Update the adopted version of the US Department of Transportation Motor Vehicle Safety Standards, No. 116, Motor Vehicle Brake Fluid specifications and include references to obtain copies; create a rule section to reflect current versions of ...

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Standards

RULE NOS.:RULE TITLES:

5F-6.001 Performance Specifications and Standards for Motor Vehicle Brake Fluid

5F-6.002 Registration

5F-6.003 Guidelines for Imposing Administrative Penalties

PURPOSE AND EFFECT: Update the adopted version of the US Department of Transportation Motor Vehicle Safety Standards, No. 116, Motor Vehicle Brake Fluid specifications and include references to obtain copies; create a rule section to reflect current versions of referenced department forms; create a rule section to further define and clarify registration requirements for brake fluid products; create a rule section to define recent statutory changes regarding penalties for violations of Chapter 526, Part II, F.S., and Rule Chapter 5F-6, F.A.C.

SUMMARY: The changes proposed herein update standards and specifications; further clarify statutory requirements already in existence; or add requisite form references.

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 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 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: 526.52(1), 526.53(4), 570.07(23) FS.

LAW IMPLEMENTED: 526.51, 526.53, 526.53, 526.54, 526.55 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: Matthew D. Curran, Ph.D., Chief, Bureau of Standards, 3125 Conner Blvd., Lab #2, Tallahassee, FL 32399, [phone]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

5F-6.001 Performance Specifications and Standards for Motor Vehicle Brake Fluid.

(1) The performance specifications and standards for brake fluid adopted by the United States Department of Transportation and contained in Motor Vehicle Safety Standard No. 116, Motor Vehicle Brake Fluid, revised October 1, 2011 2003, as specified in 49 CFR 571.116, are hereby adopted as rules of the Department of Agriculture and Consumer Services.

(2) The violation of any provisions or standards of this rule is subject to penalties, provided in Chapter 526, Part II, F.S.

(3) Materials. The preceding materials are hereby incorporated by reference. Copies of this publication may be obtained from Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington D.C. 20590 or http://www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/fmcsrruletext.aspx?reg=571.116. Copies of this document may also be accessed at http://www.flrules.org/Gateway/reference.

(4) In accordance with s. 526, Part II, F.S., any brake fluid brand/formula distributed in violation of Sections 526.50 – 526.56, F.S., or this rule chapter shall be placed under stop sale order by the department using FDACS-03206, Stop Sale Order, Rev. 12/12, and FDACS-03537, “Warning” tag, Rev. 08/12, prohibiting the sale of the brake fluid brand/formula combination. Upon resolution of the violation, the brake fluid shall be released by the department. The documents referenced in this subsection are incorporated by reference in Rule 5F-2.001, F.A.C.

Rulemaking Specific Authority 526.52(1), 526.53(4), 570.07(23) FS. Law Implemented 526.53(1), (2), 526.54 FS. History–New 5-8-78, Formerly 5F-6.01, Amended 12-9-98, 12-9-02, 6-21-04,________.

 

5F-6.002 Registration.

(1) Each brake fluid brand/formula combination to be distributed in this state shall be registered annually with the department prior to distribution and registrant shall make application on FDACS-03212, Application for Registration of Brake Fluid or Formula Addition to a Currently Registered Brand, Rev. 10/12, hereby incorporated by reference, if not being renewed under the provisions of subsection (2) of this rule. Copies of this form may be accessed at http://www.flrules.org/Gateway/reference. Application shall be made by the owner of the brand name or, pursuant to Section 526.51(1)(a), F.S., by an applicant providing an affidavit from the brand name owner authorizing applicant to make application for registration. Upon successful registration, pursuant to Chapter 526, Part II, F.S., and this rule chapter, the department shall permit the brake fluid brand/formula combination authorizing the distribution of the specified brake fluid brand/formula combination in this state for the permit year.

(2) In order to be considered as a renewal and in addition to the requirements listed in Section 526.51, F.S., any brake fluid brand/formula combination previously registered for distribution in this state in the permit year immediately preceding the current permit year for which application is being made, must have all associated application materials submitted to the department by the applicant prior to July 1 of the upcoming permit year for which applicant is seeking registration. Application for renewal shall be made on FDACS-03213, Application for Renewal of Registration of Brake Fluid, Rev. 10/12, hereby incorporated by reference. Copies of this form may be accessed at http://www.flrules.org/Gateway/reference. If any one or more components of the application package and/or associated registration elements are received after July 1, a late fee of $25 shall be applied to the renewal fee. Upon successful renewal of registration, pursuant to Chapter 526, Part II, F.S., and this rule chapter, the department shall permit the renewed brake fluid brand/formula combination authorizing the distribution of the specified brake fluid brand/formula combination in this state for the permit year.

(3) Any unregistered brand of brake fluid that was registered in the immediately preceding registration period and has not been or is not currently in the process of being renewed shall be disposed of by the registrant 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.

1. Removal of all unregistered brake fluid product from this state, not to be distributed again in this state until successful registration has been completed, or;

2. Donation of product to a non-profit organization for consumption so long as all donated product meets all specifications for quality, adulteration, and labeling for brake fluid products, as prescribed in Section 526.53, F.S., and this rule chapter, or:

3. Other means approved in writing by the department.

Rulemaking Authority 526.53(4), 570.07(23) FS. Law Implemented 526.51, 526.52, 526.53 FS. History–New_________.

 

5F-6.003 Guidelines for Imposing Administrative Penalties.

(1) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under Chapter 526, Part II, F.S. The purpose of the guidelines is to give notice of the range of penalties, 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 subsequent 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 Chapter 526, Part II, F.S., and this rule chapter by issuing a stop sale order and administrative complaint, if applicable, for violations of Chapter 526, Part II, F.S., and this rule chapter.

(3) Nothing in this 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:

1. The closest analogous violation, if any, that is listed in this rule; and

2. 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 526, Part II, F.S., and this rule chapter. The factors shall be applied against each single count of the listed violation.

(a) Aggravating Factors:

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 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 history over the past three years.

5. The violation existed for an extended period of time.

6. The violation was repeated within a short period of time.

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

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

9. Undue delay in initiating or completing, or failure to take, affirmative or corrective action after receipt of the stop sale order for the violation.

10. Whether the violation resulted from negligence or an intentional act.

11. The cost of enforcement action.

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

13. The benefit to the violator.

(b) Mitigating Factors:

1. Any documented efforts by the violator at rehabilitation.

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

3. Financial hardship.

4. Acts of God or nature that impaired the ability of the violator to comply with Chapter 526, Part II, F.S., or Rule Chapter 5F-6, F.A.C.

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

6. The violator expeditiously took affirmative or corrective action 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.

8. The disciplinary history of the violator.

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

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.

(8) Penalties.

(a) Minor Violations. A violation of Chapter 526, Part II, 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. If a third stop sale order for a minor violation is issued to a business within a three year period and in accordance with Section 526.55, F.S., a $500 penalty shall be issued. An additional penalty of $500 shall be issued for each stop sale order issued for independent events thereafter. For the purposes of this rule, the following violations shall be considered minor violations:

1. Violations of Section 526.52(3)(a), F.S .

2. Violations of Section 526.52(3)(b), F.S.

3. Violations of Section 526.53(5), F.S.

(b) Major Violations. Any violation of Chapter 526, Part II, 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. Major violations shall result in the issuance of a stop sale order and imposition of an administrative fine of $500 per violation for first-time offenders of Chapter 526, Part II, F.S., and/or Rule Chapter 5F-6, F.A.C. within a three-year period. An additional $500 shall be issued for each subsequent violation thereafter within a three-year period, not to exceed the statutory maximum of $5,000 per violation for second-time or repeat offenders of Chapter 526, Part II, F.S. and/or Rule Chapter 5F-6, F.A.C. Aggravating factors, as defined in paragraph (5)(a) of this section, shall warrant the adjustment of the fine upward and mitigating factors, as defined in paragraph (5)(b) of this section, shall warrant the adjustment of the fine downward, but no fine shall exceed the statutory maxima as outlined in Section 526.55, 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/formula combination of brake fluid, all previous fines shall be disregarded when administering a fine for the next violation. Pursuant to Section 526.51, F.S., the department may also cancel or refuse to issue a registration for a major violation. For the purposes of this rule, the following violations shall be considered major violations:

1. Violations of subsection 5F-6.001(1), F.A.C.

2. Violations of subsection 5F-6.002(1), 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 registered applicable products in this state prior. Subsequent violations by same registrant for any brand/formula combination within a three-year period shall not be mitigated under these provisions.

3. Violations of subsection 5F-6.002(3), F.A.C.

4. Violations of Section 526.52(3)(c), F.S.

(c) Willful Violations. Willful violations shall result in the imposition of an administrative fine of up to $5,000 per violation, suspension of registration for a period of one year, and/or additional penalties as prescribed by law. The following shall constitute a willful violation:

1. Any willful and intentional violation of Chapter 526, Part II, F.S., or this rule chapter or of any requirement or standard adopted pursuant thereto, not otherwise included in this section.

2. Any willful and intentional violation of a stop sale order or the conditions stipulated on a release.

3. A failure to comply with either a Final Order or a Default Final Order of the department.

(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 enter into settlement pursuant to Section 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 Chapter 526, Part II, 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 may impose administrative fines in a Default 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 $5,000 per violation. Additional penalties shall be sought through the enforcement of the order in circuit court.

Rulemaking Authority 526.53(4), 570.07(23) FS. Law Implemented 526.55 FS. History–New________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Matthew D. Curran, Ph.D., Chief, Bureau of Standards

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 27, 2013

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: February 19, 2013