WSR 97-09-102

PROPOSED RULES

DEPARTMENT OF AGRICULTURE

[Filed April 23, 1997, 11:27 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 95-07-083.

Title of Rule: National type evaluation program (NTEP).

Purpose: To ensure that weighing and measuring devices used commercially comply with the provisions of National Institute of Standards and Technology (NIST) Handbook 44 which prescribes specifications, tolerances, and other technical requirements for weighing and measuring equipment. NIST Handbook 44 has been adopted as law in Washington state and is also the standard used by every other state.

Statutory Authority for Adoption: Chapter 19.94 RCW.

Statute Being Implemented: RCW 19.94.190 and 19.94.195.

Summary: Adoption of this rule will ensure that prototype weighing and measuring equipment meet Handbook 44 requirements for commercial use and will provide assurance to users, manufacturers and regulatory personnel that the manufactured device type conforms with the specifications, tolerances and other technical requirements prescribed in Handbook 44.

Reasons Supporting Proposal: (1) Supports statutory guidance of RCW 19.94.190 by eliminating devices that are potentially faulty in construction or that may facilitate fraud; (2) provides regulatory authority to keep Washington from becoming a dumping ground for devices that may not meet Handbook 44 requirements; and (3) allows Washington to join thirty-nine other states who have type evaluation currently in force.

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

Name of Proponent: Scale Manufacturers Association, Gasoline Pump Manufacturers Association, Meter Manufacturers Association, private.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Rules implementation will preclude buying and selling of "noncertifiable" devices for commercial use in Washington state.

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

Explanation of Rule, its Purpose, and Anticipated Effects: The adoption of this rule will ensure that weighing and measuring devices used commercially in Washington state comply with the provisions of National Institute of Standards and Technology (NIST) Handbook 44 (HB44). HB 44 prescribes the specifications, tolerances, and other technical requirements for weighing and measuring equipment and has been adopted as law in Washington state and is also the standard used by every other state. In adopting NTEP, Washington will also join thirty-nine other states who currently have "type evaluation" in force. Users of devices benefit from NTEP by having confidence that the device they purchase will meet the requirements of HB 44 provided that it is set up and calibrated properly and is suitable for the application. Subsequent to adoption, NTEP will eliminate those devices from the marketplace that do not meet HB 44 requirements. While it may cost the device manufacturer more to undergo the NTEP process, it provides a "one stop" evaluation of their device and avoids the economically untenable position of producing and selling devices that are deemed "not approvable" because they will not meet HB 44 requirements.

Proposal Changes the Following Existing Rules: Currently there is not a specific rule that addresses NTEP certification; the statutory requirements of RCW 19.94.195 stipulate that the department shall adopt specifications, tolerances and other technical requirements as recommended by Handbook 44 for devices used commercially. The adoption of this rule implementing the NTEP evaluation process provides assurance to users, manufacturers, and regulatory personnel that the device type that successfully completes this process will comply with Handbook 44 requirements.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The rule is designed to "grandfather" devices already in service which were previously deemed as legal, therefore, there will be no expense to business to replace a device with one which has been through the NTEP process. NTEP provides the manufacturer with an evaluation and review process that, if approved, means the device type has demonstrated conformance with Handbook 44 requirements and avoids the economically untenable position of producing and selling devices that are subsequently deemed "not approvable." In this regard, NTEP can arguably be viewed as a cost savings. NTEP provides the buyer/user with confidence that he/she can be free of the possibility of having a device, purchased in good faith, subsequently condemned for failure to meet a requirement of which they may be totally unaware.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. The Washington State Department of Agriculture is not a listed agency in section 201.

Hearing Location: Natural Resources Building, 2nd Floor, Room 205, 1111 Washington Street, Olympia, WA, on May 27, 1997, at 9:30 a.m.

Assistance for Persons with Disabilities: Contact Cathy Jensen by May 22, 1997, TDD (360) 902-1996, or (360) 902-1976.

Submit Written Comments to: Washington State Department of Agriculture, Attn: Bob Arrington, P.O. Box 42560 or 1111 Washington Street, Olympia, WA 989504-2560 [98504-2560], FAX (360) 902-2086, by May 27, 1997, 5:00 p.m.

Date of Intended Adoption: May 29, 1997.

April 22, 1997

Julie C. Sandberg

Assistant Director

Chapter 16-664 WAC


NATIONAL TYPE EVALUATION PROGRAM

NEW SECTION

WAC 16-664-010 Purpose. The purpose of this rule is to assure users, sellers, manufacturers and weights and measures officials that a particular model or type of device and/or equipment is capable of meeting applicable standards.

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NEW SECTION

WAC 16-664-020 Definitions. For purposes of this rule:

(1) "Certificate of conformance" means a document issued by the National Institute of Standards and Technology based on testing by a participating laboratory. The certificate evidences conformance of a type with the requirements of the National Institute of Standards and Technology Handbooks 44, 105-1, 105-2, or 105-3.

(2) "Device" means any weighing and measuring device as defined in subsection (4) of this section, Commercial and law enforcement equipment.

(3) "Director" means the director of the Washington state department of agriculture.

(4) "Commercial and law enforcement equipment" means:

(a) Any weighing or measuring equipment commercially used or employed in establishing the size, quantity, extent, area, or measurement of quantities, things, produce, or articles for distribution or consumption, purchased, offered, or submitted for sale, hire, or award, or in computing any basic charge or payment for services rendered on the basis of weight or measure.

(b) Any accessory attached to or used in connection with a commercial weighing or measuring device when such accessory is so designed that its operation affects the accuracy of the device.

(c) Weighing and measuring equipment in official use for the enforcement of law or for the collection of statistical information by government agencies.

(5) "National type evaluation program" means a program of cooperation between the National Institute of Standards and Technology, other federal agencies, the National Conference on Weights and Measures, the states, and the private sector for determining, on a uniform basis, conformance of a type with the relevant provisions of National Institute of Standards and Technology Handbook 44, "Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices" and National Conference on Weights and Measures, Publication 14, "National Type Evaluation Program, Administrative Procedures, Technical Policy, Checklists, and Test Procedures."

(6) "One-of-a-kind device" means a device manufactured for sale that has been categorized and tested as a "one-of-a-kind" device. If the manufacturer constructs an additional device or devices, the device is no longer considered to be "one-of-a-kind." This definition also applies to any device that has been determined to be a "one-of-a-kind" device by a weights and measures jurisdiction in one state and the manufacturer decides to manufacture and install the device in another state. In this case, the device must be traceable to a Certificate of Conformance, unless NTEP decides that a Certificate of Conformance will not be required.

(7) "Participating laboratory" means any state measurement laboratory that has been accredited by the National Institute of Standards and Technology in accordance with its program for the Certification of Capability of State Measurement Laboratories, or any state weights and measures agency or other laboratory that has been authorized to conduct a type evaluation under the National Type Evaluation Program.

(8) "Person" means both plural and singular, as the case demands, and includes individuals, partnerships, corporations, companies, societies, and associations.

(9) "Remanufactured device" means a device to which an overhaul or replacement of parts has been performed so the device can be installed in a new location.

(10) "Repaired device" means the maintenance or replacement of parts for a device to remain or return to service in the same location.

(11) "Type" means a model or models of a particular device, measurement system, instrument, or element that positively identifies the design. A specific type may vary in its measurement ranges, size, performance, and operating characteristics as specified in the Certificate of Conformance.

(12) "Type evaluation" means the testing, examination, and/or evaluation of a type by a participating laboratory under the National Type Evaluation Program.

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NEW SECTION

WAC 16-664-030 Certificate of conformance--When required. The director shall require a device to be traceable to a Certificate of Conformance prior to its installation or use for commercial or law enforcement purposes.

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NEW SECTION

WAC 16-664-040 Commercial and law enforcement equipment--Certificate of conformance--Requirements--Exemptions--One-of-kind device--Repaired device--Remanufactured device--Device copy--Components. (1) Except for a device exempted under subsection (6) of this section, no person shall sell a device, within the state of Washington, unless it is traceable to a Certificate of Conformance. Certificate of Conformance documentation must be provided as part of the sales transaction.

(2) No person shall use a device within the state of Washington, unless it is traceable to a Certificate of Conformance, except when the device is exempted by subsection (3), (4), or (5) of this section. Certificate of Conformance documentation must be maintained at the device location.

(3) A device in service in Washington prior to . . . . ., 19. ., that meets the specifications, tolerances, and other technical requirements of National Institute of Standards and Technology Handbook 44, is not required to be traceable to a Certificate of Conformance.

(4) A device in service in Washington prior to . . . . ., 19. ., removed from service by the owner or on which the department has issued a removal order after . . . . ., 19. ., and returned to service at a later date shall be modified to meet all specifications, tolerances, and other technical requirements of National Institute of Standards and Technology Handbook 44 effective on the date of the return to service. Such a device is not required to be traceable to a Certificate of Conformance.

(5) A device in service in Washington prior to . . . . ., 19. ., which is repaired after such date shall meet the specifications, tolerances, and other technical requirements of National Institute of Standards and Technology Handbook 44 is not required to be traceable to a Certificate of Conformance.

(6) A device in service in Washington prior to . . . . ., 19. ., and sold after such date shall be modified by the seller to meet the specifications, tolerances, and other technical requirements of National Institute of Standards and Technology Handbook 44 on or before the date sold, unless the buyer and seller agree by written contract to exchange the modification responsibility in which case modification must be completed before further commercial application. Such commercial weighing or measuring device is not required to be traceable to a Certificate of Conformance.

(7) A device in service in another state prior to . . . . ., 19. ., may be installed in Washington; however, the device shall meet the specifications, tolerances, and technical requirement for weighing and measuring devices in National Institute of Standards and Technology Handbook 44 and be traceable to a Certificate of Conformance.

(8) One-of-a-kind device -- A "one-of-a-kind" device is not required to be traceable to a Certificate of Conformance. However, if the manufacturer decides to make an additional device or devices, the device will no longer be considered to be "one-of-a-kind" and it shall be traceable to a Certificate of Conformance. For scales, the load cells and electronic indicators must be traceable to a Certificate of Conformance.

(9) Repaired device -- If a person makes changes to a device to the extent that the metrological characteristics are changed, that specific device is no longer traceable to the Certificate of Conformance.

(10) Remanufactured device -- If a person repairs or remanufactures a device, they are obligated to repair or remanufacture it consistent with the manufacturer's original design; otherwise, that specific device is no longer traceable to a Certificate of Conformance.

(11) Copy of a device -- The manufacturer who copies the design of a device that is traceable to a Certificate of Conformance, but which is made by another company, must obtain a separate Certificate of Conformance for the device. The Certificate of Conformance for the original device shall not apply to the copy.

(12) Device components -- If a person buys a load cell(s) and an indicating element that are traceable to Certificates of Conformance and then manufactures a device from the parts, that person shall obtain a Certificate of Conformance for the device.

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NEW SECTION

WAC 16-664-050 Unlawful acts. It shall be unlawful for a person to:

(1) Use a device in commercial application if a Certificate of Conformance has not been issued for such device, unless exempt under WAC 16-664-040;

(2) Sell a device for use in commercial application if a Certificate of Conformance has not been issued for such device, unless exempt under WAC 16-664-040.

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NEW SECTION

WAC 16-664-060 Penalty. Any person who violates the provisions of this chapter is subject to penalties as provided under chapter 19.94 RCW.

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