CHAPTER 281

FORMERLY HOUSE SUBSTITUTE NO. 1

FOR HOUSE BILL NO. 167

AS AMENDED BY

HOUSE AMENDMENTS NO. 1 AND 2

AN ACT TO AMEND CHAPTER 51, TITLE 6, DELAWARE CODE, RELATING TO WEIGHTS, MEASURES, AND STANDARDS.

Be it enacted by the General Assembly of the State of Delaware (two-thirds of the members elected to each House concurring therein):

Section 1. Amend Section 5101 (a), Title 6, Delaware Code, by adding the following definitions:

"A 'consumer package' or 'package of consumer commodity' shall be construed to mean a commodity in package form that is customarily produced or distributed for sale through retail sales agencies or instrumentalities for consumption by individuals or use by individuals for the purposes of personal care or in the performance of services ordinarily rendered in or about the household or in connection with personal possessions.

A `nonconsumer package' or 'package of nonconsumer commodity' shall be construed to mean any commodity in package form other than a consumer package, and particularly a package designed solely for industrial or institutional use or for wholesale distribution only."

Section 2. Amend Section 5102, Title 6, Delaware Code, by deleting in the first sentence the words "the other" after the. words "and one or" and inserting in lieu thereof the word "both".

Section 3. Amend Section 5104, Title 6, Delaware Code, by deleting in the fifth line thereof the word "certified" and inserting in lieu thereof the word "approved", and by deleting in the next to the last sentence of the said Section 5104 everything after the words "or for" and inserting in lieu thereof the words "calibration. and approval".

Section 4, Amend Section 5105, Title 6, Delaware Code, as follows:

a) by striking title "Office and Working Standards and Equipment" and retitling said section "Field Standards and Equipment."

b) in the last sentence of Section 5105, Title 6, Delaware Code, strike the words "and at least once each year" and insert in lieu thereof the words "and thereafter as often as deemed necessary by the Secretary by comparison with State standards,"

Section 5. Amend Section 5109, Title 6, Delaware Code, by striking same in its entirety and inserting in lieu thereof a new Section 5109 to read as follows:

5109. Specific powers and duties of Secretary of Agriculture; regulations

The Secretary shall issue from time to time reasonable regulations for the enforcement of this chapter, 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 marketing requirements of Section 5115 of this chapter with respect to weights and measures of such character or size that such sealing or marketing would be inappropriate, impracticable, or damaging to the apparatus in question, (4) rules governing the voluntary registration of servicemen and service agencies, These regulations shall include specifications, tolerances and other technical requirements for weights and measures of the character of those specified in Section 5111 of this chapter, 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 other

technical requirements for commercial weighing and measuring devices, together with amendments thereto, as recommended by the National Bureau of Standards and published in the National Bureau of Standards Handbook 44 and supplements thereto, or in any publication revising or superseding Handbook 44, shall be the specifications, tolerances, and other technical requirements for commercial weighing and measuring devices of the State of Delaware, except insofar as specifically modified, amended, or rejected by a regulation issued by the Secretary, For the purposes of this chapter, 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',

Section 6, Amend Section 5113, Title 6, Delaware Code, in the first sentence by striking the words "from time to time" and inserting in lieu thereof the words "as often as necessary to provide adequate protection",

Section 7, Amend Section 5118, Title 6, Delaware Code, by striking the final period of the section and inserting at the end of the last sentence the words "or until the rejection tag has been removed and the rejected device repaired and placed in service by a person duly registered to perform such acts under a regulation issued by the Secretary for the registration of weights and measures, servicemen and service agencies",

Section 8, Amend Section 5120, Title 6, Delaware Code, by inserting after the words "or distributor" in the first sentence, the words "as may be prescribed by regulation issued by the Secretary:

Section 9, Amend further Section 5120, Title 6, Delaware Code, by deleting the word "mislead" in the seventeenth line thereof and inserting in lieu thereof the word "exaggerate",

Section 10, Amend Section 5122, Title 6, Delaware Code, by deleting the word "intentionally" as it appears in the third line thereof,

Section 11, Amend Section 5123, Title 6, Delaware Code, by deleting entire section and inserting in lieu thereof a new Section 5123 to read as follows:

§ 5123. Advertising packages for sale

Whenever a commodity in package form is advertised in any manner and the retail price of the package is stated in the advertisement, there shall be closely and conspicuously associated with such statement of price a declaration of the basic quantity of contents of the package as is required by law or regulation to appear on the package: provided, that, where the law or regulation requires a dual declaration of net quantity to appear on the package, only the declaration that sets forth the quantity in terms of the smaller unit of weight or measure (the declaration that is required to appear first and without parentheses on the package) need appear in the advertisement: and provided further, that there shall not be included as part of the declaration required under this section such qualifying terms as 'when packed,' minimum,"not less than,' or any other terms of similar import, nor any term qualifying a unit of weight, measure, or count (for example, `jumbo,' giant,"full,' and the like) that tends to exaggerate the amount of commodity in the package.

Section 12. Amend Section 5126, Title 6, Delaware Code, in the last sentence after the word "combination" by removing the period and adding a semicolon followed by the words, "Provided that, for ready-to-cook stuffed whole carcass, ready-to-cook stuffed poultry, ready-to-cook stuffed poultry roasts,

ready-to-cook stuffed rolls, ready-to-cook stuffed bars, ready-to-cook stuffed logs, and ready-to-cook stuffed poultry products designated by terms of similar import, the label must show the total net weight of the poultry product and, in proximity thereto, a statement specifying the minimum weight of poultry in the product."

Section 13. Amend Section 5127, Title 6, Delaware Code, by striking it in its entirety.

Section 14. Amend Section 5129, Title 6, Delaware Code, as follows:

(a) add the word "not" after the word "but" as it appears in the second line of the said section.

(b) by deleting the word "sour Cream" as it appears in the third line thereof.

(c) by adding, after the words "1 gallon" as they appear for the first time in the said section, "," followed by the words "11/2 gallons, 2 gallons, 21/2 gallons."

(d) by removing the period at the end of the said Section 5129 and appending to the end of the said section the words, "and provided further that on and after July 1, 1971, sour cream and yogurt shall be sold in terms of weight, and sour cream shall be packaged for retail sale only in units of four (4), eight (8), twelve (12), sixteen (16), thirty-two (32), sixty-four (64), and one hundred twenty-eight (128) ounces avoirdupois."

Section 15. Amend Section 5131, Title 6, Delaware Code, as follows:

(a) Delete the title "Coal, Coke, and Charcoal" and retitle the said Section "Bulk deliveries sold in terms of weight and delivered by vehicle."

(b) Delete the words "All coal, coke, and charcoal shall be sold by weight. Unless the fuel is delivered in package form, each delivery of coal, coke or charcoal to an individual purchaser" as these words appear in the first and second sentences and insert in lieu thereof the words "Whenever a vehicle delivers to an individual purchaser a commodity in bulk and the commodity is sold in terms of weight units, the delivery".

(c) In the third sentence delete the word "fuel" wherever it appears and insert in lieu thereof the word "commodity".

(d) Delete the words "or sealer or deputy sealer" as they appear in the third sentence.

Section 16. Amend Section 5133, Title 6, Delaware Code, by striking it in its entirety.

Section 17. Amend Section 5132, Title 6, Delaware Code, by deleting the words "Heating oil" as they appear in the title and text and inserting in lieu thereof the words "Furnace and stove oil," in the title and text.

(a) Delete subsection (a) in its entirety and insert in lieu thereof a new subsection (a) as follows:

"(a) The Secretary shall appoint as a licensed weighmaster any person who possesses the qualifications provided for in this section and shall make application for the appointment, assigning to each licensee an official number. Any person may be appointed a weighmaster who is a parson of good character and capable of operating a stationary scale. Licenses shall boolssued to individuals only and not to firms or corporations, but any firm or corporation may have as many members or employees licensed as it desires,"

(b) Amend subsection (d) by striking the words "the name of the county in which he is licensed,"

(c) Amend further by adding three new subsections to be labeled "(J)", "(k)", and "(1)", to read as follows:

"(J) The Secretary may, upon request and without charge, issue a limited license as a licensed weighmaster to any qualified officer or employee of a city or county of this State or of a State commission, board, institution, or agency, authorizing such officer or employee to act as a licensed weighmaster only within the scope of his official employment in the case of an officer or employee of a city or county or only for and on behalf of the State commission, board, institution, or agency in the case of an officer or employee thereof.

(k) When making a weight determination as provided for by this Act, a licensed weighmaster shall use a weighing device that is of a type suitable for the weighing of the amount and kind of material to be weighed and that has been tested and approved for use by a weights and measures officer of this State,

(1) A licensed weighmaster shall not use any scale to weigh a load the value of which exceeds the nominal or rated capacity of the scale. When the gross or tare weight of any vehicle or combination of vehicles is to be determined, the weighing shall be performed upon a scale having a platform of sufficient size to accommodate such vehicle or combination of vehicles fully, completely, and as one entire unit. If a combination of vehicles must be broken up into separate units in order to be weighed as prescribed herein, each such separate unit shall be entirely

disconnected before weighing and a separate weight certificate shall be issued for such separate unit."

Section 19. Amend Section 5139 (b), Title 6, Delaware Code, by removing the final period of the said section and inserting "unless the device has been placed in service as provided by a regulation of the Secretary issued under the authority of Section 5109 of this chapter." at the end of the said subsection.

Section 20. Amend Section 5139, Title 6, Delaware Code, by deleting the figure "$10.00" wherever it occurs therein and inserting in lieu thereof the figure "$25.00", and by deleting the figure "$25.00" wherever it presently appears therein and insert in lieu thereof the figure "$50.00".

Section 21. Amend Section 5143, Title 6, Delaware Code, by inserting after the word "Peace" as it appears therein, the words "and the Courts of Common Pleas". .

Section 22. If any provision of this Act is declared unconstitutional, or the applicability thereof to any person or circumstance is held invalid, the constitutionality of the remainder of the Act and the applicability thereof to other persons and circumstances shall not be affected thereby.

Approved July 15, 1971.