Bill Text: MI HB5596 | 2011-2012 | 96th Legislature | Engrossed
Bill Title: Agriculture; weights and measures; uniform standards and regulations; modify. Amends secs. 10a, 10b, 28c, 28d, 29, 31 & 31a of 1964 PA 283 (MCL 290.610a et seq.) & adds sec. 28e. TIE BAR WITH: HB 5595'12
Spectrum: Moderate Partisan Bill (Republican 16-5)
Status: (Passed) 2012-07-18 - Assigned Pa 254'12 With Immediate Effect [HB5596 Detail]
Download: Michigan-2011-HB5596-Engrossed.html
HB-5596, As Passed Senate, June 13, 2012
SUBSTITUTE FOR
HOUSE BILL NO. 5596
A bill to amend 1964 PA 283, entitled
"Weights and measures act,"
by amending sections 10a, 10b, 28c, 28d, 29, 31, and 31a (MCL
290.610a, 290.610b, 290.628c, 290.628d, 290.629, 290.631, and
290.631a), sections 10a and 10b as amended and section 31a as added
by 2002 PA 208, section 28c as amended by 2008 PA 351, section 28d
as added by 2008 PA 345, section 29 as amended by 1986 PA 194, and
section 31 as amended by 2006 PA 125, and by adding section 28e.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 10a. (1) A fee shall not be charged for the regular
inspection of any weights and measures or commodity subject to this
act. A fee shall be charged to the owner or responsible party of
any weights and measures or commodity subject to this act under
either of the following circumstances:
(a) The inspection is a reinspection of any weights and
measures or a lot sample of a commodity subject to this act that
has been tested and found incorrect.
(b) The inspection is performed at the request of the owner or
responsible party.
(2)
The department director shall fix establish the fees and
expenses for special services, including fees for voluntary
registration and type evaluation. Money collected by the department
for
special services, fees, and penalties civil fines shall be paid
into
the general fund and credited to the department of agriculture
for weights and measures programs.
Sec. 10b. (1) The department may annually adjust the schedule
of fees for reinspections, voluntary registrations, type
evaluations, special weights and measures inspections, and other
special services requested of the department to provide that each
category of fee charged is sufficient to cover the cost of the
activities and that the aggregate of fees collected is sufficient
to pay for all salaries and other expenses connected with the
activities described in this subsection.
(2)
An Except as otherwise
provided by law, an owner or
operator of weights and measures that are assessed an
administrative fine, civil fine, or a fee as described in this
section or section 10a, or any combination of administrative fine,
civil fine, or fee, who does not pay the administrative fine, civil
fine, or fee within 60 days after written notice of the assessment
is sent may be subject to a stop use order, issued by the director,
for those weights and measures.
Sec. 28c. (1) Except as otherwise provided for in this
subsection, the method of sale of a commodity sold in Michigan
shall conform to the "uniform regulation for the method of sale of
commodities"
published in the 2002 2012
edition of the NIST
handbook 130, which is incorporated by reference, except as
otherwise provided in this section or where modified by rule.
Section 2.20.1 of the uniform regulation for the method of sale of
commodities
is not adopted. The method of sale for liquefied
petroleum
gas sold in Michigan is excluded from conforming to the
"uniform
regulation for the method of sale of commodities"
published
in the 2002 edition of the NIST handbook 130. The buying
and
selling of liquefied petroleum gas may also
be conducted by the
pound,
gallon, metered cubic foot, or a
flat rate price, with if
the
price rate is clearly published and documented. Upon request by
a
customer, a retailer must disclose the actual pounds, gallons, or
metered
cubic feet included in the flat rate price. and
conspicuously posted for potential customer viewing. The
requirements of this subsection apply only to tanks of 100 pounds
or less.
(2) The packaging and labeling requirements for commodities
sold in Michigan shall conform to the "uniform packaging and
labeling
regulation" published in the 2002 2012 edition of the NIST
handbook 130, which is incorporated by reference, except for
section 13 of that publication or except as otherwise modified by
rule.
(3) A certificate of conformance for a type shall comply with
the requirements of NCWM publication 14, "national type evaluation
House Bill No. 5596 (H-2) as amended May 22, 2012
program technical policy, checklists and test procedures" and the
2002
2012 edition of the NIST handbook 44, "specifications,
tolerances, and other technical requirements for weighing and
measuring devices", which is incorporated by reference.
(4) The determination for a uniform basis conformance for a
type shall comply with NCWM publication 14, "national type
evaluation program technical policy, checklists and test
procedures"
and the 2002 2012 edition of the NIST handbook 44,
"specifications, tolerances, and other technical requirements for
weighing and measuring devices", which is incorporated by
reference.
(5) The specifications, tolerances, and regulations for
commercial weights and measures shall be in compliance with the
standards
contained in the 2002 2012
edition of the NIST handbook
44, which is incorporated by reference.
(6)
Registration for service persons servicepersons and
service agencies and competency tests shall be in compliance with
the
standards contained in the 2002 2012
edition of the NIST
handbook 130, "uniform regulation for the voluntary registration of
service
persons servicepersons and service agencies for commercial
weighing and measuring devices", which is incorporated by
reference, and the 2012 edition of the NIST handbook 44, which is
incorporated by reference.
(7) For purposes of implementing the 2012 edition of the NIST
handbook 44 and the 2012 edition of the NIST handbook 130, "ton"
means a [ ] weight of 2000 pounds avoirdupois [AND "GROSS TON" MEANS A
WEIGHT OF 2240 POUNDS AVOIRDUPOIS].
Sec. 28d. (1) Notwithstanding any requirements adopted under
section 28c, the gross weight of a vehicle shall be determined by
weighing the vehicle in a single measurement for a vehicle that is
not a tractor-trailer combination and not by adding the results of
multiple measurements taken at opposite ends of the vehicle. The
gross weight of any tractor-trailer combination shall be determined
by the method described in subsection (2).
(2) The gross weight combination of a truck tractor with
multiple trailers shall be determined without uncoupling and by
using a method of split weighing and combining the measurements, if
necessary,
under if the following conditions are met:
(a) The brakes on the tractor and trailers shall be released.
(b) There shall be no tension on the draw bar.
(c) The approaches to the scale shall be straight and on the
same level as the scale.
(d) The approaches to the scale shall be of sufficient width
and length to ensure level positioning of the coupled vehicles
during weighing.
(3) A scale used to weigh vehicles under subsection (2) shall
be tested at least annually or upon repair or maintenance of the
weights and measures device, by weighing a coupled tractor with
multiple trailers as a single unit and comparing that weight with
the combined weight of each vehicle weighed separately. If the
weights determined by this method vary by more than 0.2%, the scale
shall not be used to determine the gross weight of vehicles while
they are coupled until the scales are corrected to properly measure
within the 0.2% range. All testing data shall be recorded and the
records retained on site by the owner or operator and made
available to the department for review upon request.
(4) If a scale cannot be used to weigh vehicles under
subsection (2) while they are coupled, the vehicles shall be
weighed individually and the weights totaled to obtain the gross
weight of the vehicle combination.
(5) This section does not apply to the enforcement of vehicle
weight under the Michigan vehicle code, 1949 PA 300, MCL 257.1 to
257.923.
Sec. 28e. Beginning 1 year after the effective date of the
amendatory act that added this section, if motor fuel is sold at a
roadside retail location, the advertising shall comply with all of
the following:
(a) The price advertised shall be clearly and completely
posted in full, including any fractional prices, to the tenth of a
cent.
(b) The price advertised shall include the grade of fuel being
sold, with the following abbreviations allowed:
(i) Regular gasoline: "Regular", "Reg.", or "Reg,".
(ii) Midgrade gasoline: "Midgrade", "Mid.", or "Mid,".
(iii) Premium gasoline: "Premium", "Prem.", or "Prem,".
(iv) Diesel fuel: "Diesel", "Dsl.", or "Dsl,".
(v) Kerosene fuel: "Kerosene", "Ker.", or "Ker,".
(vi) E85 fuel ethanol: "E85".
(c) All prices shall be displayed at the pump, but only the
unit price of the selected product shall be displayed during the
transaction. All indications on the pump display shall calculate
the correct total price of the purchase.
(d) If the advertised price of the motor fuel is subject to 1
or more conditions for sale at that price, the retailer shall post
the conditions immediately next to the sales price with equal
illumination in lettering of the same style and of at least 1/2 the
size that is used to post the sale price.
(e) If the unit price for the same grade of motor fuel
differs, all prices shall be displayed in lettering of the same
style and size.
Sec. 29. (1) Any person who assaults or inflicts a bodily
injury upon, the director, an authorized representative of the
director, the deputy director, any inspector, or a sealer or deputy
sealer
in the performance of his or her official duties shall be
under this act is guilty of a misdemeanor punishable by a fine of
not
more than $5,000.00, $10,000.00
or imprisonment for not more
than 2 years, or both.
(2) Any person who hinders or obstructs in any way the
director, an authorized representative of the director, the deputy
director, any inspector, or a sealer or deputy sealer in the
performance
of his or her official duties shall be under this act
is guilty of a misdemeanor punishable by a fine of not more than
$1,000.00,
$5,000.00 or imprisonment for not more than 1 year, or
both.
Sec. 31. (1) A person who, by himself or herself or by the
person's servant or agent, or as the servant or agent of another
person, engages in any of the following acts is guilty of a
misdemeanor and may be fined not less than $1,000.00 or not more
than
$10,000.00, or imprisoned for plus
the amount of any economic
benefit realized as a result of the violation, or imprisonment for
not more than 1 year, or both:
(a) Use or have in possession for the purpose of using for any
commercial purpose specified in section 10, sell, offer, expose for
sale or hire, or have in possession for the purpose of selling or
hiring, incorrect weights and measures or any device or instrument
used or calculated to falsify any weights and measures.
(b) 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 weights and measures or in the determination of
weights and measures, when a charge is made for the determination,
weights and measures that have not been tested and sealed by the
appropriate authority, unless 1 or more of the following conditions
are met:
(i) A properly executed and completed placed-in-service report
has been delivered to the director as notification that the weights
and measures have been placed in service by a registered
serviceperson.
(ii) Permission to use the weights and measures has been
received from the appropriate authority.
(iii) The weights and measures have been exempted from sealing
or testing requirements by section 10 or by rule of the director
issued
promulgated under section 8.
(c) Dispose of rejected or condemned weights and measures in a
manner contrary to law or rule.
(d) Remove from weights and measures, contrary to law or rule,
a tag, seal, or mark placed on the weights and measures by the
appropriate authority.
(e) Sell, offer, or expose for sale less than the quantity he
or she represents of a commodity, thing, or service.
(f) Take more than the quantity he or she represents of a
commodity, thing, or service when, as buyer, he or she furnishes
the weight of the commodity, thing, or service or the measure of
the commodity, thing, or service by means of which the amount of
the commodity, thing, or service is determined.
(g) Advertise, offer, expose for sale, or sell a commodity,
thing, or service in a condition or manner contrary to law.
(h) Use in retail trade, except in the preparation of packages
put up in advance of sale and of medical prescriptions, weights and
measures that are not so positioned that their indications may be
accurately read and the weighing or measuring operation observed
from some position which may reasonably be occupied by a customer.
(i)
Violate a provision of this act or of the a rule
promulgated under this act for which a specific penalty has not
been prescribed.
(j) Sell, offer, or expose for sale to licensed wholesale
distributors and dealers gasoline or any middle distillate
petroleum product on any basis other than a U.S. gallon of 231
cubic inches or metric equivalent unless freely requested to do so
in writing by a licensed wholesale distributor, dealer, or end user
for an annual period of time or for the length of the contract.
This subdivision does not apply to the sale or offer for sale of
number 4, 5, or 6 petroleum fuels as described as having American
petroleum institute gravity at 60°F of 28 or less, a specific
gravity greater than .8871 and does not apply to the sale or
exchange of gasoline or any middle distillate petroleum product
among petroleum refiners.
(k) Deliver or issue a weight quantity determination or a
measure quantity determination upon which a commercial transaction
is, or is intended to be, computed without the use of weights and
measures.
(l) Fail to pay a fee or fine imposed under this act.
(2) A person who, by himself or herself or by the person's
servant or agent, or as a servant or agent of another person, fails
to disclose to the department any knowledge of information relating
to, or observation of, any device or instrument added to or
modifying any weight or modifying any measure for the purpose of
selling, offering, or exposing for sale less than the quantity
represented of a commodity or calculated to falsify the weight or
measure, if the person is an owner or employee of an entity
involved in the installation, repair, sale, or inspection of
weights and measures, is guilty of a misdemeanor and may be fined
not more than $1,000.00, or imprisoned for not more than 90 days,
or both.
(3) A person who, by himself or herself or by the person's
servant or agent, or as a servant or agent of another person,
performs
any of the following acts is guilty of a felony and may be
fined
punishable by a fine of not less than $1,000.00 $5,000.00 or
not
more than $20,000.00, by a fine of
not more than twice the
amount of any money gained for each day on which a violation has
been
found, by imprisonment for not more than 5 years, or by all
any combination of these penalties:
(a) Adds to or modifies commercial weights and measures 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 the falsification of the weights and
measures.
(b) Intentionally commits any of the acts listed in subsection
(1) or (2).
(c)
Violates a prohibited act as listed in this section within
24 months after 2 previous violations of this section that resulted
in convictions.
(4) When a violation results in a conviction under this act,
the court may assess against the defendant or his or her agent the
costs of investigation and the money shall be paid to the agency
that incurred the expense.
(5) In addition to any other applicable penalties prescribed
in
this act, the department may assess the civil fines described in
this
subsection. An the owner of a motor fuel delivery facility
that has intentionally delivered less fuel to a retail customer
than
indicated by the gas pump metering device is subject to the
following civil fines:
(a)
If the violation is For a first violation, the owner is
responsible
for a civil fine of $5,000.00.
(b)
If the violation is For a second violation, the owner is
responsible
for a civil fine of $10,000.00.
(c)
If the violation is For a third violation or a violation
subsequent
to the third or subsequent violation, the owner is
responsible
for a civil fine of $25,000.00.
(6) The department may close any facility that is responsible
for a violation described in subsection (5) until the owner can
demonstrate to the department that the problem is corrected.
(7) The department shall inspect motor fuel facilities with 3
or more violations under subsection (5) at least annually, and all
inspection costs shall be assessed to the owner of the weights and
measures establishment for a period of not more than 2 years.
(8) Any of the fines described in subsection (5) may be
embodied in a consent order under section 31a.
(9) Any civil fines or recovery of any economic benefits
associated with a violation of this act and collected under this
section shall be paid to the general fund and credited to the
department for the enforcement of this act.
(10)
As used in this section, "intentional" means the presence
of
additional piping, electronic switches, or any other device or
act
that is designed to reduce the volume of motor fuel delivered
as
compared to the stated volume on the gas pump metering device.
Sec. 31a. (1) The director, upon determination that a person
who, by himself or herself, his or her agent or employee, or as the
agent or employee of another, has violated this act or rules
promulgated under this act, may enter into a consent agreement for
the assessment of a civil fine as follows:
(a)
For a first violation, not less than $50.00 $150.00 and
not
more than $1,000.00 $2,500.00
plus the actual cost of the
investigation and the amount of any economic benefit associated
House Bill No. 5596 as amended June 13, 2012
with the violation.
(b) For a second violation within 2 years of the first
violation,
not less than $100.00 $500.00
or not more than $5,000.00
plus actual costs of the investigation and twice the amount of any
economic benefit associated with the violation.
(c) For a third violation within 2 years from the date of the
first violation, not less than $500.00 or not more than $10,000.00
plus actual costs of the investigation and 3 times the amount of
any economic benefit associated with the violation.
(2) If a person alleged to have violated this act or rules
promulgated under this act does not enter into a written consent
agreement as described in subsection (1) within 15 days of the date
of the consent agreement, the director may do either of the
following:
(a) <<Initiate >> a
criminal prosecution.
(b) Commence an administrative hearing conducted pursuant to
the administrative procedures act of 1969, 1969 PA 306, MCL 24.201
to 24.328, in the case of a person holding a registration under
this act, or commence a civil violation proceeding in a court of
competent jurisdiction regarding any other person.
(3) Upon finding a violation of any provision of this act or
rules promulgated under this act as a result of the commencement of
an action under subsection (2)(b), the director shall assess an
administrative fine or a civil fine of not more than $10,000.00
plus
actual costs of the investigation and plus the amount of any
economic benefit associated with the violation as prescribed in
subsection (1).
(4) The decision of the director pursuant to a proceeding
under this section is subject to appropriate judicial review as
provided by law.
(5) The director shall advise the attorney general of the
failure of any person to pay an administrative fine or civil fine
imposed under this section. The attorney general shall bring an
action in a court of competent jurisdiction to recover the fine.
(6) Any civil fines or recovery of any economic benefits
associated
with that are recovered for a violation of this act and
collected under this section shall be paid to the general fund and
credited to the department for the enforcement of this act.
Enacting section 1. This amendatory act does not take effect
unless House Bill No. 5595 of the 96th Legislature is enacted into
law.
