H-1217.1

SUBSTITUTE HOUSE BILL 1298

ByHouse Rural Development, Agriculture, & Natural Resources (originally sponsored by Representatives Pettigrew, Chandler, Blake, Kretz, and Springer; by request of Department of Agriculture)

AN ACT Relating to device registration, civil penalties, and service agent registration for the weights and measures program; amending RCW 19.94.010, 19.94.160, 19.94.175, 19.94.190, 19.94.205, 19.94.216, 19.94.258, 19.94.2582, 19.94.2584, 19.94.325, 19.94.340, 19.94.350, 19.94.410, 19.94.430, 19.94.490, 19.94.500, 19.94.510, 19.94.515, and 19.94.517; repealing RCW 19.94.165 and 19.94.195; prescribing penalties; providing an effective date; and declaring an emergency.

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

Sec. 1. RCW 19.94.010 and 1995 c 355 s 4 are each amended to read as follows:

(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 unless the context clearly requires otherwise.

(a) "City" means a first-class city or a code city, as defined in RCW 35A.01.035, 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 seal or certificate issued by the director or city sealer which indicates that a secondary weights and measures standard or a weighing or measuring instrument or device conforms with the specifications, tolerances, and other technical requirements adopted in RCW ((19.94.195))19.94.190.

(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, tests, 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 RCW ((19.94.195))19.94.190.

(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) "Secondary weights and measures standard" means the physical standards that are traceable to the primary standards through comparisons, 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. 2. RCW 19.94.160 and 1995 c 355 s 5 are each amended to read as follows:

Physical weights and measures standards that ((are in conformity with))conform to 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))are the primary standards for weight and measure, when ((the same shall have been)) certified as such by the national institute of standards and technology or any successor organization((, be the primary standards of weight and measure)). The state weights and measures standards shall be kept in a place designated by the director and shall be maintained in such calibration as prescribed by the national institute of standards and technology or any successor organization.

Sec. 3. RCW 19.94.175 and 2006 c 358 s 2 are each amended to read as follows:

(1) Pursuant to RCW 19.94.015, the following annual registration fees shall be charged for each weighing or measuring instrument or device used for commercial purposes in this state:

(2) With the exception of subsection (3) of this section, no person shall be required to pay more than the annual registration fee for any weighing or measuring instrument or device in any one year.

(3) The department or a city sealer may establish reasonable inspection and testing fees for each type or class of weighing or measuring instrument or device specially requested to be inspected or tested by the device owner. These inspection and testing fees shall be limited to those amounts necessary for the department or city sealer to cover the direct costs associated with such inspection and testing. The fees shall not be set so as to compete with service agents normally engaged in such services.

Sec. 4. RCW 19.94.190 and 1995 c 355 s 9 are each amended to read as follows:

(1) The director and duly appointed city sealers ((shall))must enforce the provisions of this chapter.

(4) The director ((shall))must adopt rules for enforcing and carrying out the purposes of this chapter including but not limited to the following:

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

(b) The establishment of technical ((and reporting))test procedures to be followed, 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 as required by this chapter;

(c) The establishment of technical test procedures, reporting procedures, and any necessary record and reporting forms to be used by service agents when testing and inspecting instruments or devices under RCW 19.94.255(3) or when otherwise installing, repairing, inspecting, or standardizing the graduations of any weighing or measuring instruments or devices;

(d) The establishment of exemptions from the marking or tagging requirements of RCW 19.94.250 with respect to weighing or measuring instruments or devices of such a character or size that ((such))the marking or tagging would be inappropriate, impracticable, or damaging to the apparatus in question;

(e) The establishment of exemptions from the inspection and testing requirements of RCW 19.94.163 with respect to classes of weighing or measuring instruments or devices found to be of such a character that periodic inspection and testing is unnecessary to ensure continued accuracy;

(f) 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; ((and))

(g) The establishment of inspection and testing procedures to be used for classes of weighing or measuring instruments or devices found to be few in number, highly complex, and of such character that differential or special inspection and testing is necessary, including railroad track scales. The department's procedures shall include requirements for the provision, maintenance, and transport of any weight or measure necessary for the inspection and testing at no expense to the state;

(i) Packaging, labeling, and method of sale of commodities that must be consistent with the most recent edition of the national institute of standards and technology handbook 44 and 130 (for legal metrology and engine fuel quality) except where modified to achieve state objectives.

(((2) These))(5) Rules ((shall))adopted under this section must also include specifications and tolerances for the acceptable range of accuracy required of weighing or measuring instruments or devices and ((shall))must be designed to eliminate from use, without prejudice to weighing or measuring instruments or devices that conform as closely as practicable to official specifications and tolerances, those that: (a) ((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 (b) ((that)) facilitate the perpetration of fraud.

Sec. 5. RCW 19.94.205 and 1992 c 237 s 11 are each amended to read as follows:

All weighing or measuring instruments or devices used for commercial purposes within this state must be correct. For the purposes of this chapter, weighing or measuring instruments or devices and weights and measures standards ((shall be))are deemed to be "correct" when they conform to all applicable requirements of this chapter ((or))and 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))are deemed to be "incorrect."

Sec. 6. RCW 19.94.216 and 1995 c 355 s 10 are each amended to read as follows:

The department ((shall:

))must biennially inspect and test the secondary weights and measures standards of any city ((for which the appointment of))having a city sealer ((is provided by))appointed under this chapter and ((shall))must issue an official seal of approval for the same when found to be correct. The department ((shall))must, by rule, establish a reasonable fee for this and any other inspection and testing services performed by the department's metrology laboratory. ((Each such fee shall recover at least seventy-five percent of the laboratory's costs incurred in performing the service governed by the fee on or before June 30, 1998. The fees established under this subsection may be increased in excess of the fiscal growth factor as provided in RCW 43.135.055 for the fiscal year ending 1996, 1997, and 1998. For fiscal year 1999 and thereafter, the fees established under this subsection may not be increased by an amount greater than the fiscal growth factor as provided in RCW 43.135.055.

))

Sec. 7. RCW 19.94.258 and 2000 c 171 s 61 are each amended to read as follows:

(1) Except as authorized by the department, a service agent ((who intends to provide the examination that permits))must be certified by the department before providing services to place a weighing or measuring instrument or device to be placed ((back)) into commercial ((service))use under RCW 19.94.255(3) ((shall receive an official registration certificate from the director prior to performing such a service)). This registration requirement does not apply to the department or a city sealer.

(2) Except as provided in RCW 19.94.2584, a service agent registration certificate is valid for one year unless the department specifies a longer period by rule. ((It))The certificate may be renewed by submitting a ((request for)) renewal application to the department.

Sec. 8. RCW 19.94.2582 and 2013 c 144 s 35 are each amended to read as follows:

(1) Each request for ((an))a renewal or new official registration certificate must be in writing((, under oath,)) and on a form prescribed by the department and must contain any relevant information as the director may require, including but not limited to the following:

(a) The name and address of the person, corporation, partnership, or sole proprietorship requesting registration;

(b) The names and addresses of all ((individuals))persons requesting an official registration certificate from the department; and

(c) The tax registration number as required under RCW 82.32.030 or unified business identifier provided on a business license issued under RCW 19.02.070.

(2) The department may require persons registering as service agents to attain a satisfactory score on competency examinations administered or approved for use by the department. The director may adopt rules for administering and conducting the examination, including adoption of any examination fees necessary to cover the costs for preparing for and administering the examination. Examination fees are in addition to the application fee under subsection (3) of this section.

(3) Each ((individual when))person submitting a ((request))new or renewal application for an official registration certificate ((or a renewal of such a certificate)) must pay a fee to the department in the amount of one hundred ((sixty))eighty dollars per ((individual))person per year for the duration of the certificate.

(((3)))(4) Renewal applicants filing after a certification expiration date must pay an additional fee equal to twenty percent of the renewal fee unless the applicant submits a declaration or affidavit stating that the applicant has not acted as a service agent following the expiration of the certification.

(6) The department must issue a decision ((on a request for an official registration certificate)) within twenty days of receipt of ((the request))a new or renewal application. If ((an individual is denied their request for an official registration certificate, the department must notify that individual in writing stating))denying an application, the department must state the reasons for the denial ((and must refund any payments made by that individual in connection with the request))in a written notice to the applicant.

Sec. 9. RCW 19.94.2584 and 2000 c 171 s 62 are each amended to read as follows:

(1) The department ((shall have the power to))may revoke, suspend, or refuse to renew the official registration certificate of any service agent for any of the following reasons:

(a) Fraud or deceit in obtaining an official registration certificate under this chapter;

(b) A finding by the department of a pattern of intentional fraudulent or negligent activities in the installation, inspection, testing, checking, adjusting, or systematically standardizing and approving the graduations of any weighing or measuring instrument or device;

(c) Knowingly placing back into commercial service any weighing or measuring instrument or device that is incorrect;

(d) A violation of any provision of this chapter; or

(e) Conviction of a crime or an act constituting a crime under the laws of this state, the laws of another state, or federal law.

(2) ((Upon the department's revocation of, suspension of, or refusal to renew an official registration certificate, an individual shall have the right to appeal this decision in accordance with the administrative procedure act, chapter 34.05 RCW))A service agent may appeal the department's decision to revoke, suspend, or refuse to renew the service agent's registration.

Sec. 10. RCW 19.94.325 and 1992 c 237 s 23 are each amended to read as follows:

(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 to install, inspect, adjust, repair, or recondition any weighing or measuring instrument or device. Any service agent who violates this section is subject to a civil penalty ((of no more than five hundred dollars))to be assessed by the director ranging up to one thousand dollars per occurrence.

Sec. 11. RCW 19.94.340 and 1992 c 237 s 24 are each amended to read as follows:

(1) Except as provided in subsection (2) of this section, commodities in liquid form ((shall))must 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.

(2) Liquid commodities may be sold by weight and commodities not in liquid form may be sold by count only if such methods provide accurate information as to the quantity of commodity sold.

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

(a) Commodities ((that are)) sold for immediate consumption on the premises where sold;

(b) Vegetables when sold by the head or bunch;

(c) Commodities in containers standardized by a law of this state or by federal law;

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

(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

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

(4) When adopting rules under RCW 19.94.190, 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))provide accurate ((and informative))information to all interested parties.

Sec. 12. RCW 19.94.350 and 1992 c 237 s 25 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))must bear on the outside of the package such definite, plain, and conspicuous declaration of:

(a) The identity of the commodity contained within the package unless the same can easily be identified through the package;

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

(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.

(2) ((In connection with the declaration))The declaration of weight, measure, or count required under subsection (1)(b) of this section, ((neither))must not include or be associated with the qualifying term "when packed," ((or)) any words of similar import, ((nor))or 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)).

(3) With respect to the declaration of weight, measure, or count required under subsection (1)(b) of this section, the director ((shall))may 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; and (d) methods for checking the net contents of packaged goods.

Sec. 13. RCW 19.94.410 and 1995 c 355 s 19 are each amended to read as follows:

Butter, oleomargarine, and margarine ((shall be)) offered ((and exposed)) for sale ((and))must be sold by weight.

Sec. 14. RCW 19.94.430 and 1969 c 67 s 43 are each amended to read as follows:

When in package form and when packed, kept, offered, exposed for sale or sold, flour such as, but not limited to, wheat flour, whole wheat flour, graham flour, self-rising wheat flour, phosphated wheat flour, bromated flour, enriched flour, enriched self-rising flour, enriched bromated flour, corn flour, corn meal, and hominy grits ((shall be packaged only in units of five, ten, twenty-five, fifty and one hundred pounds avoirdupois weight: PROVIDED, That packages in units of less than five pounds or more than one hundred pounds shall be permitted))must be sold by weight.

Sec. 15. RCW 19.94.490 and 1992 c 237 s 32 are each amended to read as follows:

Any person who ((shall)) hinders or obstructs in any way the director or a city sealer in the performance of ((his or her)) official duties under this chapter is subject to a civil penalty ((of no more than))up to five ((hundred))thousand dollars.

Sec. 16. RCW 19.94.500 and 1992 c 237 s 33 are each amended to read as follows:

Any person who ((shall)) impersonates in any way the director or a city sealer, by using an official seal of approval without specific authorization to do so or by using a counterfeit seal of approval, or in any other manner, is subject to a civil penalty of no more than ((one))five thousand dollars per occurrence.

Sec. 17. RCW 19.94.510 and 1995 c 355 s 21 are each amended to read as follows:

(1) The acts or omissions under this section are violations of this chapter.

(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 one of the acts enumerated in (a) through (l) of this subsection is subject to a civil penalty of no more than ((one))five thousand dollars per violation per occurrence:

(a) Use or have in possession for the purpose of using for any commercial purpose 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 weighing or measuring instrument or device or any weighing or measuring instrument or device calculated to falsify any weight or measure.

(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, measurement, or count, or in the determination of weight, measurement or count, when a charge is made for such determination, any incorrect weighing or measuring instrument or device.

(c) Dispose of any rejected weighing or measuring instrument or device in a manner contrary to law or rule.

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

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

(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, measure, or count by means of which the amount of the commodity, thing or service is determined.

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

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

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

(j) Find a weighing or measuring instrument or device to be correct under RCW 19.94.255 when the person knows the instrument or device is incorrect.

(k) 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 than the quantity represented of a commodity or calculated to falsify weight or measure, if the person is a service agent.

(l) Violate any other provision of this chapter or of the rules adopted under the provisions of this chapter for which a specific penalty has not been prescribed.

(((2)))(3) Any person who, by himself or herself, by his or her agent or employee, or as the agent or employee of another person, violates RCW 19.94.390 as determined by the examination procedure adopted by or under RCW 19.94.390(2) is subject to a civil penalty of ((not))no more than ((one))two thousand dollars per violation per occurrence.

(((3)))(4) 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))ten thousand dollars per violation per occurrence:

(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, of less than the quantity represented of a commodity or falsification of weight or measure.

(b) Commits as a fourth or subsequent ((infraction))violation any of the acts listed in subsection (((1) or)) (2) or (3) of this section.

Sec. 18. RCW 19.94.515 and 1995 c 355 s 22 are each amended to read as follows:

A person who owns or uses a weighing or measuring instrument or device and uses or permits the use of the instrument for commercial purposes in violation of RCW 19.94.015 is subject to a civil penalty of ((fifty))one hundred dollars for each such instrument or device used or permitted to be used in violation of RCW 19.94.015.

Sec. 19. RCW 19.94.517 and 1995 c 355 s 23 are each amended to read as follows:

(1) Whenever the department or a city sealer tests or inspects a weighing or measuring instrument or device and finds the instrument or device to be incorrect to the economic benefit of the owner/operator of the weighing or measuring instrument or device and to the economic detriment of the customer, the owner of the weighing or measuring instrument or device ((may be))is subject to the following civil penalties:

(2) For the purposes of this section:

(a) The following are small weighing or measuring instruments or devices: Scales of zero to four hundred pounds capacity, liquid fuel metering devices with flows of not more than twenty gallons per minute, liquid petroleum gas meters with one inch in diameter or smaller dispensers, fabric meters, cordage meters, and taxi meters.

(b) The following are medium weighing or measuring instruments or devices: Scales of four hundred one to five thousand pounds capacity, liquid fuel metering devices with flows of more than twenty but not more than one hundred fifty gallons per minute, and mass flow meters.

(c) The following are large weighing or measuring instruments or devices: Liquid petroleum gas meters with greater than one inch diameter dispensers, liquid fuel metering devices with flows over one hundred fifty gallons per minute, and scales of more than five thousand pounds capacity and scales of more than five thousand pounds capacity with supplemental devices.

(3) ((The director or a city sealer shall issue the appropriate civil penalty concurrently with the conclusion of the test or inspection.

)) The weighing or measuring instrument or device owner ((shall have the right to))may appeal the civil penalty ((in accordance with the administrative procedure act, chapter 34.05 RCW)).

(1) RCW 19.94.165 (Commercial instruments or devices to be correct) and 1995 c 355 s 6 & 1992 c 237 s 6; and

(2) RCW 19.94.195 (Specifications, tolerances, technical requirements—Adoption—Hearing—Notice) and 1992 c 237 s 10.

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