Report of the Laws and Regulations Committee

James P. Cassidy, Jr., Chairman

Cambridge, Massachusetts

Reference

Key Number

###### 200 INTRODUCTION

This is the report of the Laws and Regulations Committee (hereinafter
referred to as the "Committee") for the 92^nd^ Annual Meeting of the
National Conference on Weights and Measures (NCWM). It is based on the
Interim Report offered in the NCWM Publication 16, "Committee Reports,"
testimony at public hearings, comments received from the regional
weights and measures associations and other parties, the addendum sheets
issued at the Annual Meeting, and actions taken by the membership at the
voting session of the Annual Meeting. The Informational items presented
below were adopted as presented when this report was approved.

Table A identifies the agenda items in the Report by Reference Key
Number, title, and page number. The first three digits of the Reference
Key Numbers of the items are assigned from the subject series listed
below. Voting items are indicated with a "**V**" after the item number.
Items marked with an "**I**" are informational. Items marked with a
"**D**" are developing items. The developing designation indicates an
item has merit; however, the item is returned to the submitter for
further development before any further action is taken by the Committee.
Items marked "**W**" have been withdrawn from consideration. Table B
lists the appendices to the report, and Table C provides a summary of
the results of the voting on the Committee's items and the report in
entirety.

This report contains recommendations to amend National Institute of
Standards and Technology (NIST) Handbook 130, 2008 Edition, "Uniform
Laws and Regulations," or NIST Handbook 133, "Checking the Net Contents
of Packaged Goods," Fourth Edition (January 2005). Proposed revisions to
the handbook(s) are shown in **bold face print** by ~~striking out~~
information to be deleted and **[underlining]{.underline}** information
to be added. New items proposed for the handbooks are designated as such
and shown in **bold face print**. Text presented for information only is
shown in *italic* print. When used in this report, the term "weight"
means "mass."

#### Subject Series

**INTRODUCTION** 200 Series

**NIST Handbook 130** -- General 210 Series

Uniform Laws 220 Series

Weights and Measures Law (WML) 221 Series

Weighmaster Law (WL) 222 Series

Engine Fuels, Petroleum Products, and Automotive Lubricants Inspection
Law (EFL) 223 Series

Uniform Regulations 230 Series

Packaging and Labeling Regulation (PLR) 231 Series

Method of Sale Regulation (MSR) 232 Series

Unit Pricing Regulation (UPR) 233 Series

Voluntary Registration Regulation (VRR) 234 Series

Open Dating Regulation (ODR) 235 Series

Uniform National Type Evaluation Regulation (UNTER) 236 Series

Engine Fuels, Petroleum Products, and Automotive Lubricants Regulation
(EFR) 237 Series

Examination Procedure for Price Verification 240 Series

Interpretations and Guidelines 250 Series

**NIST Handbook 133** 260 Series

**Other Items** 270 Series

Table A

**Index to Reference Key Items**

**Reference**

Key Number Title of Item Page

## [200 INTRODUCTION 1](#introduction) {#introduction-1 .TOC-1}

## [232 METHOD OF SALE REGULATION 3](#method-of-sale-regulation) {#method-of-sale-regulation-3 .TOC-1}

## [232-1 V Permissive Temperature Compensation for Refined Petroleum Products and Other Fuels 3](#v-permissive-temperature-compensation-for-refined-petroleum-products-and-other-fuels) {#v-permissive-temperature-compensation-for-refined-petroleum-products-and-other-fuels-3 .TOC-2}

## [232-2 V Fuel Ethanol Labeling 10](#v-fuel-ethanol-labeling) {#v-fuel-ethanol-labeling-10 .TOC-2}

## [232-3 I Biodiesel Labeling 11](#i-biodiesel-labeling) {#i-biodiesel-labeling-11 .TOC-2}

## [260 NIST HANDBOOK 133 "CHECKING THE NET CONTENTS OF PACKAGED GOODS" 12](#nist-handbook-133-checking-the-net-contents-of-packaged-goods) {#nist-handbook-133-checking-the-net-contents-of-packaged-goods-12 .TOC-1}

## [260-1 W 2.6. Drained Weight for Glazed or Frozen Seafood 12](#w-2.6.-drained-weight-for-glazed-or-frozen-seafood) {#w-2.6.-drained-weight-for-glazed-or-frozen-seafood-12 .TOC-2}

## [260-2 W Worksheet for Liquid Volumes 13](#w-worksheet-for-liquid-volumes) {#w-worksheet-for-liquid-volumes-13 .TOC-2}

## [270 Other items -- Developing items 16](#other-items-developing-items) {#other-items-developing-items-16 .TOC-1}

## [270-1 W Add to NIST Handbook 130, Method of Sale of Commodities Regulation Section 1.14. Labeling Requirement of Drained Weight for Commodities Packed in a Liquid Medium (foods other than meat or poultry products under USDA jurisdiction) 16](#w-add-to-nist-handbook-130-method-of-sale-of-commodities-regulation-section-1.14.-labeling-requirement-of-drained-weight-for-commodities-packed-in-a-liquid-medium-foods-other-than-meat-or-poultry-products-under-usda-jurisdiction) {#w-add-to-nist-handbook-130-method-of-sale-of-commodities-regulation-section-1.14.-labeling-requirement-of-drained-weight-for-commodities-packed-in-a-liquid-medium-foods-other-than-meat-or-poultry-products-under-usda-jurisdiction-16 .TOC-2}

## [270-2 W Amend NIST Handbook 130, Method of Sale Regulation Section 2.13.4. Declaration of Weight 17](#w-amend-nist-handbook-130-method-of-sale-regulation-section-2.13.4.-declaration-of-weight) {#w-amend-nist-handbook-130-method-of-sale-regulation-section-2.13.4.-declaration-of-weight-17 .TOC-2}

## [270-3 W Add Section 2.1.6. to NIST Handbook 130, Interpretations and Guidelines 18](#w-add-section-2.1.6.-to-nist-handbook-130-interpretations-and-guidelines) {#w-add-section-2.1.6.-to-nist-handbook-130-interpretations-and-guidelines-18 .TOC-2}

## [270-4 W Amend Handbook 133, Chapter 4.7 Polyethylene Sheeting -- Test Procedure 23](#w-amend-handbook-133-chapter-4.7-polyethylene-sheeting-test-procedure) {#w-amend-handbook-133-chapter-4.7-polyethylene-sheeting-test-procedure-23 .TOC-2}

## [270-5 I Amend Section 2.2.1. in Handbook 130 Uniform Engine Fuels Regulation -- Premium Diesel Lubricity 24](#i-amend-section-2.2.1.-in-handbook-130-uniform-engine-fuels-regulation-premium-diesel-lubricity) {#i-amend-section-2.2.1.-in-handbook-130-uniform-engine-fuels-regulation-premium-diesel-lubricity-24 .TOC-2}

## [270-6 I Amend Handbook 130 Interpretations and Guidelines Section 2.3.2. Guidelines for the Method of Sale of Fresh Fruits and Vegetables 26](#i-amend-handbook-130-interpretations-and-guidelines-section-2.3.2.-guidelines-for-the-method-of-sale-of-fresh-fruits-and-vegetables) {#i-amend-handbook-130-interpretations-and-guidelines-section-2.3.2.-guidelines-for-the-method-of-sale-of-fresh-fruits-and-vegetables-26 .TOC-2}

## [270-7 D Amend Handbook 133 Section 2.3, Moisture Allowances to Provide Clearer Guidance 30](#d-amend-handbook-133-section-2.3-moisture-allowances-to-provide-clearer-guidance) {#d-amend-handbook-133-section-2.3-moisture-allowances-to-provide-clearer-guidance-30 .TOC-2}

## [270-8 D Laws and Regulations Committee WG on Moisture Loss 30](#d-laws-and-regulations-committee-work-group-wg-on-moisture-loss) {#d-laws-and-regulations-committee-wg-on-moisture-loss-30 .TOC-2}

## [270-9 D Petroleum Subcommittee 31](#d-petroleum-subcommittee) {#d-petroleum-subcommittee-31 .TOC-2}

Table B

**Appendices**

[Appendix A. L&R Committee Work Group on Moisture Loss A1](#AppendixA)

**Table C**

**Voting Results**

  ----------------- -------------------- ------------ -------------- ------------ ---------------
  ***Reference Key  ***House of State                 ***House of                 ***Results***
  Number***         Representatives***                Delegates***                

                    ***Yeas***           ***Nays***   ***Yeas***     ***Nays***   

  232-1             23                   16           24             16           Returned to
                                                                                  Committee

  232-2             40                   0            42             0            Passed
  ----------------- -------------------- ------------ -------------- ------------ ---------------

#### 

#### Details of all Items

#### (In order by Reference Key Number)

###### 232 METHOD OF SALE REGULATION

####### 232-1 V Permissive Temperature Compensation for Refined Petroleum Products and Other Fuels

(This item was not adopted and was returned to the Committee)

Sources: The Southern Weights and Measures Association (SWMA), the
Western Weights and Measures Association (WWMA), and the Central Weights
and Measures Association (CWMA).

Note: This or similar proposals, which have been on the Committee's
agenda for several years, were reviewed by each of the regional weights
and measures associations. The review process resulted in the submission
of several different proposals and numerous comments and suggestions for
the Committee to consider. Everyone expressed concern over the scope,
cost and impact of establishing a method of sale for petroleum products
which required temperature compensation. This subject was widely
discussed by the NCWM at public forums dating back more than 30 years. A
similar proposal was made by NEWMA as recently as 2000, but the
Committee withdrew it in 2001. NEWMA noted at that time that
Pennsylvania, New Hampshire, Maine, and Canada permit
temperature-compensated sales of products like home heating fuel and
retail gasoline. Additional historic and background information is
available in previous editions of the Committee's agenda. For recent
discussions on this subject see Item 232-1 in the report of the 91^st^
NCWM An**nual Meeting in 2006 at www.nist.gov/owm on the Internet. It is
also available on a searchable DVD format on NIST Special
Publication 979 "Reports of the National Conference on Weights and
Measures 1905 to 2006," (November 2006) which is available from the
NCWM.**

**Recommendation:** At its 2007 Interim Meeting the Committee received
correspondence from consumer groups and other organizations and heard
testimony from weights and measures officials, the petroleum industry
(including the American Petroleum Institute (API)), consumers and others
regarding temperature compensation of refined petroleum products. The
Committee appreciates all of the data, discussion and especially the
high level of interest. The Committee acknowledges the media attention
this item has drawn, and the members were pleased to learn that some
agricultural commissioners and other policy makers, as well as some
governors and state attorneys general, have expressed interest in
temperature compensation.

Proponents for the item spoke of a need to improve the accuracy of
measurements of petroleum products because of their cost and of the need
to improve accountability, while opponents spoke to the cost of
implementing temperature compensation and the potential for confusion in
the marketplace. The Committee also was made aware of legislation under
consideration in Missouri and Texas that would establish different
definitions for a gallon based on the ambient temperature in varied
areas of the states. The Committee was especially sensitive to concerns
expressed by weights and measures inspectors about the potential cost
and increased inspection time they may expend if temperature
compensation is allowed in all applications, especially at the retail
level.

The Committee duly considered the presentations, discussions, letters,
data, media stories, comments received at public hearings and in
hallways, and the proposed legislation. The NCWM posted this information
at:

http://www.ncwm.net/events/index.cfm?fuseaction=interimagenda07

Following is a list of justifications for adopting a standard that will
facilitate the implementation of an orderly yet permissive approach to
allowing broader use of temperature compensation in the marketplace:

-   Cost of fuel has led to increased consumer and business interest in
    better methods of measurement, inventory control and accountability.
    By now everyone has realized or should realize that ambient
    temperatures are but one factor which impacts the volume of any
    liquid. Thus, basing a state's temperature-compensation program on
    regional ambient temperatures is not a technically valid approach to
    addressing the issue.

-   The use of dual-wall storage tanks and deliveries of fuel directly
    from refineries result in higher temperature product.

-   Awareness and concerns over the impact of temperature on the cost of
    fuel has come about at the same time advances in technology such as
    electronics and software have made compensation possible in both new
    and existing measuring devices at lower costs.

-   Increased consumer requests that temperature compensation be used,
    especially in high volume deliveries for improved measurement
    accuracy.

-   The dramatic growth of public interest in recent years is evidenced
    by articles in many newspapers and widely read magazines such as
    *Scientific America.* This national conversation about energy has
    led to greater consumer awareness, as well as interest on the part
    of political leaders, of energy issues and has contributed to
    creating an opportunity for change.

After a thorough discussion and polling by its chairman, the Committee
was unanimous that it would recommend to the NCWM the adoption of a
method of sale for refined petroleum products and other fuels. This
would allow industry the option of selling these products on the basis
of temperature-compensated sales. While the decision to submit the
permissive temperature-compensated method of sale for NCWM consideration
was unanimous, the representative from the CWMA supported going forward
with the recommendation but did not agree with including retail sales in
the scope of the regulation. The Committee ultimately decided it was in
the best interest of the U.S. commercial measurement system if the NCWM
adopted a standard that would provide guidance to states considering
legislation in this area, thus supporting the work of the Specifications
and Tolerances Committee, the National Type Evaluation Program (NTEP)
and others to develop technical requirements and test procedures for
both type approval and field testing for devices equipped with
temperature compensation. The Committee believed those efforts were
critical to facilitating the introduction of temperature compensation to
the marketplace, especially in NTEP states as the NCWM learned there
were no retail motor-fuel dispensers available with Certificates of
Conformance that included temperature compensation functions.

The following topics/considerations were addressed by the Committee:

**1. Temperature compensation was already legal for use in trade unless
prohibited by state or local requirements.**

The Committee was aware that temperature compensation was already
required or permitted in a number of states for vehicle-tank meters,
liquefied petroleum gas, and wholesale deliveries to retailers and that
it had been used in the marketplace in these applications for decades.
At the WWMA Annual Meeting, the State of California reported that for
transactions involving 5000 gal or more, purchasers may request
temperature compensation; Idaho said that for transactions involving
8000 gal or more, the purchaser had an option to buy, on a yearly basis,
temperature-compensated product and that all terminal transactions were
temperature compensated; Arizona responded that any transactions
involving more than 5000 gal must be compensated for temperature; and
currently the State of Hawaii was the only jurisdiction which has taken
some action to account for temperature variations in retail sales. The
Committee heard enough supportive comments from a broad base of weights
and measures directors, inspectors and metrologists to recognize that
temperature compensation may find broad acceptance in the marketplace,
especially once the potential benefits it offers were realized and
implementation costs fall.

The Committee also believed that, unless prohibited by state law,
temperature compensation at retail dispensers was already legal in most
states. Additionally, the Committee believed it would be difficult to
argue against a measurement practice that could only improve the
accuracy and reproducibility of a volumetric measurement. The Committee
position was that legal metrology must not stand in the way of the
marketplace striving to change the way fuels and other products were
marketed and sold.

**2. Under a permissive approach consumers and businesses will decide
where and when to implement temperature compensation.**

The Committee was convinced that the marketplace will best determine
where and when the benefits from temperature compensation should be
implemented to improve accuracy. The Committee recommended the adoption
of a method of sale that would allow temperature compensation to be used
in sales of petroleum products on a [permissive]{.underline} (voluntary)
basis, allowing the marketplace (e.g., industry, consumers and other
government agencies) to decide if and when it was appropriate to use
temperature compensation in specific commercial applications (e.g.,
sales at truck stops). This recommendation was proposed solely for the
purpose of ensuring the delivery of an accurate volume of petroleum at a
specific reference temperature. It was not the intent of the Committee
to attempt to define a standard energy content of a liter or gallon of
gasoline or other engine fuel with this recommendation.

**3. Temperature compensation would be permissive, but controlled.**

Although the Committee's recommendation allowed for permissive use of
temperature compensation, it included mandatory provisions requiring
compensation be made by automatic means to ensure the measured quantity
was accurately determined. It also defined a temperature-compensated
volume for both liters and gallons, requiring the posting of information
on dispensers, street signs and on documents to ensure full disclosure
and fair competition. Additionally, it required a business location to
have all of the devices operating on temperature compensation on a
year‑round basis unless a written waiver was granted by the Director.

**4. The basis of Committee's recommendation was the proposal from the
WWMA.**

The Committee's recommendation was based on the proposal submitted by
the WWMA, which was developed at its 2006 Annual Meeting in
Salt Lake City, Utah. The Committee made several amendments to the
proposal but found it represented a well-reasoned foundation for the
recommendation presented below. The CWMA L&R Committee supported the
WWMA\'s proposal and supported submitting it to the NCWM for a vote. The
CWMA agreed with the WWMA that temperature compensation is the most
equitable method of sale, which is currently utilized at every step of
distribution except for retail sales. Additionally, the CWMA believed
the proposal should not be restricted only to petroleum products, but
should also include alternative fuels such as E-85, biodiesel and
biodiesel blends. The Committee's recommendation incorporated some of
the CWMA's suggestions and included additional requirements to address
many of the concerns raised issue at the 2007 NCWM Interim Meeting open
hearings and discussions. For the purpose of this recommendation the
Committee used the definition for "refined petroleum products" as
presented in Handbook 130 Uniform Engine Fuels, Petroleum Products, and
Automotive Lubricants Inspection Law which reads, "products obtained
from distilling and processing of petroleum (crude oil), unfinished
oils, recycled oils, natural gas liquids, refinery blend stocks, and
other miscellaneous hydrocarbon compounds" with the understanding that
its intent was that the requirements would apply when petroleum was
blended with other products such as ethanol.

**5. Full disclosure will allow informed consumers to make value
comparisons.**

The Committee believed consumers, when educated through marketing and
outreach efforts, will accept new technology and measurement practices.
When provided with sound information, consumers will gain confidence
that government oversight will prevent deceptive practices. The
Committee believed the full disclosure provisions of the method of sale
will reduce both unfair competition and consumer confusion. If, for
example, a truck stop offers temperature‑compensated sales of diesel
fuel through high-speed dispensers for truckers, the road signs with
price per unit of volume (e.g., gallon or liter) and dispensers must
include a declaration that the volume is sold on the basis of
temperature compensation. If the price per gallon is higher or lower
than the usual price per gallon, consumers will be informed that the
volume was compensated to a reference temperature. Several people
expressed concern over marketplace confusion if diesel fuel is sold on
the basis of both compensated and uncompensated volume. It is incorrect
to say that there would be two methods of sale for the same product
under this recommendation just as it is inaccurate to say that some
consumers will not receive a "full" gallon if temperature compensation
is used as some opponents to this method of sale have claimed. The
reality is that consumers will be able to compare price per gallon
between stations and they will receive a "full" gallon as defined under
the Method of Sale of Commodities Regulation. While confusion is
possible with any method of sale, the Committee was not deterred by that
possibility. If confusion occurs, the proper response is to educate
consumers and address any changes identified from the confusion through
further refinement of the method of sale. In this application, full
disclosure will inform consumers that one product is sold on the basis
of temperature compensation and one is not. When consumers are educated,
they can make sound value comparisons between these choices just as they
already make decisions when choosing between different brand name
products, octane ratings, additive offerings, and types of fuels.
Business and industry is also well equipped and very experienced in
educating its customers whenever it chooses to introduce new products or
services; so should they decide to use the method of sale, they are sure
to introduce it using an informative marketing effort.

The Committee was urged to clarify that there may be situations in which
there is a valid contract where the price is based on the fuel being
sold on the basis of uncompensated measurement. The Committee agreed
with the comment that if a purchaser operating under such a contract
fills up at a location where the dispensers are temperature compensated,
the contract should prevail in those transactions. Similarly, the
Committee heard from the American Petroleum Institute (API) that it
should permit either uncompensated or compensated methods of sale at
loading-rack meters when such sales are under contract. The Committee
believed its proposal will not interfere with the contracts or
understandings that API described.

**6. Costs**

The Committee heard from some users that the lack of temperature
compensation was costing them great sums of money while industry
representatives said the cost of equipment and installation will cost
industry and, ultimately, consumers even larger amounts of money. The
cost of any NCWM action is a concern to the Committee which must defend
its actions on both sides of any issue. However, it is very difficult to
give each side everything it wants in any recommendation. While the
Committee was concerned about cost, it was skeptical of the economic
claims from both sides in this debate. For example, at the Interim
Meeting one estimate of the cost of implementing temperature
compensation dropped nearly \$2 billion dollars once industry learned
that an alternative technology was available in the marketplace.

That is but one illustration of the weaknesses the Committee saw in cost
or damage claims over the years. It dates back to its work in the 1990s
on the price verification procedures where some groups claimed that
supermarkets were overcharging consumers billions of dollars a year. The
Committee never saw data that supported such claims, yet the damage
values received wide notice in the media. Some members of the NCWM may
remember the claims made during Congressional consideration of the
Metric Conversion Act of 1975 that changing to the metric system would
cost billions of dollars. In reality those high costs never
materialized, which was confirmed through several reliable studies. One
reason Congress made conversion to the metric system voluntary was to
allow industry to make changes as part of their normal equipment
replacement cycle. The automotive industry, for instance, found it cost
effective to make the change to metric units when purchasing replacement
equipment. Advancements in technology made conversions easier or allowed
dual-unit displays on equipment as standard features. These factors were
key contributors in reducing costs.

The Committee also heard that no action should be taken pending further
studies. The Committee was wary of calls that it take no action pending
another study or action by Congress. Each State Director in the NCWM
determines whether or not to incorporate what is adopted by the NCWM
into his or her state law or regulations, not the Committee. Even states
that adopt the Method of Sale of Commodities Regulation by reference or
citation can take action to exclude a specific section of a uniform
regulation that conflicts with other requirements or policies. As for
taking time for additional study, the NCWM record on consideration of
the issue of temperature compensation dates back to the mid-1970s and
has arisen for consideration every few years since that date. The
Committee was aware of the history, the issues, the various points of
view, and the potential costs of temperature compensation and believed
it was time for the NCWM to move forward on temperature compensation by
establishing standards by which this method of sale can be brought into
the marketplace on a voluntary, yet controlled, basis.

As one speaker alluded to in his presentation, the marketplace is to
some degree "intelligent" in that it helps address many factors through
its price-setting function and can generally be trusted to balance costs
and prices as well as justify investment in new technology and marketing
practices if there is a need, demand or opportunity. A voluntary
approach will allow early adopters to develop experience and pull
advances in technology into the equipment market while competition and
other factors will reduce costs even further if the method of sale is
broadly adopted. The Committee believed a permissive approach to
temperature compensation turned the choice over to the marketplace
where, if consumer demand was sufficient, sellers would make a business
decision to invest in the technology and marketing according to the new
method of sale when the benefits offset costs.

**7. Limiting the option of temperature compensation to specific
applications**

The Committee received suggestions that temperature compensation be
limited to certain applications or not be allowed in retail sales, but
it did not hear sufficient justification for taking such positions.
Temperature compensation is not new to the commercial measurement
system. It is widely used in wholesale transactions in many
jurisdictions, and consumers in many states have purchased LPG and oil
for heating and other uses for decades on the basis of
temperature-compensated sales. No information was presented to the
Committee that its use in those applications has been anything but
successful. The Committee recognizes that verifying devices with
temperature compensation may require additional inspection time and
require weights and measures officials to purchase thermometers or other
equipment for testing. However, those factors are not sufficient
justification to prohibit the marketplace from implementing this method
of sale. If a jurisdiction adopts this method of sale and a business
decides to use temperature compensation, the weights and measures agency
would need to obtain funding to implement appropriate testing procedures
to verify devices. However, the Committee would expect that innovation,
risk-based testing, and random sampling techniques, as well as
technology, would lessen the time required to conduct additional tests
just as those factors have reduced the burden of testing many weighing
and measuring instruments in the past.

**8. Permissive vs. Mandatory Implementation**

The Committee heard from the regional associations and others that
temperature-compensated sales should be implemented on a permissive
basis. The Committee opposed the inclusion of a future mandatory date at
this time. The Committee believed temperature-compensated sales should
be market driven and that suppliers will conduct sales on a compensated
basis when consumers demand it and should not be required to do so
before then. The Committee, based on the comments of many jurisdictions,
believed the imposition of a mandatory requirement was too burdensome on
the industry, requiring upgrades and possibly the replacement of many
meters without adequate justification.

The Committee agreed that a mandatory requirement would not be justified
at this point in time. The Committee felt it was important to get some
form of regulation regarding temperature-compensated sales of petroleum
into Handbook 130 and thought that as many barriers as possible should
be removed in order to achieve that goal. Although the Committee's
recommendation is a permissive requirement for temperature-compensated
sales, the Committee was willing to consider establishing future
mandatory dates if a justified need was demonstrated after this
permissive regulation was implemented and used for a period of time.

**9. Comments Reviewed by the Committee**

> a\. The Committee noted that if the proposal was adopted at the 2007
> Annual Meeting, it would go into effect January 1, 2008, in the
> eighteen jurisdictions that indicated they automatically adopt that
> regulation by reference or citation (see 2006 edition of NIST
> Handbook 130, \"II Uniformity of Laws and Regulations\" \[page 9\] for
> a list of those states). The Committee also noted that if the
> recommendation was adopted in July 2007, some jurisdictions might want
> to delay its implementation or exempt that particular section from
> being automatically adopted. Since, typically rulemaking takes longer
> than six months to complete, the Committee debated whether or not it
> should include a delayed effective date of July 1, 2009, for this
> regulation.
>
> b\. The Committee discussed the subject of unscrupulous retailers
> artificially heating fuels and the fact that this deceptive practice
> has occurred from time to time. The State of Arizona actually forbids
> the practice; however, the Committee did not address that issue in the
> following recommendation. The Committee considered if a prohibition on
> the artificial heating of fuels for the purpose of increasing volume
> at the time of sale should be added to the recommendation.

c.  The Committee asked to receive comments on whether or not the
    recommendation should allow the state director to grant (and, when
    justified, revoke) written waivers to some provisions if sufficient
    justification was provided by the business owner. The Committee
    discussed whether or not the requirement that all devices that
    dispense product at a location might result in a hardship for some
    retailers or difficulties in implementing the new method of sale for
    specific customers (e.g., over-the-road truckers). For example, if a
    station decided to sell gasoline and diesel fuel on a
    temperature-compensated basis but also had a dispenser for
    K‑1 Kerosene (from which limited sales were made), a waiver from the
    temperature-compensation requirement on all dispensers could be
    justified. Likewise, if a chain of truck stops decided to sell
    diesel fuel on a temperature-compensated basis through its
    high-output dispensers to truckers (e.g., its prime customers), but
    did not want to implement temperature-compensated sales through its
    gasoline dispensers, a waiver could also be justified. The purpose
    of the requirement that all devices at a single location be
    temperature compensated or not was to prevent a retailer from
    selling through the compensated or uncompensated dispensers when it
    benefited him or her. The Committee believed some flexibility was
    warranted and could make acceptance of the method of sale easier to
    implement.

At the 2007 Interim Meeting the BOD established an Automatic Temperature
Compensation (ATC) Steering Committee to study the issues.

**Committee Recommendation:** Amend the Method of Sale of Commodities
Regulation in Handbook 130 by adding a new Section 2.30. Refined
Petroleum Products:

**[2.30. Refined Petroleum Products -- Permissive Temperature
Compensation]{.underline}**

> **[2.30.1. Where not in conflict with other statutes or regulations,
> these products may be sold on the basis of temperature-compensated
> volume.]{.underline}**
>
> **[2.30.2. When products are sold on the basis of temperature
> compensated volume:]{.underline}**
>
> **[(a) All sales shall be in terms of liters or gallons with the
> delivered volume adjusted to 15 °C or gallons with the delivered
> volume adjusted to 60 °F;]{.underline}**

(b) **[Temperature compensation must be accomplished through automatic
    means.]{.underline}**

    3.  **[Full Disclosure Requirements]{.underline}**

        1.  **[The primary indicating elements of measuring devices,
            recording elements, and all recorded or display
            representations (e.g., receipts, invoices, bills of lading,
            etc.) shall be clearly and conspicuously marked to show that
            the product was delivered on the basis of temperature
            compensated volume;]{.underline}**

        2.  **[When a product is offered for sale on the basis of
            temperature compensated volume, street signs or other
            advertisements of its unit price must clearly and
            conspicuously indicate that the volume is temperature
            compensated.]{.underline}**

    ```{=html}
    <!-- -->
    ```
    4.  **[Other Provisions]{.underline}**

        1.  **[At a business location all sales on a
            temperature-compensated basis shall be made continuously and
            for a period of not less than 12 months (e.g., a person may
            not engage the automatic temperature compensator on a device
            only during certain times of the year to prevent the person
            from taking advantage of temperature
            compensation).]{.underline}**

        2.  **[At a business location which offers products for sale on
            the basis of a temperature compensated volume, all measuring
            devices shall dispense on the basis of temperature
            compensated volume (e.g., a person must not operate some
            devices at a location with automatic temperature
            compensators and others without compensators to prevent them
            from taking advantage of temperature
            variations).]{.underline}**

Annotations:

1.  [As defined in Handbook 130 Engine Fuels, Petroleum Products, and
    Automotive Lubricants Inspection Law, refined petroleum products are
    products obtained from distilling and processing of petroleum (crude
    oil), unfinished oils, recycled oils, natural gas liquids, refinery
    blend stocks, and other miscellaneous hydrocarbon compounds as well
    as Biofuels such as E-85 and Biodiesel at various
    blends.]{.underline}

2.  [A temperature compensated liter is defined as having a reference
    temperature of 15 °C and a temperature compensated gallon is defined
    as 231 cubic inches at a reference temperature of
    60 °F;]{.underline}

3.  [When a product is sold on the basis of a temperature-compensated
    volume, it is typically called "net" or "net volume," whereas the
    volume before compensation is called the "gross" or "gross
    volume."]{.underline}

4.  [The metric units are shown solely for the purpose of showing metric
    equivalents in this uniform regulation in this NIST handbook. There
    is no requirement that dual units be shown in any full disclosure
    information required under this section.]{.underline}

5.  [Temperature Compensation may be abbreviated (e.g., Temp Comp, or
    Compensated to 60 °F) in the interest of space as long as its
    meaning is clear.]{.underline}

6.  [The seller is not prohibited from providing both gross and net
    gallons on receipts, invoices, bills of lading or other
    documentation as long as it is not misleading or
    deceptive.]{.underline}

7.  [A "business location" means a single outlet and should not be
    interpreted to mean all of the outlets or locations that a business
    or company operates in a jurisdiction.]{.underline}

####### 

**Action at 2007 Annual Meeting:** The Committee received eighteen
comments requesting this item be made Informational to allow the
Committee time for additional study and deliberation. The Committee
believed the concerns of the commentators were valid but were issues to
be addressed by the S&T Committee and NTEP. Additional studies of the
method of sale proposal would bring nothing new to the current
recommendation that could not be addressed through further revisions
next year if needed.

The Committee believed adopting this proposal would provide guidance to
policy makers and others currently considering action on temperature
compensation at the national, state or local level. Jurisdictions
opposing the proposal because their state laws or their policies were
against it would not be affected by the adoption of this method of sale
because their laws simply prohibited its implementation. The
implementation of temperature compensation will be slow primarily
because there is no existing nationally approved
temperature-compensation device and NIST Handbook 44 must be revised to
set forth the specifications, tolerances and other technical
requirements for this technology. NTEP will then need to undertake its
work where needed. However, the Committee acknowledged that some states
may move ahead with their own type approvals to allow temperature
compensation. The majority of the Committee believed the proposed method
of sale was ready for NCWM adoption as there was not a reasonable
justification for delaying the adoption of the proposal as presented.
Therefore, the Committee recommended adoption of this item.

This item was subjected to a lengthy discussion at the general voting
session and several issues were raised along with calls for further
study. On a vote the item did not garner enough support to pass, so the
item will be carried forward for reconsideration at the 2008 Interim
Meeting.

The ATC Steering Committee will hold a public meeting
August 27 - 29, 2007, in Chicago, IL, to address the issues and
concerns. The topics to be discussed will include (1) establishing
standard product densities; (2) establishing specifications for
temperature; (3) response time of thermometer well; (4) referencing
15 °C vs. 60 °F; (5) field test procedures and temperature uncertainties
related to the 5 gallon test draft; (6) implementation;
(7) labeling/signage/receipts; (8) tax data; (9) temperature data; and
(10) NTEP checklists.

For further information on the ATC Steering Committee, please contact:

Don Onwiler, Chairman

Nebraska Weights & Measures Division

PO Box 94757

Lincoln, NE 68509

\(402\) 471-4292 or at donwiler@agr.ne.gov

####### 

####### 232-2 V Fuel Ethanol Labeling

(This item was adopted)

**Source:** Central Weights and Measures Association (CWMA)

**Recommendation:** Add a fuel ethanol labeling requirement
(Section 2.30.), as recommended by the Petroleum Subcommittee, to the
Method of Sale of Commodities Regulation. To ensure agreement,
editorially replace the wording in Section 3.8. in the Engine Fuels,
Petroleum Products, and Automotive Lubricants Regulation with the
following:

> **[3.8. E85 Fuel Ethanol.]{.underline}**
>
> **[3.8.1. How to Identify E85 Fuel Ethanol. - Fuel ethanol shall be
> identified as E85.]{.underline}**
>
> **[3.8.2. Labeling Requirements.]{.underline}**
>
> **[a. Fuel ethanol shall be labeled with its automotive fuel rating in
> accordance with 16 CFR Part 306.]{.underline}**
>
> **[b. A label shall be posted which states \"For Use in Flexible Fuel
> Vehicles (FFV) Only\". This information shall be clearly and
> conspicuously posted on the upper 50% of the dispenser front panel in
> a type at least 12.7 mm (½ in) in height, 1.5 mm (1/16 in) stroke
> (width of type).]{.underline}**

**Discussion:** It was the Committee's view that this proposal did not
impose any new requirements. These requirements were adopted by the NCWM
and published in the Engine Fuels, Petroleum Products, and Automotive
Lubricants Regulation in Handbook 130. However, by adding these
requirements in the Method of Sale of Commodities Regulation, the
Committee was obligated to give notice that it will become effective on
January 1, 2008, in the eighteen jurisdictions which indicate they
automatically adopt that regulation by reference or citation (see NIST
Handbook 130-2006, "II Uniformity of Laws and Regulations" \[page 9\]
for a list of those states).

Section 2.20. of the Method of Sale of Commodities Regulation in
Handbook 130 currently contains requirements for the disclosure of
oxygenates in engine fuels. Including requirements for the disclosure of
fuel ethanol is consistent with that requirement and should be provided
to ensure consumers are fully informed when making purchasing decisions.

While the Committee received numerous comments supporting this item, it
also heard some concerns about perceived discrepancies between this item
and the Federal Trade Commission's (FTC's) regulation regarding ethanol
labeling. These concerns were initially raised when the requirement was
being considered for addition to the Engine Fuels, Petroleum Products,
and Automotive Lubricants Regulation. In response to the concerns, the
Committee reviewed the proposed requirement with the FTC and believes no
conflict exists. This proposal has been considered by several regional
associations and appears to have the support of most weights and
measures officials.

**Committee Action at the 2007 Interim and Annual Meetings:** At the
2007 Interim Meeting the CWMA and others recommended the Committee
separate this item from the Biodiesel Labeling item which is on hold
until ASTM finalizes its work on the biodiesel blend specifications (see
Item 232-3 below). In response to those suggestions, the Committee
agreed to separate the items and recommended the labeling requirement
for fuel ethanol be adopted at the 2007 NCWM Annual Meeting. One comment
suggested the proposal be amended to clarify that only the maximum
volume percentage of ethanol need be declared, but the Committee
believed that most officials understood that was the intent of the
requirement. The Committee did not make any changes to the proposal
above so it would not conflict with the current requirement in the
Engine Fuels Regulation. The day after the Committee's discussion, the
Petroleum Subcommittee met and began a review of the Engine Fuels,
Petroleum Products, and Automotive Lubricants Regulation, which would
include this section. The Petroleum Subcommittee made substantive
changes to the recommended language at the Annual Meeting and the NCWM
adopted the new language and directed NIST to revise Section 3.8. of the
Engine Fuel Regulation to maintain consistency between the two sections.

####### 232-3 I Biodiesel Labeling

**Source:** Central Weights and Measures Association (CWMA)

**Recommendation:** Add the biodiesel labeling requirements contained in
Handbook 130 Engine Fuels, Petroleum Products, and Automotive Lubricants
Regulation to the Method of Sale of Commodities Regulation:

> **[2.XX. Biodiesel.]{.underline}**
>
> **[2.XX.1. Identification of Product. -- Biodiesel and biodiesel
> blends shall be identified by the capital letter B followed by the
> numerical value representing the volume percentage of biodiesel fuel.
> (Examples: B10; B20; B100)]{.underline}**
>
> **[2.XX.2. Labeling of Retail Dispensers Containing Between 5 % and
> 20 % Biodiesel. -- Each retail dispenser of biodiesel blend containing
> more than 5 % and up to and including 20 % biodiesel shall be labeled
> with either:]{.underline}**
>
> **[2.XX.2.1. The capital letter B followed by the numerical value
> representing the volume percentage of biodiesel fuel and ending with
> "biodiesel blend." (Examples: B10 biodiesel blend; B20 biodiesel
> blend), or;]{.underline}**
>
> **[2.XX.2.2. The phrase "biodiesel blend between 5 % and 20 %" or
> similar words.]{.underline}**
>
> **[2.XX.3. Labeling of Retail Dispensers Containing More Than 20 %
> Biodiesel. -- Each retail dispenser of biodiesel or biodiesel blend
> containing more than 20 % biodiesel shall be labeled with the capital
> letter B followed by the numerical value representing the volume
> percentage of biodiesel fuel and ending with either "biodiesel" or
> "biodiesel blend." (Examples: B100 Biodiesel; B60 Biodiesel
> Blend)]{.underline}**
>
> **[2.XX.4. Documentation for Dispenser Labeling Purposes. -- The
> retailer shall be provided, at the time of delivery, with a
> declaration of the volume percent biodiesel on an invoice, bill of
> lading, shipping paper, or other similar document. This documentation
> is for dispenser labeling purposes only; it is the responsibility of
> any potential blender to determine the amount of biodiesel in the
> diesel fuel prior to blending.]{.underline}**
>
> **[2.XX.5. Exemption. -- Biodiesel blends containing 5 % or less
> biodiesel by volume are exempted from requirements 2.XX.1 through
> 2.XX.4.]{.underline}**

**Discussion:** It is the Committee's view that this proposal did not
impose any new requirements. However, by including these requirements in
the Method of Sale of Commodities Regulation, the Committee was
obligated to give notice that the requirements will become effective on
January 1 of the year following adoption in the eighteen jurisdictions
which indicate they automatically adopt that regulation by reference or
citation (see the 2006 edition of NIST Handbook 130, "II Uniformity of
Laws and Regulations" \[page 9\] for a list of those states). These
requirements have already been adopted and are published in the Engine
Fuels, Petroleum Products, and Automotive Lubricants Regulation in
Handbook 130.

Section 2.20. of the Method of Sale of Commodities Regulation in
Handbook 130 currently contains requirements for the disclosure of
oxygenates in gasoline blends. Including requirements for the disclosure
of biodiesel and biodiesel blends is consistent with this practice and
should be required to ensure consumers are fully informed when making
purchasing decisions.

The Committee received numerous comments in support of this item and
heard from the National Biodiesel Board (NBB) that, in general,
supported this item. However, the NBB requested the Committee keep this
item on its agenda as an information item until ASTM finalizes its
biodiesel specifications. Waiting for the ASTM biodiesel standard before
moving this item forward for a vote will ensure there is no conflict
with those specifications.

At its 2006 Annual Meeting, the WWMA L&R Committee received no comments
regarding this item. The WWMA supported the NBB request to keep this
item as Informational pending ASTM action. The WWMA concurred that
waiting for adoption of the ASTM specifications will prevent conflicts
in the final labeling requirement for biodiesel. At a recent CWMA
meeting, a few comments were received that the biodiesel label
requirement should include percentages below 5 %. An update on activity
within ASTM to develop a stability specification for B 100 was provided.
After negative votes were addressed, ballots were circulated to add a
B 5 limit to the D 975 diesel specification and to establish a B 20
specification.

**Committee Action at the 2007 Interim and Annual Meetings:** At the
2007 Interim Meeting, the CWMA and others recommended the Committee keep
this proposal on hold until ASTM finalized its work on the biodiesel
blend specifications. In response to those suggestions, the Committee
agreed to separate this item from the Fuel Ethanol requirements and
carried this item forward as an information item. At the Annual Meeting,
several people called for this item to be presented for a vote at the
2008 Annual Meeting and encouraged the Petroleum Subcommittee to
encourage all stakeholders to move quickly to resolve their concerns so
this important consumer protection requirement can be adopted by the
NCWM.

###### 260 NIST HANDBOOK 133 "CHECKING THE NET CONTENTS OF PACKAGED GOODS"

####### 260-1 W 2.6. Drained Weight for Glazed or Frozen Seafood

**Source:** Northeast Weights and Measures Association (NEWMA)

**Proposal:** Amend Section 2.6 Drained Weight for Glazed or Frozen
Foods of NIST Handbook 133 as indicated in *italics:*

1.  2.6 Drained Weight for Glazed or Frozen ***Sea***foods.

2.  How is the drained weight of frozen **~~shrimp and crabmeat~~
    *seafood*** determined?

3.  Change all references to shrimp and crabmeat to just the word
    "***seafood***."

4.  Delete the glazed section procedure.

**Discussion:** At its 2006 Interim Meeting, NEWMA addressed the
following problems and questions concerning the proposed changes to
Section 2.6 of Handbook 133:

1.  If the intent was to apply Section 2.6 to just seafood, the heading
    should just say Frozen Seafoods. It was the opinion of NEWMA that
    this was the intent. If the intent was to apply this to all frozen
    food, which is a very broad category, then the Committee needed to
    look at the intent of this section. Does it apply to frozen
    vegetables?

2.  The procedure paragraph was too specific. It used just shrimp and
    crabmeat as examples. It should be generalized by using the term
    "frozen seafood."

3.  The glazed section was not needed. The immersion method will work
    for glazed products. However, if the committee felt this method was
    needed, then an editorial change needed to be made. The heading says
    glazed raw seafood and fish and the next sentence starts that way.
    The next sentence ended saying, frozen glazed food product. The
    question was, which one is it -- seafood and fish or frozen food
    products? Does this section cover glazed chicken wings, which is not
    seafood?

4.  If an item was not labeled glazed even though it might be glazed,
    how would the inspector test the product? It is very hard to tell
    glazed from simply frozen. Immersion works for both. Supermarkets
    repack large bags of shrimp and scallops into smaller bags and do
    not take the tare for the glazing or mark the bags "glazed."

**Committee Action at the 2007 Interim Meeting:** The Committee withdrew
this proposal because it believed the guidance on testing glazed and
frozen foods contained in NIST Handbook 133 was consistent with the test
procedures prescribed by the Food and Drug Administration.

####### 

####### 260-2 W Worksheet for Liquid Volumes

> **Proposal:** Amend Section 3.2 Gravimetric Test Procedure for Liquids
> of NIST Handbook 133 to add a worksheet for testing packages labeled
> by liquid volume.

**Source:** Central Weights and Measures Association (CWMA)

The proposed worksheet shown on the following page was reformatted from
a worksheet created by the CWMA in landscape format. It has been
converted to portrait format for use in gravimetric testing as described
below.

The CWMA believed the worksheet is a necessary inspection tool for
gravimetric testing of packages labeled by liquid volume. The worksheet
is used for determining average density, nominal gross weight,
converting the MAV from liquid volume to mass units, and converting the
average error back to labeled units of volume. A worksheet was included
in the third edition of NIST Handbook 133, but was not included in the
fourth edition. This proposal is to add the worksheet, with
improvements, to the fourth edition of NIST Handbook 133. The new
worksheet is one page instead of two. It was modified to provide the
added benefit of helping the inspector identify the largest labeled
declaration (i.e., fl oz vs. decimal pt vs. ml) and using that
declaration to determine the nominal gross weight for the packages.

The worksheet was tested in Nebraska and proved to be an effective and
vital tool for package inspectors. The CWMA believed this functional and
simple worksheet in Handbook 133 will promote more inspection of
packages labeled by liquid volume. Many inspectors currently shy away
from those types of packages because they are intimidated by the added
complexity of the procedure. This worksheet will greatly reduce that
complexity to a process of simply following the steps.

The CWMA believed the only downside of adding the worksheet to the
handbook was that, if adopted, it needed to be published in the
handbook.

**Committee Action at the 2007 Interim Meeting:** While the Committee
recognized the value of this and other similar worksheets in conducting
package inspection, it represented but one way information can be
organized and documented to complete the tests. Laptop computers, for
example, are gaining wider acceptance and their software can provide
similar step-by-step guidance to aid its users. Comments to the
Committee at the 2007 Interim Meeting indicated that, while it would be
helpful for officials to have worksheets and checklists to use, most
officials do not want them added to the printed version of NIST
Handbook 133. One reason for not including such forms in the handbook
was that if a state adopts the handbook in its entirety, there may be
situations where, if the forms or exact steps specified in the handbook
are not used or followed (even when they provide similar results), the
official could be criticized or have his determinations challenged. The
Committee decided to explore creating an Internet site to post
Handbook 133 information, references, and even software to assist
officials. The Committee agreed the worksheet was useful but decided to
withdraw the proposal and pursue the idea of establishing a NIST HB 133
Reference Center on the Internet where documents such as this proposal
can be posted.

**Worksheet for Packages Labeled by Volume When Using Gravimetric Test
Procedure**

<table>
<colgroup>
<col style="width: 18%" />
<col style="width: 13%" />
<col style="width: 3%" />
<col style="width: 10%" />
<col style="width: 1%" />
<col style="width: 4%" />
<col style="width: 6%" />
<col style="width: 12%" />
<col style="width: 1%" />
<col style="width: 11%" />
<col style="width: 1%" />
<col style="width: 4%" />
<col style="width: 10%" />
</colgroup>
<tbody>
<tr class="odd">
<td><strong>Label Declaration</strong></td>
<td><strong>Converted to Fluid Ounce</strong></td>
<td colspan="4"><strong>Largest Declaration (Y=Yes, N=No)</strong></td>
<td rowspan="4"></td>
<td colspan="6"><strong>Firm:</strong></td>
</tr>
<tr class="even">
<td></td>
<td></td>
<td colspan="4"></td>
<td colspan="6"><strong>Date:</strong></td>
</tr>
<tr class="odd">
<td></td>
<td></td>
<td colspan="4"></td>
<td colspan="6"><strong>Commodity:</strong></td>
</tr>
<tr class="even">
<td></td>
<td></td>
<td colspan="4"></td>
<td colspan="6"></td>
</tr>
<tr class="odd">
<td></td>
<td></td>
<td colspan="2"></td>
<td colspan="3"></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td></td>
<td></td>
<td colspan="2"><strong>1<sup>st</sup> Package</strong></td>
<td colspan="3"><strong>2<sup>nd</sup> Package</strong></td>
<td colspan="2"><strong>3<sup>rd</sup> Package</strong></td>
<td colspan="2"><strong>4<sup>th</sup> Package</strong></td>
<td colspan="2"><strong>5<sup>th</sup> Package</strong></td>
</tr>
<tr class="odd">
<td colspan="2"><strong>1. Gross Weight</strong></td>
<td colspan="2"></td>
<td colspan="3"></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td><strong>2. Tare Wt</strong></td>
<td><strong>R<sub>t</sub> <sub>=</sub></strong></td>
<td colspan="2"></td>
<td colspan="3"></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="2"></td>
</tr>
<tr class="odd">
<td><strong>Net Wt</strong></td>
<td><strong>R<sub>c</sub> <sub>=</sub></strong></td>
<td colspan="2"></td>
<td colspan="3"></td>
<td colspan="6"></td>
</tr>
<tr class="even">
<td colspan="2"><strong>3. Flask Wt (full)</strong></td>
<td colspan="2"></td>
<td colspan="3"></td>
<td colspan="6"><strong><u>Converting MAV to Decimal
Pounds</u></strong></td>
</tr>
<tr class="odd">
<td colspan="2"><strong>4. Flask Wt (empty, wetted)</strong></td>
<td colspan="2"></td>
<td colspan="3"></td>
<td colspan="5"><strong>13. MAV in fl oz (Table 2-6)</strong></td>
<td></td>
</tr>
<tr class="even">
<td colspan="2"><strong>5. Wt of Liquid (step 3 - 4)</strong></td>
<td colspan="2"></td>
<td colspan="3"></td>
<td colspan="5"><strong>14. MAV in lb (step 13 x step 11)</strong></td>
<td></td>
</tr>
<tr class="odd">
<td colspan="2"><strong>6. Volume of Flask (fl oz)</strong></td>
<td colspan="2"></td>
<td colspan="3"></td>
<td colspan="6"><strong><u>Converting Average Error to Fluid
Ounces</u></strong></td>
</tr>
<tr class="even">
<td colspan="2"><strong>Temperature of Liquid</strong></td>
<td colspan="2"></td>
<td colspan="3"></td>
<td colspan="5"><p><strong>15. Avg. Error in lb</strong></p>
<p><strong>(Box 18 x Box 2 of Test Report)</strong></p></td>
<td></td>
</tr>
<tr class="odd">
<td colspan="7"></td>
<td colspan="5"><p><strong>16. Avg. Error in fl oz</strong></p>
<p><strong>(step 15 ÷ step 11)</strong></p></td>
<td></td>
</tr>
<tr class="even">
<td colspan="3"><p><strong>7. Liquid Density</strong></p>
<p><strong>(step 5 ÷ step 6)</strong></p></td>
<td colspan="2"></td>
<td colspan="2"></td>
<td colspan="6" rowspan="3"></td>
</tr>
<tr class="odd">
<td colspan="3"><strong>8. Range of Densities</strong></td>
<td colspan="4"></td>
</tr>
<tr class="even">
<td colspan="3"><strong>9. Are densities within 1 scale
division?</strong></td>
<td colspan="2"><strong>Yes</strong> ⁯</td>
<td colspan="2"><strong>No</strong> ⁯</td>
</tr>
<tr class="odd">
<td colspan="13"><strong>(If no, use volumetric procedure in
Sec. 3.3)</strong></td>
</tr>
<tr class="even">
<td colspan="5"><strong>10. Average Tare Wt (average of step
2)</strong></td>
<td colspan="2"></td>
<td colspan="6" rowspan="2"></td>
</tr>
<tr class="odd">
<td colspan="5"><strong>11. Average Liquid Density (average of step
7)</strong></td>
<td colspan="2"></td>
</tr>
<tr class="even">
<td colspan="8"><p><strong>12. Nominal Gross Weight (step 11 x largest
labeled volume*) + step 10</strong></p>
<p><strong>* Use largest labeled volume converted to fl oz from top of
page.</strong></p></td>
<td colspan="2"></td>
<td colspan="3"></td>
</tr>
</tbody>
</table>

###### 270 Other items -- Developing items

**INTRODUCTION**

The NCWM established a mechanism to disseminate information about
emerging issues which have merit and are of national interest.
Developing items have not received sufficient review by all parties
affected by the proposals or may be insufficiently developed to warrant
review by the NCWM L&R Committee. The Developing items listed are
currently under review by at least one regional association,
subcommittee, or work group (WG).

The Developing items are marked according to the specific NIST Handbook
into which they fall -- Handbook 130 or Handbook 133. The Committee
encourages interested parties to examine the proposals included in the
appendices and to send their comments to the contact listed in each
part.

The Committee asks that the regional weights and measures associations,
subcommittees, and WGs continue their work to develop fully each
proposal. Should an association, subcommittee, or WG decide to
discontinue work on a Developing item, the Committee asks that it be
notified. When the status of an item changes because the submitter
withdraws the item, the item will be listed in a table below. For more
details on items moved from the Developing Items list to the Committee's
main agenda, refer to the new reference number in the main agenda.

####### 270-1 W Add to NIST Handbook 130, Method of Sale of Commodities Regulation Section 1.14. Labeling Requirement of Drained Weight for Commodities Packed in a Liquid Medium (foods other than meat or poultry products under USDA jurisdiction)

**Source:** Western Weights and Measures Association (WWMA)

**Proposal:** Add Section 1.14. "Labeling Requirement of Drained Weight
for Commodities Packed in a Liquid Medium (foods other than meat or
poultry products under USDA jurisdiction)."

***Add Section 1.14. to read as follows:***

> **[1.14. Labeling Requirement of Drained Weight for Commodities Packed
> in a Liquid Medium. -- Drained weight is the appropriate method of
> sale for products packed in a medium which is inedible or invariably
> discarded. Food items such as, but not limited to: wet pack shrimp,
> lobster meat, crabmeat, clams, olives, mushrooms, bamboo shoots, water
> chestnuts, cocktail onions, roasted peppers, and artichokes shall be
> labeled with a drained weight declaration.]{.underline}**

(a) Drained weight is the weight of the solid food in a container after
    the packing medium has been drained away.

(b) Packing medium includes water, brine, and acid based liquids.
    Packing medium should not be construed to include oil based
    marinades which are generally considered part of the product.

**Background:** In 1978 the Food and Drug Administration published the
Fair Packaging and Labeling Act with interpretations and guidelines. FDA
Guide 7563 states that drained weight is the appropriate way to list net
weight of contents for products packed in a medium which is inedible or
invariably discarded. It lists as examples food items like wet pack
shrimp, green olives, ripe olives, canned mushrooms, canned clams, and
canned artichokes. Furthermore under Section 403 (d) of the Federal
Food, Drug, and Cosmetic Act, a food is considered misbranded if its
container is so made, formed, or filled as to be misleading. The FDA
guide states it would be regarded as deceptive and in conflict with
Section 403 (d) to replace part of the food in the container with
excessive packing medium. This is true whether or not the label bears an
accurate statement of the drained weight of the food.

Some net weight declarations accurately reflect the usable content while
other declarations include the weight of the packing medium, causing an
unfair business advantage and making value comparison impossible for the
consumer. As markets have changed and more value-added products are
being made available to consumers, it is important to specify labeling
requirements in order that businesses may compete equally and consumers
may have adequate information to facilitate value comparisons. In
addition, consumers rely on the weight declarations when deciding which
products to buy for recipes and for dietary purposes.

This proposal was initiated because of a consumer complaint.

**Discussion:** The WWMA L&R Committee received no comments on this
item. The WWMA supported forwarding this item, as submitted, to the NCWM
L&R Committee for placement on its agenda. The WWMA requested that NIST
coordinate discussions with the Federal Food and Drug Administration
(FDA) for review and concurrence.

At the 2006 CWMA Interim Meeting, an industry representative mentioned
that the wording of the item was problematic because it expected the
regulatory jurisdiction to make a judgment call regarding packing medium
which is inedible or invariably discarded. Furthermore, the wording was
very open-ended with respect to the products covered by this method of
sale. Comment from the group was to look at past conference reports in
relation to canned clams as guidance.

**Committee Action at the 2007 Interim Meeting:** The Committee withdrew
this proposal because it believed the guidance on testing these
products, which is contained in NIST Handbook 133, was consistent with
the test procedures prescribed by the Food and Drug Administration and
the U.S. Department of Agriculture.

####### 270-2 W Amend NIST Handbook 130, Method of Sale Regulation Section 2.13.4. Declaration of Weight

**Source:** Western Weights and Measures Association (WWMA)

**Proposal:** Amend Handbook 130, Method of Sale Regulation
Section 2.13.4. "Declaration of Weight." as follows:

> For the purpose of this regulation, **[when D is not
> known,]{.underline}** the minimum density **[used to calculate the
> target net weight]{.underline}** shall be 0.92 g/cm³ **~~(when D is
> not known)~~. [For products labeled "High Density," "HD," or similar
> wording, the minimum density (D) used to calculate the target net
> weight shall be 0.95 g/cm³.]{.underline}**

**Background:** Some manufacturers of polyethylene bags labeled as "High
Density" or "HD" have been found to package and label products whose
labeled net weights met calculated target net mass/weights when
employing a factor of 0.92 g/cm³. When a density factor of 0.95 g/cm³
was used, as appropriate, in the calculation for high‑density
polyethylene materials, products commonly failed to meet the calculated
target net mass/weight. Further inspection typically revealed that one
or more of the labeled width, thickness, or count statements were
inaccurate.

Some manufacturers appeared aware that weights and measures officials
were restricted to testing high‑density film using the 0.92 g/cm³ value
because the actual density value was not stated on the product label and
the existing procedural guidelines did not address high‑density
polyethylene materials. When testing at manufacturing locations, weights
and measures officials were able to obtain information regarding the
density of the product from the manufacturer. However, at distributor
locations, density information was not available and officials tested
using the 0.92 g/cm³ designated in Handbooks 130 and 133.

Conversations with manufacturers and review of technical data sheets
from various manufacturers indicated that 0.95 g/cm³ is an acceptable
minimum density value for HD labeled polyethylene film.

**Discussion:** The WWMA supported forwarding this item, as amended
below, to the L&R Committee for consideration on its agenda.

**Recommendation:** Amend Handbook 130 Method of Sale Regulation
Section 2.13.4. Declaration of Weight as follows:

> For the purpose of this regulation, **[when the density (D) is not
> known,]{.underline}** the minimum density **[used to calculate the
> target net weight]{.underline}** shall be 0.92 g/cm³ **~~(when D is
> not known)~~. [For products labeled "High Density," "HD," or similar
> wording, when D is not known]{.underline}, [the minimum density (D)
> used to calculate the target net weight shall be
> 0.95 g/cm³.]{.underline}**
>
> **[When the polyethylene commodity package is labeled with a specific
> density, the labeled density factor shall be used to calculate the
> target net weight. If the official determines that the labeled density
> information is not accurate, the minimum density factors above shall
> be used to calculate the target net weight.]{.underline}**

**Committee Action at the 2007 Interim Meeting:** The Committee withdrew
this proposal because industry representatives supporting the proposal
did not agree on the density used by most manufacturers to produce
products typically labeled "high-density polyethylene." A state
association of film extruders and converters wrote that a density of
0.96 gm/cm^3^ or higher was generally accepted as the "industry"
standard for "high density" sheeting while a letter from a company in
that state indicated that resins having densities between 0.946 gm/cm^3^
to 0.948 gm/cm^3^ would also be considered to fall under that
designation. The Committee believed any proposal to establish a national
standard for a product identity should have the support of a large
number of manufacturers across the nation. The Committee noted that one
significant weakness in this proposal was that an unscrupulous
manufacturer could avoid its provisions by simply calling its product by
another undefined term. It is unlikely that could be prohibited by
saying the official believed it constituted "similar wording" because
the language was vague.

####### 270-3 W Add Section 2.1.6. to NIST Handbook 130, Interpretations and Guidelines

**Source:** Western Weights and Measures Association (WWMA)

**Proposal:** Add Section 2.1.6. to NIST Handbook 130 Interpretations
and Guidelines as follows:

> **[2.1.6. Labeling Requirements for Variable Weight Produce Items Sold
> in Clear Plastic Bags.]{.underline}**
>
> **[Interpretation:]{.underline}**
>
> **[For products, such as broccoli crowns, that are traditionally sold
> by variable weight as bulk produce items, it is not necessary that
> these produce items, when single or multiple units are packaged or
> wrapped in plastic film or bags, be marked with a net weight, unit
> price, and total price at the time the product is offered for retail
> sale. The FDA interpretation allows the determination of net weight at
> the point of sale. Also, a disclaimer statement on the package of "To
> be weighed at or before time of sale" is required consumer
> notification, assuming there are scales at the point of sale. In
> addition, the retail price per weight must be displayed within a
> reasonable distance to the product when the product is displayed for
> the consumer at the store level. The customer must be provided with
> the net weight, unit price, and the total price at the time of
> sale.]{.underline}**
>
> **[Issue:]{.underline}**
>
> **[The NIST Weights and Measures Division (WMD) has received numerous
> requests for information regarding the labeling of produce items
> offered for sale in plastic bags. The bags may be "zip-lock" or not,
> may be open or closed, and may or may not have some product labeling
> on the bag. Industry and regulatory officials have requested guidance
> concerning the packaging and labeling requirements as they apply to
> these products when offered for sale. A similar issue was raised
> regarding bunches of bananas wrapped in plastic bags and offered for
> sale.]{.underline}**
>
> **[Background:]{.underline}**
>
> **[WMD staff reviewed the Uniform Weights and Measures Law, the
> Uniform Packaging and Labeling Regulation in Handbook 130, and the
> Food, Drug, and Cosmetic Act. An exemption to some labeling
> requirements was found in 21 CFR Part 101 that specifically addresses
> wrapped clusters of bananas. The Food, Drug, and Cosmetic Act preempts
> state laws where state laws are not identical to the Act for the
> products covered by the Act. The Food and Drug Administration (FDA)
> was consulted to obtain their interpretation regarding this issue. The
> FDA exemption and interpretation are reported below.]{.underline}**
>
> **[Summary:]{.underline}**
>
> **[The Food, Drug, and Cosmetic Act contains a specific exemption to
> some labeling requirements for wrapped clusters of bananas and allows
> the net weight to be determined at the time of sale (see wording
> below). The FDA reported that the exemption probably was written
> specifically for wrapped clusters of bananas because, most likely,
> bananas were the only produce item using that method of packaging at
> the time the exemption was requested (around 1964). The FDA indicated
> that the sale of other produce items in plastic is analogous to the
> sale of wrapped clusters of bananas; therefore, the exemption
> described in 21 CFR Part 100 also applies to other produce items, such
> as table grapes and broccoli crowns, for example.]{.underline}**
>
> **[References:]{.underline}**
>
> **[The Food, Drug, and Cosmetic Act (FDC Act) 21 CFR Title 21,
> Part 101, Subpart G, Section 101.100 (h) provides an explicit
> statement as it applied to bananas. 21 CFR Title 21, Part 101,
> Section 101.100 addresses exemptions from food labeling requirements.
> The text for the exemption is provided below. The exemption mentioned
> below is to FDC Act Section 403(e)(2), which states that a food
> package shall be deemed to be misbranded unless it bears a label
> containing an accurate statement of quantity of
> contents.]{.underline}**
>
> **[21 CFR Title 21, Part 101, Subpart G,
> Section 101.100 (h)(3):]{.underline}**
>
> **["(i) Wrapped clusters (consumer units) of bananas of nonuniform
> weight intended to be unpacked from a master carton or container and
> weighed at or before the point of retail sale in an establishment
> other than that where originally packed shall be exempt from the
> requirements of Section 403(e)(2) of the Act during introduction and
> movement in interstate commerce and while held for sale prior to
> weighing:]{.underline}**
>
> **[Provided that]{.underline}**
>
> **[The master carton or container bears a label declaration of the
> total net weight; and the individual packages bear a conspicuous
> statement "To be weighed at or before the time of sale" and a correct
> statement setting forth the weight of the wrapper; using such term as
> "wrapper tare \_\_ ounce", the blank being filled in with the correct
> average weight of the wrapper used.]{.underline}**
>
> **[Provided further, that it is the practice of the retail
> establishment to weigh the individual packages either prior to or at
> the time of retail sale.]{.underline}**
>
> **[The act of delivering the wrapped clusters (consumer units) during
> the retail sale without an accurate net weight statement or
> alternatively without weighing at the time of sale shall be deemed an
> act which results in the product's being misbranded while held for
> sale. Nothing in this paragraph shall be construed as requiring
> net-weight statements for clusters (consumer units) delivered into
> institutional trade, provided that the master container or carton
> bears the required information."]{.underline}**
>
> **[The Act provides an exemption for Identity statements under
> specified conditions:]{.underline}**
>
> **[Identity:]{.underline}**
>
> **["21 Code of Federal Regulations 101.100 (b) (3) for non-meat and
> non-poultry foods specifically exempts packages from identity
> statements if the identity of the commodity 'can easily be identified
> through the wrapper or container'".]{.underline}**
>
> **["A statement of identity is not required if the identity of the
> product can easily be identified through the wrapper or container.
> This exemption does not apply to meat and poultry."]{.underline}**
>
> **[Presently, the NIST Handbook 130 Uniform Packaging and Labeling
> Regulation addresses responsibility statement requirements as
> applicable only to packages "kept, offered...or sold at...other than
> the premises where packed" and, furthermore, provides an exemption to
> quantity statements on packaged commodities intended to be weighed
> prior to or at time of sale:]{.underline}**
>
> **[Responsibility:]{.underline}**
>
> **[UPLR Section 5 states:]{.underline}**
>
> **["Any package kept, offered or exposed for sale, or sold, at any
> place other than the premises where packed shall specify conspicuously
> on the label of the package the name and address of the manufacturer,
> packer or distributor."]{.underline}**

**[This exempts those packages \'kept, offered or exposed for sale, or
sold\' on the premises where packed from the need for a responsibility
statement. When retailers remove wrapped clusters of produce from a
shipping container, they often inspect the packages for quality and make
adjustments such as removing damaged product before putting them in a
bulk display; they are, for all practical purposes, repackaging the
produce and assuming responsibility for it.]{.underline}**

**[Quantity (Exemption for Random Weight Packages): UPLR Section 11.26
states:]{.underline}**

> **["Individual packaged commodities put up in variable weights and
> sizes for sale intact, and intended to be weighed and marked with the
> correct quantity statement prior to or at the time of retail sale, are
> exempt from a declaration of net quantity."]{.underline}**
>
> **["Random weight packages that will be weighed at the time of sale do
> not need a quantity statement. This regulation does not address
> package closure and the exemption is not dependent on the package
> being open or closed."]{.underline}**

**Background/Discussion:** In recent years more and more produce items
are being packed in clear plastic wrappers of various sizes in order to
maintain the integrity and sanitation of the product (i.e., clusters of
grapes or broccoli crowns). These products are being shipped to retail
stores in fully labeled non-consumer containers. The retail stores take
the plastic wrapped produce out of the boxes and stack it in bulk retail
displays on the produce counter, advertising it for sale for a certain
price per pound. The consumer selects the amount desired and brings it
to the checkout counter where it is weighed and the total price is
determined.

This interpretation recognizes and clarifies the labeling requirements
for an existing retail trade practice that is becoming more and more
common. It provides for uniform labeling guidance for both industry and
enforcement officials.

NIST Handbook 130 "Uniform Packaging and Labeling Regulation" requires
packaged commodities to provide accurate and adequate information as to
**identity, quantity** of contents, and the name and address of a
**responsible party**. However, if certain conditions exist, there are
exemptions from these requirements, as cited under the proposed
"Reference" section above.

The WWMA received no comments on this item and supported this item as
amended below:

Add Section 2.1.6. to NIST Handbook 130 Interpretations and Guidelines
as follows:

> 2.1.6. Labeling Requirements for Variable Weight Produce Items Sold in
> Clear Bags or Wrapping.

**Issue:** The NIST Weights and Measures Division (WMD) received
numerous requests for information regarding correct labeling of produce
items offered for sale in clear bags or overwrapped in clear sheeting.
Such bags may or may not have a "zip-lock" feature, may be open or
closed, and the bags or sheeting may or may not have some product
labeling. Industry and regulatory officials requested guidance
concerning packaging and labeling requirements as they apply to these
products when offered for sale. A similar issue was raised regarding
bunches of bananas wrapped in plastic bags and offered for sale.

**Background:** WMD staff reviewed the Uniform Weights and Measures Law,
the Uniform Packaging and Labeling Regulation (UPLR) in Handbook 130,
and the Food, Drug, and Cosmetic Act (FDC Act). A specific exemption to
quantity statement labeling requirements is established in Title 21 Code
of Federal Regulations (CFR) Part 101, specifically addressing wrapped
clusters of bananas. An exemption to identity statement labeling
requirements for non-meat and non-poultry products is also established
in 21 CFR Part 101. Additional exemptions to responsibility and quantity
statements, under specific conditions, are established in the UPLR.

The Food, Drug, and Cosmetic Act preempts state laws when such state
laws are not identical to the Act for any products covered by the Act.
The Food and Drug Administration (FDA) was consulted to obtain its
interpretation regarding this issue. The FDA exemption and
interpretation are reported below:

> **Interpretation:** The Food, Drug, and Cosmetic Act contains a
> specific exemption from quantity statement labeling requirements for
> wrapped clusters of bananas and allows the net weight to be determined
> at the time of sale (see wording below). The FDA reported that the
> exemption was written specifically for wrapped clusters of bananas
> because, most likely, bananas were the only produce commodity commonly
> distributed under that method of packaging at the time the exemption
> was requested (around 1964). The FDA indicated that the sale of other
> produce items in clear wrapping or bags is analogous to the sale of
> wrapped clusters of bananas; therefore, the exemption described in
> 21 CFR Part 100 also applies to other produce items, such as table
> grapes and broccoli crowns.
>
> Consequently, for products traditionally sold by variable weight as
> bulk produce items, it is not required that these produce items, when
> single or multiple units are packaged or wrapped in clear film or
> bags, be marked with a net weight, unit price, and total price at the
> time the product is offered for retail sale. The FDA interpretation
> allows the determination of net weight at the point of sale, provided
> a scale is available to weigh the commodity at the point of sale. A
> disclaimer statement on the package stating, "To be weighed at or
> before time of sale" is required consumer notification. In addition,
> the retail price per unit of weight is typically displayed to the
> consumer within a reasonable distance of the product display at the
> retail store. The customer must be provided with the net weight, unit
> price, and the total price at the time of sale.
>
> **References:** The Food, Drug, and Cosmetic Act (FDC Act) 21 CFR
> Title 21, Part 101, Subpart G, Section 101.100 (h) provides an
> explicit statement applicable to the sale of bananas. 21 CFR,
> Part 101, Section 101.100 addresses exemptions from food labeling
> requirements (text provided below). The exemption is from FDC Act
> Section 403(e)(2), which states that a food package shall be deemed to
> be misbranded if it does not bear a label containing an accurate
> statement of quantity of contents.
>
> 21 CFR Title 21, Part 101, Subpart G, Section 101.100 (h)(3) states:
>
> "(i) Wrapped clusters (consumer units) of bananas of nonuniform weight
> intended to be unpacked from a master carton or container and weighed
> at or before the point of retail sale in an establishment other than
> that where originally packed shall be exempt from the requirements of
> Section 403(e)(2) of the Act during introduction and movement in
> interstate commerce and while held for sale prior to weighing:
>
> Provided that
>
> The master carton or container bears a label declaration of the total
> net weight; and the individual packages bear a conspicuous statement
> "To be weighed at or before the time of sale" and a correct statement
> setting forth the weight of the wrapper; using such term as "wrapper
> tare \_ ounce", the blank being filled in with the correct average
> weight of the wrapper used.
>
> Provided further, that it is the practice of the retail establishment
> to weigh the individual packages either prior to or at the time of
> retail sale.
>
> The act of delivering the wrapped clusters (consumer units) during the
> retail sale without an accurate net weight statement or alternatively
> without weighing at the time of sale shall be deemed an act which
> results in the product's being misbranded while held for sale. Nothing
> in this paragraph shall be construed as requiring net-weight
> statements for clusters (consumer units) delivered into institutional
> trade, provided that the master container or carton bears the required
> information."

As discussed above, the FDA indicated that the sale of other produce
items in clear wrappings or bags is analogous to the sale of wrapped
clusters of bananas, and an exemption to quantity statement requirements
applies to other produce items, such as table grapes and broccoli
crowns.

The FDC Act provides an exemption from identity statement~~s~~
requirements under specified conditions:

**Identity:** 21 CFR Section 101.100 (b) (3) for non-meat and
non-poultry foods specifically exempts packages from identity statement
requirements if the identity of the commodity "can easily be identified
through the wrapper or container."

"A statement of identity is not required if the identity of the product
can easily be identified through the wrapper or container. This
exemption does not apply to meat and poultry."

NIST Handbook 130 Uniform Packaging and Labeling Regulation:

Presently, the NIST Handbook 130 Uniform Packaging and Labeling
Regulation (UPLR) addresses responsibility statement requirements as
applicable only to packages "kept, offered...or sold at...other than the
premises where packed" and, furthermore, provides an exemption to
quantity statements on packaged commodities intended to be weighed prior
to or at time of sale:

Responsibility: UPLR Section 5 states:

> "Any package kept, offered or exposed for sale, or sold, at any place
> other than the premises where packed shall specify conspicuously on
> the label of the package the name and address of the manufacturer,
> packer or distributor."

The responsibility statement requirement in UPLR Section 5 applies only
to packages sold from other than the premises where packed. Conversely,
when offered, exposed, and/or sold from the premises where packed, the
responsibility statement requirement does not apply. When retailers
remove wrapped clusters of produce from a shipping container, they often
inspect the packages for quality and make adjustments such as removing
damaged product before rewrapping and offering the packages for sale. In
doing so, these retailers are repackaging the produce and assuming
responsibility for it. In such circumstances, packages need not be
labeled with a responsibility statement.

Quantity (Exemption for Random Weight Packages): UPLR Section 11.26
states:

> "Individual packaged commodities put up in variable weights and sizes
> for sale intact, and intended to be weighed and marked with the
> correct quantity statement prior to or at the time of retail sale, are
> exempt from a declaration of net quantity."

Random weight packages that are to be weighed at the time of sale are
not required to be labeled with a quantity statement. This regulation
does not address package closure and the exemption is not dependent on
the package being open or closed.

**Summary:**

Variable weight produce commodities sold in clear bags or sheeting are
exempt from specific package labeling requirements under specific
conditions as follows:

-   Exempt from identity statement requirement when the product identity
    can be readily determined through the packaging;

-   Exempt from responsibility statement requirement when packaged or
    repackaged upon the premises where kept, offered, exposed for sale,
    or sold;

-   Exempt from quantity statement requirement when all of the following
    applies:

    -   Labeled with the statement, "To be weighed at or before the time
        of sale"

    -   Labeled with a statement, "Wrapper tare \_ ounce" or similar
        wording

    -   The retailer has approved scale(s) in operation at the point of
        sale

    -   The retailer weighs the commodity and provides net weight
        information at the time of sale.

**Committee Action at the 2007 Interim Meeting:** The Committee withdrew
this proposal because it believed offering produce for sale in clear
plastic bags for which the net weight is determined at the time of sale
(e.g., over a point‑of‑sale system) is an accepted method of sale. It
was the Committee's view that this method of sale benefits consumers
because, if tare is accurately deducted, they are more likely to receive
net weight at time of sale because the loss of weight from prepackaged
produce due to moisture loss will not be a factor. The Committee
believed that signage adjacent to the display can be used to provide
identity, unit price and other information. The Committee recognized
that retailers will likely apply a small label to the package which will
include a Price Look-Up or Bar Code to assist consumers and store
personnel to identify and compute the total price for the product and
did not believe the addition of this type of label prevented the package
from being considered to be packaged in a "clear plastic bag." Similarly
the Committee would not object to the packaging if it bore the statement
"To be weighed at time of sale," UPC label, or open dating information.
The Committee reminded retailers they are responsible for ensuring net
weight is provided in this type of weighing transaction so accurate tare
determination and deduction are required.

####### 270-4 W Amend Handbook 133, Chapter 4.7 Polyethylene Sheeting -- Test Procedure

**Proposal:** Amend Handbook 133, Chapter 4.7 Polyethylene Sheeting --
Test Procedure

Amend asterisked footnote below Step 3 as follows:

> \*Determined by ASTM Standard D 1505-98 **[(*or latest
> issue*)]{.underline}** "Standard Method of Test for Density of
> Plastics by the Density Gradient Technique." For the purpose of this
> handbook, [**when the actual density is not known**,]{.underline} the
> minimum density **[used to calculate the target net
> weight]{.underline}** shall be 0.92 g/cm³ **~~when the actual density
> is not known~~. [For products labeled "High Density," "HD," or similar
> wording, the minimum density (D) used to calculate the target net
> weight shall be 0.95 g/cm³.]{.underline}**

**Background:** Some manufacturers of polyethylene bags labeled as "High
Density" or "HD" have been found to package and label products whose
labeled net weights met calculated target net mass/weights when
employing a factor of 0.92 g/cm³. When a density factor of 0.95 g/cm³
was used, as appropriate, in the calculation for high‑density
polyethylene materials, products commonly failed to meet the calculated
target net mass/weight. Further inspection typically revealed that one
or more of the labeled width, thickness, or count statements were
inaccurate.

Some manufacturers appeared aware that weights and measures officials
were restricted to testing high‑density film using the 0.92 g/cm³ value
because the actual density value was not stated on the product label and
the existing procedural guidelines did not address high‑density
polyethylene materials. When testing at manufacturing locations, weights
and measures officials were able to obtain information regarding the
density of the product from the manufacturer. However, at distributor
locations, density information was not available and officials tested
using the 0.92 g/cm³ designated in Handbooks 130 and 133.

Conversations with manufacturers and review of technical data sheets
from various manufacturers indicated that 0.95 g/cm³ was an acceptable
minimum density value for HD labeled polyethylene film.

**Discussion:** The WWMA L&R Committee received only a few comments on
this item and therefore recommended forwarding the item to the NCWM L&R
Committee to be placed on its agenda.

Recommendation: Amend Handbook 133, Chapter 4.7 Polyethylene Sheeting --
Test Procedure as follows:

> \*Determined by ASTM Standard D 1505-98 **[(or latest
> issue)]{.underline}** "Standard Method of Test for Density of Plastics
> by the Density Gradient Technique." For the purpose of this handbook,
> **[when the ~~actual~~ density (D) is not known,]{.underline}** the
> minimum density **[used to calculate the target net
> weight]{.underline}** shall be 0.92 g/cm³ **~~when the actual density
> is not known~~. [For products labeled "High Density," "HD," or similar
> wording, when D is not known, the minimum density (D) used to
> calculate the target net weight shall be 0.95 g/cm³.]{.underline}**
> **[When the polyethylene commodity package is labeled with a specific
> density, the labeled density factor shall be used to calculate the
> target net weight. If the official determines that the labeled density
> information is not accurate, the minimum density factors above shall
> be used to calculate the target net weight.]{.underline}**

**Committee Action at the 2007 Interim Meeting:** The Committee withdrew
this proposal because industry representatives supporting the proposal
did not agree on the density used by most manufacturers to produce
products typically labeled "high-density polyethylene." (E.g., a state
association of film extruders and converters wrote that a density of
0.96 gm/cm^3^ or higher was generally accepted as the "industry"
standard for "high density" sheeting while a letter from a company in
that state indicated that resins having densities between 0.946 gm/cm^3^
to 0.948 gm/cm^3^ would also be considered to fall under that
designation.) The Committee believes that, lacking evidence of a serious
national problem with polyethylene labeling, a proposal to establish a
national standard for a product identity should have the support of a
large number of manufacturers across the nation.

####### 270-5 I Amend Section 2.2.1. in Handbook 130 Uniform Engine Fuels Regulation -- Premium Diesel Lubricity

**Source:** Southern Weights and Measures Association (SWMA)

**Proposal:** Amend Section 2.2.1. in Handbook 130 Uniform Engine Fuels,
Petroleum Products, and Automotive Lubricants Regulation as follows:

> **2.2.1. Premium Diesel Fuel.** -- All diesel fuels identified on
> retail dispensers, bills of lading, invoices, shipping papers, or
> other documentation with terms such a premium, super, supreme, plus,
> or premier must conform to the following requirements:
>
> \(a\) **Cetane Number.** -- A minimum cetane number of 47.0 as
> determined by ASTM Standard Test Method D 613.
>
> \(b\) **Low Temperature Operability.** -- A cold flow performance
> measurement which meets the ASTM D 975 tenth percentile minimum
> ambient air temperature charts and maps by either ASTM Standard Test
> Method D 2500 (Cloud Point) or ASTM Standard Test Method D 4539 (Low
> Temperature Flow Test, LTFT). Low temperature operability is only
> applicable October 1 ‑ March 31 of each year.
>
> \(c\) **Thermal Stability.** -- A minimum reflectance measurement of
> 80 % as determined by ASTM Standard Test Method D 6468 (180 min,
> 150 C).
>
> \(d\) **Lubricity.** -- A maximum wear scar diameter of 520 µm as
> determined by ASTM D 6079. If an enforcement jurisdiction's single
> test of more than 560 µm is determined, a second test shall be
> conducted. If the average of the two tests is more than 560 µm, the
> sample does not conform to the requirements of this part.

**Background:** A member of the petroleum industry believed the test and
associated tolerances for lubricity on premium diesel specified in
Section 2.2.1.(d) were inconsistent with that for regular diesel.
Effective January 1, 2005, the test tolerance for regular diesel
lubricity was the ASTM D 6079 reproducibility of 136 m (see
ASTM D 975‑04b). The NCWM chose to accept the ASTM reproducibility
limits for all diesel (D 975) and gasoline (D 4814) properties (see
Section 7.2.2., Reproducibility), but chose a different reproducibility
limit for premium diesel lubricity without providing any explanation as
to why the ASTM reproducibility limit was insufficient. If the NCWM
intended to impose a stricter lubricity requirement for premium diesel,
it should have designated a tighter specification for this property, not
a different test tolerance (e.g., for regular and premium gasoline,
premium has a different octane specification than for regular, but the
test tolerance is the same). ASTM reproducibility limits were, by
definition, based on establishing a 95 % probability that product that
should pass, will pass. Applying an average test as specified in
Section 2.2.1.(d) reduced that probability to 80 %.

The Committee received comments from several members of the Premium
Diesel Work Group (WG) who did not support the item as presented by the
petroleum industry member. WG members believed the process that led to
the current definition was very thorough and complete and the premium
diesel lubricity requirements were established with a full understanding
of their implications. The WG members felt that knowledgeable
individuals provided input to the process, which lead to the consensus
position contained in the current regulation. The work being done by the
WG was reported at meetings of ASTM Subcommittee E‑2 every six months.
The current regulation has been endorsed by the American Petroleum
Institute, the Engine Manufacturer\'s Association, and the NCWM.

Prior to this requirement being adopted, the ASTM Lubricity Task Force
conducted a great deal of research on this topic. Based on their
research, the ASTM Lubricity Task Force concluded that a limit of 520 µm
would meet the requirements of equipment in the field. Since the passage
of this model regulation, ASTM included a lubricity requirement for
No. 1 and No. 2 diesel fuel effective January 1, 2005. The ASTM
requirement is also 520 µm.

WG members reported that when this regulation was written, fuels with
adequate lubricity provided a functional benefit to the end user. The WG
agreed with the ASTM Lubricity Task Force that 520 µm was the correct
limit to set for premium diesel. However, the WG's review process also
indicated increased pump wear for fuels with High-Frequency
Reciprocating Rig (HFRR) values greater than 560 µm. The current
reproducibility value of the HFRR test method would have placed
enforcement well beyond the 560 µm level, essentially allowing fuels
with little lubricity protection to be sold as "Premium." The WG
believed they could not recommend a premium fuel standard that would
permit excessive pump wear. Using the statistical tools provided in
ASTM D 3244, the WG evaluated an enforcement limit of 560 µm. The
statistical tools indicated that a single laboratory reporting the
assigned test value would have an enforcement limit of approximately
80 % probability of acceptance, while the average of two separate
laboratories reporting the assigned test value would have an enforcement
limit of approximately 90 % probability of acceptance. It was agreed
that for a premium fuel the average of two test results was the best
approach given the current test methods and precision available.
Therefore, if a test exceeded 560 µm, then a second test must be run.
The average of the two tests must exceed 560 µm before a violation would
occur. At the 2005 WWMA the Petroleum Subcommittee agreed the proposal
was at that time the best approach, and, lacking new information, it
continues to hold that position.

[]{.mark}

**Discussion:** At the WWMA 2006 Annual Meeting, the WWMA L&R Committee
received only one comment regarding this item, acknowledging the ongoing
review by the Petroleum Subcommittee. The WWMA noted that the NCWM L&R
Committee forwarded the proposal for review by the Petroleum
Subcommittee and agreed this item should remain Developmental pending
the Subcommittee's recommendation.

At its 2006 Interim Meeting, the CWMA indicated the NCWM Petroleum
Subcommittee would make recommendations after ASTM improved the test
method\'s precision and after the conclusion of other tests. The CWMA
L&R Committee was awaiting the recommendation from the NCWM Petroleum
Subcommittee.

**Committee Action at the 2007 Interim Meeting:** The Committee carried
this item over as an Information item. The Committee sent this proposal
to the Petroleum Subcommittee and requested its recommendation on how to
proceed with the issue. The Subcommittee suggested this item remain on
the agenda as an Information item until further notice and reported that
the activities of ASTM International and the Coordinating Research
Council were continuing.

**Contact:** NCWM Petroleum Subcommittee, Ron Hayes, Chairman,
(573) 751‑2922 or
[[ron.hayes@mda.mo.gov]{.underline}](mailto:ron.hayes@mda.mo.gov) for
additional information.

####### 270-6 I Amend Handbook 130 Interpretations and Guidelines Section 2.3.2. Guidelines for the Method of Sale of Fresh Fruits and Vegetables

**Source:** Northeast Weights and Measures Association (NEWMA)

**Proposal:** Amend Handbook 130 Interpretations and Guidelines
Section 2.3.2. to recognize and support innovation in modern retail food
marketing approaches at all forms of outlets from typical grocery stores
to the age-old farm markets.

**Discussion:** The method of sale guidelines for the sale of fresh
fruits and vegetables that currently appear in Handbook 130 are outdated
and in need of revision. The present guidelines do not recognize current
retailing practices and are not expansive enough to cover many exotic
and unusual fruits and vegetables that are becoming more common in the
marketplace. Additionally, the present guidelines do not take into
consideration the necessary limitations experienced by retailers at
roadside stands and farmers markets.

The original proposal for this item reflected input from only a single
jurisdiction. The Committee was informed that several industry
associations requested an opportunity to review and respond to this
proposal. The Committee believed there were several factual errors
within the classifications of produce provided, and several types of
produce still were not covered by the provided proposal. The Committee
made this item Developmental so it may be more fully developed with
input from jurisdictions throughout the country and from affected
industry associations and businesses.

**Discussion:** At its 2006 Interim Meeting, the CWMA heard a comment
that this item should be moved to Informational for a year. The body of
the guidelines should be circulated within the CWMA before becoming a
Voting item. The WWMA L&R Committee received no comments regarding this
item. The committee chairman encouraged all to provide input on this
item to the NCWM L&R Committee.

Contact Ross Andersen (NY Bureau of Weights and Measures) at
(518) 457‑3146 or e-mail at
[[ross.andersen@agmkt.state.ny.us]{.underline}](mailto:ross.andersen@agmkt.state.ny.us)
to submit comments or for further information.

> **2.3.2. Fresh Fruits and Vegetables**
>
> (Added 1979, Amended 1980, 1982, and **[200X]{.underline}**)
>
> **[This guideline applies to all sales of fruits and vegetables. There
> are two tables, one for specific commodities and one for general
> commodity groups. Search the specific list first to find those
> commodities that either don\'t fit into any of the general groups or
> have unique methods of sale. If the item is not listed, find the
> general group in the second table. The item may be sold by any method
> of sale marked with an X.]{.underline}**

  ----------------------------------------------------------------------------------------------------------------------------------------------------------
  **[Specific                    **[Weight]{.underline}**   **[Count]{.underline}**   **[Head or             **[Dry Measure (any    **[Dry Measure (1 dry qt
  Commodity]{.underline}**                                                            Bunch]{.underline}**   size)]{.underline}**   or
                                                                                                                                    larger)]{.underline}**
  ------------------------------ -------------------------- ------------------------- ---------------------- ---------------------- ------------------------
  **[Artichokes]{.underline}**   **[X]{.underline}**        **[X]{.underline}**                                                     

  **[Asparagus]{.underline}**    **[X]{.underline}**                                  **[X]{.underline}**                           

  **[Avocadoes]{.underline}**                               **[X]{.underline}**                                                     

  **[Bananas]{.underline}**      **[X]{.underline}**        **[X]{.underline}**                                                     

  **[Beans (green, yellow,       **[X]{.underline}**                                                                                **[X]{.underline}**
  etc.)]{.underline}**                                                                                                              

  **[Brussels Sprouts            **[X]{.underline}**                                                                                
  (loose)]{.underline}**                                                                                                            

  **[Brussels Sprouts (on                                                             **[X]{.underline}**                           
  stalk)]{.underline}**                                                                                                             

  **[Cherries]{.underline}**     **[X]{.underline}**                                                         **[X]{.underline}**    **[X]{.underline}**

  **[Coconuts]{.underline}**     **[X]{.underline}**        **[X]{.underline}**                                                     

  **[Corn on the                                            **[X]{.underline}**                                                     **[X]{.underline}**
  Cob]{.underline}**                                                                                                                

  **[Dates]{.underline}**        **[X]{.underline}**                                                                                

  **[Eggplant]{.underline}**     **[X]{.underline}**        **[X]{.underline}**                                                     

  **[Figs]{.underline}**         **[X]{.underline}**                                                                                

  **[Grapes]{.underline}**       **[X]{.underline}**                                                                                

  **[Melons (cut in              **[X]{.underline}**                                                                                
  pieces)]{.underline}**                                                                                                            

  **[Mushrooms                   **[X]{.underline}**                                                         **[X]{.underline}**    **[X]{.underline}**
  (small)]{.underline}**                                                                                                            

  **[Mushrooms (Portobello,      **[X]{.underline}**        **[X]{.underline}**                                                     
  large)]{.underline}**                                                                                                             

  **[Okra]{.underline}**         **[X]{.underline}**                                                                                

  **[Peas]{.underline}**         **[X]{.underline}**                                                                                **[X]{.underline}**

  **[Peppers (bell and other     **[X]{.underline}**        **[X]{.underline}**                                                     **[X]{.underline}**
  varieties)]{.underline}**                                                                                                         

  **[Pineapples]{.underline}**   **[X]{.underline}**        **[X]{.underline}**                                                     

  **[Rhubarb]{.underline}**      **[X]{.underline}**                                  **[X]{.underline}**                           

  **[Tomatoes (except            **[X]{.underline}**        **[X]{.underline}**                                                     **[X]{.underline}**
  cherry)]{.underline}**                                                                                                            
  ----------------------------------------------------------------------------------------------------------------------------------------------------------

+---------------------------------+------+-----+-----+-------+--------+
| **[General Commodity            | **[W | **  | *   | *     | **[Dry |
| Group]{.underline}**            | eigh | [Co | *[H | *[Dry | M      |
|                                 | t]{. | unt | ead | ]{.un | easure |
|                                 | unde | ]{. | ]{. | derli | (1 dry |
|                                 | rlin | und | und | ne}** | qt or  |
|                                 | e}** | erl | erl |       | larg   |
|                                 |      | ine | ine | **[Me | er)]{. |
|                                 |      | }** | }** | asure | underl |
|                                 |      |     |     | ]{.un | ine}** |
|                                 |      |     | **  | derli |        |
|                                 |      |     | [or | ne}** |        |
|                                 |      |     | ]{. |       |        |
|                                 |      |     | und | **    |        |
|                                 |      |     | erl | [(any |        |
|                                 |      |     | ine | size) |        |
|                                 |      |     | }** | ]{.un |        |
|                                 |      |     |     | derli |        |
|                                 |      |     | **  | ne}** |        |
|                                 |      |     | [Bu |       |        |
|                                 |      |     | nch |       |        |
|                                 |      |     | ]{. |       |        |
|                                 |      |     | und |       |        |
|                                 |      |     | erl |       |        |
|                                 |      |     | ine |       |        |
|                                 |      |     | }** |       |        |
+=================================+======+=====+=====+=======+========+
| **[Berries and Cherry           | **[  |     |     | **[X  |        |
| Tomatoes]{.underline}**         | X]{. |     |     | ]{.un |        |
|                                 | unde |     |     | derli |        |
|                                 | rlin |     |     | ne}** |        |
|                                 | e}** |     |     |       |        |
+---------------------------------+------+-----+-----+-------+--------+
| **[Citrus Fruits (oranges,      | **[  | *   |     |       | *      |
| grapefruits, lemons,            | X]{. | *[X |     |       | *[X]{. |
| etc.)]{.underline}**            | unde | ]{. |     |       | underl |
|                                 | rlin | und |     |       | ine}** |
|                                 | e}** | erl |     |       |        |
|                                 |      | ine |     |       |        |
|                                 |      | }** |     |       |        |
+---------------------------------+------+-----+-----+-------+--------+
| **[Edible Bulbs (onions,        | **[  | *   | *   |       | *      |
| garlic, leeks,                  | X]{. | *[X | *[X |       | *[X]{. |
| etc.)]{.underline}**            | unde | ]{. | ]{. |       | underl |
|                                 | rlin | und | und |       | ine}** |
|                                 | e}** | erl | erl |       |        |
|                                 |      | ine | ine |       |        |
|                                 |      | }** | }** |       |        |
+---------------------------------+------+-----+-----+-------+--------+
| **[Edible Tubers (Irish         | **[  |     |     |       | *      |
| potatoes, sweet potatoes,       | X]{. |     |     |       | *[X]{. |
| ginger, horseradish,            | unde |     |     |       | underl |
| etc.)]{.underline}**            | rlin |     |     |       | ine}** |
|                                 | e}** |     |     |       |        |
+---------------------------------+------+-----+-----+-------+--------+
| **[Flower Vegetables (broccoli, | **[  |     | *   |       |        |
| cauliflower, Brussels sprouts,  | X]{. |     | *[X |       |        |
| etc.)]{.underline}**            | unde |     | ]{. |       |        |
|                                 | rlin |     | und |       |        |
|                                 | e}** |     | erl |       |        |
|                                 |      |     | ine |       |        |
|                                 |      |     | }** |       |        |
+---------------------------------+------+-----+-----+-------+--------+
| **[Gourd Vegetables (cucumbers, | **[  | *   |     |       | *      |
| squash, melons,                 | X]{. | *[X |     |       | *[X]{. |
| etc.)]{.underline}**            | unde | ]{. |     |       | underl |
|                                 | rlin | und |     |       | ine}** |
|                                 | e}** | erl |     |       |        |
|                                 |      | ine |     |       |        |
|                                 |      | }** |     |       |        |
+---------------------------------+------+-----+-----+-------+--------+
| **[Leaf Vegetables (lettuce,    | **[  |     | *   |       |        |
| cabbage, celery,                | X]{. |     | *[X |       |        |
| etc.)]{.underline}**            | unde |     | ]{. |       |        |
|                                 | rlin |     | und |       |        |
|                                 | e}** |     | erl |       |        |
|                                 |      |     | ine |       |        |
|                                 |      |     | }** |       |        |
+---------------------------------+------+-----+-----+-------+--------+
| **[Leaf Vegetables (parsley,    | **[  |     | *   | **[X  |        |
| herbs, loose                    | X]{. |     | *[X | ]{.un |        |
| greens)]{.underline}**          | unde |     | ]{. | derli |        |
|                                 | rlin |     | und | ne}** |        |
|                                 | e}** |     | erl |       |        |
|                                 |      |     | ine |       |        |
|                                 |      |     | }** |       |        |
+---------------------------------+------+-----+-----+-------+--------+
| **[Pitted Fruits (peaches,      | **[  | *   |     |       | *      |
| plums, prunes,                  | X]{. | *[X |     |       | *[X]{. |
| etc.)]{.underline}**            | unde | ]{. |     |       | underl |
|                                 | rlin | und |     |       | ine}** |
|                                 | e}** | erl |     |       |        |
|                                 |      | ine |     |       |        |
|                                 |      | }** |     |       |        |
+---------------------------------+------+-----+-----+-------+--------+
| **[Pome Fruits (apples, pears,  | **[  | *   |     |       | *      |
| mangoes, etc.)]{.underline}**   | X]{. | *[X |     |       | *[X]{. |
|                                 | unde | ]{. |     |       | underl |
|                                 | rlin | und |     |       | ine}** |
|                                 | e}** | erl |     |       |        |
|                                 |      | ine |     |       |        |
|                                 |      | }** |     |       |        |
+---------------------------------+------+-----+-----+-------+--------+
| **[Root Vegetables (turnips,    | **[  |     | *   |       |        |
| carrots, radishes,              | X]{. |     | *[X |       |        |
| etc.)]{.underline}**            | unde |     | ]{. |       |        |
|                                 | rlin |     | und |       |        |
|                                 | e}** |     | erl |       |        |
|                                 |      |     | ine |       |        |
|                                 |      |     | }** |       |        |
+---------------------------------+------+-----+-----+-------+--------+

**Committee Action at the 2007 Interim and Annual Meetings:** The
Committee carried this item over as Informational and will reconsider it
when it receives comments from the regional associations, retailers and
other industries affected by the proposed amendments. The Committee also
realized the proposed replacement table had been omitted from this item.
That oversight has been corrected in this report (see next page).

At the Annual Meeting, concerns were raised that permitting quart sales
of some fruits and vegetables would not be useful or practical and the
Committee should reconsider that provision of the table.

**Comparison of Current and Proposed Tables**

The following comparison was prepared for the NCWM Laws and Regulations
Committee at the request of the Central Weights and Measures
Association. It compares the current Guideline for the Method of Sale of
Fresh Fruits and Vegetables in Section 2.3.2. of the Interpretations and
Guidelines Section of NIST Handbook 130 with the changes proposed in
Item 270-6. A table which lists the commodities included in the current
Guideline but which do not appear in the Specific or General Tables is
also provided.

####### 

> **Comparison Tables**

**Key to Tables:**

> [Green rows]{.mark} (dark gray) indicate there is NO change between
> the current and proposed guideline (i.e., see the rows for Artichokes
> in the Comparision Table).
>
> [Yellow rows]{.mark} (light gray) indicate there is a change between
> the current and proposed guideline (i.e., see "Dry Measure (1 dry qt
> or larger) in the header row of the Comparison Table and the cell
> under the header for count in the row for "Bananas.")
>
> Explanations of the differences or questions to be resolved are
> provided in the numbered footnotes which are located at the bottom of
> the table.

+-----------------------------+------+----+----+------+-------------+
| **[Specific                 | **[W | *  | *  | **   | **[Dry      |
| Commodity]{.underline}**    | eigh | *[ | *[ | [Dry | Measure]{.u |
|                             | t]{. | Co | He | Mea  | nderline}** |
|                             | unde | un | ad | sure |             |
|                             | rlin | t] | or | (any | **[(1 dry   |
|                             | e}** | {. | Bu | size | qt or       |
|                             |      | un | nc | )]{. | lar         |
|                             |      | de | h] | unde | ger)^1^]{.u |
|                             |      | rl | {. | rlin | nderline}** |
|                             |      | in | un | e}** |             |
|                             |      | e} | de |      |             |
|                             |      | ** | rl |      |             |
|                             |      |    | in |      |             |
|                             |      |    | e} |      |             |
|                             |      |    | ** |      |             |
+-----------------------------+------+----+----+------+-------------+
| *                           | **[  | *  |    |      |             |
| *[Artichokes]{.underline}** | X]{. | *[ |    |      |             |
|                             | unde | X] |    |      |             |
|                             | rlin | {. |    |      |             |
|                             | e}** | un |    |      |             |
|                             |      | de |    |      |             |
|                             |      | rl |    |      |             |
|                             |      | in |    |      |             |
|                             |      | e} |    |      |             |
|                             |      | ** |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| **[Asparagus]{.underline}** | **[  |    | *  |      |             |
|                             | X]{. |    | *[ |      |             |
|                             | unde |    | X] |      |             |
|                             | rlin |    | {. |      |             |
|                             | e}** |    | un |      |             |
|                             |      |    | de |      |             |
|                             |      |    | rl |      |             |
|                             |      |    | in |      |             |
|                             |      |    | e} |      |             |
|                             |      |    | ** |      |             |
+-----------------------------+------+----+----+------+-------------+
| **[Avocadoes]{.underline}** |      | *  |    |      |             |
|                             |      | *[ |    |      |             |
|                             |      | X] |    |      |             |
|                             |      | {. |    |      |             |
|                             |      | un |    |      |             |
|                             |      | de |    |      |             |
|                             |      | rl |    |      |             |
|                             |      | in |    |      |             |
|                             |      | e} |    |      |             |
|                             |      | ** |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| *                           | **[  | ** |    |      |             |
| *[Bananas^2^]{.underline}** | X]{. | [X |    |      |             |
|                             | unde | ^2 |    |      |             |
|                             | rlin | ^] |    |      |             |
|                             | e}** | {. |    |      |             |
|                             |      | un |    |      |             |
|                             |      | de |    |      |             |
|                             |      | rl |    |      |             |
|                             |      | in |    |      |             |
|                             |      | e} |    |      |             |
|                             |      | ** |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| **[Beans (green, yellow,    | **[  |    |    |      | **[X]{.u    |
| etc.)]{.underline}**        | X]{. |    |    |      | nderline}** |
|                             | unde |    |    |      |             |
|                             | rlin |    |    |      |             |
|                             | e}** |    |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| **[Brussels Sprouts         | **   |    |    |      |             |
| (loose)^3^]{.underline}**   | [X^3 |    |    |      |             |
|                             | ^]{. |    |    |      |             |
|                             | unde |    |    |      |             |
|                             | rlin |    |    |      |             |
|                             | e}** |    |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| **[Brussels Sprouts (on     |      |    | ** |      |             |
| stalk)^4^]{.underline}**    |      |    | [X |      |             |
|                             |      |    | ^4 |      |             |
|                             |      |    | ^] |      |             |
|                             |      |    | {. |      |             |
|                             |      |    | un |      |             |
|                             |      |    | de |      |             |
|                             |      |    | rl |      |             |
|                             |      |    | in |      |             |
|                             |      |    | e} |      |             |
|                             |      |    | ** |      |             |
+-----------------------------+------+----+----+------+-------------+
| **[C                        | **[  |    |    | **   | **[X^6^]{.u |
| herries^5,6^]{.underline}** | X]{. |    |    | [X^6 | nderline}** |
|                             | unde |    |    | ^]{. |             |
|                             | rlin |    |    | unde |             |
|                             | e}** |    |    | rlin |             |
|                             |      |    |    | e}** |             |
+-----------------------------+------+----+----+------+-------------+
| **[Coconuts]{.underline}**  | **[  | *  |    |      |             |
|                             | X]{. | *[ |    |      |             |
|                             | unde | X] |    |      |             |
|                             | rlin | {. |    |      |             |
|                             | e}** | un |    |      |             |
|                             |      | de |    |      |             |
|                             |      | rl |    |      |             |
|                             |      | in |    |      |             |
|                             |      | e} |    |      |             |
|                             |      | ** |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| **[Corn on the              |      | *  |    |      | **[X]{.u    |
| Cob]{.underline}**          |      | *[ |    |      | nderline}** |
|                             |      | X] |    |      |             |
|                             |      | {. |    |      |             |
|                             |      | un |    |      |             |
|                             |      | de |    |      |             |
|                             |      | rl |    |      |             |
|                             |      | in |    |      |             |
|                             |      | e} |    |      |             |
|                             |      | ** |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| **[Dates]{.underline}**     | **[  |    |    |      |             |
|                             | X]{. |    |    |      |             |
|                             | unde |    |    |      |             |
|                             | rlin |    |    |      |             |
|                             | e}** |    |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| **[Eggplant]{.underline}**  | **[  | *  |    |      |             |
|                             | X]{. | *[ |    |      |             |
|                             | unde | X] |    |      |             |
|                             | rlin | {. |    |      |             |
|                             | e}** | un |    |      |             |
|                             |      | de |    |      |             |
|                             |      | rl |    |      |             |
|                             |      | in |    |      |             |
|                             |      | e} |    |      |             |
|                             |      | ** |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| **[Figs]{.underline}**      | **[  |    |    |      |             |
|                             | X]{. |    |    |      |             |
|                             | unde |    |    |      |             |
|                             | rlin |    |    |      |             |
|                             | e}** |    |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| **[Grapes]{.underline}**    | **[  |    |    |      |             |
|                             | X]{. |    |    |      |             |
|                             | unde |    |    |      |             |
|                             | rlin |    |    |      |             |
|                             | e}** |    |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| **[Melons (cut in           | **[  |    |    |      |             |
| pieces)]{.underline}**      | X]{. |    |    |      |             |
|                             | unde |    |    |      |             |
|                             | rlin |    |    |      |             |
|                             | e}** |    |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| **[Mushrooms                | **[  |    |    | **   | **[X^6^]{.u |
| (small)^6,7^]{.underline}** | X]{. |    |    | [X^6 | nderline}** |
|                             | unde |    |    | ^]{. |             |
|                             | rlin |    |    | unde |             |
|                             | e}** |    |    | rlin |             |
|                             |      |    |    | e}** |             |
+-----------------------------+------+----+----+------+-------------+
| **[Mushrooms (Portobello,   | **[  | ** |    |      |             |
| large)^7^]{.underline}**    | X]{. | [X |    |      |             |
|                             | unde | ^7 |    |      |             |
|                             | rlin | ^] |    |      |             |
|                             | e}** | {. |    |      |             |
|                             |      | un |    |      |             |
|                             |      | de |    |      |             |
|                             |      | rl |    |      |             |
|                             |      | in |    |      |             |
|                             |      | e} |    |      |             |
|                             |      | ** |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| **[Okra]{.underline}**      | **[  |    |    |      |             |
|                             | X]{. |    |    |      |             |
|                             | unde |    |    |      |             |
|                             | rlin |    |    |      |             |
|                             | e}** |    |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| **[Peas^8^]{.underline}**   | **[  |    |    |      | **[X^8^]{.u |
|                             | X]{. |    |    |      | nderline}** |
|                             | unde |    |    |      |             |
|                             | rlin |    |    |      |             |
|                             | e}** |    |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| **[Peppers (bell and other  | **[  | *  |    |      | **[X^9^]{.u |
| v                           | X]{. | *[ |    |      | nderline}** |
| arieties)^9^]{.underline}** | unde | X] |    |      |             |
|                             | rlin | {. |    |      |             |
|                             | e}** | un |    |      |             |
|                             |      | de |    |      |             |
|                             |      | rl |    |      |             |
|                             |      | in |    |      |             |
|                             |      | e} |    |      |             |
|                             |      | ** |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| *                           | **[  | *  |    |      |             |
| *[Pineapples]{.underline}** | X]{. | *[ |    |      |             |
|                             | unde | X] |    |      |             |
|                             | rlin | {. |    |      |             |
|                             | e}** | un |    |      |             |
|                             |      | de |    |      |             |
|                             |      | rl |    |      |             |
|                             |      | in |    |      |             |
|                             |      | e} |    |      |             |
|                             |      | ** |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| **                          | **[  |    | *  |      |             |
| [Rhubarb^10^]{.underline}** | X]{. |    | *[ |      |             |
|                             | unde |    | X^ |      |             |
|                             | rlin |    | 10 |      |             |
|                             | e}** |    | ^] |      |             |
|                             |      |    | {. |      |             |
|                             |      |    | un |      |             |
|                             |      |    | de |      |             |
|                             |      |    | rl |      |             |
|                             |      |    | in |      |             |
|                             |      |    | e} |      |             |
|                             |      |    | ** |      |             |
+-----------------------------+------+----+----+------+-------------+
| **[Tomatoes (except         | **[  | *  |    |      | **[X]{.u    |
| cherry)^11^]{.underline}**  | X]{. | *[ |    |      | nderline}** |
|                             | unde | X^ |    |      |             |
|                             | rlin | 11 |    |      |             |
|                             | e}** | ^] |    |      |             |
|                             |      | {. |    |      |             |
|                             |      | un |    |      |             |
|                             |      | de |    |      |             |
|                             |      | rl |    |      |             |
|                             |      | in |    |      |             |
|                             |      | e} |    |      |             |
|                             |      | ** |    |      |             |
+-----------------------------+------+----+----+------+-------------+
| This amendment changes the  |      |    |    |      |             |
| minimum dry measure from    |      |    |    |      |             |
| 1 peck to 1 dry quart. The  |      |    |    |      |             |
| equivalents are: one peck = |      |    |    |      |             |
| 16 dry pints, 8 dry quarts, |      |    |    |      |             |
| ¼ bushel, or 8.810 L.       |      |    |    |      |             |
|                             |      |    |    |      |             |
| ^2^ The current guideline   |      |    |    |      |             |
| forbids sales of bananas by |      |    |    |      |             |
| count (only by weight).     |      |    |    |      |             |
| However, the NCWM permits   |      |    |    |      |             |
| individual bananas to be    |      |    |    |      |             |
| sold under the Ready-to-Eat |      |    |    |      |             |
| Food exception in           |      |    |    |      |             |
| Section 1.12. in the Method |      |    |    |      |             |
| of Sale of Commodities      |      |    |    |      |             |
| Regulation.                 |      |    |    |      |             |
|                             |      |    |    |      |             |
| ^3^ The current guideline   |      |    |    |      |             |
| addresses Brussels sprouts  |      |    |    |      |             |
| and does not include the    |      |    |    |      |             |
| "loose" distinction.        |      |    |    |      |             |
|                             |      |    |    |      |             |
| ^4^ This is a new MOS for   |      |    |    |      |             |
| Brussels sprouts on         |      |    |    |      |             |
| "stalks" so there is        |      |    |    |      |             |
| nothing in the current      |      |    |    |      |             |
| method of sale to compare   |      |    |    |      |             |
| this with except that the   |      |    |    |      |             |
| current provision requires  |      |    |    |      |             |
| Brussels sprouts to be sold |      |    |    |      |             |
| by weight.                  |      |    |    |      |             |
|                             |      |    |    |      |             |
| ^5^ The reference to        |      |    |    |      |             |
| Section 4.46. Berry Baskets |      |    |    |      |             |
| and Boxes Code in NIST      |      |    |    |      |             |
| Handbook 44 has been        |      |    |    |      |             |
| deleted.                    |      |    |    |      |             |
|                             |      |    |    |      |             |
| ^6^ If a dry measure of     |      |    |    |      |             |
| "any size" is ok in         |      |    |    |      |             |
| Column 3, is an X correct   |      |    |    |      |             |
| in the 4^th^ Column which   |      |    |    |      |             |
| limits sales to 1 dry quart |      |    |    |      |             |
| or larger?                  |      |    |    |      |             |
|                             |      |    |    |      |             |
| ^7^ This proposal           |      |    |    |      |             |
| distinguishes mushrooms by  |      |    |    |      |             |
| size between "small" and    |      |    |    |      |             |
| "large (Portobello)" and    |      |    |    |      |             |
| introduces the method of    |      |    |    |      |             |
| sale by count for "large"   |      |    |    |      |             |
| mushrooms which is not      |      |    |    |      |             |
| permitted in the current    |      |    |    |      |             |
| guideline (only by weight   |      |    |    |      |             |
| or measure).                |      |    |    |      |             |
|                             |      |    |    |      |             |
| ^8^ The current guideline   |      |    |    |      |             |
| does not allow sales of     |      |    |    |      |             |
| peas by "dry measure" (only |      |    |    |      |             |
| by weight).                 |      |    |    |      |             |
|                             |      |    |    |      |             |
| ^9^ The current guideline   |      |    |    |      |             |
| does not allow sales        |      |    |    |      |             |
| peppers by "dry measure"    |      |    |    |      |             |
| (only by weight or count).  |      |    |    |      |             |
|                             |      |    |    |      |             |
| ^10^ The current guideline  |      |    |    |      |             |
| does not allow sales of     |      |    |    |      |             |
| rhubarb by "head or bunch"  |      |    |    |      |             |
| (only by weight).           |      |    |    |      |             |
|                             |      |    |    |      |             |
| ^11^ The current guideline  |      |    |    |      |             |
| does not allow sales of     |      |    |    |      |             |
| tomatoes by "count" (only   |      |    |    |      |             |
| by weight and dry measure). |      |    |    |      |             |
+-----------------------------+------+----+----+------+-------------+

+----------------------------------+-----+----+-----+------+----------+
| **[General Commodity             | **[ | *  | *   | *    | **[Dry   |
| Group^26^]{.underline}**         | Wei | *[ | *[H | *[Dr | Measure  |
|                                  | ght | Co | ead | y]{. | (1 dry   |
|                                  | ]{. | un | ]{. | unde | qt or    |
|                                  | und | t] | und | rlin | larger   |
|                                  | erl | {. | erl | e}** | )]{.unde |
|                                  | ine | un | ine |      | rline}** |
|                                  | }** | de | }** | *    |          |
|                                  |     | rl |     | *[Me |          |
|                                  |     | in | **  | asur |          |
|                                  |     | e} | [or | e]{. |          |
|                                  |     | ** | ]{. | unde |          |
|                                  |     |    | und | rlin |          |
|                                  |     |    | erl | e}** |          |
|                                  |     |    | ine |      |          |
|                                  |     |    | }** | **[  |          |
|                                  |     |    |     | (any |          |
|                                  |     |    | **  | size |          |
|                                  |     |    | [Bu | )]{. |          |
|                                  |     |    | nch | unde |          |
|                                  |     |    | ]{. | rlin |          |
|                                  |     |    | und | e}** |          |
|                                  |     |    | erl |      |          |
|                                  |     |    | ine |      |          |
|                                  |     |    | }** |      |          |
+----------------------------------+-----+----+-----+------+----------+
| **[Berries^1^ and Cherry         | *   |    |     | **[  |          |
| Tomatoes]{.underline}**          | *[X |    |     | X]{. |          |
|                                  | ]{. |    |     | unde |          |
|                                  | und |    |     | rlin |          |
|                                  | erl |    |     | e}** |          |
|                                  | ine |    |     |      |          |
|                                  | }** |    |     |      |          |
+----------------------------------+-----+----+-----+------+----------+
| **[Citrus Fruits (oranges^2^,    | *   | *  |     |      | **       |
| grapefruits^3^, lemons^4^,       | *[X | *[ |     |      | [X^2,3,4 |
| etc.)]{.underline}**             | ]{. | X] |     |      | ^]{.unde |
|                                  | und | {. |     |      | rline}** |
|                                  | erl | un |     |      |          |
|                                  | ine | de |     |      |          |
|                                  | }** | rl |     |      |          |
|                                  |     | in |     |      |          |
|                                  |     | e} |     |      |          |
|                                  |     | ** |     |      |          |
+----------------------------------+-----+----+-----+------+----------+
| **[Edible Bulbs (onions^5,6^,    | *   | ** | *   |      | **       |
| garlic^7^, leeks^8^,             | *[X | [X | *[X |      | [X^5,6,8 |
| etc.)]{.underline}**             | ]{. | ^7 | ^7^ |      | ^]{.unde |
|                                  | und | ^] | ]{. |      | rline}** |
|                                  | erl | {. | und |      |          |
|                                  | ine | un | erl |      |          |
|                                  | }** | de | ine |      |          |
|                                  |     | rl | }** |      |          |
|                                  |     | in |     |      |          |
|                                  |     | e} |     |      |          |
|                                  |     | ** |     |      |          |
+----------------------------------+-----+----+-----+------+----------+
| **[Edible Tubers (Irish          | *   |    |     |      | *        |
| potatoes^9^, sweet potatoes^10^, | *[X |    |     |      | *[X^9,10 |
| ginger^11^, horseradish^12^,     | ]{. |    |     |      | ^]{.unde |
| etc.)]{.underline}**             | und |    |     |      | rline}** |
|                                  | erl |    |     |      |          |
|                                  | ine |    |     |      |          |
|                                  | }** |    |     |      |          |
+----------------------------------+-----+----+-----+------+----------+
| **[Flower Vegetables (broccoli,  | *   |    | *   |      |          |
| cauliflower, Brussels            | *[X |    | *[X |      |          |
| sprouts^13^,                     | ]{. |    | ]{. |      |          |
| etc.)]{.underline}**             | und |    | und |      |          |
|                                  | erl |    | erl |      |          |
|                                  | ine |    | ine |      |          |
|                                  | }** |    | }** |      |          |
+----------------------------------+-----+----+-----+------+----------+
| **[Gourd Vegetables              | *   | *  |     |      | **[X^15  |
| (cucumbers^14^, squash^15^,      | *[X | *[ |     |      | ^]{.unde |
| melons^16^, etc.)]{.underline}** | ]{. | X] |     |      | rline}** |
|                                  | und | {. |     |      |          |
|                                  | erl | un |     |      |          |
|                                  | ine | de |     |      |          |
|                                  | }** | rl |     |      |          |
|                                  |     | in |     |      |          |
|                                  |     | e} |     |      |          |
|                                  |     | ** |     |      |          |
+----------------------------------+-----+----+-----+------+----------+
| **[Leaf Vegetables (lettuce,     | *   |    | **  |      |          |
| cabbage^17^, celery^18^,         | *[X |    | [X^ |      |          |
| etc.)]{.underline}**             | ]{. |    | 17, |      |          |
|                                  | und |    | 18^ |      |          |
|                                  | erl |    | ]{. |      |          |
|                                  | ine |    | und |      |          |
|                                  | }** |    | erl |      |          |
|                                  |     |    | ine |      |          |
|                                  |     |    | }** |      |          |
+----------------------------------+-----+----+-----+------+----------+
| **[Leaf Vegetables (parsley^19^, | *   |    | **  | **   |          |
| herbs^20^, loose                 | *[X |    | [X^ | [X^1 |          |
| greens^21^)]{.underline}**       | ]{. |    | 21^ | 9,21 |          |
|                                  | und |    | ]{. | ^]{. |          |
|                                  | erl |    | und | unde |          |
|                                  | ine |    | erl | rlin |          |
|                                  | }** |    | ine | e}** |          |
|                                  |     |    | }** |      |          |
+----------------------------------+-----+----+-----+------+----------+
| **[Pitted Fruits (peaches,       | *   | *  |     |      | **[X^22  |
| plums^22^, prunes^23^,           | *[X | *[ |     |      | ^]{.unde |
| etc.)]{.underline}**             | ]{. | X^ |     |      | rline}** |
|                                  | und | 22 |     |      |          |
|                                  | erl | ^] |     |      |          |
|                                  | ine | {. |     |      |          |
|                                  | }** | un |     |      |          |
|                                  |     | de |     |      |          |
|                                  |     | rl |     |      |          |
|                                  |     | in |     |      |          |
|                                  |     | e} |     |      |          |
|                                  |     | ** |     |      |          |
+----------------------------------+-----+----+-----+------+----------+
| **[Pome Fruits (apples, pears,   | *   | *  |     |      | **[X^24  |
| mangoes^24^,                     | *[X | *[ |     |      | ^]{.unde |
| etc.)]{.underline}**             | ]{. | X] |     |      | rline}** |
|                                  | und | {. |     |      |          |
|                                  | erl | un |     |      |          |
|                                  | ine | de |     |      |          |
|                                  | }** | rl |     |      |          |
|                                  |     | in |     |      |          |
|                                  |     | e} |     |      |          |
|                                  |     | ** |     |      |          |
+----------------------------------+-----+----+-----+------+----------+
| **[Root Vegetables (turnips,     | *   |    | **  |      |          |
| carrots, radishes^25^,           | *[X |    | [X^ |      |          |
| etc.)]{.underline}**             | ]{. |    | 25^ |      |          |
|                                  | und |    | ]{. |      |          |
|                                  | erl |    | und |      |          |
|                                  | ine |    | erl |      |          |
|                                  | }** |    | ine |      |          |
|                                  |     |    | }** |      |          |
+----------------------------------+-----+----+-----+------+----------+
| The reference to Section 4.46.   |     |    |     |      |          |
| Berry Baskets and Boxes Code in  |     |    |     |      |          |
| NIST Handbook 44 has been        |     |    |     |      |          |
| deleted.                         |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^2^ The current guideline does   |     |    |     |      |          |
| not allow sales of oranges by    |     |    |     |      |          |
| "dry measure" (only by weight or |     |    |     |      |          |
| count).                          |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^3^ The current guideline does   |     |    |     |      |          |
| not allow sales of grapefruit by |     |    |     |      |          |
| "dry measure" (only by weight or |     |    |     |      |          |
| count).                          |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^4^ The current guideline does   |     |    |     |      |          |
| not allow sales of lemons by     |     |    |     |      |          |
| "dry measure" (only by weight or |     |    |     |      |          |
| count).                          |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^5^ The current guideline does   |     |    |     |      |          |
| not allow sales of onions by     |     |    |     |      |          |
| "dry measure" (see 6).           |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^6^ The current guideline allows |     |    |     |      |          |
| sales by weight or bunch for     |     |    |     |      |          |
| "spring or green" onions and     |     |    |     |      |          |
| sales by "weight" for dry        |     |    |     |      |          |
| onions.                          |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^7^ The current guideline does   |     |    |     |      |          |
| not permit sales of garlic by    |     |    |     |      |          |
| "dry measure" (only by weight or |     |    |     |      |          |
| count).                          |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^8^ The current guideline does   |     |    |     |      |          |
| not allow sales of leeks by      |     |    |     |      |          |
| "count" or "dry measure" (only   |     |    |     |      |          |
| by weight).                      |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^9^ The current guideline does   |     |    |     |      |          |
| not allow sales of Irish         |     |    |     |      |          |
| potatoes by "dry measure" (only  |     |    |     |      |          |
| by weight).                      |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^10^ The current guideline does  |     |    |     |      |          |
| not allow sales of sweet         |     |    |     |      |          |
| potatoes by "dry measure" (only  |     |    |     |      |          |
| by weight).                      |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^11^ The current guideline does  |     |    |     |      |          |
| not include ginger.              |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^12^ The current guideline does  |     |    |     |      |          |
| not include horseradish.         |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^13^ Brussels sprouts are also   |     |    |     |      |          |
| in the Specific Commodity Table  |     |    |     |      |          |
| as "loose" and "on stalk."       |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^14^ The current guideline does  |     |    |     |      |          |
| not allow sales of cucumbers by  |     |    |     |      |          |
| "dry measure" (only by weight or |     |    |     |      |          |
| count).                          |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^15^ The current guideline does  |     |    |     |      |          |
| not include squash.              |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^16^ The current guideline does  |     |    |     |      |          |
| not allow sales of melons by     |     |    |     |      |          |
| "dry measure" (only weight or    |     |    |     |      |          |
| count).                          |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^17^ The current guideline does  |     |    |     |      |          |
| not allow sales by cabbage by    |     |    |     |      |          |
| "count" (only by weight).        |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^18^ The current guideline       |     |    |     |      |          |
| allows sales of celery by weight |     |    |     |      |          |
| or count so perhaps the          |     |    |     |      |          |
| Committee should decide whether  |     |    |     |      |          |
| or not "head or bunch" or        |     |    |     |      |          |
| "count" is the most appropriate  |     |    |     |      |          |
| descriptor.                      |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^19^ The current guideline does  |     |    |     |      |          |
| not allow sales of parsley by    |     |    |     |      |          |
| "dry measure" (only weight or    |     |    |     |      |          |
| bunch).                          |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^20^ The current guideline does  |     |    |     |      |          |
| not include herbs.               |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^21^ The current guideline does  |     |    |     |      |          |
| not allow sales of "Greens       |     |    |     |      |          |
| (all)" by count or dry measure   |     |    |     |      |          |
| (only by weight).                |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^22^ The current guideline does  |     |    |     |      |          |
| not allow sales of plums by      |     |    |     |      |          |
| count (only by weight or dry     |     |    |     |      |          |
| measure).                        |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^23^ The current guideline does  |     |    |     |      |          |
| not allow sales of prunes by     |     |    |     |      |          |
| count or dry measure (only by    |     |    |     |      |          |
| weight).                         |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^24^ The current guideline does  |     |    |     |      |          |
| not allow sales of mangoes by    |     |    |     |      |          |
| dry measure (only by weight or   |     |    |     |      |          |
| count).                          |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^25^ The current guideline does  |     |    |     |      |          |
| not allow sales of radishes by   |     |    |     |      |          |
| "head or count" (only by         |     |    |     |      |          |
| weight).                         |     |    |     |      |          |
|                                  |     |    |     |      |          |
| ^26^ While many of these items   |     |    |     |      |          |
| may fall under the general       |     |    |     |      |          |
| categories listed above, it may  |     |    |     |      |          |
| improve uniformity and simplify  |     |    |     |      |          |
| the use of the table if all of   |     |    |     |      |          |
| the commodities were placed in a |     |    |     |      |          |
| general category instead of the  |     |    |     |      |          |
| table, saying for instance,      |     |    |     |      |          |
| "Edible Tubers, etc."            |     |    |     |      |          |
+----------------------------------+-----+----+-----+------+----------+

  -------------------------------- ---------------------------------------
  **[This table lists the          
  commodities that are in the      
  current method of sale           
  guidelines but which are not     
  specifically identified in the   
  proposed                         
  tables.\*]{.underline}**         

  **[Commodity]{.underline}**      **[Method of Sale]{.underline}**

  **[Apricots]{.underline}**       **[Weight]{.underline}**

  **[Beets]{.underline}**          **[Weight or Bunch]{.underline}**

  **[Cantaloupes]{.underline}**    **[Weight or Count]{.underline}**

  **[Cranberries]{.underline}**    **[Weight or Measure]{.underline}**

  **[Currants]{.underline}**       **[Weight or Measure]{.underline}**

  **[Eggplant]{.underline}**       **[Weight or Count]{.underline}**

  **[Escarole]{.underline}**       **[Weight or Bunch]{.underline}**

  **[Kale]{.underline}**           **[Weight]{.underline}**

  **[Kohlrabi]{.underline}**       **[Weight]{.underline}**

  **[Limes]{.underline}**          **[Weight or Count]{.underline}**

  **[Nectarines]{.underline}**     **[Weight or Count]{.underline}**

  **[Papaya]{.underline}**         **[Weight or Count]{.underline}**

  **[Parsnips]{.underline}**       **[Weight]{.underline}**

  **[Persimmons]{.underline}**     **[Weight or Count]{.underline}**

  **[Pomegranates]{.underline}**   **[Weight or Count]{.underline}**

  **[Rutabagas]{.underline}**      **[Weight]{.underline}**

  **[Spinach]{.underline}**        **[Weight or Bunch]{.underline}**

  **[Tangerines]{.underline}**     **[Weight or Count]{.underline}**

  \*While many of these items may  
  fall under the general           
  categories listed above it may   
  be improve uniformity and        
  simplify the use of the table if 
  all of these commodities are     
  placed in a general category     
  instead of the table saying, for 
  instance, "Edible Tubers, etc."  
  -------------------------------- ---------------------------------------

The Committee requested this item be considered at upcoming regional
meetings and that comments are submitted by November 1, 2007, for
inclusion and review at the Interim Meeting in January 2008.

####### 

####### 270-7 D Amend Handbook 133 Section 2.3, Moisture Allowances to Provide Clearer Guidance

This item was added to the agenda of the Committee's Work Group (WG) on
Moisture Loss (see Appendix A) following the 2007 NCWM Interim Meeting.
Also see Item 270-8 for an explanation of the WG's role and
responsibilities.

####### 270-8 D Laws and Regulations Committee Work Group (WG) on Moisture Loss

At the 2007 NCWM Interim Meeting, the Committee created a WG to
undertake a review of a number of moisture loss and other issues
relating to NIST Handbook 133 "Checking the Net Contents of Packaged
Goods." NIST recommended the NCWM L&R Committee retain responsibility
for this project instead of creating a task force because that would
entail additional travel and meeting expenses for all parties. The Board
of Directors and the Committee agreed with that proposal because a large
portion of this project can be accomplished using e-mail and
teleconferences to reduce costs. The Committee also noted the number of
items on the Committee's agenda has declined so it has time available
during its work sessions at the Interim and Annual Meetings to address
this project. If additional meetings are needed, they will be scheduled
to coincide with the regional meetings to reduce travel and other costs.
Another justification for this approach was that it allowed regional
representatives on the Committee to develop a greater understanding of
moisture loss and enabled them to better explain the subject matter to
their constituents.

Participation in this effort is open to everyone. The first meeting took
place on Sunday, July 8, 2007, following the Committee's regular work
session at the NCWM Annual Meeting at the Snow Bird Resort near
Salt Lake City, Utah. The first major subject of discussion was the
determination of tare using gel-soaker pads. The participants agreed
that information on the appropriate test procedures for using gel soaker
pads should be distributed to weights and measures officials and
industry following the NCWM Annual Meeting, and NIST agreed to publish
an article in the upcoming edition of WMD's Newsletter. A discussion of
that issue is contained in Item 1 of Appendix A attached to this report.
The group developed a formal work plan and addressed additional items
listed in Appendix A as time allowed.

To obtain more information on Moisture Loss or to participate in this
group, contact Tom Coleman at (301) 975‑4004 or by e-mail at
<t.coleman@nist.gov>.

####### 

####### 270-9 D Petroleum Subcommittee

The Petroleum Subcommittee met on January 24, 2007, at the NCWM Interim
Meeting in Jacksonville, Florida, to undertake a review of a number of
significant issues related to fuel standards. Their first major project
was to undertake a major review and update of the Uniform Engine Fuels,
Petroleum Products, and Automotive Lubricants Regulation in
Handbook 130. The goal of the Subcommittee was to prepare and submit a
major revision of this regulation for consideration by the Committee at
the 2008 Interim Meeting. The Subcommittee also conducted a review of
the Engine Fuels, Petroleum Products, and Automotive Lubricants Law and
will prepare suggested changes for that uniform law as well. Another
project will be to update and possibly expand the Basic Engine Fuels,
Petroleum Products, and Lubricants Laboratory Publication which will
then be made available on the Internet. The Subcommittee will undertake
other projects as time and resources permit.

The Petroleum Subcommittee also met at the Annual Meeting and continued
its work on a number of items in addition to preparing a major revision
of the Fuel Ethanol Labeling requirement in Item 232‑2.

The Chairman of the Petroleum Subcommittee is Ron Hayes, Missouri, who
can be contacted at (573) 751‑2922 or at
[[ron.hayes@mda.mo.gov]{.underline}](mailto:ron.hayes@mda.mo.gov). If
you would like to participate in the Petroleum Subcommittee, contact Ron
Hayes or Ken Butcher, NIST L&R technical advisor, at (301) 975‑4859 or
by e-mail at <kbutcher@nist.gov>.

James P. Cassidy, Jr., Chairman, Cambridge, Massachusetts

Vicky Dempsey, Montgomery County, Ohio

Roger Macey, California

Stephen Benjamin, North Carolina

Joe Benavides, Texas

Ron Hayes, Missouri, Chairman of the Petroleum Subcommittee

Pete O'Bryan, Foster Farms, Associate Member Representative

Doug Hutchinson, Canada, Technical Advisor

Tom Coleman, NIST, Technical Advisor

Ken Butcher, NIST, Technical Advisor

Lisa Warfield, NIST, Technical Advisor

**Laws and Regulations Committee**

THIS PAGE INTENTIONALLY LEFT BLANK.

[]{#AppendixA .anchor}**Appendix A**

**L&R Committee Work Group on Moisture Loss**

Table A

Table of Contents and Agenda

## [Introduction A2](#introduction-2) {#introduction-a2 .TOC-1}

## [Item 1. Gel Soaker Pads A2](#item-1.-gel-soaker-pads) {#item-1.-gel-soaker-pads-a2 .TOC-2}

## [Item 2. Moisture Loss Guidance in NIST Handbook 133 A3](#item-2.-moisture-loss-guidance-in-nist-handbook-133) {#item-2.-moisture-loss-guidance-in-nist-handbook-133-a3 .TOC-2}

## [Item 3. WMD Package Inspection and Moisture Loss Guidance Letter -- Withdrawn A9](#item-3.-wmd-package-inspection-and-moisture-loss-guidance-letter-withdrawn) {#item-3.-wmd-package-inspection-and-moisture-loss-guidance-letter-withdrawn-a9 .TOC-2}

## [Item 4. WMD Suggestions A9](#item-4.-wmd-suggestions) {#item-4.-wmd-suggestions-a9 .TOC-2}

[a. Seek Greater Recognition of NIST Handbook 133 by FDA and other
Federal Agencies.
A9](#a.-seek-greater-recognition-of-nist-handbook-133-by-fda-and-other-federal-agencies.)

[b. Create a new supplement or website to NIST Handbook 133 which would
provide useful information to administrators, field officials and
industry.
A9](#b.-create-a-new-supplement-or-website-to-nist-handbook-133-which-would-provide-useful-information-to-administrators-field-officials-and-industry.)

## [Reference Section I -- Excerpts From The Interpretations And Guidelines Section Of Nist Handbook 130 A12](#reference-section-i-excerpts-from-the-interpretations-and-guidelines-section-of-nist-handbook-130) {#reference-section-i-excerpts-from-the-interpretations-and-guidelines-section-of-nist-handbook-130-a12 .TOC-1}

## [Reference Section II -- Other Moisture Loss Guidance And Related Documents A21](#reference-section-ii-other-moisture-loss-guidance-and-related-documents) {#reference-section-ii-other-moisture-loss-guidance-and-related-documents-a21 .TOC-1}

## [A. Text from the WMD Memorandum that was issued on January 1, 2006 A21](#a.-text-from-the-wmd-memorandum-that-was-issued-on-january-1-2006) {#a.-text-from-the-wmd-memorandum-that-was-issued-on-january-1-2006-a21 .TOC-2}

## [B. Letter from Kraft Foods Requesting that NIST Withdraw Letter on Moisture Loss\* A28](#b.-letter-from-kraft-foods-requesting-that-nist-withdraw-letter-on-moisture-loss) {#b.-letter-from-kraft-foods-requesting-that-nist-withdraw-letter-on-moisture-loss-a28 .TOC-2}

## [C. Chapter 3 from the 3^rd^ Edition of NIST Handbook 133 and 4th Supplement 1994\* A28](#__RefHeading___Toc178405712) {#c.-chapter-3-from-the-3rd-edition-of-nist-handbook-133-and-4th-supplement-1994-a28 .TOC-2}

**\*NOTE:** The following documents could not be included in this
publication because they are only available in Adobe PDF format; NIST
will provide copies on request. Please contact Tom Coleman at
(301) 975‑4004 or by e‑mail at <t.coleman@nist.gov>.

**Detail of all Items**

**(In order by Reference Key Number)**

> **Moisture Loss and Other Issues for Consideration by the NCWM Laws
> and Regulations Committee and the Board of Directors**

###### Introduction

The Weights and Measures Division (WMD) prepared this document at the
request of Mike Cleary, Chairman of the NCWM, to detail several moisture
loss and other package inspection issues to be studied under this
project with the goal of developing recommendations for amendments to
NIST Handbook 133 (HB 133) in 2008. There are four items listed below
and most of the resource material is included to enable this document to
serve as an agenda and comprehensive resource.

WMD provided this outline for consideration by the NCWM L&R Committee,
the Board of Directors and other interested parties with the goal of
developing a consensus on whether or not there was sufficient
justification to study the issues described below.

####### Item 1. Gel Soaker Pads

Several weights and measures officials are concerned that HB 133 does
not provide adequate guidance on how to verify the net weight
declaration on packages where "gel soaker pads" are used in the package
to absorb moisture.

Based on information that WMD has received, this discussion paper is
provided as a technical examination of the use of "gel type" soaker pads
when determining net weight. Gel soaker pads contain granules of a
highly absorbent compound that soak up fluid and retain it so
efficiently that the "usual" methods of drying (pressure, wiping and
air) do not allow the recreation of "Used Dry Tare." According to two
manufacturers, "gel-based soaker pads" can absorb up to 50 times their
original weights in fluid compared to "cellulose-based fluff pulp" which
absorb only two to four times its weight (see
[www.thermasorb.com](http://www.thermasorb.com/) and
[www.stockhausen-inc.com](http://www.stockhausen-inc.com/)). Gel-type
soaker pads are used by industry to: (1) extend shelf life thus reducing
repackaging costs, (2) reduce bacterial growth, and (3) improve the
"presentation of packages" by absorbing blood and fluid, eliminating
free flowing liquid in the package.

Inspection problems with this type of tare arise when officials attempt
to verify net weight declarations on packages which have been wrapped
and labeled at a location other than where the commodity is
inspected/tested since officials have no access to "unused dry tare."
Some officials report that it is impossible to dry these types of soaker
pads using traditional drying procedures and have even attempted to use
microwave ovens to establish "used dry tare." WMD discourages the use of
microwave ovens or other extreme drying methods for drying tare
materials because (1) unused "dry" tare materials have a natural
moisture content which cannot be reestablished using most heating
methods (e.g., for gel-pads this could be 5 % or more); (2) the
intensity/power of microwave ovens varies substantially from device to
device so, given the range of variability, it would be impossible to
suggest a power setting or heating time that could be considered
reasonable, repeatable, and safe; and (3) a more practical concern is
that an official could overheat tare material and damage the microwave
or cause even more serious problems such as the possibility of fire.

WMD solicits recommendations and comments from all concerned who have
interest in this topic. Please consider possible solutions to allow
accurate measurement practices that permit officials to safely recreate
"used dry tare" for net weight verification on products using "gel-type"
material.

WMD believes the requirements of HB 133 are written broadly enough to
apply to all types of tare materials including those which are "gel
based." Under the definition of "Used Dry Tare" officials use air
drying, washing, scraping, pressure, or other techniques which can
involve more than normal household procedures but do not go so far as to
include laboratory procedures such as oven drying. The field test
procedures in HB 133 were developed to provide uniform procedures to
enable officials to dry out "used" tare to recreate as close as possible
the weight of "unused tare material" that the packager used. When a
packager uses a tare material that does not permit the recreation of
unused dry tare (and the official does not have access to "unused dry
tare" material or to readily accessible reliable information on tare),
the official is limited to drying at least two samples of the tare
material as best he can using the procedures described by the handbook;
he then can use an average tare to determine a net weight. If the
packages are then found to be underweight, the packer must be permitted
to provide information on whether or not the average tare value used by
the official was reasonable or provide other information to the official
to defend the net weight claims on the label. Since this is really the
same opportunity any packer of any type of tare material has available
to him, WMD believes the current guidance in HB 133 is adequate.

A test procedure in HB 133 is necessary to ensure weights and measures
can continue to maintain marketplace surveillance to ensure equity and
fair competition while still recognizing reasonable moisture loss or
gain as required under both federal and state laws and regulations. The
relevant sections describing the tare definition and determination
procedures from 4^th^ edition of HB 133 (2005) are shown below:

*Used Dry Tare*

> *Used Dry Tare is defined as follows: [Used tare material that has
> been air dried, or dried in some manner to simulate the unused tare
> weight. It includes all packaging materials that can be separated from
> the packaged product, either readily (e.g., by shaking) or by washing,
> scraping, ambient air drying, or other techniques involving more than
> "normal" household recovery procedures, but not including laboratory
> procedures like oven drying.]{.underline} Labels, wire closures,
> staples, prizes, decorations, and such are considered tare. Used Dry
> Tare is available regardless of where the packages are tested. The net
> content procedures described in this handbook reference Used Dry
> Tare.*

*How is a tare weight determined?*

> *[Except in the instance of applying unused dry tare, select the
> packages for the initial tare sample from the sample
> packages.]{.underline} Mark the first two (three or five) packages in
> the order the random numbers were selected; these packages provide the
> initial tare sample. Determine the gross weight of each package and
> record it in block a, "Gross Wt," under the headings "Pkg. 1,"
> "Pkg. 2," "Pkg. 3," etc. on the report form. [Except for aerosol or
> other pressurized packages, open the sample packages, empty, clean,
> and dry them as appropriate for the packaging material.]{.underline}*

NIST Handbook 133 is available online at
<http://ts.nist.gov/WeightsAndMeasures/h1334-05.cfm>.

####### Item 2. Moisture Loss Guidance in NIST Handbook 133

The three items shown below were taken from the L&R Report of the 2004
89^th^ NCWM Annual Meeting Proceedings and later agendas including an
item from the Committee's 2007 Interim Meeting agenda. The Committee
withdrew two of these items in 2004 and asked NIST to review the
moisture loss sections of HB 133, revise them to improve their
readability, and, where appropriate, add additional information or
clarifications.

NIST conducted the promised review but found there were several
suggestions contained in these two items. A few of the suggestions
raised substantive questions about what needs to be added to HB 133 and
which questions would be the most useful or practical for field
officials. NIST believes that responding to some of the suggestions or
questions could lead to extensive revisions to the handbook. This level
of discussion will take considerable time and effort for the Committee,
and WMD would like to ensure everyone has a full understanding of the
concerns and agrees to the necessity for change so time and resources
will not be wasted. The Committee should review these sections and
identify what information administrators need versus what information
field officials need to perform their duties.

####### 

> **260-2 W Amend Section 1.2, Package Requirements**
>
> (This item was withdrawn.)
>
> **Source:** Northeastern Weights and Measures Association (NEWMA).
> (See Item 250-3 on page L&R-18 in the Report of the 88^th^ NCWM Annual
> Meeting in 2003.)
>
> **Recommendation:** The Committee reviewed the following proposal to
> amend the section "Why do we allow for moisture loss or gain?" in
> Handbook 133, Section 1.2, Package Requirements (page 4) as follows:
>
> []{.mark}
>
> **Why do we allow for moisture loss or gain?**
>
> ![](media/image1.png){width="2.388888888888889in"
> height="1.3618055555555555in"}Some packaged products may lose or gain
> moisture and, therefore, lose or gain weight or volumes e after
> packaging. The amount of lost moisture depends upon the nature of the
> product, the packaging material, the length of time it is in
> distribution, environmental conditions, and other factors. Moisture
> loss may occur even when manufacturers follow good distribution
> practices. Loss of weight "due to exposure" may include solvent
> evaporation, not just loss of water. **[Note that allowances for loss
> or gain of moisture only apply to packages of commodities where the
> moisture has no value to the consumer (See Jones vs.
> Rath).]{.underline}**
>
> []{.mark}
>
> ![](media/image2.png){width="2.3430555555555554in"
> height="1.2930555555555556in"}For loss or gain of moisture,
> **[you]{.underline}** apply the moisture allowances to the maximum
> allowable variations permitted for individual packages and to the
> average net quantity of contents before determining the conformance of
> a lot. **[You may apply the allowance before measuring the package
> errors or after. When applying the allowance before the measurements,
> you essentially correct each package back to theoretical weight at
> time of pack (see Figure 1 at right). When applying the allowance
> after measuring the package errors, you correct the MAV and SEL to
> recognize the moisture loss as in Figure 2 at right. You can find
> specific directions for applying the allowances in tests in
> Section 2.3.]{.underline}**
>
> This handbook provides "moisture allowances" for some meat and poultry
> products, flour, and dry pet food (see "Moisture Allowances" in
> Chapter 2). These allowances are based on the premise that when the
> average net weight of a sample is found to be less than the labeled
> weight, but not by an amount that exceeds the allowable limit, either
> the lot is declared to be within the moisture allowance or more
> information must be collected before deciding lot compliance or
> noncompliance.
>
> **Background:** The original proponent of this item provided the
> following written issues and justification. These apply to both this
> item and the next item (260-3: Amend Section 2.3 Basic Test
> Procedure):
>
> What products are covered by the requirement to recognize loss/gain of
> moisture in distribution? The reference to the [Rath vs.
> Jones]{.underline} case in Chapter 1 attempts to find an answer. NEWMA
> believed this may be premature and should be removed from the item for
> the short term to help develop a solution. However, this is a battle
> that will have to be fought some time in the future since regulators
> get claims of moisture loss from diverse packers as an excuse for
> packages that fail to have labeled net weight. The claims have ranged
> from windshield washer fluid in plastic jugs to canned tomato sauce.
> Where can the official turn to get an answer if not to this handbook?
> NEWMA would like guidance.
>
> When do you apply the moisture allowance in the test process? Within
> the handbook itself, the method is either not clear or some of the
> text is wrong. In Chapter 1 the text indicates that you must apply the
> allowance before the test (i.e., adjusting by using Box 13a and thus
> lowering the NGW in Box 14). In Chapter 2, the text appears otherwise.
> You are directed to add the moisture allowance to the MAV on page 18.
> You are further directed to compare the difference between sample
> average and SEL to the moisture allowance on page 19. Both of these
> instructions can only make sense if the value in Box 13a was not
> included in the nominal gross weight calculation in Box 14. At the
> very least these sections fail to provide clear guidance. The proposal
> attempts to clarify that you can make the correction either before or
> after measuring the package errors and attempts to provide procedures
> to do that in each case. Before works great for products with
> established moisture allowances, but it is not possible to apply a
> correction before the test when dealing with other products. For these
> other products, you must do additional investigation to determine the
> magnitude of the loss and you must apply it [after]{.underline} the
> field official completed the testing. It may also be beneficial to do
> the adjustment afterwards for products with established moisture loss
> allowances. Since both before and after methods can provide equivalent
> results, they should both be recognized in the handbook. The proposal
> does this in changes for both Chapters 1 and 2.
>
> Shouldn't all the established moisture allowances be listed in one
> place rather than being listed as separate items? The proposal changes
> the question from how you apply the allowance for a specific product
> to what products have established allowances. This brings these all
> together in one section that is easily found by an inspector.
>
> How do you establish moisture allowances for products not in the list
> in 3 above? The handbook provides no guidance whatsoever! In the last
> line at the bottom of page 17, the text directs the inspector to
> follow steps if the product is listed, but says nothing about the
> products not listed in the handbook. This is a huge omission that has
> many officials wondering what to do. The result is that some packers
> bluff by playing the moisture loss card even when not entitled to a
> loss (e.g., canned goods) and many officials back away from these
> products for lack of direction. The proposal included the provision
> for comparing time-of-pack data with actual field data for moisture
> content that was in the 3^rd^ edition. It also would permit using data
> from a scientific study provided by the manufacturer in support of any
> claim of moisture loss.
>
> Why do we have a different method of evaluating the test results for
> products with moisture loss than for other products? The basic
> procedure for evaluating test results calls for evaluating the
> individual packages against the MAV and evaluating the sample average
> against the SEL. On page 19 that procedure is no longer used and you
> have to look at a difference between the sample average and the SEL
> and not compare it to the moisture allowance. Recently the method of
> calculating the R~c~ for tare variability changed to avoid having
> different methods for different types of packages. Consistency helps
> inspectors apply the standard uniformly. NEWMA believes that sample
> average should always be compared to the SEL and this can be
> accomplished easily by adjusting the SEL rather than looking at
> differences. Thus we would follow the same process in evaluating the
> results in all cases. The only difference is in how the SEL and MAV
> are calculated when applying the moisture loss allowance after the
> test. If you use Box 13a before the test, this is done automatically.
> If you follow the proposed procedure after the test, a
> moisture-corrected MAV and a moisture-corrected SEL are calculated and
> the original test data are reevaluated. While the result may be the
> same using the procedure on page 19, a different evaluation process is
> used, and it is difficult to understand particularly how Box 13a is or
> is not used in the calculation of NGW.
>
> **Discussion:** One state believed the explanations provided in HB 133
> pertaining to moisture loss were inadequate. In considering this
> proposal, however, the Committee concluded that the reference to the
> Jones vs. Rath court case was inappropriate and inaccurate. The
> Committee considered the additional language provided regarding the
> application of moisture loss unnecessary and confusing. NIST agreed,
> however, to review the moisture loss section of HB 133 to see if it
> can be written more clearly. The Committee has withdrawn this item.
>
> **260-3 W Amend Section 2.3 Basic Test Procedure**
>
> (This item was withdrawn.)
>
> **Source:** Northeastern Weights and Measures Association (NEWMA).
> (See Item 250-4 on page L&R‑19 in the Report of the 88^th^ NCWM Annual
> Meeting in 2003.)
>
> **Recommendation:** The Committee reviewed the following proposal to
> delete the current "**Moisture Allowances"** discussion in
> Handbook 133 (HB 133), Section 2.3, Basic Test Procedure (pages 17
> through 19), and replace it as follows:
>
> **[Moisture Allowances]{.underline}**
>
> **[What products have an established moisture
> allowance?]{.underline}**
>
> **[Flour and dry pet food have a moisture allowance of 3 % of the
> labeled net weight. Note:  Dry pet food means all extruded dog and cat
> foods and baked treat products packaged in Kraft paper bags and/or
> cardboard boxes with a moisture content of 13 % or less at the time of
> pack.]{.underline}**
>
> **[Meat and poultry products from a USDA-inspected plant are permitted
> no moisture allowance when tested under a Category A sampling plan
> with Used Dry Tare.]{.underline}**
>
> []{.mark}
>
> **[Meat and poultry products from a USDA-inspected plant are permitted
> the following moisture allowances when tested under a Category A
> sampling plan with Wet Tare. Note:  When there is free-flowing liquid
> or absorbent packaging materials in contact with the product, all free
> liquid is part of the wet tare.]{.underline}**
>
> **[For packages of fresh poultry that bear a USDA seal of inspection,
> the moisture allowance is 3 % of the labeled net weight. For net
> weight determinations only, fresh poultry is defined as poultry above
> -3.3 ºC (26 ºF). This is a product that yields or gives when pushed
> with the thumb.]{.underline}**
>
> **[For packages of franks or hotdogs that bear an USDA seal of
> inspection, the moisture allowance is 2.5 % of the labeled net
> weight.]{.underline}**
>
> **[For packages of bacon, fresh sausage, and luncheon meats that bear
> a USDA seal of inspection, there is no moisture allowance if there is
> no free-flowing liquid or absorbent materials in contact with the
> product and the package is cleaned of clinging material. Luncheon
> meats are any cooked sausage product, loaves, jellied products, cured
> products, and any sliced sandwich style meat. This does not include
> whole hams, briskets, roasts, turkeys, or chickens requiring further
> preparation to be made into ready-to-eat sliced product. When there is
> no free-flowing liquid inside the package and there are no absorbent
> materials in contact with the product, Wet Tare and Dried Used Tare
> are equivalent.]{.underline}**
>
> []{.mark}
>
> **[These allowances are based on the premise that when the average net
> weight of a sample is found to be less than the labeled weight, but
> not by an amount that exceeds the allowable limit, either the lot is
> declared to be within the moisture allowance, or more information must
> be collected before deciding lot compliance or
> noncompliance.]{.underline}**
>
> ***[How do you determine the allowance for products without an
> established moisture allowance?]{.underline}***
>
> **[For any product subject to moisture loss/gain, you may determine
> the appropriate moisture loss allowance based on a valid, scientific
> study. You may not use arbitrarily chosen allowances for moisture
> loss/gain. Many packers have conducted studies that they can provide
> in support of any claim that the product lost/gained moisture. Any
> such study should have included a variety of environments that
> simulate the potential distribution chains that could be encountered.
> You may use the moisture loss limits found in such study as an
> allowance in a compliance test.]{.underline}**
>
> ***[What is the accepted method to determine the actual moisture loss
> for a lot?]{.underline}***
>
> **[Where the packer measures and records the moisture content of
> product in each lot, you may request a copy of that data to be
> compared to the moisture content of the product offered for sale. You
> must select a random sample of the product offered for sale and have
> it tested for moisture content using a scientifically verified test
> procedure, e.g. like those in the Official Methods of Analysis of the
> Association of Official Analytical Chemists (See Appendix D). The
> actual moisture loss is calculated as the moisture content (percent)
> at time of pack minus moisture content (percent) at time of sale. Use
> the difference obtained to calculate the actual moisture loss for the
> lot by multiplying it times the label quantity. Use this as the
> moisture allowance in the official test. In the case of moisture gain,
> this value will be a negative number.]{.underline}**
>
> **[Calculations]{.underline}**
>
> []{.mark}
>
> ***[How do you apply a moisture allowance when conducting a
> test?]{.underline}***
>
> **[Moisture allowances may be applied either prior to testing or after
> testing. These two methods are mathematically equivalent means of
> adjusting both the individual package errors and the sample average.
> It is common practice to apply the moisture correction prior to the
> test for those products with established moisture allowances like
> flour and dry pet food. In most other cases the correction is made
> after the test since moisture loss data will probably be obtained as
> part of the follow-up investigation after the initial test has
> failed.]{.underline}**
>
> **[To compute the moisture loss allowance prior to testing, you
> correct the nominal gross weight in Box 14 for moisture loss. Find the
> value of the allowance by multiplying the labeled quantity by the
> decimal percent value of the allowance. Enter this value in Box 13a on
> the form. The nominal gross weight is found by adding the average tare
> (Box 13) to the label quantity (Box 1) and subtracting the moisture
> allowance (Box 13a). Lot compliance is evaluated in the normal way
> using decision criteria in Boxes 16 and 24 on the report
> form.]{.underline}**
>
> **[Example: Labeled quantity of a bag of flour is 2 lb and average
> tare is 0.04 lb (Box 13). Moisture Allowance is 3 % (0.03) of 2 lb =
> 0.06 lb.]{.underline}**
>
> ***[Nominal Gross Wt. = 2 lb + 0.04 lb -- 0.06 lb = 1.98 lb (record
> this value in Box 14).]{.underline}***
>
> []{.mark}
>
> **[To compute the moisture loss allowance after testing, you correct
> only the MAV and SEL for moisture loss. Perform your initial test with
> no moisture allowance in Box 13a. When moisture loss data becomes
> available, find the value of the allowance by multiplying the labeled
> quantity by the decimal percent value of the moisture loss or
> allowance. Lot compliance is evaluated using decision criteria in
> Boxes 16 and 24 on the report form and the moisture corrected MAV and
> SEL respectively.]{.underline}**
>
> **[Example: Labeled quantity of a package of rice is 2 lb, average
> tare is 0.04 lb (Box 13), MAV (Box 3) is 0.07 lb, and SEL (Box 23) is
> 0.023 lb.]{.underline}**
>
> **[Moisture content at time of pack was 13.4 % (packer
> data).]{.underline}**
>
> **[Moisture content at time of sale is 10.6 % (lab
> data).]{.underline}**
>
> **[Moisture loss is (13.4 % to 10.6 %) = 2.8 %.]{.underline}**
>
> **[Moisture allowance is 0.028 x 2 lb = 0.056 lb.]{.underline}**
>
> **[Moisture Corrected MAV is 0.07 lb + 0.056 lb = 0.126 lb -- Compare
> each package error measured in the initial test to this moisture
> corrected MAV using criteria in Box 16.]{.underline}**
>
> **[Moisture Corrected SEL is 0.023 lb + 0.056 lb = 0.079 lb -- Compare
> the sample average error in the initial test to this moisture
> corrected SEL using criteria in Box 24.]{.underline}**
>
> **Background:** The following information was provided by the original
> proponent of this item: The products that have established moisture
> allowances are not clearly stated. Currently the handbook only poses
> the question, "What is the moisture allowance for flour and dry pet
> food?" It does not state if any other products have moisture
> allowances. In addition, the handbook provides no guidance for
> products that do not have an established moisture allowance.
>
> The "Calculations" section on page 18 is confusing and does not
> distinguish between applying a moisture allowance before or after
> testing. The current method of comparing the moisture allowance to the
> difference between the average error and the SEL is confusing. The
> current handbook does not address commodities that are packed in
> sealed containers or how to treat commodities packed on the premises.
>
> **Discussion:** One state believed the explanations provided in HB 133
> pertaining to moisture loss were inadequate. In reviewing this
> proposal the Committee considered the proposed additional language
> confusing and inaccurate. The Committee did agree that the
> "Calculations" section on page 18 needed to do a better job of
> distinguishing between moisture allowances applied before testing and
> those applied after testing. The Committee believed there were
> extensive problems with this proposal as submitted. NIST agreed to
> review the moisture loss section of HB 133 to see if it can be written
> more clearly. The Committee withdrew this item.

####### 

> **270-7 Amend NIST Handbook 133 Section 2.3, Moisture Allowances to
> Provide Clearer Guidance**
>
> (This Item was added to the agenda of the WG on Moisture Loss
> following the 2007 Interim Meeting)
>
> **Source:** Northeast Weights and Measures Association (NEWMA)
>
> **Proposal:** Amend NIST Handbook 133 (HB 133) Section 2.3, Moisture
> Allowances (pages 17 through 19 of Handbook 133) to provide clearer
> guidance.
>
> **Background:** The issue of moisture loss is complex. Handbook 133
> currently provides specific guidance on the determination and
> application of moisture allowances for only a limited number of
> commodities. Concerns have been raised that this guidance is confusing
> and difficult to understand, particularly with regard to when moisture
> loss is applied (i.e., at the time of inspection or subsequent to the
> inspection). Requests have been received to reword this section to
> make it easier to understand and apply.
>
> In addition, HB 133 provides little guidance on the determination and
> application of moisture allowances for commodities other than those
> specifically listed. Weights and measures jurisdictions across the
> country have been struggling with how to properly handle moisture loss
> during packaging inspections and need more definite guidance on this
> issue.
>
> The Committee did not believe it had the time or expertise to address
> properly the issue of moisture loss within the structure of the NCWM.
> The Committee decided to request activation of a NIST Moisture Loss WG
> to establish more effective and extensive guidance to the NCWM
> regarding the proper determination and application of moisture loss.
>
> **Discussion of this Item by the WWMA:** The WWMA L&R Committee heard
> that a meeting was tentatively planned for November 2006; the meeting
> was delayed to allow time for everyone to identify and agree on the
> issues to be addressed by the group to ensure that expectations for
> the meeting results were clear. The Weights and Measures Division
> (WMD) agreed to fund the travel and attendance of one NCWM
> representative. Leading issues included providing additional guidance
> in HB 133 regarding the determination and application of appropriate
> moisture loss allowances in package inspections, with noted examples
> including how to address gel soaker pads in poultry/meat packages, as
> well as how to determine moisture allowances for pasta, rice, and
> other commodities for which no established moisture loss allowances
> exist. Additionally, guidance regarding application of moisture loss
> allowances at the point-of-pack needed to be addressed.
>
> An industry representative urged involvement in the meeting and
> ensuing work on HB 133 amendments from the Food and Drug
> Administration (FDA) and the U.S. Department of Agriculture (USDA) to
> ensure input and consensus from all relevant agencies. He further
> emphasized the need to review and consolidate all decisions and
> directives from any and all court rulings regarding moisture loss
> issues. Factors to be considered in determining and applying
> appropriate moisture loss allowances and influences upon such losses
> included commodity stability limits and varying environmental
> conditions at packing plants such as relative humidity and constant
> temperature rooms maintained at different temperature levels. The
> industry representative also urged that guidance be provided to
> industry members regarding the types of data needed to be tracked and
> provided by packers/manufacturers in addressing moisture allowance
> determinations.
>
> **Discussion of this Item by the CWMA at its 2006 Interim Meeting:** A
> comment was heard from industry that this needs to be addressed in
> order for businesses to be competitive. The USDA and FDA need to be
> involved in the development of this item. A meeting was tentatively
> scheduled for November prior to the NCWM Interim Meeting. There was
> general agreement that in order for this meeting to be effective, the
> USDA and FDA must be present. Comments were heard in support of using
> the New York proposal to correct the error in HB 133.

####### Item 3. WMD Package Inspection and Moisture Loss Guidance Letter -- Withdrawn

WMD believed there was some useful information for weights and measures
officials and industry contained in the 2005 Memorandum that WMD issued
to state weights and measures officials and other interested parties,
entitled "Verifying the Net Contents of Packaged Goods and Recommended
Procedures for Moisture Allowances." WMD withdrew the memorandum at the
request of Kraft Foods which detailed a number of concerns about the
guidance contained in the WMD communication. The Kraft Foods letter,
dated January 31, 2006, was prepared by Steven Steinborn of Hogan and
Hartson. WMD recommended the committee review [both]{.underline}
documents to resolve the corporation's concerns where possible and
determine if any information in the WMD letter can be revised and
republished to assist weights and measures officials in dealing with net
quantity of contents. The WMD memorandum and Kraft's letter are
presented in Reference Section II below.

####### Item 4. WMD Suggestions

######## a. Seek Greater Recognition of NIST Handbook 133 by FDA and other Federal Agencies.

> WMD would like to avoid frequent amendments to HB 133 because, unlike
> NIST Handbook 44, it is not widely adopted automatically. Many
> jurisdictions adopt new versions of HB 133 using their Administrative
> Procedures Acts. Another consideration is that the USDA adopts
> versions of the handbook which then preempts other versions from being
> used to verify the net quantity of packages put up under that agency's
> supervision. In the past, WMD found that several jurisdictions used
> the wrong edition of HB 133 to take action against USDA‑inspected
> products simply because they used a newer version of the handbook than
> had been adopted by the USDA. WMD believes that USDA adoption gives a
> strong endorsement and recognition to the handbook. WMD also believes
> the 4^th^ edition of HB 133, whose core elements have been in use by
> the states since 1994, should be recognized by the FDA and all other
> agencies to eliminate any uncertainty over its use by the states.
> Perhaps it is time the NCWM consider petitioning the FDA to provide
> some type of formal recognition of the handbook. WMD believes that
> establishing a 5‑year review cycle for HB 133 may be one way to ensure
> it is acceptable to other agencies, which will help avoid the
> confusion over which edition is currently in effect.

######## b. Create a new supplement or website to NIST Handbook 133 which would provide useful information to administrators, field officials and industry.

> WMD would like to explore the possibility and usefulness of creating a
> new publication or website called NIST Handbook 133‑1 which would
> provide supplementary information and guidance on net quantity of
> contents testing and moisture loss for administrators and industry.
> The publication or website would be "informative," thus it would not
> include regulatory requirements. Instead it would be used to provide
> additional guidance and more examples than can be included in HB 133
> itself. Such a publication or website could also be used to provide
> complete full-size copies of the various inspection forms and
> worksheets contained in HB 133 and other useful tools developed by
> jurisdictions. The publication or website could also include a variety
> of other information related to net contents verification and random
> sampling and could include appropriate information from federal
> regulations and policies as well as frequently asked questions (FAQs).
> Currently in NIST Handbook 130 (HB 130) Interpretations and Guidelines
> there are sections related to moisture loss, point-of-pack inspections
> and administrative procedures which may not be well known or readily
> accessible. These could be updated and moved to the new publication or
> website.

For example:

> 2.2.5. Lot, Shipment, or Delivery
>
> 2.5.6. Guidelines for NCWM Resolution of Requests for Recognition of
> Moisture Loss in Other Packaged Products
>
> 2.6.10. Model Guidelines for the Administrative Review Process

2.6.11. Good Quantity Control Practices

12. Point-of-Pack Inspection Guidelines

> These documents are shown below in Reference Section I.

Another example of the type of package information which could be
included in a publication or website for reference purposes is the
following report on a meeting held at NIST in 2005 to address concerns
over packer supplied tare values.

> **NIST Weights and Measures Today**
>
> **November 2005**
>
> **Report of Meeting on Tare**
>
> On November 2, 2005, the Laws and Metric Group at NIST hosted a
> meeting to discuss ways to improve the communication of tare
> information between packers and retailers when meat products are
> packaged at a plant, but weighed and labeled at the retail store.
> Representatives from the meat packing industry, the retail food
> industry, and several weights and measures agencies attended the
> meeting.
>
> **The Problem**
>
> There is a fundamental change occurring in the retail food
> marketplace. Retail food stores are shifting from having in-store meat
> cutters to purchasing already-packaged meat from an outside plant. The
> supplying plant provides the retail store with packaged meat
> (including tray, soakers, and overwrap), and the store is then
> responsible for weighing and labeling the package. In order to weigh
> and label these products properly, the retail store needs to know the
> weight of the packaging materials used by the plant (i.e., the tare
> weight). While this may sound simple and straightforward, it is not.
>
> **Retailers**
>
> Many retail food chains manage their tare weights from a central
> location. Tares are maintained at the central or regional office and
> downloaded to the individual stores on a routine basis. While
> individual stores may have the ability to override the tare provided
> in a download (e.g., when an official from weights and measures
> informs them that they are using an incorrect tare), this correction
> will be erased when the next download occurs. Several retail food
> chains believe that the centralized management of tare information is
> critical to the overall success of their meat departments. With little
> cutting and packaging being done at the retail level, stores rarely
> have experienced, professional staff in their meat departments.
> Without significant expertise at the store level, food retailers are
> reluctant to leave decisions regarding the use and amount of tare to
> individual store management.
>
> **Weights and Measures Officials**
>
> When weights and measures officials find inaccuracies in tares being
> used, often these inaccuracies are not being communicated to the food
> retailer's central or regional offices. If the food retailer's central
> or regional office is not informed that a tare value is inaccurate,
> then the tare value will not get changed in the next download. While
> some retail food chains require their store managers to submit copies
> of inspection reports to the central or regional office, many do not.
> Some chains leave that decision to the discretion of the individual
> store managers. Individual store managers may be reluctant to forward
> disparaging information about their store's performance to the central
> or regional office. As a result, when weights and measures officials
> find an inaccurate tare being used in a store and only notify store
> management of the correction necessary, that information may not be
> communicated to the people who really need to know---the people at the
> central or regional office who set the tare values for the entire
> chain of stores.
>
> **Packers**
>
> The weight of tare materials used at a meat packing plant varies
> regularly. Whenever the plant changes suppliers, whether it is
> suppliers providing soakers, trays, or overwrap, the tare must be
> reevaluated and changed. Whenever suppliers change the materials used
> in their products, the tare must be reevaluated and changed. Most meat
> packers monitor tare continuously and regularly make small adjustments
> to ensure their packages are accurate. While tare information is
> routinely shared with retailers, it is difficult to ensure that the
> correct tare goes on the correct package. Packers may ship individual
> packages from several different production lots (lots which may have
> been packaged using different tare materials) in a single shipment to
> a retailer's warehouse. The retailer's warehouse then further breaks
> up these package groups to distribute packages to individual stores.
> Even if accurate tare information for all packages is provided to the
> retailer's central or regional office, the retailer has difficulty
> using this information effectively since not all packages of the same
> product at the same location will necessarily have the same tare. In
> addition, new tare information provided to a retailer may only apply
> to packages still in the retailer's warehouse (and not those presently
> in the store). This means retailers must coordinate the updating of
> tare data with the placement of new packages on the store shelves.
>
> **Is There a Solution?**
>
> The question remains: How do you effectively ensure that the tare
> information for a particular package "travels" with the package from
> the point of production to the final retail destination? One
> suggestion has been to print tare information directly on individual
> packages. However, packers and retailers all agree that printing tare
> information on packages, shipping cases, or shipping invoice forms
> would not be effective. Packers order packaging materials and shipping
> containers months in advance and at that point could only guess as to
> what amount of tare would need to be preprinted on these materials. In
> addition, if tare information were provided on individual packages,
> shipping cases, or shipping invoices, that information would only be
> available at the retail store and would never reach the retailer's
> central or regional office in time to be included in the next
> download. Most retail food chains do not want individual stores making
> independent decisions about what tares to use.
>
> Ultimately, the key will be for packers and retailers to communicate
> more frequently and more effectively. To that end, the American Meat
> Institute (AMI) has agreed to contact other trade associations
> representing the retail and meat packing industries to ask for their
> help in reiterating to their members the importance of accurate net
> weight labeling at retail. AMI will encourage their packer and
> processor members to communicate tare values to retail customers
> whenever changes in tare values occur.
>
> **How Can Weights and Measures Officials Help?**
>
> Weights and measures agencies can help by sending copies of test
> reports (especially from failed inspections) to the corporate or
> regional office of the retailer. While ideally the corporate or
> regional office will receive this information from the retail store,
> retailers at this meeting stressed they would rather receive duplicate
> reports (from the weights and measures agency and the store) than none
> at all. Retailers consider it absolutely critical that weights and
> measures officials contact, communicate, and work with the corporate
> and regional offices early and often. Retailers specifically asked
> that weights and measures agencies not wait for problems to escalate
> before they get the corporate or regional offices involved. Weights
> and measures officials should conduct package inspections in full
> compliance with NIST Handbook 133 (HB133). Inspectors are encouraged
> to properly clean tare materials during inspections to avoid imposing
> tares larger than they should be.
>
> According to HB 133, Used Dry Tare is "tare material that has been air
> dried, or dried in some manner to simulate the unused tare weight."
> Before adding this definition to HB 133, members of the NCWM and NIST
> did extensive testing to compare the weights of Unused Dry Tare (which
> the packer uses), and Used Dry Tare (which the inspector uses). If
> Used Dry Tare is dried and cleaned properly, its weight should not
> vary significantly from the Unused Dry Tare weight. In addition, NIST
> strongly discourages the use of microwave ovens when drying tare
> materials, particularly soaker pads. Past tests have shown that
> excessive heating of soaker pads and other tare materials can
> significantly alter their weight, and even start a fire as some
> officials have learned.

###### Reference Section I -- Excerpts from the INterpretations and Guidelines Section of NIST Handbook 130

**The following are currently in NIST Handbook 130 (HB 130)
Interpretations and Guidelines**

**2.2.5. Lot, Shipment, or Delivery**

(L&R, 1981, p. 95)

**Policy**

The requirements for the average package net contents to meet or exceed
the labeled declaration may be applied to production lots, shipments, or
deliveries. Shipments or deliveries are smaller collections of packages
than production lots that may or may not consist of mixed lot codes.

Emphasis in inspection activities should be placed on warehouse and
in‑plant testing without neglecting retail consumer protection.

**Background**

The Committee heard a petition from the California Brewers Association
to define a lot as:

\"a selection of containers under one roof produced by a single company
of the same size, type and style, manufactured or packed under similar
conditions with a minimum number to be equivalent to one production line
shift.\"

The intention of the petition is to focus Weights and Measures
enforcement on production lots as opposed to small collections of
packages on retail shelves, because the production lot is under the
control of the packager.

An alternative proposal was made that would require mingling of lot and
date codes in package inspection at warehouse locations.

The Committee has reviewed the proposals in light of § 7.6. and § 12.1.
of the Uniform Packaging and Labeling Regulation which refers to
\"shipment, delivery, or lot.\" If the petition is approved, the terms
\"shipment\" and \"delivery\" would have to be dropped from this Uniform
Regulation.

The Committee recognizes the inherent value of in‑plant and warehouse
inspection and is of the opinion that, wherever possible, such
inspections should be carried out. At the same time, the Committee
recognizes the need for the state and local weights and measures
officials to protect the consumer at the level where the ultimate sale
is made. Therefore, the Committee recommends no change to the Uniform
Regulation.

The Committee looks forward to the work of the Special Study Group on
Enforcement Uniformity of the NCWM which will be exploring the
mechanisms that might be instituted to make in‑plant inspection
workable.

**2.5.6. Guidelines for NCWM Resolution of Requests for Recognition of
Moisture Loss in Other Packaged Products**

(Exec, 1988, p. 94)

The Task Force on Commodity Requirements limited its work to only a few
product categories, using these categories as models for addressing
moisture loss. The gray-area concept is the result of this work.

Recognizing several candidates for future work in moisture loss, the
Task Force recommends that the following guidelines for moisture loss be
followed as far as possible by any industry requesting consideration:

> 1\. There should be reasonable uniformity in the moisture content of
> the product category. For example, since pet food has final moisture
> contents ranging from very moist to very dry, some subcategorization
> of pet food needs to be defined by industry before the NCWM study of
> the issue.
>
> 2\. The predominant type of moisture loss (whether into the atmosphere
> or into the packaging materials) must be specified.
>
> 3\. Different types of packaging might make it necessary to
> subcategorize the product. For example, pasta is packaged in
> cardboard, in polyethylene, or other packaging more impervious to
> moisture loss. The industry should define the domain of packaging
> materials to be considered.
>
> 4\. \"Real-world\" data is needed on the product as found in the
> retail marketing chain---not just laboratory moisture-loss data.
>
> 5\. The industry requesting consideration of moisture loss for its
> product should collect data on an industry-wide basis (rather than
> from only one or two companies).
>
> Information concerning the relative fractions of imported and
> domestically produced product should be available, for example, in
> order to assess the feasibility of interacting with the manufacturer
> on specific problem lots.
>
> 6\. Moisture loss may occur either:

-   during manufacturing or

-   during distribution.

> Data will be needed to show the relative proportion of moisture loss
> in these different locations since moisture loss is permitted only
> under good distribution practices. Geographical and seasonal
> variations may apply.
>
> 7\. A description of the processing and packaging methods in use in
> the industry will be of great value, as will a description of the
> distribution system and time for manufacturing and distribution. A
> description of the existing net quantity control programs in place
> should be given, together with information on how compliance with
> Handbook 133 is obtained. A description of maintenance and inspection
> procedures for the scales should be provided, together with
> information on suitability of equipment and other measurements under
> Handbook 44.
>
> 8\. A description of federal and local agency jurisdiction and test
> should be given, as well as any regulatory history with respect to
> moisture loss and short weight. Has weights and measures enforcement
> generated the request? What efforts have addressed the moisture loss
> issue prior to approaching the NCWM? Are the appropriate federal
> agencies aware of the industry\'s request to the NCWM?
>
> 9\. The industry should propose the type of compliance system and/or
> moisture determination methodology to be used. The compliance scheme,
> if it contains industry data components, should be susceptible to
> verification (examples: USDA net weight tests for meat; exchange of
> samples with millers for flour) and should state what the companies
> will do to provide data to field inspection agencies in an ongoing
> fashion (as the gray-area approach requires). If in-plant testing is
> to be combined with field testing, who is to do such testing, and how
> is this to be accomplished? It should be possible to incorporate the
> proposed testing scheme into Handbook 133 to be used with Category A
> or B sampling plans.
>
> When all the preliminary information recommended above has been
> collected, a field test of the proposed compliance scheme should be
> conducted by weights and measures enforcement officials to prove its
> viability. See the plan diagrammed on the next page.

![](media/image3.wmf)

**2.6.10. Model Guidelines for the Administrative Review Process**

**Purpose**

These guidelines are provided to assist weights and measures programs in
establishing an administrative review process. [They are not intended to
be the only process an agency may use nor are they intended to supersede
any agency\'s existing process. Before implementing ANY process, it
should be approved by legal counsel]{.underline}.

These guidelines ensure that persons affected by \"inspection findings\"
(e.g., price misrepresentations or shortweight packages), or who are
deprived of the use of their property (devices or packages placed under
\"stop\" or \"off-sale\" order), are provided a timely-independent
review of the action. The process enables affected persons to provide
evidence which could be relevant in determining whether the enforcement
action was proper. The purpose of the process is to ensure that a
person\'s ability to conduct business is not hindered by improper
enforcement actions. This process is independent of any other action
(e.g., administrative penalties, prosecutions, etc.) that may be taken
by the enforcement agency.

**Background**

In the course of their work, weights and measures officials take
enforcement actions that may prohibit the use of devices or the sale of
packaged goods (e.g., \"stop-sale\" or \"off-sale\" orders for packages
and \"stop-use\" or \"condemnation\" tags issued on devices). Improper
actions (e.g., not following prescribed test procedures, enforcing
labeling requirements on exempted packages, or incorrectly citing
someone for a \"violation\") place the official and the jurisdiction in
the position of being liable for the action if it is found that the
action was \"illegal.\" In some cases, weights and measures
jurisdictions could be ordered to pay monetary damages to compensate the
affected party for the improper action.

This process is one way to provide affected persons an opportunity to
present evidence which may be relevant in determining whether the order
or finding has been properly made to an independent party. The procedure
enables business operators to obtain an independent review of orders or
findings so that actions affecting their business can be evaluated
administratively instead of through litigation. This ensures timely
review, which is essential because of the impact that such actions may
have on the ability of a business to operate and in cases where
perishable products may be lost.

**Review Provisions**

Parties affected by enforcement actions must be given the opportunity to
appeal enforcement actions.

Inspectors are the primary contacts with regulated firms and thus are in
the best position to ensure that the enforcement actions they take are
\"proper.\" \"Proper\" means that inspections are conducted (1) within
the scope of the authority granted by law, (2) according to recognized
investigative or testing procedures and standards, and (3) that
enforcement actions are lawful. The \"burden\" for proving that actions
are \"proper\" falls on the weights and measures program, not on
regulated firms.

Weights and measures officials are law enforcement officers. Therefore,
they have the responsibility to exercise their authority within the
\"due process\" provisions of the U.S. Constitution. As weights and
measure programs carry-out their enforcement responsibilities in the
future, more and more challenges to their actions and authority will
occur. It is in the best interest of any program to establish strict
operational procedures and standards of conduct to prevent the
occurrence of improper actions which may place the jurisdiction in an
untenable position in a court challenge of an enforcement action. The
foundation for ensuring \"proper\" actions is training, clear and
concise requirements, and adoption of, and adherence to uniform test
procedures and legal procedures.

Prior to taking enforcement actions, the inspector should recheck test
results and determine that the information on which the action will be
taken is accurate.

Inspections shall be conducted with the understanding that the findings
will be clearly and plainly documented and reviewed with the store\'s
representative.

During the review of the findings, the firm's representative may provide
information which must be used by the inspector to resolve the problems
and concerns before enforcement actions are taken. In some cases, the
provided information may not persuade the inspector to forego the
action. In some cases the inspector and business representative may not
understand the circumstances surrounding the violations, or there may be
a conflict between the parties that they cannot resolve. In other cases,
the owner or manufacturer may not learn that an enforcement action has
occurred until long after the inspector leaves the establishment.

Steps:

1.  Provide a framework that will help in resolving most of these
    situations where \"due process\" is of concern. Make sure that the
    responsible party (e.g., as declared on the package label) is
    notified of violations and receives copies of inspection reports.
    Establish standard operating procedures to assure the affected party
    of timely access to a representative of the weights and measures
    program so that the firm can provide the relevant information or
    obtain clarification of legal requirements.

2.  Make the process as simple and convenient as possible. Especially in
    distant or rural areas where there are no local offices, the review
    should be conducted by a supervisor of the official taking the
    action if agreed to by the person filing the request for review.

3.  The process should include notice that the firm can seek review at a
    higher level in the weights and measures program or an independent
    review by a third party. The following procedures are recommended:

    a.  Any owner, distributor, packager, or retailer of a device
        ordered out of service, or item or commodity ordered
        \"off-sale,\" or inspection finding (e.g., a price
        misrepresentation or a shortweight lot of packages) shall be
        entitled to a timely review of such order, to a prompt,
        impartial, administrative review of such off-sale order or
        finding.

        A notice of the right to administrative review should be
        included on all orders or reports of findings or violations and
        should be communicated to the responsible firm (e.g., person or
        firm identified on the product label):

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(a) The administrative review shall be conducted by an independent party
    designated by the Director or before an independent hearing officer
    appointed by the Department. The officer shall not be a person
    responsible for weights and measures administration or enforcement.

(b) No fees should be imposed for the administrative review process.

> ![](media/image4.wmf)

(c) The firm responsible for the product or the retailer may introduce
    any record or other relevant evidence.

> For example:

i.  Commodities subject to the off-sale action or other findings were
    produced, processed, packaged, priced, or labeled in accordance with
    applicable laws, regulations or requirements.

ii. Devices subject to the \"stop-use\" order or \"condemnation\" were
    maintained in accordance with applicable laws, regulations or
    requirements.

iii. Prescribed test procedures or sampling plans were not followed by
     the inspector.

iv. Mitigating circumstances existed which should be considered.

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(d) The reviewer must consider the inspector\'s report, findings, and
    actions as well as any evidence introduced by the owner,
    distributor, packager, or retailer as part of the review process.

(e) The reviewer must provide a timely written recommendation following
    review unless additional time is agreed to by the department and the
    petitioner.

(f) The reviewer may recommend to the Department that an order be
    upheld, withdrawn or modified. If justified the reviewer may
    recommend other action including a reinspection of the device or
    commodity based upon information presented during the review.

(g) All actions should be documented and all parties advised in writing
    of the results of the review. The report of action should be
    detailed in that it provides the reasons for the decision.

**2.6.11. Good Quantity Control Practices**

Good Quantity Control Practices means that the plant managers should
take all reasonable precautions to ensure the following quantity control
standards or their equivalent are met:

> 1\. A formal quantity control function is in place with authority to
> review production processes and records, investigate possible errors,
> and approve, control, or reject lots.
>
> 2\. Adequate facilities (e.g., equipment, standards and work areas)
> for conducting quantity control functions are provided and maintained.
>
> 3\. A quantity control program (e.g., a system of statistical process
> control) is in place and maintained.
>
> 4\. Sampling is conducted at a frequency appropriate to the product
> process to ensure that the data obtained is representative of the
> production lot.
>
> 5\. Production records are maintained to provide a history of the
> filling and net content labeling of the product.
>
> 6\. Each \"production lot\" contains on the average the labeled
> quantity and the number of packages exceeding the specified maximum
> allowable variation (MAV) value in the inspection sample shall be no
> more than permitted in Tables 2-1 and 2-2 in NIST Handbook 133.
>
> 7\. Packaging practices are appropriate for specific products and
> measurement procedures (e.g., quantity sampling, density and tare
> determinations) and guidelines for recording and maintaining test
> results are documented.
>
> 8\. Personnel responsible for quantity control follow written work
> instructions and are competent to perform their duties (e.g.,
> background, education, experience and training). Training is conducted
> at sufficient intervals to ensure good practices.
>
> 9\. Recognized procedures are used for the selection, maintenance,
> adjustment, and testing of filling equipment to insure proper fill
> control.
>
> 10\. Weighing and measuring devices are suitable for their intended
> purpose, and measurement standards are suitable and traceable to
> national standards. This includes a system of equipment maintenance
> and calibration to include recordkeeping procedures.
>
> 11\. Controls over automated data systems and software used in
> quantity control ensure that information is accessible, but changeable
> only by authorized personnel.
>
> 12\. Tare materials are monitored for variation. Label changes are
> controlled to ensure net quantity matches labeled declaration.

**2.6.12. Point-of-Pack Inspection Guidelines**

**A. Weights and Measures Officials' Responsibilities**

> 1\. Conduct inspections during hours when the plant is normally open
> for business. Open the inspection by making contact with the plant
> manager or authorized representative (e.g., the quality assurance
> manager or the production manager).
>
> 2\. Present the proper credentials and explain the reason for the
> visit (e.g., routine or follow-up inspection or consumer complaint,
> etc.).
>
> 3\. Request access to quantity measurement equipment in the packing
> room, moisture testing equipment in the laboratory or in the packing
> room, and product packed on premise or stored in warehouse areas.
>
> 4\. Obtain permission from a plant representative prior to using a
> tape recorder or a camera.
>
> 5\. Conduct inspection-related activities in a professional and
> appropriate manner and, if possible, work in an area that will not
> interfere with normal activities of the establishment.
>
> 6\. Abide by all the safety and sanitary requirements of the
> establishment and clean the work area upon completion of the
> inspection/test. Return borrowed equipment and materials.
>
> 7\. To close the inspection, recheck inspection reports in detail and
> ascertain that all information is complete and correct.
>
> 8\. Sample questions and tasks for Inspectors:
>
> a\. Inside Buildings and Equipment:

(i) Is all filling and associated equipment in good repair?

(ii) Are net content measurement devices suitable for the purpose being
     used?

(iii) Are standards used by the firm to verify device accuracy traceable
      to NIST?

> b\. Packing Room Inspection:

(i) Observe if the program for net quantity of content control in the
    packing room is actually being carried out.

(ii) Ensure that the weighing systems are suitable and tare
     determination procedures are adequate. If there are questions
     regarding tare determination, weigh a representative number of tare
     and/or filled packages.

(iii) For products labeled and filled by volume and then checked by
      weight, ensure that proper density is used.

> c\. Warehouse Inspection:
>
> If an inspection is conducted:

(i) Select lot(s) to be evaluated.

(ii) Determine the number of samples to be inspected. Use the
     appropriate sampling plan as described in NIST Handbook 133.

(iii) Randomly select the number of samples or use a mutually agreed on
      plan for selecting the samples.

(iv) Determine the average net quantity of the sample and use the
     standard deviation factor to compute the Sample Error Limit (SEL)
     to evaluate the lot.

(v) Look for individual values that exceed the applicable Maximum
    Allowable Variation as found in NIST Handbook 133.

(vi) Apply moisture allowances, if applicable.

(vii) Review the general condition of the warehouse relevant to package
      integrity, good quantity control, and distribution practices.

(viii) Prepare an inspection report to detail findings and actions.

> 9\. Close the inspection -- Review findings with Plant Representative.
>
> After the inspection, meet with the management representative to
> discuss inspection findings and observations. Provide additional
> information as needed (e.g., information on laws and regulations or
> explanations of test procedures used in the inspection). Be
> informative, courteous and responsive. If problems/violations are
> found during the inspection/test, bring them to the attention of the
> appropriate person.

**B. Plant Management Responsibilities**

> 1\. Recognize that inspectors are enforcing a federal, state or local
> law.
>
> 2\. Assist the official in conducting inspection activities in a
> timely and efficient manner.
>
> 3\. During the initial conference with the inspector, find out whether
> the inspection is routine, a follow-up, or the result of a consumer
> complaint. If a complaint, obtain as much information as possible
> concerning the nature of the complaint, allowing for an appropriate
> response.
>
> 4\. The plant manager, quality assurance manager, or any designated
> representative should accompany the inspector.
>
> 5\. Plant personnel should take note of the inspector's comments
> during the inspection and prepare a detailed write-up as soon as the
> inspection is completed.
>
> 6\. When an official presents an inspection report, discuss the
> observations and, if possible, provide explanations for any changes
> deemed necessary as a result of the inspection/test.

**Plant Management: information that must be shared with the
inspector.**

> 1\. Establishment name and address.
>
> 2\. Type of firm and information on related firms or applicable
> information (e.g., sub-contractor, servant or agent).
>
> 3\. General description and location of shipping and storage areas
> where packaged goods intended for distribution are stored.
>
> 4\. Commodities manufactured by or stored at the facility.
>
> 5\. Names of responsible plant officials.

**Plant Management: information that may be shared with the inspector.**

> 1\. Simple flow sheet of the filling process with appropriate net
> content control checkpoints.
>
> 2\. Weighing or measuring device maintenance and calibration test
> records.
>
> 3\. Type of quantity control tests and methods used.
>
> 4\. Net content control charts for any lot, shipment, or delivery in
> question or lots which have previously been cited.
>
> 5\. Method of date coding the product to include code interpretation.
>
> 6\. Laboratory reports showing the moisture analysis of the products
> which are in question or have been previously cited.
>
> 7\. Product volume of lot sizes or related information.
>
> 8\. Distribution records related to any problem lots including names
> of customers.

###### Reference Section II -- Other Moisture Loss Guidance and Related Documents

This section contains the text from a WMD memorandum to state weights
and measures directors and other interested parties and a letter from
Kraft General Foods stating the reasons justifying a withdrawal of the
WMD memorandum.

####### A. Text from the WMD Memorandum that was issued on January 1, 2006

> **Memorandum for State Weights and Measures Directors and Other
> Interested Parties**
>
> Subject: Verifying the Net Contents of Packaged Goods and Recommended
> Procedures for Moisture Allowances
>
> This memo supersedes the April 3, 1995, memorandum from the Weights
> and Measures Division (WMD) concerning the impact of the Nutrition
> Labeling and Education Act of 1990 (NLEA) on net content testing by
> State and local weights and measures officials.
>
> I am revising the earlier correspondence primarily in response to the
> National Conference on Weights and Measures' (NCWM) adoption of the
> 4^th^ edition (January 2005) of the National Institute of Standards
> and Technology's Handbook 133 "Checking the Net Contents of Packaged
> Goods" (Handbook 133). Recent inquiries from State officials on the
> status of package inspection programs that test products subject to
> Food and Drug Administration (FDA) jurisdiction have further prompted
> a response. This memorandum describes guidance provided by FDA. Since
> 1985 that agency has advised NIST that Handbook 133 has
> [not]{.underline} been in conflict with that agency's practices
> enforcing net quantity of content on packaged foods.
>
> **I. Recommendations for Verifying the Net Quantity of Contents of
> Packages Subject to FDA Jurisdiction**
>
> WMD recommends that weights and measures officials use the
> 4^th^ edition of Handbook 133 (January 2005) for all products
> [except]{.underline} those subject to regulation by the U.S.
> Department of Agriculture (USDA), which has adopted the 3^rd^ edition
> of Handbook 133 and its 4^th^ Supplement.[^1] NIST recently learned
> that the USDA may adopt the 2005 edition of Handbook 133 in the near
> future. These publications are available on the Internet.[^2]
>
> The Category A Sampling Plans in Handbook 133 provide a statistically
> valid sampling scheme and sample correction factors to enable you to
> determine if a sample passes or fails a test with a confidence level
> of at least 97 %. The test methods prescribed for foods are consistent
> with those used by the FDA.[^3]
>
> Weights and measures officials must apply both the "average" and
> "individual package" requirements in Handbook 133 to the packages they
> inspect because Federal and State laws and regulations relating to net
> quantity of content require officials to allow reasonable variations
> (both plus and minus errors in net contents) from the labeled net
> contents. By applying both requirements, officials avoid the
> appearance they are imposing a "minimum" net content system[^4] while
> providing a high level of protection for consumers and ensuring fair
> competition in the marketplace.
>
> Weights and Measures Officials should continue to test packages at
> retail and should consider Section 1.1. of Handbook 133 before taking
> enforcement action on small inspection lots of package:
>
> Testing packages at retail outlets evaluates the soundness of the
> manufacturing, distributing, and retailing processes of the widest
> variety of goods at a single location. It is an easily accessible,
> practical means for State, county and city jurisdictions to monitor
> packaging procedures and to detect present or potential problems.
> Generally, retail package testing is not conducive to checking large
> quantities of individual products of any single production lot.
> Therefore, follow-up inspections of a particular brand or lot code
> number at a number of retail and wholesale outlets, and ultimately at
> the point-of-pack are extremely important aspects in any
> package-checking scheme. After the evaluation of an inspection lot is
> completed, the jurisdiction should consider what, if any, further
> investigation or follow-up is warranted. At the point-of-sale, a large
> number of processes may affect the quality or quantity of the product.
> Therefore, there may be many reasons for any inspection lot being out
> of compliance. A shortage in weight or measure may result from
> mishandling the product in the store, or the retailer's failure to
> rotate stock. Shortages may also be caused through mishandling by a
> distributor, or failure of some part of the packaging process.
> Shortages may also be caused by moisture loss (desiccation) if the
> product is packaged in permeable media. Therefore, being able to
> determine the cause of an error in order to correct defects is more
> difficult when retail testing is used.
>
> It is important to realize that the Category A Sampling Plans in
> Handbook 133, while statistically valid, may fail lots that contain
> the labeled net quantity of content approximately three times out of
> 100 tests. By basing enforcement actions on samples from multiple lots
> of the same product from the same manufacturer tested at different
> locations, you will have a better indication of whether or not an
> enforcement action is necessary. When a lot fails an inspection, NIST
> recommends you contact the manufacturer to obtain quantity control
> records and other production information on the lot to assist in your
> decision process. To ensure due process, we encourage jurisdictions to
> follow the NCWM's Section 2.6.10. Model Guidelines for the
> Administrative Review Process in NIST Handbook 130 "Uniform Laws and
> Regulations in the area of legal metrology...." (Those guidelines are
> shown below this memorandum) for reference but, your agency's general
> counsel may of course have you follow other procedures. When following
> up on possible violations with manufacturers, recognize they are
> required under Federal and State laws or regulations to follow current
> good manufacturing practices. The NCWM has also adopted guidelines in
> Section 2.6.11. on "Good Quantity Control Practices" that officials
> can use as a tool to assess quantity control systems. (These are
> provided below).
>
> Weights and Measures officials should conduct inspections at the point
> of pack whenever possible so they will have access to larger lots of
> packages and can also assess the packager's entire packaging system.
> The NCWM adopted guidelines in Section 2.6.12. on "point-of-pack
> inspections" to help officials conduct these inspections, (See below
> this memorandum).
>
> We encourage jurisdictions to collaborate on conducting marketplace
> surveys to determine the level of compliance of commodity groups
> (e.g., store-packed random weight items, mulch, polyethylene sheeting,
> flour, milk, soft drinks, animal food, etc.) and to work together to
> follow up on possible problems at the point-of-pack where the
> packaging plant or distribution point is located in a jurisdiction
> other than where the packages failed to pass a test. The State of
> California conducts a wide variety of marketplace surveys which can
> serve as model for other states to follow. NIST encourages all states
> to follow the example set by California's Division of Measurement
> Standards for monitoring compliance in the all areas of weights and
> measures enforcement. NIST will provide assist to states who want to
> conduct or collaborate in surveys\...
>
> [Ensure that all samples are selected randomly]{.underline}. The
> statistical reliability of the sampling plans is valid only when the
> sample has been randomly selected from the inspection lot.
>
> To be consistent with FDA inspection activities, utilize used dry tare
> when taking enforcement actions. The handbook permits unused dry tare
> to be used to conduct audits and to verify net weights of packages put
> up in retail stores.
>
> Apply the average and individual package requirements to products
> tested at any point in distribution. Over the last ten years several
> jurisdictions have contacted WMD concerning industry claims that
> States can only take action on production lots. FDA advises that there
> are no provisions in the Federal Food, Drug, and Cosmetic Act or its
> legislative history that support this claim. Another issue that WMD
> has been asked about is the claim that the FDA has a \"1 %\" tolerance
> that States must permit. FDA advises that they have a policy for their
> field compliance staff to use in determining whether or not to request
> enforcement actions by the U.S. Justice Department. The only purpose
> for the policy is for FDA to prioritize agency resources, not to set a
> limit for State enforcement actions. The FDA also reports that it did
> not establish this policy as a statistical allowance or tolerance that
> could be easily abused by an unscrupulous packager.
>
> Allow for reasonable moisture loss.
>
> The following Federal regulation preempts any State or local
> requirement that is not identical:
>
> 21 CFR § 101.105
>
> \(q\) The declaration of net quantity of contents shall express an
> accurate statement of the quantity of contents of the package.
> Reasonable variations caused by loss or gain of moisture during the
> course of good distribution practice or by unavoidable deviations in
> good manufacturing practice will be recognized. Variations from stated
> quantity of contents shall not be unreasonably large.
>
> State and local jurisdictions [must]{.underline} allow reasonable
> variations in net contents caused by the loss or gain of moisture in
> food products that occurs during good distribution practice. If not, a
> jurisdiction may be questioned if enforcement action is taken against
> the product. The moisture loss issue has challenged weights and
> measures officials and industry since the Federal Food, Drug, and
> Cosmetic Act allowing for moisture loss was passed more than 75 years
> ago. However, the fact that FDA has not adopted specific moisture
> allowances is not justification for not making reasonable allowances
> for moisture loss.
>
> The NCWM has adopted moisture allowances (also called "gray areas")
> for flour, dry pet food, chicken, and hot dogs. Under the \"gray
> area\" concept, any food found short in excess of the allowance is
> subject to enforcement action. If the product is found short, but
> within the allowance, the official would take additional steps (such
> as comparing the moisture content of a sample from the lot to the
> time-of-pack moisture content provided by the packer) to determine if
> the product is short because of underweighing at the time of pack, or
> if the shortage is due to \"reasonable\" moisture loss that occurred
> during distribution. WMD recommends that officials use the following
> guidelines with the \"gray area\" approach to allow reasonable
> moisture loss for the listed foods.
>
> WMD only [recommends]{.underline} moisture allowances. It is the
> individual jurisdiction\'s responsibility to make the final decision
> concerning appropriate moisture allowances. Final decisions should be
> made after considering moisture loss data provided by the packager.
>
> **II. Recommended Moisture Allowances for Some Foods**
>
> WMD has consulted with State and local weights and measures agencies
> and affected industries on moisture loss problems associated with
> hygroscopic foods. The following moisture allowances, beyond those
> already addressed by the NCWM, are recommended. WMD used data from the
> FDA\'s Quantity of Contents Compendium as the major source for the
> numerical values for gray area recommendations. Moisture loss has been
> identified with flour, pasta, rice, cheese and cheese products, dried
> fruits and vegetables, fresh and frozen fruits and vegetables, coffee
> beans, and bakery products. Of all of these commodities, the extent of
> moisture loss variations is greatest for flour and pasta. Very little
> current data are available for many other commodities. However, WMD
> considers the need for allowances for affected commodities to be
> pressing and believes that States must make some allowance for these
> commodities until other data can be obtained for the respective
> commodities. If a recommended allowance is perceived as too lenient,
> weights and measures agencies may prevent abuses of the allowance
> through inspections at the point of pack. Allowances if too lenient
> provide are a disadvantage for firms with products in competition with
> packers where point-of-pack inspections may not be possible;
> consequently, such firms may wish to provide information to WMD so
> that we can recommend a more stringent allowance. Where allowances are
> too stringent, firms may also provide information justifying a more
> appropriate allowance. WMD suggests that firms desiring such an
> allowance be encouraged to work closely with the NCWM in view of its
> experience in this area. Even though the process of developing
> moisture allowances is time-consuming, affected firms will be provided
> some relief during the interim period if State and local agencies
> implement the following recommendations:
>
> **III. Moisture Allowances at Point of Pack**
>
> WMD recommends that moisture allowances at the point of pack not be
> made for packages taken immediately off the production line. However,
> regulatory officials may often encounter product at the point of pack
> that has been stored by the packer prior to shipment to other
> locations. In the past, moisture allowances have not been recognized
> in tests until the food is \"introduced into interstate commerce;\"
> however, since many manufacturers store the product for extended
> periods at the packing location, moisture loss should be recognized.
> It is recognized that moisture loss is a natural phenomenon that is
> not controlled or delayed by any specific schedule, and WMD recommends
> that, at some point during such storage, allowances be permitted for
> moisture loss. But, considering the multiplicity of foods, differences
> in packing materials, and the various environmental factors that
> affect moisture loss, it would be impossible for WMD to determine
> moisture loss that occurs on the packaging line or in the first few
> hours or days following the packaging of any one product type, let
> alone the tens of thousands of products that might be inspected at the
> point of pack. Certainly, some products begin to lose moisture
> immediately after packaging, but there must be some definitive
> guidance provided for weights and measures officials and industry.
>
> This problem is not unique to the United States where we are trying to
> encourage State and local officials to focus more on point-of-pack
> inspections. WMD is aware that point-of-pack inspections are one of
> the primary tools used in European countries to control net contents
> in packaged goods. We have learned that in some of these countries
> officials make no allowance for moisture loss within the first 7 days
> of the date of pack for some products. As this is the only documented
> guidance on the issue available, WMD recommends that States consider a
> similar approach until other guidance on this issue is available. This
> will provide packers and officials with guidance on when moisture loss
> allowances must be applied and will enable officials to conduct
> inspections at point of pack to ensure that packers are not taking
> advantage of recognized allowances for moisture loss. To minimize the
> possibility of moisture loss considerations, officials should inspect
> the most recently packed items.
>
> In 1995 WMD received comments on the 7‑day recommendation from the
> Food Industry Weights and Measures Task Force (Task Force) of the
> Grocery Manufacturers of America. The Task Force was concerned the
> 7‑day period was not reasonable because the data submitted to the NCWM
> to develop the gray areas for flour, dry pet food, and other products
> clearly showed that some products lose as much as 0.5 % to 1 % of
> their weight due to moisture loss in the first few days of packing.
> WMD acknowledged the industry\'s concerns about the 7‑day period but
> believed then and now that the concerns can be addressed without
> dropping the recommendation. WMD believes it is crucial to have
> specific guidelines on moisture loss for use in point-of-pack
> inspections.
>
> WMD recommends an exception to the 7-day period if the packer can
> provide daily moisture loss data collected using the following
> procedures. We have developed the following guidelines in
> collaboration with industry for packers to use the results of the
> short-term moisture loss studies at the point of pack. To be
> acceptable, the data must be computed using the average moisture loss
> determined on a daily basis (e.g., the weight of each package in each
> of the sample control lots is determined everyday for 7-days) in
> environmental conditions similar to those that exist when the product
> is being inspected. For example, an inspector visits a pet food plant
> in Ohio in the middle of July to conduct a point-of-pack inspection.
> If the product tested had been packaged 5 days before the inspection
> and is found underweight; the moisture loss data must reflect the loss
> that would occur in July not January. At least three sample control
> lots, consisting of at least 48 randomly selected packages, must be
> used to develop the moisture loss data. Each sample lot must be stored
> under the same conditions that are typical for the product (e.g., if
> the product is typically placed in a sealed case on a pallet and
> shrink wrapped, the sample lots must be stored under the same
> conditions. Moisture loss data obtained by removing the individual
> packages from the shipping case and storing them in a laboratory would
> not be acceptable). The three-sample control lots must be placed at
> various locations in the storage site. The average moisture loss value
> must be computed from the three-sample control lots with a 95 %
> prediction interval.
>
> Since point-of-pack inspections are not routinely done in most
> jurisdictions at this time, there will be many situations where
> packers may not have \"acceptable\" moisture loss data for a
> particular product found to be underweight at the time of a
> point-of-pack inspection. In these cases, WMD recommends the packer be
> allowed to conduct a study using the criteria specified above. This
> data could then be provided to the weights and measures official for
> use in making a final determination whether or not moisture loss
> caused the product to be underweight. One benefit of this approach is
> that the moisture loss study can be conducted within a few days of the
> inspector finding the inspection lot underweight so the test will more
> closely reflect the environmental conditions under which the original
> inspection lot was subject.
>
> A similar recommendation is included for fresh bakery products weighed
> within 1 day following the end of the day of pack (in this case the
> moisture loss data would have to be based on the amount of moisture
> lost on an hourly basis under the same conditions listed above for the
> 7-day period). WMD will provide technical assistance on request to any
> jurisdiction to resolve these individual moisture loss cases by
> working with you and the packer and will seek FDA assistance in
> resolving these situations.
>
> **IV. Recommended Moisture Allowances for Use at Point of Pack and
> Testing at Any Other Location**
>
> Provide the following allowances for moisture loss (expressed as a
> percentage of the labeled net quantity of contents):
>
> 1\. No allowance for moisture loss should be made if:
>
> \(a\) A food, other than a fresh bakery product, while stored by the
> packer, is weighed within 7 days following the end of the day of pack,
> except when the packer provides acceptable (see note below)
> documentation of the moisture loss for the product in storage at the
> point-of-pack, or
>
> \(b\) A fresh bakery product, while stored by the packer, is weighed
> within 1 day following the end of the day of pack, except when the
> packer provides acceptable (see note below) documentation of the
> moisture loss for the product in storage at the point of pack, or
>
> \(c\) The food is not subject to moisture loss, or
>
> \(d\) The food is packaged in an air-/moisture-tight container (e.g.,
> cans, glass bottles, enclosed in paraffin, etc).
>
> 2\. Allow 1 % for the following foods: frozen fruits and frozen
> vegetables, and fresh baked breads, buns, rolls and muffins.
>
> 3\. Allow 3 % for the following foods: flour, dry pet food, pasta,
> rice, cheese and cheese products, dried fruits and vegetables, fresh
> fruits and vegetables, coffee beans, and bakery products other than
> fresh baked breads, buns, rolls and muffins.
>
> Note for Moisture Allowances at Point of Pack: The data must be
> computed using the average moisture loss determined on a daily basis
> (e.g., the weight of each package in each of the sample control lots
> is determined everyday for 7 days) in environmental conditions similar
> to those that exist when the product is being inspected. For example,
> an inspector visits a pet food plant in Ohio in the middle of July to
> conduct a point-of-pack inspection. If the product tested had been
> packaged 5 days before the inspection and is found underweight; the
> moisture loss data must reflect the loss that would occur in July, not
> January. At least three sample control lots consisting of at least 48
> randomly selected packages must be used to develop the moisture loss
> data. Each sample lot must be stored under the same conditions that
> are typical for the product (e.g., if the product is typically placed
> in a sealed case on a pallet and shrink wrapped, the sample lots must
> be stored under the same conditions. Moisture loss data obtained by
> removing the individual packages from the shipping case and storing
> them in a laboratory would not be acceptable). The three-sample
> control lots must be placed at various locations in the storage site.
> The average moisture loss value must be computed from the three-sample
> control lots with a 95 % prediction interval. If the packer does not
> provide the information, no additional moisture allowance should be
> permitted.
>
> **V. Moisture Loss for Products Not Listed in NIST Handbook 133**
>
> When officials test product for which no moisture loss guidance has
> been provided NIST can provide technical assistance. In the past NIST
> has published recommended moisture allowances for use at all locations
> including Point-of-Pack. If moisture loss studies are required NIST
> will assist in the completion of such studies. If studies are a
> necessity they should be a collaborative effort between officials and
> industry and can be very time consuming depending on the product.
> Because of the potential impact on interstate commerce, studies must
> be completed on a nationwide basis and not by individual jurisdictions
> unless circumstances justify only local consideration.
>
> The amount of moisture lost from a package is a function of many
> factors not the least of which is the product itself (e.g., moisture
> content), packaging, storage conditions (e.g., temperature, humidity,
> air flow), time, handling and others. If a packaged product is subject
> to moisture loss officials must allow for "reasonable" variations
> caused by moisture either evaporating or draining from the product.
> Officials cannot set arbitrary moisture allowances based solely on
> their experience or intuition. Moisture allowances must be based on
> scientific data and must be "reasonable." Reasonable does not mean
> that all of the weight loss caused by moisture evaporation or draining
> from the product must be allowed. As a result of product and moisture
> variability the approach used by official must be developed on a
> case-by-case basis depending on many factors to include, but not be
> limited to, the manufacturing process, packaging materials,
> distribution, environmental influence and the anticipated shelf life
> of the product.
>
> NIST Handbook 130 provides a starting point for developing a workable
> procedure in Section 2.5.6. in the Interpretation and Guideline
> Section regarding "Resolution for Requests for Recognition of Moisture
> Loss in Other Packaged Products." NIST WMD has worked and will
> continue to work extensively with the NCWM, The Laws and Regulations
> Committee, and industry to develop protocol for determining moisture
> allowances that can serve as models for future studies. Most studies
> involving nationally distributed products will require that products
> be tested during different seasons of the year and in different
> geographic locations to develop a nationally recognized moisture
> allowance. Some studies may require the development of laboratory
> tests used for inter-laboratory comparisons to establish moisture
> content in products at time-of-pack or at the time-of-inspection.
>
> In some cases manufacturers can and may provide valid moisture loss
> data for officials to consider in lieu of conducting studies. In cases
> like this, WMD will provide assistance to determine if the information
> is complete or if further documentation is required. For example, a
> major producer of bar soap has provided moisture loss evidence for
> consideration by officials to determine what if any moisture loss
> could be expected to occur, in some cases this information has proven
> to be accurate thus avoiding the need for national data collection.
>
> Moisture loss or gain is a critical consideration for any net content
> enforcement effort and one that, in most cases, cannot be addressed by
> a field official. If moisture loss issues are to be deliberated, it is
> the regulatory official's responsibility to resolve the packers
> concern utilizing available resources and due process procedures. To
> fulfill this obligation officials may be required to utilize
> specialized test equipment and specific laboratory procedures.
> Additionally, the collection of adequate test data may require product
> examination over a broad geographical area and consideration of a wide
> range of environmental factors. If a national effort is required a
> coordinated effort involving industry, trade associations, weights and
> measures officials and federal agencies may be required. NIST will
> provide technical support upon request.
>
> **VI. Background Information on Federal Preemption**
>
> In the previous memorandum we reported that FDA was expected to adopt
> regulations identical to those contained in the 4^th^ Supplement of
> the 3^rd^ Edition of Handbook 133 adopted by the NCWM in 1994. The FDA
> published proposed regulations regarding net quantity of contents test
> procedures for packaged food under its jurisdiction in the
> March 4, 1997, issue (62 FR 9826) of the Federal Register. FDA
> subsequently withdrew that proposal on November 26, 2004
> (69 FR 68831). FDA based the withdrawal on its need to reduce its
> regulatory backlog and focus its resources on current public health
> issues. The withdrawal did not speak to the merits of the proposal.
> Based on the experience reported since the adoption of the substantive
> revisions in 1994, WMD believes that the latest edition of
> Handbook 133 provides the basis for nationally uniform test methods
> and other requirements consistent with the requirements in Federal
> laws relating to net quantity of contents. Therefore, WMD recommends
> that State and local authorities test products according to the
> procedures outlined in the latest edition of Handbook 133 unless
> future FDA guidance or regulations specify otherwise. Moreover, it is
> extremely important that State and local jurisdictions continue to
> provide regulatory oversight so businesses can compete in a fair
> marketplace and consumers can depend on the representations of
> quantity upon which they make purchasing decisions.
>
> **a. Federal Preemption under the Nutrition Labeling and Education Act
> (NLEA) of 1990**
>
> The NLEA was signed into law on November 8, 1990, to amend Title 21
> Section 343 of the Federal Food, Drug, and Cosmetic Act (FDCA). The
> Act requires nutrition labeling on foods and regulates health claims
> about food nutrients to help consumers select a more healthful diet.
> Under the Act, State and local laws not \"identical\" to corresponding
> FDA requirements are preempted. According to regulations under FDA
> \[21 CFR Part 100.1 (c)(4)\], the phrase \"not identical\" does not
> refer to the specific words in the requirement. Instead it means that
> the State or local requirement directly or indirectly imposes
> obligations or contains provisions that (1) are not imposed by or
> contained in an FDA requirement, or (2) differ from those specifically
> imposed by or contained in an FDA requirement or implementing
> regulation.
>
> The preemption ensures uniformity in labeling requirements and
> prohibits non-uniform State and local laws, regulations, formal and
> informal policies, and other enforcement practices that prevent firms
> from conducting efficient and cost-effective business in all
> 50 States. Congress recognized that even though federal requirements
> may preempt more restrictive state requirements in certain instances,
> the net benefits from national uniformity in these aspects of the food
> label outweigh any loss in consumer protection that may occur as a
> result.
>
> The ultimate goal of the NLEA is uniformity in laws, regulations, and
> test procedures---a goal shared by the NCWM and NIST alike. Under
> NLEA, state and local labeling requirements must be identical to many
> of the regulations promulgated under the Federal Food, Drug and
> Cosmetic Act, as amended by the NLEA, in Title 21 - Code of Federal
> Regulations, Parts 100 to 169 (current edition). Jurisdictions may
> continue to enforce state or local regulations on foods where there is
> no federal requirement and continue to enforce existing state and
> local laws if they are \"identical\" to FDA regulations.
>
> **b. Defining what is \"Identical\"**
>
> Federal preemption of the net quantity of contents regulations and
> test procedures occurred on November 8, 1991. On that date, state and
> local regulations on quantity of contents (e.g., net quantity of
> contents regulations, sampling plans, and test procedures) were
> preempted under the NLEA if they were not \"identical\" to federal
> requirements. The question is, what is \"identical?\" Both State and
> FDA regulations require packers to express an \"accurate\" statement
> of the quantity of contents of packaged food while permitting
> \"reasonable\" variations. The most common questions WMD receives are
> "do the test procedures used by the states and FDA provide identical
> results" (e.g., do the sampling plans have equal confidence levels,
> and are the products weighed or measured using recognized procedures)
> and "are the criteria for defining reasonable variations (e.g., the
> values of maximum allowable variations, the sample correction factors,
> and allowances for moisture loss) consistent with those used by FDA?"
>
> FDA\'s test procedures are based on those contained in \"Official
> Methods of Analysis\" of the Association of Official Analytical
> Chemists International (AOAC). Based on information provided by FDA,
> WMD believes the test procedures contained in the 4^th^ edition of
> Handbook 133 are identical to the AOAC procedures. If officials
> implement the recommendations in this memo, they should be using test
> procedures equivalent to FDA\'s.
>
> **c. Preemption Extends Beyond Food Packages Introduced into
> Interstate Commerce**
>
> Federal courts have ruled that the FDA has jurisdiction over all food
> products made from ingredients shipped in interstate commerce,
> regardless of the amount of the ingredient present, even though the
> finished product has not moved in interstate commerce. Products that
> have not entered interstate commerce (e.g., bakery products offered
> for sale in the food store where they are baked and packaged) that are
> made of ingredients shipped in interstate commerce to the store are
> subject to the Food, Drug, and Cosmetic Act and, therefore, should
> only be tested according to the following recommendations in this
> memorandum until final regulations are adopted by the FDA.
>
> This memorandum is not legal advice. I encourage you to review this
> memo with your State Attorney General or staff attorney before
> implementing any policy on these issues or before you take enforcement
> action against a product that falls under FDA or other federal
> jurisdiction.
>
> **Training and Technical Support**
>
> WMD is committed to supporting state and local jurisdictions in their
> package inspection programs by providing technical assistance and
> training classes on Handbook 133. If you need assistance, please
> contact Tom Coleman at (301) 975‑4004 or by e-mail at
> <t.coleman@nist.gov>.
>
> **NOTICE**

The following documents could not be included in this publication
because they are only available in Adobe PDF format. They are available
from NIST upon request. Please contact Tom Coleman at (301) 975-4004 or
by e-mail at <t.coleman@nist.gov> or Lisa Warfield at (301) 975-3308 or
at <lisa.warfield@nist.gov> to obtain copies.

####### 

####### 

####### B. Letter from Kraft Foods Requesting that NIST Withdraw Letter on Moisture Loss

####### [C. Chapter 3 from the 3rd Edition of NIST Handbook 133 and 4th Supplement 1994](#RefII_C)

[^1]: See 9CFR317.19 and 9CFR381.121b for the applicable meat and
    poultry regulations.

[^2]: The 3^rd^ Edition and 4^th^ Supplement required by USDA and the
    January 2005 4^th^ Edition of Handbook 133 are free at
    http://ts.nist.gov/WeightsAndMeasures/h1334-05.cfm on the Internet.

[^3]: Historically, the FDA has used enforcement procedures based on a
    95 % confidence level that findings of underfill are accurate. The
    Category A Sampling Plans in the 4^th^ edition of Handbook 133 are
    based on an approximate 97 % confidence level that the findings are
    accurate; therefore, these plans should be acceptable to use in
    testing packages under FDA jurisdiction.

[^4]: ^?^ Under a "minimum" net content system (these systems are common
    in European countries), no package in a sample may contain less than
    the net quantity of contents stated on the package label.