CHAPTER 175 HOUSE BILL No. 2101 An  Act concerning agriculture; relating to plant pests; creating the plant pest emergency
response fund; weights and measures, unlawful acts, annual testing requirements and
recognized systems; amending K.S.A. 2-2126, 83-145, 83-202, 83-219 and 83-404 and
K.S.A. 2000 Supp. 83-304 and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:

      New Section  1. (a) There is hereby created a plant pest emergency
response fund in the state treasury. Such fund shall be funded by a fee
assessed in addition to the fees assessed a nursery dealer or nursery cer-
tificate holder under article 21 of chapter 2 of the Kansas Statutes An-
notated. The additional fee shall be fixed by rule and regulation prom-
ulgated by the secretary of agriculture, except that such additional fee
shall not exceed $5 annually on each nursery dealer and nursery certificate
holder. The secretary is authorized and empowered to collect the fees
provided in this section. When the total amount of fees deposited in the
fund is equal to or exceeds $15,000, the secretary shall not collect any
such fees as provided in this section. When expenditures made from the
fund result in the total amount of the fees deposited in the fund to be
less than $15,000, the secretary may resume the assessment and collection
of such fees as provided in this section.

      (b) The secretary is authorized and empowered to make expenditures
from the plant pest emergency response fund and that in the discretion
of the secretary mitigate pests that have been identified by the secretary
as high risk pests having the potential to damage agriculture, horticulture
or the environment. Such expenditures may include the costs of enforce-
ment to protect against high risk pests identified by the secretary. All
expenditures from such fund shall be made in accordance with appro-
priation acts upon warrants of the director of accounts and reports issued
pursuant to vouchers approved by the secretary or by a designee of the
secretary.

      (c) The plant pest emergency response fund shall be a fund separate
and distinct from the entomology fee fund referred to in K.S.A. 2-2128,
and amendments thereto.

      (d) The provisions of this section shall be part of and supplemental
to the plant pest act.

      Sec.  2. K.S.A. 2-2126 is hereby amended to read as follows: 2-2126.
The board secretary shall promulgate, amend and repeal such rules and
regulations as may be, in the discretion of the secretary, are necessary for
the efficient execution of the provisions of this the plant pest act.

      Sec.  3. K.S.A. 83-145 is hereby amended to read as follows: 83-145.
(a) The secretary of agriculture, or the secretary's authorized represen-
tative, is authorized to test all weighing and measuring devices used in
the retail sale of liquefied petroleum gas, and shall reject all such devices
which are found (a) to be inaccurate and (b) to not clearly indicate the
quantity of liquefied petroleum gas in kilograms or pounds, liters or gal-
lons, cubic feet or cubic meters or other unit approved by the secretary
of agriculture, or the secretary's authorized representative. It shall be
unlawful to use a weighing or measuring device for determining quantities
of liquefied petroleum gas which has been rejected by the secretary of
agriculture, or the secretary's authorized representative. The secretary of
agriculture, or the secretary's authorized representative, shall conspicu-
ously mark all rejected devices, which. Such mark shall not be removed
or defaced except upon authorization of the secretary of agriculture or
the secretary's authorized representatives. It shall be unlawful to use a
vapor meter dial which is not equipped with a cubic foot indicator for
testing the accuracy of the meter.

      (b) It shall be unlawful to use a liquid meter for measuring the vol-
ume, in gallons, of liquefied petroleum gas for retail sale from delivery
vehicles unless such meter is equipped with a ticket printer for use in
issuance of printed tickets showing the volume, in gallons, of the liquefied
petroleum gas delivered.

      Sec.  4. K.S.A. 83-202 is hereby amended to read as follows: 83-202.
(a) Except as provided further:

      (1) The system of weights and measures in customary use in the
United States and the metric system of weights and measures are jointly
recognized, and either one or both of these systems shall be used for all
commercial purposes in the state.

      (2) The following standards and requirements shall apply to com-
mercial weighing and measuring devices:

      (A) ``The standards of the national conference on weights and meas-
ures'' published in the national institute of standards and technology
handbook 44 entitled specifications, tolerances, and other technical
requirements for weighing and measuring devices as published on Oc-
tober, 1994 or later versions as established in rules and regulations
adopted by the secretary, except those vehicle scales installed prior to the
effective date of this act and used solely for the purpose of weighing ag-
gregate products shall be exempt from the provisions contained in section
2.20 scales, table 6 of such handbook. Such aggregate product scales shall
have a minimum tolerance of + /- 100 pounds. Such exception shall be in
effect for a period of two years from the effective date of this act;

      (B) ``the uniform laws and regulations of the national conference on
weights and measures'' published in the national institute of standards
and technology handbook 130 regarding packaging and labeling, the
method of sale of commodities, national type evaluation regulation, motor
fuel inspection and motor fuel regulation, as published on December,
1994 or later versions as established in rules and regulations adopted by
the secretary;

      (C) ``checking the net contents of packaged goods'' published in the
national institute of standards and technology handbook 133, third edi-
tion, as published on September, 1988 or later versions as established in
rules and regulations adopted by the secretary;

      (D) ``checking the net contents of packaged goods'' published in the
national institute of standards and technology handbook 133, third edi-
tion, supplement 4, as published on October, 1994 or later versions as
established in rules and regulations adopted by the secretary; and

      (E) any other handbooks or sections thereof as adopted by the sec-
retary by rules and regulations.

      (b) Whenever there exists an inconsistency between the provisions of
chapter 83 of the Kansas Statutes Annotated, and amendments thereto,
and any of the handbooks adopted by reference, the requirements of
chapter 83 of the Kansas Statutes Annotated, and amendments thereto,
shall control.

      Sec.  5. K.S.A. 83-219 is hereby amended to read as follows: 83-219.
(a) It shall be unlawful for any owner of a commercial weighing or meas-
uring device person:

      (1) To offer or expose for sale, or to sell or otherwise dispose of any
weight, measure or weighing or measuring device that does not meet the
tolerances and specifications required by chapter 83 of the Kansas Stat-
utes Annotated, and amendments thereto, or which has been rejected
without first obtaining the written authorization of the secretary;

      (2) to use or possess a weight, measure or weighing or measuring
device that is used for or intended to be used for commercial purposes
which does not meet the tolerance and specifications required by chapter
83 of the Kansas Statutes Annotated, and amendments thereto, or that
does not conform to the standard authorized by the secretary for deter-
mining the quantity of any commodity or article of merchandise, for the
purpose of:

      (A) Buying or selling any commodity or article of merchandise;

      (B) computation of any charge for services rendered on the basis of
weight or measure;

      (C) determining weight or measure, either when a charge is made
for such determination or where no charge is made for use of such weight,
measure, weighing or measuring device;

      (3) except as allowed in K.S.A. 83-225, and amendments thereto, to
break or remove any tag, mark or seal placed on any weighing or meas-
uring device by the secretary or a county or city inspector of weights and
measures, without specific written authorization from the proper author-
ity or to use a weighing or measuring device after the lapse of the au-
thorized period following the placing of a rejection tag thereon by the
secretary, unless further extension of time for any repair purposes is first
obtained from the secretary;

      (4) to sell, offer or expose for sale, less than the represented quantity
of any commodity, thing or service;

      (5) to take or attempt to take more of the represented quantity of any
commodity, thing or service when the buyer furnishes the weight, mea-
sure or weighing or measuring device by which the amount of any com-
modity, thing or service is determined;

      (6) to keep for the purpose of sale, or to offer or expose for sale, or
to sell any commodity in a manner contrary to the law or contrary to any
rule and regulation;

      (7) to use in retail trade, except in preparation of packages of mer-
chandise put up in advance of sale, a weighing or measuring device that
is not so positioned that its indications may be accurately read and the
weighing or measuring operation observed from a reasonable customer
position;

      (8) to violate any of the provisions of chapter 83 of the Kansas Statutes
Annotated, and amendments thereto, or rules and regulations adopted
thereunder, for which a specific penalty is not provided;

      (9) to sell or offer for sale, or use or possess for the purpose of selling
or using any device or instrument to be used or calculated to falsify any
weight or measure;

      (10) to dispose of any rejected weight or measure in a manner con-
trary to law or rules and regulations;

      (11) to expose for sale, offer for sale or sell any commodity in package
form, without it being so wrapped, or the container so made, formed or
filled, that it will not mislead the purchaser as to the quantity of the
contents of the package;

      (12) to expose for sale, offer for sale or sell any commodity in any
container where the contents of the container fall below such reasonable
standard of fill as may have been prescribed for the commodity in ques-
tion by the secretary;

      (13) to misrepresent the price of any commodity or service sold, of-
fered, exposed or advertised for sale by weight, measure or count, nor
represent the price in any manner calculated or tending to mislead or in
any way deceive any person;

      (14) to misrepresent, or represent in a manner calculated or tending
to mislead or deceive an actual or prospective purchaser, the price of an
item offered, exposed or advertised for sale at retail;

      (15) to compute or attempt to compute at the time of sale of an item,
a value which is not a true extension of a price per unit which is then
advertised, posted or quoted;

      (16) to charge or attempt to charge, at the time of the sale of an item
or commodity, a value which is more than the price which is advertised,
posted or quoted;

      (17) to alter a weight certificate, use or attempt to use any such cer-
tificate for any load or part of a load or for articles or things other than
for which the certificate is given, or, after weighing and before the deliv-
ery of any articles or things so weighted, alter or diminish the quantity
thereof;

      (18) to hinder or obstruct in any way the secretary or any of the
secretary's authorized agents in the performance of the secretary's official
duties under chapter 83 of the Kansas Statutes Annotated, and amend-
ments thereto or any rules and regulations adopted thereunder;

      (19) to fail to follow the standards and requirements established in
K.S.A. 83-202, and amendments thereto, or any rules and regulations
adopted thereunder;

      (20) to fail to pay all fees and penalties as prescribed by chapter 83
of the Kansas Statutes Annotated, and amendments thereto, and the rules
and regulations adopted thereunder;

      (21) to fail to keep or make available for examination or provide to
the secretary all inspection reports, test reports and any other service
reports or other information on any device owned or operated by the
owner or any agent or employee of the owner and other information
necessary for the enforcement of chapter 83 of the Kansas Statutes An-
notated, and amendments thereto or any rules and regulations adopted
thereunder, and as required by the secretary;

      (22) to fail to have any commercial weight, measure or weighing and
measuring device tested as required by chapter 83 of the Kansas Statutes
Annotated, and amendments thereto or any rules and regulations adopted
thereunder;

      (23) to sell or offer or expose for sale liquefied petroleum gas in
packages or containers which do not bear a statement as to tare and net
weight as required by chapter 83 of the Kansas Statutes Annotated, and
amendments thereto or any rules and regulations adopted thereunder, or
packages or containers which bear a false statement as to weights;

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

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

      (26) to prohibit a buyer or seller from observing the weighing or op-
eration of any transaction to which such buyer or seller is a party.

      (b) It shall be unlawful for any service company or technical repre-
sentative 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 agricul-
ture;

      (2) certify a device as correct unless the device meets the tolerances
and specifications as required by chapter 83 of the Kansas Statutes An-
notated, and amendments thereto, or any rules and regulations adopted
thereunder;

      (3) hinder or obstruct in any way the secretary in the performance of
the secretary's official duties under chapter 83 of the Kansas Statutes
Annotated, and amendments thereto or any rules and regulations adopted
thereunder;

      (4) fail to follow the standards and requirements set forth in K.S.A.
83-202, and amendments thereto, or any rules and regulations adopted
thereunder;

      (5) fail to complete the testing or placing-in-service report in its en-
tirety and to report the accurate description of the parts replaced, ad-
justed, reconditioned or work performed;

      (6) file a false or fraudulent service company or technical represen-
tative application or reports to the secretary;

      (7) fail to pay all fees and penalties as prescribed by chapter 83 of
the Kansas Statutes Annotated, and amendments thereto, and the rules
and regulations adopted thereunder;

      (8) fail to keep or make available for examination in an accessible and
legible manner or provide to the secretary in a legible manner all inspec-
tion reports, test reports, and any other service or report work information
on any device which the service company or an agent or employee per-
formed work on and other information necessary for the enforcement of
chapter 83 of the Kansas Statutes Annotated, and amendments thereto
or any rules and regulations adopted thereunder.; or

      (9) sell, offer or expose for sale a weighing or measuring device in-
tended to be used commercially, which is not traceable to a national type
evaluation program certificate of conformance.

      (c) For the purpose of paragraph (a)(4), the selling and delivery of a
stated quantity of any commodity shall be prima facie evidence of rep-
resentations on the part of the seller that the quantity sold and delivered
was the quantity bought by the purchaser.

      (d) Violation of this section shall be deemed a deceptive act and prac-
tice as defined by K.S.A. 50-626, and amendments thereto. Violations of
the provisions of K.S.A. 83-219, and amendments thereto, may be en-
forced by the secretary under the administrative provisions of chapter 83
of the Kansas Statutes Annotated, and amendments thereto, or by the
attorney general or a county or district attorney under the Kansas con-
sumer protection act.

      Sec.  6. K.S.A. 2000 Supp. 83-304 is hereby amended to read as fol-
lows: 83-304. (a) Except as provided by subsection (e), the owner or op-
erator of a weighing and measuring device which is used commercially
shall have such weighing and measuring device tested and inspected at
least annually for accuracy. The test shall be conducted by either a li-
censed technical representative employed by a licensed service company
or by an authorized representative of any city or county which has estab-
lished a department of public inspection of weights and measures pur-
suant to K.S.A. 83-210, and amendments thereto, or by the secretary,
which inspects such weighing and measuring device in accordance with
rules and regulations adopted by the secretary. If upon inspection by the
secretary or an authorized representative of the secretary, it is found that
the weighing and measuring device has not been tested and inspected for
accuracy and approved within the preceding 365 days, the secretary or
the authorized representative of the secretary shall take the weighing and
measuring device out of service pursuant to the provisions of K.S.A. 83-
215, and amendments thereto. Except as provided further, the test
weights or equipment used by the service company shall have been ap-
proved and sealed by the secretary pursuant to K.S.A. 83-214, and amend-
ments thereto, within 365 days preceding the date of the tests. Test
weights or equipment which has the nominal capacity of 250 pounds or
greater, are housed in a grain elevator or similar structure and are used
to test scales in grain elevators or similar facilities shall have been ap-
proved and sealed by the secretary pursuant to K.S.A. 83-214, and amend-
ments thereto, within three calendar years preceding the date of the test.
Except at the option of the city or county which has an established de-
partment of public inspection of weights and measures, tests and inspec-
tions shall be at the expense of the owner or operator of the weighing
and measuring device. In any city or county which has a department of
public inspection which inspects such weighing and measuring device,
the test may be conducted by an authorized representative of the city or
county weights and measures department. Farmers or ranchers who own
and operate a weighing and measuring device used in private treaty trans-
actions are exempt from the annual testing requirements. Volumetric
provers which are stationary or which exceed the testing capacity of the
state metrology lab due to engineering design or the capacity of the prover
are exempt from the annual testing requirement.

      (b) A service company or the city or county department of public
inspection of weights and measures or an authorized representative of
the secretary which conducts tests pursuant to this section shall, at the
time of testing and inspection, promptly furnish to the owner or operator
of the weighing and measuring device a report showing the results of the
tests and inspection. The city or county department of public inspection
of weights and measures and service company 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 the device has occurred.

      (c) Subject to the provisions of K.S.A. 83-215, and amendments
thereto, the owner or operator of a weighing and measuring device which
is found to be out of the tolerances or specifications required by chapter
83 of the Kansas Statutes Annotated, and amendments thereto or any
rules and regulations adopted thereunder, at the time of testing shall
withdraw immediately the weighing and measuring device from further
use until the necessary corrections, adjustments or repairs are made and
the weighing and measuring device is determined to be accurate by a
service company or the city or county department of public inspection of
weights and measures or an authorized representative of the secretary.
Weighing and measuring devices which have been repaired or serviced
shall meet the tolerances and specifications established in chapter 83 of
the Kansas Statutes Annotated, and amendments thereto, and those rules
and regulations adopted by the secretary prior to being placed or returned
to service. The service company or the city or county department of public
inspection of weights and measures shall notify the secretary of any weigh-
ing and measuring devices which are found not to comply with such tol-
erances and specifications and are thus inaccurate and cannot be adjusted,
repaired or serviced so as to comply with the standards and tolerances
established in chapter 83 of the Kansas Statutes Annotated, and amend-
ments thereto. Such notification shall be as required by the secretary,
pursuant to rules and regulations, however,. Such notification shall be
furnished to the department no later than 10 days after the service com-
pany or city or county department of public inspection of weights and
measures has found the weighing and measuring device to be in noncom-
pliance with the tolerance and specifications required for such weighing
and measuring device. A copy of the report prepared by the service com-
pany or city or county department of public inspection of weights and
measures or the secretary showing the results of the weighing and meas-
uring device test and the work done to correct any deficiencies shall be
filed with the secretary by the service company.

      (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 weighing and measuring
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 regulations. The owner or operator of a weighing and meas-
uring device shall also be required to retain copies of all reports regarding
the installation, repair or adjustment or any of the aforementioned done
to the weighing and measuring device at the site where the measuring
and weighing device is used. 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 regulations.

      (e) The secretary may adopt rules and regulations providing for in-
spection of vapor meters at intervals less frequently than annually if the
secretary determines that annual inspections are not necessary to protect
the public interest. In adopting any such rules and regulations, the sec-
retary shall take into consideration the standard for inspections of vapor
meters adopted by the national institute of standards and technology of
the United State States department of commerce.

      Sec.  7. K.S.A. 83-404 is hereby amended to read as follows: 83-404.
(a) The owner or operator of a dispensing device which is used for com-
mercial purposes shall have such device tested and inspected at least
annually for accuracy at least once within every 18-month period. The
test shall be conducted by either 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 secretary, which inspects such dispensing devices in
accordance with rules and regulations adopted by the secretary. If upon
inspection by the secretary, it is found that the dispensing device has not
been tested and inspected for accuracy and approved within the preced-
ing 12 calendar 18 months, the secretary shall take the dispensing device
out of service pursuant to the provisions of K.S.A. 83-215, and amend-
ments thereto. The test weights and measures used by the service com-
pany 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 an-
nually inspects such dispensing devices, the tests may be conducted by
an authorized representative of such city or county weights and measures
department. Farmers or ranchers who own and operate a dispensing de-
vice used in private treaty transactions are exempt from the annual testing
requirements.

      (b) The city or county department of public inspection of weights and
measures or 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. Such
reports shall also be sent to the secretary, as required by rules and reg-
ulations 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 service com-
pany or the city or county weights and measures department or an au-
thorized representative of the secretary. The devices which have been
repaired or serviced shall meet the tolerances and specifications adopted
by the secretary by rules and regulations. The service company or the city
or county shall notify the secretary of any devices which are found not to
comply with such tolerances and specifications 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 in-
stalled, 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
regulations. The owner or operator of a dispensing device shall also be
required to retain copies of all reports regarding installation, repair or
adjustment 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 established by the secretary pursuant to rules and regulations.

 Sec.  8. K.S.A. 2-2126, 83-145, 83-202, 83-219 and 83-404 and K.S.A.
2000 Supp. 83-304 are hereby repealed.

 Sec.  9. This act shall take effect and be in force from and after its
publication in the statute book.

Approved May 15, 2001.
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