MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Agriculture

By: Representative Holland (By Request)

House Bill 935

AN ACT TO AMEND SECTION 75-27-19, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE STATE DIRECTOR OF WEIGHTS AND MEASURES, WHO IS THE COMMISSIONER OF AGRICULTURE AND COMMERCE, TO SET PERMIT FEES FOR CERTAIN CALIBRATION AND TESTING SERVICES; TO AMEND SECTION 75-27-23, MISSISSIPPI CODE OF 1972, TO REQUIRE MANUFACTURERS AND DISTRIBUTORS OF WEIGHING DEVICES TO OBTAIN CERTIFICATES OF CONFORMANCE FOR THE DEVICES FROM THE NATIONAL TYPE EVALUATION PROGRAM; TO AMEND SECTION 75-27-55, MISSISSIPPI CODE OF 1972, TO REVISE THE PENALTIES FOR HINDERING THE DIRECTOR, THE DEPUTY DIRECTOR OR THE INSPECTORS IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES; TO AMEND SECTION 75-27-57, MISSISSIPPI CODE OF 1972, TO INCREASE FINES ON PERSONS WHO IMPERSONATE THE DIRECTOR, THE DEPUTY DIRECTOR OR THE INSPECTORS; TO AMEND SECTION 75-27-59, MISSISSIPPI CODE OF 1972, TO REVISE PENALTIES FOR CERTAIN VIOLATIONS OF THE WEIGHTS AND MEASURES LAW; TO AMEND SECTION 75-27-67, MISSISSIPPI CODE OF 1972, TO INCREASE LICENSE FEES FOR PERSONS ENGAGING IN THE BUSINESS OF SCALE REPAIRING AND TESTING; AND FOR RELATED PURPOSES. 

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

SECTION 1. Section 75-27-19, Mississippi Code of 1972, is amended as follows:

75-27-19. The director shall have power to prescribe, after public hearing following due public notice, and issue reasonable regulations for the enforcement of this article, which regulations shall have the force and effect of law. These regulations may include (1) standards of net weight, measure, or count, and reasonable standards of fill, for any commodity in package form, (2) 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 inspectors of weights and measures in the discharge of their official duties, and (3) exemptions from the sealing or marking requirements of Section 75-27-31 with respect to weights and measures of such character or size that such sealing or marking would be inappropriate, impracticable, or damaging to the apparatus in question. These regulations shall include specifications, tolerances, and regulations for weights and measures of the character of those specified in Section 75-27-23, designed to eliminate from use, without prejudice to apparatus that conforms as closely as practicable to the official standards, those (1) that are not accurate, (2) 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 (3) that facilitate the perpetration of fraud. The specifications, tolerances, and regulations for commercial weighing and measuring devices, together with amendments thereto, as recommended by the National Bureau of Standards and published in National Bureau of Standards Handbook 44 and supplements thereto, or in any publication revising or superseding Handbook 44, shall be the specifications, tolerances, and regulations for commercial weighing and measuring devices of the State of Mississippi, except insofar as specifically modified, amended, or rejected by a regulation issued by the director. For the purposes of this article, apparatus shall be deemed to be "correct" when it conforms to all applicable requirements promulgated as specified in this section; other apparatus shall be deemed to be "incorrect." The division shall levy no charges or fees for the field tests or inspections made under this article; however, the director shall adopt a schedule of fees for calibration and testing services provided by the State Metrology Laboratory. Fees collected for such calibration and testing shall be deposited in the State Treasury. The director shall require persons installing scales with a weight capacity of ten thousand (10,000) pounds or more to secure a permit for each such scale installed, establish a fee for such permit and require such person to supply the director with scale and scale foundation blueprints and specifications for each installation before installation of the scale. Applications for permit shall be made on forms prescribed and furnished by the director. The director shall establish and adopt scale pit and approach specifications for scales with a capacity of ten thousand (10,000) pounds or more.

SECTION 2. Section 75-27-23, Mississippi Code of 1972, is amended as follows:

75-27-23. When not otherwise provided by law, the director shall have the power to inspect and test, to ascertain if they are correct, all weights and measures kept, offered, or exposed for sale or purchase. It shall be the duty of the director within a twelve-month period, or less frequently if in accordance with a schedule issued by him, and as much oftener as he may deem necessary to inspect and test, to ascertain if they are correct, all weights and measures commercially used (1) in determining the weight, measurement or count of commodities or things sold or purchased, or offered or exposed for sale or purchase, on the basis of weight, measure, or of count, or (2) in computing the basic charge or payment for services rendered on the basis of weight, measure, or of count. Provided, that with respect to single-service devices--that is, devices designed to be used commercially only once and to be then discarded--and with respect to devices uniformly mass-produced, as by means of a mold or die, and not susceptible of individual adjustment, tests may be made on representative samples of such devices; and the lots of which such samples are representative shall be held to be correct or incorrect upon the basis of the results of the inspections and tests on such samples.

The manufacturer or distributor of any weighing device(s) offered for sale, sold, installed for commercial use or used commercially in this state shall subject such device to type evaluation testing by the National Type Evaluation Program (NTEP), National Institute of Standards and Technology (NIST). Any weighing device not covered by a certificate of conformance from such agency shall not be used commercially in this state.

SECTION 3. Section 75-27-55, Mississippi Code of 1972, is amended as follows:

75-27-55. Any person who shall wilfully hinder or obstruct in any way the director, the deputy director, or any one of the inspectors, in the performance of his official duties shall be

deemed guilty of a violation of this chapter and subject to the administrative fine and/or permit or license suspension or revocation provisions of Section 75-27-59.

SECTION 4. Section 75-27-57, Mississippi Code of 1972, is amended as follows:

75-27-57. Any person who shall impersonate in any way the director, the deputy director, or any one of the inspectors, by the use of his seal or a counterfeit of his seal, or in any other manner, shall be guilty of a misdemeanor, and, upon conviction, may be punished by a fine of not less than Two Hundred Dollars ($200.00) nor more than One Thousand Dollars ($1,000.00), or by imprisonment for not more than one (1) year, or by both such fine and imprisonment.

SECTION 5. Section 75-27-59, Mississippi Code of 1972, is amended as follows:

75-27-59. Except as otherwise provided in this chapter, any person who, by himself or by his servant or agent, or as the servant or agent of another person, who is adjudged by the director to be guilty of any one (1) of the acts enumerated in subparagraphs (1) through (9) of this section, may be assessed an administrative fine of not less than Two Hundred Fifty Dollars ($250.00) nor more than Five Hundred Dollars ($500.00). Upon a second or subsequent violation, he shall be punished by a fine of not less than Five Hundred Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00):

(1) Use or have in possession for the purpose of using for any commercial purpose specified in Section 75-27-23, sell, offer, or expose for sale or hire, or have in possession for the purpose of selling or hiring, an incorrect weight or measure of any device or instrument used to or calculated to falsify any weight or measure.

(2) Use or have in possession for the purpose of current use for any commercial purpose specified in Section 75-27-23, a weight or measure that does not bear a seal or mark such as is specified in Section 75-27-31, unless such weight or measure has been exempted from testing by the provisions of Section 75-27-23, or by a regulation of the director issued under the authority of Section 75-27-19.

(3) Dispose of any rejected or condemned weight or measure in a manner contrary to law or regulation.

(4) Remove from a weight or measure, contrary to law or regulation, any tag, seal, or mark placed thereon by the appropriate authority.

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

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

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

(8) 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 which may reasonably be assumed by a customer.

(9) Buying or selling pulpwood by any means other than those prescribed in Section 75-27-39.

(10) Violate any provision of this article or of the regulations promulgated under the provisions of this article for which a specific penalty has not been prescribed.

In addition to or in lieu of such penalties, the director may suspend or revoke any permit or license issued to such person under terms of this chapter. The commissioner shall notify such person of such action in writing delivered by United States Mail. Such person shall have fifteen (15) days after the notice is mailed within which to request in writing a hearing before the commissioner or his designee for the purpose of deciding whether or not the penalty imposed should be allowed to stand. The commissioner shall have the power to issue subpoena to compel the attendance of witnesses or the production of documents or physical evidence, to administer oaths and hear testimony. Each party may cross-examine the other party's witness.

If such person does not deliver the written request for a hearing within such time to the commissioner, the commissioner's original decision shall be final. An appeal, if taken, must be perfected within thirty (30) days after the decision of the commissioner with the circuit court of the county of the residence of the accused. If such person is a nonresident of the State of Mississippi, the case shall be appealed to the Circuit Court of the First Judicial District of Hinds County, Mississippi. If any penalty imposed by the commissioner is not paid within thirty (30) days of becoming final, the commissioner may take such legal action as he deems appropriate to collect such penalty and the court shall award the commissioner reasonable attorney's fees and court costs to collect the penalty. The commissioner may invoke the remedy of injunction to enforce any of the provisions of this chapter. The commissioner may adopt such rules and regulations as may be necessary or desirable to carry out the provisions of this chapter.

SECTION 6. Section 75-27-67, Mississippi Code of 1972, is amended as follows:

75-27-67. Any person engaging in the business of scale repairing or testing shall obtain a license annually from the State Director of Weights and Measures upon showing that he is qualified to repair or test scales and that he meets all requirements of the National Institute of Standards and Technology Handbook 44 and supplements thereto or in any publicaton revising or superseding Handbook 44. The annual cost of such license shall be One Hundred Dollars ($100.00) for scale service-repair companies and Fifty Dollars ($50.00) for scale service repairmen, which shall be collected by the director and paid into the State Treasury, and shall expire on the thirtieth day of June next after its issuance. The director is hereby authorized to revoke any such license for a violation of any of the provisions of this article or any rule or regulation promulgated thereunder. Any person so licensed shall, within three (3) days after he adjusts, repairs, services, restores to service or places in service any scale, make a report thereof to the Director of Weights and Measures on a form provided by the Department of Agriculture and Commerce. Failure to file such report within the prescribed time shall be a misdemeanor and upon order of the director an administrative fine of not less than Fifty Dollars ($50.00) and not more than Five Hundred Dollars ($500.00) may be assessed. Each day in violation shall constitute a separate offense. The date of the postmark shall be adequate proof of the date such report was filed for purposes of assessing penalties provided herein.

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SECTION 7. This act shall take effect and be in force from and after July 1, 1997.