H-5022

AN ACT Relating to weights and measures; amending RCW 19.94.010, 19.94.150, 19.94.160, 19.94.190, 19.94.220, 19.94.230, 19.94.240, 19.94.250, 19.94.330, 19.94.260, 19.94.280, 19.94.310, 19.94.320, 19.94.340, 19.94.350, 19.94.370, 19.94.440, 19.94.450, 19.94.460, 19.94.480, 19.94.490, 19.94.500, 19.94.505, 19.94.510, and 19.94.530; adding new sections to chapter 19.94 RCW; creating a new section; recodifying RCW 19.94.330; repealing RCW 19.94.020, 19.94.030, 19.94.040, 19.94.050, 19.94.060, 19.94.070, 19.94.080, 19.94.090, 19.94.100, 19.94.110, 19.94.120, 19.94.130, 19.94.140, 19.94.170, 19.94.180, 19.94.200, 19.94.210, 19.94.215, 19.94.270, 19.94.290, 19.94.300, and 19.94.380; prescribing penalties; making appropriations; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds:

(1) The accuracy of weighing and measuring instruments and devices used in commerce in the state of Washington affects every consumer throughout the state and is of vital importance to the public interest.

(2) Fair weights and measures are equally important to business and the consumer.

(3) A continuing study of this state's weights and measures program is necessary to ensure that the program provides proper enforcement and oversight to safeguard consumers, business, and interstate commerce.

(4) The provisions of this chapter are hereby enacted to safeguard the consuming public and to ensure that businesses receive proper compensation for the commodities they deliver.

NEW SECTION. Sec. 2. Until such time as the study in section 38 of this act is completed, it is the intent of the legislature that consumer protection activities of the department of agriculture weights and measures program be funded by the general fund and that device inspection related activities be funded on a fee-for-service basis.

Sec. 3. RCW 19.94.010 and 1969 c 67 s 1 are each amended to read as follows:

((~~Terms used in this chapter shall have the meaning given to them in RCW 19.94.020 through 19.94.130 unless where used the context shall clearly indicate to the contrary.~~)) (1) Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter and to any rules adopted pursuant to this chapter.

(a) "City" means a first class city with a population of over fifty thousand persons.

(b) "City sealer" means the person duly authorized by a city to enforce and administer the weights and measures program within such city and any duly appointed deputy sealer acting under the instructions and at the direction of the city sealer.

(c) "Commodity in package form" means a commodity put up or packaged in any manner in advance of sale in units suitable for either wholesale or retail sale, exclusive, however, of an auxiliary shipping container enclosing packages that individually conform to the requirements of this chapter. An individual item or lot of any commodity not in packaged form, but on which there is marked a selling price based on established price per unit of weight or of measure, shall be construed to be a commodity in package form.

(d) "Consumer package" or "package of consumer commodity" means a commodity in package form that is customarily produced or distributed for sale through retail sales agencies or instrumentalities for consumption by persons, or used by persons for the purpose of personal care or in the performance of services ordinarily rendered in or about a household or in connection with personal possessions.

(e) "Cord" means the measurement of wood intended for fuel or pulp purposes that is contained in a space of one hundred twenty‑eight cubic feet, when the wood is ranked and well stowed.

(f) "Department" means the department of agriculture of the state of Washington.

(g) "Director" means the director of the department or duly authorized representative acting under the instructions and at the direction of the director.

(h) "Fish" means any waterbreathing animal, including shellfish, such as, but not limited to, lobster, clam, crab, or other mollusca that is prepared, processed, sold, or intended for sale.

(i) "Net weight" means the weight of a commodity excluding any materials, substances, or items not considered to be part of such commodity. Materials, substances, or items not considered to be part of a commodity shall include, but are not limited to, containers, conveyances, bags, wrappers, packaging materials, labels, individual piece coverings, decorative accompaniments, and coupons.

(j) "Nonconsumer package" or "package of nonconsumer commodity" means a commodity in package form other than a consumer package and particularly a package designed solely for industrial or institutional use or for wholesale distribution only.

(k) "Meat" means and shall include all animal flesh, carcasses, or parts of animals, and shall also include fish, shellfish, game, poultry, and meat food products of every kind and character, whether fresh, frozen, cooked, cured, or processed.

(l) "Official seal of approval" means the uniform seal or certificate issued by the director or city sealer which indicates that a weights and measures standard or a weighing or measuring instrument or device conforms with the specifications, tolerances, and other technical requirements adopted in section 10 of this act.

(m) "Person" means any individual, receiver, administrator, executor, assignee, trustee in bankruptcy, trust, estate, firm, copartnership, joint venture, club, company, business trust, corporation, association, society, or any group of individuals acting as a unit, whether mutual, cooperative, fraternal, nonprofit, or otherwise.

(n) "Poultry" means all fowl, domestic or wild, that is prepared, processed, sold, or intended or offered for sale.

(o) "Service agent" means a person who for hire, award, commission, or any other payment of any kind, installs, inspects, checks, adjusts, repairs, reconditions, or systematically standardizes the graduations of a weighing or measuring instrument or device.

(p) "Ton" means a unit of two thousand pounds avoirdupois weight.

(q) "Weighing or measuring instrument or device" means any equipment or apparatus used commercially to establish the size, quantity, capacity, count, extent, area, heaviness, or measurement of quantities, things, produce, or articles for distribution or consumption, that are purchased, offered or submitted for sale, hire, or award on the basis of weight, measure or count, including any accessory attached to or used in connection with a weighing or measuring instrument or device when such accessory is so designed or installed that its operation affects, or may effect, the accuracy or indication of the device. This definition shall be strictly limited to those weighing or measuring instruments or devices governed by Handbook 44 as adopted under section 10 of this act.

(r) "Weight" means net weight as defined in this section.

(s) "Weights and measures" means the recognized standards or units of measure used to indicate the size, quantity, capacity, count, extent, area, heaviness, or measurement of any consumable commodity.

(t) "Weights and measures standard" means any object used by the director, a city sealer, or a service agent that under specified conditions defines or represents a recognized weight or measure during the inspection, adjustment, testing, or systematic standardization of the graduations of any weighing or measuring instrument or device.

(2) The director shall prescribe by rule other definitions as may be necessary for the implementation of this chapter.

Sec. 4. RCW 19.94.150 and 1991 sp.s. c 23 s 4 are each amended to read as follows:

The system of weights and measures in customary use in the United States and the metric system of weights and measures are jointly recognized, and either one or both of these systems shall be used for all commercial purposes in this state. The definitions of basic units of weight and measure and weights and measures equivalents, as published by the national institute of standards and technology or any successor organization, are recognized and shall govern weighing ((~~and~~)) or measuring ((~~equipment and transactions in the~~)) instruments or devices used in commercial activities and other transactions involving weights and measures within this state.

Sec. 5. RCW 19.94.160 and 1991 sp.s. c 23 s 5 are each amended to read as follows:

Weights and measures standards that are in conformity with the standards of the United States as have been supplied to the state by the federal government or otherwise obtained by the state for use as state weights and measures standards, shall, when the same shall have been certified as such by the national institute of standards and technology or any successor organization, be the state standards of weight and measure. The state weights and measures standards shall be kept in a place designated by the director and shall not be removed from ((~~the said~~)) such designated place except for repairs or for certification((~~: PROVIDED, That they~~)). These state weights and measures standards shall be submitted at least once ((in)) every ten years to the national institute of standards and technology or any successor organization for certification.

NEW SECTION. Sec. 6. (1) Unless otherwise provided by the department, all weighing or measuring instruments or devices used for commercial purposes within this state shall be inspected and tested for accuracy by the director or city sealer at least once every two years and, if found to be correct, the director or city sealer shall issue an official seal of approval for each such instrument or device.

(2) Beginning fiscal year 1993, the schedule of inspection and testing shall be staggered so as one-half of the weighing or measuring instruments or devices under the jurisdiction of the inspecting and testing authority are approved in odd fiscal years and the remaining one-half are inspected and tested in even fiscal years.

(3) The department may provide, as needed, uniform, official seals of approval to city sealers for the purposes expressed in this section.

NEW SECTION. Sec. 7. (1) The department shall establish reasonable, biennial inspection and testing fees for each type or class of weighing or measuring instrument or device required to be inspected and tested under this chapter. These inspection and testing fees shall be equitably prorated within each such type or class and shall be limited to those amounts necessary for the department to cover, to the extent possible, the direct costs associated with the inspection and testing of each type or class of weighing or measuring instrument or device. All inspection and testing fees shall be set or amended by rule at levels recommended by the task force created by subsection (2) of this section.

(2) Prior to the establishment and each amendment of the fees authorized under this chapter, a weights and measures fee task force shall be convened under the direction of the department. The task force shall be composed of a representative from the department who shall serve as chair and one representative from each of the following: City sealers, service agents, service stations, grocery stores, retailers, food processors/dealers, oil heat dealers, the agricultural community, and liquid propane dealers. The task force shall recommend the appropriate level of fees to be assessed by the department pursuant to subsection (1) of this section, based upon the level necessary to cover the direct costs of administering and enforcing the provisions of this chapter and to the extent possible be consistent with fees reasonably and customarily charged in the private sector for similar services.

(3) The fees authorized under this chapter may be billed only after the director or a city sealer has issued an official seal of approval for a weighing or measuring instrument or device or a weight or measure standard.

(4) All fees shall become due and payable thirty days after billing by the department or a city sealer. A late penalty of one and one-half percent per month may be assessed on the unpaid balance more than thirty days in arrears.

(5) Fees upon weighing or measuring instruments or devices within the jurisdiction of the city that are collected under this section by city sealers shall be deposited into the general fund, or other account, of the city as directed by the governing body of the city. On the thirtieth day of each month, city sealers shall, pursuant to procedures established and upon forms provided by the director, remit to the department for administrative costs ten percent of the total fees collected.

(6) With the exception of subsection (7) of this section, no person shall be required to pay more than the established inspection and testing fee adopted under section 7 of this act for any weighing or measuring instrument or device in any two-year period when the same has been found to be correct.

(7) Whenever a special request is made by the owner for the inspection and testing of a weighing or measuring instrument or device, the fee prescribed by the director for such a weighing or measuring instrument or device shall be paid by the owner.

NEW SECTION. Sec. 8. All moneys collected under this chapter shall be placed in the weights and measures account hereby established in the state treasury. Moneys deposited in this account may be spent only following appropriation by law and shall be used solely for the purposes of weighing or measuring instrument or device inspection and testing.

Sec. 9. RCW 19.94.190 and 1991 sp.s. c 23 s 6 are each amended to read as follows:

(1) The director and duly appointed city sealers shall enforce the provisions of this chapter ((~~and~~)). The director shall adopt rules for enforcing and carrying out the purposes of this chapter((~~. Such rules shall have the effect of law and may include (1))) including but not limited to the following:~~

~~(a) Establishing state standards of ((net~~)) weight, measure, or count, and reasonable standards of fill for any commodity in package form((~~, (2)~~));

(b) The ((~~governing~~)) establishment of technical and reporting procedures to be followed, ((~~and the~~)) any necessary report and record forms, and marks of rejection to be used by the director and city sealers in the discharge of their official duties((~~, (3)~~)) as required by this chapter;

(c) The ((~~governing~~)) establishment of technical test procedures, reporting procedures, and any necessary record and reporting forms to be used by ((~~commercial firms~~)) service agents when installing, repairing ((or testing commercial weights or measures, (4) the criteria that all weights and measures used by commercial firms in repairing or servicing commercial weighing and measuring devices shall be calibrated by the department and be directly traceable to state standards and shall be submitted to the department for calibration and certification as necessary and/or at such reasonable intervals as may be established or required by the director, (5))), inspecting, or standardizing the graduations of any weighing or measuring instruments or devices;

(d) The establishment of fee payment and reporting procedures and any necessary report and record forms to be used by city sealers when remitting the percentage of total fees collected as required under this chapter;

(e) The establishment of exemptions from the sealing or marking inspection and testing requirements of RCW 19.94.250 with respect to ((~~weights and measures~~)) weighing or measuring instruments or devices of such character or size that such sealing or marking would be inappropriate, impracticable, or damaging to the apparatus in question((, (6) provisions that allow the director to establish fees for weighing, measuring, and providing calibration services performed by the weights and measures laboratory, with all money collected under this subsection paid to the director and deposited in an account within the agricultural local fund to be used for the repair and maintenance of weights and measures devices and other related functions, (7)));

(f) The establishment of exemptions from the inspection and testing requirements of ((~~RCW 19.94.200 and 19.94.210 for testing,~~)) section 6 of this act with respect to classes of ((~~weights and measures~~)) weighing or measuring instruments or devices found to be of such character that periodic ((~~retesting~~)) inspection and testing is unnecessary to ensure continued accuracy((.)); and

(g) The establishment of inspection and approval techniques, if any, to be used with respect to classes of weighing or measuring instruments or devices that are designed specifically to be used commercially only once and then discarded, or are uniformly mass‑produced by means of a mold or die and are not individually adjustable.

(2) These rules shall also include specifications((,)) and tolerances((~~, and rules~~)) for ((~~weights and measures of the character of those specified in RCW 19.94.210,~~)) the acceptable range of accuracy required of weighing or measuring instruments or devices and shall be designed to eliminate from use, without prejudice to ((~~apparatus~~)) weighing or measuring instruments or devices that conform((s)) as closely as practicable to ((~~the~~)) official ((~~standards~~)) specifications and tolerances, those (a) ((~~that are not accurate, (b)~~)) that are of such construction that they are faulty, that is, that are not reasonably permanent in their adjustment or will not repeat their indications correctly, or ((~~(c)~~)) (b) that facilitate the perpetration of fraud. ((The specifications, tolerances, and rules for commercial weighing and measuring devices, together with amendments thereto, as recommended by the most recent edition of Handbook 44 published by the national institute of standards and technology shall be the specifications, tolerances, and regulations for commercial weighing and/or measuring devices of the state. To promote uniformity, any supplements or amendments to Handbook 44 or any similar subsequent publication of the national institute of standards and technology shall be deemed to have been adopted under this section. The director may, however, within thirty days of the publication or effective date of Handbook 44 or any supplements, amendments, or similar publications give public notice that a hearing will be held to determine if such publications should not be applicable under this section. The hearing shall be conducted under chapter 34.05 RCW. For the purpose of this chapter, apparatus shall be deemed to be "correct" when it conforms to all applicable requirements promulgated as specified in this section; all other apparatus shall be deemed to be "incorrect".))

NEW SECTION. Sec. 10. (1) The department shall adopt the specifications, tolerances, and other technical requirements for commercial weighing or measuring instruments or devices, together with amendments thereto, as recommended by the most recent edition of Handbook 44 published by the national institute of standards and technology or any successor organization as the specifications, tolerances, and other technical requirements for commercial weighing or measuring instruments or devices commercially used in this state.

(2)(a) To promote uniformity, any supplements or amendments to Handbook 44 or any similar subsequent publication of the national institute of standards and technology or any successor organization shall be deemed to have been adopted under this section.

(b) The director may, however, within thirty days of the publication or effective date of Handbook 44 or any supplements, amendments, or similar publications give public notice that a hearing will be held to determine if such publications should not be applicable under this section. Any such hearing shall be conducted under chapter 34.05 RCW.

NEW SECTION. Sec. 11. For the purposes of this chapter, weighing or measuring instruments or devices and weights and measures standards shall be deemed to be "correct" when they conform to all applicable requirements of this chapter or the requirements of any rule adopted by the department under the authority granted in this chapter; all other weighing or measuring instruments or devices and weights and measures standards shall be deemed to be "incorrect."

NEW SECTION. Sec. 12. The department shall:

(1) Biennially inspect and test the weights and measures standards of any city for which the appointment of a city sealer is provided by this chapter and shall issue an official seal of approval for same when found to be correct. The department shall, by rule, establish a reasonable fee for such inspection and testing services performed by the department's metrology laboratory.

(2) Biennially inspect, test, and, if found to be correct, issue an official seal of approval for any weighing or measuring instrument or device used in an agency or institution to which moneys are appropriated by the legislature or of the federal government and shall report any findings in writing to the executive officer of the agency or institution concerned. The department shall collect a reasonable fee, to be set by rule, for testing any such weighing or measuring instrument or device.

(3) Inspect, test, and, if found to be correct, issue a seal of approval for classes of weighing or measuring instruments or devices found to be few in number, highly complex, and of such character that differential inspection and testing frequency is necessary including, but not limited to, railroad track scales and grain elevator scales. The department shall develop rules regarding the inspection and testing procedures to be used for such weighing or measuring instruments or devices which shall include requirements for the provision, maintenance, and transport of any weight or measure standard necessary for inspection and testing at no expense to the state. The department may collect a reasonable fee, to be set by rule, for inspecting and testing any such weighing and measuring instruments or devices. This fee shall not be unduly burdensome and shall cover, to the extent possible, the direct costs of performing such service.

Sec. 13. RCW 19.94.220 and 1991 sp.s. c 23 s 8 are each amended to read as follows:

In promoting the general objective of ensuring accuracy of weighing or measuring instruments or devices and the proper representation of weights and measures in commercial transactions, the director or a city sealer shall, upon his or her own initiative and as he or she deems appropriate and advisable, investigate complaints made concerning violations of the provisions of this chapter((, and shall, upon his or her own initiative, conduct such investigations as deemed appropriate and advisable to develop information on prevailing procedures in commercial quantity determination and on possible violations of the provisions of this chapter and to promote the general objective of accuracy in the determination and representation of quantity in commercial transactions)).

Sec. 14. RCW 19.94.230 and 1969 c 67 s 23 are each amended to read as follows:

(1) The director ((~~shall~~)) or a city sealer may, from time to time, ((~~weigh or measure and~~)) inspect and test packages or amounts of commodities kept, offered, exposed for sale, sold, or in the process of delivery to determine whether the same contain the amounts represented and whether they ((be)) are kept, offered, exposed for sale or sold in accordance with law((~~; and~~)). When such packages or amounts of commodities are found not to contain the amounts represented or are found to be kept, offered, or exposed for sale or sold in violation of law, the director or city sealer may order them off sale and may mark, tag, or stamp them in a manner prescribed by ((~~him~~)) the department. (2) In carrying out the provisions of this section, the director or city sealer may employ recognized sampling procedures under which the compliance of a given lot of packages will be determined on the basis of a result obtained on a sample selected from and representative of such lot.

(3) No person shall ((~~(1)~~)) (a) sell, keep, offer, or expose for sale any package or amount of commodity that has been ordered off sale as provided in this section unless and until such package or amount of commodity has been brought into full compliance with legal requirements or ((~~(2)~~)) (b) dispose of any package or amount of commodity that has been ordered off sale and that has not been brought into compliance with legal requirements in any manner except with the specific written approval of the director or city sealer who issued such off sale order.

Sec. 15. RCW 19.94.240 and 1991 sp.s. c 23 s 9 are each amended to read as follows:

(1) The director or a city sealer shall have the power to issue stop-use orders, stop-removal orders, and removal orders with respect to ((~~weights and measures~~)) weighing or measuring devices being, or susceptible of being, commercially used((~~, and to~~)) within this state.

(2) The director or a city sealer shall also have the power to issue stop-removal orders and removal orders with respect to packages or amounts of commodities kept, offered, exposed for sale, sold, or in process of delivery((,)).

(3) The director or a city sealer shall issue such orders whenever in the course of his or her enforcement of the provisions of this chapter or rules adopted hereunder he or she deems it necessary or expedient to issue such orders.

(4) No person shall use, remove from the premises specified, or fail to remove from any premises specified any ((~~weight, measure, or package~~)) weighing or measuring instrument or device, commodity in packaged form, or amount of commodity contrary to the terms of a stop-use order, stop-removal order or removal order, issued under the authority of this section.

Sec. 16. RCW 19.94.250 and 1991 sp.s. c 23 s 10 are each amended to read as follows:

(1) The director or a city sealer shall ((reject and mark or tag as "rejected" such weights and measures as he or she finds upon inspection or test to be "incorrect" as defined in RCW 19.94.190, but which in his or her best judgment are susceptible of satisfactory repair: PROVIDED, That such sealing or marking shall not be required with respect to such weights and measures as may be exempted therefrom by rule of the director issued under the authority of RCW 19.94.190)), from time to time, inspect any weighing or measuring instrument or device, except those weighing or measuring instruments or devices exempted under the authority of RCW 19.94.190, to determine if it is correct. If the director or a city sealer discovers upon inspection that a weighing or measuring instrument or device is "incorrect," but in his or her best judgment is susceptible of satisfactory repair, he or she shall reject and mark or tag as rejected any such weighing or measuring instrument or device.

(2) The director or a city sealer may reject or seize any ((~~weights and measures~~)) weighing or measuring instrument or device found to be incorrect that, in his or her best judgment, ((~~are~~)) is not susceptible of satisfactory repair. ((~~Weights and measures~~))

(3) Weighing or measuring instruments or devices that have been rejected under subsection (1) of this section may be confiscated and may be destroyed by the director or a city sealer if not corrected as required by RCW 19.94.330 as recodified by this act or if used or disposed of contrary to the requirements of ((~~said~~)) that section.

Sec. 17. RCW 19.94.330 and 1991 sp.s. c 23 s 14 are each amended to read as follows:

((~~Weights and measures~~)) (1) Weighing or measuring instruments or devices that have been rejected under the authority of the director or a city sealer shall remain subject to the control of the rejecting authority until such time as suitable repair or disposition thereof has been made as required by this section.

(2) The owner((s)) of ((~~such rejected weights and measures~~)) any weighing or measuring instrument or device that has been marked or tagged as rejected by the director or a city sealer shall cause the same to be made correct within thirty days or such longer period as may be authorized by the rejecting authority((~~; or,~~)). In lieu of ((~~this,~~)) correction, the owner of such weighing and measuring instrument or device may dispose of the same, but only in ((~~such a~~)) the manner ((~~as is~~)) specifically authorized by the rejecting authority. ((~~Weights and measures~~))

(3) Weighing and measuring instruments or devices that have been rejected shall not again be used commercially until they have been officially reexamined ((~~or until standardized corrective measures have been instituted as prescribed by rule as adopted by the department~~)) and, if found to be correct, had an official seal of approval placed upon or issued for such weighing or measuring instrument or device by the rejecting authority.

Sec. 18. RCW 19.94.260 and 1991 sp.s. c 23 s 11 are each amended to read as follows:

(1) With respect to the enforcement of this chapter and any other acts dealing with weights and measures that he or she is, or may be empowered to enforce, the director ((~~is authorized to~~)) or a city sealer may reject or seize for use as evidence incorrect ((~~or unsealed weights and measures or amounts~~)) weighing or measuring instruments or devices or packages of commodities to be used, retained, offered, exposed for sale, or sold in violation of the law.

(2) In the performance of his or her official duties conferred under this chapter, the director or a city sealer is authorized at reasonable times during the normal business hours of the person using ((~~the weights and measures~~)) a weighing or measuring instrument or device to enter into or upon any structure or premises where ((~~weights and measures are~~)) such weighing or measuring instrument or device is used or kept for commercial purposes. ((~~Should~~)) If the director ((be)) or a city sealer is denied access to any premises or establishment where such access was sought for the purposes set forth in this ((~~section~~)) chapter, the director or a city sealer may apply to any court of competent jurisdiction for a search warrant authorizing access to such premises or establishment for ((~~said~~)) such purposes. The court may, upon such application, issue the search warrant for the purposes requested.

NEW SECTION. Sec. 19. (1) Any person aggrieved by any official action of the department or a city sealer conferred under this chapter, including but not limited to, "stop-use orders," "stop-removal orders," "removal orders," "rejection," "condemnation," or "off sale order" may within thirty days after an order is given or any action is taken, petition the director for a hearing to determine the matter. Such proceedings and any appeal therefrom shall be taken in accordance with the administrative procedure act, chapter 34.05 RCW.

(2) The director shall give due notice and hold a hearing within ten days after the rejection, confiscation, or seizure of any weighing or measuring instrument or device or commodity under RCW 19.94.250 or the rejection or seizure of any weighing or measuring instrument or device for evidence under RCW 19.94.260. This hearing shall be for the purposes of determining whether any such weighing or measuring instrument or device or commodity was properly rejected, confiscated, or seized, to determine whether or not such weighing or measuring instrument or device or commodity was used for, or is in, violation of any provision of this chapter or to determine the disposition to be made of such weighing or measuring instrument or device or commodity. Such proceedings and any appeal therefrom shall be taken in accordance with the administrative procedure act, chapter 34.05 RCW.

(3) The department may by rule establish procedures for the administration of this section.

Sec. 20. RCW 19.94.280 and 1969 c 67 s 28 are each amended to read as follows:

(1) There ((~~shall~~)) may be a city sealer ((~~of weights and measures~~)) in every city and such deputies as may be required by ordinance of each such city ((governed by this chapter. Such sealer and such deputies shall in any such city be appointed by, and they shall hold office subject to applicable local civil service laws and regulations; otherwise they shall be appointed by the mayor, or other chief executive officer of such city, by and with the advice and consent of the governing body of such city, and they may be removed for cause in the same manner)) to administer and enforce the provisions of this chapter.

(2) Each city electing to have a city sealer shall adopt rules for the appointment and removal of the city sealer and any deputies required by local ordinance. The rules for appointment of a city sealer and any deputies must include provisions for the advice and consent of the local governing body of such city and, as necessary, any provisions for local civil service laws and regulations.

(3) A city sealer shall adopt the fee amounts established by the director pursuant to section 6 of this act. No city shall adopt or charge an inspection, testing, or licensing fee or any other fee upon a weighing or measuring instrument or device that is in excess of the fee amount adopted under section 6 of this act.

(4) A city sealer shall keep a complete and accurate record of all official acts performed under the authority of this chapter and shall submit an annual report to the governing body of his or her city and shall make any reports as may be required by the director.

Sec. 21. RCW 19.94.310 and 1969 c 67 s 31 are each amended to read as follows:

(1) The ((~~council or other~~)) governing body of each city for which a city sealer has been appointed as provided for by RCW 19.94.280 shall ((~~(1)~~)):

(a) Procure at the expense of the city ((~~such standards of weight and measure and such additional equipment, to be used~~)) the official weights and measures standards and any field weights and measures standards necessary for the administration and enforcement of the provisions of this chapter ((~~in such city, as~~)) or any rule that may be prescribed by the director; ((~~(2)~~))

(b) Provide a suitable office for the city sealer and any deputies that have been duly appointed; and ((~~(3)~~))

(c) Make provision for the necessary clerical services, supplies, transportation and for defraying contingent expenses incidental to the official activities of the city sealer and his or her deputies in carrying out the provisions of this chapter.

(2) When the ((~~standards of weight and measure~~)) acquisition of the official weights and measures standards required ((~~by this~~)) under subsection (1)(a) of this section ((~~to be provided by a city shall have)) has been made and such weights and measures standards have been examined and approved by the director, they shall be the ((official~~)) certified weights and measures standards for such city. ((~~It shall be the duty of~~))

(3) In order to maintain field weights and measure standards in accurate condition, the city sealer ((to make, or to arrange to have made, at least as frequently as once a year, comparisons between his field standards and appropriate standards of a higher order belonging to his city or to the state, in order to maintain such field standards in accurate condition)) shall, at least once every two years, compare the field weights and measures standards used within his or her city to the certified weights and measures standards of such city or to the official weights and measures standards of this state.

Sec. 22. RCW 19.94.320 and 1969 c 67 s 32 are each amended to read as follows:

(1) In cities for which city sealers ((~~of weights and measures~~)) have been appointed as provided for in this chapter, the director shall have general supervisory powers over such city sealers and may, when he or she deems it reasonably necessary, exercise concurrent authority to carry out the provisions of this chapter.

(2) When the director elects to exercise concurrent authority within a city with a duly appointed city sealer, the director's powers and duties relative to ((~~weights and measures contained in~~)) this chapter shall be in addition to the powers granted ((to)) in any such city by law or charter.

NEW SECTION. Sec. 23. (1) Except as otherwise provided for in this chapter or in any rule adopted under the authority of this chapter, any person who engages in business within this state as a service agent shall biennially submit to the department for inspection and testing all weights and measures standards used by the service agent, or any agent or employee of the service agent. If the department finds such weights and measures standards to be correct, the director shall issue an official seal of approval for each such standard.

(2) The department may by rule adopt reasonable fees for the inspection and testing services performed by the weights and measures laboratory pursuant to this section.

(3) A service agent shall not use in the installation, inspection, adjustment, repair, or reconditioning of any weighing or measuring instrument or device any weight or measure standard that does not have a valid, official seal of approval from the director. Any service agent who violates this section is subject to a civil penalty of no more than five hundred dollars.

Sec. 24. RCW 19.94.340 and 1991 sp.s. c 23 s 15 are each amended to read as follows:

(1) Except as provided in subsection (2) of this section, commodities in liquid form shall be sold only by liquid measure or by weight, and, except as otherwise provided in this chapter, commodities not in liquid form shall be sold only by weight, by measure of length or area, or by count((~~: PROVIDED, That~~)).

(2) Liquid commodities may be sold by weight and commodities not in liquid form may be sold by count only if such methods ((~~give~~)) provide accurate information as to the quantity of commodity sold((~~: AND PROVIDED FURTHER, That~~)).

(3) The provisions of this section shall not apply ((~~(1)~~)) to:

(a) Commodities ((~~when~~)) that are sold for immediate consumption on the premises where sold((~~, (2) to~~));

(b) Vegetables when sold by the head or bunch((~~, (3) to~~));

(d) Commodities in package form when there exists a general consumer usage to express the quantity in some other manner((~~, (5) to));~~

~~(e) Concrete aggregates, concrete mixtures, and loose solid materials such as earth, soil, gravel, crushed stone, and the like, when sold by cubic measure((, or (6) to~~)); or

(f) Unprocessed vegetable and animal fertilizer when sold by cubic measure.

(4) The director may issue such reasonable rules as are necessary to assure that amounts of commodity sold are determined in accordance with good commercial practice and are so determined and represented to be accurate and informative to all interested parties.

Sec. 25. RCW 19.94.350 and 1991 sp.s. c 23 s 16 are each amended to read as follows:

(1) Except as otherwise provided in this chapter, any commodity in package form introduced or delivered for introduction into or received in intrastate commerce, kept for the purpose of sale, offered or exposed for sale or sold in intrastate commerce, shall bear on the outside of the package such definite, plain, and conspicuous declaration of ((~~(1)~~)):

(a) The identity of the commodity ((in)) contained within the package unless the same can easily be identified through the ((~~wrapper or container~~)) package; ((~~(2)~~))

(b) The net quantity of the contents in terms of weight, measure or count; and ((~~(3)~~))

(c) In the case of any package not sold on the premises where packed, the name and place of business of the manufacturer, packer, or distributor, as may be prescribed by rule issued by the director((~~: PROVIDED, That~~)).

(2) In connection with the declaration required under subsection ((~~(2)~~)) (1)(b) of this section, neither the qualifying term "when packed" or any words of similar import, nor any term qualifying a unit of weight, measure, or count (for example, "jumbo", "giant", "full", "or over", and the like) that tends to exaggerate the amount of commodity in a package, shall be used((~~: AND PROVIDED FURTHER, That~~)).

(3) With respect to the declaration required under subsection ((~~(2)~~)) (1)(b) of this section the director shall by rule establish: (a) Reasonable variations to be allowed, (b) exemptions as to small packages, and (c) exemptions as to commodities put up in variable weights or sizes for sale to the consumer intact and either customarily not sold as individual units or customarily weighed or measured at time of sale to the consumer.

Sec. 26. RCW 19.94.370 and 1969 c 67 s 37 are each amended to read as follows:

No commodity in package form shall be so wrapped, nor shall it be in a container so made, formed or filled as to mislead the purchaser as to the quantity of the contents of the package, and the contents of a container shall not fall below such reasonable standards of fill as may have been prescribed by the director for the commodity in question ((~~by the director~~)).

Sec. 27. RCW 19.94.440 and 1991 sp.s. c 23 s 18 are each amended to read as follows:

(1) When a vehicle delivers to an individual purchaser a commodity in bulk, and the commodity is sold in terms of weight units, the delivery ((~~shall~~)) must be accompanied by a duplicate delivery ticket with the following information clearly stated, in ink or other indelible marking equipment and, in clarity, equal to type or printing: ((~~(1)~~))

(a) The name and address of the vendor((~~, (2)~~));

(b) The name and address of the purchaser((,)); and ((~~(3)~~))

(c) The ((~~net~~)) weight of the delivery expressed in pounds, and, if the ((~~net~~)) weight is derived from determinations of gross and tare weights, such gross and tare weights also ((~~shall~~)) must be stated in terms of pounds.

(2) One of ((~~these~~)) the delivery tickets shall be retained by the vendor, and the other shall be delivered to the purchaser at the time of delivery of the commodity, or shall be surrendered on demand to the director ((~~or the deputy director or the inspector,~~)) or the city sealer ((~~or deputy sealer,~~)) who, if he or she ((~~desires~~)) elects to retain it as evidence, shall issue a weight slip in lieu thereof for delivery to the purchaser((~~: PROVIDED, That~~)).

(3) If the purchaser himself or herself carries away the purchase, the vendor shall be required only to give the purchaser at the time of sale a delivery ticket stating the number of pounds of commodity delivered ((~~to the purchaser~~)).

Sec. 28. RCW 19.94.450 and 1991 sp.s. c 23 s 19 are each amended to read as follows:

(1) Except as provided in subsection (2) of this section, all solid fuels such as, but not limited to, coal, coke, charcoal, broiler chips, pressed fuels and briquets shall be sold by weight((~~: PROVIDED, That~~)).

(2) All solid fuels such as hogged fuel, sawdust and similar industrial fuels may be sold or purchased by cubic measure.

(3) Unless ((~~the~~)) a fuel is delivered to the purchaser in package form, each delivery of ((~~coal, coke, or charcoal~~)) such fuel to an individual purchaser ((~~shall~~)) must be accompanied by a duplicate delivery ticket((~~s on which~~)) with the following information clearly stated, in ink or other indelible ((~~substance, there shall be clearly stated (1)~~)) marking equipment and, in clarity equal to type or printing:

(a) The name and address of the vendor; ((~~(2)~~))

(b) The name and address of the purchaser; and ((~~(3)~~))

(c) The ((~~net~~)) weight of the delivery and the gross and tare weights from which the ((~~net~~)) weight is computed, each expressed in pounds.

(4) One of ((~~these~~)) the delivery tickets shall be retained by the vendor and the other shall be delivered to the purchaser at the time of delivery of the fuel, or shall be surrendered, on demand, to the director ((~~or his or her deputy or inspector or a~~)) or the city sealer ((~~or deputy sealer~~)) who, if he or she ((~~desires~~)) elects to retain it as evidence, shall issue a weight slip in lieu thereof for delivery to the purchaser((~~: PROVIDED, That~~)).

(5) If the purchaser himself or herself carries away the purchase, the vendor shall be required only to give to the purchaser at the time of sale a delivery ticket stating the number of pounds of fuel delivered ((~~to the purchaser~~)).

Sec. 29. RCW 19.94.460 and 1969 c 67 s 46 are each amended to read as follows:

(1) All stove and furnace oil shall be sold by liquid measure or by ((~~net~~)) weight in accordance with the provisions of RCW 19.94.340. ((~~In the case of each delivery of such liquid fuel not~~))

(2) Unless such fuel is delivered to the purchaser in package form, ((~~and~~)) each delivery of such fuel in an amount greater than ten gallons in the case of sale by liquid measure or one hundred pounds in the case of sale by weight((~~, there shall be rendered to the purchaser, either (a) at the time of delivery or (b) within a period mutually agreed upon in writing or otherwise between the vendor and the purchaser,~~)) must be accompanied by a delivery ticket or a written statement on which, in ink or other indelible substance, there shall be clearly and legibly stated ((~~(1)~~)):

(a) The name and address of the vendor; ((~~(2)~~))

(b) The name and address of the purchaser; ((~~(3)~~))

(d) The unit price (that is, price per gallon or per pound, as the case may be), of the fuel delivered; ((~~(5)~~))

(e) In the case of sale by liquid measure, the liquid volume of the delivery together with any meter readings from which such liquid volume has been computed, expressed in terms of the gallon and its binary or decimal subdivisions; and ((~~(6)~~))

(f) In the case of sale by weight, the net weight of the delivery, together with any weighing scale readings from which such net weight has been computed, expressed in terms of tons or pounds avoirdupois.

(3) The delivery ticket required under this section must be delivered at the time of delivery unless an agreement, written or otherwise, between the vendor and the purchaser has been reached regarding the delivery of such delivery ticket.

Sec. 30. RCW 19.94.480 and 1969 c 67 s 48 are each amended to read as follows:

Fractional parts of any unit of weight or measure shall mean like fractional parts of the value of such unit as prescribed ((~~or defined~~)) in RCW ((~~19.94.070, 19.94.090 and~~)) 19.94.150((~~, and all contracts concerning the sale of commodities and services shall be construed in accordance with this requirement~~)).

NEW SECTION. Sec. 31. All contracts concerning the sale of commodities and services by weight, measure, or count, will be construed in accordance with the weights and measures adopted under this chapter.

Sec. 32. RCW 19.94.490 and 1969 c 67 s 49 are each amended to read as follows:

Any person who shall hinder or obstruct in any way the director((,)) or a city sealer ((~~or deputy sealer,~~)) in the performance of his or her official duties((, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than twenty dollars or more than two hundred dollars, or by imprisonment in the county jail for not more than three months, or by both such fine and imprisonment)) under this chapter is subject to a civil penalty of no more than five hundred dollars.

Sec. 33. RCW 19.94.500 and 1969 c 67 s 50 are each amended to read as follows:

Any person who shall impersonate in any way the director((,)) or a city sealer ((~~or a deputy sealer~~)), by ((~~the use of his~~)) using an official seal of approval without specific authorization to do so or by using a counterfeit ((~~of his~~)) seal of approval, or in any other manner, ((shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than one hundred dollars or more than five hundred dollars or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment)) is subject to a civil penalty of no more than one thousand dollars.

Sec. 34. RCW 19.94.505 and 1984 c 61 s 1 are each amended to read as follows:

(1) It is unlawful for any dealer or service station, as both are defined in RCW 82.36.010, to sell ethanol and/or methanol at one percent, by volume, or greater in gasoline for use as motor vehicle fuel unless the dispensing device has a label stating the type and maximum percentage of alcohol contained in the motor vehicle fuel.

(2) In any county, city, or other political subdivision designated as a carbon monoxide nonattainment area pursuant to the provisions of subchapter I of the Clean Air Act Amendments of 1990, P.L. 101-549, and in which the sale of oxygenated petroleum products is required by section 211(m) of the Clean Air Act Amendments of 1990, 42 U.S.C. 7545(m), any dealer or service station, as both are defined in RCW 82.36.010, who sells or dispenses a petroleum product that contains at least one percent, by volume, ethanol, methanol, or other oxygenate, shall post only such label or notice as may be required pursuant to 42 U.S.C. 7545(m)(4) or any amendments thereto or any successor provision thereof. This provision shall be applicable only during such portion of the year as oxygenated petroleum product sales are required pursuant to 42 U.S.C. 7545(m).

((~~Violation of~~)) (3) Any person who violates this section is ((~~a misdemeanor~~)) subject to a civil penalty of no more than five hundred dollars.

Sec. 35. RCW 19.94.510 and 1969 c 67 s 51 are each amended to read as follows:

(1) Any person who, by himself or herself, by his ((~~servant or~~)) or her agent or employee, or as the ((~~servant or~~)) agent or employee of another person, performs any one of the acts enumerated in ((~~subsections (1)~~)) (a) through ((~~(9) below, shall be guilty of a misdemeanor and upon a second or subsequent conviction thereof he shall be guilty of a gross misdemeanor.~~)) (k) of this subsection is subject to a civil penalty of no more than one thousand dollars:

((~~(1)~~)) (a) Use or have in possession for the purpose of using for any commercial purpose ((~~specified in RCW 19.94.210,~~)) a weighing or measuring instrument or device that is intentionally calculated to falsify any weight, measure, or count of any commodity, or to sell, offer, expose for sale or hire or have in possession for the purpose of selling or hiring an incorrect ((~~weight or measure or any device or instrument used or~~)) weighing or measuring instrument or device or any weighing or measuring instrument or device calculated to falsify any weight or measure.

((~~(2)~~)) (b) Knowingly use or have in possession for current use in the buying or selling of any commodity or thing, for hire or award, or in the computation of any basic charge or payment for services rendered on the basis of weight ((or)), measurement, or count, or in the determination of weight ((or)), measurement or count, when a charge is made for such determination, any incorrect ((~~weight or measure~~)) weighing or measuring instrument or device.

((~~(3)~~)) (c) Dispose of any rejected ((~~or condemned weight or measure~~)) weighing or measuring instrument or device in a manner contrary to law or ((~~regulation~~)) rule.

((~~(4)~~)) (d) Remove from any ((~~weight or measure~~)) weighing or measuring instrument or device, contrary to law or ((~~regulation~~)) rule, any tag, seal, stamp or mark placed thereon by the director((,)) or a city sealer ((~~or deputy sealer~~)).

((~~(5)~~)) (e) Sell, offer or expose for sale less than the quantity he or she represents of any commodity, thing or service.

((~~(6)~~)) (f) Take more than the quantity he or she represents of any commodity, thing, or service when, as buyer, he or she furnishes the weight ((or)), measure, or count by means of which the amount of the commodity, thing or service is determined.

((~~(7)~~)) (g) Keep for the purpose of sale, advertise, offer or expose for sale or sell any commodity, thing or service in a condition or manner contrary to law or ((~~regulation~~)) rule.

((~~(8)~~)) (h) Use in retail trade, except in the preparation of packages put up in advance of sale and of medical prescriptions, a ((~~weight or measure~~)) weighing or measuring instrument or device that is not so positioned that its indications may be accurately read and the weighing or measuring operation ((~~observed~~)) observable from some position which may reasonably be assumed by a customer.

((~~(9)~~)) (i) Knowingly approve or issue an official seal of approval for any weighing or measuring instrument or device known to be incorrect.

(j) Fails to disclose to the department or a city sealer any knowledge of information relating to, or observation of, any device or instrument added to or modifying any weighing or measuring instrument or device for the purpose of selling, offering, or exposing for sale, less that the quantity represented of a commodity or calculated to falsify weight or measure, if the person is a service agent.

(k) Violate any other provision of this chapter or of the rules ((~~and/or regulations promulgated~~)) adopted under the provisions of this chapter for which a specific penalty has not been prescribed.

(2) Any person who, by himself or herself, by his or her agent or employee, or as the agent or employee of another person, performs any of the following acts is subject to a civil penalty of no more than five thousand dollars:

(a) Knowingly adds to or modifies any weighing or measuring instrument or device by the addition of a device or instrument that would allow the sale, or the offering or exposure for sale, less than the quantity represented of a commodity or falsification of weight or measure.

(b) Commits as a fourth or subsequent infraction any of the acts listed in subsection (1) of this section.

Sec. 36. RCW 19.94.530 and 1969 c 67 s 53 are each amended to read as follows:

For the purposes of this chapter, proof of the existence of a ((~~weight or measure or a~~)) weighing or measuring instrument or device in or about any building, enclosure, stand, or vehicle in which or from which it is shown that buying or selling is commonly carried on, shall, in the absence of conclusive evidence to the contrary, be presumptive proof of the regular use of such ((~~weight or measure or~~)) weighing or measuring instrument or device for commercial purposes and of such use by the person in charge of such building, enclosure, stand or vehicle.

NEW SECTION. Sec. 37. The following acts or parts of acts are each repealed:

(1) RCW 19.94.020 and 1969 c 67 s 2;

(2) RCW 19.94.030 and 1969 c 67 s 3;

(3) RCW 19.94.040 and 1969 c 67 s 4;

(4) RCW 19.94.050 and 1969 c 67 s 5;

(5) RCW 19.94.060 and 1969 c 67 s 6;

(6) RCW 19.94.070 and 1969 c 67 s 7;

(7) RCW 19.94.080 and 1969 c 67 s 8;

(8) RCW 19.94.090 and 1969 c 67 s 9;

(9) RCW 19.94.100 and 1969 c 67 s 10;

(10) RCW 19.94.110 and 1969 c 67 s 11;

(11) RCW 19.94.120 and 1969 c 67 s 12;

(12) RCW 19.94.130 and 1969 c 67 s 13;

(13) RCW 19.94.140 and 1969 c 67 s 14;

(14) RCW 19.94.170 and 1969 c 67 s 17;

(15) RCW 19.94.180 and 1969 c 67 s 18;

(16) RCW 19.94.200 and 1991 sp.s. c 23 s 7 & 1969 c 67 s 20;

(17) RCW 19.94.210 and 1969 c 67 s 21;

(18) RCW 19.94.215 and 1990 c 27 s 1;

(19) RCW 19.94.270 and 1969 c 67 s 27;

(20) RCW 19.94.290 and 1991 sp.s. c 23 s 12 & 1969 c 67 s 29;

(21) RCW 19.94.300 and 1991 sp.s. c 23 s 13 & 1969 c 67 s 30; and

(22) RCW 19.94.380 and 1969 c 67 s 38.

NEW SECTION. Sec. 38. (1) The office of financial management shall conduct a review of the state's weights and measures program. The review shall include, but not be limited to:

(a) Identification of the benefits of a weights and measures program, taking into account the element of service provided the weighing or measuring instrument or device owners and the element of general consumer protection provided to the consuming public.

(b) A survey of other states regarding methods of funding weights and measures programs, frequency of inspection, program organization, and the types of activities included in weights and measures programs.

(c) Investigation of the potential error rates for different types and classes of weighing or measuring instruments and devices and determination of the appropriate frequency of inspection for those different types and classes of weighing or measuring instruments and devices.

(d) A review of the department of agriculture's current operation of the weights and measures program focusing on whether or not the current program provides at least the minimum services necessary for the efficient operation of commerce, the protection of consumers and the preservation of confidence in products originating in the state of Washington.

(e) Investigation of the practicality and revenue potential of alternative funding and more efficient operational mechanisms.

(f) A study of the potential efficiency of licensing or registering of private service agents to perform official inspection and testing services.

(g) A review of city sealer programs and their relationship to the state weights and measures program.

(2) To perform this review, the office of financial management shall form a special task force on weights and measures which shall contain representation from government and industry. This special task force shall include, but need not be limited to, one person representing each of the following entities: The legislature, the department of agriculture, city sealers, service agents, service stations, grocery stores, retailers, food processors and dealers, oil heat dealers, the agricultural community, and liquid propane dealers. This task force shall act in an advisory capacity and work in cooperation with the office of financial management.

(3) The office of financial management shall provide recommendations in the following areas:

(a) Recommendations on the appropriate funding level and the most efficient organizational form of a weights and measures program sufficient for the efficient operation of commerce and the protection of consumers, including inspection and testing equipment maintenance; and

(b) Other recommendations relevant to review or investigations made pursuant to this section.

(4) The office of financial management shall report preliminary findings and recommendations to the task force established in subsection (2) of this section by February 28, 1993, and shall report final findings and recommendations to the appropriate legislative committees dealing with commerce, trade, agriculture, and revenue matters no later than June 30, 1993.

(5) This section shall expire on January 1, 1994.

NEW SECTION. Sec. 39. (1) The sum of two hundred thousand dollars, or as much thereof as may be necessary, is appropriated for the biennium ending June 30, 1993, from the general fund--state appropriation to the department of agriculture solely for the consumer protection activities of the weights and measures program under chapter 19.94 RCW.

(2) The sum of four hundred fifty thousand dollars, or as much thereof as may be necessary, is appropriated for the biennium ending June 30, 1993, from the weights and measures account to the department of agriculture for the purposes of this act.

(3) The sum of seventy-five thousand dollars, or as much thereof as may be necessary, is appropriated for the biennium ending June 30, 1993, from the general fund--state to the office of financial management to complete the study in section 38 of this act.

NEW SECTION. Sec. 40. Sections 1, 2, 6 through 8, 10 through 12, 19, 23, and 31 of this act are each added to chapter 19.94 RCW.

NEW SECTION. Sec. 41. RCW 19.94.330, as amended by this act, is recodified as RCW 19.94.255.

NEW SECTION. Sec. 42. This act shall take effect July 1, 1992.