Update and condense Rule Chapters 5F-1, 5F-3, 5F-4, 5F-5, 5F-7, 5F-12 and 5F-13, F.A.C., into a single rule chapter, creating Chapter 5J-22, F.A.C. The intent is to repeal Rule Chapters 5F-1, 5F-3, 5F-4, 5F-5, 5F-7, 5F-12 and 5F-13, F.A.C., after ...

 

FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Consumer Services

RULE NOS.:RULE TITLES:

5J-22.001Definitions

5J-22.002Specifications, Tolerances and Other Technical Requirements for Weighing and Measuring Devices

5F-22.003Uniform Regulations and Methods of Sale

5J-22.004Net Contents of Packaged Goods

5J-22.005Metrology Lab Fees

5J-22.006Weighing and Measuring Device Permits

5J-22.007Guidelines for Imposing Administrative Penalties

PURPOSE AND EFFECT:  Update and condense Rule Chapters 5F-1, 5F-3, 5F-4, 5F-5, 5F-7, 5F-12 and 5F-13, F.A.C., into a single rule chapter, creating Chapter 5J-22, F.A.C.  The intent is to repeal Rule Chapters 5F-1, 5F-3, 5F-4, 5F-5, 5F-7, 5F-12 and 5F-13, F.A.C., after the adoption of Chapter 5J-22, F.A.C. Also, update the adopted versions of the National Institute of Standards and Technology (NIST) Handbooks 44, 130 and 133; clarify that weighing and measuring devices used in commerce in this state must have a certificate of conformance from the National Type Evaluation Program (NTEP) under the National Conference on Weights and Measures (NCWM); update ASTM International document versions adopted in this rule; update the permitting section to reflect new devices now being used in the marketplace and to comply with 2016 legislative changes; update the penalty sections; update department form references and update optional metrology lab fees.

SUMMARY:  This proposed rule will update and condense Rule Chapters 5F-1, 5F-3, 5F-4, 5F-5, 5F-7, 5F-12 and 5F-13, F.A.C., into a single rule chapter, creating Chapter 5J-22, F.A.C. The intent is to repeal Rule Chapters 5F-1, 5F-3, 5F-4, 5F-5, 5F-7, 5F-12 and 5F-13, F.A.C., after the adoption of Chapter 5J-22, F.A.C.  This proposed rule will also update the adopted versions of the National Institute of Standards and Technology (NIST) Handbooks 44, 130 and 133; clarify that weighing and measuring devices used in commerce in this state must have a certificate of conformance from the National Type Evaluation Program (NTEP) under the National Conference on Weights and Measures (NCWM); update ASTM International document versions adopted in this rule; update the permitting section to reflect new devices now being used in the marketplace; update the penalty sections; update department form references and update optional metrology lab fees.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS (SERC) AND LEGISLATIVE RATIFICATION: The Agency has determined that this rule 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 or potential regulatory costs of the proposed rule did not exceed any of the criteria established in Section 120.541(2)(a), Florida Statutes.  Additionally, no interested party submitted additional information regarding the economic impact.  Any person who wishes to provide information regarding the statement of estimated regulatory costs or to provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY:  531.40, 531.41(3), (4), 531.44(2), 531.45, 531.66, 570.07(23) FS.

LAW IMPLEMENTED:  531.40, 531.41(3), (4), (7), (13), (16), 531.415, 531.42, 531.44, 531.45, 531.47, 531.49, 531.50, 531.60-66 FS.

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

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE:

Richard Kimsey, Assistant Director, Consumer Services, 3125 Conner Blvd., Bldg. #2, Tallahassee, FL 32399 [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

5J-22.001 Definitions

As used in this rule chapter, the following definitions and those provided in Section 531.37, Florida Statutes, shall apply:

(1) Commercial Purpose means any weighing and measuring device:

(a) Used in commerce to establish the size, quantity, extent, area, or measurement of any commodity sold, offered, or submitted for sale or otherwise transacted in commerce; or

(b) Used in computing any charge or payment due for services rendered on the basis of weight, measure, or count; or

(c) Used in determining the winner of any award based on weight, measure, or count.

(2) Location means any individual structure, site, mobile unit or similar type establishment attached or otherwise where commercial weighing and/or measuring activities are conducted by the owner of a weighing or measuring device used for commercial purposes.

(3) Owner means a person that owns or uses, has primary possession or control over the use of, or otherwise employs a weighing or measuring device used for commercial or law enforcement purposes.

(4) Commercial Use Permit (Permit) means a certificate issued by the department that authorizes the holder to use weighing and/or measuring devices for commercial purposes at a location for which the certificate is issued.

Rulemaking Authority 531.41(3) FS. Law Implemented 531.60-.66 FS. History–New             .

 

5J-22.002 Specifications, Tolerances and Other Technical Requirements for Weighing and Measuring Devices.

(1) The National Institute of Standards and Technology (NIST) Handbook 44, Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices, 2017 Edition, is hereby adopted and incorporated by reference as the requirements for commercial weighing and measuring devices.  A copy of NIST Handbook 44, 2017 Edition, may be obtained from the National Institute of Standards and Technology, 100 Bureau Drive, Gaithersburg, MD 20899-2100 or http://www.flrules.org/Gateway/reference     .  A copy of this handbook is also available for public inspection during regular business hours at the Florida Department of Agriculture and Consumer Services, Division of Consumer Services, Bureau of Standards, 3125 Conner Boulevard, Lab #2, Tallahassee, Florida 32399-1650, Phone: [phone].

(2) Any weighing or measuring device that fails to meet applicable tolerances, as adopted in this section, shall be placed out of service by the department using FDACS-10988, Stop Use Order, Rev. 02/17, hereby adopted and incorporated by reference. A sample of this form can be accessed at http://www.flrules.org/Gateway/reference     . Upon conformance with the requirements of this section, the stop use order shall be released by the department using FDACS-03209, Release, Rev. 02/17, hereby adopted and incorporated by reference. A sample of this form can be accessed at http://www.flrules.org/Gateway/reference          .

Rulemaking Authority 366.94, 531.40, 531.41(3) FS. Law Implemented 366.94, 531.40, 531.42 FS. History–New   .                 

 

5J-22.003 Uniform Regulations and Methods of Sale.

(1) The National Institute of Standards and Technology (NIST), Handbook 130, Uniform Laws and Regulations  2017 Edition, Sections: Uniform Packaging and Labeling Regulation; Uniform Regulation for National Type Evaluation; Uniform Regulation for the Voluntary Registration of Servicepersons and Service Agencies for Commercial Weighing and Measuring Devices; Uniform Regulation for the Method of Sale of Commodities; Examination Procedure for Price Verification; and Uniform Unit Pricing Regulation are hereby adopted and incorporated by reference. A copy of this handbook may be obtained from the National Institute of Standards and Technology, 100 Bureau Drive, Gaithersburg, MD 20899-2100 or http://www.flrules.org/Gateway/reference     . A copy of this handbook is also available for public inspection during regular business hours at the Florida Department of Agriculture and Consumer Services, Division of Consumer Services, Bureau of Standards, 3125 Conner Boulevard, Lab #2, Tallahassee, Florida 32399-1650, Phone: [phone].

(2) All packages sold or offered for sale shall meet the packaging and labeling requirements adopted under this section.  Any package that fails to possess a declaration of identity, declaration of responsibility or declaration of quantity, as adopted in subsection (1) of this section, shall be placed under stop sale order by the department using FDACS-03206, Stop Sale Order, Rev. 02/17, hereby adopted and incorporated by reference. A sample of this form can be accessed at http://www.flrules.org/Gateway/reference   . Once made to conform with the requirements adopted in subsection (1) of this rule, the packages shall be released by the department from the stop sale order using FDACS-03209, Release, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.002(2), F.A.C.

(3) All weighing and measuring devices, including retail motor fuel dispensers, placed into service for the first time that will be used in commerce in the state must be approved through the National Type Evaluation Program (NTEP) and possess a valid certificate verifying such approval.  Any investigation or inspection in which the department determines a weighing or measuring device does not have a valid NTEP certificate shall result in the device being prohibited from further commercial use until a valid NTEP certificate has been obtained. The department shall prohibit the continued unauthorized use of the device using FDACS-10988, Stop Use Order, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.002(2), F.A.C. When the NTEP certificate has been obtained, the stop use order shall be released by the department using FDACS-03209, Release, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.002(2), F.A.C.             

(4) All service persons and service agencies servicing weighing or measuring devices used for commercial purposes that choose to operate under the provisions of s. 531.41, F.S., must register with the department using FDACS-10990, Weights and Measures Device Mechanic Registration Application, Rev. 02/17, hereby adopted and incorporated by reference. Copies of this form may be accessed at http://www.flrules.org/Gateway/reference        .

(a) There shall be no fee for registration.

(b) The certificate of registration for each serviceperson or service agency shall expire two years from the date of issuance.

(c) Standards and testing equipment used by servicepersons or service agencies in the service and testing functions shall be adequate and suitable for the intended use and shall be examined and recertified by an accredited metrology laboratory as recognized by the National Institute of Standards and Technology (NIST) at least every two years.

(d) Registered servicepersons and service agencies must comply with the requirements adopted in subsection 5J-22.003(1), F.A.C.

(e) Reporting of weighing and measuring devices restored to or placed in service as required by this section shall be made on FDACS-03017, Placed in Service Report, Rev. 02/17, within 24 hours after a device is restored to service or placed in service, but not more than 10 days prior to the device being restored to service or placed in service.  The document referenced in this subsection is hereby adopted and incorporated by reference and can be accessed at http://www.flrules.org/Gateway/reference      .

(5) Weighing and measuring devices placed into service by unregistered persons and not in accordance with any exceptions provided by rule shall not be used in commerce. If such a device is placed into service by the permitted owner, only requires an electrical plug-in for installation and does not require calibration at the time of installation the device may be used after the department is notified.

(6) All commodities sold or offered for sale shall be in accordance with the Method of Sale requirements adopted under this rule.  Any person ulitizing a method of sale that fails to meet applicable requirements, as adopted in subsection (1) of this rule, shall be issued a notice of noncompliance by the department using FDACS-03576, Notice of Noncompliance, Rev. 02/17, hereby adopted and incorporated by reference. A sample of this form can be accessed at http://www.flrules.org/Gateway/reference       .  The notice of noncompliance shall be considered satisfied once the method of sale is made to conform with the requirements adopted in subsection (1) of this rule.

(7) The pricing of commodities shall be verified by using the examination procedures for price verification adopted under this rule.  Any pricing of a commodity that fails to meet applicable requirements, as adopted in subsection (1) of this rule, shall be prohibited and affected commodities placed under stop sale order by the department using FDACS-03206, Stop Sale Order, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.003(2), F.A.C.  The commodities shall be released by the department from the stop sale order using FDACS-03209, Release, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.002(2), F.A.C., once the pricing is made to conform with the requirements adopted in subsection (1) of this rule.

(8) The unit pricing of commodities requirements shall not apply to any seller unless a system of unit pricing has been voluntarily established by the seller.  Nothing contained herein shall be construed to require that a seller unit price any consumer commodity other than those with regard to which the seller has voluntarily established a system of unit pricing.  Any unit pricing of a commodity that fails to meet applicable requirements, as adopted in subsection (1) of this rule, shall be prohibited and affected commodities placed under stop sale order by the department using FDACS-03206, Stop Sale Order, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.003(2), F.A.C.  The commodities shall be released by the department from the stop sale order using FDACS-03209, Release, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.002(2), F.A.C., once the unit pricing is made to conform with the requirements adopted in subsection (1) of this rule.

Rulemaking Authority 531.40, 531.41(3),(4), 531.44(2), 531.45 FS. Law Implemented 531.40, 531.41(3), (4), (7), (16), 531.42, 531.44, 531.45, 531.47, 531.49 FS. History – New             .

 

5J-22.004 Net Contents of Packaged Goods.

(1) The National Institute of Standards and Technology (NIST) Handbook 133, Checking the Net Contents of Packaged Goods, 2017 Edition, is hereby adopted and incorporated by reference as the procedures for testing packaged goods and commodities for net contents. A copy of this handbook may be obtained from the National Institute of Standards and Technology, 100 Bureau Drive, Gaithersburg, MD 20899-2100 or may be accessed at http://www.flrules.org/Gateway/reference     .  A copy of this handbook is also for public inspection during regular business hours at the Florida Department of Agriculture and Consumer Services, Division of Consumer Services, Bureau of Standards, 3125 Conner Boulevard, Lab #2, Tallahassee, Florida 32399-1650, Phone: [phone].

(2) Any package that fails to meet applicable requirements, as adopted in subsection (1) of this rule, shall be placed under stop sale order by the department using FDACS-03206, Stop Sale Order, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.003(2), F.A.C.  The packages shall be released by the department from the stop sale order using FDACS-03209, Release, Rev. 02/17, adopted and incorporated by reference in subsection 5J-22.002(2), F.A.C., once the packaging is made to conform with the requirements adopted this rule.

Rulemaking Authority 531.41(3) FS. Law Implemented 531.41, 531.42, 531.44, 531.45, 531.47, 531.48, and 531.49 FS. History–New             .

 

5J-22.005  Metrology Lab Fees

(1) The department shall charge fees for metrology services provided as outlined in this section.

(a) Fees for each mass standard tested or certified against tolerances less stringent than American National Standards Institute (ANSI)/ASTM International Standard Designation E617-13 Appendix X5. for Class 4:

1. 0-2 lbs. or metric equivalent	$6 per unit
2. >2-10 lbs. or metric equivalent	$8 per unit
3. >10-50 lbs. or metric equivalent	$12 per unit
4. >50-500 lbs. or metric equivalent	$20 per unit
5. >500-1000 lbs. or metric equivalent	$30 per unit
6. >1000-2500 lbs. or metric equivalent	$40 per unit
7. >2500-5000 lbs. or metric equivalent	$50 per unit

(b) Fees for each mass standard tested or certified against ANSI/ASTM International Standard Designation E617-13 Appendix X5. for Class 4 or equivalent tolerances:

1. 0-10 lbs. or metric equivalent	$20 per unit
2. >10-50 lbs. or metric equivalent	$30 per unit
3. > 50-500 lbs. or metric equivalent	$40 per unit
4. >500-1000 lbs. or metric equivalent	$50 per unit
5. >1000-2500 lbs. or metric equivalent	$60 per unit
6. >2500-5000 lbs. or metric equivalent	$75 per unit

(c) Fees for each mass standard that is tested or certified to meet ANSI/ASTM International Standard Designation E617-13 Appendix X3. for Class 2:

1. 0-20 lbs. or metric equivalent	$40 per unit
2. > 20-50 lbs. or metric equivalent	$50 per unit
3. >50-1000 lbs. or metric equivalent	$70 per unit
4. >1000-2500 lbs. or metric equivalent	$150 per unit
5. >2500-5000 lbs. or metric equivalent	$250 per unit

(d) Fees for each volumetric test:

1. 0-5 gallon capacity or metric equivalent           $35

2. > 5 gallon capacity or metric equivalent           Plus $0.75 for each additional gallon.

3. All volumetric capacities for measuring liquified petroleum gas or other closed vessels used to measure other compressed or pressurized gasses shall be assessed at the special test fee rate in subsection (e).

(e) Fees for each special test or special preparation shall be $50 per hour. Calibrations or preparations whose individual fee(s) would total less than the equivalent of one-half hour of this hourly charge shall be charged for one half-hour of time.

(2) Each fee is payable at the time metrology services are done, regardless of whether the item tested is certified or fails.  Requests for services must be accompanied by a completed form FDACS-03224, Metrology Calibration Request, Rev. 02/17, prior to acceptance of any item for testing.  The document referenced in this subsection is hereby adopted and incorporated by reference and can be accessed at http://www.flrules.org/Gateway/reference   . The department may refuse to accept for testing any item it considers unfit for testing due to its condition as determined by the state metrologist or if it is unsuitable for its intended use after consideration of United States Department of Commerce, National Institute of Standards and Technology (NIST) Handbooks:

(a) 105-1, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 1. Specifications and Tolerances for Field Standard Weights (NIST Class F) (1990); or

(b) 105-2, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 2. Specifications and Tolerances for Field Standard Measuring Flasks (1996); or

(c) 105-3, Specifications and Tolerances for Reference Standards and Field Standards Weights and Measures, 3. Specifications and Tolerances for Graduated Neck Type Volumetric Field Standards (2010); or

(d) 105-4, Specifications and Tolerances for Reference Standards and Field Standards Weights and Measures, 4. Specifications and Tolerances for Liquefied Petroleum Gas and Anhydrous Ammonia Liquid Volumetric Provers (2010); or

(e) 105-6, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 6. Specifications and Tolerances for Thermometers (1997); or

(f) 105-7, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 7. Specifications and Tolerances for Dynamic Small Volume Provers (1997); or

(g) 105-8, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, Specifications and Tolerances for Field Standard Weight Carts (2003).

(3) Materials.

(a) The American National Standards Institute (ANSI)/ASTM International Standard Designation E617-13 “Standard Specification for Laboratory Weights and Precision Mass Standards” (Approved May 1, 2013) is hereby adopted and incorporated by reference.  It may be obtained from ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428, or http://www.astm.org and is also available for public inspection during regular business hours at the Florida Department of Agriculture and Consumer Services, Division of Consumer Services, Bureau of  Standards, 3125 Conner Boulevard, Lab #2, Tallahassee, FL 32399-1650, Phone: [phone].  Posting of the preceding material on the internet for purposes of public examination would violate federal copyright law.

(b) The materials in subsection (2) are adopted and incorporated by reference below. Copies of the National Institute of Standards and Technology publications may be obtained from the National Institute of Standards and Technology, 100 Bureau Drive, STOP 2600, Gaithersburg, MD 20899-2600.   All publications are also available for public inspection during regular business hours at the Florida Department of Agriculture and Consumer Services, Division of Consumer Services, Bureau of  Standards, 3125 Conner Boulevard, Lab #2, Tallahassee, FL 32399-1650, Phone: [phone]. 

1. National Institute of Standards and Technology (NIST) Handbook 105-1, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 1. Specifications and Tolerances for Field Standard Weights (NIST Class F) (1990), is hereby incorporated by reference and can be accessed at http://www.flrules.org/Gateway       .

2. National Institute of Standards and Technology (NIST) Handbook 105-2, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 2. Specifications and Tolerances for Field Standard Measuring Flasks (1996), is hereby incorporated by reference and can be accessed at http://www.flrules.org/Gateway            .

3. National Institute of Standards and Technology (NIST) Handbook 105-3, Specifications and Tolerances for Reference Standards and Field Standards Weights and Measures, 3. Specifications and Tolerances for Graduated Neck Type Volumetric Field Standards (2010), is hereby incorporated by reference and can accessed at http://www.flrules.org/Gateway            .

4. National Institute of Standards and Technology (NIST) Handbook 105-4, Specifications and Tolerances for Reference Standards and Field Standards Weights and Measures, 4. Specifications and Tolerances for Liquefied Petroleum Gas and Anhydrous Ammonia Liquid Volumetric Provers (2010), is hereby incorporated by reference and can be accessed at http://www.flrules.org/Gateway       .

5. National Institute of Standards and Technology (NIST) Handbook 105-6, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 6. Specifications and Tolerances for Thermometers (1997), is hereby incorporated by reference and can be accessed at http://www.flrules.org/Gateway     .

6. National Institute of Standards and Technology (NIST) Handbook 105-7, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 7. Specifications and Tolerances for Dynamic Small Volume Provers (1997), is hereby incorporated by reference and can be accessed at http://www.flrules.org/Gateway          .

7. National Institute of Standards and Technology (NIST) Handbook 105-8, Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures, 8. Specifications and Tolerances for Field Standard Weight Carts (2003), is hereby incorporated by reference and can be accessed http://www.flrules.org/Gateway   .

(4) Any equipment or items exempt from the fees in this rule as provided in Section 531.415(3), F.S., shall have documented evidence submitted at the time services are requested demonstrating the exempt status.

Rulemaking Authority 531.41(3) FS. Law Implemented 531.415 FS. History–New               .

 

5J-22.006 Weighing and Measuring Device Permits.

(1) No owner or person in possession of any weighing or measuring device shall use or operate the device for commercial purposes without first obtaining a permit.

(2) Each permit shall be conspicuously displayed at the location for which it is issued. Permits shall be issued by the department upon receipt of payment in full and approval of a completed form FDACS-03560, Weighing and Measuring Device Permit Application, Rev. 02/17, identifying the specific number and type of weighing and measuring devices that will be used for commercial purposes.  The document referenced in this subsection is hereby adopted and incorporated by reference and can be accessed at http://www.flrules.org/Gateway/reference       .

(3) Except for permits for additional devices placed into service at a location with an existing permit, which will be prorated on a quarterly basis as prescribed in subsection (6), permits shall be valid for one or two years from the date of issuance based on the time period selected by the applicant.  Fees paid for permits are not refundable.

(4) Fees.

(a) One permit shall be issued to each location for all weighing and measuring devices used for commercial purposes at that location based on the total number, type, size and/or capacity of devices. The permit shall expire one or two years following the date of issuance based on the time period selected by the applicant and must be renewed consecutively so long as any of the devices remain in use for commercial purposes at that location. The permit renewal fee shall be the same as the fees established in this subsection.

(b) If the ownership of a permitted device(s) changes, the current permit for that device(s) shall remain in effect until its original expiration date and shall be transferred by the department to the new owner if:

1. The device(s) for which the permit was issued remained at the same location after the ownership change; and

2. The new owner, or a representative of the new owner, notifies the department in writing of the change in ownership within 30 days of the change in ownership. Notification can be made by mail to the Florida Department of Agriculture and Consumer Services, Division of Consumer Services, Bureau of Compliance, 2500 Apalachee Parkway, Tallahassee, Florida 32399, or by facsimile at [phone]. 

(c) If the ownership and location of a permitted device(s) change, the current permit for that device(s) automatically expires and a new permit application and fee must be submitted to the department after which a new permit shall be issued, which will expire one or two years from the date of issuance of the new permit, based on the time period selected by the applicant. However, if the location of a permitted device(s) changes without a change in ownership, the current permit for that device(s) shall be transferred to the new location upon notification to the department by the owner. The owner shall notify the department in writing within 30 days from the date of the change to the Florida Department of Agriculture and Consumer Services, Division of Consumer Services, Bureau of Compliance, 2500 Apalachee Parkway, Tallahassee, Florida 32399, or by facsimile at [phone].

(d) If the owner ceases to use all commercial weighing and measuring devices, the department must be notified within 30 days indicating that the devices are no longer in use and the permit should be terminated.

(e) The failure of an owner to notify the department of a change as prescribed in (b) and (c) above shall immediately void the permit and require full application and fees, including any applicable late fees as prescribed in subsection (7) and penalties pursuant to Rule 5J-22.007, F.A.C.

(f) The following annual commercial use permit fees for weighing devices are based on the manufacturers’ rated capacity or the device’s design and intended use:

1. For weighing devices used during any portion of the period covered by the commercial use permit with a manufacturer’s rated capacity of up to and including 100 pounds or the metric equivalent, the fees in Table 1 will apply:

Table 1
Number of Devices per Single Category	Annual Fee per Single Retail Establishment
1 to 5	$40
6 to 10	$125
11 to 30	$175
31 or more	$225

2. For weighing devices with a manufacturer’s rated capacity of greater than 100 pounds up to and including 250 pounds or the metric equivalent, the annual permit fee shall be $40 per device.

3. For weighing devices with a manufacturer’s rated capacity of greater than 250 pounds up to and including 5,000 pounds or the metric equivalent, the annual permit fee shall be $75 per device.

4. For weighing devices with a manufacturer’s rated capacity of greater than 5,000 pounds up to and including 20,000 pounds or the metric equivalent, the annual permit fee shall be $150 per device.

5. For weighing devices with a manufacturer’s rated capacity of greater than 20,000 pounds or the metric equivalent, the annual permit fee shall be $200 per device.

6. For wheel load weighing devices the annual permit fee shall be $15 per device.

7. For static and in-motion railroad track scales used to weigh railway cars that are not tested for accuracy and compliance with state standards by a private testing agency, the annual permit fee shall be $200 per device.

8. For belt conveyor scales, the annual permit fee shall be $400 per device.

(g) The following commercial use permit fees shall apply for the measuring devices listed below:

1. For mass flow meters with a maximum flow rate of up to and including 150 pounds per minute or the metric equivalent, the annual permit fee shall be $100 per device.  This includes all mass flow meters used to dispense compressed and liquefied natural gas for retail sale.

2. For mass flow meters with a maximum flow rate of greater than 150 pounds per minute or the metric equivalent, the annual permit fee shall be $250 per device.

3. For volumetric flow meters with a maximum flow rate of up to and including 10 gallons per minute or the metric equivalent, the fees in Table 2 will apply:

Table 2
Number of Devices per Single Category	Annual Fee per Single Retail Establishment
1 to 5	$40
6 to 10	$125
11 to 30	$175
31 or more	$225

4. For volumetric flow meters with a maximum flow rate of greater than 10 and up to and including 20 gallons per minute or the metric equivalent, the annual permit fee shall be $40 per device. This includes all devices used to dispense diesel exhaust fluid for retail sale.

5. For volumetric flow meters with a maximum flow rate of greater than 20 gallons per minute or the metric equivalent, the annual permit fee shall be $80 per device.

6. For tanks used as measures with capacities of less than 500 gallons or the metric equivalent, with or without gauge rods or markers, the annual permit fee shall be $100 per device.

7. For tanks used as measures with capacities 500 gallons or greater or the metric equivalent, with or without gauge rods or markers, the annual permit fee shall be $200 per device.

8. For multiple dimension measuring devices, the annual permit fee shall be $100 per device.

9. For LP gas bulk delivery vehicles with a meter owned or leased by a LP gas licensee, the annual permit fee shall be $150.

(5) Fees for Device(s) Placed into Service at a Location with an Existing Commercial Use Permit. The department shall be notified by the owner of any non-replacement weighing or measuring device that is put into service during a permit year at a location and will change the permit fees by submitting form FDACS-03560, Weighing and Measuring Device Permit Application, Rev. 02/17, which is adopted and incorporated by reference in subsection (2). The fee shall be prorated on a quarterly basis of the annual fee prescribed in subsection (4) for every quarter remaining until the expiration of the existing permit for that location.

(6) Replacement Devices. Each device for which a permit has been issued may be replaced with a device of the same type, size and capacity and will not require additional fees to be paid until renewal of the permit providing the following conditions apply:

(a) The amount of the fee for the replacement device would have been equal to or less than the amount of the fee for the original device as prescribed in subsection (4); and

(b) The replacement device is reported to the department in writing within 30 days of the date of replacement.  The reporting shall include a copy of the NTEP certificate, the brand name, model and serial number and capacity of the device(s) being replaced and the replacement device(s). The information shall be sent to the Florida Department of Agriculture and Consumer Services, Division of Consumer Services, Bureau of Compliance, 2500 Apalachee Parkway, Tallahassee, Florida 32399, or by facsimile at [phone]. 

(7) Late Fees. The department shall not issue a commercial use permit until all applicable fees, including late fees, have been received by the department. The department shall not waive late fees.  A late fee of $100 per location must be paid in addition to the commercial use permit fee required by subsection (4) if:

(a) The commercial use permit application and renewal fee are not received by the department in accordance with Section 531.62, F.S.;

(b) A commercial use permit application and fee for a non-replacement device put into service at a permitted location is not received by the department within thirty days after the device has been placed into service; or

(c) Notification of ownership or location changes as outlined in paragraphs (4)(b) and (4)(c) of this rule are not provided to the department.

Rulemaking Authority 570.07(23), 531.66 FS. Law Implemented 531.42, 531.50and 531.60-.66 FS. History–New  ________.

 

5J-22.007 Guidelines for Imposing Administrative Penalties.

(1) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under Chapter 531, F.S. The purpose of the guidelines is to give notice of the range of penalties, which will be imposed for a single violation. These guidelines list aggravating and mitigating factors that, if present, will reduce or increase penalties to be imposed.  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 administratively enforce compliance with Chapter 531, F.S., and this rule chapter by issuing an administrative complaint, stop sale order, stop use order, and/or notice of noncompliance for violations of Chapter 531, F.S., and this rule chapter.

(3) Nothing in this rule 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 the statutes or department rules that might be committed by any person. The absence of any violation from this rule shall in no way be construed to indicate that the violation is not subject to a penalty. In an instance where the violation is not listed in this rule, the penalty will be determined by consideration of:

(a) The closest analogous violation, if any, that is listed in this rule; and

(b) The mitigating or aggravating factors listed in this rule.

(5) Aggravating and Mitigating Factors. The department will consider aggravating and mitigating factors in determining penalties for violations of Chapter 531, 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. The violation endangered the public safety or welfare.

3. Previous enforcement actions for the same or a similar offense.

4. The violation existed for more than one month.

5. The violation was repeated within one year.

6. The violator impeded, or otherwise failed to cooperate with the department’s inspection and/or investigation.

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

8. Failure to take or initiate affirmative or corrective action within 48 hours after receipt of the stop sale and/or stop use order or within the timeframe specified on a notice of noncompliance for the violation.

9. The violation resulted from an intentional act.

10. The cost of enforcement action.

11. The number of other violations proven in the same proceeding.

12. The benefit to the violator.

13. Any other relevant, case-related circumstances.

(b) Mitigating Factors shall include:

1. Degree and extent of potential harm caused by the violation.

2. The amount of money by which the violator benefited from noncompliance.

3. The compliance record of the violator, including previous violations for the same or similar offenses that resulted in enforcement action.

4. Any documented efforts by the violator to repair any damages, economic or otherwise, resulting from the violation.

5. Length of time operating location while out of compliance.

6. Reliance on written professional or expert counsel or advice.

7. The intentional actions of another party prevented the violator from complying with the applicable laws or rules.

8. Financial hardship.

9. Acts of God or nature that impair the ability of the violator to comply with Chapter 531, F.S., or this rule chapter.

10. The violator expeditiously took or initiated affirmative or corrective action within 48 hours after receipt of the stop sale and/or stop use order or within the timeframe specified on a notice of noncompliance for the violation.

11. If a repeat violator, two years have passed since the last violation.

(6) The provisions of this rule 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 cost, 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 cost, 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.

(8) Penalties.

(a) Minor Violations. Any department investigation or inspection which reveals violations listed in this paragraph will result in the issuance of a notice of noncompliance as the department’s first response to the violation.  For the purposes of this rule, the following violations shall be considered minor and shall result in the issuance of a notice of noncompliance:

1. Use of an unpermitted weighing or measuring device for commercial purposes without a valid Commercial Use Permit if the person has never previously held such a permit and has not been notified by the department that such a permit is required.

2. Violations of the standards adopted in subsection 5J-22.002(1), F.A.C., other than devices found to be out of tolerance in favor of the device owner.

3. Violations of the standards adopted in subsection 5J-22.003(1), F.A.C., Uniform Packaging and Labeling Regulation, other than packages found to have missing or inaccurate:

a. Declaration of Quantity, or;

b. Declaration of Identity, or;

c. Declaration of Responsibility.

4. Violations of the standards adopted in subsection 5J-22.003(1), F.A.C., Uniform Regulation for the Method of Sale of Commodities.

5. Violations of the standards adopted in subsection 5J-22.003(1), F.A.C., Examination Procedure for Price Verification if:

a. Two (2) percent or less of examined items fail and the net monetary discrepancy total is no more than $5 in favor of the business, or;

b. More than two (2) percent of examined items fail and the net monetary discrepancy total is not in favor of the business.

(b) Major Violations: Tier 1. Tier 1 violations shall result in the issuance of a stop sale order using FDACS-03206, Stop Sale Order, Rev. 02/17, or the device(s) removed from service using FDACS-10988, Stop Use Order, Rev. 02/17, as specified below.  If a second Tier 1 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 1 violation discovered thereafter.  Aggravating factors, as defined in paragraph (5)(a) of this rule 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 rule shall warrant the adjustment of the fine downward from $250 to $2,500 per violation per mitigating factor. The documents referenced in this subsection are adopted and incorporated by reference in subsections 5J-22.002(2) and 5J-22.003(2), of this rule chapter. For the purposes of this rule, the following violations shall be considered Tier 1 violations:

1. Violations of subsection 5J-22.003(1), F.A.C., Uniform Packaging and Labeling Regulation, shall result in the removal from sale of affected commodities by the department when found to have missing or inaccurate:

a. Declaration of Quantity, or;

b. Declaration of Identity, or;

c.  Declaration of Responsibility.

2. Violations of subsection 5J-22.003(1), F.A.C., Examination Procedure for Price Verification, shall result in the removal from sale of affected commodities by the department if:

a. More than two (2) percent, but not more than ten (10) percent of examined items fail and the net monetary discrepancy total is in favor of the business, or;

b. Two (2) percent or less of the examined items fail and the net monetary discrepancy total is $5 or greater in favor of the business.

3. Violations of the standards adopted in subsection 5J-22.002(1), F.A.C., shall result in the removal of affected equipment from service by the department for devices found to be out of tolerance in favor of the device owner.

4. Violations of the standards adopted in subsection 5J-22.003(1), F.A.C., Uniform Regulation for National Type Evaluation, shall result in the removal of affected equipment from service by the department.

(c) Major Violations: Tier II.  Tier II violations shall result in prohibiting the sale, distribution, offering for sale or distribution of the affected products, placing any affected equipment out of service and imposition of an administrative fine of $250 per violation, for first-time offenders of Chapter 531, F.S., and/or Rule Chapter 5J-22, F.A.C.  An additional penalty of $250 shall be added to the fine amount for the previous violation and imposed for each subsequent violation within the three-year period.  Aggravating factors, as defined in paragraph (5)(a) of this rule, shall warrant the adjustment of the fine upward from $250 to $2,500 per violation per aggravating factor and mitigating factors, as defined in (5)(b) of this rule, 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 II violations:

1. Violations of the standards adopted in Rule 5J-22.003, F.A.C., Uniform Regulation for the Voluntary Registration of Servicepersons and Service Agencies for Commercial Weighing and Measuring Devices by:

a. Failing to comply with the provisions of s. 531.41(16), F.S., for service agencies or personnel registered with the department pursuant to Rule 5J-22.003, F.A.C.; or,

b. Failing to report a weighing and measuring device placed in service for commercial purposes.

2. Violations of the standards adopted in subsection 5J-22.003(1), F.A.C., Examination Procedure for Price Verification if more than ten (10) percent of examined items fail and the net monetary discrepancy total is in favor of the business.

3. Violations of the standards adopted in Rule 5J-22.004, F.A.C.

4. Violations of Rule 5J-22.006, F.A.C.

5. Failure to correct violations of law, rule, or adopted sections of NIST Handbook 44, as adopted in Rule 5J-22.002, F.A.C., within the time period specified in a notice of noncompliance.  Any device affected by a notice of noncompliance issued pursuant to this rule chapter that is not corrected within the time period specified shall be removed from service until such time that the deficiency has been corrected.

6. Failure to correct violations of law, rule, or adopted sections of NIST Handbook 130, as adopted in Rule 5J-22.003, F.A.C., within the time period specified in a notice of noncompliance.  Any device affected by a notice of noncompliance issued pursuant to this rule chapter that is not corrected within the time period specified shall be removed from service until such time that the deficiency has been corrected.  Any commodities affected by a notice of noncompliance issued pursuant to this rule chapter that are not corrected within the time period specified shall be removed from sale until such time that the deficiency has been corrected.

7. Failure to correct violations of law, rule, or adopted sections of NIST Handbook 133, as adopted in Rule 5J-22.004, F.A.C., within the time period specified in a notice of noncompliance.  Any commodities affected by a notice of noncompliance issued pursuant to this rule chapter that are not corrected within the time period specified shall be removed from sale until such time that the deficiency has been corrected.

8. Impeding, obstructing, or hindering a department employee during duties associated with enforcement of provisions of this rule.

(d) Willful Violations.  Any willful and intentional violation of Chapter 531, 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.  Willful violations shall include the following:

1. The unauthorized breaking, cutting, or removal of any seal or tag applied by the department;

2. Using a weighing or measuring device for commercial purposes after notifying the department the device is not used commercially;

3. Using a device for commercial purposes that has been ordered out of service by the department prior to its being placed back into service in accordance with this rule chapter;

4. The sale or distribution, or offering for sale or distribution, of any commodity under stop sale order;

5. The sale or distribution, or offering for sale or distribution, of any commodity that was previously placed under a stop sale order and that has not been made to conform to standard; and,

6. Violations which result from a failure to comply with a final order, a notice of noncompliance, a stop sale order, or any condition stipulated on a release of a stop sale order.

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

(a) The department and any person charged with a violation may agree to resolve alleged violations prior to an administrative hearing, or to enter into settlement pursuant to s. 120.57(4), F.S. The penalties addressed in this rule shall not be construed to limit the authority of the department to resolve alleged 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 voluntary compliance including administrative action, civil actions, and referrals for criminal prosecution. The department shall enforce a failure to comply with an agreement to resolve alleged violations or a settlement agreement with the penalties and remedies provided in the agreement and as authorized by Chapter 120 or Chapter 531, F.S.

(b) Failure to respond to an administrative complaint shall result in the entry of a default final order against the violator or entity responsible for the violation. The department shall impose administrative fines in a default final order equal to the maximum amount allowable under s. 531.50(1)(b), F.S., except for default final orders for violations of Rule 5J-22.006, F.A.C., in which a fine of $1,000 shall be imposed.

(c) A failure to comply with a final order of the department shall result in additional enforcement actions as authorized by law.

(d) Nothing in this rule shall prohibit the department from exercising the special police powers granted the department under s. 531.42, F.S.

Rulemaking Authority 531.41(3) FS. Law Implemented 531.42, 531.50(1), 531.65 FS. History–New             .

 

NAME OF PERSON ORIGINATING PROPOSED RULE:  Richard Kimsey, Assistant Director, Division of Consumer Services

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE:  Commissioner of Agriculture Adam H. Putnam

DATE PROPOSED RULE APROVED BY AGENCY HEAD:   March 24, 2017

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR:  October 28, 2016