The changes proposed herein update specifications, amend 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-24.001Performance Specifications and Standards for Motor Vehicle Brake Fluid

5J-24.002Registration

5J-24.003Guidelines for Imposing Administrative Penalties

PURPOSE AND EFFECT: The changes proposed herein update specifications, amend 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 adopt updated versions of the US Department of Transportation Motor Vehicle Safety Standards, No. 116, Motor Vehicle Brake Fluid specifications and update references to obtain copies. The proposed rules also incorporate new standards by adopting SAE International J1703 “Motor Vehicle Brake Fluid,” and SAE International J1704 “Motor Vehicle Brake Fluid Based Upon Glycols, Glycol Ethers and Corresponding Borates.” Finally, the proposed rules reflect current versions of incorporated department forms, including the registration application, which must be updated 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, update standards incorporated by reference, and revise the penalty section. There are no increased regulatory costs associated with these revisions. Likewise, newly adopted standards reflect current industry practices and will not impose any increased regulatory costs. 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: 526.52(1), 526.53(4), 570.07(23) FS.

LAW IMPLEMENTED: 526.51, 526.52, 526.53, (1), (2), 526.54, 526.55, 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-24.001 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 Fluids, revised October 1, 2017 2011, as referenced in 49 CFR 571.116, are hereby incorporated by reference adopted as rules of the Department of Agriculture and Consumer Services. Copies of this publication may be obtained from the Superintendent of Documents, U.S. Government Publishing Office, 732 N. Capitol Street NW, Washington, D.C. 20401, or at http://www.flrules.org/Gateway/reference.asp?No=Ref-        .

              (a) The performance specification and standard for brake fluid is hereby incorporated by reference: SAE International J1703 “Motor Vehicle Brake Fluid,” revised July 14, 2016.

              (b) The performance specification and standard for brake fluid is hereby incorporated by reference: SAE International J1704 “Motor Vehicle Brake Fluid Based Upon Glycols, Glycol Ethers and the Corresponding Borates,” revised July 14, 2016.

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

(2) (3) Materials.The preceding materials are hereby incorporated by reference. Copies of the SAE publications referenced in this rule may be obtained at http://standards.sae.org, and are also available for public inspection during regular business hours at the Florida Department of Agriculture and Consumer Services, Bureau of Standards, 3125 Conner Boulevard, Tallahassee, FL 32399-1650. Posting of this material on the internet for purposes of public examination would violate federal copyright law. this publication may be obtained from Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue, S.E., Washington D.C. 20590 or http://www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/fmcsrruletext.aspx?reg=571.116.http://www.flrules.org/Gateway/reference.asp?No=Ref-03649

(3) (4) In accordance with sSection 526.53(2)(a), F.S., any brake fluid brand/formula sold, offered, or exposed for sale distributed in violation of sSections 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. 02/17, as incorporated by reference in rule 5J-22.003, F.A.C., 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, using FDACS-03209, Release, Rev. 02/17 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 526.52(1), 526.53(4), 570.07(23) FS. Law Implemented 526.52, 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, 2-26-14, Formerly 5F-6.001, Amended          .

 

5J-24.002 Registration.

(1) In accordance with section 526.51, F.S., eEach brake fluid brand/formula combination to be distributed in this state shall be registered or renewed annually or biennially with the department prior to being sold, offered, or exposed for sale. distribution and Rregistrant shall make application on FDACS-03212, Brake Fluid Registration Application for Registration of Brake Fluid or Formula Addition to a Currently Registered Brand, Rev. 02/19 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.asp?No=Ref-       03647. Application shall be made by the owner of the brand name or, pursuant to sSection 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 sSection 526.51, F.S., and this rule chapter, the department shall permit the brake fluid brand/formula combination authorizing the sale, offering, or exposing for sale distribution of the specified brake fluid brand/formula combination in this state for the permit period year.

(2) Application for renewal shall be made on FDACS-03212, Brake Fluid Registration Application, Rev. 02/19, as incorporated in subsection (1) of this rule.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 also 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.asp?No=Ref-03648. If any one or more components of the application package and/or associated registration elements are received after the current permit expiration date July 1, a late fee of $25 shall be added applied to the renewal fee. Upon successful renewal of registration, pursuant to Section 526.51, F.S., and this rule chapter, the department shall permit the renewed brake fluid brand/formula combination authorizing the sale, offering, or exposing for sale distribution of the specified brake fluid brand/formula combination in this state for the permit period 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 30 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:

(a) Removal of all unregistered brake fluid product from this state, not to be sold, offered, or exposed for sale distributed again in this state until successful registration has been completed, or;

(b) Donation of product to a non-profit organization for consumption may be allowed as so long as all donated product has not been adulterated and meets all specifications for quality, adulteration, and labeling for brake fluid products, as prescribed in sSection 526.52 526.53, F.S., and this rule chapter.

Rulemaking Authority 526.53(4), 570.07(23) FS. Law Implemented 526.51, 526.52, 526.53 FS. History–New 2-26-14, Formerly 5F-6.002., Amended         .

 

5J-24.003 Guidelines for Imposing Administrative Penalties.

(1) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under sSections 526.51(3), 526.53 and 526.55, 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 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) No change. 

(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) No change.

(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 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. Failure 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 Chapter 526, Part II, F.S., or this rRule cChapter 5J-24, 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.

79. 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 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 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 for a minor violation is issued to a business within a three year period a $500 penalty shall be issued in accordance with Section 526.55, 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, the following violations shall be considered minor violations:

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

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

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

(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 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. For the purposes of this rule, the following violations shall be considered Tier I violations:

1. Violations of subsection 5J-24.002(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 previously registered products subject to this subsection in this state. Subsequent violations by same registrant for any brand/formula combination within a three-year period shall not be mitigated under these provisions.

2. Violations of subsection 5J-24.002(3), F.A.C.

(c) (b) Major Violations: Tier II. A Tier II violation 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 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 Chapter 526, Part II, F.S., and/or rRule cChapter 5J-24, 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 Chapter 526, Part II, F.S. and/or Rule Chapter 5J-24, F.A.C., not to exceed the statutory maximum of $5,000 per violation. Aggravating factors, as defined in paragraph (5)(a) of this rule 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 rule section, shall warrant the adjustment of the fine downward from $250 to $2,500 per violation per mitigating factor, but no fine shall exceed the statutory maximum as outlined in Section 526.55. If, three years after the day of the last 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. 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. No change.

2. Violations of section 526.52(2), F.S. Violations of subsection 5J-24.002(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 previously registered products subject to this subsection in this state. 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 5J-24.002(3), F.A.C.

3. 4. No change.

(c)Willful Violations. Willful violations shall result in the imposition of an administrative fine of $5,000 per violation and suspension of registration for a period of one year. The following shall constitute a willful violation:

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

2. 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 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 cChapter 120 and or cChapter 526, Part II, F.S.

(b) No change.

(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, 570.971 FS. History–New 2-26-14, Formerly 5F-6.003, 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