WSR 16-16-103

PROPOSED RULES

[Filed August 2, 2016, 8:14 a.m.]

Preproposal statement of inquiry was filed as WSR 15-23-108.

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

(1) The 2016 edition of NIST Handbook 44 (Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices);

(2) The 2016 edition of NIST Handbook 130 (Uniform Laws and Regulations in the Areas of Legal Metrology and Engine Fuel Quality) with modifications; and

(3) The 2016 edition of NIST Handbook 133 (Checking the Net Contents of Packaged Goods).

The department is also proposing to establish in rule a civil penalty matrix for violations of the Motor Fuel Quality Act (chapter 19.112 RCW) and chapter 19.94 RCW.

Hearing Location(s): Washington State Department of Agriculture, 1111 Washington Street S.E., Natural Resources Building, Conference Room 259, Olympia, WA 98504-2560, on September 7, at 2:00 p.m.

Date of Intended Adoption: September 21, 2016.

Submit Written Comments to: Henri Gonzales, P.O. Box 42560, Olympia, WA 98504-2560, e-mail WSDArulescomments@agr.wa.gov, fax (360) 902-2094, by September 7, 2016.

Assistance for Persons with Disabilities: Contact Deanna Painter by August 31, 2016, TTY (800) 833-6388 or 711.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: As provided under chapters 19.94 and 19.112 RCW, the department annually amends its rules to adopt current national standards for commercial measuring instruments and devices and for fuels. The department adopts the current version of NIST Handbook 44, NIST Handbook 130 with modifications, and NIST Handbook 133 in order to maintain uniformity with other states where appropriate. The department is also proposing to include a civil penalty matrix for violations of the Motor Fuel Quality Act.

Reasons Supporting Proposal: The purpose of this chapter is to establish 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. The department is proposing to adopt the most recent version of NIST Handbook 44, 130 (with modifications), and 133. The NIST handbooks are national consensus codes that establish industry standards for weighing and measuring devices, legal metrology, engine fuel quality, net contents of packaged goods, and specifications and tolerances for reference standards and field standard weights and measures. The department adopts these handbooks in order to maintain uniformity with other states where appropriate. Adoption in rule of the department's civil penalty matrix will provide clarity and transparency regarding how civil penalties for violations of the Motor Fuel Quality Act and chapter 19.94 RCW are calculated, including consideration of aggravating and mitigating circumstances.

Statutory Authority for Adoption: RCW 19.94.190, 19.94.195, 19.112.020, 19.112.140, and chapter 34.05 RCW.

Statute Being Implemented: Chapter 19.112 RCW.

Name of Proponent: Washington state department of agriculture, 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. The rules adopt by reference national motor fuel quality standards and are exempt from a small business economic impact statement (SBEIS) requirement under RCW 19.85.061. The Washington state department of agriculture (WSDA) is adopting the 2016 versions of NIST Handbooks 44, 130 and 133. The NIST handbooks are national consensus codes that establish industry standards for weighing and measuring devices, legal metrology, engine fuel quality, net contents of packaged goods, and specifications and tolerances for reference standards and field standard weights and measures. Under chapters 19.112 and 19.94 RCW, WSDA is mandated to adopt these national standards.

The rules that adopt the civil penalty provisions implement the range of civil penalties and general criteria for such penalties under chapter 19.112 RCW. The penalty rules are not substantive business regulations imposing costs on businesses or any other compliance requirements for which an SBEIS is required under either RCW 19.85.030(1) or 19.85.040(1).

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).

August 2, 2016

Brad White

Assistant Director

Chapter  16-662  WAC

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	((2014)) 2016 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	((2014)) 2016 Edition of NIST Handbook 133 - Checking the Net Contents of Packaged Goods
(3) The requirements for packaging and labeling, method of sale of commodities, national type evaluation, examination procedures for price verification, and engine fuels, petroleum products and automotive lubricants	((2014)) 2016 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 Regulation as adopted by the National Conference on Weights and Measures and published in NIST Handbook 130, ((2014)) 2016 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, ((2014)) 2016 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, ((2014)) 2016 Edition.
(d) Definitions; 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, ((2014)) 2016 Edition.
(e) Weights and measures requirements for national type evaluation	Uniform Regulation for National Type Evaluation as adopted by the National Conference on Weights and Measures and published in NIST Handbook 130, ((2014)) 2016 Edition.
(4) Specifications and tolerances for reference standards and field standard weights and measures	NIST Handbook 105-1, Specifications and Tolerances for Field Standard Weights (NIST Class F) - 1990;
	NIST Handbook 105-2, Specifications and Tolerances for Field Standard Measuring Flasks - 1996;
	NIST Handbook 105-3, Specifications and Tolerances for Graduated Neck Type Volumetric Field Standards - 2010;
	NIST Handbook 105-4, Specifications and Tolerances for Liquefied Petroleum Gas and Anhydrous Ammonia Liquid Volumetric Provers - 2010;
	NIST Handbook 105-5, Specifications and Tolerances for Field Standard Stopwatches - 1997;
	NIST Handbook 105-6, Specifications and Tolerances for Thermometers - 1997;
	NIST Handbook 105-7, Specifications and Tolerances for Dynamic Small Volume Provers - 1997;
	NIST Handbook 105-8, Specifications and Tolerances for Field Standard Weight Carts - 2003.

Modified Section:	Modification:
Section 2.20.1. Method of Retail Sale	Modify the existing text in section 2.20.1 with the following: "Type of Oxygenate must be Disclosed.
		(a) 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. 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.
		(b) 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.
		(c) Gasoline-ethanol blend fuels containing not more than ten percent((,)) ethanol by volume, must be labeled "Contains up to 10% Ethanol."
		(d) ((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: E40 Ethanol). E85 fuel ethanol shall be identified and labeled in accordance with section 3.8. E85 Fuel Ethanol.
		(e))) 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)."
((Section 2.20.2. Documentation for Dispenser Labeling Purposes	Replace the existing text in section 2.20.2. Documentation for Dispenser Labeling Purposes, with: "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."))
Section ((2.23)) 2.23.2. Animal Bedding	Modify the existing text to add: "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."
Section 2.30.2. Labeling Requirements	Modify the existing text to add: Ethanol flex fuel identification and labeling must be done in accordance with 16 C.F.R. Part 306.
Section 2.31.2. Labeling of Retail Dispensers	Modify the existing text to add the following: "2.31.2.5. Labeling of Retail Dispensers Containing Not More Than 5% Biodiesel.
		(a) Each retail dispenser of biodiesel or biodiesel blend containing not more than five percent biodiesel must be labeled "May contain up to 5% Biodiesel."
		(b) This information shall be posted on the upper 50% 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)."
	Modify the existing text to add the following: "2.31.2.6. Labeling of Retail Dispensers Containing More Than 5% Biodiesel.
		(a) 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).
		(b) This information shall be posted on the upper 50% 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)."
Section 2.31.4. Exemption	Modify the existing text to delete section 2.31.4.
Section 2.34. Retail Sales of Electricity Sold as a Vehicle Fuel	Modify the existing text to delete section 2.34.

Modified Section:	Modification:
Section 2.1.2. Gasoline-Ethanol Blends	Replace the existing text in section 2.1.2 with the following: "When gasoline is blended with 1 to 10 volume percent ethanol, the ethanol shall meet the requirements of ASTM D4806 and either:
		(a) The base gasoline used for blending with ethanol shall meet the requirements of ASTM D4814; except that the base gasoline shall meet the minimum temperature for a Vapor-Liquid Ratio of 20 for the applicable vapor lock protection class as follows:
			(1) Class 1 shall be 60°C (140°F)
			(2) Class 2 shall be 56°C (133˚F)
			(3) Class 3 shall be 51°C (124°F)
			(4) Class 4 shall be 47°C (116°F)
			(5) Class 5 shall be 41°C (105°F)
	or
		(b) The blend shall meet the requirements of ASTM D4814."
	Modify the existing text to add the following: "2.1.2.1. Maximum Vapor Pressure. The maximum vapor pressure of a gasoline-ethanol blend shall not exceed ASTM D4814 limits by more than 1.0 psi for:
		(a) Only 9 to 10 volume percent ethanol blends from June 1 through September 15.
		(b) All blends of 1 to 10 volume percent ethanol from September 16 through May 31."
Section 3.2.6. Method of Retail Sale	Modify the existing text in section 3.2.6 with the following: "Type of Oxygenate must be Disclosed.
		(a) 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. 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.
		(b) 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.
		(c) Gasoline-ethanol blend fuels containing not more than ten percent, by volume, must be labeled "Contains up to 10% Ethanol."
		(d) ((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: E40 Ethanol). E85 fuel ethanol shall be identified and labeled in accordance with section 3.8. E85 Fuel Ethanol.
		(e))) This information shall be posted on the upper 50% 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)."
((Section 3.2.7. Documentation for Dispenser Labeling Purposes	Modify the existing text in section 3.2.7 with the following: "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."))
Section 3.8.2. Labeling Requirements	Modify the existing text to add: Ethanol flex fuel identification and labeling shall be in accordance with 16 C.F.R. Part 306.
Section 3.9.2. Retail Dispenser Labeling	Modify the existing text in section 3.9.2 to add: "(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.) This information shall be posted on the upper 50% 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)."
Section 3.15.2. Labeling of Retail Dispensers	Modify the existing text in subsection 3.15.2 to add: "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.""
	Modify the existing text in subsection 3.15.2 to add: "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)."
	Modify the existing text in subsection 3.15.2 to add: "3.15.2.7. Placement of label. Labels shall be posted on the upper 50% 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)."
Section 3.15.4. Exemption	Delete section 3.15.4.

Modified Section:	Modification:
Section 2.3. Director	Modify the existing text in section 2.3 with the following: "Director – Means the director of the Washington state department of agriculture."
Section 4. Prohibited Acts and Exemptions	Modify the existing text in ((section)) subsection (c) with the following: "A device in service in this state prior to July 5, 1997, that meets the specifications, tolerances, and other technical requirements of the National Institute of Standards and Technology Handbook 44 shall not be required to be traceable to an active CC."
	Modify the existing text in ((section)) subsection (d) with the following: "A device in service in this state prior to July 5, 1997, removed from service by the owner or on which the department has issued a removal order after July 5, 1997, and returned to service at a later date shall be modified to meet all specifications, tolerances, and other technical requirements of the National Institute of Standards and Technology Handbook 44 effective on the date of the return to service. Such a device shall not be required to be traceable to an active CC." ((Modify the existing text in section (e) with the following: "A device in service in this state prior to July 5, 1997, which is repaired after such date shall meet the specifications, tolerances, and other technical requirements of the National Institute of Standards and Technology Handbook 44 and shall not be required to be traceable to an active CC."))
	Modify the existing text in ((section)) subsection (e) with the following: "A device in service in this state prior to July 5, 1997, which is repaired after such date shall meet the specifications, tolerances, and other technical requirements of the National Institute of Standards and Technology Handbook 44 and shall not be required to be traceable to an active CC."
	Modify the existing text in ((section)) subsection (f) with the following: "A device in service in this state prior to July 5, 1997, that is still in use may be installed at another location in this state provided the device meets requirements in effect as of the date of installation in the new location; however, the device shall not be required to be traceable to an active CC."
	Modify the existing text in ((section)) subsection (g) with the following: "A device in service in ((this)) another state prior to July 5, 1997, may be installed in this state; however, the device shall meet the specifications, tolerances, and other technical requirements for weighing and measuring devices in the National Institute of Standards and Technology Handbook 44 and be traceable to an active CC."
Section 5. Participating Laboratory and Agreements	Modify the existing text to delete section 5.
Section 6. Revocation of Conflicting Regulations	Modify the existing text to delete section 6.
Section 7. Effective Date	Modify the existing text to delete section 7.

	Gasoline	Diesel	Biodiesel and biodiesel blends	Other fuels
1st Violation	Notice of Correction	Notice of Correction	Notice of Correction	Notice of Correction
2nd Violation	$1,500.00	$1,500.00	$1,500.00	$1,500.00
3rd Violation	$3,000.00	$3,000.00	$3,000.00	$3,000.00
4th and subsequent violations	$10,000.00	$10,000.00	$10,000.00	$10,000.00

	Blends between 0 and 5 percent	Blends between 6 and 20 percent	Blends between 21 and 99 percent	100% Biodiesel
1st Violation	Notice of Correction	Notice of Correction	Notice of Correction	Notice of Correction
2nd Violation	$1,200.00	$1,400.00	$1,400.00	$1,400.00
3rd Violation	$1,700.00	$1,900.00	$1,900.00	$1,900.00
4th and subsequent violations	$2,700.00	$2,900.00	$2,900.00	$2,900.00

	Water phase exceeding 1 inch in storage tanks used for gasoline or diesel Water phase exceeding 1/4 inch in storage tanks used for biodiesel blends up to 20%	Water phase exceeding 1/4 inch in storage tanks used for gasoline ethanol blends or biodiesel blends above 20%	Any fuel storage tank with a water phase exceeding 6 inches
1st Violation	NOC	Stop-Sale and $200.00	Stop-Sale and $1,500.00
2nd Violation	$1,000.00	Stop-Sale and $1,000.00	Stop-Sale and $3,000.00
3rd Violation	$2,500.00	Stop-Sale and $2,500.00	Stop-Sale and $6,000.00
4th and subsequent violation	$5,000.00	Stop-Sale and $5,000.00	Stop-Sale and $10,000.00

	Biodiesel blends	Gasoline and gasoline-ethanol blends up to 10 percent	Ethanol flex fuel	Other fuels
1st Violation	Notice of Correction
2nd Violation	$200.00
3rd Violation	$500.00
4th and subsequent violations	$1,000.00

	Between .7 and .9 octane lower	Between 1 and 1.9 octane lower	Between 2 and 2.9 octane lower	Greater than 3 octane lower
1st Violation	Notice of Correction	Notice of Correction	Notice of Correction	Notice of Correction
2nd Violation	$1,000.00	$1,500.00	$2,500.00	$3,000.00
3rd Violation	$2,500.00	$3,000.00	$5,000.00	$6,000.00
4th and subsequent violations	$10,000.00	$10,000.00	$10,000.00	$10,000.00