HOUSE BILL NO. 31

INTRODUCED BY PECK R

BY REQUEST OF THE DEPARTMENT OF COMMERCE

A BILL FOR AN ACT ENTITLED: "AN ACT AUTHORIZING THE WEIGHTS AND MEASURES DIVISION OF THE DEPARTMENT OF COMMERCE TO ADOPT RULES REGULATING POINT-OF-SALE DEVICES AND IMPOSING CIVIL PENALTIES FOR CERTAIN VIOLATIONS PERTAINING TO THE OPERATION OF WEIGHING AND MEASURING DEVICES AND VIOLATIONS PERTAINING TO THE MANUFACTURE AND DISTRIBUTION OF PETROLEUM PRODUCTS; AND AMENDING SECTIONS 30-12-101, 30-12-201, 30-12-202, 30-12-504, 82-15-102, AND 82-15-111, MCA."

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

Section 1. Section 30-12-101, MCA, is amended to read:

"30-12-101. Definitions. Unless the context requires otherwise, in parts 1 through 5 of this chapter the following definitions apply:

(1) "Barrel", when used in connection with fermented liquor, means a unit of 31 gallons.

(2) "Commerce", "trade", or "commercial" means a monetary or value exchange between parties for merchandise or services.

(3) "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 any auxiliary shipping container enclosing packages that individually conform to the requirements of parts 1 through 5. An individual item or lot of any commodity not in package form as defined in this section, but on which there is marked a selling price based on an established price per unit of weight or of measure, is a commodity in package form.

(4) "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 individuals or use by individuals for the purposes of personal care or in the performance of services ordinarily rendered in or about the household or in connection with personal possessions.

(5) "Cord", when used in connection with wood intended for fuel purposes, means the amount of wood that is contained in a space of 128 cubic feet when the wood is ranked and well stowed.

(6) "Department" means the department of commerce provided for in Title 2, chapter 15, part 18.

(7) "Intrastate commerce" means any commerce or trade that is begun, carried on, and completed wholly in this state, and the phrase "introduced into intrastate commerce" defines the time and place at which the first sale and delivery of a commodity is made in this state, the delivery being made either directly to the purchaser or to a common carrier for shipment to the purchaser.

(8) "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.

(9) "Person" includes individuals, partnerships, corporations, companies, societies, and associations.

(10) "Sell" and "sale" include but are not limited to barter and exchange.

(11) "Ton" means a unit of 2,000 pounds avoirdupois weight.

(12) "Weight", when used in connection with any commodity, means net weight.

(13) (a) "Weight", "measure", and "weights and measures" mean all weights and measures of every kind, instruments and devices for weighing and measuring, and any appliances and accessories associated with those instruments and devices. The terms include any device used to verify prices, including but not limited to systems using scanning or coding in conjunction with a database in lieu of manual entry as a means to determine price.

(b) The terms do not include meters for the measurement of electricity, gas (natural or manufactured), or water when the meters are operated in a public utility system. The provisions of parts 1 through 5 do not apply to electricity, gas, or water meters operated in a public utility system or to any appliances or accessories associated with the meters. The terms do not include time measuring devices by which products or services are sold."

Section 2. Section 30-12-201, MCA, is amended to read:

"30-12-201. General powers and duties of department. The department has the custody of the state standards of weight and measure and of the other standards and equipment provided for by parts 1 through 5 and shall keep accurate records of the state standards of weight and measure and of the other standards and equipment. The department shall enforce the provisions of parts 1 through 5, including the imposition of civil penalties as provided in part 5. The department shall supervise the weights and measures used in commerce or trade that are offered for sale, sold, or in use in this state."

Section 3. Section 30-12-202, MCA, is amended to read:

"30-12-202. Specific powers and duties of department -- rules. (1) The department shall adopt from time to time reasonable rules for the enforcement of parts 1 through 5 . These rules may include:

(a) schedules of fees for testing and certification;

(b) standards of net weight, measure, or count and reasonable standards of fill for any commodity in package form;

(c) rules governing the technical and reporting procedures to be followed and the report and record forms and marks of approval and rejection to be used by the department in the discharge of its official duties;

(d) exemptions from the sealing or marking requirements of 30-12-209 with respect to weights and measures of a character or size that sealing or marking would be inappropriate, impracticable, or damaging to the apparatus involved;

(e) rules governing the voluntary registration of service personnel and service agencies; and

(f) rules pertaining to devices used for pricing goods sold, including rules to determine the accuracy of prices and computations, the correct use of the devices, and if the devices use scanning or coding means in lieu of manual entry, the accuracy of prices printed or recalled from a database.

(2) These rules must include specifications, tolerances, and other technical requirements for weights and measures subject to inspection and testing under 30-12-205, designed to eliminate from use, without prejudice to an apparatus that conforms as closely as practicable to the official standards, those:

(a) that are not accurate;

(b) that are not reasonably permanent in their adjustment or will not repeat their indications correctly; or

(c) that facilitate the perpetration of fraud.

(3) The specifications, tolerances, and other technical requirements for commercial weighing and measuring devices, together with amendments , as recommended by the national institute of standards and technology and published in national institute of standards and technology Handbook 44 and its supplements or in any publication revising or superseding Handbook 44 are the specifications, tolerances, and other technical requirements for commercial weighing and measuring devices of this state, except insofar as specifically modified, amended, or rejected by a rule issued by the department.

(4) An apparatus is considered to be "correct" when it conforms to all applicable requirements adopted as specified in this section. Other apparatus are considered to be "incorrect"."

Section 4. Section 30-12-504, MCA, is amended to read:

"30-12-504. Offenses and penalties. (1) A person may not:

(a) use or possess for the purpose of using for a commercial purpose specified in 30-12-205, sell, offer or expose for sale or hire, or possess for the purpose of selling or hiring an incorrect weight or measure or any device or instrument used to or calculated to falsify any weight or measure;

(b) use or possess for the purpose of current use for a commercial purpose specified in 30-12-205 a weight or measure that does not bear a seal or mark specified in 30-12-209, unless that weight or measure has been exempted from testing by 30-12-205 or by a rule of the department issued under 30-12-202 or unless the device has been placed in service as provided by a rule of the department issued under 30-12-202. A person using weighing or measuring devices subject to parts 1 through 5 shall report to the department, in writing, the number and location of the weighing or measuring device and shall promptly report the installation of any new weighing or measuring device.

(c) dispose of a rejected or condemned weight or measure in a manner contrary to law or rule;

(d) remove from a weight or measure, contrary to law or rule, any tag, seal, or mark placed on it by the appropriate authority;

(e) sell or offer or expose for sale less than the quantity that the person represents of a commodity, thing, or service;

(f) take more than the quantity that the person represents of a commodity, thing, or service when, as buyer, the person furnishes the weight or measure by means of which the amount of the commodity, thing, or service is determined;

(g) keep for the purpose of sale, advertise or offer or expose for sale, or sell a commodity, thing, or service 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 weight or measure that is not so positioned that its indications may be accurately read and the weighing or measuring operation observed from some position that may reasonably be assumed by a customer;

(i) violate a provision of parts 1 through 5 or of the rules adopted under parts 1 through 5 for which a specific penalty is not prescribed.

(2) In addition to the criminal penalty provided for in subsection (4), a person who violates this section or who knowingly allows an employee or agent to violate this section may be assessed a civil penalty by the department in an amount of:

(a) not less than $50 or more than $500 for a first violation;

(b) not less than $250 or more than $1,000 for a second violation committed within 1 year of the date of the first violation; and

(c) not less than $500 or more than $5,000 for a third violation committed within 2 years of the date of the first violation.

(3) A person subject to a civil penalty under this section has the right to request an administrative hearing, subject to the provisions of the Montana Administrative Procedure Act, within 10 days of receiving a notice of penalty from the department.

(4) A person who violates this section or who knowingly allows an employee or agent to violate this section is guilty of a misdemeanor and upon a first conviction shall be fined not less than $20 or more than $200 or imprisoned for not more than 3 months or both fined and imprisoned. Upon a second or subsequent conviction, the person shall be fined not less than $50 or more than $500 or imprisoned for not more than 1 year or both fined and imprisoned."

Section 5. Section 82-15-102, MCA, is amended to read:

"82-15-102. Enforcement of part -- rules. This part must be enforced by the department. The department may adopt necessary and reasonable rules for the implementation of the provisions and intent of this part, including the imposition of civil penalties for violations of this part ."

Section 6. Section 82-15-111, MCA, is amended to read:

"82-15-111. Penalty for violations. (1) A person who violates this part or who knowingly allows an employee or agent to violate this part may be assessed a civil penalty by the department in an amount of:

(a) not less than $50 or more than $500 for a first violation;

(b) not less than $250 or more than $1,000 for a second violation committed within 1 year of the date of the first violation; and

(c) not less than $500 or more than $5,000 for a third violation committed within 2 years of the date of the first violation.

(2) A person subject to a civil penalty under this section has the right to request an administrative hearing, subject to the provisions of the Montana Administrative Procedure Act, within 10 days of receiving a notice of penalty from the department.

(3) In addition to the civil penalty provided for in subsection (1), a person who violates any of the provisions of this part or any rule promulgated by the department is guilty of a misdemeanor and upon conviction shall for the first offense be punished by a fine of not less than $10 or more than $1,000 and shall be punished for any subsequent offense by a fine of not less than $50 or more than $5,000, by imprisonment in the county jail for a term not exceeding 1 year, or by both fine and imprisonment."

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