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

Commodities in Package Form; Weights and Measures

Authorized By: Louis E. Greenleaf, State Superintendent, Office of Weights and Measures.
Authority: N.J.S.A. 51:1-29 and 51:1-61.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2005-347.

Submit comments by November 18, 2005 to:
Louis E. Greenleaf, State Superintendent
Office of Weights and Measures
1261 Routes 1 and 9 South
Avenel, NJ 07001

The agency proposal follows:

Summary

Pursuant to the provisions of Executive Order No. 66(1978) and N.J.S.A. 52:14B-5.1, the rules at N.J.A.C. 13:47K will expire on March 14, 2006. As required by the Executive Order, 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 provide uniformity in the methods of sale of like commodities. The rules describe the requirements for labeling of commodities.

A summary of each subchapter and the proposed amendments follows:

Subchapter 1 prescribes the labeling requirements for bread; butter, oleomargarine, margarine, butter-like and margarine-like spreads; flour, corn meal and hominy grits; fluid and other milk products; and pickles. The Office proposes an amendment to N.J.A.C. 13:47K-1.2 to correct the citation to the Federal Standard of Identity for butter or margarine and oleomargarine which standard had been recodified. The Office also proposes an amendment to N.J.A.C. 13:47K-1.5 to update the reference to the Pasteurized Milk Ordinance of the U.S. Public Health Services. Subchapter 2 sets forth the weights and measures requirements for certain nonfood products, including paper napkins, paper towels, facial tissues and toilet tissues; writing paper, notebook paper and envelopes; tablets and books of writing paper; wrapping paper; gift-wrapping paper; paper products for industrial use only; fence wire products; asphalt paints, coatings and plastics; peat and peat moss; roofing and roofing materials; sealants; polyethylene products; insulation; solid fuel products; liquified petroleum gas cylinders; mulch; and kindling wood. The Office proposes an amendment to N.J.A.C. 13:47K-2.4 to correct the reference to the American Society for Testing and Materials Standard Test Method D646 for "Grammage of Paper and Paperwood (Mass Per Unit Area)."

Subchapter 3 sets forth general labeling requirements, including the presentation of price, allowable differences for combination quantity declarations, and machine-vended commodities.

Subchapter 4 sets forth marking requirements for commodities in packaged form related to identifying the commodity; the quantity of the commodity; and the responsible manufacturer, packer or distributor. The Office proposes an amendment to N.J.A.C. 13:47K-4.2 to include a new definition for "indirect sale" as it relates to a proposed amendment to N.J.A.C. 13:47K-4.11. The Office also proposes several other amendments to N.J.A.C. 13:47K-4.2 to clarify a statutory citation in the definition of "commodity in package form" and to clarify that the definitions for "consumer package" and "nonconsumer package" apply to "'consumer package' or 'package of consumer commodity'" and "'nonconsumer package' or 'package of nonconsumer commodity,'" respectively.

Based upon recommendations by the National Institute of Standards and Technology, the Office proposes to amend N.J.A.C. 13:47K-4.11(b) to allow an exemption for random packages manufactured or produced and offered for indirect sale from the labeling requirements of unit price and total price. As proposed, these random packages would only have to bear a statement of net weight at the time of delivery if certain disclosures are made to the customer. In addition, N.J.A.C. 13:47K-4.11(aa) is amended to correct the reference to the California Bureau of Home Furnishings and Thermal Insulation. Subchapter 5 sets forth the allowable variations to declared net weights. The Office proposes to amend N.J.S.A. 13:47K-5.2 to remove Tables 1 through 4 for maximum allowable variations for individual packages labeled by weight; by volume, liquid or dry; by count; and by length (width) or by area, respectively. Instead, the Office proposes to adopt by reference tables concerning these maximum allowable variations and a new table for maximum allowable variations for meat and poultry groups and lower limits for individuals packages as referenced in Appendix A of the Fourth Edition of the National Institute of Standards and Technology's Handbook 133. Adopting these tables by reference will ensure that the maximum allowable variation standards in New Jersey are consistent with the national standard. The Office has determined that the comment period for his 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.

Social Impact

The rules proposed for readoption and the proposed amendments to N.J.A.C. 13:47K, which details the weights and measures requirements for commodities in package form, provide buyers and sellers of commodities in package form with uniform standards to regulate the transactions. The rules are based on the Uniform Laws and Regulations developed by the National Conference on Weights and Measures, an organization composed of regulatory agencies and commercial businesses involved in weighing and measuring activities, sponsored by the National Institute of Standards and Technology in the United States Department of Commerce. Additionally, the rules allow commodities in packaged form, produced and/or packaged in New Jersey, to move freely in interstate and intrastate commerce and allow New Jersey merchants to comply with the regulatory schemes of adjoining states, which rules are based on the Uniform Laws and Regulations. The impact of these rules has been positive upon both the public and buyers and sellers of commodities. The rules benefit consumers from unreasonable shortages in packages and provide accuracy in labeling by protecting them from receiving quantities less than purchased. Manufacturers and packers of commodities in package form benefit from a uniform notice of their responsibilities in the marketplace. The amendments proposed are intended to update the rules to current standards and to prevent conflict with potential new standards.

Economic Impact

The proposed readoption of N.J.A.C. 13:47K will have a positive impact upon the general public by preventing overcharging because of shortages in packages of commodities sold in package form. The Office is unable to calculate the costs to the regulated community because the readoption of the rules continues the enforcement of standards that have been in place for several decades. While the regulated community bears the financial costs in complying with the packaging and labeling requirements in these rules, the cost is outweighed by the benefit to both buyers and sellers of commodities and consumers from the uniform standards regulating the buying and selling of commodities. Since these rules are substantially a codification of Federal and industry-recognized standards which have been in existence for many years, the readoption of the rules will not increase packaging costs but instead maintain them. The Office believes that there will be no additional costs in the enforcement of these rules. The Office believes that the proposed amendments will have no economic impact because they are technical in nature, update the rules to current standards and prevent conflict with potential new standards.

Federal Standards Statement

A Federal standards analysis is not required because the rules proposed for readoption are governed by N.J.S.A. 51:1-29 and 51:1-61. The rules proposed for readoption with amendments at N.J.A.C. 13:47K-1.2(a) and (c) and N.J.A.C. 13:47K-1.5(a) reference Federal standards related to butter-like and/or margarine-like spreads; oleomargarine and margarine; and non-fluid milk products contained in 9 CFR Part 319, 319.700; 21 U.S.C. § § 301 et seq.; and the Pasteurized Milk Ordinance of the U.S. Public Health Service, respectively. The rules proposed for readoption with amendments at N.J.A.C. 13:47K-5.2(b)5 contain the same standards as the Federal rules for maximum allowable variations for Federally inspected meat and poultry packages that move in interstate commerce. The Federal rules have been adopted by the U.S. Department of Agriculture pursuant to the Poultry Products Inspection Act and the Meat Inspection Act. The other rules proposed for readoption with amendments voluntarily adopt by reference the standards developed by the National Institute of Standards and Technology (NIST) Handbook 133 related to maximum allowable variations for certain food and nonfood packages in the State of New Jersey.

Jobs Impact

The Office believes that the rules proposed for readoption and the proposed amendments will not result in the creation or loss of jobs in New Jersey.

Agriculture Industry Impact

The rules proposed for readoption and the proposed amendments will continue to affect the agriculture industry in that agricultural products are occasionally sold at roadside stands as commodities in package form. There is no change from existing requirements. Owners and operators of such roadside stands will continue to incur the obligations, expenses and fees described in the Summary and Economic Impact above and the Regulatory Flexibility Analysis below. Such costs may involve the obtaining and affixing of a label and the assurance that the identity and quantity statements are accurate; however, items packaged on the premises where sold are exempt from requirements regarding statements of identity of the manufacturer, packer or distributor pursuant to N.J.S.A. 51:1-29a(2)

Regulatory Flexibility Analysis

Currently, the Office estimates that these rules apply to approximately 40,000 business licenses. If, for the purposes of the Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq., any of these businesses are considered "small businesses," then the following analysis applies. The rules proposed for readoption and the proposed amendments do not impose reporting or recordkeeping requirements. The rules and amendments do, however, impose numerous compliance requirements. Subchapter 1 requires that bread, flour and solid or semi-solid milk products must be sold by weight and sets forth the packaging requirements for margarine, milk, other milk products and pickles. Subchapter 2 sets forth the weights and measures requirements for the sale of numerous nonfood products. Subchapter 3 requires that the presentation of price and display for a commodity include a fraction of a cent. Additionally, the rules detail the requirements for allowable differences and combination quantity declarations and set forth the requirements for vending machine dispensed packaged commodities.

Subchapter 4 establishes compliance requirements regarding the marking of commodities in packaged form. The rules detail the declaration of identity, declaration of responsibility, declaration of quantity and prominence and placement requirements for consumer and nonconsumer packages. Additionally, the rules set forth requirements for specific consumer and nonconsumer commodities, packages and containers and establish exemptions for certain commodities and packages from the specific provisions of the subchapter. The proposed amendment to N.J.A.C. 13:47K-4.11 requires certain disclosures related to random packages manufactured or produced and offered for indirect sale in order to qualify for an exemption to the unit and total price labeling requirements.

Subchapter 5 sets forth the maximum allowable variations allowed below the declared quantity. The amendments to N.J.A.C. 13:47K-5.2 require compliance with the maximum allowable variations as referenced in Appendix A of the National Institute for Standards and Technology Handbook 133. The Office believes that no professional services are likely to be needed to comply with the rules proposed for readoption or the amendments. The Office considers the rules proposed for readoption with amendments necessary to preserve the health, safety and welfare of public consumers. The objective of the rules proposed for readoption and the proposed amendments is to regulate and provide uniformity in the method of sale of commodities in package form and the Office believes that the rules must be applied uniformly to all small businesses without regard to size. Consequently, no lesser requirements or exemptions are provided based upon the size of the business.

Smart Growth Impact

The Office does not believe that the rules proposed for readoption with amendments will have any impact upon the achievement of smart growth or upon the implementation of the State Development and Redevelopment Plan.

Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 13:47K.

Full text of the proposed amendments follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

13:47K-1.2 Butter, oleomargarine, margarine, butter-like and/or margarine-like spreads

(a) For the purposes of this section "butter-like and/or margarine-like spreads" are those products that meet the Federal Standard of Identity for butter or margarine and oleomargarine (see [7 CFR Part 58P, 58.2621] 9 CFR Part 319, 319.700) except that they contain less than 80 percent fat and may contain other safe and suitable ingredients.

(b)-(d) (No change.)

13:47K-1.5 Other milk products

(a) Cottage cheese, cottage cheese products, and other milk products that are solid, semisolid, viscous, or a mixture of solid and liquid, as defined in the Pasteurized Milk Ordinance of the U.S. Public Health Service, as amended [in 1965] (see Public Health Service, Food and Drug Administration, Publication 229, Title PMO grade A, [1985] 2003 Revision [supplements through 1989]), shall be sold in terms of weight; provided, that cottage cheese, cottage cheese products, sour cream, and yogurt shall be packaged for retail sale only in weights per (a)1 or 2 below and, provided further, that the total net weight of multi-unit packages need not comply with (a)1 or 2 below if their individual units comply:

1.-2. (No change.)

13:47K-2.4 Writing paper; notebook paper; envelopes; and office paper

(a)-(b) (No change.)

(c) A package of bond, mimeo, spirit duplicator, xerographic, and other paper, including cut-sized office paper and computer paper, shall bear a label that includes a declaration of quantity, in terms of sheet length and width and count, in the lower 30 percent of the principal display panel, and a declaration of identity including the "Basis Weight." "Basis Weight" as used in this subsection for labeling means the grade, category or identity of the paper determined according to the latest version of American Society for Testing and Materials Standard Test Method D646 for "Grammage of Paper and Paperwood (Mass Per Unit Area)" "Basis Weight" is used as a standard of identity and is not to be considered a net weight declaration.

Subchapter 4. MARKING REQUIREMENTS

13:47K-4.2 Definitions

The following words and terms, as used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:

"Commodity in package form" means a commodity put up or packaged in any manner in advance of sale in units suitable for either wholesale or retail sale. An individual item or lot of any commodity not in package form as defined in this section, but on which there is marked a selling price based on an established price per unit of weight or of measure, shall be considered a commodity in package form. Where the term "package" is used in N.J.S.A. 51:1-1 et seq., it shall be construed to mean "commodity in package form" as herein defined. For the purpose of this definition, single unit produce items wrapped in clear film shall not be construed as commodities in package form.

"Consumer package [:]" or "package of consumer commodity" means a commodity in package form that is customarily produced or distributed for sale through retail sales agencies or instrumentalities for consumption or use by individuals for the purposes of personal care or in the performance of services ordinarily rendered in or about the household or in connection with personal possessions.

"Indirect sale" means a sale where a customer makes a selection and places an order, but is not present when the determination of the net quantity is made, such as Internet or on-line sales, sales conducted by telephone or facsimile, and catalog sales.

"Nonconsumer package [:]" or "package of nonconsumer commodity" means any commodity in package form other than a consumer package, and particularly a package intended solely for industrial or institutional use for wholesale distribution.

13:47K-4.11 Exemptions

(a) (No change.)

(b) A random package bearing a label conspicuously declaring the net weight, the price per kilogram or pound, and the total price shall be exempt from the type size, dual declaration, placement, and free area requirements of this subchapter. In the case of a random package packed at one place for subsequent sale at another, neither the price per unit of weight nor the total selling price need appear on the package, provided the package label includes both such prices at the time it is offered or exposed for sale at retail.

1. (No change.)

2. A random package manufactured or produced and offered for indirect sale shall be exempt from the labeling requirements of unit price and total price and need only bear a statement of net weight at the time of delivery if:

i. The unit price is set forth and established in the initial product offering;

ii. The maximum possible net weight, unit price, and maximum possible price are provided to the customer by order confirmation when the product is ordered; and

iii. When the product is delivered, the customer receives a receipt bearing the following information: identity, declared net weight, unit price and the total price.

(c)-(z) (No change.)

(aa) Those products, including pillows, cushions, comforters, mattress pads and sleeping bags, that bear a permanent label as designated by the Association of Bedding and Furniture Law Officials or by the California Bureau of Home Furnishings and Thermal Insulation shall be exempt from the requirements for location (N.J.A.C. 13:47K-4.8(a)1), size of letters or numbers (N.J.A.C. 13:47K-4.8(b)3 and (b)3i), free area (N.J.A.C. 13:47K-4.8(a)4) and the declarations of identity and responsibility (N.J.A.C. 13:47K-4.3(a) and 4.5), provided that declarations of identity, quantity, and responsibility are presented on a permanently attached label and satisfy the other requirements of this subchapter, and further provided that the information on such permanently attached label be fully observable to the purchaser.

(bb)-(dd) (No change.)

13:47K-5.2 Maximum allowable variations

(a) The [maximum allowable variations (MAV's) below the declared quantity are those expressly set forth in this subchapter as contained in the following tables] following table sets forth the maximum allowable variations for foam aerosol products:

[(*>> means to and including in the following tables.)

Table 1

MAV's for an Individual Package Labeled by Weight

Table 2

MAV's for Individual Packages Labeled by Volume, Liquid or Dry

Table 3

MAV's for an Individual Package Labeled by Count

Table 4

MAV's for Individual Package Labeled by Length (Width) or by Area

<

The MAV for packages labeled by area is 3% of the labeled area.

Table 5

MAV's for Foam Aerosol Products]

Avoirdupois:

(b) The maximum allowable variations below shall conform to the following or revised or later editions, if in effect, incorporated herein by reference:

1. The National Institute of Standards and Technology's (NIST's) Maximum Allowable Variations for Packages Labeled by Weight referenced as Table 2-5 of Appendix A of the Fourth Edition of NIST Handbook 133 (2005);

2. The NIST's Maximum Allowable Variations for Packages Labeled by Liquid and Dry Volume referenced as Table 2-6 of Appendix A of the Fourth Edition of NIST Handbook 133 (2005);

3. The NIST's Maximum Allowable Variations for Packages Labeled by Count referenced as Table 2-7 of Appendix A of the Fourth Edition of NIST Handbook 133 (2005);

4. The NIST's Maximum Allowable Variations for Packages Labeled by Length, (Width) or Area referenced as Table 2-8 of Appendix A of the Fourth Edition of NIST Handbook 133 (2005); and

5. The U.S. Department of Agriculture's Maximum Allowable Variations for Meat and Poultry Groups and Lower Limits for Individual Packages referenced as Table 2-9 of Appendix A of the Fourth Edition of NIST Handbook 133 (2005).

(c) The tables referenced in (b) above are part of a document that is reviewed and/or revised periodically as needed; the most current document is to be used. The NIST Handbook 133 can be obtained from: Weights and Measures Division, National Institute of Standards and Technology, 100 Bureau Drive, Stop 2600, Gaithersburg, MD 20899-2600, telephone number (301) 975-4004, or at the NIST website at www.nist.gov.

Recodify existing (b)-(e) as (d)-(g) (No change in text.)