Rule Proposal

VOLUME 48, ISSUE 16
ISSUE DATE: AUGUST 15, 2016
RULE PROPOSALS
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
OFFICE OF WEIGHTS AND MEASURES

Proposed Readoption with Amendments: N.J.A.C. 13:47B

Proposed New Rules: N.J.A.C. 13:47B-4.2 and 4.3

Click here to view Interested Persons Statement

Scales, Instruments, and Devices; Weights and Measures
 
Authorized By: David Freed, Acting State Superintendent, Office of Weights and Measures.
 
Authority: N.J.S.A. 51:1-61.
 
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
 
Proposal Number: PRN 2016-129.
 
Submit written comments by October 14, 2016, to:
 
   David Freed
   Acting State Superintendent
   Office of Weights and Measures
   1261 Routes 1 and 9 South
   Avenel, New Jersey 07001
 
The agency proposal follows:
 
Summary

The Office of Weights and Measures (OWM) is proposing to readopt N.J.A.C. 13:47B with amendments and new rules. Pursuant to N.J.S.A. 52:14B-5.1, the rules at N.J.A.C. 13:47B, will expire on July 23, 2016. As the OWM submitted this notice of proposal to the Office of Administrative Law prior to that date, the expiration date is extended 180 days to January 19, 2017, pursuant to N.J.S.A. 52:14B-5.1.c(2). As required by Executive Order No. 66 (1978), the OWM has reviewed these rules and determined that they are necessary, reasonable, and proper for the purposes for which they were originally promulgated, to protect New Jersey consumers and businesses from the use of false or malfunctioning weighing and measuring devices in all commercial transactions.

A summary of the rules proposed for readoption with amendments and new rules follows.

Subchapter 1 deals with general weighing and measuring devices. N.J.A.C. 13:47B-1.1 requires gas station owners and operators to use a five-gallon test measure to determine whether the fuel-measuring devices are dispensing gasoline and similar liquid fuels accurately. N.J.A.C. 13:47B-1.2 bans the use of counter tacks as length measures and requires that all length measures conform to the requirements set forth in the National Institute of Standards and Technology (NIST) Handbook 44, Specifications, Tolerances, and other Technical Requirements for Weighing and Measuring Devices. N.J.A.C. 13:47B-1.5 provides that all new, modified, or altered commercial weighing and measuring devices must be submitted by the manufacturers to the State Superintendent of Weights and Measures for inspection and approval of type and operation, except for those devices that have been inspected, tested, and approved under the NIST, National Type Evaluation Program. N.J.A.C. 13:47B-1.6 provides that the weighing, indication, and recording elements of commercial scales must be located in full view of customers.

N.J.A.C. 13:47B-1.9 regulates the use of portable self-contained vehicle scales for commercial purposes, setting forth the only circumstances under which they may be used. N.J.A.C. 13:47B-1.10 bans the use of household-type scales for commercial purposes and requires certain labeling of the scale when sold or offered for sale. N.J.A.C. 13:47B-1.14 limits the use of uncompensated spring scales to the sale of fruits and vegetables, and provides for a legend that must be permanently placed on the scale. N.J.A.C. 13:47B-1.16 requires that Certificates of Inspection, issued by any State, county, or municipal weights and measures officer, be retained by the owner or operator of commercial weighing and measuring devices at the place of business where the weighing or measuring devices are installed, or carried on the vehicle if the weighing or measuring device is installed on the vehicle. It further provides that the Certificates of Inspection are the official authority to allow the use of these officially inspected, tested, and sealed weighing or measuring devices in commercial transactions.

N.J.A.C. 13:47B-1.17 sets the maximum height at which a hanging scale must be positioned to insure customer access to and the visibility of the weight indications. N.J.A.C. 13:47B-1.19 provides that a gasoline dispenser that was previously type-approved by the State Superintendent of Weights and Measures, if converted, altered, or modified, will have its type-approval rescinded. The rule further provides that notification to weights and measures officers of the installation of an altered gasoline dispenser must clearly state that the gasoline dispenser has been altered. N.J.A.C. 13:47B-1.20 incorporates by reference the provisions of NIST Handbook 44 as the legal requirement for all weighing and measuring devices used for commercial and law enforcement purposes in the State and reserves the right of the State Superintendent of Weights and Measures to amend or supplement those provisions. These rules in Subchapter 1 are proposed to be readopted without change.

N.J.A.C. 13:47B-1.24 provides for a registry for security sealing devices to be used by licensed repairmen to block or prevent entry to the adjustable elements of any weighing and measuring device. Further, the registry provides a means to trace faulty or fraudulent repairs or adjustments to commercial weighing and measuring devices through an identification system controlled by the State Superintendent of Weights and Measures. A proposed amendment to subsection (b) provides that a data change audit trail shall qualify as a security sealing device. In addition, OWM is proposing new N.J.A.C. 13:47B-1.24(c) to define a "data change audit trail." This is defined as "an electronic count and/or information record of the changes to the values of the calibration or configuration parameters of a device." As noted above, the NIST Handbook 44 is the legal requirement for all weighing and measuring devices used for commercial and law enforcement purposes in the State. "Data change audit trails" are established in the NIST Handbook 44 as security sealing devices and would be established as such in the State if the changes are adopted. OWM is also proposing to amend recodified N.J.A.C. 13:47B-1.24(g), which provides that "no weighing or measuring device shall be permitted to be used for any commercial purpose unless the device's adjustable elements are blocked and sealed by a security sealing device bearing the registry mark of a licensed repairman or that of a Weights and Measures officer." The amendment provides that if the physical mechanics for applying a security sealing device are not available due to a weighing or measuring device adjustable elements' construction or design, a data change audit trail shall be made available at the time of inspection.

Subchapter 3 sets forth the chapter penalties. N.J.A.C. 13:47B-3.1, which provides that any person who violates the rules of the chapter will be subject to the statutory penalties at N.J.S.A. 51:1-89, is proposed to be readopted without change.

Subchapter 4, General Provisions, at N.J.A.C. 13:47B-4.1 sets forth the minimum training requirements for a State, county, or municipal weights and measures officer before either a badge or credential may be issued to that person by the State Superintendent of Weights and Measures. The rule is proposed to be readopted without change. However, OWM is proposing two new rules in this subchapter. Proposed new N.J.A.C. 13:47B-4.2 provides that all weights and measures officers will be required to attend in-service training classes when provided by OWM. These classes "will include training on all updates" to State statutory and administrative language, as well as those guidelines, policies, and other items released by the OWM's Superintendent. The classes will also train officers on updates to the necessary handbooks and guidelines from the National Institute of Standards and Technology. Proposed new N.J.A.C. 13:47B-4.3 requires OWM officers to retain training records. The OWM Superintendent is tasked with retaining the records of those officers who have successfully completed Basic Weights and Measures or an in-service training and records of certificates issued upon the successful completion of such training. Records of certificates issued by agencies other than the State OWM are to be kept by the superintendent of the local jurisdiction.

OWM has determined that the comment period for this notice of proposal is 60 days; therefore, pursuant to the provisions of N.J.A.C. 1:30-3.3(a)5, this notice is excepted from the rulemaking calendar requirement.
 
[page=1589] Social Impact

The rules proposed for readoption with amendments and new rules will allow OWM to continue regulating the use of commercial weighing and measuring devices for the protection of New Jersey consumers. Moreover, the proposed changes will ease operations for businesses which have data audit trails in lieu of lead and wire seals. Because OWM is able to exercise control over and assess the accuracy of the use of weighing and measuring devices used to buy and sell commodities in the marketplace, the general public benefits from the protections offered by these rules. Since these rules apply to all weighing and measuring devices used for commercial purposes, it is estimated that 29,000 businesses are impacted by these rules. The readoption of these rules is important to the businesses and consumers in the State because the rules provide for equity and accuracy in the marketplace. OWM also believes that the proposed new rules are necessary to ensure weights and measures officers are properly trained and keep current of new developments in the field.
 
Economic Impact

OWM anticipates that the rules proposed for readoption with amendments and new rules will continue to have the same economic impact on business owners and consumers as in the past. OWM does not anticipate additional economic impact. N.J.A.C. 13:47B-1.1 requires gasoline dealers to purchase a standard measure in a five-gallon capacity to test whether the measuring device delivers the correct quantity. Under N.J.A.C. 13:47B-1.5, manufacturers of new weighing and measuring devices assume the costs of shipping the devices to the Superintendent for inspection and approval; however, a minimal reduction in cost to certain manufacturers may result from the provision of this section that allows the manufacturers to by-pass a duplicative evaluation process. Pursuant to N.J.A.C. 13:47B-3.1, any person violating any provision of the rules will be subject to the penalty provisions of N.J.S.A. 51:1-89. Training required by N.J.A.C. 13:47B-4.1 will continue to be provided without charge to the agencies that employ the weights and measures officer trainees as well as current weights and measures officers.

Although not readily quantifiable, failure to readopt these rules may result in New Jersey consumers being short-changed in commercial transactions where a weighing or measuring device is used. Failure to readopt may result in a loss of consumer confidence in the use of weighing and measuring devices in the marketplace. Any economic burden placed on those businesses that use weighing and measuring devices is outweighed by the likelihood that buyers and sellers will exchange goods and services in the marketplace on an equitable basis.
 
Federal Standards Statement

A Federal standards analysis is not required because the rules proposed for readoption with amendments and new rules are governed by N.J.S.A. 51:1-61. Although the rules are not subject to any mandated Federal requirements or standards, OWM has voluntarily adopted, by reference, the standards for weighing and measuring devices, which were developed by NIST and are set forth in Handbook 44. In addition, OWM notes that proposed new N.J.A.C. 13:47B-4.2 will require training in the standards set forth in the NIST Handbook 130 and 133.
 
Jobs Impact

The rules proposed for readoption with amendments and the proposed new rules will not directly result in the generation or loss of jobs in the State.
 
Agriculture Industry Impact

The rules proposed for readoption with amendments and the proposed new rules will have no impact on the agriculture industry in the State.
 
Regulatory Flexibility Analysis

If, for purposes of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., any of the approximately 29,000 businesses to which these rules apply are small businesses, then the following analysis applies.

The rules proposed for readoption with amendments do not impose reporting or recordkeeping requirements. Several rules do impose compliance requirements; however, these same requirements have been in effect for many years. N.J.A.C. 13:47B-1.1 requires dealers who use liquid measuring devices to obtain a five-gallon standard measure to determine whether the device is delivering the correct quantity. N.J.A.C. 13:47B-1.2 forbids the use of counter tacks as linear measures and requires that all linear measures be in conformance with NIST Handbook 44. N.J.A.C. 13:47B-1.5 requires that all new types of weighing and measuring devices and any older devices to which any new feature has been added be submitted by the manufacturer to the State Superintendent of Weights and Measures. N.J.A.C. 13:47B-1.6 requires that commercial weighing and measuring devices be placed so as to be in full view of the customer. N.J.A.C. 13:47B-1.9 outlines the requirements for the use of portable self-contained vehicle scales. N.J.A.C. 13:47B-1.10 prohibits the use of household-type scales in any commercial establishment for weighing any commodity sold to the public.

N.J.A.C. 13:47B-1.14 prohibits the use of spring scales in the retail sale of food other than fruits and vegetables, unless they are equipped with a device to compensate for changes in the elasticity of the springs due to changes in temperatures. N.J.A.C. 13:47B-1.16 requires that Certificates of Inspection, issued by State, county or municipal weights and measures officers, be retained by the owner or user of the weighing and measuring device and must be available at the place where the weighing or measuring devices are installed. N.J.A.C. 13:47B-1.17 requires that hanging-type spring scales, used in commercial establishments, must be positioned so that the maximum height from the floor to the top of the scale pan does not exceed 48 inches. N.J.A.C. 13:47B-1.24 requires that trained repairman incorporate their registry mark into or upon any security sealing device used to block access to the adjustable elements of a weighing or measuring device, after the device has been repaired by that repairman.

Proposed new N.J.A.C. 13:47B-4.2 and 4.3 will not impose any reporting, recordkeeping, or compliance requirements on small businesses as the rules apply to weights and measures officers, the State Superintendent, and local jurisdiction superintendents.

No professional services are needed to comply with the rules proposed for readoption with amendments and new rules. OWM believes the costs of compliance will be minimal and offset by the necessity of the rules to preserve the health, safety, and welfare of consumers. No differentiation, based upon size, is provided since that would adversely impact the goals and purposes of the rules, to assure equity in the marketplace for businesses and consumers.
 
Housing Affordability Impact Analysis

The rules proposed for readoption with amendments and new rules will have an insignificant impact on the affordability of housing in New Jersey, and there is an extreme unlikelihood that the rules would evoke a change in the average costs associated with housing because the rules proposed for readoption with amendments and new rules concern the duties of OWM, the rules affecting the general weighing and measuring devices, penalties, and training of weights and measures officers.
 
Smart Growth Development Impact Analysis

The rules proposed for readoption with amendments and new rules will have an insignificant impact on smart growth, and there is an extreme unlikelihood that the rules would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan in New Jersey because the rules proposed for readoption with amendments and new rules concern the duties of OWM, the rules affecting the general weighing and measuring devices, penalties, and training of weights and measures officers.
 
Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 13:47B.
 
Full text of the proposed amendments and new rules follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):
 
[page=1590] CHAPTER 47B
SCALES, INSTRUMENTS, AND DEVICES; WEIGHTS AND MEASURES
 
SUBCHAPTER 1.    GENERAL WEIGHING AND MEASURING DEVICES
 
13:47B-1.24    Registry for security sealing devices
 
(a) (No change.)
 
(b) "Security sealing device" means any mechanical device used to block or prevent entry to the adjustable elements of any weight or measure or any weighing and measuring device used in trade or commerce in New Jersey. A data change audit trail shall also qualify as a security sealing device.
 
(c) "Data change audit trail" means an electronic count and/or information record of the changes to the values of the calibration or configuration parameters of a device.
 
Recodify existing (c), (d), and (e) as (d), (e), and (f) (No change in text.)
 
[(f)] (g) No weighing or measuring device shall be permitted to be used for any commercial purpose unless the device's adjustable elements are blocked and sealed by a security sealing device bearing the registry mark of a licensed repairman or that of a weights and measures officer. If the physical mechanics for applying a mechanical security sealing device are not available due to a weighing or measuring device adjustable elements' construction or design, a data change audit trail shall be made available at the time of inspection.
 
Recodify existing (g) and (h) as (h) and (i) (No change in text.)
 
SUBCHAPTER 4.    GENERAL PROVISIONS
 
13:47B-4.2     In-service training requirements; weights and measures officer
 
All weights and measures officers are required to attend an in-service training class when provided by the Office of Weights and Measures of the State of New Jersey. Such training classes shall include training on all updates of Title 51 of the New Jersey Statutes Annotated; and N.J.S.A. 56:6-1 et seq.; N.J.A.C. 13:47 and 18:19; NIST Handbook 44, Handbook 133, and Handbook 130; and all protocols, policies, guidelines, and examination procedure outlines issued by the State Superintendent of Weights and Measures.
 
13:47B-4.3     Records of training
 
Each weights and measures officer shall keep a record of his or her training certificates. The State Superintendent of Weights and Measures shall keep records of, and issue certificates to, all weights and measures officers that have successfully completed the Basic Weights and Measures course or an in-service training class offered by the State Office of Weights and Measures. Any records of certificates issued by an agency other than the State Office of Weights and Measures shall be kept by the local jurisdiction superintendent.