TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 12. WEIGHTS AND MEASURES

The Texas Department of Agriculture (the Department) proposes amendments to Texas Administrative Code, Title 4, Part 1, Chapter 12, Subchapter A, §12.1, relating to definitions, and Subchapter B, §12.13, devices subject to registration and inspection, and exemptions. The amendments are necessary to comply with House Bill 2029, enacted during the 85th Texas Legislature which created exemptions from registration and inspection for certain scales. House Bill 2029 requires the Department to exempt certain commercial weighing and measuring devices from registration and inspection requirements when used exclusively to weigh food for immediate consumption.

House Bill 2029 amends §13.1002 of the Texas Agriculture Code. These rule amendments ensure that Chapter 12 of the Administrative Code rules align with the new statute. The proposed rules exempt scales which are exclusively used to weigh food sold for immediate consumption (scales) from mandatory registration and inspection requirements under Chapter 13, Subchapter C, of the Agriculture Code.

Stuart Strnad, Director for Consumer Product Protection, has determined that for the first five-year period the proposed amendments are in effect, there will be a fiscal impact of $357,700.00 for state government. While there will be a decrease in inspections of scales, there will not be a proportionate reduction in force. As required by statute, weights and measures inspectors will continue to handle routine inspections and complaints, with the exception of the inspection of immediate consumption scales. However, the fiscal impact reduces the Department’s ability to recover costs necessary to effectively administer the weights and measures program. There is no anticipated fiscal impact for local governments as a result of administering or enforcing the rule amendments, as proposed.

Mr. Strnad has also determined that for each year of the first five years the proposed amendments are in effect, there is no anticipated public benefit, the reduction in registration fees necessary to help recover program costs will result in the decrease of the Department’s ability to provide widespread consumer protection and enforcement. There will be a cost benefit to the industry that operates scales used exclusively for food for immediate consumption by eliminating the $35 per scale registration fee.

Comments on the proposal may be submitted to Stuart Strnad, Director for Consumer Product Protection, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711, or by email to rulecomments@texasagriculture.gov. Comments must be received no later than 30 days from the date of publication on the proposal in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

4 TAC §12.1

The amendments are proposed under Texas Agriculture Code (the Code), §13.1002, which provides that certain commercial weighing or measuring devices that are used to weigh food sold for immediate consumption are exempt from registration and inspection requirements, and §13.002, which authorizes the Department to enforce Chapter 13, relating to weighing or measuring devices.

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

§12.1.Definitions.

In addition to the definitions set out in the Texas Agriculture Code, Chapter 13, the following words and terms shall have the following meanings, unless the context clearly indicates otherwise.

(1) - (7) (No change.)

(8) Food for Immediate Consumption--Food or meals prepared, served or sold by restaurants, lunch counters or cafeterias that when sold requires no further preparation by the purchaser prior to consumption on the premises, except for:

(A) refrigerated food that is typically reheated prior to eating;

(B) sliced luncheon products such as meat, poultry or cheese when sold separately;

(C) food that is only cut, repackaged or pasturized by the seller; or

(D) fruits and vegetables.

(9) [(8)] Handbook 44--NIST publication that sets the specifications, tolerances and other technical requirements for weighing and measuring devices.

(10) Immediate Consumption Food Scales--A scale exclusively used to weigh food sold for immediate consumption on premises.

(11) [(9)] LPG Meter--A device used for the measurement of liquefied petroleum gas.

(12) [(10)] NCWM--National Conference on Weights and Measures.

(13) [(11)] NIST--National Institute of Standards and Technology, United States Department of Commerce.

(14) [(12)] Official certificate--A certificate declaring the accurate weight or measure of a commodity which includes: the time and date the weight or measure was taken, signature and license number of the public weigher, and the seal of the department.

(15) [(13)] OIML--International Organization of Legal Metrology.

(16) [(14)] Operator of a Device--A person operates a device if the person collects or distributes payments for a commercial transaction for which the device is used; oversees the day-to-day operation of the device; or owns, leases, manages, or otherwise controls the physical location of the device or the device itself.

(17) [(15)] Out-of-Order tag--A notice attached to a device directing that the device may not be used for commercial service.

(18) [(16)] Person--Individual or a corporation, partnership, limited liability company, business trust, trust, association, or other organization, estate, government or governmental subdivision or agency, or other legal entity. [An individual, partnership, firm, corporation, or association.]

(19) [(17)] Place in service--An approval for the device to be used.

(20) [(18)] Public Weigher--A business appointed to issue an official certificate in Texas.

(21) [(19)] Ranch scale--A livestock scale which is located on a private ranch and which has a capacity of 5,000 pounds or greater.

(22) [(20)] Service company--A person who holds a service company license issued by the department under this chapter.

(23) [(21)] Service report--A prescribed report, prepared by a service technician and filed with the department by a service company, describing the services performed on a device or a set of devices by the technician.

(24) [(22)] Service technician--An individual who holds a service technician license issued by the department under this chapter.

(25) [(23)] Sub-kit--A subdivided series of test standards that weigh a total of not less than one pound in avoirdupois units and whose smallest test standard weighs not more than one-sixteenth (1/16) ounce or five-thousandths (0.005) pound.

(26) [(24)] Test--A field examination of a device to determine compliance with the requirements of this chapter.

(27) [(25)] Test Standard--A certified weight or measure used to test a device.

(28) [(26)] Test kit--A collection of test standards that collectively weigh 30 pounds and that consists of one sub-kit, at least two one-pound standards, and any other combination of standards that allows a scale with a capacity of 30 pounds or less be tested in one-pound increments to capacity.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 20, 2017.

TRD-201702387

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 6, 2017

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


SUBCHAPTER B. DEVICES

4 TAC §12.13

The amendments are proposed under Texas Agriculture Code (the Code), §13.1002, which provides that certain commercial weighing or measuring devices that are used to weigh food sold for immediate consumption are exempt from registration and inspection requirements, and §13.002, which authorizes the Department to enforce Chapter 13, relating to weighing or measuring devices.

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

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

(a) The following devices are subject to the registration requirements of §13.1011 of the Texas Agriculture Code; as authorized by §13.029 of the Texas Agriculture Code.[, all other devices are exempt from the registration requirements of §13.1011:]

(1) - (3) (No change.)

(4) scales. [other than pharmaceutical scales, postal scales, belt-conveyor scales, and rail scales.]

(b) The following devices are subject to the inspection requirements of §13.101(a) of the Texas Agriculture Code; as authorized by §13.029 of the Texas Agriculture Code. [all other devices are exempt from the inspection requirements of §13.101(a):]

(1) - (3) (No change.)

(4) scales other than hopper scales, except as provided by §12.14 of this chapter (related to Inspection and Testing Requirements for Hopper Scales). [pharmaceutical scales, postal scales, belt-conveyor scales, and rail scales.]

(c) The following devices are exempt from Registration and Inspection requirements under §13.1002 of the Texas Agriculture Code; as authorized by §13.029 of the Texas Agriculture Code:

(1) pharmaceutical scales;

(2) postal scales;

(3) belt conveyor scales;

(4) rail scales; and

(5) immediate consumption food scales.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 20, 2017.

TRD-201702388

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: August 6, 2017

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