Weights and measures.

WORKING DRAFT

ORIGINAL HOUSE

BILL

NO.
0097

ENROLLED ACT NO. 125, HOUSE OF REPRESENTATIVES

SIXTIETH LEGISLATURE OF THE STATE OF
WYOMING
2009 GENERAL SESSION

AN ACT relating to
weights and measures;
providing definitions; providing for laboratory accreditation or recognition of physical standards;
providing
for modifications to comply with federal standard requirements;
providing exceptions;
establishing labeling requirements;
providing for
field standards; providing for training; providing for fees; modifying requirements on delivery tickets for bulk sales;
providing for rulemaking;
repealing
certain
provision
s
for
fees
;
providing
an
appropriation;
authorizing a full-time position;
and providing for an effective date.

Be It Enacted by the Legislature of the State of
Wyoming
:

Section 1.

W.S. 40
‑
10
‑
117
by creating a new subsection (b), 40
‑
10
‑
11
9,
40
‑
10
‑
120,
40
‑
10
‑
121 by creating new subsections (b) and (c),
40
‑
10
‑
122(a)
(i), (iii) through
(vi)
,
(viii)
(intro), (ix)
through
(xii)
and by creating new paragraphs (xiii) through (x
x
), 40
‑
10
‑
123, 40
‑
10
‑
125(a)(ii)
,
(iii)
and
(b), 40
‑
10
‑
128(a)(iii) through (v) and by creating a new paragraph (vi), 40
‑
10
‑
130, 40
‑
10
‑
131, 40
‑
10
‑
132(a)(i) through (iv), by creating new paragraphs (v) and (vi) and by renumbering (v) as (vii), 40
‑
10
‑
135 and 40
‑
10
‑
136 are amended to read:

40
‑
10
‑
117.

Definitions.

(
b
)

As
used in this chapter:

(i)

"
Accreditation
"
means a formal
recognition
by the
national i
nstitute of
s
ta
ndards and t
echnology, as a laboratory that is competent to carry out specific tests or calibrations or types of tests or calibrations;

(ii)

"
Calibration
"
means a set of operations which establishes, under specified conditions, the relationship between values indicated by a measuring instrument or measuring system or values represented by a material measure, to the corresponding known values of a measurement;

(i
ii
)

"
Commerce
"
means the buying and selling of goods;

(i
v
)

"
Commercial
weighing and measuring e
quipment
"
means weighing and measuring devices commercially used or employed to establish t
he size, quantity, extent, area
or measurements of
goods
purchased, offer
ed
or submitted for sale, hire or award,
or in computing a basic charge or payment for services;

(
v
)

"Condemned for repairs" means a weight or measure found to be incorrect and
which,
following policies set forth by the director, can be repaired. Weights or measures
which are condemned for repair
shall be marked as such and be sealed so that the weight or measure cannot be used and is made inoperable until all app
ropriate repairs are completed;

(v
i)

"Confiscation and seizure" means that an incorrect weight or measure is taken into custody by the department following procedures and policies set forth by the director. Weights or measures which are confiscated shall be marked as such and if possible shall be removed from the premises to the di
rect custody of the department;

(v
ii)

"Correct" as used in connection with weights and measures means conformance to all appli
cable requirements of this act;

(
v
iii
)

"Department" means
the department of agriculture;

(
ix
)

"Director" means the director of the department of agriculture
or his duly authorized representative
;

(x)

"
Field
standard"
means a physical standard that meets specifications and tolerances in
the
National Institute of Standards and Technology Handbook 105-series standards, is traceable to the reference or workin
g standards through comparisons
or using acceptable laboratory procedures
as
adopted by the
National Conference on Weights and Measures and published in the United States Department of Commerce National Institute of Standards and Technology Handbook 143,
"
State Weights and Measures Laboratories Program Handbook
,"
and
is
used in conjunction with commercial w
eighing and measuring equipment.
All field standards may be
defined
by
rule and regulation
and shall be veri
fied upon their initial receipt
and as often thereafter as deemed necessary by the director;

(x
i
)

"International system of units"
means
t
he modernized metric system as established in 1960 by the
g
eneral
c
onference on
w
eights and
m
easures as interpreted or modified for the United States by the
s
ecretary of
c
ommerce;

(xii)

"Mas
s" means the same as "weight";

(xi
i
i)

"Net weight
"

means the weight of a commodity excluding any materials, substances or items not considered to be part of the commodity. Materials, substances or items not considered to be part of the commodity include, but are not limited to, containers, conveyances, bags, wrappers, packaging materials, labels, individual piece coverings, decorative accompaniments and coupons
, except that packaging materials may be considered to be part of services such as shipping
;

(
x
i
v
)

"Package" means any commodity put up or packaged in any manner in advance of sale in units suitable for e
ither wholesale or retail sale;

(x
v
)

"
Physical
standard" means

w
eights and measures that are traceable to the U
nited
S
tates
prototype standards supplied by the
federal g
overnment,
including, but not limited to, standards adopted by the United States
d
epartment of the
i
nterior,
b
ureau of
l
and
m
anagement applicable to onshore oil and gas leases, the United States
f
ederal
e
nergy
r
egulatory
c
ommission, the United States
d
epartment of
t
ransportation, the state of Wyoming public service commission,
or approved as being satisfactory by the
National I
n
stitute of
S
tandards and
T
echnology
. Physical standards
shall be the state reference and working standards f
or
weights

and measures and shall be maintained in such calibration as prescribed by the National Institute of Standards and Technology as demonstrated through laboratory accreditation

or recognition;

(
x
vi)

"Primary standards" means the physical standards of the state that serve as the legal reference from which all other standards and we
ights and measures are derived;

(
x
vii
)

"Random weight package" means a package that is one of a lot, shipment or delivery of packages of the same commodity wi
th no fixed pattern of weights;

(x
vii
i
)

"
Recognition
"
means a formal recognition by the National Institute of Standards and Technology
weights and m
easures
d
ivision that a laboratory has demonstrated the ability to provide traceable measurement results and is competent to carry out specific tests or calibrations or specific types of tests or calibrations;

(x
i
x)

"R
eference
standard"
means
:

(A)

A
standard, generally of the highest metrological quality available at a given location, from which measurements made at that location are derived
;
or

(B)

T
he physical standards of the state that serve as the legal reference from which all other standards for weights and measures within that state are derived
.

(xx
)

"Registered s
ervice

person
"
means an individual
who for hire, award
,
commission
or any other payment of any kind, installs, services, repairs or reconditions a commercial weighing or measuring device, and who is registered with the
d
irector;

(x
x
i
)

"Reject" means a weight or measure found to be incorrect, and following policies set forth by the director may be used until repaired. A weight or measure which is rejected shall be marked as such, and may be used for the period of time specified
pursuant to rule and regulation
;

(x
x
i
i)

"
Sale
from bulk" means
a
sale of commodities
in
wh
ich
the quantity is
determined at the time of sale;

(x
x
i
ii
)

"Secondary standards" means the physical standards that are traceable to the primary standards through comparisons, using acceptable laboratory procedures, and used in the enforcement of weights and
measures laws and regulations;

(xx
i
v
)

"
Standard
p
ackage
"
means a package
that is one of a lot, shipment
or delivery of packages of the same commodity with identical net co
ntents declarations,
such as
, one
(1)
liter
bottles or
twelve
(12)
fluid ounce
cans of carbonated soda
, five hundred
(500)
gram
or
five
(5)
pound
bags of sugar
, one
hundred
(100)

meter
or
three hundred
(300)
foot packages of rope;

(xxv
)

"
Traceability
"
means the
result of a measurement or the value of a standard which can be verified as correct when compared with a national or international standard;

(xxv
i
)

"
Uncertainty
"
means a parameter associated with the result of a measurement that characterizes the dispersion of the values that could reasonably b
e attributed to the measurement;

(xxv
ii
)

"
Verification
"
means the formal evaluation of a standard or device against the specifications and toleran
ces for determining conformance;

(x
x
vii
i)

"Weight" as used in connection with any commodity or service means net weight. When a commodity is sold by drained weight, the
term means net drained weight. When used in this chapter, "weight" and "mass" have the same meaning;

(x
x
i
x
)

"Weight and measure" means weights and measures of every kind, instruments and devices for weighing and measuring, and any appliance
or
accessor
y
associated with such instruments
or devices;

(xx
x
)

"
Working
standard"
means
:

(A)

A
standard that is usual
ly
calibrat
ed against a reference standard
and is used routinely to calibrate or check material measures, measuring instruments or reference materia
ls
;
or

(B)

The
physical standards that are traceable to the reference standards through comparisons, using a
cceptable laboratory procedures
and used in the enforcement of weights and measures laws and regulations
.

(x
xxi
)

"This act
"
or
"
this chapter
" means W.S. 40
‑
10
‑
117 through 40
‑
10
‑
136.

40
‑
10
‑
119.

P
hysical
standards.

Weights and measures that are traceable to the United States prototype standards supplied by the federal government, or approved
as being satisfactory
by the United States Department of Commerce National Institute of Standards and Technology, shall be the state primary standards of weights and measures, and shall be maintained in such calibration as prescribed by the United States Department of Commerce National Institute of Standards and Technology

or demonstrated through laboratory accreditation or recognition
.
All secondary

Field
standards may be prescribed by the director and shall be verified upon their initial receipt, and as
often thereafter as deemed necessary by the director

specified by rule and regulation
.

40
‑
10
‑
120.

Technical
requirements
for weighing and measuring devices
.

(a)

The specifications, tolerances, and other technical requirements for commercial, law enforcement, data gathering and other weighing and measuring devices as adopted by the National Conference on Weights and Measures and published in the United States Department of Commerce National Institute of Standards and Technology Handbook 44, "Specification, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices,"
shall apply to weighing and measuring devices in this state,
unless modified or rejected

and may be amended
by rule or regulation.

(b)

The Uniform Regulation for National Type Evaluation as adopted by the National Conference on Weights and Measures and published in the
United States Department of Commerce
National Institute of Standards and Technology Handbook 130, "Uniform Laws and Regulations,"
are adopted and

shall apply to type evaluation in this state,
unless modified or rejected

and may be amended
by rule or regulation.

40
‑
10
‑
121.

Department of agriculture duties and powers.

(b)

Unless requested by the operator of the weighing or measuring equipment, the department shall have no authority over weights and measures used in activities subject to the authority of the United State
s
department of the interior associated with on shore oil and gas, the United States federal energy regulatory commission, the Wyoming public service commission associated with pipelines and utilities or the Wyoming oil and gas conservation commission.

(c)

Except as otherwise required by law, rule, regulation or third party agreement, t
he department shall have no authority over weights and measures used pursuant to a written agreement between the parties using the weighing device.

40
‑
10
‑
122.

Powers and duties of the director.

(a)

The director shall:

(i)

Maintain traceability of the state standards to the national standards
in the possession of

established by
the United States Department of Commerce National Institute of Standards and Technology

as demonstrated through laboratory recognition or accreditation
;

(iii)

Issue reasonable
rules and

regulations for the enforcement of this act
;
, which regulations shall have the force and effect of law;

(iv)

Grant
any
exemptions from the provisions of this act or any regulations promulgated pursuant thereto when appropriate
to

for
the maintenance of good commercial practices within the state;

(v)

Conduct investigations to ensure compliance with this act

and the
rules and regulations
promulgated pursuant to this act
;

(vi)

Delegate
authority

to appropriate personnel
any of these responsibilities
as required
for
the proper administration
and enforcement

of this act;

(viii)

Inspect and test,
to ascertain if they are correct,

Promulgate
rules and
regulations
regarding inspecting and testing

weights and measures
used

commercially
,

used

to ascertain if they are correct
:

(ix)

Approve for use
,
and
may
mark
, s
uch

weights and measures
as are
found to be correct,
and shall
reject and mark as rejected
,

or
condemn
,

and
mark as condemned
,

and make inoperable
such
weights and measures
as are
found to be incorrect.
Rejected w
eights and measures
that have been rejected
shall be condemned and made inoperable if not corrected within the time specified or if used in a manner not specifically authorized;

(x)

Weigh, measure or inspect packaged commodities kept, offered or exposed for sale, sold or in the process of delivery
,
to determine whether they contain the amounts represented and whether they are kept, offered or exposed for sale in accordance with this act or rules and regulations promulgated pursuant to this act. In carrying out the provisions of this
subsection

paragraph
, the director shall employ recognized sampling procedures
, such as are
designated in

adopted by National Conference on Weights and Measures and published in the
United States Department of Commerce National Institute of Standards and Technology Handbook 133, "Checking the Net Contents of Packaged Goods;"

(xi)

Prescribe, by rule and regulation, the appropriate term
,

or
unit of weight or
unit of

measure to be used,
whenever
he

determines in
the case of a specific commodity
that

an existing practice of declaring the quantity by weight, measure, numerical count
, time
or combination thereof, does not facilitate value comparisons by consumers
,
or
offers an opportunity for

may lead to
consumer confusion;

(xii)

Allow reasonable variations from the stated quantity of contents,
which shall include those caused by
to allow for

loss or gain of moisture during the course of good distribution practice or by unavoidable deviations in good manufacturing practice only after the commodity has entered intrastate commerce
;
.

(
xii
i)

Establish labeling requirements, requirements for the presentation of cost-per-unit information, establish stand
ards of weight, measure, count
and fill for any packaged commodity and establish requirements for open dating information;

(
xi
v)

Verify the field standards for weights and measures used by any jurisdiction or registered service person operating within Wyoming before being put into service, and as often thereafter as deemed necessary by the director, and approve the same when found to be correct;

(xv)

Provide
for registration
o
f persons qualified by training and experience to install, service and repair weighing or measuring devices
;

(
xvi
)

Provide that o
nly persons who are
registered are
authorized to place in service devices which have been rejected or condemned and
repaired or
newly installed devices,
whether
new
or used
, until an official inspection
by an authorized inspector

is
made
;

(xv
i
i)

Provide for the training of weights and measures personnel and establish minimum training and performance requirements,
for
all weights and measures personnel,
including
county, municipal, state or registered servicepersons
;

(x
viii
)

Verify advertised prices, price representations and point-of-sale systems, as necessary to determine:

(
A
)

The accuracy of prices and computations and
proper
use of the equipment
;
and

(B
)

T
he accuracy of prices printed or recalled from a database
in
system
s
utiliz
ing
scanning or coding means in lieu of manual entry
. In carrying out the provisions of this
paragraph
, the director shall:

(
I
)

Employ recognized procedures, as
adopted by the National Conference on Weights and Measures and published
in
the
Untie
d
States
Department

o
f Commerce
National Institute of Standards and Technology Handbook 130,
"
Uniform Laws and Regulations, Examination Pr
ocedures for Price Verification";
and

(
II
)

Conduct
inspections and
investigations to ensure compliance
.

(x
i
x)

Establish fees for testing and inspection
, which may include a
ctual hourly cost plus mileage for any inspections requested other than the routine inspection. The hourly cost shall be as determined by the director and the mileage cost shall be as provided by W
.
S. 9
‑
3
‑
103
;

(xx)

Establish reasonable laboratory fees for testing, inspection and calibration of standards or weight and measuring devices.

40
‑
10
‑
123.

Special enforcement powers.

(a)

When necessary for the enforcement of this act or rules and regulations promulgated pursuant to this act, the director

or his designee
is
:

(i)

Authorized to enter any commercial premises
open to the public

during normal business hours
.
, excep
t that in the event
If

the premises are

not open to the public, he shall
first present his credentials and
obtain consent before making entry,
unless

or
obtain
a search warrant
;
has previo
usly been obtained;

(ii)

Empowered to issue stop
‑
use, hold and removal orders with respect to any weights and measures commercially used
, and stop
‑
sale, hold and removal orders with respect to

or
any packaged commodities or bulk commodities kept, offered or exposed for sale; and

(iii)

Empowered to seize,
for use
as evidence,
without formal warrant,
any incorrect or unapproved weight, measure, package or commodity found to be used, retained, offered or exposed for sale or sold in violation of the provisions of this act or rules and regulations promulgated pursuant to this act
;
.

(iv)

Authorized to report the results of investigations and inspections to the owner or person in charge by hand delivering, mail
ing or sending electronically.

40
‑
10
‑
125.

Misrepresentation of quantity or pricing.

(a)

No person shall:

(ii)

Take more than the represented quantity when
, as buyer,
he furnishes the weight or measure by means of which the quantity is determined; or

(iii)

Represent the quantity in any manner
calculated or
intending

tending
to mislead or
in any way
deceive another person.

(b)

No person shall misrepresent the price of any commodity
or service sold,
offered, exposed or advertised for sale by weight, measure or count, nor represent the price in any matter
calculated
or intending

tending
to mislead or in any way deceive
a

another
person.

40
‑
10
‑
128.

Sale
from bulk.

(a)

Except when the parties agree in advance that a delivery ticket is not required, all bulk sales in which the buyer and seller are not both present to witness the measurement shall be accompanied by a delivery ticket containing the following information:

(iii)

The quantity delivered and the quantity upon which the price is based, if this differs from the delivered quantity
, such as when temperature compensated sales are made
;

(iv)

The identity
of the product

in the most descriptive terms commercially practicable, including any quality representation made in connection with the sale; and

(v)

The count of individually wrapped packages,
if more than one (1)
.
for commodities purchased from bulk, but delivered in packages;

(vi)

The unit price, unless
all parties
agree the unit price is not required
.

40
‑
10
‑
130.

Declarations of unit price on random weight packages.

In addition to the declarations required by W.S.
40
‑
10
‑
128
, any package
being one of

in
a lot containing random weights of the same commodity
, at the time it is offered or exposed for sale at retail,
shall
bear

include
on the outside of the package a plain and conspicuous declaration of the price per pound or kilogram and the total selling price of the package
, at the time it is offered or exposed for sale at retail
.

40
‑
10
‑
131.

Advertising packages for sale.

Whenever a packaged commodity is advertised
in any manner
with the retail price stated, there shall be
closely and conspicuously associated with the retail price

a
conspicuous
declaration of quantity
as is required by
law or rule or regulation
to appear
on the package.

40
‑
10
‑
132.

Prohibited acts.

(a)

No person shall:

(i)

Use or
have in possession for use in commerce

possess
any incorrect weight or measure
for use in commerce
;

(ii)

Sell or offer for sale
for use in commerce
any incorrect weight or measure

fo
r use in commerce
;

(iii)

Remove any tag, seal or mark from any weight or measure
or weighing or measuring device,

without specific written authorization from the proper authority;

(iv)

Hinder or obstruct any weights and measures official in the performance of his duties;

or

(v
)

Use or possess any weight, measure, weighing or measuring device that
for use in commerce
has not been tested and certified as correct by the department
or a registered service person
;

(
v
i)

Place any weight, measure, weighing or measuring device
into commercial service
without having a current certificate of registratio
n as a registered service

person; or

(v)
(vii)

Violate any provision of this act or rules or regulations promulgated under this act.

40
‑
10
‑
135.

Presumptive evidence.

Whenever there shall exist a weight or measure or weighing or measuring device in or about any place in which or from which buying or selling is commonly carried on,
there

shall be
a rebuttable presumption

that
the weight or measure or weighing or measuring device is regularly used
for the business purposes of that place

in commerce
.

40
‑
10
‑
136.

License required; fee.

(a)

Every person who owns or is responsible for
a
weights, measures
weight, measure
, weighing or measuring
device
regulated by this act shall obtain an annual license
for each establishment
on or before April 1 from the department
of agriculture in the amount authorized by W.S. 11
‑
1
‑
104
and pay a fee as provided in this subsection
. The fees collected by the department under this section shall be deposited in the general fund.
Fees shall be set by the department as follows:

(i)

Not less than ten dollars ($10.00) nor more than twenty-five dollars ($25.00) for establishments with no more than five (5) devices;

(ii)

Not less than twenty-five dollars ($25.00) nor more than fifty dollars ($50.00) for establishments with more than
five
(5) and less than eleven (11) devices;

(iii)

Not more than seventy-five dollars ($75.00) for establishments with eleven (11) or more devices.

(b)

The director shall define
premise and inspection
locations, including physical addresses and
circumstances for
special events.

(c)

For purposes of this section, "establishment" means a place of business under one (1) management at one (1) physical location.

Section 2.

W.S.
11
‑
1
‑
104(b)(xiii) and
40
‑
10
‑
117(a)
are
repealed.

Section
3
.

There is
authorized one (1) additional full-time position and
appropriated

one hundred
forty-five
thousand dollars ($
1
45
,000.00
)
from the
general
fund to the
department
of agriculture
.
This appropriation shall be for the period beginning with the effective date of this act and ending June 30, 201
0
.

This appropriation shall only
be expended

to manage the weights and measures program.
Notwithstanding any other provision of law, this appropriation shall not be transferred or expended for any other purpose and any unexpended, unobligated funds remaining from this appropriation shall revert as provided by law on
June 30, 2010
.

Section 4
.

This act is effective July 1, 2009.

(END)

Speaker of the House

President of the Senate

Governor

TIME APPROVED: _________

DATE APPROVED: _________

I hereby certify that this act originated in the House.

Chief Clerk

1