TITLE 4. AGRICULTURE

PART 1. TEXAS DEPARTMENT OF AGRICULTURE

CHAPTER 12. WEIGHTS AND MEASURES

The Texas Department of Agriculture (Department) proposes the repeal of Title 4, Part 1, Subchapter A, §12.1; repeal of Subchapter B, §12.13; new Subchapter A, §12.1; Subchapter B, §12.13, and §12.15, and amendments to §12.11. These new and amended rules are necessary to comply with House Bill 2174, enacted during the 85th Regular, Texas Legislative Session, which amends Chapter 13 of the Texas Agriculture Code related to weights and measures devices. The proposed sections are necessary to align Administrative Code rules with the amended statutes and define procedures for device inspections and complaints. Sections proposed for repeal and proposed as new to permit the reader to more easily read and understand the new requirements in a clear and concise manner.

New §12.1 adds definitions which delineate the roles of the Department and Licensed Service Companies (LSC) to align the rules with the new statutory requirements for administering the weights and measures program. Amended §12.11 prescribes the calibration timeline for new devices and renewal of device registrations. Section §12.13 which has been repealed and proposed as new, adds motor fuel metering devices to be subject to registration and inspection. New §12.15, defines the timeline for maintaining documents related to inspections, testing and calibration for motor fuel metering devices to two years.

Stuart Strnad, Director for Consumer Product Protection, has determined that for the first five years the proposal is in effect, there will be no anticipated fiscal impact to local government. There will be minimal fiscal impact to state government as the Department currently conducts routine processing in response to weights and measures complaints.

Mr. Strnad has also determined that for each year of the first five years the proposed amendments are in effect, the public benefit anticipated as a result of administering the proposed rule will be increased consumer protection to the public through efficiencies of administering the consumer protection program, industry compliance and regulation of the affected industry. At this time, the Department cannot estimate the fiscal impact on businesses in the fuel retail industry because samples required to be submitted, other than routine samples, are dependent on complaint volume.

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 Stuart.Strnad@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 repeal is proposed 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 proposal is Chapter 13 of the Texas Agriculture Code.

§12.1.Definitions.

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 October 31, 2017.

TRD-201704408

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 17, 2017

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


4 TAC §12.1

The new section is proposed 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 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) Anniversary date--The last day of the month during which test standards are due annual calibration.

(2) ASTM--American Society for Testing Materials.

(3) Audit--An official TDA administrative review completed by a Representative of the Commissioner of all fuel quality samples and device inspections, tests and calibrations records and/or related documentation.

(4) Certificate of Authority--Written authorization issued by the department authorizing a public weigher to issue an official certificate.

(5) Certified/Certification--Written verification from a department approved laboratory declaring the accuracy of a service company's test standards.

(6) Code--The Texas Agriculture Code.

(7) Commercial transaction--The purchase, offer or submission for sale, hire or award, barter or exchange of an item.

(8) Consumer Information Sticker--A sticker that directs consumers to registration, inspection, and complaint information regarding a device; and that must be placed on each weighing or measuring device used for commercial transactions.

(9) Device--Any pump, liquid measuring device, scale, or bulk or liquefied petroleum gas meter used in a commercial transaction. Device includes any accessory which may affect accuracy. The term also includes weighing and measuring equipment in official use for the enforcement of law or for the collection of statistical information by government agencies.

(10) 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 pasteurized by the seller; or

(D) fruits and vegetables.

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

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

(13) Inspection--The act of examining, testing, or calibrating a weighing or measuring device, or motor fuel metering device, including TDA audits, service observations and onsite facility review duties.

(14) LPG Meter--A device used for the measurement of liquefied petroleum gas.

(15) NCWM--National Conference on Weights and Measures.

(16) NIST--National Institute of Standards and Technology, United States Department of Commerce.

(17) Motor fuel metering device--A liquid measuring device used to dispense motor fuel for commercial sale at a flow rate of 20 gallons per minute or less

(18) Motor fuel dispenser--A liquid measuring device used to dispense motor fuel for commercial sale at a flow rate of greater than 20 gallons per minute.

(19) 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.

(20) OIML--International Organization of Legal Metrology.

(21) 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.

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

(23) Person--An 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.

(24) Place in service--An approval for the device to be placed into commercial operation.

(25) Public Weigher--A business appointed to issue an official certificate in Texas.

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

(27) Representative of the Commissioner--An individual employed by the Department, authorized to perform one or more of the following: audits, reviews, inspections, and/or service observations under specified chapters of the Texas Agriculture Code.

(28) Representative of the Department--A licensed service company and/or licensed technician acting on behalf of the Department to complete fuel quality sample collections, inspections, tests, and calibrations, on motor fuel metering devices as per Texas Agriculture Code, Chapter 13, Subchapter I.

(29) Service Company--A person who holds a service company license issued by the Department under this chapter, also referred to as a Licensed Service Company (LSC).

(30) 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.

(31) Service Technician--An individual who holds a service technician license issued by the Department under this chapter, also referred to as a Licensed Service Technician (LST).

(32) 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.

(33) Test--A field examination of a device to determine compliance with the requirements of this chapter.

(34) Test Standard--A certified weight or measure used to test a device.

(35) 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.

(36) Service Observation--An official TDA observation completed by a Representative of the Commissioner on Service Technicians that occurs periodically to ensure LSC and LST compliance with the applicable standards of fuel quality sample collection and device inspection, testing, and calibrating.

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 November 1, 2017.

TRD-201704410

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 17, 2017

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


SUBCHAPTER B. DEVICES

4 TAC §§12.11, 12.13, 12.15

The new sections and amendments are proposed 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 proposal is Chapter 13 of the Texas Agriculture Code.

§12.11.Registration of Commercial Weighing and Measuring Devices.

(a) - (h) (No change.)

(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) (No change.)

(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) - (F) (No change.)

(j) Calibration required for device registration. Effective September 1, 2017, [Beginning January 1, 2018,] all motor fuel metering devices [meters in stationary liquid measuring 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: [service technician registered with the department in accordance with §12.60 of this chapter (relating to Service Technician Registration Requirement and Procedure), not later than the facility's registration renewal date in calendar year 2019 and at least every two years, thereafter, from the previous calibration date.]

(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 §13.1011 of 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, unless the device number is unknown then all meters dispensing the blend indicated in the complaint shall be inspected, tested and calibrated 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 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 November 1, 2017.

TRD-201704411

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 17, 2017

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


4 TAC §12.13

The repeal is proposed 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 proposal is Chapter 13 of the Texas Agriculture Code.

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

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 November 1, 2017.

TRD-201704409

Jessica Escobar

Assistant General Counsel

Texas Department of Agriculture

Earliest possible date of adoption: December 17, 2017

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