TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 12. WEIGHTS AND MEASURES

The Texas Department of Agriculture (Department) adopts the repeal of Title 4, Part 1, Subchapter A, §12.1; new Subchapter A, §12.1, and the repeal of Subchapter B, §12.13, without changes to the proposal as published in the November 17, 2017, issue of the Texas Register (42 TexReg 6429). New Subchapter B, §12.13 and §12.15, and amendments to §12.11 are adopted with changes to the November 17, 2017 proposal. The adopted rules define procedures for device inspections and complaints.

The adoption of the new and amended rules were made in order to comply with House Bill 2174 (HB 2174), enacted during the 85th Regular Legislative Session, which amended Chapter 13, Texas Agriculture Code, related to Weights and Measures. The new definitions were added to provide guidance and clarification regarding program administration and procedures necessary for implementation of HB 2174.

A copy of the proposal was provided to industry stakeholders, including the Texas Food and Fuel Association. Mr. Scott Fisher, Senior Vice President of Policy and Public Affairs, submitted the following comments on behalf of the Texas Food & Fuel Association. While the Department appreciates Mr. Fisher's commentary, and will take it under consideration, several of his comments were unrelated to the proposal and will not be specifically addressed in this adoption.

Mr. Fisher has pointed out that the addition of an "audit" definition in §12.1 creates a "more invasive program of oversight." The inclusion of an audit requirement, as indicated by the definition in §12.1, ensures accountability of licensed service companies, licensed service technicians and fuel facilities. Additionally, the Department's oversight of licensed service companies will ensure a higher level of transparency for Department and industry operations, enhance consumer protection, and, as a consequence, increase consumer confidence in the vehicle motor fuel industry.

Subchapter B, §12.13(c)(2) has been revised to eliminate a portion of the proposed language to clarify that only devices identified are subject to inspection.

In Mr. Fisher's submission, he inquired as to the provision of procedures to be set by the Department to ensure that industry members are follow the new rules, as required for compliance with HB 2174. The Department provides extensive compliance assistance following any rule change, and will do so here. TDA will provide technical assistance to industry as long as necessary, upon request, and the Department began outreach to facilities and licensed service companies prior to the proposal of the rules. TDA is confident that, with the assistance of stakeholders and TDA, fuel facilities, licensed service companies and technicians will develop a good understanding of the new rules.

SUBCHAPTER A. GENERAL PROVISIONS

4 TAC §12.1

The repeal is adopted under Agriculture Code, §13.021 which authorizes the Department to adopt rules related to administration of the weights and measures program.

The code affected by the adoption is Chapter 13 of the Texas Agriculture Code.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 3, 2018.

TRD-201800027

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: January 23, 2018

Proposal publication date: November 17, 2017

For further information, please call: (512) 463-4075


4 TAC §12.1

The adoption is made pursuant to Agriculture Code, §13.021 which authorizes the Department to adopt rules related to administration of the weights and measures program.

The code affected by the adoption is Chapter 13 of the Texas Agriculture Code.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 3, 2018.

TRD-201800029

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: January 23, 2018

Proposal publication date: November 17, 2017

For further information, please call: (512) 463-4075


SUBCHAPTER B. DEVICES

4 TAC §§12.11, 12.13, 12.15

The adoption is made pursuant to Agriculture Code, §13.021 which authorizes the Department to adopt rules related to administration of the weights and measures program.

The code affected by the adoption is Chapter 13 of the Texas Agriculture Code.

§12.11.Registration of Commercial Weighing and Measuring Devices.

(a) Registration Required. Except as provided by §12.13 of this chapter (relating to Devices Subject to Registration and Inspection; Exemptions), a person who intends to operate one or more devices for commercial transactions at a particular location shall, prior to using the devices for commercial transactions:

(1) register the location where the devices are to be operated; and

(2) provide the public notice of registration required by subsection (i) of this section.

(b) Registration by Owner. Notwithstanding subsection (a) of this section, the owner of a device operated by another person may register, under the owner's name, the location where the device is operated, provided that all devices of the same type at that location are covered by the same registration. Both the person registering the location and the operator of the devices at that location are responsible for ensuring that the devices and their operation comply with the requirements of this chapter and Chapter 13 of the Texas Agriculture Code.

(c) Procedure for Registration. The registration required by this section shall be obtained by:

(1) submitting to the department a complete and accurate application form prescribed by the department, using the most recent version of the application form and declaring the number of devices to be operated at the location; and

(2) remitting to the department the total fee for all devices to be operated at the location using the fee schedule in §12.12 of this chapter (relating to Fee Schedule for Commercial Weighing and Measuring Devices and Consumer Information Stickers).

(d) Annual Registration Renewal Required. The registration required by this section shall be renewed annually by:

(1) submitting to the department a complete and accurate registration renewal form, using the most current version of the form and declaring any increase or decrease in the number of devices installed if not previously reported under subsection (e) of this section;

(2) remitting to the department the total fee for all devices to be operated at the location, including any additional devices not previously reported, using the fee schedule in §12.12 of this chapter; and

(3) including within the total remitted fee any late fee adjustments required by §12.024 of the Texas Agriculture Code.

(e) Changes in the Number of Declared Devices at a Registered Location.

(1) Increase in the Number of Devices. If the number of devices of the same type being operated at a currently registered location changes, such that the number of devices to be operated at that location is greater than the number of devices previously declared for that location, the person who registered that location shall, prior to using the additional devices for commercial transactions:

(A) submit to the department a complete and accurate change of device form prescribed by the department, using the most recent version of the form and declaring the number of additional devices to be operated at that location; and

(B) remit to the department the total fee for all additional devices to be operated using the fee schedule in §12.12 of this chapter.

(2) Decrease in the Number of Installed Devices. If the number of devices of same type being operated at a currently registered location changes, such that the number of devices to be operated at that location is less than the number of devices previously declared for that location, the person who registered that location shall within 10 business days after any such device is removed submit to the department either a complete and accurate change of device form prescribed by the department or a registration renewal form, using the most recent version of either form and declaring the number of devices removed from that location. Fees previously remitted for registering a device subsequently removed will not be refunded, either in whole or in part.

(f) Expiration of Registration. Registrations obtained under this section expire on the date printed on the certificate of registration. A registration that has been expired for less than one year may be renewed using the procedure provided in subsection (d) of this section. A registration that has been expired for one year or longer cannot be renewed and a new registration must be obtained using the procedure provided in subsection (c) of this section.

(g) Registration Non-Transferable. A registration cannot be transferred to another person. If the person registering a location ceases to own or operate the devices at that location, the new owner or operator must register the location using the procedure in subsection (c) of this section.

(h) Change of Business Identity. For purposes of this section, a change in the registrant's franchise tax identification number, taxpayer identification number, legal name, or dba name constitutes a change of owner or operator and a prohibited attempt to transfer a registration.

(i) Public Notice of Registration Required. A person registering a location under this section shall prominently display at the location both the person's Weights and Measures Certificate of Registration and the required number of consumer information stickers in the manner provided by this subsection.

(1) Weights and Measures Certificate of Registration.

(A) Display of Original Certificate. The original certificate of registration issued by the department shall be prominently displayed within the main building, structure, or site at the registered location shown on the face of the certificate so as to, during regular business hours, be in plain sight of, legible to, and physically accessible to the average consumer of weighed or measured products sold or offered for sale at the registered location.

(B) Display of Certificate Copy at Satellite Location. If the registered location contains a site for consumer transactions that is not directly attached to and a part of the main building or structure, a copy of the original certificate of registration shall be displayed at each such separate site so as to, during regular business hours, be in plain sight of, legible to, and physically accessible to the average consumer of weighed or measured products sold or offered for sale at the separate site.

(C) Damaged, Destroyed, Lost, or Illegible Original Certificate or Copy. If an original or copy certificate becomes damaged, destroyed, lost, or otherwise illegible so that any part of the information on the certificate is no longer legible to the average consumer of weighed or measured products sold or offered for sale at the registered location, the original or copy shall be replaced as follows:

(i) Replacement of Original. The person registering the location shall within 10 days, after the original certificate requires replacement as provided by this subsection or upon written notice from the department that a replacement is required, contact the department for a replacement certificate at phone number (877) 542-2474 or email address: Licenseinquiry@TexasAgriculture.gov.

(ii) Replacement of Copy. The person registering the location shall within 24 hours after a certificate copy requires replacement as provided by this subsection, or immediately upon written notice from the department that a replacement is required, replace the copy with another copy of the original.

(2) Consumer Information Sticker. A person registering a location under this section shall prominently display a consumer information sticker at the location as follows:

(A) Motor Fuel Metering Devices and Motor Fuel Dispensing Devices. Except for meters on transport vehicles, a single consumer information sticker shall be affixed to each face of each dispensing unit, regardless of the number of devices incorporated into the unit, so as to be in plain sight of and legible to the average consumer accessing the unit for any purpose. A meter on a transport vehicle is exempt from the requirement to display a consumer information sticker.

(B) Other Devices. A single consumer information sticker shall be placed on or near each device so as to be in plain sight of and legible to the average consumer accessing the device for any purpose or for whom transactions are to be conducted by the operator using the device.

(C) Damaged, Destroyed, Lost, or Illegible Consumer Information Sticker. If a consumer information sticker becomes damaged, destroyed, lost, or otherwise illegible so that any part of the information on the sticker is no longer fully legible and in compliance with the requirements of this section, the sticker shall be replaced using the procedure in subparagraph (E) of this paragraph.

(D) Obstruction of Device Operation Prohibited. A consumer information sticker shall not be placed directly on a device if such placement does, will, or may affect the accuracy, readability, or lawful operation of the device.

(E) Obtaining Consumer Information Stickers. For devices registered with the department prior to September 1, 2011, consumer information stickers will be issued by the department via mail separate from the registration certificate, sufficient for the number of dispensing units (motor fuel dispensing devices) or devices (other devices) in operation at the registered location. For devices registered with the department on or after September 1, 2011, consumer information stickers will be issued via mail with the registration certificate, sufficient for the number of dispensing units (motor fuel dispensing devices) or devices (other devices) in operation at the registered location.

(F) Obtaining Replacement Consumer Information Stickers. Replacement consumer information stickers necessary to comply with subparagraph (C) of this paragraph shall be obtained from the department in quantities of eight stickers per page by:

(i) submitting to the department a complete and accurate replacement consumer information sticker request form prescribed by the department, using the most recent version of the form; and

(ii) remitting to the department the total fee using the fee schedule in §12.12 of this chapter.

(j) Calibration required for device registration. Effective September 1, 2017, all motor fuel metering devices with a maximum flow rate of 20 gallons per minute or less and used for motor fuel sales must be calibrated by a Representative of the Department as follows:

(1) Device Registration Certificate Application: All applicants are required to submit and attach calibration documentation, conducted on behalf of the named applicant, on all motor fuel metering devices at the facility, to the device registration application submitted to the Department pursuant to §13.1015 and §13.1016 of the Code.

(2) Device Registration Certificate Renewal: Not later than the facility's device registration certificate renewal date, on or after September 1, 2017, and at least every two years, thereafter from the previous calibration date, calibration documentation shall be submitted to the Department upon each annual renewal, pursuant to §13.1015 and §13.1016 of the Code.

§12.13.Devices Subject to Registration and Inspection; Exemptions.

(a) The following devices are subject to the registration requirements of §13.1011of the Code; as authorized by §13.029 of the Code:

(1) motor fuel dispensers;

(2) kerosene dispensers;

(3) LPG meters; and

(4) scales.

(b) The following devices are subject to the inspection requirements of §13.101(a) of the Code; as authorized by §13.029 of the Code.

(1) motor fuel dispensers;

(2) kerosene dispensers;

(3) LPG meters; and

(4) scales other than hopper scales, except as provided by §12.14 of this chapter (related to Inspection and Testing Requirements for Hopper Scales).

(c) The following devices and motor fuel metering devices, are subject to the registration and inspection requirements of §§13.1015 - 13.1017 of the Code:

(1) all motor fuel metering device blends shall be inspected, tested, and calibrated by a Licensed Service Company at least once every two years; and

(2) only the motor fuel metering device and blends indicated in a complaint shall be inspected, tested and calibrated by a Licensed Service Company at a facility once the department has received three complaints at a facility within a twelve month period or a complaint is received on a facility that has not had a complete calibration of all meters and blends within the past 18 months.

(d) Pursuant to §13.029 of the Code, the following devices are exempt from registration and inspection requirements set forth in §13.1001 and §13.1011 of the Code:

(1) pharmaceutical scales;

(2) postal scales;

(3) belt conveyor scales;

(4) rail scales; and

(5) immediate consumption food scales.

§12.15.Records.

(a) Records or other documents related to the inspection, testing and calibration of motor fuel metering devices must be maintained in accordance with Chapter 13 of the Code, and shall be submitted to the Department in the manner and time period as specified in a notice provided by a Representative of the Commissioner.

(b) All records related to the inspection, testing and calibration of motor fuel metering devices shall be maintained for a period of two years by the registrant and Licensed Service Company and are subject to inspection by the Department upon request.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 3, 2018.

TRD-201800030

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: January 23, 2018

Proposal publication date: November 17, 2017

For further information, please call: (512) 463-4075


4 TAC §12.13

The repeal is adopted under Agriculture Code, §13.021 which authorizes the Department to adopt rules related to administration of the weights and measures program.

The code affected by the adoption is Chapter 13 of the Texas Agriculture Code.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 3, 2018.

TRD-201800028

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Effective date: January 23, 2018

Proposal publication date: November 17, 2017

For further information, please call: (512) 463-4075