The changes proposed herein update specifications, amend the penalties, further clarify updated statutory requirements and add requisite form references. In addition, the recent passage of SB 740 amends the testing and registration requirements and ...

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Consumer Services

RULE NO.:RULE TITLE:

5J-23.001Standards

5J-23.0015Registration

5J-23.002Registration

5J-23.003Guidelines for Imposing Administrative Penalties

PURPOSE AND EFFECT: The changes proposed herein update specifications, amend the penalties, further clarify updated statutory requirements and add requisite form references. In addition, the recent passage of SB 740 amends the testing and registration requirements and allows for up to a two-year registration. The proposed amendments implement those recent changes.

SUMMARY: The proposed rules are being amended to update adopted versions of ASTM International Designations, references to department forms and repealed rule chapters 5F-2 and 5F-10, F.A.C. The proposed changes will create uniform numbering within the rule chapter, will amend the penalty section for statutory compliance, and will update the incorporated department form to comply with ch. 2018-84, Laws of Florida.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The department’s economic analysis of the adverse impact of potential regulatory costs of the proposed rule did not exceed any of the criteria established in paragraph 120.541(2)(a), Florida Statutes. The proposed revisions update a form incorporated by reference, update several form references, and update standards incorporated by reference. They also renumber the registration section and revise the penalty section. There are no increased regulatory costs associated with these revisions. Moreover, changes to the registration requirements will significantly reduce the costs associated with first-time registrations by eliminating the need for applicants to submit product samples and to pay associated shipping fees. Additionally, no interested party submitted additional information regarding the economic impact.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 501.913, 501.921, 501.922, 570.07(23) FS.

LAW IMPLEMENTED: 501.913, 501.917, 501.918, 501.919, 501.921, 501.922, 570.971 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Harold Prince, Chief, Bureau of Standards, 3125 Conner Blvd., Bldg. #2, Tallahassee, FL 32399 [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

5J-23.001 Standards.

(1) The performance specifications and standards for all non-recycled antifreeze products are hereby incorporated by reference: ASTM International Designation D3306-1411 (approved April, 15, 2014 November 1, 2011), “Standard Specification for Glycol Base Engine Coolant for Automobile and Light-Duty Service,” with the following exceptions:

(a) Antifreeze, Products, as defined in Section 501.912, F.S., that is are specifically designed for applications (according to the engine/equipment manufacturer) that prohibit the use of glycol, or contents of 50 percent or more glycol, in the engine coolant system may have a higher freezing point higher (and consequently a lower consequent boiling point lower) than that required by this subsection section, so long as all of the following conditions are met. All other product quality specifications listed in this subsection are must be met along with the following conditions:.

1. Proof of the prohibition to use 50 percent or more glycol or mixtures containing 50 percent or more in the applicable engine coolant systems must be provided to the department.

2. A statement must be printed on the front label of the bottle in a conspicuous font indicating the maximum freezing point and minimum boiling point, if different from the required phase transition points established in ASTM International Designation D3306-1411, “Standard Specification for Glycol Base Engine Coolant for Automobile and Light-Duty Service,” (approved April 15, 2014 November 1, 2011), as incorporated by reference in subsection (1) of this rule, and the label must clearly state the intended applications for its use.

3. No change.

4. The words “antifreeze”, “antifreeze-coolant,” “antifreeze and summer coolant,” “summer coolant,” or the like, as defined in Section 501.912, F.S., may not be used on any label affixed to the bottle if there is less than ten percent glycol present in the product.

(b) 1,3-Propanediol base engine coolants for automobile and light-duty service: Tthe performance specifications and standards for 1,3 Propanediol base engine coolants for automobile and light-duty service are hereby incorporated by reference: ASTM International Designation D7518-10(2015)e1 (approved May 1, 2015 April 1, 2010), “Standard Specification for 1,3 Propanediol (PDO) Base Engine Coolant for Automobile and Light-Duty Service.” Products intended to meet this specification must be declared on the application by the registrant upon submission of the application for registration. The following statement (or similar definitive equivalent statement) must be printed in all capital letters on the front label or affixed to the front of the bottle in a conspicuous font: THIS PRODUCT CONTAINS 1,3-PROPANEDIOL.  CONSULT WITH YOUR MECHANIC OR ENGINE OWNER’S MANUAL BEFORE USE This product contains 1,3-Propanediol. Consult with your mechanic or engine owner’s manual before use.

(c) Glycerin base engine coolants for automobile and light-duty service: Tthe performance specifications and standards for Glycerin base engine coolants for automobile and light-duty service are hereby incorporated by reference: ASTM International Designation D7714-11(2016)e1 (approved April 1, 2016 October 1, 2011), “Standard Specification for Glycerin Base Engine Coolant for Automobile and Light-Duty Service.” Products intended to meet this specification must be declared on the application by the registrant upon submission of the application for registration. The following statement (or similar definitive equivalent statement) must be printed in all capital letters on the front label or affixed to the front of the bottle in a conspicuous font: THIS PRODUCT CONTAINS GLYCERIN. CONSULT WITH YOUR MECHANIC OR ENGINE OWNER’S MANUAL BEFORE USE  This product contains glycerin. Consult with your mechanic or engine owner’s manual before use.

(d) Low silicate ethylene glycol base engine coolants for heavy-duty engines: Tthe performance specifications and standards for all low silicate ethylene glycol base engine coolants for heavy-duty applications are hereby incorporated by reference: ASTM International Designation D4985-10(2015) (approved May 1, 2015 April 1, 2010), “Standard Specification for Low Silicate Ethylene Glycol Base Engine Coolant for Heavy Duty Engines Requiring a Pre-Charge of Supplemental Coolant Additive (SCA).,” Products intended to meet this specification must be declared on the application by the registrant upon submission of the application for registration.

(e) Glycol base engine coolants for heavy-duty engines: Tthe performance specifications and standards for glycol base engine coolants for heavy-duty engines are hereby incorporated by reference: ASTM International Designation D6210-1710 (approved November 1, 2017 December 1, 2010), “Standard Specification for Fully-Formulated Glycol Base Engine Coolant for Heavy-Duty Engines.” Products intended to meet this specification must be declared on the application by the registrant upon submission of the application for registration.

(f) 1,3-Propanediol base engine coolants for heavy-duty engines: Tthe performance specifications and standards for 1,3-Propanediol base engine coolants for heavy-duty engines are hereby incorporated by reference: ASTM International Designation D7517-09(2014) (approved February 1, 2014 April 1, 2009), “Standard Specification for Fully-Formulated 1,3 Propanediol (PDO) Base Engine Coolant for Heavy-Duty Engines.” Products intended to meet this specification must be declared on the application by the registrant upon submission of the application for registration. The following statement (or similar definitive equivalent statement) must be printed in all capital letters on the front label or affixed to the front of the bottle in a conspicuous font: THIS PRODUCT CONTAINS 1,3-PROPANEDIOL. CONSULT WITH YOUR MECHANIC OR ENGINE OWNER’S MANUAL BEFORE USE This product contains 1,3-Propanediol. Consult with your mechanic or engine owner’s manual before use.

(g) Glycerin base engine coolants for heavy-duty engines: Tthe performance specifications and standards for Glycerin base engine coolants for heavy-duty engines are hereby incorporated by reference: ASTM International Designation D7715-12(2016)e1 (approved April 1, 2016 June 1, 2012), “Standard Specification for Fully-Formulated Glycerin Base Engine Coolant for Heavy-Duty Engines.” Products intended to meet this specification must be declared on the application by the registrant upon submission of the application for registration. The following statement (or similar definitive equivalent statement) must be printed in all capital letters on the front label or affixed to the front of the bottle in a conspicuous font: THIS PRODUCT CONTAINS GLYCERIN. CONSULT WITH YOUR MECHANIC OR ENGINE OWNER’S MANUAL BEFORE USE This product contains glycerin. Consult with your mechanic or engine owner’s manual before use.

(h) The performance specifications and standards for waterless engine coolants are hereby incorporated by reference: ASTM International Designation D8085-17 (approved January 1, 2017), “Standard Specification for Non-Aqueous Engine Coolant for Automotive and Light-Duty Service.”

(2) No change.

(3) As used in sections 501.91 – 501.923, F.S., tThe term “motor vehicle” shall mean any device that uses an internal combustion engine as its means of power. This shall include stationary and mobile devices that are used on or off-road. Specifically, this definition is not restricted to passenger or transportation vehicles only.

(4) No change.

(5) In accordance with sSection 501.919, F.S., any lot of antifreeze (including products falling under the exceptions in subsection (1) of this rule) that fails to meet applicable standards, as adopted in this rule, shall be placed under stop sale order by the department using FDACS-03206, Stop Sale Order, Rev. 02/17 12/12, as incorporated by reference in rule 5J-22.003, F.A.C. and FDACS-03537, “Warning” tag, Rev. 08/12, prohibiting the sale of the antifreeze. Upon resolution of the violation, the lot of antifreeze shall be released by the department using FDACS-03209, Release, Rev. 02/17 01/09, as incorporated by reference in rule 5J-22.002, F.A.C. The documents referenced in this subsection are incorporated by reference in Rule 5F-2.001, F.A.C.

Rulemaking Authority 501.921, 570.07(23) FS. Law Implemented 501.913, 501.917, 501.919, 501.921 FS. History–New 10-6-93, Amended 7-5-95, 12-9-98, 6-25-00, 10-22-01, 12-9-02, 12-7-04, 2-5-07, 6-4-14, Formerly 5F-10.001, Amended                 .

 

5J-23.0015 Registration.

Rulemaking Authority 501.913, 570.07(23) FS. Law Implemented 501.913, 501.918, 501.919 FS. History–New 6-4-14, Formerly 5F-10.0015; Repealed               .

 

5J-23.002 Registration.

(1) In accordance with section 501.913, F.S., each brand of antifreeze to be distributed in this state shall be registered annually or biennially with the department prior to distribution or expiration of prior registration certificate and registrant shall make application on FDACS-03211, Antifreeze Registration Application, Rev. 02/19, hereby incorporated by reference. Copies of this form may be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-         . Application shall be made by the manufacturer, packager, or the person whose name appears on the label.

(a) A “manufacturer” is the person or entity producing the antifreeze.

(b) A “packager” is the person or entity that packages the antifreeze in sealed, unbroken packages.

(2) The department shall register a brand of antifreeze authorizing the distribution of the specified antifreeze brand in the state for the specified permit period if the registration requirements are met, pursuant to section 501.913, F.S., and this rule chapter.

(3)  In accordance with section 501.918(1), F.S., any unregistered brand of antifreeze that was registered in the immediately preceding registration period and has not been renewed shall be disposed of within 90 days of registration expiration. Disposal shall be the responsibility of the registrant and in a manner as prescribed below. If the product has been placed under stop sale order by the department, it must be released by the department prior to the execution of any disposal method.  Acceptable disposal methods are:

(a) Removal of all such unregistered antifreeze from this state, not to be distributed again in this state unless successful registration has been completed, or;

(b) Donation of product to a non-profit organization for consumption so long as all donated product is not adulterated and meets all specifications for quality and labeling, as prescribed in sections 501.91-501.923.

Rulemaking Authority 501.913, 570.07(23) FS. Law Implemented 501.913, 501.918 FS. History–New            .

 

5J-23.003 Guidelines for Imposing Administrative Penalties.

(1) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under sSections 501.91-501.923, F.S. The purpose of the guidelines is to give notice of the range of penalties that,which normally will be imposed for a single violation within a three-year period. The three-year period shall be based on the date of issuance of the stop sale order. These guidelines list aggravating and mitigating factors that, if present, will reduce or increase penalties to be imposed. No aggravating factors will be applied to increase a fine imposed for a single violation above the statutory maximum of $1,000 per violation for a first-time offender or $5,000 per violation for second-time or repeat offender, or for a willful and intentional violation. The guidelines in this rule chapter are based upon a single count violation of each provision listed. Multiple counts of the violated provision or a combination of the listed violations will be added together to determine an overall total penalty and will be grounds for enhancement of penalties.

(2) The department will enforce compliance with sSections 501.91-501.923, F.S., and this rule chapter by issuing a stop sale order and administrative complaint, if applicable, for violations of sSections 501.91-501.923, F.S., and this rule chapter.

(3) Nothing in this rule chapter shall limit the ability of the department to informally dispose of administrative actions by settlement agreement, consent order, or other lawful means.

(4) Rule Not All-Inclusive. This rule contains illustrative violations. It does not, and is not intended to encompass all possible violations of statute or department rule that might be committed by any person. The absence of any violation from this rule chapter shall in no way be construed to indicate that the violation does not cause harm to the public or is not subject to a penalty. In any instance where the violation is not listed in this rule chapter, the penalty will be determined by consideration of:

(a) through (b) No change.

(5) Aggravating and Mitigating Factors. The department will consider aggravating and mitigating factors in determining penalties for violations of sSections 501.91-501.923, F.S., and this rule chapter. The factors shall be applied against each single count of the listed violation.

(a) Aggravating Factors shall include:

1. The violation caused or has the potential to cause harm to a person or property and the degree or extent of such harm.

2. No change.

3. Previous enforcement actions violations for the same or a similar offense that resulted in enforcement action.

4. The length of time the business has been in operation and the violation disciplinary history of the violator, over the past three years including any disciplinary action imposed in this or any other jurisdiction.

5. The violation existed for more than one month.

5. 6.  No change.

6. 7.  No change.

8. Previous disciplinary action against the violator in this or any other jurisdiction and the deterrent effect of the penalty imposed.

7.9. Undue delay in initiating or completing, or Ffailure to take or initiate, affirmative or corrective action within 48 hours after receipt of the stop sale order for the violation.

8. 10. Whether Tthe violation resulted from negligence or an intentional act.

11. The cost of enforcement action.

9. 12.  No change.

10. 13.  No change.

(b) Mitigating Factors shall include:

1.  No change.

2. Whether Iintentional actions of another party prevented the violator from complying with the applicable laws or rules.

3. Documented fFinancial hardship.

4. Acts of God or nature that impaired the ability of the violator to comply with sSections 501.91-501.923, F.S., or this rRule cChapter 5F-10, F.A.C.

5. The violation has a low risk of, or did not result in, harm to the public health, safety, or welfare.

5. 6. The violator expeditiously took or initiated affirmative or corrective action within 48 hours after it received written notification of the violation, including costs incurred by the violator for rectifying any damage or harm to consumers’ vehicles and/or property.

7. The number and seriousness of the counts in the administrative complaint.

6. 8.  No change.

7. 9. If a repeat violation, whether three years have has passed since the prior violation.

8. 10. A statement, in writing, provided to the department during an investigation declaring acceptance of responsibility for a violation.

(6) The provisions of this rule chapter shall not be construed so as to prohibit or limit any other civil action or criminal prosecution that may be brought.

(7) In addition to the penalties established in this rule, the department reserves the right to seek to recover any other costs, penalties, attorney’s fees, court costs, service fees, collection costs, and damages allowed by law. Additionally, the department reserves the right to seek to recover any costs, penalties, attorney’s fees, court costs, service fees, collection costs, and costs resulting from a payment that is returned for insufficient funds to the department.

(6)(8) Penalties.

(a) Minor Violations. A violation of Sections 501.91-501.923, F.S., or this rule chapter is a minor violation if it does not result in economic or physical harm to a person or adversely affect the public health, safety, or welfare or create a significant threat of such harm. Minor violations shall result in the issuance of a stop sale order using FDACS-03206, Stop Sale Order, Rev. 02/17, as incorporated by reference in rule 5J-22.003, F.A.C. If a third stop sale order is issued within a three-year period a $500 penalty shall be issued in accordance with Section 501.922(1), F.S.  An additional penalty of $500 shall be issued for each stop sale order issued for independent events thereafter. In addition, the department shall also revoke or suspend a registration for an unpaid fine and until such time that the fine has been paid.  For the purposes of this rule, first time violations of sSections 501.918 (5), (6), (7), or (8), F.S., shall be considered minor violations.

(b) Major Violations: Tier I. – A Tier I violation shall result in the issuance of a stop sale order using FDACS-03206, Stop Sale Order, Rev. 02/17, as incorporated by reference in rule 5J-22.003, F.A.C. If a second Tier I violation is discovered within a three-year period, a $250 penalty shall be imposed. An additional penalty of $250 shall be added to the fine amount for the previous violation and imposed for each Tier I violation discovered thereafter. Aggravating factors, as defined in paragraph (5)(a) of this section, shall warrant the adjustment of the fine upward from $250 to $2,500 per violation per aggravating factor and mitigating factors, as defined in paragraph (5)(b) of this section, shall warrant the adjustment of the fine downward from $250 to $2,500 per violation per mitigating factor. For the purposes of this rule, the following violations shall be considered Tier I violations:

1. Violations of section 501.916, F.S.

2. Violations of section 501.918(1), F.S.

3. Violations of rule 5J-23.002, F.A.C. If a complete registration package has been received by the department within 30 calendar days from the date of the stop sale order, the fine shall be mitigated to a warning letter for a first-time violation by a registrant if said registrant has never previously registered products subject to section 501.913, F.S. Subsequent violations by the same registrant for any brand within a three-year period shall not be mitigated under these provisions.

(c)(b) Major Violations: Tier II. A Tier II violation Any violation of Sections 501.91-501.923, F.S., or this rule chapter that results in economic or physical harm to a person or adversely affects the public health, safety, or welfare or creates a significant threat of such harm shall be considered a major violation.  Major violations shall result in the issuance of a stop sale order using FDACS-03206, Stop Sale Order, Rev. 02/17, as incorporated by reference in rule 5J-22.003, F.A.C., and imposition of an administrative fine of $500 per violation, for first-time offenders of sSections 501.91-501.923, F.S., and/or rRule cChapter 5J-23, F.A.C. within a three-year period. An additional penalty of $500 shall be added to the fine amount for the previous violation and imposed for each Tier II violation discovered thereafter. An additional $500 fine shall be issued for each subsequent violation within a three-year period for second-time or repeat offenders of Sections 501.91-501.923, F.S., and/or Rule Chapter 5J-23, F.A.C., not to exceed the statutory maximum of $5,000, per violation, for second-time or repeat offenders of Chapter 501, Part V, F.S., and/or Rule Chapter 5J-23, F.A.C. Aggravating factors, as defined in paragraph (5)(a) of this section, shall warrant the adjustment of the fine upward from $250 to $500 per violation per aggravating factor for first-time offenders and from $250 to $2,500 per violation per aggravating factor for second and subsequent offenders and mitigating factors, as defined in paragraph (5)(b) of this section, shall warrant the adjustment of the fine downward from $250 to $500 per violation per mitigating factor for first-time offenders and from $250 to $2,500 per violation per mitigating factor for second and subsequent offenders, but no fine shall exceed the statutory maxima as outlined in Section 501.922(1)(b), F.S. If, three years after the day of issuance of the last stop sale order for a violation under this rule, no new violation has occurred pertaining to the specific brand of antifreeze, all previous fines shall be disregarded when administering a fine for the next violation.  In addition, the department shall also revoke or suspend a registration for an unpaid fine and until such time that the fine has been paid. For the purposes of this rule, the following violations shall be considered Tier II major violations:

1. Violations of Section 501.916, F.S.

1. 2. Violations of sSection 501.918(1), (2), (3), (4) or (9), F.S.

2. 3. Repeat violations, within a three-year period, of sSection 501.918(5), (6), (7) or (8), F.S.

4. Violations of Rule 5J-23.001, F.A.C.

5. Violations of Rule 5J-23.0015, F.A.C. If a complete registration package has been received by the department within 30 calendar days from the date of the stop sale order, the fine shall be mitigated to a warning letter for a first time violation by a registrant so long as said registrant has never previously registered products subject to this subsection in this state. Subsequent violations by same registrant for any brand within a three-year period shall not be mitigated under these provisions.

(c) Willful Violations. Any willful and intentional violation of Sections 501.91-501.923, F.S., or this rule chapter or of any requirement or standard adopted pursuant thereto, shall result in the imposition of an administrative fine of up to $5,000 per violation and suspension of registration for a period of one year.

1. The unauthorized disposal, including the removal, transfer, or sale, of any antifreeze which is under a stop sale order;

2. Violations which result from a failure to comply with a Final Order, a notice of non-compliance, a stop sale order, or any condition stipulated on a release of a stop sale order.

(7)(9) Resolution of Violations, Settlement, and Additional Enforcement Remedies.

(a) The department and person(s) charged with a violation may agree to resolve violations prior to an administrative hearing or to enter into settlement pursuant to sSection 120.57(4), F.S. The penalties addressed in this rule chapter shall not be construed to limit the authority of the department to resolve violations prior to or after initiation of any administrative action or to settle with any party. The department shall utilize all available remedies to ensure compliance including administrative action, civil actions, settlements, and referrals for criminal prosecution. The department shall enforce a failure to comply with an agreement to resolve violations or a settlement agreement with the penalties and remedies provided in the agreement and as authorized by Chapter 120 or Sections 501.91-501.923, F.S.

(b) Failure to respond to an administrative complaint shall result in the entry of a dDefault Final Order against the violator or entity responsible for the violation. The department shall impose administrative fines in a dDefault Final Order equal to the maximum amount possible, not to exceed $5,000 per violation.

(c) A failure to comply with either a Final Order or a Default Final Order of the department shall result in any applicable registration revocation and an administrative fine of up to $1,000 per violation, for a first time offender and up to $5,000 per violation, for a second or repeat offender. Additional penalties shall be sought through the enforcement of the order in circuit court.

Rulemaking Authority 501.922, 570.07(23) FS. Law Implemented 501.913, 501.918, 501.919, 501.922, 570.971 FS. History–New 6-4-14, Formerly 5F-10.003, Amended         .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Harold Prince, Chief of Standards

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Commissioner of Agriculture Nicole Fried

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 21, 2019

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: October 29, 2018