed. 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. Labeling Requirements 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 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 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 more than five percent biodiesel must be labeled "May contain up to 5% Biodiesel.""
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 3.15.4. Exemption Delete section 3.15.4.
(((12) Section 7. Test Methods and Reproducibility Limits Add a new subsection 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 19.94, 19.112, 34.05 RCW, and 2010 c 96. 10-18-088, 16-662-115, filed 9/1/10, effective 10/2/10. Statutory Authority: Chapters 19.94, 19.112, and 34.05 RCW. 09-19-007, 16-662-115, filed 9/3/09, effective 10/4/09. 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.]


AMENDATORY SECTION(Amending WSR 05-10-088, filed 5/4/05, effective 6/4/05)

WAC 16-662-120   ((How does the WSDA conduct)) Inspections of the net contents of packaged goods under NIST Handbook 133((?)).   WSDA inspects packages using ((the)) either used dry tare or unused dry tare in accordance with the procedures outlined in NIST Handbook 133.

[Statutory Authority: Chapters 19.94 and 34.05 RCW. 05-10-088, 16-662-120, filed 5/4/05, effective 6/4/05.]


AMENDATORY SECTION(Amending WSR 05-10-088, filed 5/4/05, effective 6/4/05)

WAC 16-662-125   ((When does WSDA take)) Enforcement actions ((when conducting)) for price verification inspections under NIST Handbook 130((?)).   WSDA uses NIST Handbook 130, Examination Procedure For Price Verification, ((Paragraph)) Section 11.2., Model Enforcement Levels. Overcharges will be used to determine price accuracy for enforcement actions under chapter 19.94 RCW. ((WSDA may issue a civil penalty after failure of the third price accuracy inspection.))

[Statutory Authority: Chapters 19.94 and 34.05 RCW. 05-10-088, 16-662-125, filed 5/4/05, effective 6/4/05.]

Washington State Code Reviser's Office