NEW JERSEY REGISTER
Proposed Readoption with Amendments: N.J.A.C. 13:47B
Authorized By: Louis E. Greenleaf, 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 2004-57.
Submit written comments by April 17, 2004 to:
Louis E. Greenleaf
The agency proposal follows:
Pursuant to the provisions of N.J.S.A. 52:14B-5.1c, the rules at N.J.A.C. 13:47B will expire on August 8, 2004. As required by Executive Order No. 66(1978), the Office of Weights and Measures (the Office) has reviewed these rules and determined them to be necessary, reasonable and proper for the purpose for which they were originally promulgated, that is, to protect New Jersey consumers and merchants from the use of false or malfunctioning weighing and measuring devices in commercial transactions.
A summary of each section and the proposed amendments follows (omitted sections are reserved):
N.J.A.C. 13:47B-1.1 requires gas station owners and operators to use five- gallon standard test measures to determine whether the measuring device is dispensing accurately.
N.J.A.C. 13:47B-1.2 bans the use of counter tacks and requires that all measures of length shall be in conformance with 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-1.4 provides for standard measures for the sale of commodities by liquid measures and mandates certain marking requirements on the liquid measure containers.
N.J.A.C. 13:47B-1.5 provides that all new, modified or altered commercial weighing or measuring devices, with the exception of certain sales approved by the NIST National Type Evaluation Program, must be submitted to the State Superintendent of Weights and Measures for type approval and bans the use of non-type approved commercial weighing or measuring devices. An amendment is proposed to allow the State Superintendent to accept all National Institute of Standards and Technology (NIST), National Type Evaluation Program (NTEP) approved weighing and measuring devices as legal for use in commercial applications in New Jersey. Presently, only scales having a maximum capacity of 100 pounds or less with NTEP approval are exempt for prior inspection and approval of type and operation. This change will reduce duplicate test evaluations by the State of New Jersey and will allow this State to participate along with 44 states in the uniform NTEP evaluation program.
N.J.A.C. 13:47B-1.6 provides for direct customer access to the weighing, indicating and recording elements of commercial scales.
N.J.A.C. 13:47B-1.9 regulates the use of portable self-contained vehicle scales. Technical amendments are proposed to specify the NIST Handbook edition by reference to N.J.A.C. 13:47B-1.20 and to make several grammatical changes.
N.J.A.C. 13:47B-1.10 bans the use of household-type scales for commercial transactions.
N.J.A.C. 13:47B-1.12 sets the limits of weighing on wagon scales.
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 use limitation for such scales.
N.J.A.C. 13:47B-1.16 requires that official inspection certificates be retained by the owner/operator of commercial weighing devices or on a vendor's vehicle, as the case may be, and provides that these certificates are the official authority to use the officially inspected and tested weighing or measuring devices in commercial transactions.
N.J.A.C. 13:47B-1.17 sets forth the minimum height that hanging scales may be positioned to ensure customer access and readability.
N.J.A.C. 13:47B-1.19 provides that converted, altered or modified gasoline dispensers, which were previously type-approved by the State Superintendent, will have its type-approval rescinded. The rule also provides that notification to weights and measures officers of the installation of an altered dispenser will clearly indicate that the dispenser has been altered.
N.J.A.C. 13:47B-1.20 adopts the National Institute of Standards and Technology Handbook 44 as the legal requirement for all weighing and measuring devices used for commercial and law enforcement purposes in the State of New Jersey and reserves the right of the State Superintendent to amend or supplement these requirements. Technical changes are proposed to update the reference to the most current NIST Handbook 44 edition which is incorporated by reference and to make a grammatical correction.
N.J.A.C. 13:47B-1.24 provides for a registry for security scaling devices applied to commercial weighing and measuring devices by licensed repairmen. This registry provides a means to trace faulty or fraudulent repairs and/or adjustments to commercial weighing and measuring devices through an identification system controlled by the State Superintendent.
N.J.A.C. 13:47B-3.1 provides for statutory penalties for violation of or noncompliance with the regulatory provisions of the chapter.
N.J.A.C. 13:47B-4.1 sets forth the minimum training requirements for a new Weights and Measures Officer prior to the issuance of either a badge or credential to that person by the State Superintendent.
The Board has determined that the comment period for this proposal shall be 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this proposal is excepted from the rulemaking calendar requirement.
The proposed readoption with amendments of N.J.A.C. 13:47B will allow the Office to continue to regulate the use of commercial weighing and measuring devices in New Jersey for the protection of consumers throughout the State. The general public benefits from the protection these rules provide in that the Office functions as a third party control for commercial weighing and measuring devices which are used to buy and sell commodities in the marketplace. Since these rules apply to all scales and measuring devices used for commercial purposes, the number of businesses that come within the scope of these rules is approximately 40,000. With such widespread application of the regulatory requirements to businesses affected and the Statewide consumer protection afforded, the readoption of these rules is important to businesses and consumers alike.
The Office does not anticipate any new or additional economic impact on business owners or consumers as a result of the readoption of the existing rules with amendment. Readoption of the rules will continue the economic impact they have had on those subject to the regulatory provisions. 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. N.J.A.C. 13:47B-1.4 requires that all liquid measure containers have printed thereon the capacity and the name and address of the manufacturer. 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 amendment to this section which will allow 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.
Although not readily quantifiable, failure to readopt these rules may result in New Jersey consumers being short-changed when engaging in commercial transactions. This may also result in a loss of consumer confidence in weighing and measuring devices used in everyday market transactions. Whatever economic burden may be experienced by those regulated by these rules is outweighed by the likelihood that buyers and sellers will exchange goods and services on an equitable basis.
Federal Standards Statement
A Federal standards analysis is not required because the rules proposed for readoption with amendments are governed by N.J.S.A. 51:1-61. Although the rules are not subject to any mandated Federal requirements or standards, the Office has voluntarily adopted by reference the standards developed by the National Institute of Standards and Technology (NIST) Handbook 44 for weighing and measuring devices in the State of New Jersey.
The rules proposed for readoption with amendments will not result in the generation or loss of jobs in New Jersey.
Agriculture Industry Impact
The rules proposed for readoption with amendments will have no impact on the agriculture industry in the State.
Regulatory Flexibility Analysis
The Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq., requires an agency to give a description of the types and an estimate of the number of small businesses to which the rules proposed for readoption with amendments will apply. If, for the purposes of the Act, any of the approximately 40,000 businesses to which these rules apply are small businesses, then the following analysis applies:
The Act requires the Office to set forth the reporting, recordkeeping and other compliance requirements of the rules including the kinds of professional services likely to be needed to comply with the requirements. The Act further requires the Office to estimate the initial and annual compliance costs, to outline the manner in which it has designated the rules to minimize any adverse economic impact upon small businesses, and to set forth whether the rules establish differing compliance requirements for small businesses.
The rules proposed for readoption do not impose reporting or recordkeeping requirements. Several of the rules, however, do impose compliance requirements. For example, 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 the NIST Handbook 44. N.J.A.C. 13:47B-1.4 requires that containers of liquid measures be in capacities of one gallon, a multiple of a gallon or a binary submultiple of a gallon. N.J.A.C. 13:47B-1.5 requires that all new types of weighing and measuring devices and any older devices to which is added any new feature be submitted by the manufacturer to the Superintendent of Weights and Measures. N.J.A.C. 13:47B-1.6 requires that commercial weighing equipment be placed so as to be in full view of the customer. N.J.A.C. 13:47B-1.9 outlines requirement on 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 the weighing of any commodity sold to the public. N.J.A.C. 13:47B-1.12 requires that all weighing of motor vehicles shall not exceed 60 percent of the scales beam capacity. N.J.A.C. 13:47B-1.14 prohibits the use of spring scales that are not equipped with a device to compensate for changes in the elasticity of the springs in the retail sale of food other than fruits and vegetables. N.J.A.C. 13:47B-1.16 requires that certification of inspection must be retained by the owner and available at the place of business. 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 repairmen must incorporate their registry mark upon any security sealing device affixed by the repairman to any measuring device repaired, installed or adjusted.
The Office believes that no professional services are likely needed to comply with the rules proposed for readoption or the amendments. The Office considers the proposed readoption with amendment necessary to preserve the health, safety and welfare of public consumers. No differentiation based upon size is provided since to do so would adversely impact the purpose of the rules which are to provide for and guarantee a true and equitable transfer of commodities.
Smart Growth Impact
The rules proposed for readoption with amendments will have no impact on the achievement of smart growth and implementation of the State Development and Redevelopment Plan, otherwise known as the State Plan.
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 follows :
<< NJ ADC 13:47B-1.5 >>
13:47B-1.5 Type approval
(a) All new types of weighing and measuring devices of any description whatsoever<<-,->> and all devices of older types to which may be added any alteration or new feature intended or designed as an improvement to such equipment shall, before distribution or installation thereof in the State of New Jersey, be submitted by the manufacturer thereof to the State Superintendent of Weights and Measures for inspection and approval of type and operation, except as provided in (a)1 below.
1. <<-Scales having a maximum capacity of 100 pounds or less and->> <<+ Weighing and measuring devices+>> approved by the National Institute of Standards and Technology (NIST), National Type Evaluation Program (NTEP) need not be submitted for prior inspection and approval of type and operation; however, the Superintendent reserves the right to require the manufacturer to submit a prototype for evaluation at any time for cause.
(b)-(c) (No change.)
<< NJ ADC 13:47B-1.9 >>
13:47B-1.9 Portable self-contained vehicle scales
(a)-(b) (No change.)
(c) The use of portable self-contained vehicle scales may be permitted on construction projects where a contract requires on-site weighings; and where the weighings are performed by a New Jersey Weighmaster appointed pursuant to N.J.S.A. 51:1-74; and subject to the following requirements:
1.-3. (No change.)
4. The installation is constructed pursuant to the National Institute of Standards and Technology Handbook 44, section 2.20, Scales, paragraph UR. 2.6.1(c) <<-(1998 Edition), which is->> incorporated <<-herein->> by reference <<+in N.J.A.C. 13:47B-1.20+>>. The standard may be obtained by contacting the United States Department of Commerce, National Institute of Standards and Technology, PO Box 4025, Gaithersburg, MD 20899; and
5.-6. (No change.)
7. The scale shall be inspected <<-on->> <<+at+>> a minimum of <<- one->> <<+once+>> daily to <<-insure->> <<+ensure+>> that it is operating properly.
(d) (No change.)
<< NJ ADC 13:47B-1.20 >>
13:47B-1.20 National Institute of Standards and Technology Handbook 44
All specifications, tolerances and other technical requirements for weighing and measuring devices contained in the National Institute of Standards and Technology Handbook 44, <<-1998->> <<+2001+>> edition and all future editions together with all amendments and supplements thereto, adopted by the National Conference on Weights and Measures are hereby adopted and promulgated as the legal requirements for all <<-weighting->> <<+weighing+>> and measuring devices used for commercial purposes and law enforcement in the State of New Jersey; provided, however<<+,+>> that the Superintendent of the Office of Weights and Measures of the Division of Consumer Affairs, Department of Law and Public Safety may from time to time further amend or supplement said specifications, tolerances and other technical requirements for the purpose of conforming the needs of any situation affecting the interests of the State and its people.