Among the other statutes in Wis. Stat. ch. 98 requiring or authorizing the department to promulgate rules are the following: § 98.16 (4), which requires promulgating rules for vehicle scales; § 98.18 (2), which authorizes promulgating rules “to regulate the installation, servicing, testing and certification of weights and measures” and permits those rules to “include record-keeping and reporting requirements”; § 98.224 (4), which concerns promulgating rules for vehicle tank meters; and § 98.245 (9), which concerns promulgating rules for liquified petroleum gas meters. Related Statutes and Rules
Wisconsin law on weights and measures is set forth in Wis. Stat. ch. 98 and in Wis. Admin. Code chs. ATCP 90, 91, and 92. Plain Language Analysis
Background
The Wisconsin Department of Agriculture, Trade and Consumer Protection (department) administers Wis. Stat. ch. 98, titled Weights and Measures. In fulfilling that responsibility, the department has promulgated administrative rules that incorporate by reference specifications and standards set forth in handbooks published by the National Institute of Standards and Technology (NIST), which is “a science, engineering, technology, and measurement laboratory” within the United States Department of Commerce. See 15 U.S.C. § 272(a). NIST works with and supports the National Conference on Weights and Measures (NCWM) in developing the standards set forth in NIST Handbooks. NCWM is a professional not-for-profit association of state and local weights and measures officials, federal agencies, manufacturers, retailers, and consumers. Under 15 U.S.C. § 272(b)(10) and (c)(4), NIST is directed to cooperate with states in securing uniformity of weights and measures laws and methods of inspection. In partial fulfillment of that duty, NIST publishes handbooks with standards for weights and measures. Periodically, NIST updates those handbooks, thus leading the department to update its rules to incorporate by reference the latest version of relevant NIST handbooks. The department would like to update the NIST technical standards incorporated by reference in Wis. Admin. Code chs. ATCP 90, 91, and 92 (newer editions of technical references already cited in current rules). The code currently incorporates by reference the 2018 editions of NIST Handbook 44, NIST Handbook 130, and NIST Handbook 133. The proposed rule incorporates by reference the 2024 editions of NIST Handbook 44 and NIST Handbook 130. The proposed rule incorporates by reference the 2023 edition of NIST Handbook 133, as it is the most recent. The department’s Board approved the scope statement at its November 17, 2022 meeting. Rule Content
This rule revision makes minor technical changes to the three rules (Wis. Admin. Code chs. 90, 91, and 92). As previously stated, the revision updates the rules to incorporate by reference the most recent editions of relevant NIST Handbooks. In addition, the revision changes the notes that explain how to obtain the handbooks, corrects various typographical errors, and makes other changes to adhere to the Administrative Rules Procedures Manual. For instance, the examples in § 1.06 (3) of the Administrative Rules Procedures Manual implicitly advise against using the percentage sign and instead recommend using the word “percent.” With respect to the general topic of spelling, § 1.05(1)(g) of the Manual directs, “Use the current edition of Webster’s New International Dictionary as the standard for spelling conventions.” Therefore, terms such as “corn meal” and “dish cloths” became “cornmeal” and “dishcloths.” Administrative Rules Procedures Manual § 1.06(c) reads, “Avoid using parentheses or dashes. If certain material is important to the thought or concept expressed in the rule, the material should be set apart with commas, not parentheses or dashes.” Finally, NIST does not “certify” laboratories; it instead “recognizes or accredits” them. To reflect the NIST terminology, rule language has been changed. This rule specifically does not adopt Section 3.40, Electric Vehicle Fueling Systems, in NIST Handbook 44. The 2018 edition of NIST Handbook 44 lists this section as tentatively adopted. However, the 2023 edition permanently adopted this section. The department believes that the adoption of the Electric Vehicle Fueling Systems section would be a substantive rather than a technical revision. Therefore, if necessary or appropriate to do so in the future, the department will commence a separate rulemaking to address that section of NIST Handbook 44 and its incorporation into the Wisconsin Administrative Code. The department also proposes to repeal part of Wis. Admin. Code § ATCP 92.43 (3) (a) and all of § ATCP 92.50 (3) (a) since the affected license years have passed. Summary of and Comparison with Existing or Proposed
Federal Statutes and Regulations
Not applicable. While NIST is “a science, engineering, technology, and measurement laboratory” within the United States Department of Commerce (See 15 U.S.C. § 272(a)), NIST develops recommended national standards through participation from state and local weights and measures officials and industry representatives during annual meetings of the National Conference on Weights and Measures. The specifications and standards set forth in NIST handbooks are themselves recommendations, not federal laws.
Summary of Comments Received during the Public Hearing on Statement of Scope
The department received no comments about the statement of scope either at the public hearing or during the following comment period.
Summary of Comments Received during Rule Hearing and Comment Period
The department accepted the suggested formatting changes from the Clearinghouse. The Clearinghouse provided two comments for clarification by the department. First, only Wis. Admin. Code ch. ATCP 92 would be affected by the adoption of Section 3.40, Electric Vehicle Fueling Systems in NIST Handbook 44; Wis. Admin. Code ch. ATCP 90 would not. Therefore, the department did not change this. Second, the Clearinghouse questioned ambiguity that may already result or would result from the use of both the metric and imperial systems in the three rules. The use of both currently exists within the NIST standards themselves that the department plans to incorporate by reference. Therefore, the department did not change this. The only comment the department received during the comment period came internally. NIST Handbook 44 and NIST Handbook 130 received 2024 updates and NIST Handbook 133 did not. In the interest of using the most recent versions, the department changed the references from 2023 to 2024 editions in those two cases.
Comparison with Rules in Adjacent States
Illinois
Illinois uses NIST Handbook 44 and NIST Handbook 130.
The Uniform Packaging and Labeling Regulation and the Uniform Regulation for the Method of Sale of Commodities in the National Institute of Standards and Technology Handbook 130, and any of its subsequent supplements or revisions, shall be the requirements and standards governing the packaging, labeling, and method of sale of commodities for this State, except insofar as specifically modified, amended, or rejected by regulation issued by the Director.
The following sections of the Method of Sale of Commodities requirements shall not be adopted:
Section 1.2 (Bread), Section 2.20 (Gasoline-Oxygenate Blends), and Section 1.9.2 (Unit Price Advertising). Iowa
The National Institute of Standards and Technology (NIST) Handbook 130, Uniform Laws and Regulations in the Areas of Legal Metrology and Fuel Quality, Handbook 133, Checking the Net Contents of Packaged Goods, Type Evaluation, and all supplements to these handbooks, as published by the National Institute of Standards and Technology amended or revised as of January 1, 2020, are adopted in their entirety by reference except as modified by state statutes, or by rules adopted and published by the Iowa department of agriculture and land stewardship.
Michigan
Michigan has passed a Weights and Measures act that regulates and provides standards for weights and measures, and the packaging and advertising of certain commodities; provides a fee system for certain inspections and tests; and provides penalties for fraud and deception in the use of false weights and measures and other violations.
Minnesota
Weighing and measuring equipment manufactured, offered, or exposed for sale or sold or given away for use in trade or commerce in Minnesota must conform to the requirements and specifications of NIST Handbook 44. NIST Handbook 44 (2019), "Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices," as adopted by the 103rd National Conference on Weights and Measures and published by the United States Department of Commerce, National Institute of Standards and Technology, is incorporated by reference subject to some exceptions.
Summary of Factual Data and Analytical Methodologies
To develop this rule, the department reviewed the most current editions of NIST Handbook standards and verified they were still correct. Because this is a technical rule revision, no further analyses were needed.
Analysis and Supporting Documents used to Determine Effect on Small Business in Preparation of an Economic Impact Analysis
Not applicable. NIST Handbooks are available online at no cost. Also, no major changes within the NIST Handbooks themselves over the past five years have required major costs for businesses.
Fiscal Estimate and Economic Impact Analysis
The Fiscal Estimate and Economic Impact Analysis is attached.
Effect on Small Business
A complete regulatory flexibility analysis is attached.
The department’s Regulatory Review Coordinator may be contacted by:
Telephone at (608) 224-5024
Standards Incorporated by Reference
This rule incorporates by reference relevant sections of the 2024 editions of NIST Handbook 44 and NIST Handbook 130. NIST did not make any changes to NIST Handbook 133 for 2024; therefore, relevant sections in the 2023 version will be adopted. As required by Wis. Stat. ch. 227, consent has been requested from the Attorney General to incorporate these standards by reference after the public hearings and prior to seeking the Governor’s assent to the final draft rule. A copy of these documents will be kept on file with the department and with the Legislative Reference Bureau. Department Contact
David A. Woldseth
Department of Agriculture, Trade and Consumer Protection
