The changes proposed herein update adopted versions of ASTM International Designations and correct outdated rule references; adjust allowances for MTBE and sulfur; harmonize the levels of allowed methanol and butanol with EPA levels and update ...

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Consumer Services

RULE NOS.:RULE TITLES:

5J-21.001Standards

5J-21.002Disposition of Below Standard Gasoline, Kerosene, Diesel Fuel Oils No. 1-D and No. 2-D, and Fuel Oils No. 1 and No. 2, and Alternative Fuels

5J-21.003Registration and Identification

5J-21.004Motor Fuel Price Posting

5J-21.005Inaccurate Measuring Devices

5J-21.006Inspection Identification Stickers

5J-21.007Adoption of the General Code and the Codes of Liquid-Measuring Devices, Liquefied Petroleum Gas and Anhydrous Ammonia Liquid-Measuring Devices, Hydrocarbon Gas Vapor-Measuring Devices, Vehicle-Tank Meters, Vehicle Tanks Used as Measures of National Institute of Standards and Technology Handbook 44 Meter Sealing Requirements, and Other Related Requirements

5J-21.008Guidelines for Imposing Administrative Penalties

PURPOSE AND EFFECT:  The changes proposed herein update adopted versions of ASTM International Designations and correct outdated rule references; adjust allowances for MTBE and sulfur; harmonize the levels of allowed methanol and butanol with EPA levels and update petroleum labeling requirements. Additionally, the changes remove unnecessary form references, clarify the minimum size for prices posted on roadside signs, clarify requirements for registered meter mechanics and service agencies, amend the allowable level of water in petroleum storage tanks and remove duplicative requirements, update penalties, harmonize violations with other department rules, update, modernize and clarify language throughout the rule chapter. 

SUMMARY:  The proposed amendments update adopted versions of ASTM International Designations and outdated references to Rule Chapters 5F-2 and 5F-10 with correct references to 5J-22.001 and 5J-22.002, F.A.C.; adjust standards and labeling requirements for diesel and alternative fuels, modify allowable levels of methanol, butanol and MTBE in gasoline and gasoline blends and harmonize the allowable level of water in petroleum storage tanks with the NCWM nationally adopted standard.  Eliminate unnecessary form numbers, clarify the minimum size for prices posted on roadside signs, clarify reporting and sealing iron requirements for registered meter mechanics and service agencies, add Tier I and Tier II language to the minor and major violation designations to harmonize with other bureau programs and rules, update, modernize, clarify and remove unnecessary and duplicative language and requirements throughout the rule chapter.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS (SERC) AND LEGISLATIVE RATIFICATION:

The Agency has determined that these rules 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 rules.  A SERC has not been prepared by the agency.

The Agency has determined that the proposed rules are 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 Section 120.541(2)(a), Florida Statutes. The proposed amendments will not add any cost to regulated businesses or the department. 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:  525.14, 526.09, 526.141(5)(b), 531.40, 531.41(3), 531.42, 570.07(23) FS.

LAW IMPLEMENTED: 525.01, 525.07, 525.09, 525.035, 525.037, 525.14, 525.16, 526.01, 526.141(5)(b), 531.40, 531.42, 531.44, 570.971(4) 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: Harold Prince, Chief, Bureau of Standards, 3125 Conner Blvd., Bldg. #2, Tallahassee, FL 32399, [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

5J-21.001 Standards.

(1) Gasoline (includes gasoline blended with oxygenates). The following specifications apply to gasoline sold or offered for sale in Florida. Specific variations or exemptions shall be considered by the Department of Agriculture and Consumer Services for gasoline designed for special equipment or service in accordance with Section 120.542, F.S., Variances and Waivers.

(a) Standards. All gasoline shall conform to the chemical and physical standards for gasoline as set forth in ASTM International Designation D4814-20a (approved April 1, 2020)D4814-13a (approved June 15, 2013), “Standard Specification for Automotive Spark-Ignition Engine Fuel”, with the following exceptions, providing that the base gasoline used under the exceptions conforms to the chemical and physical standards for gasoline as set forth in ASTM International Designation D4814-20a (approved April 1, 2020) D4814-13a (approved June 15, 2013), “Standard Specification for Automotive Spark-Ignition Engine Fuel” except where noted:

1. Vapor Pressure Class Requirements: a. Gasoline containing at least one (1) percent ethanol by volume shall be allowed a 1.0 psi increase to the applicable vapor pressure class maximum from September 16 through May 31 (not applicable for gasoline/ethanol blend tankage at refineries, importers, pipelines, and terminals for the month of May). From June 1 (May 1 for gasoline/ethanol blend tankage at refineries, importers, pipelines, and terminals) through September 15, gasoline blends containing ethanol shall conform to the vapor pressure class requirements and are entitled to the permissible increases provided by the Environmental Protection Agency (EPA) and outlined in ASTM International Designation D4814-20a (approved April 1, 2020)D4814-13a (approved June 15, 2013), “Standard Specification for Automotive Spark-Ignition Engine Fuel.”

b. Gasoline subject to the Class AA Vapor Pressure Requirements shall only be required to meet the Class A Vapor Pressure Requirements.

2. If, prior to blending with ethanol, the base gasoline has either a maximum distillation temperature at the fifty volume percent evaporated distillation point of up to 10° F above the maximum or has a driveability index (DI) of up to 30 above the maximum, as stated for the proper distillation class in ASTM International Designation D4814-20a (approved April 1, 2020)D4814-13a (approved June 15, 2013), “Standard Specification for Automotive Spark-Ignition Engine Fuel”, or has both, the fuel may be sold, distributed or offered for sale or distribution provided that the department is contacted at [phone] prior to exercising this option and is provided with a documented company statement attesting to and demonstrating the following:

a.  No change.

b. The base gasoline meets all other specifications for spark-ignition engine fuels as set forth in ASTM International Designation D4814-20a (approved April 1, 2020)D4814-13a (approved June 15, 2013), “Standard Specification for Automotive Spark-Ignition Engine Fuel.”.

c. No change.

d. The fuel will be tested by the owner after blending (hand blend samples are acceptable), but before selling, distributing, offering for sale or distribution, and it shall be demonstrated that the fuel meets all specifications for gasoline as defined in ASTM International Designation D4814-20a (April 1, 2020)D4814-13a (approved June 15, 2013), “Standard Specification for Automotive Spark-Ignition Engine Fuel”, which shall be displayed on a certificate of analysis or laboratory report. Such documentation must be made available to the department upon request.

e. No change.

(b) Analysis. For purposes of inspection and testing, laboratory analyses shall be conducted using the methods recognized by ASTM International Designation D4814-20a (approved April 1, 2020)D4814-13a (approved June 15, 2013), “Standard Specification for Automotive Spark-Ignition Engine Fuel.”

(c) No person shall sell or offer for sale gasoline in this state that does not comply with the following requirements:

1. The Environmental Protection Agency has approved the use of gasoline containing up to 15% ethanol, by volume, in model year 2001 and newer vehicles. The total ethanol content of gasoline shall not exceed fifteen percent (15%), by volume; or

2. The total methanol with and co-solvents content of gasoline shall not exceed seven and one half ten percent (7.5%)(10%), where methanol does not exceed five percent (5%) and the co-solvents do not exceed two and one half percent (2.5%), by volume; or

3. The total methyl tertiary butyl ether (MTBE) content of gasoline shall not exceed two fifteen percent (2%)(15%), by volume; or

4. No change.

5. The total butanol content of gasoline shall not exceed twelve and one a half percent (12.5%), by volume.

(d) through (e) No change.

(2) Kerosene (Kerosine). The following specifications apply to kerosene No. 1-K and No. 2-K sold or offered for sale in Florida.

(a) Standards. All kerosene No. 1-K and No. 2-K shall conform to the chemical and physical standards for kerosene No. 1-K and No. 2-K as set forth in ASTM International Designation D3699-19 (approved December 15, 2019)D3699-13a (approved June 15, 2013), “Standard Specification for Kerosine.”

(b) Analysis. For purposes of inspection and testing, laboratory analyses shall be conducted using the methods recognized by ASTM International Designation D3699-19 (approved December 15, 2019)D3699-13a (approved June 15, 2013), “Standard Specification for Kerosine.”

(3) Diesel Fuels Oils No. 1-D and No. 2-D. The following specifications apply to diesel fuels oils No. 1-D and No. 2-D sold or offered for sale in Florida.

(a) Standards. All diesel fuels oils No. 1-D and No. 2-D shall conform to the chemical and physical standards for diesel fuels oils No. 1-D and No. 2-D as set forth in ASTM International Designation D975-20a (approved June 1, 2020)D975-13 (approved May 1, 2013), “Standard Specification for Diesel Fuel Oils.”

(b) Analysis. For purposes of inspection and testing, laboratory analyses shall be conducted using the methods recognized by ASTM International Designation D975-20a (approved June 1, 2020)D975-13 (approved May 1, 2013), “Standard Specification for Diesel Fuel Oils.”

(4) Fuel Oils No. 1 and No. 2. The following specifications apply to fuel oils No. 1 and No. 2 sold or offered for sale in Florida.

(a) Standards. All fuel oils No. 1 and No. 2 shall conform to the chemical and physical standards for fuel oils No. 1 and No. 2 as set forth in ASTM International Designation D396-20 (approved June 1, 2020)D396-13a (approved June 15, 2013), “Standard Specification for Fuel Oils.”

(b) Analysis. For purposes of inspection and testing, laboratory analyses shall be conducted using the methods recognized by ASTM International Designation D396-20 (approved June 1, 2020)D396-13a (approved June 15, 2013), “Standard Specification for Fuel Oils.”

(5) Alternative Fuels.

(a) Denatured Ethanol.

1. Standards. All denatured fuel ethanol shall conform to the chemical and physical standards for denatured fuel ethanol as set forth in the ASTM International Designation D4806-20 (approved May 1, 2020)D4806-13a (approved June 15, 2013), “Standard Specification for Denatured Fuel Ethanol for Blending with Gasolines for Use as Automotive Spark-Ignition Engine Fuel.”

2. Analysis. For purposes of inspection and testing, laboratory analyses shall be conducted using the methods recognized by the ASTM International Designation D4806-20 (approved May 1, 2020)D4806-13a (approved June 15, 2013), “Standard Specification for Denatured Fuel Ethanol for Blending with Gasolines for Use as Automotive Spark-Ignition Engine Fuel.”

(b) Methanol Fuel Blends (51 to 85 volume percent methanol).Methanol, Other Alcohols, Mixtures of Methanol or Mixtures of Other Alcohols. M85 Fuel Methanol. The following specifications apply to M85 Fuel Methanol Fuel Blends (51 to 85 volume percent methanol) sold or offered for sale in Florida.

1. Standards. All M85 Fuel Methanol Fuel Blends (51 to 85 volume percent methanol) shall conform to the chemical and physical standards for Fuel Methanol Fuel Blends (51 to 85 volume percent methanol) as set forth in the ASTM International Designation D5797-18 (approved December 1, 2018)D5797-13 (approved June 15, 2013), “Standard Specification for Methanol Fuel Blends (M51-M85) Methanol (M70-M85) for Methanol-Capable Automotive Spark-Ignition Engines” with the following addition: All M85 Fuel Methanol and shall conform to the end-point distillation temperature requirements for gasoline, as defined in subsection 5J-21.001(1), F.A.C.

2. Analysis. For purposes of inspection and testing, laboratory analyses shall be conducted using the methods recognized by the ASTM International Designation D5797-18 (approved December 1, 2018)D5797-13 (approved June 15, 2013), “Standard Specification for Methanol Fuel Blends (M51-M85)Methanol (M70-M85) for Methanol-Capable Automotive Spark-Ignition Engines.”

(c) Mixtures of Denatured Ethanol.

1. Ethanol Fuel Blends (51 to 83 volume percent ethanol). The following specifications apply to Ethanol Fuel Blends (51 to 83 volume percent ethanol) sold or offered for sale in Florida.

a. Standards. All Ethanol Fuel Blends (51 to 83 volume percent ethanol) shall conform to the chemical and physical standards for Ethanol Fuel Blends (51 to 83 volume percent ethanol) as set forth in the ASTM International Designation D5798-20 (approved May 1, 2020)D5798-13a (approved June 15, 2013), “Standard Specification for Ethanol Fuel Blends for Flexible-Fuel Automotive Spark-Ignition Engines” and shall conform to the end-point distillation temperature requirements for gasoline, as defined in subsection 5J-21.001(1), F.A.C.

b. Analysis. For purposes of inspection and testing, laboratory analyses shall be conducted using the methods recognized by the ASTM International Designation D5798-20 (approved May 1, 2020)D5798-13a (approved June 15, 2013), “Standard Specification for Ethanol Fuel Blends for Flexible-Fuel Automotive Spark-Ignition Engines.”

2. Mid-Level Ethanol Blends. The following specifications shall apply to automotive spark-ignition engine fuels with ethanol concentrations greater than that which is permitted in subsection 5J-21.001(1), F.A.C., and less than that which is permitted in subparagraph 5J-21.001(5)(c)1., F.A.C., sold or offered for sale in Florida.

a. Standards. All mid-level ethanol blends shall conform to the practices as set forth in the ASTM International Designation D7794-20 (approved July 1, 2020)D7794-12 (approved April 15, 2012), “Standard Practice for Blending Mid-Level Ethanol Fuel Blends for Flexible-Fuel Vehicles with Automotive Spark-Ignition Engines” and shall conform to the end-point distillation temperature requirements for gasoline, as defined in subsection 5J-21.001(1), F.A.C.

b. Analysis. For purposes of inspection and testing, laboratory analyses shall be conducted using the methods recognized by the ASTM International Designation D7794-20 (approved July 1, 2020)D7794-12 (approved April 15, 2012), “Standard Practice for Blending Mid-Level Ethanol Fuel Blends for Flexible-Fuel Vehicles with Automotive Spark-Ignition Engines.”

(d) Fuels, other than alcohol, derived from biological materials:

1. Biodiesel fuel blend stock (also referred to as biodiesel or B100) and B99 (99% biodiesel and 1% diesel fuel by volume). The following specifications apply to biodiesel and B99 sold or offered for sale in Florida.

a. Standards. Biodiesel and B99 shall meet the specifications set forth by ASTM International Designation D6751-20 (approved January 1, 2020)D6751-12 (approved August 1, 2012), “Standard Specification for Biodiesel Fuel Blend Stock (B100) for Middle Distillate Fuels.”

b. Analysis. For purposes of inspection and testing, laboratory analyses shall be conducted using the methods recognized by the ASTM International Designation D6751-20 (approved January 1, 2020)D6751-12 (approved August 1, 2012), “Standard Specification for Biodiesel Fuel Blend Stock (B100) for Middle Distillate Fuels.”

2. Biodiesel blends (biodiesel blended with diesel fuel or fuel oil). The following specifications apply to biodiesel blends sold or offered for sale in Florida. Biodiesel blends cannot contain more than 20% biodiesel. B99 is not considered a blend for the purposes of this subparagraphsection.

a. Standards. Biodiesel blends containing diesel fuel and 6% or more biodiesel shall meet the specifications set forth by ASTM International Designation D7467-20a (approved June 1, 2020)D7467-13 (approved May 1, 2013), “Standard Specification for Diesel Fuel Oil, Biodiesel Blend (B6 to B20).”

b. Standards. Biodiesel blends containing diesel fuel and less than 6% biodiesel shall meet the specifications set forth by ASTM International Designation D975-20a (approved June 1, 2020)D975-13 (approved May 1, 2013), “Standard Specification for Diesel Fuel Oils.”

c. Standards. Biodiesel blends containing fuel oil shall meet the specifications set forth by ASTM International Designation D396-20 (approved June 1, 2020) D396-13a (approved June 15, 2013), “Standard Specification for Fuel Oils.”

d. Analysis. For purposes of inspection and testing biodiesel blends containing diesel fuel and 6% or more biodiesel, laboratory analyses shall be conducted using the methods recognized by the ASTM International Designation D7467-20a (approved June 1, 2020)D7467-13 (approved May 1, 2013), “Standard Specification for Diesel Fuel Oil, Biodiesel Blend (B6 to B20).”

e. Analysis. For purposes of inspection and testing biodiesel blends containing diesel fuel and less than 6% biodiesel, laboratory analyses shall be conducted using the methods recognized by ASTM International Designation D975-20a (approved June 1, 2020)D975-13 (approved May 1, 2013), “Standard Specification for Diesel Fuel Oils.”

f. Analysis. For purposes of inspection and testing biodiesel blends containing fuel oil, laboratory analyses shall be conducted using the methods recognized by the ASTM International Designation D396-20 (approved June 1, 2020)D396-13a (approved June 15, 2013), “Standard Specification for Fuel Oils.”

(e) Butanol.:

1. Standards. All butanol shall conform to the chemical and physical standards for butanol as set forth in the ASTM International Designation D7862-19 (approved May 1, 2019)D7862-13 (approved June 15, 2013), “Standard Specification for Butanol for Blending with Gasoline for Use as Automotive Spark-Ignition Engine Fuel.”

2. Analysis. For purposes of inspection and testing, laboratory analyses shall be conducted using the methods recognized by the ASTM International Designation D7862-19 (approved May 1, 2019)D7862-13 (approved June 15, 2013), “Standard Specification for Butanol for Blending with Gasoline for Use as Automotive Spark-Ignition Engine Fuel.”

(6) Water in Retail Storage Tanks.

(a) Water in retail storage tanks containing petroleum fuels products, with the exception of products listed in paragraph (6)(b), enumerated in this rule shall not exceed one two inches in depth when measured from the bottom of the tank.

(b) Water in retail storage tanks containing gasoline blended with 1% or more ethanol, by volume; Ethanol Fuel Blends E85; Methanol Fuel Blends M85; biodiesel; or biodiesel blends containing 1% 6% or more biodiesel, by volume, shall not exceed one quarter inch in depth when measured from the bottom of the tank.

(7) Compressed Natural Gas (CNG) and Liquefied Natural Gas (LNG) Standards. The National Institute of Standards and Technology (NIST) Handbook 44 (2014 Edition), Sections 1.10 General Code; 3.33 Hydrocarbon Gas Vapor-Measuring Devices; and 3.37 Mass Flow Meters are hereby adopted by reference for compressed natural gas (CNG) and liquefied natural gas (LNG) dispensing systems. A copy of this handbook may be obtained from the National Institute of Standards and Technology, 100 Bureau Drive, Stop 2100, Gaithersburg, MD 20899-2100 or at http://www.flrules.org/Gateway/reference.asp?No=Ref-03830. The National Institute of Standards and Technology (NIST) Handbook 130 (2014 Edition), Introduction and Section 2.27 of the Uniform Regulation for the Method of Sale of Commodities are hereby adopted by reference for the sale of compressed natural gas (CNG) and liquefied natural gas (LNG). A copy of this handbook may be obtained from the National Institute of Standards and Technology, 100 Bureau Drive, Stop 2100, Gaithersburg, MD 20899-2100 or at http://www.flrules.org/Gateway/reference.asp?No=Ref-03831. These codes 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, Tallahassee, FL 32399-1650.

(a) The general codes for CNG and LNG as enumerated in the National Institute of Standards and Technology (NIST) Handbook 44, as incorporated by reference in Rule 5J-22.002, F.A.C.

(b) The Uniform Regulation for the Method of Sale of Commodities for CNG and LNG as enumerated in the National Institute of Standards and Technology (NIST) Handbook 130, as incorporated by reference in Rule 5J-22.003, F.A.C.

(8) In accordance with Section 525.035, F.S., any petroleum fuel that fails to meet applicable labeling requirements, as adopted in this the rule chapter, shall be placed under Stop Sale Order by the department using FDACS-03206, Stop Sale Order, Rev. 12/12, hereby incorporated by reference. Samples of this form may be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-03832. The measuring devices and storage tanks of said product shall be sealed by the department with FDACS-03537, Warning Tag, Rev. 08/12, hereby incorporated by reference prohibiting the sale of the petroleum fuel. Samples of this form may be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-03833. The petroleum fuel shall be released by the department from the Stop Sale Order in accordance with Section 525.035, F.S., using FDACS-03209, Release, Rev. 01/09, hereby incorporated by reference. Samples of this form may be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-03834.

(9) In accordance with Section 525.037, F.S., any petroleum fuel that fails to meet applicable standards, as adopted in this rule chapter, shall be placed under Stop Sale Order by the department using FDACS-03206, Stop Sale Order, Rev. 12/12, and the measuring devices and storage tanks of said petroleum fuel shall be sealed by the department with FDACS-03537, Warning Tag, Rev. 08/12, prohibiting the sale of the petroleum fuel. The petroleum fuel shall be released by the department from the Stop Sale Order in accordance with Section 525.037, F.S., using FDACS-03209, Release, Rev. 01/09. The documents referenced in this subsection are adopted in subsection (8) above.

(10) Materials. The following materials are hereby incorporated by reference. Copies of these publications may be obtained from ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428, or http://www.astm.org and are also available for public inspection during regular business hours at the Florida Administrative Code and Register, R.A. Gray Building, 500 South Bronough Street, Tallahassee, FL 32399-0250, and at the Florida Department of Agriculture and Consumer Services, Division of Consumer Services, Bureau of Standards, 3125 Conner Boulevard, Tallahassee, FL 32399-1650. Posting of the following materials on the internet for purposes of public examination would violate federal copyright law.

(a) ASTM International Designation D4814-20a (approved April 1, 2020)D4814-13a (approved June 15, 2013), “Standard Specification for Automotive Spark-Ignition Engine Fuel.”

(b) ASTM International Designation D3699-19 (approved December 15, 2019)D3699-13a (approved June 15, 2013), “Standard Specification for Kerosine.”

(c) ASTM International Designation D975-20a (approved June 1, 2020)D975-13 (approved May 1, 2013), “Standard Specification for Diesel Fuel Oils.”

(d) ASTM International Designation D396-20 (approved June 1, 2020)D396-13a (approved June 15, 2013), “Standard Specification for Fuel Oils.”

(e) ASTM International Designation D4806-20 (approved May 1, 2020)D4806-13a (approved June 15, 2013), “Standard Specification for Denatured Fuel Ethanol for Blending with Gasolines for Use as Automotive Spark-Ignition Engine Fuel.”

(f) ASTM International Designation D5798-20 (approved May 1, 2020)D5798-13a (approved June 15, 2013), “Standard Specification for Ethanol Fuel Blends for Flexible-Fuel Automotive Spark-Ignition Engines.”

(g) ASTM International Designation D5797-18 (approved December 1, 2018)D5797-13 (approved June 15, 2013), “Standard Specification for Methanol Fuel Blends (M51-M85) Methanol (M70-M85) for Methanol-Capable Automotive Spark-Ignition Engines.”

(h) ASTM International Designation D6751-20 (approved January 1, 2020)D6751-12 (approved August 1, 2012), “Standard Specification for Biodiesel Fuel Blend Stock (B100) for Middle Distillate Fuels.”

(i) ASTM International Designation D7467-20a (approved June 1, 2020)D7467-13 (approved May 1, 2013), “Standard Specification for Diesel Fuel Oil, Biodiesel Blend (B6 to B20).”

(j) ASTM International Designation D7794-20 (approved July 1, 2020)D7794-12 (approved April 15, 2012), “Standard Practice for Blending Mid-Level Ethanol Fuel Blends for Flexible-Fuel Vehicles with Automotive Spark-Ignition Engines.”

(k) ASTM International Designation D7862-19 (approved May 1, 2019)D7862-13 (approved June 15, 2013), “Standard Specification for Butanol for Blending with Gasoline for Use as Automotive Spark-Ignition Engine Fuel.”

Rulemaking Authority 525.14, 570.07(23) FS. Law Implemented 525.01, 525.035, 525.037, 525.14 FS. History–New 1-15-68, Amended 7-1-71, 7-1-73, 12-1-73, 11-16-74, 2-13-80, 5-3-83, Formerly 5F-2.01, Amended 5-3-90, 8-13-92, 11-29-94, 11-13-97, 12-9-98, 8-3-99, 7-31-00, 9-3-01, 8-15-02, 6-29-03, 6-21-04, 4-18-05, 6-1-06, 5-6-08, 1-3-10, 4-3-14, 1-7-15, Formerly 5F-2.001, Amended            .

 

5J-21.002 Disposition of Below Standard Gasoline, Kerosene, Diesel Fuels Oils No. 1-D and No. 2-D, and Fuel Oils No. 1 and No. 2, and Alternative Fuels.

(1) Gasoline. All gasoline found not meeting any standard adopted in subsection 5J-21.001(1), F.A.C.; any other standard pertaining to gasoline adopted in this rule chapter, or by reason of containing water, sediment, or suspended matter, shall be withheld from sale to the public under the provisions of this section in accordance with the procedures in subsections 5J-21.001(8) and (9), F.A.C.(6) and (7).

(2) Kerosene. All kerosene found not meeting any standard adopted in subsection 5J-21.001(2), F.A.C.; any other standard pertaining to kerosene adopted in this rule chapter, or by reason of containing water, sediment, or suspended matter, shall be withheld from sale to the public under the provisions of this section in accordance with the procedures in subsections 5J-21.001(8) and (9), F.A.C.(6) and (7).

(3) Diesel Fuels Oils No. 1-D and No. 2-D. All Diesel Fuels Oils No. 1-D and No. 2-D found not meeting any standard adopted in subsection 5J-21.001(3), F.A.C.; any other standard pertaining to Diesel Fuel Oils No. 1-D and No. 2-D adopted in this rule chapter, or by reason of containing water, sediment, or suspended matter, shall be withheld from sale to the public under the provisions of this section in accordance with the procedures in subsections 5J-21.001(8) and (9), F.A.C.(6) and (7).

(4) Fuel Oils No. 1 and No. 2. All Fuel Oils No. 1 and No. 2 found not meeting any standard adopted in subsection 5J-21.001(4), F.A.C.; any other standard pertaining to Fuel Oils No. 1 and No. 2 adopted in this rule chapter, or by reason of containing water, sediment, or suspended matter, shall be withheld from sale to the public under the provisions of this section in accordance with the procedures in subsections 5J-21.001(8) and (9), F.A.C.(6) and (7).

(5) Alternative Fuels. All alternative fuels found not meeting any standard adopted in subsection 5J-21.001(5), F.A.C.; any other standard pertaining to alternative fuels adopted in this rule chapter, or by reason of containing water, sediment, or suspended matter, shall be withheld from sale to the public under the provisions of this section in accordance with the procedures in subsections 5J-21.001(8) and (9), F.A.C.(6) and (7).

(6) In accordance with Section 525.035, F.S., any petroleum fuel that fails to meet applicable labeling requirements, as adopted in this rule, shall be placed under Stop Sale Order by the department using FDACS-03206, Stop Sale Order, Rev. 12/12, and the measuring devices and storage tanks of said product shall be sealed by the department with FDACS-03537, Warning Tag, Rev. 08/12, prohibiting the sale of the petroleum fuel. The petroleum fuel shall be released by the department from the Stop Sale Order in accordance with Section 525.035, F.S., using FDACS-03209, Release, Rev. 1/09. The documents referenced in this subsection are incorporated by reference in Rule 5J-21.001, F.A.C.

(7) In accordance with Section 525.037, F.S., any petroleum fuel 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. 12/12, and the measuring devices and storage tanks of said petroleum fuel shall be sealed by the department with FDACS-03537, Warning Tag, Rev. 08/12, prohibiting the sale of the petroleum fuel. The petroleum fuel shall be released by the department from the Stop Sale Order in accordance with Section 525.037, F.S., using FDACS-03209, Release, Rev. 01/09. The documents referenced in this subsection are incorporated by reference in Rule 5J-21.001, F.A.C.

Rulemaking Authority 525.14, 570.07(23) FS. Law Implemented 525.035, 525.037, 525.16 FS. History–New 7-1-71, Amended 7-1-73, Repromulgated 12-31-74, Amended 2-13-80, Formerly 5F-2.02, Amended 5-3-90, 8-13-92, 1-24-93, 11-29-94, 6-1-06, 5-6-08, 1-3-10, 1-7-15, Formerly 5F-2.002, Amended            .

 

5J-21.003 Registration and Identification.

(1) Every retail gasoline dispenser shall have the octane rating of the gasoline being sold therefrom conspicuously and firmly posted in a manner conforming with 16 CFR Part 306.12 (1-1-19 1-1-12 Edition), which is hereby incorporated by reference. Copies of this publication may be obtained from the Superintendent of Documents, U.S. Government Publishing Printing Office, 732 N. Capitol Street NW, Washington, D.C. 20401 20402, or at http://www.flrules.org/Gateway/reference.asp?No=Ref-     04786.

(2) through (4) No change.

(5) Every retail diesel fuel dispenser shall have the proper grade designation to indicate the sulfur content of the diesel fuel being sold therefrom conspicuously and firmly attached thereto and in accordance with 40 CFR Parts 80.570-80.574 (7-1-13 Edition), which is hereby incorporated by reference. Copies of this publication may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402, or at http://www.flrules.org/Gateway/reference.asp?No=Ref-04787 be conspicuously labeled “diesel”. The label shall be placed on the vertical surface of each dispenser housing on each side that has measure and price meters. The label shall be on the upper two-thirds of the dispenser and clearly visible to anyone dispensing fuel from the dispenser.

(6)(a) All gasoline kept, offered, or exposed for sale, or sold, at retail, containing at least one percent but no more than 10% by volume of ethanol, methanol, or a combination shall be identified as “contains 10% or less ethanol” or “contains 1-10% ethanol,” “contains 10% or less methanol” or “contains 1-10% methanol,” or “contains 10% or less ethanol/methanol” or “contains 1-10% ethanol/methanol”, or other definitive equivalent statement declaring the presence of methanol, ethanol, or combination on the upper fifty percent of the dispenser front panel in a position clear and conspicuous from the driver’s position, in a type at least 1/2'' inch in height and 1/16'' inch stroke (width of type). Gasoline kept, offered, or exposed for sale, or sold, at retail, containing specifically ten percent by volume of ethanol may be identified as “E10” and “contains ethanol” or other definitive equivalent statement declaring the presence of ethanol on the upper fifty percent of the dispenser front panel in a position clear and conspicuous from the driver’s position, in a type at least 1/2'' inch in height and 1/16'' inch stroke (width of type).

(b) All gasoline kept, offered, or exposed for sale, or sold, at retail, containing at least one percent but no more than 5% by volume of methanol shall be identified as “contains 5% or less methanol” or “contains 1-5% methanol”, or other definitive equivalent statement declaring the presence of methanol on the upper fifty percent of the dispenser front panel in a position clear and conspicuous from the driver’s position, in a type at least 1/2 inch in height and 1/16 inch stroke (width of type).

(c) All gasoline kept, offered, or exposed for sale, or sold, at retail, containing less than 1% ethanol by volume must be dispensed in a manner such that it is not exposed to or blended with any gasoline containing more than 1% ethanol by volume.

(d)(b) No change.

(7) All alternative fuel kept, offered, or exposed for sale, or sold, at retail that contains more than 15% 10% ethanol, or 5% methanol or other alcohol shall be identified by a name indicating the amount and type(s) of ethanol, or methanol or other alcohol in the fuel and shall be labeled as such on the vertical surface of each dispenser housing on the upper fifty percent of the dispenser front panel in a manner conforming with the layout, type size and setting, color, and label protection requirements of 16 CFR Part 306.12 (1-1-191-1-12 Edition), as incorporated by reference in subsection (1) above. See subsection 5J-21.003(1), F.A.C, to obtain copies of this document.  

(a) Ethanol At a minimum, ethanol mixed with gasoline and containing an ethanol content of 51%-83%, by volume, shall be identified as “Ethanol Flex-Fuel, Minimum 51%-83% Ethanol” and “Use Only in For Flex-Fuel Vehicles, May Harm Other Engines Only.”

(b) Methanol mixed with gasoline and containing a methanol content of nominally 51% 80%-85%, by volume,  shall be identified as “Methanol Flex Fuel, 51% - 85%M85 Fuel Ethanol” and “Use Only in For Flex-Fuel Vehicles Only.” Such fuels shall also contain a label on the vertical surface of each dispenser housing on each side that has measure and price meters and located on the upper fifty percent of the dispenser front panel in a type at least 1/2'' inch in height and 1/16'' inch stroke (width of type) that reads as follows:

This product contains methanol and may not be suitable for use in all flex-fuel vehicles. Consult with your engine manufacturer or owner’s manual before use.

(c) Ethanol mixed with gasoline and containing an ethanol content greater than that which is permitted in subsection 5J-21.001(1), F.A.C., and less than that which is permitted in subparagraph 5J-21.001(5)(c)1., F.A.C., shall be identified as “XX% Ethanol” and “Use Only in Flex-Fuel Vehicles, May Harm Other Engines” “EXX Flex-Fuel, Minimum YY% Ethanol”,  where XX is the ethanol concentration in volume percent rounded to the nearest multiple of 10 and YY is XX minus 5. The actual ethanol concentration of the blend shall be XX volume percent plus or minus 5 volume percent.

(8)(a) All biodiesel blends containing diesel fuel kept, offered, or exposed for sale, or sold, at retail that contain more than 5% biodiesel shall be identified as “(BXX) Biodiesel Blend (BXX),” where XX represents the volume percent biodiesel in the biodiesel blend or “Biodiesel Blend Between 6% and 20%.” All biodiesel or B99 kept, offered, or exposed for sale, or sold, at retail shall be identified as “(BXX) Biodiesel (BXX),” where XX represents the volume percent biodiesel and shall be labeled with the proper sulfur grade designation “S15 (15 ppm Sulfur Maximum)” or “S500 (500 ppm Sulfur Maximum).” Each dispenser shall be labeled as such on the vertical surface of each dispenser housing on each side that has measure and price meters with a sign clearly visible and located on the upper fifty percent of the dispenser front panel in a type at least 1/2'' inch in height and 1/16'' inch stroke (width of type).

(b)(a) Every dispenser that dispenses biodiesel or B99 shall contain a label on the vertical surface of each dispenser housing on each side that has measure and price meters and located on the upper fifty percent of the dispenser front panel in a type at least 1/2'' inch in height and 1/16'' inch stroke (width of type) that reads as follows:

This product contains biodiesel. Consult with your engine manufacturer or owner’s manual before using this product.

(b) Every dispenser that dispenses a biodiesel blend containing diesel fuel shall also possess the proper diesel fuel sulfur grade designation conspicuously and firmly attached thereto, as specified in subsection (5) of this section, to indicate the grade of the biodiesel blend being sold therefrom. The diesel fuel sulfur grade designation shall apply to the blended fuel.

(9) All biodiesel blends containing fuel oil kept, offered, or exposed for sale, or sold, at retail that contain more than 5% biodiesel shall be identified as “Fuel Oil Containing Biodiesel (XX),” where XX represents the volume percent biodiesel in the biodiesel blend, and shall be labeled as such on the vertical surface of each dispenser housing on each side that has measure and price meters with a sign clearly visible and located on the upper fifty percent of the dispenser front panel in a type at least 1/2'' inch in height and 1/16'' inch stroke (width of type). Every dispenser that dispenses a biodiesel blend containing fuel oil with a biodiesel percentage greater than 5% shall contain a label on the vertical surface of each dispenser housing on each side that has measure and price meters and located on the upper fifty percent of the dispenser front panel in a type at least 1/2'' inch in height and 1/16'' inch stroke (width of type) that reads as follows:

This product contains biodiesel. Consult with your equipment or engine manufacturer or owner’s manual before using this product.

(10) All gasoline containing greater than ten percent ethanol by volume and up to and including fifteen percent ethanol by volume shall be labeled in accordance with 40 CFR 80.1501 (7-1-19 7-1-13 Edition), which is hereby incorporated by reference. Copies of this publication may be obtained from the Superintendent of Documents, U.S. Government Publishing Printing Office, 732 N. Capitol NW, Washington, D.C. 20401 20402, or at http://www.flrules.org/Gateway/reference.asp?No=Ref-            04788.

(11) Any other alternative fuel as defined by this section shall be labeled clearly and unambiguously on the vertical surface of each dispenser housing on each side that has measure and price meters with a sign clearly visible and located on the upper fifty percent of the dispenser front panel in a type at least 1/2'' inch in height and 1/16'' inch stroke (width of type).

(12)(a) All gasoline kept, offered, or exposed for sale, or sold, at retail, containing at least one percent but no more than 12.5% by volume of butanol shall be identified as “contains 12.5% or less butanol” or “contains 1-12.5% butanol,” or other definitive equivalent statement declaring the presence of butanol on the upper fifty percent of the dispenser front panel in a position clear and conspicuous from the driver’s position, in a type at least 1/2'' inch in height and 1/16'' inch stroke (width of type).

(b) No change.

(13) In accordance with Section 525.035, F.S., any petroleum fuel that fails to meet applicable labeling requirements, as adopted in this rule, shall be placed under Stop Sale Order by the department using FDACS-03206, Stop Sale Order, Rev. 12/12, and the measuring devices and storage tanks of said product shall be sealed by the department with FDACS-03537, Warning Tag, Rev. 08/12, prohibiting the sale of the petroleum fuel. The petroleum fuel shall be released by the department from the Stop Sale Order in accordance with Section 525.035, F.S., using FDACS-03209, Release, Rev. 1/09. The documents referenced in this subsection are adopted and incorporated by reference in Rule 5J-21.001, F.A.C.

(14) In accordance with Section 525.037, F.S., any petroleum fuel 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. 12/12, and the measuring devices and storage tanks of said petroleum fuel shall be sealed by the department with FDACS-03537, Warning Tag, Rev. 08/12, prohibiting the sale of the petroleum fuel. The petroleum fuel shall be released by the department from the Stop Sale Order in accordance with Section 525.037, F.S., using FDACS-03209, Release, Rev. 1/09. The documents referenced in this subsection are adopted and incorporated by reference in Rule 5J-21.001, F.A.C.

Rulemaking Authority 525.14, 570.07(23) FS. Law Implemented 525.01, 525.09, 525.035, 525.037, 525.14 FS. History–New 12-31-74, Amended 2-13-80, 5-3-83, 4-22-85, Formerly 5F-2.03, Amended 11-28-89, 1-24-93, 11-24-94, 6-1-06, 5-6-08, 1-3-10, 1-7-15, Formerly 5F-2.003, ­Amended               .

 

5J-21.004 Motor Fuel Price Posting.

(1) Any roadside or other sign, including, but not limited to, prices on poles, monument signs, canopies, ‘A-frame’ signs or other structures, that advertises or displays motor fuel prices and is not connected to a retail motor fuel dispenser as covered in Rule 5J-21.007, F.A.C. must display:

(a) No change.

(b) The discounted price per gallon for any motor fuel product and applicable grade advertised or displayed on the sign along with the conditions under which the discount is available, including, but not limited to, “Cash,” “Cash Only,” or “Membership.” The discount conditions must be clearly presented on the sign in a font no less than one quarter one-half the size of the largest number posted on the sign but shall not be smaller than six inches in height and may not be abbreviated. The discount conditions must appear immediately next to, above or below the discounted price and with equal illumination as the discounted price.

(2) through (4) No change.

Rulemaking Authority 526.09, 531.41(3), 570.07(23) FS. Law Implemented 526.01, 531.44 FS. History‒New 5-25-15, Amended       .

 

5J-21.005 Inaccurate Measuring Devices.

(1) through (2) No change.

(3) If any petroleum fuel measuring device is found to be overregistering fuel in excess of the specifications and tolerances established by the department in Rule 5J-21.007, F.A.C., the device shall be placed out-of-service by the department through issuance of a Stop Use Order with FDACS-03538, Out of Service, Rev. 08/12, hereby incorporated by reference, and prohibited from further use. Copies of this form may be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-04789. Such measuring devices placed out-of-service for inaccuracy shall be rendered inoperative either by removal or by the locking of working parts with lead and wire seal and shall not be put back in service without reinspection or the written consent of the department.

(4) If three or more petroleum fuel measuring devices at any petroleum retail facility are each found to be overregistering fuel in excess of 25'' cubic inches, the devices shall be placed out-of-service by the department with FDACS-03538, Out of Service, Rev. 08/12, adopted and incorporated by reference in subsection (3) above, and prohibited from further use. The nozzles of such petroleum measuring devices placed out-of-service for inaccuracy shall be covered with a red plastic bag and the measuring devices shall be rendered inoperative either by the removal or by the locking of working parts with lead and wire seal. The measuring devices shall not be put back in service without reinspection or the written consent of the department.

(4)(5) All persons and or service agencies that repair or install petroleum fuel measuring devices must register with the department on FDACS-10990, Weights and Measures Device Mechanic Registration Application, Rev. 02/17, as incorporated by reference in Rule 5J-22.003, F.A.C. FDACS-03320, Application for Registration of Service Agencies, Rev. 12/12, hereby incorporated by reference, and FDACS-03556, Application for Registration – Authorized Meter Mechanic, Rev. 12/12, hereby incorporated by reference. Copies of FDACS-03320 may be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-04790. Copies of FDACS-03556 may be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-04791. Any such registered person or service agency must immediately notify the department at [phone] or by fax at [phone], after any repairs and/or adjustments to any petroleum measuring devices have been made. Failure of a registered meter mechanic or service agency to notify the department after any repairs and/or adjustments to any petroleum measuring devices that have been made as required is subject to administrative penalties as enumerated in Rule 5J-21.008, F.A.C. In order to make application for registration as an authorized meter mechanic you must:

(a) Maintain a test measure of appropriate size according to the National Institute of Standards and Technology (NIST) Handbook 44, as adopted and incorporated by reference in Rule 5J-22.002 5F-5.001, F.A.C., that has been calibrated with standards traceable to NIST, pursuant to Section 525.07(9), F.S.

(b) MaintainUse a sealing iron bearing at least the registered mechanic’s name or initials that are on file with the Department. Use said sealing iron to imprint security seals each time a seal is required to be installed, replaced or affixed.

(c) through (d) No change.

(5) (6) In accordance with Section 525.07, F.S., Aany measuring device that fails to meet applicable requirements, as adopted in this rule chapter, shall be placed out of service by the department through issuance of a Stop Use Order using FDACS-03538, Out of Service, Rev. 08/12, adopted and incorporated by reference in subsection (3) above, prohibiting the use of the measuring device. Upon conformance with the applicable requirement, the Out of Service tag shall be removed from the measuring device.

Rulemaking Authority 525.14, 570.07(23) FS. Law Implemented 525.07 FS. History–New 7-1-74, Repromulgated 12-31-74, 5-3-83, Formerly 5F-2.05, Amended 11-29-94, 5-6-08, 1-3-10, 1-7-15, Formerly 5F-2.005, Amended          .

 

5J-21.006 Inspection Identification Stickers.

(1) It shall be the duty of inspectors to affix a sticker to each petroleum measuring device, signifying that the device is inspected by the Department of Agriculture and Consumer Services and that the device owner is responsible for its proper use and maintenance. Stickers shall be placed at such a point upon measuring device where they may be easily read by the public but not at a point where they will interfere with other descriptive material on the device such as figures, lettering or words. It shall be a violation of this rulesection for any person, unless authorized by the Department, to remove, deface, conceal or in any way obliterate or change this official sticker after it has been affixed by an inspector.

(2) Any measuring device that fails to meet applicable requirements, as adopted in this rule, shall be placed out of service by the department using FDACS-03539, Out of Service, Rev. 08/12, hereby incorporated by reference, prohibiting the use of the measuring device. Copies of this form may be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-04792. Upon conformance with the applicable requirement, the Out of Service tag shall be removed from the measuring device.

Rulemaking Authority 525.14, 570.07(23) FS. Law Implemented 525.07 FS. History–New 12-31-74, Formerly 5F-2.06, Amended 1-3-10, 1-7-15, Formerly 5F-2.006. Amended              .

 

5J-21.007 Adoption of the General Code and the Codes of Liquid-Measuring Devices, Liquefied Petroleum Gas and Anhydrous Ammonia Liquid-Measuring Devices, Hydrocarbon Gas Vapor-Measuring Devices, Vehicle-Tank Meters, Vehicle Tanks Used as Measures of National Institute of Standards and Technology Handbook 44 Meter Sealing Requirements, and Other Related Requirements.

(1) The general code and the codes of liquid-measuring devices, liquefied petroleum gas and anhydrous ammonia liquid-measuring devices, hydrocarbon gas vapor-measuring devices, vehicle-tank meters, and vehicle tanks used as measures relating to specifications, tolerances, and other technical requirements for commercial weighing and measuring devices, contained in National Institute of Standards and Technology Handbook 44, are adopted and incorporated by reference in Rule 5J-22.002 5F-5.001, F.A.C.

(2) All operating petroleum fuel measuring devices must be sealed with an appropriate security seal in such a manner that the metering adjustment cannot be changed without breaking the seal. An appropriate security seal is one which has been applied by the Department or a person who is registered with the Department as a meter mechanic and bears at least the name or initials of the registered meter mechanic.

(3) Any registered person, or agency, or device owner that has installed or returned to service a petroleum fuel measuring device must report the existence or repair of the petroleum device to the department at [phone] or by fax at [phone], within twenty-four (24) hours after installation, but no sooner than 10 days prior to installation using FDACS-03017, Placed in Service Report, Rev. 05/17 7/15, as hereby incorporated by reference in Rule 5J-22.003, F.A.C. Copies of this form may be accessed at http://www.flrules.org/Gateway/reference.asp?No=Ref-05889. Petroleum measuring devices placed into service or returned to service by unregistered persons and not in accordance with any exceptions provided by rule shall not be used in commerce.

(4) Each dispensing device from which diesel fuel is sold at retail shall be equipped with a nozzle spout that conforms to SAE International J285, APRIL2019 MAY2012, “Dispenser Nozzle Spouts for Liquid Fuels Intended for Use with Spark Ignition and Compression Ignition Engines,” and is hereby incorporated by reference. Copies of this publication may be obtained at http://standards.sae.org. This code is also available for public inspection during regular business hours at the Florida Administrative Code and Register, R.A. Gray Building, 500 South Bronough Street, Tallahassee, FL 32399-0250, and at the Florida Department of Agriculture and Consumer Services, Division of 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.

(5) No change.

(6) Any measuring device that fails to meet applicable requirements, as adopted in subsections (1) or (2) of this section, shall be placed out of service by the department using FDACS-03539, Out of Service, Rev. 08/12, adopted and incorporated by reference in Rule 5J-21.006, F.A.C., prohibiting the use of the measuring device. Upon conformance with the applicable requirement, the Out of Service tag shall be removed from the measuring device.

Rulemaking Authority 525.14, 526.09, 526.141(5)(b), 531.40, 531.41(3), 570.07(23) FS. Law Implemented 525.07, 526.141(5)(b), 531.40 FS. History–New 1-1-74, Amended 7-1-74, Repromulgated 12-31-74, Amended 4-18-75, 1-25-76, 1-17-77, 2-15-79, 6-4-80, 4-5-81, 5-2-82, 6-30-83, 7-15-84, 8-11-85, Formerly 5F-2.14, Amended 7-7-86, 4-5-87, 4-27-88, 5-31-89, 8-21-90, 8-5-91, 12-10-92, 11-29-94, 11-13-97, 12-9-98, 8-3-99, 7-31-00, 9-3-01, 8-15-02, 6-29-03, 6-21-04, 6-1-06, 5-6-08, 1-3-10, 1-7-15, Formerly 5F-2.014, Amended 11-10-15,                 .

 

5J-21.008 Guidelines for Imposing Administrative Penalties.

(1) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under Chapters 525 and 531, 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. 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 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 administratively enforce compliance with Chapters 525 and 531, F.S., and this rule chapter by issuing an administrative complaint, stop sale order, and/or notice of noncompliance for violations of Chapter 525 or 531, 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 the statutes or department rules 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) 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 Chapters 525 and 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. through 2. No change.

3. Previous enforcement actions for the same or a similar offense. 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 Tthe violation history over the past three years.

5. through 6. No change.

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. No change.

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

11. The need for repeated follow-up inspections without valid evidence of remedial action taken by the violator The cost of enforcement action.

12. through 13. No change.

(b) Mitigating Factors shall include:

1. No change.

2. The 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 impairs the ability of the violator to comply with Chapter 525 or 531, F.S. or this rule cChapter 5J-21, 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 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.

6.8. The disciplinary history of the violator person committing the violation and with consideration of whether three have passed since the previous violation.

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

7.10. No change.

(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) Notice of Noncompliance. Any department investigation or inspection which reveals violations listed in this subsection of this rule chapter in which the department determines that the violator was unaware of the rule or unclear as to how to comply with it 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 result in the issuance of a notice of noncompliance:

1. No change.

2. Violations to Rule 5J-22.003 5F-7.005, F.A.C., pertaining to petroleum products and applications, where the violation has a low potential for causing economic or physical harm to a person; adversely affecting the public health, safety, or welfare; or creating a significant threat of such harm, if left uncorrected.

3. through 9. No change.

(b) Tier I Major Minor Violations. A violation of Chapter 525 or 531, F.S., or this rule chapter is a Tier I 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. Tier I Minor violations shall result in the issuance of a stop sale order using FDACS-03206, Stop Sale Order, Rev. 12/12, or a Stop Use Order adopted and incorporated by reference in Rule 5J-21.001, F.A.C., or the device removed from service as specified below. If a third violation within a three year period is discovered a $500 penalty shall be issued. An additional penalty of $500 shall be issued for each violation discovered within a three year period thereafter. Discovery of a repeat violation within a three-year period shall result in the imposition of an administrative fine not to exceed the statutory maximum set forth in section 525.16, F.S.  For the purposes of this rule, the following violations shall be considered Tier I minor violations:

1. No change.

2. Gasoline blended with ethanol up to 10%, by volume, or butanol up to12.5%, by volume, found to have an ethanol or butanol content of more than one (1.0%) percent by volume, but not more than three (3.0%) percent by volume, above the posted ethanol or butanol content displayed on the dispenser.

3. through 5. No change.

6. Diesel fuel oil No. 2-D found not in compliance with the flash point standard, but above 100 °F.

7. Diesel fuels oils No. 1-D and No. 2-D found not in compliance with the ultra-low (S15) sulfur standard, but equal to or below 35 ppm sulfur.

8. No change.

9. A biodiesel blend (with No. 2-D diesel fuel oil) found not in compliance with the flash point standard, but above 100 °F.

10. No change.

11. Violations of paragraph 5J-21.003(6)(d)(b), F.A.C.

12. The following violations shall result in the removal of affected equipment from service.

a. through r. No change.

s. Violations of subsections 5J-21.005(3) or (4), F.A.C.

t. Violations of rule subsection 5J-21.006(1), F.A.C.

u. No change.

v. Any violations to Rules 5J-22.002 and 5J-22.003 5F-7.005, F.A.C., pertaining to petroleum products and applications, where the device and/or equipment is required to be immediately removed from service due to the potential for causing economic or physical harm to a person; due to the potential for adversely affecting the public health, safety, or welfare; or due to the potential to create a significant threat of such harm, if left uncorrected.

(c) Tier II Major Violations. A violation of a Chapter 525 or 531, F.S., or this rule chapter is a Tier II major violation if it 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. Tier II Major violations shall result in prohibiting the sale, distribution, offering for sale or distribution of the substandard product and imposition of an administrative fine of $500 per violation for first-time offenders of Chapter 525 F.S. and/or Rule Chapter 5J-21, F.A.C., within a three-year period. An additional $500 fine shall be imposed for each subsequent violation within the three-year period, not to exceed the statutory maximum of $5,000 per violation for second-time or repeat offenders of Chapter 525, F.S. and/or Rule Chapter 5J-21, F.A.C., and as outlined set forth in sSection 525.16, F.S. 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, but no fine shall exceed the statutory maxima as outlined in Section 525.16(1)(a), F.S. Violations consisting of water, sediment, and/or suspended matter in petroleum fuel shall be issued a $500 penalty for the first and any subsequent violation. For the purposes of this rule, the following violations shall be considered Tier II major violations:

1. through 4. No change.

5. Failure to match the posted ethanol or butanol content for gasoline blended with ethanol up to 10% by volume or butanol up to 12.5% by volume; specifically, when the ethanol or butanol content is found to be more than three (3.0%) percent by volume above the posted ethanol or butanol content (percentage by volume).

6. through 13. No change.

14. Failure to meet any other requirements listed in the standards for diesel fuel oils No. 1-D and No. 2-D, as incorporated through the adopted version of ASTM International Designation D975, “Standard Specification for Diesel Fuel Oils” in paragraph 5J-21.001(10)(c), F.A.C., not already listed in this section.

15. through 17. No change.

18. Failure to meet any other requirements listed in the standards for Methanol M85 Fuel Blends (51 to 85 volume percent methanol) Methanol, as incorporated through the adopted version of ASTM International Designation D5797, “Standard Specification for Fuel Methanol Fuel Blends (M51 – M85) (M70-M85) for Methanol-Capable Automotive Spark-Ignition Engines” in paragraph 5J-21.001(10)(g), F.A.C., not already listed in this section.

19. through 22. No change.

23. Failure to match the posted ethanol content for mid-level blends; specifically, when the ethanol content is found to be more than five (5.0) percent by volume above the posted ethanol content (percentage by volume).

24. Violations of paragraphs 5J-21.003(6)(a), (b), or (c), F.A.C.

25. through 26. No change.

27. Violations of subsection 5J-21.005(4)(5), F.A.C.

28. No change.

29. Failure to correct violations of law, rule, or adopted sections of NIST Handbook 44, as incorporated by reference adopted in Rule 5J-22.002 5F-5.001, F.A.C., or NIST Handbook 130 (pertaining to petroleum measuring devices, as incorporated by reference adopted in Rule 5J-22.003 5F-7.005, F.A.C.) within the time period specified in a notice of non-compliance. Any device affected by a correction notice 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.

30. No change.

(d) Willful Violations. Any willful and intentional violation of Chapter 525 or 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, but are not limited to, the following:

1. through 2. No change.

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

4. Violations which result from a failure to comply with a fFinal oOrder, a notice of non-compliance, 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 person 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 Chapters 120 or 525, F.S.

(a)(b) Failure to respond to an administrative complaint shall result in the entry of a dDefault fFinal oOrder against the violator or entity responsible for the violation. The department shall impose administrative fines in a dDefault fFinal oOrder equal to the maximum amount as allowable under Section 525.16(1)(a), F.S.

(b)(c) A failure to comply with either a fFinal oOrder or a dDefault fFinal oOrder of the department shall result in any applicable registration revocation and an administrative fine equal to the maximum amount as allowable under Section 525.16(1)(a), F.S. Additional penalties shall be sought through the enforcement of the order in circuit court.

Rulemaking Authority 525.14, 531.41, 531.42, 570.07(23) FS. Law Implemented 525.16, 531.42, 531.44, 570.971(4) FS. History–New 2-24-00, Amended 7-30-02, 6-1-06, 5-6-08, 1-3-10, 1-7-15, Formerly 5F-2.016, 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: July 21, 2020

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: July 23, 2020