An Act concerning the quality and quantity of petroleum products; amending K.S.A. 55- 422, 55-423, 55-426, 55-427, 55-434, 55-436, 55-437, 55-438, 55-439, 55-440, 55-441, 55-442, 55-443, 83-401 and 83-410 and K.S.A. 1995 Supp. 83-402, 83-404, 83-405, 83- 407 and 83-409 and repealing the existing sections; also repealing K.S.A. 55-446 and 83-406.

Be it enacted by the Legislature of the State of Kansas:

New Section 1. Except as provided in K.S.A. 83-401 through 83-410, and amendments thereto, nothing in article 4 of chapter 55 of the Kansas Statutes Annotated, and amendments thereto, shall prohibit the owner of a dispensing device or the owner's employee or agent, from servicing or repairing such device. However, if such device is found out of tolerance and is rejected by the state department of agriculture, the owner is re- sponsible for repairing the device within the time specified on the rejec- tion tag and notifying the department when the device is repaired and in operation. The owner shall pay a fee commensurate with the expense incurred by the secretary in performing the follow-up inspection or test.

New Sec. 2. (a) In addition to any other penalty provided by law, any person who violates any provision of chapter 83 of the Kansas Statutes Annotated, and amendments thereto, or any rules and regulations adopted thereunder, may incur a civil penalty imposed under subsection (b) in the amount, fixed by rules and regulations of the secretary of ag- riculture, of not less than $100 nor more than $5,000 for each such vio- lation and, in the case of a continuing violation, every day such violation continues shall be deemed a separate violation.

(b) In determining the amount of the civil penalty, the following shall be taken into consideration: (1) The extent of harm caused by the viola- tion; (2) the nature and persistence of the violation; (3) the length of time over which the violation occurs; (4) any corrective actions taken; and (5) any and all relevant circumstances.

(c) All civil penalties assessed shall be due and payable within 10 days after written notice of assessment is served on the person, unless a longer period of time is granted by the secretary. If a civil penalty is not paid within the applicable time period, the secretary may file a certified copy of the notice of assessment with the clerk of the district court in the county where the weighing and measuring device or dispensing device is located. The notice of assessment shall be enforced in the same manner as a judgment of the district court.

(d) No civil penalty shall be imposed pursuant to this section except upon the written order of the duly authorized agent of the secretary to the person who committed the violation or to the person whose agent or employee committed the violation. Such order shall state the violation, the penalty to be imposed and the right of the person to appeal to the secretary. Any such person, within 20 days after notification, may make written request to the secretary for a hearing in accordance with the provisions of the Kansas administrative procedure act. The secretary shall affirm, reverse or modify the order and shall specify the reasons therefor.

(e) Any person aggrieved by an order of the secretary made under this section may appeal such order to the district court in the manner provided by the act for judicial review and civil enforcement of agency actions.

(f) An appeal to the district court or to an appellate court shall not stay the payment of the civil penalty.

(g) Any civil penalty recovered pursuant to the provisions of this sec- tion or recovered under the consumer protection act for violations of any provision of K.S.A. 83-219, and amendments thereto, shall be remitted to the state treasurer, deposited in the state treasury and credited to the weights and measures fee fund.

Sec. 3. K.S.A. 55-422 is hereby amended to read as follows: 55-422. This act K.S.A. 55-422 through 55-445, and amendments thereto, may be cited as the petroleum products inspection law. As used in this act the petroleum products inspection law:

(a) ``Director'' means the director of taxation of the Kansas depart- ment of revenue, or the director's duly authorized deputy, agent, or rep- resentative.

(b) ``Secretary'' means the secretary of the state board of agriculture or the secretary's designee authorized representative.

(c) ``Person'' means an individual, firm, association, organization, partnership, business trust, joint stock company, company, corporation, or other legal entity.

(d) ``Motor fuel'' means any refined or blended motor fuel products, including gasoline, diesel fuel, aviation fuel, oxygenated fuel, or any other fuel used for generation of power in an internal combustion engine as specified by the secretary by rules and regulations adopted under this act the petroleum products inspection law.

(e) ``Petroleum product'' includes gasoline, kerosene, motor-fuels and such other products as defined by rules and regulations adopted pursuant to this act the petroleum products inspection law.

(f) ``Board'' means the state board of agriculture.

(g) (f) The terms ``manufacturer'', ``distributor'' and ``importer'' shall have the meanings ascribed to them in the motor-fuel tax law.

Sec. 4. K.S.A. 55-423 is hereby amended to read as follows: 55-423. No person shall sell, offer for sale, have in such person's possession, use or deliver any petroleum products for consumption or use for illuminat- ing, heating or power purposes in this state until the same meets the standards or characteristics for those products as established pursuant to rules and regulations adopted by the board secretary.

Sec. 5. K.S.A. 55-426 is hereby amended to read as follows: 55-426. The director of taxation is entitled to demand and receive from the man- ufacturer, importer, exporter or distributor first selling, offering for sale, using or delivering gasoline, other motor-vehicle fuels, or kerosene within this state or diesel including government sales, the sum of $.01 $.015 per barrel (50 gallons to be considered and counted as a barrel). When it appears to the director of taxation and the governor that such charge of $.01 per barrel creates a fund more than sufficient to pay the actual and necessary expenses of inspection of petroleum products as required by law, then the director of taxation and the governor shall fix fees in an amount less than $.01 per barrel, which shall be sufficient to pay the inspection expenses and costs incurred by the secretary.

Sec. 6. K.S.A. 55-427 is hereby amended to read as follows: 55-427. (a) Every manufacturer, importer, or distributor of any of the above- named petroleum products subject to inspection and liable for the pay- ment of fees as provided in this act the petroleum products inspection law, shall report in full and detail before the 25th day of every month at the office of the director of taxation, on blanks prepared, furnished and approved by the director of taxation, the quantity of each of the above- named petroleum products sold in the state of Kansas during the pre- ceding calendar month, and shall, at the time of forwarding such report, compute and pay to the director of taxation at the director's office, the amount of fees due the state on all petroleum products subject to in- spection during the preceding month.

(b) All fees imposed under the provisions of this act the petroleum products inspection law and not paid on or before the 25th day of the month succeeding the calendar month in which such petroleum products were sold or offered for sale shall be deemed delinquent and shall bear interest at the rate of 1% a month, or fraction thereof, from such due date until paid. In addition, there is hereby imposed upon all amounts of such fees remaining due and unpaid after such due date a penalty in the amount of 5%. Such penalty shall be added to and collected as part of the fees by the director of taxation. The fees, including penalty and in- terest shall be paid by the director of taxation daily to the state treasurer, and the state treasurer shall credit the same to the state general fund in accordance with subsections (c) and (d).

(c) There is hereby created in the state treasury the petroleum in- spection fee fund which shall be administered by the secretary of agri- culture. All moneys credited to the petroleum inspection fee fund shall be used for the expenses incurred for the performance of the duties and functions of the secretary of agriculture and the Kansas department of agriculture prescribed by K.S.A. 55-422 through 55-446, and amendments thereto, and section 2, and amendments thereto or any rules and regu- lations adopted thereunder, relating to the regulation of the quality of petroleum products, and for the expenses incurred for the performance of the duties and functions of the secretary of agriculture and the Kansas department of agriculture prescribed by K.S.A. 83-401 through 83-410, and amendments thereto or any rules and regulations adopted thereun- der, and section 2, and amendments thereto or any rules and regulations adopted thereunder, relating to the regulation of motor fuel dispensing devices, as defined by K.S.A. 83-401, and amendments thereto. All ex- penditures from the petroleum inspection fee fund shall be made in ac- cordance with the provisions of appropriation acts upon warrants of the director of accounts and reports issued pursuant to vouchers approved by the secretary of agriculture or by a person or persons designated by the secretary.

(d) All moneys received for the fee imposed by K.S.A. 55-426, and amendments thereto, or for interest or penalties imposed by K.S.A. 55- 427, and amendments thereto, shall be deposited in the state treasury and credited in accordance with the following:

(1) On and after July 1 of each fiscal year, 2/3 of each such deposit shall be credited to the state general fund and the balance of each such deposit shall be credited to the petroleum inspection fee fund until the aggregate of all amounts credited to the state general fund under this subsection (d)(1) equals $250,000; and

(2) after $250,000 has been credited to the state general fund under subsection (d)(1) for any fiscal year, the entire amount of each amount deposited thereafter for such fiscal year shall be credited to the petroleum inspection fee fund.

Sec. 7. K.S.A. 55-434 is hereby amended to read as follows: 55-434. On and after January 1, 1994, (a) Any person who violates any of the provisions of the petroleum products inspection law or any rule or reg- ulation adopted thereunder shall be guilty of a class A nonperson mis- demeanor. Each separate violation shall constitute a separate offense.

(b) Any violation of the provisions of the petroleum products inspec- tion law shall be deemed a deceptive act and practice as defined by K.S.A. 50-626, and amendments thereto. Violations of the petroleum products inspection law may be enforced by the secretary of agriculture under the administrative provisions of the petroleum products inspection law, by the attorney general or the county or district attorney under the Kansas consumer protection act.

Sec. 8. K.S.A. 55-436 is hereby amended to read as follows: 55-436. The secretary of the state board of agriculture shall administer the law with reference to a thorough and practical inspection as required by law covering inspection of petroleum products used in lighting and heating, and in the operation or propulsion of motor vehicles, including inspection of pumps and measures used in dispensing the same.

Sec. 9. K.S.A. 55-437 is hereby amended to read as follows: 55-437. (a) All of the powers, duties and functions of the director of taxation with regard to the petroleum products inspection law pertaining to the actual inspection of the products specified in K.S.A. 55-423, and amendments thereto, are hereby transferred to and conferred and imposed upon the secretary of the state board of agriculture.

(b) The secretary of the state board of agriculture shall be the suc- cessor in every way to the powers, duties and functions of the director of taxation with regard to the petroleum products inspection law pertaining to the actual inspection of the products specified in K.S.A. 55-423, and amendments thereto, in which the same were vested prior to the effective date of this act. Every act performed in the exercise of such powers, duties and functions by or under the authority of the secretary of the state board of agriculture shall be deemed to have the same force and effect as if performed by the director of taxation with regard to the petroleum prod- ucts inspection law in which such powers, duties and functions were vested prior to the effective date of this order.

(c) Whenever the director of taxation, or words of like effect, with regard to the petroleum products inspection law pertaining to the actual inspection of the products specified in K.S.A. 55-423, and amendments thereto, is referred to or designated by a statute, contract or other doc- ument, such reference or designation shall be deemed to apply to the secretary of the state board of agriculture.

(d) All rules and regulations of the director of taxation with regard to the petroleum products inspection law pertaining to the actual inspection of the products specified in K.S.A. 55-423, and amendments thereto, in existence on the effective date of this act shall continue to be effective and shall be deemed to be duly adopted rules and regulations of the secretary of the state board of agriculture until revised, amended, revoked or nullified pursuant to law.

(e) All orders and directives of the director of taxation with regard to the petroleum products inspection law pertaining to the actual inspection of the products specified in K.S.A. 55-423, and amendments thereto, in existence on the effective date of this act shall continue to be effective and shall be deemed the orders and directives of the secretary of the state board of agriculture until revised, amended or nullified pursuant to law.

(f) The secretary of the state board of agriculture shall succeed to whatever right, title or interest the director of taxation, with regard to the petroleum products inspection law pertaining to the actual inspection of the products specified in K.S.A. 55-423, and amendments thereto, has acquired in any real property in this state, and the secretary shall hold the same for and in the name of the state of Kansas.

(g) On and after the effective date of this act whenever any statute, contract, deed or other document concerns the power or authority of the director of taxation with regard to the petroleum products inspection law pertaining to the actual inspection of the products specified in K.S.A. 55- 423, and amendments thereto, to acquire, hold or dispose of real property or any interest therein, the secretary of the state board of agriculture shall succeed to such power or authority.

Sec. 10. K.S.A. 55-438 is hereby amended to read as follows: 55-438. On the effective date of this act, officers and employees who, immediately prior to such date, were engaged in the performance of powers, duties or functions of the petroleum products inspection law pertaining to the actual inspection of the products specified in K.S.A. 55-423, and amend- ments thereto, and who, in the opinion of the secretary of the state board of agriculture, are necessary to perform the powers, duties and functions of the petroleum products inspection law pertaining to the actual inspec- tion of the products specified in K.S.A. 55-423, and amendments thereto, shall be transferred to, and shall become officers and employees of the state board department of agriculture. Any such officer or employee shall retain all retirement benefits and all rights of civil service which had accrued to or vested in such officer or employee prior to the effective date of this act. The service of each such officer and employee so trans- ferred shall be deemed to have been continuous.

Sec. 11. K.S.A. 55-439 is hereby amended to read as follows: 55-439. (a) When any conflict arises as to the disposition of any property, power, duty or function or the unexpended balance of any appropriation as a result of any abolition, transfer, attachment or change made by or under authority of this act, such conflict shall be resolved by the governor, whose decision shall be final.

(b) The Kansas state board department of agriculture shall succeed to all property, property rights and records which were used for or pertain to the performance of the powers, duties and functions transferred to the secretary of the state board of agriculture. Any conflict as to the proper disposition of property or records arising under this section, and resulting from the transfer, attachment or all or part of the powers, duties and functions of the director of taxation, shall be determined by the governor, whose decision shall be final.

Sec./007006/K.S.A. 55-440 is hereby amended to read as follows: 55-440. (a) No suit, action or other proceeding, judicial or administrative, lawfully commenced, or which could have been commenced, by or against the director of taxation with regard to the petroleum products inspection law or by or against any officer of the state in such officer's official capacity or in relation to the discharge of such officer's official duties, shall abate by reason of the transfers effected under the provisions of this act. The court may allow any such suit, action or other proceeding to be main- tained by or against the secretary of the state board of agriculture or any officer affected.

(b) No criminal action commenced or which could have been com- menced by the state shall abate by the taking effect of this act.

Sec./007006/K.S.A. 55-441 is hereby amended to read as follows: 55-441. (a) On the effective date of this act, the balance of all funds appropriated and reappropriated to the director of taxation with regard to the petro- leum products inspection law is hereby transferred to the Kansas state board department of agriculture and shall be used only for the purpose for which the appropriation was originally made.

(b) On the effective date of this act, the liability for all accrued com- pensation or salaries of officers and employees who, immediately prior to such date, were engaged in the performance of powers, duties or func- tions of any state agency or officer transferred by this act, or which be- comes a part of the Kansas state board department of agriculture or the powers, duties and functions of which are transferred to the secretary of agriculture, shall be assumed and paid by the Kansas state board depart- ment of agriculture.

Sec./007006/K.S.A. 55-442 is hereby amended to read as follows: 55-442. (a) The state board secretary of agriculture may adopt rules and regula- tions establishing standards for and identity of any petroleum product. These rules and regulations shall conform, insofar as practicable, to the American society for testing materials standards for those products and the rules and regulations and clean air act waivers of the United States environmental protection agency.

(b) The state board secretary of agriculture may adopt rules and reg- ulations establishing methods of testing any petroleum product. These rules and regulations shall conform, insofar as practicable, to the methods for testing those petroleum products as established by the American so- ciety for testing materials.

(c) The state board secretary of agriculture may adopt rules and reg- ulations establishing specifications, tolerances and other technical requirements for equipment used for the testing those petroleum prod- ucts as established by the American society for testing materials.

(d) The state board secretary of agriculture may adopt rules and reg- ulations concerning labeling of petroleum products and standards of iden- tity for petroleum products. These rules and regulations shall conform, insofar as practicable, to the standards of identity for petroleum products as established by the American society for testing materials and to federal regulations regarding labeling whenever possible.

(e) The state board secretary of agriculture may adopt rules and reg- ulations designating additional products as petroleum products.

(f) The state board secretary of agriculture may adopt any other rules and regulations deemed necessary for the administration of the petroleum products inspection law.

Sec./007006/K.S.A. 55-443 is hereby amended to read as follows: 55-443. (a) From and after January 1, 1994, It is a violation for any person to:

(1) Act as or represent such person's self to be a technical represen- tative without having a valid license issued by the department of agri- culture;

(2) hinder or obstruct in any way the secretary or any of the secre- tary's authorized agents in the performance of the secretary's official du- ties under the petroleum products inspection law;

(3) failure to follow the applicable version of NIST Handbook as re- ferenced in chapter 83 of the Kansas Statutes Annotated, and amendments thereto, or any rules and regulations adopted thereunder when installing, repairing, calibrating or testing a device;

(4) failure to complete the testing or placing-in-service report in its entirety and to report the accurate description of the parts replaced, ad- justed, reconditioned or work performed;

(5) filing a false or fraudulent application or report to the secretary;

(6) failure to pay all fees and penalties as prescribed by the petroleum products inspection law and the rules and regulations adopted and prom- ulgated pursuant to the petroleum products inspection law;

(7) refuse to keep and make available for examination by the depart- ment of agriculture all books, papers, and other information necessary for the enforcement of the petroleum products inspection law or chapter 83 of the Kansas Statutes Annotated, and amendments thereto;

(8) failure to have any commercial dispensing device tested as re- quired by the petroleum products inspection law or chapter 83 of the Kansas Statutes Annotated, and amendments thereto;

(9) sell, offer or expose for sale any petroleum product which does not comply with the provisions of the petroleum products inspection law;

(10) sell, use, remove, otherwise dispose of or fail to remove from the premises specified, any dispensing device, package or commodity contrary to the terms of any order issued by the secretary; and

(11) violate any order issued by the secretary pursuant to chapter 83 of the Kansas Statutes Annotated, and amendments thereto.

(b) Any person who violates any provision of the petroleum products inspection law or any rule and regulation or any applicable provisions of chapter 83 of the Kansas Statutes Annotated, or amendments thereto, or any rules and regulations adopted thereunder, in addition to any other penalty provided by law, may incur a civil penalty imposed under sub- section (b) (c) in an amount, fixed by rules and regulations of the secre- tary, of not less than $100 nor more than $5,000 for each such violation and, in the case of a continuing violation, every day such violation contin- ues shall be deemed a separate violation.

(b) Any duly authorized agent of the secretary, upon a finding that any person, or agent or employee thereof, has violated any of the provi- sions of the petroleum products inspection law or any rule and regulation adopted thereunder, may impose a civil penalty upon such person as provided in this section.

(c) In determining the amount of the civil penalty, the following shall be taken into consideration: (1) The extent of harm caused by the violation; (2) the nature and persistence of the violation; (3) the length of time over which the violation occurs; (4) any corrective actions taken; and (5) any and all relevant circumstances.

(d) All civil penalties assessed shall be due and payable within 10 days after written notice of assessment is served on the person, unless a longer period of time is granted by the secretary. If a civil penalty is not paid within the applicable time period, the secretary may file a certified copy of the notice of assessment with the clerk of the district court in the county where the weighing and measuring device or dispensing device is located. The notice of assessment shall be enforced in the same manner as a judg- ment of the district court.

(c) (e) No civil penalty shall be imposed pursuant to this section ex- cept upon the written order of the duly authorized agent of the secretary to the person who committed the violation or to the person whose agent or employee committed the violation. Such order shall state the violation, the penalty to be imposed and the right of the person to appeal to the secretary. Any such person, within 20 days after notification, may make written request to the secretary for a hearing in accordance with the provisions of the Kansas administrative procedure act. The secretary shall affirm, reverse or modify the order and shall specify the reasons therefor.

(d) (f) Any person aggrieved by an order of the secretary made under this section may appeal such order to the district court in the manner provided by the act for judicial review and civil enforcement of agency actions.

(g) An appeal to the district court or to an appellate court shall not stay the payment of the civil penalty.

(e) (h) Any civil penalty recovered pursuant to the provisions of this section or any penalty recovered under the consumer protection act for violations of this section, and amendments thereto, or any rules and reg- ulations adopted thereunder, shall be remitted to the state treasurer, de- posited in the state treasury and credited to the state general weights and measures fee fund.

(f) (i) This section shall be part of and supplemental to the petroleum products inspection act, article 4 of chapter 55 of the Kansas Statutes Annotated, and amendments thereto.

Sec./007006/K.S.A. 83-401 is hereby amended to read as follows: 83-401. As used in K.S.A. 83-401 to 83-410 and sections 1 and 2, and amendments thereto, inclusive:

(a) ``Dispensing device'' means a liquefied petroleum gas, motor-ve- hicle fuel or liquid fuel dispensing pump, meter or other similar meas- uring device and shall include any device which dispenses refined or blended gasoline or diesel fuel product. This definition shall not include vehicle tank meters or liquefied petroleum meters;

(b) ``person'' means any individual, agent, technical representative, partnership, association, corporation or governmental agency but does not include the state sealer or the state sealer's authorized representative secretary;

(c) ``State sealer'' means the state sealer of weights and measures ``secretary'' means the secretary of agriculture, the secretary's authorized representative or the secretary's authorized inspector;

(d) ``place of business'' means any location from which a testing serv- ice, or one or more representatives or employees thereof, sell and per- form services for the purpose of testing, repairing, adjusting, measuring or calibrating dispensing devices;

(e) ``technical representative'' means an individual who is employed by a testing service at a place of business and who is responsible for the proper installation, repair, adjustment or calibration of dispensing de- vices; and certification of the accuracy of such dispensing devices; and

(f) ``Testing service'' ``service company'' means a person who meas- ures, calibrates, tests, repairs, adjusts and certifies the accuracy of com- pany which is in the business of examining, calibrating, testing, repairing and adjusting of dispensing devices but such term does not include a technical representative unless the technical representative is the owner of such service company.

Sec./007006/K.S.A. 1995 Supp. 83-402 is hereby amended to read as follows: 83-402. (a) Each person, other than an authorized representative of the state sealer secretary or an authorized representative of a city or county department of public inspection of weights and measures estab- lished pursuant to K.S.A. 83-210, and amendments thereto, desiring to operate and perform testing and other services as a testing service com- pany in Kansas shall apply to the state sealer secretary for a testing service company license, on a form to be supplied by the state sealer secretary, and shall obtain such license from the state sealer secretary before op- erating and performing testing or other services as a testing service com- pany. Each testing service company shall obtain a license for each place of business maintained in Kansas and shall pay a license application fee of $50 and thereafter an annual license renewal application fee of $50 for each place of business. Each testing service company license shall expire on June 30 following issuance, shall be void unless renewed prior to the expiration and shall not be transferable.

(b) If any testing service company maintains any out-of-state places of business which the testing service company operates in serving Kansas patrons, the applicant seeking to obtain or renew a license under this section shall list in the application such places of business and the firm names under which the testing service company operates at each such place of business. If any out-of-state place of business is established by a testing service company after being licensed under this section, the li- censee shall supply such information to the state sealer secretary before any work is performed in Kansas from such out-of-state location. Each nonresident testing service company shall designate a resident agent upon whom service of notice or process may be made to enforce the provisions of K.S.A. 83-401 to 83-410, inclusive chapter 83 of the Kansas Statutes Annotated, and amendments thereto, or any liabilities arising from op- erations thereunder. Each nonresident testing service company which maintains no established place of business in Kansas shall obtain a license under this section for each out-of-state place of business and shall list on the application the firm name or names for each place of business from which the testing service company intends to operate.

(c) Each testing service shall have each of their technical represen- tatives registered annually by the state sealer. The Each technical repre- sentative shall be licensed annually by the secretary. Each technical rep- resentative shall be required to attend continuing education seminars on an annual basis as required by rules and regulations adopted by the sec- retary and to pass a reasonable examination prescribed by the state sealer before being registered. Each testing service shall have at least one reg- istered technical representative in its employ at each licensed place of business. secretary each year prior to being licensed. The state department of agriculture shall be authorized to charge a fee to the attendees of the seminar sponsored by the department. The amount charged shall be no more than is necessary to cover the expenses incurred in providing the seminar. All technical representatives who install, repair, adjust or cali- brate a device and certify such devices shall be required to pass the state examination annually. Each technical representative license shall expire on June 30 following issuance of the license and shall be void unless re- newed prior to the expiration.

(d) No testing service company license may be issued or renewed under this section until the applicant's weights and measures have been tested for accuracy and sealed by the state sealer secretary. The state sealer secretary is authorized to accept a certification of the accuracy of the applicant's weights or measures issued by the national institute of standards and technology, by a weights and measures laboratory certified by the national institute of standards and technology, or by the appro- priate certifying agency of another state in lieu of a test by the state sealer secretary, if such certificate shows that the weights or measures have been tested within the 12 calendar months next preceding the license appli- cation.

(e) The state sealer secretary shall remit all moneys received under this section to the state treasurer at least monthly. Upon receipt of any such remittance, the state treasurer shall deposit the entire amount thereof in the state treasury and the same shall be credited to the weights and measures fee fund.

Sec./007006/K.S.A. 1995 Supp. 83-404 is hereby amended to read as follows: 83-404. (a) The owner or operator of a dispensing device which is used for commercial purposes shall have such device tested and in- spected at least annually for accuracy. The test shall be conducted by either a testing service or by an authorized representative of any city or county which has established a department of public inspection of weights and measures pursuant to K.S.A. 83-210, and amendments thereto, or by the state sealer or an authorized representative of the state sealer secre- tary, which inspects such dispensing devices in accordance with rules and regulations adopted by the state sealer secretary. If upon inspection by the state sealer or an authorized representative of the state sealer secre- tary, it is found that the dispensing device has not been tested and in- spected for accuracy and approved within the preceding 12 calendar months, the state sealer or the authorized representative of the state sealer secretary shall take the dispensing device out of service pursuant to the provisions of K.S.A. 83-215, and amendments thereto. The test weights and measures used by the testing service shall have been ap- proved and sealed by the state sealer pursuant to K.S.A. 83-214, and amendments thereto, within the 12 calendar months preceding the date of the test. Except at the option of the city or county which has an estab- lished department of public inspection of weights and measures, annual tests and inspections shall be at the expense of the owner or operator. The test weights and measures used by the service company shall have been approved and sealed by the secretary pursuant to K.S.A. 83-214, and amendments thereto, every 365 days. Except at the option of the city or county which has an established department of public inspection of weights and measures, annual tests and inspections shall be at the expense of the owner or operator. In any city or county which has a department of public inspection of weights and measures which annually inspects such dispensing devices, the tests may be conducted by an authorized repre- sentative of such city or county weights and measures department. Far- mers or ranchers who own and operate a dispensing device used in private treaty transactions are exempt from the annual testing requirements.

(b) A testing service or The city or county department of public in- spection of weights and measures or an authorized representative of the state sealer the secretary which conducts tests pursuant to this section, at the time of testing and inspection, shall promptly furnish to the owner or operator a report showing the results of the tests and inspection. Within 10 calendar days thereafter, the testing service or the city or county de- partment of public inspection of weights and measures or an authorized representative of the state sealer shall furnish a copy of such report to the state sealer. Such reports shall also be sent to the secretary, as required by rules and regulations adopted by the secretary, however, no report shall be furnished later than 10 days after the test or inspection of such device has occurred.

(c) Subject to the provisions of K.S.A. 83-215, and amendments thereto, the owner and operator of a dispensing device which is found to be inaccurate at the time of testing shall withdraw immediately the device from further use until the necessary corrections, adjustments or repairs are made and the device is determined to be accurate by a testing service company or the city or county weights and measures department or an authorized representative of the state sealer secretary. The devices which have been repaired or serviced shall meet the tolerances and specifica- tions adopted by the state sealer by rule and regulation secretary by rules and regulations. The testing service company or the city or county shall notify the state sealer secretary of any devices which are found not to comply with such tolerances and specifications. A copy of the report pre- pared by the testing service or the city or county weights and measures department or an authorized representative of the state sealer showing the results of the test and the work done to correct any deficiencies shall be filed with the state sealer by the owner or operator of the device within 10 days after the test and inspection have been completed. and those which are not able to be serviced or repaired so as to comply with such tolerances and specifications. The service company shall report to the secretary within the time frames and in a manner established in rules and regulations adopted by the secretary of any dispensing device which has been installed, repaired, calibrated or fails to comply with the required tolerances and specifications.

(d) Each service company shall be required to keep at such company's corporate headquarters or at such company's resident agent's office a copy of all reports regarding the installation, repair, calibration and other work the service company or the technical representatives employed by the service company performed on the commercial dispensing devices. Such reports shall be legible and maintained in an accessible manner and for a period of time as established by the secretary pursuant to rules and reg- ulations. The owner or operator of a dispensing device shall also be re- quired to retain copies of all reports regarding installation, repair or ad- justment or any of the aforementioned done to the dispensing device at the site where the dispensing device is used. Such reports shall be legible and maintained in an accessible manner and for a period of time as es- tablished by the secretary pursuant to rules and regulations.

Sec. 19. K.S.A. 1995 Supp. 83-405 is hereby amended to read as follows: 83-405. When the state sealer secretary is notified by a licensed testing service company, an authorized representative of the state sealer secretary or by a city or county department of public inspection of weights and measures established pursuant to K.S.A. 83-210, and amendments thereto, that a dispensing device does not comply with tolerances and specifications adopted by the state sealer secretary, by rule and regulation rules and regulations, the state sealer secretary may test for accuracy after repairs have been made.

Sec. 20. K.S.A. 1995 Supp. 83-407 is hereby amended to read as follows: 83-407. (a) At any time after a hearing held in accordance with the provisions of the Kansas administrative procedure act, the state sealer secretary may revoke, suspend, decline to renew or decline to issue a testing service company license or a technical representative's license, when the testing service company or technical representative:

(1) (a) Has refused to provide the state sealer secretary with reason- ably complete and accurate information regarding methods used, mate- rials used or work performed; or

(2) (b) has failed to comply with any provision or requirement of K.S.A. 83-401 to 83-410, inclusive, and amendments thereto, the Kansas weights and measures laws or any rule and regulation chapter 83 of the Kansas Statutes Annotated, and amendments thereto, or any rules and regulations adopted thereunder.

(b) The state sealer shall suspend the license of any testing service which does not have a registered technical representative at each licensed place of business as required under subsection (c) of K.S.A. 83-402 and amendments thereto. Suspension pursuant to this subsection shall not require a hearing.;

(c) has failed to perform work in a manner consistent with the stan- dards set forth in chapter 83 of the Kansas Statutes Annotated, and amendments thereto, or any rules and regulations adopted thereunder; or

(d) has committed an unlawful act pursuant to K.S.A. 83-219, and amendments thereto, or any rules and regulations adopted thereunder.

Sec. 21. K.S.A. 1995 Supp. 83-409 is hereby amended to read as follows: 83-409. It is unlawful for any person, other than the state sealer, the state sealer's authorized representative secretary or an authorized representative of a city or county department of public inspection of weights and measures established pursuant to K.S.A. 83-210, and amend- ments thereto, to: (1) Operate or perform services as a testing service without having a valid license under K.S.A. 83-401 to 83-410, inclusive, and amendments thereto; or

(2) adjust, calibrate or repair a dispensing device, without having a valid license under K.S.A. 83-401 to 83-410, inclusive, and amendments thereto. (a) Commit any unlawful act pursuant to K.S.A. 83-219, and amendments thereto; or

(b) violate any of the provisions of chapter 83 of the Kansas Statutes Annotated, and amendments thereto, or any rules and regulations adopted thereunder.

Sec. 22. K.S.A. 83-410 is hereby amended to read as follows: 83-410. Any person violating or failing to comply with any of the provisions of K.S.A. 1985 Supp. 83-401 to 83-410, inclusive through 83-410, and amendments thereto, or violating or failing to comply with any authorized rule and regulation of the state sealer rules and regulations of the secre- tary adopted thereunder, shall be deemed guilty of a class A, nonperson misdemeanor. Each separate violation shall be a separate misdemeanor.

New Sec. 23. If any part of this act are held to be invalid or uncon- stitutional by any court, it shall be conclusively presumed that the legis- lature would have enacted the remainder of this act without such invalid or unconstitutional part or parts.

Sec. 24. K.S.A. 55-422, 55-423, 55-426, 55-427, 55-434, 55-436, 55- 437, 55-438, 55-439, 55-440, 55-441, 55-442, 55-443, 55-446, 83-401, 83- 406 and 83-410 and K.S.A. 1995 Supp. 83-402, 83-404, 83-405, 83-407 and 83-409 are hereby repealed.

Sec. 25. This act shall take effect and be in force from and after its publication in the statute book.

Approved April 3, 1996.