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RULE PROPOSALS
VOLUME 41, ISSUE 23
ISSUE DATE: DECEMBER 7, 2009
RULE PROPOSALS
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
OFFICE OF WEIGHTS AND MEASURES

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

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 2009-359.

Submit written comments by February 5, 2010 to:
Louis E. Greenleaf
State Superintendent
Office of Weights and Measures
1261 Routes 1 and 9 South
Avenel, New Jersey 07001

The agency proposal follows:

Summary

The Office of Weights and Measures (OWM) is proposing to readopt N.J.A.C. 13:47C with amendments. Pursuant to the provisions of N.J.S.A. 52:14B-5.1c, the rules at N.J.A.C. 13:47C will expire on April 24, 2010. As required by Executive Order No. 66 (1978), the OWM has reviewed these rules and determined that they are necessary, reasonable and proper for the purpose for which they were originally promulgated, to protect New Jersey consumers with an accurate weighing and measuring system for both foodstuffs and nonfoodstuffs.

A summary of the rules proposed for readoption follows. The current reserved sections of the existing rules have been omitted from the Summary discussion. The words "this State" have been replaced with "the State of New Jersey" in several sections for purposes of consistency. In two places where the term "State Superintendent of Weights and Measures" appears, the language has been changed to "State Superintendent" to make it consistent with the definition section.

Subchapter 1 defines the words and terms used in this chapter. The definitions of "paneling" and "single service container" have been removed from N.J.A.C. 13:47C because they are not used in the rules.

Subchapter 2 contains the rules that address foodstuffs. N.J.A.C. 13:47C-2.1 provides that all meat, poultry, fish and/or shellfish sold in the State of New Jersey shall be sold on the basis of net weight only, except as provided in the rule. Shellfish may be sold by weight, measure and/or count, except that processed clams, mussels and oysters on the half-shell must be sold by net weight, excluding the weight of the shell; canned mussels, clams and oysters must be sold by net weight; fresh oysters, clams and mussels removed from the shell must be sold by liquid volume; whole clams, oysters mussels and crabs in the shell must be sold by weight, dry measure or count. When a distinctive food product is formed by combining meat, poultry, fish or seafood and another food element, the quantity may be represented in total weight, not for each separate element. Labels on ready-to-cook stuffed fish, seafood, poultry or meat products must show the total weight of the product. Persons conducting net weight inspections of meat, poultry or fish must use the dry tare methods as set forth in N.J.A.C. 13:47C-2.1(f).

N.J.A.C. 13:47C-2.2 requires that all cut-up poultry be offered for sale or sold by net weight based on dissection of the wings, legs, drumsticks, oyster socket (ilium), ischium and the meat, skin and bones. These requirements do not apply when the poultry is split down the back into halves or cut into quarters, provided, however, that all such portions are properly labeled, advertised or otherwise described as such.

N.J.A.C. 13:47C-2.3 requires that all dried fish, smoked fish and their products be sold by net weight. When packed in containers or wrappers, the net contents must be clearly marked; except the tare weight may be marked alone, along with a conspicuous statement on each wrapper or container that the retailer must weigh the package at the time of sale to ascertain the actual net weight.

N.J.A.C. 13:47C-2.4 provides that all food normally permitted to be sold by numerical count as an individual piece or unit, when divided or portioned by any method must have all divisions or portions sold, exposed or offered for sale based on net weight. These requirements apply when such articles of food in package form are removed and divided or portioned. These requirements do not apply when those items are portioned for consumption on the premises by eating establishments.

N.J.A.C. 13:47C-2.5 states that all articles of food shall be offered for sale or sold by net weight, measure or count with the exception of the items listed in the rule.

N.J.A.C. 13:47C-2.6 requires that fresh meat roasts be exposed, advertised, offered for sale or sold based on the net weight of the fresh meat only. Any fat or other extraneous material either wrapped around or wrapped within the fresh meat roast, shall be considered as tare weight only.

N.J.A.C. 13:47C-2.7 states that gross cuts or gross weight portions of meat sold to freezer plans in home freezer units, will be construed as meeting the provisions of this chapter, but the provisions of N.J.A.C. 13:47K-4 (Marketing Requirements) implementing N.J.S.A. 51:1-29 do not apply, except as specified in the rules. N.J.A.C. 13:47C-2.7(b) and (c) require that delivery be accompanied by an invoice guaranteeing the net weight and the other items listed in the rule. Subsection (d) requires that any container in which meat is delivered must be sealed, strapped or [page=4405] stapled. Subsection (e) states that substitutions or specific cuts not a part of the gross or wholesale cut will be construed to be prepackaged food and must comply with N.J.A.C. 13:47K-4 (Marketing Requirements). Finally, under subsection (f), a purchaser may request that the trim be included with the delivery, but it must be wrapped separately and include the weight on the package.

Subchapter 3 contains the rules addressing nonfoodstuffs. N.J.A.C. 13:47C-3.1 applies to the retail sale of all wood, natural and processed, for use as fuel. The rule defines "representation," as, among other things, an advertisement for cordwood or firewood. The representation may contain a declaration of identity, which includes, among other things, the species group. Subsection (d) states that, with specified exceptions, wood used for fuel must be advertised, offered for sale or sold by the cord or fraction thereof. Subsection (e) prohibits the use of certain terms for advertising or sale purposes. Subsection (f) requires that delivery tickets or sale invoices accompany non-packaged items and sets forth the information that must be on the delivery tickets or invoices; states that misrepresentation of the type of wood being delivered is subject to a penalty; and mandates that sellers keep voided delivery tickets on file as required by N.J.S.A. 51:4-28. Subsection (g) states that all cordwood, firewood, fireplace, stove wood and whole logs will be subject to inspection, when in transit, at the time of delivery or at any reasonable time following delivery by any weights and measures officer pursuant to N.J.S.A. 51:1-88.

N.J.A.C. 13:47C-3.2, Holiday decorating materials, requires that all decorating materials intended for use during the holiday season and constituting various forms of natural vegetation normally made or manufactured into rope form and distributed in bundles, be offered for sale or sold by linear measurement. Subsection (b) requires that a tag, which includes the name and address of the maker along with the quantity of rope in linear measurement, be attached to each bundle.

N.J.A.C. 13:47C-3.3 requires all wiping materials to be sold by net weight, and when put up in bales, cartons or other containers, the net weight must be marked on the outside of the package, together with the name and address of the packer or distributor.

N.J.A.C. 13:47C-3.4 provides that no dealer may expose or offer for sale to consumers in the State of New Jersey, through any advertising media or means, any building materials unless certain requirements are met regarding the building materials, preservatives and exposure conditions. In addition, the advertising must be in compliance with standards of the United States Department of Commerce.

N.J.A.C. 13:47C-3.5 provides penalties for noncompliance with the subchapter. Any violation of the rules, except for a violation of N.J.A.C. 13:47C-3.4 is subject to a penalty of not less than $ 100.00. Each package in violation of the subchapter will be considered a separate violation. The fines applicable to a violation of N.J.A.C. 13:47C-3.4 are as set forth in subsection (b).

N.J.A.C. 13:47C-3.6 provides that all preservatives, commodities, analysis methods, miscellaneous standards, conversion factors and correction tables for treated lumber contained in the "Book of Standards" published by the American Wood Protection Association, together with all amendments and supplements are adopted by reference. Subsections (b) through (d) provide standards for treated lumber that are considered building material, hardwoods and lumber treated for "Above ground use only." Subsection (f) addresses the penalties for noncompliance with the provision. Proposed amendments to subsections (a), (b) and (d) correct the name of the American Wood Preservers Association by replacing "Preservers" with "Protection." In addition the mailing address of the American Wood Protection Association has been updated in subsection (a).

Subchapter 6 addresses the requirements for security bonds for transient buyers of precious metals. N.J.A.C. 13:47C-6.1 requires transient buyers of precious metals to file a surety bond in an amount no less than $ 5,000 for the purpose of compensating any person injured by the wrongful act, default, fraud or misrepresentation of the transient buyer. Subsection (b) provides that the transient buyer's bond cannot be cancelled for any cause unless a notice of intention to cancel is filed with the State Superintendent at least 30 days before the requested cancellation date. The bond must contain such a provision.

N.J.A.C. 13:47C-6.2 provides that a notice of intention to withdraw must be given to the State Superintendent at least 30 days before withdrawal. Subsection (b) provides that after a notice of intention to withdraw from the State is filed, the transient buyer is prohibited from making any additional purchases of precious metals in the State.

N.J.A.C. 13:47C-6.3 sets forth the procedures to be followed for claims against a transient buyer.

The OWM has determined that the comment period for this notice of proposal is 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this notice is excepted from the rulemaking calendar requirement.

Social Impact

The rules proposed for readoption with amendments will continue to provide the buyers and sellers of general retail commodities, such as food, firewood and building materials with uniform standards by which the commercial transactions are regulated. The impact of these rules upon the public has been positive for both consumers and merchants in that consumers are protected from unscrupulous commercial dealings and practices and merchants are uniformly advised of their responsibilities in the marketplace. The rules provide the consumer with information necessary to make selections of consumer commodities on the basis of value comparisons. The OWM functions as a third-party control over methods used in the sale and purchase of general commodities between consumers and merchants in order to protect the public.

Economic Impact

The OWM does not anticipate any new or additional economic impact on business owners or consumers as a result of the readoption with amendments of the existing rules. No additional cost to the regulatory agencies, which include approximately 140 State, county and municipal weights and measures officers who inspect and regulate these commodities, is expected in their day-to-day operations.

Existing businesses that are subject to the rules, encounter costs in maintaining scales to accurately weigh the commodities, as required by the chapter. New businesses that wish to engage in the selling of commodities will have to purchase and use devices to determine the accurate weight of the commodities in order for consumers to make a value comparison. The costs of purchasing and using the scales will vary depending upon the size of the new business. However, the benefit to consumers provided by way of the standards set forth in the rules, far exceeds the costs to these businesses. Additionally, the operating procedures for these businesses may have an economic impact. Finally, transient buyers of precious metals will incur costs in obtaining a bond executed by a surety company as required by N.J.A.C. 13:47C-6.1.

The proposed readoption with amendments of these rules will continue to protect consumers when purchasing foodstuffs, fuels, building materials and precious metals. The benefits gained through prevention of overcharges and the maintenance of a uniform system of buying and selling of commodities, far outweigh the burden of any regulatory costs that may be imposed by these rules.

Federal Standards Statement

A Federal standards analysis is not required because the rules proposed for readoption with amendments are subject to State statutory requirements. Although the rules are not subject to any mandated Federal requirements or standards, OWM 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.

Jobs Impact

The rules proposed for readoption with amendments will not directly result in the generation or loss of jobs in the State.

Agriculture Industry Impact

The rules proposed for readoption with amendments will have no impact on the agriculture industry in the State.

Regulatory Flexibility Analysis

If, for purposes of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., any of the approximately 40,000 businesses to which these rules apply are small businesses then the following analysis applies.

[page=4406] The rules proposed for readoption with amendments do not impose any reporting requirements, but the rules contain some recordkeeping requirements. Specifically, N.J.A.C. 13:47C-3.1 requires that sellers of wood used as fuel retain all delivery tickets and sales invoices for a period of at least six months and all voided delivery tickets in duplicate for a period of at least two years. The costs of retaining these documents are minimal.

Several of the rules impose compliance requirements. N.J.A.C. 13:47C-2.1 requires that meat, poultry and shellfish be sold by net weight and provides the manner in which these products may be sold. N.J.A.C. 13:47C-2.2 states that all cut-up poultry must be offered for sale by net weight and on the basis of dissection. N.J.A.C. 13:47C-2.3 requires that all dried fish, smoked fish and similar products be sold by net weight and when these products are packed in containers, the contents must be conspicuously marked. N.J.A.C. 13:47C-2.4 requires that all foods, normally permitted to be sold by numerical count as an individual piece or unit, when divided or portioned by any method must have all such divisions or portions sold, exposed or offered for sale on the basis of net weight. N.J.A.C. 13:47C-2.6 provides that fresh meat roasts must be exposed, advertised, offered for sale or sold on the basis of the net weight of the fresh meat only. N.J.A.C. 13:47C-2.7 requires that the delivery of primal cuts of meats must be accompanied by an invoice containing certain information related to the transaction and that a price list be provided with a delivery of meats as part of a home freezer plan.

N.J.A.C. 13:47C-3.1 requires the seller of firewood to issue a serialized delivery ticket or invoice containing certain information related to the delivery of firewood to consumers. The costs of issuing the invoices or delivery tickets are minimal. N.J.A.C. 13:47C-3.2 states that decorating materials used during the holiday season and consisting of various forms of natural vegetation normally made or manufactured into rope form and distributed in bundles may be offered for sale only on the basis of linear measurement. Additionally, a tag must be affixed to each bundle marked with the name and address of the product maker along with quantity of the bundle in terms of linear measurement. N.J.A.C. 13:47C-3.3 provides that all wiping materials be sold by net weight, and when put in bales, cartons or other containers the net quantity of the contents in terms of net weight must be conspicuously marked. N.J.A.C. 13:47C-3.4 requires that dealers advertising building materials disclose not only the grade and species of the building material, but also, the size of such building material. In addition, the section requires dealers who advertise building materials to disclose the size, grade, and species of the treated building material; the preservative used in treatment; the amount of preservative retention expressed as pound per cubic foot; and maximum or worst exposure conditions to which the treated wood may be subjected. N.J.A.C. 13:47C-3.6 requires that treated lumber sold, offered or advertised for sale to consumers as building materials, except lumber treated for "above ground use only" or which has not been treated in compliance with the "Book of Standards" published by the American Wood Protection Association, must, in addition to being graded, measured and labeled in accordance with the requirements of N.J.S.A. 51:4-27, bear legible treatment marks. Likewise, it requires that lumber and lumber products, which have not been treated in compliance with the standard, bear treatment marks containing the specified information to alert the consumers of that fact.

N.J.A.C. 13:47C-6.1 requires that transient buyers of precious metals give a surety bond to the State Superintendent to compensate potential consumers who may have claims against the transient buyer. N.J.A.C. 13:47C-6.2 requires that after a notice of intention to withdraw from the State is filed with the State Superintendent by a transient buyer of precious metals, the transient buyer is prohibited from making any additional purchases of precious metals in the State. N.J.A.C. 13:47C-6.3 requires that each customer having a claim against a transient buyer must file a verified claim within 60 days with the State Superintendent. When the customer is the prevailing party and the surety will not make the payment of the determined amount, the State Superintendent will bring an action at law to recover the amount needed to satisfy the claim.

The OWM believes that no professional services are needed to comply with the rules proposed for readoption with amendments. The rules proposed for readoption with amendments are necessary to preserve the health, safety and welfare of public consumers. The objective of the rules proposed for readoption with amendments is to provide a fair and open marketplace for consumers. No differentiation based upon size is provided since differentiation would adversely impact the purpose of the rules, which is to provide for and guarantee a true and equitable transfer of goods.

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.

Housing Affordability Impact

The rules proposed for readoption with amendments will have an insignificant impact on affordable housing in New Jersey and there is an extreme unlikelihood that the regulation would evoke a change in the average costs associated with housing because the rules proposed readoption with amendments concern the duties of the OWM.

Smart Growth Development Impact

The rules proposed for readoption with amendments will have an insignificant impact on smart growth and there is an extreme unlikelihood that the regulation would evoke a change in housing production in Planning Areas 1 or 2 or within designated centers under the State Development and Redevelopment Plan in New Jersey because the rules proposed readoption with amendments concern the duties of OWM.

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

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

SUBCHAPTER 1. DEFINITIONS

13:47C-1.1 Words and phrases defined

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

. . .

"Equipped dealer" means any person who is regularly engaged in the business of selling or selling and delivering building materials to consumers in [this] the State of New Jersey and who maintains unloading or loading, storage, transportation, communication, sales, services or other facilities therefor, with an office accessible to the public with a competent person on duty, commensurate with the nature and other requirements of the business.

. . .

["Paneling" is defined as all products, whether of domestic or foreign origin, which are suitable for use as interior decorative wall panels.]

. . .

["Single service container" means a container intended to be used once only to determine at the time of retail sale the quantity of the commodity comprising a retail sale made from a bulk supply on the basis of liquid measure and to serve as the container for the delivery of the commodity.]

. . .

"Unequipped dealer" means any person who is regularly engaged in the business of selling building materials at retail in [this] the State of New Jersey to consumers in this State who does not maintain loading, unloading or storage facilities.

. . .

SUBCHAPTER 3. NONFOODSTUFFS

13:47C-3.6 Standard for treated lumber

(a) All preservatives, commodities, analysis methods, miscellaneous standards, conversion factors and correction tables for treated lumber so contained in the "Book of Standards" published by the American Wood [Preservers] Protection Association (AWPA), P.O. Box [388] 361784 , [Selma] Birmingham , Alabama [36702] 35236-1784 , together with all amendments and supplements thereto, are hereby adopted by reference as the legal requirements for treated lumber sold, sold and delivered, offered or advertised for sale to consumers as building materials in the State of New Jersey.

[page=4407] (b) Treated lumber sold, sold and delivered, offered or advertised for sale to consumers as building materials in the State of New Jersey, except for lumber which has been treated for "Above ground use only" or which has not been treated in compliance with the "Book of Standards," published by the American Wood [Preservers] Protection Association, together with all amendments and supplements thereto, or equivalent standards, as are accepted by the State Superintendent [of Weights and Measures], shall in addition to being graded, measured and labeled in accordance with the requirements of N.J.S.A. 51:4-27 bear legible treatment marks that contain the following minimum information:

1.-7. (No change.)

(c) (No change.)

(d) Any treated lumber product , which has been treated for "Above Ground use only" or which has not been treated in compliance with the "Book of Standards," published by the American Wood [Preservers] Protection Association, together with all amendments and supplements thereto, or equivalent standards, as are accepted by the State Superintendent [of Weights and Measures], which is sold and delivered, offered or advertised for sale to consumers by use of any media exclusively for landscaping or gardening purposes need not be grademarked but must be labeled with the following minimum information:

1.-6. (No change.)

(e)-(f) (No change.)

SUBCHAPTER 6. REQUIREMENTS FOR SECURITY BOND REQUIRED BY TRANSIENT BUYERS OF PRECIOUS METALS

13:47C-6.1 Transient buyer bond requirements

(a) A transient buyer of precious metals shall file with the State Superintendent a good and sufficient surety bond executed by a surety company authorized to transact business in [this] the State of New Jersey in an amount of not less than $ 5,000. The bond shall run to the State for the benefit of any person injured by the wrongful act, default, fraud or misrepresentation of the transient buyer of precious metals. The bond shall be approved as to form and sufficiency by the State Superintendent, shall be given to the State Superintendent in his or her official capacity and shall be conditioned for the faithful compliance by the precious metals transient buyer with all of the provisions of N.J.S.A. 51:6A-1 et seq. , and for the payment of all amounts due to sellers of precious metals during the period the bond is in force.

(b) (No change.)

13:47C-6.2 Notice of Intention

(a) (No change.)

(b) After the Notice of Intention is filed with the State Superintendent, the transient buyer shall make no further purchases of precious metals in [this] the State of New Jersey .



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