RULES AND REGULATIONS
Title 70--WEIGHTS, MEASURES AND STANDARDS
DEPARTMENT OF AGRICULTURE
[70 PA. CODE CHS. 1--10, 21, 35 AND 39
Price Look-Up Systems and Universal Product Codes
[29 Pa.B. 2460] The Department of Agriculture (Department) establishes regulations required or authorized under 3 Pa.C.S. §§ 4101--4194 (relating to Consolidated Weights and Measures Act) (act). This regulatory objective will be accomplished by deleting Chapters 1, 3, 35 and 39, amending Chapter 21 and adding Chapters 2 and 4--10 to read as set forth in Annex A.
The Department has the power and authority to adopt this rulemaking. This authority includes:
(1) General authority to regulate as necessary for the performance of its responsibilities under sections 4110 and 4190 of the act (relating to specific powers and duties of the department; regulations; and rules and regulations).
(2) Authority to require, through regulation, the registration of sellers, installers, servicers and repairers of commercially-used weighing and measuring devices under section 4113 of the act (relating to registration of sellers, installers and repairers of weighing and measuring devices).
(3) Authority to require, through regulation, the registration and reporting of testing of commercially-used weighing and measuring devices under section 4114 of the act (relating to registration and report of inspection of weighing and measuring devices used for commercial purposes).
(4) The duty to establish, by regulation, minimum training standards for State inspectors and county and city sealers of weights and measures under section 4115 of the act (relating to training program).
(5) Authority to regulate the method of sale of commodities in this Commonwealth under section 4127(c) of the act (relating to method of sale of commodities).
(6) The duty to establish, by regulation, reasonable variations in weight, measure or count with respect to commodities under section 4128(b) of the act (relating to packages; declarations of quantity and origin; variations; exemptions).
(7) General authority to regulate with respect to public weighmasters under sections 4150 and 4167 of the act (relating to enforcement and regulations; and rules and regulations).
(8) Authority to regulate the weighing and measuring device types which must be reviewed and approved by the Department before being used in commerce in this Commonwealth under sections 4170 and 4176 of the act (relating to approval of types of weights and measures and weighing and measuring devices; and rules and regulations).
(9) Authority to regulate with respect to domestic fuel oil under section 4183(b) of the act (relating to enforcement of chapter, rules and regulations).
Need for the Rulemaking
The act assigns the Department primary responsibility for conducting periodic inspections of every commercially used weighing and measuring device in this Commonwealth. It also allows some of this inspection responsibility to be assumed by county sealers or city sealers (if working under a memorandum of understanding with the Department), certified examiners of weights and measures (with respect to specific designated types of weighing and measuring devices) and private certification programs (with respect to Universal Product Code (UPC) scanning systems and Price Look Up (PLU) devices). This rulemaking establishes minimum training and certification requirements for persons conducting inspections under authority of the act.
A number of provisions in this rulemaking are specifically required by the act. These provisions are referenced in this Preamble, under the ''Authority'' heading.
This rulemaking should ultimately make the weighing or measuring devices in commercial use in this Commonwealth more reliable, and help ensure that a consumer gets the full measure of any product the consumer purchases by weight, measure or count, or which is passed through a UPC scanning system or PLU device.
This rulemaking should benefit this Commonwealth's business community by helping to lessen underpricing or underweighing of products and the monetary losses associated with the underpricing or underweighing. In addition, this rulemaking may boost consumer confidence
In summary, the Department is satisfied there is a need for this rulemaking, and that it is otherwise consistent with Executive Order 1996-1, ''Regulatory Review and Promulgation.''
Comments
Notice of proposed rulemaking was published at 28 Pa.B. 5109 (October 10, 1998), and provided for a 30-day public comment period. The Legislative Reference Bureau published nonsubstantive corrections to the notice of proposed rulemaking at 28 Pa.B. 5244 (October 17, 1998). These corrections related to the renumbering of sections, and did not substantively alter the proposed rulemaking or affect the comment period.
Comments were received from the House Agriculture and Rural Affairs Committee (House Committee), the Senate Agriculture and Rural Affairs Committee (Senate Committee), Representative Italo Cappabianca (Minority Chairperson of the House Committee), Senator Roger Madigan (the prime sponsor of the Act), the Independent Regulatory Review Commission (IRRC), the Pennsylvania Association of Weights and Measures (PAWM), the Scanning Certification Program (SCP), PennAg Industries Association (PAIA), the Bitterman Scale Company (BSC), the Precision Weight Scale Company, Inc. (PWSC), the Pennsylvania Propane Gas Association (PPGA) and others.
Comment: The PAIA found the proposed rulemaking satisfactory and agreed the proper training of examiners of weights and measures will benefit all Pennsylvanians.
Response: The Department accepts this comment and believes further elaboration is not required.
Comment: A commentator offered the general observation that the proposed rulemaking did not address the subject of package inspections. The commentator emphasized the importance of random package inspections, and noted the high number of prosecutions resulting from package inspections in the past.
Response: The Department agrees that package inspections are an important component of the enforcement role prescribed for the Department under the act. Section 4117 of the act (relating to inspection of packages) makes it the responsibility of the Department (or any entity to which it transfers enforcement responsibilities pursuant to a memorandum of understanding under section 4121 of the act (relating to powers and duties of director and inspector) to conduct package inspections. Although the act requires these package inspections be conducted from time to time, it is the intention of the Department to conduct regular random package inspections and to require the same of the entities to which it transfers enforcement responsibilities. The Department believes the language of the act relating to package inspections is self-executing, and need not be addressed in a formal rulemaking.
Comment: The BSC offered the comment that the proposed rulemaking would allow persons conducting weights and measures inspections under the act to interpret the procedures in the National Institute of Standards and Technology (NIST) Handbook 44 so that there might be inconsistency in enforcement. The commentator believed the proposed rulemaking is too subjective in this regard.
Response: The Department is satisfied the standards, tolerances and procedures in NIST Handbook 44 will facilitate uniform interpretation and application. In addition, the Department notes that although section 4110(b) of the act would allow the Department to adopt procedures that vary from those prescribed by the NIST Handbook 44, the language of that subsection also suggests the NIST Handbook 44 standards would be adequate.
Comment: The PWSC asked whether a certified examiner of weights and measures (CEWM) can take a commercially used weighing and measuring device out of service if the CEWM finds the device to be inaccurate during the course of an inspection authorized under section 4112(b) of the act (relating to general testing and inspections).
Response: There is no provision in the act or the final-form regulations to allow a CEWM to reject an inaccurate commercially used weighing and measuring device. Section 4126 of the act (relating to duty of owners of incorrect apparatus) allows State inspectors, county sealers or city sealers to take this action.
The comment underscored the need for some regulatory requirement that a CEWM promptly report inaccurate commercially used weighing and measuring devices to the Department. In response, the Department has added a new § 4.13(e) (relating to reporting procedure for a CEWM) to the final-form regulations, which requires a CEWM to promptly report inaccurate commercially used weighing and measuring devices to the Department. The Department will either reject the device in accordance with the act or advise the appropriate county sealer or city sealer to do the same.
Comment: The PPGA suggested the final-form regulations reflect that the Department is required to provide any inspection required under the act free of charge. An owner or user of a commercial weighing and measuring device should be made aware that he need not incur any cost in obtaining the inspections required under the act.
Response: The act does not authorize the Department to charge a fee for inspections required under the act. A county sealer or city sealer may charge a fee for inspections under its general authority to make provisions for defraying expenses that are incidental to carrying out official duties under the act. This authority is found in section 4123(a)(3) of the act (relating to city and county standards and equipment). In a county or city where the Department has transferred inspection responsibilities to the county or city under a memorandum of understanding, persons within that county or city will not have the option to choose between a free inspection by a State inspector or an inspection conducted by a county sealer or city sealer for a fee. In that instance, the county sealer or city sealer shall conduct the inspection.
Section 4.3(b) (relating to authority of a CEWM) specifies that a CEWM may charge a fee for inspection services. Section 5.5(c) (relating to authority of a certified UPC/PLU inspector) clarifies that certified UPC/PLU inspectors (including certified UPC/PLU inspectors who are State inspectors, county sealers or city sealers) may not charge a fee for inspection services unless they are county sealers or city sealers, or are part of a private certification program. The Department believes the final-form regulations are sufficiently specific as to the circumstances under which a fee may be charged.
Comment: Representative Cappabianca noted the Department's use of the undefined term ''commercially used'' in proposed §§ 4.3 and 5.1 (relating to purpose) and at other locations in the proposed rulemaking, and suggested this term be defined in § 2.1 (relating to definitions). IRRC also recommended that this term be defined. The PWSC repeated this comment, and asked whether weighing and measuring devices used for ''business to business'' transactions (scales used to ''. . . weigh product for the purpose of transferring ownership of the product from one business to another'') would be included within the definition of ''commercially used.'' The Independent Regulatory Review Commission (IRRC) recommended that the term ''commercial weighing device'' be defined in § 2.1.
Response: The Department accepts these comments, and has included a definition of ''commercially used weighing and measuring device'' in § 2.1. This definition derives from section 4112(a) of the act.
Comment: IRRC suggested the definition of the term ''UPC scanning system'' be reworked in the final-form regulations. IRRC noted that the term ''scanning system'' is separately defined, and suggested that by rewriting this definition to address UPC technologies the Department might obviate the need to separately define ''UPC scanning system.''
Response: The Department has revised the definition of ''UPC scanning system'' in § 2.1. The Department declines to revise the definition of ''scanning system'' to include this term, since the terms ''UPC scanning system'' and ''PLU device'' appear in section 4112 of the act.
Comment: The BSC asked whether ''event counters'' are included within the definition of ''weights and measures'' for purposes of the final-form regulations.
Response: If an event counter is a turnstile or similar device that counts the number of persons passing through it, such a device would not be a commercially used weighing and measuring device unless the count recorded by that device is used in some commercial transaction.
Comment: The BSC reviewed proposed Chapter 4 (relating to certified examiners of weights and measures) and asked how it will be determined whether a CEWM is performing inspections correctly. The commentator opined that there appears to be a presumption against the CEWM, and that the proposed rulemaking did not adequately address the possibility that a less-than-honest owner of a commercially used weighing and measuring device might alter that device after it had been inspected by a CEWM.
Response: The commentator's point is well taken. The Department is aware that a CEWM might correctly perform a required inspection of a commercially used weighing and measuring device and that--whether by design or accident--the device might be rendered inaccurate shortly after the CEWM completes the inspection. The Department attempts to take this into account in § 4.14(c) (relating to inspection and testing by the Department). It is not the intention of the Department to revoke or suspend the certification of a CEWM in the absence of clear evidence the action is warranted.
Comment: The BSC listed the various costs it expected to incur in training and equipping a CEWM.
Response: A CEWM may pass training costs along to the owners or users of the commercially used weighing and measuring devices it inspects. If a person feels the costs of becoming a CEWM or maintaining CEWM status are too high, that person need not become or remain a CEWM. CEWM status is completely voluntary.
Comment: The BSC asked whether the Department intends to establish any form of interstate reciprocity to allow an out-of-State entity to act as a CEWM.
Response: The answer to this question is no. The Department will not accept the inspection report of an individual who has not received the required training and who has not followed the certification procedure in Chapter 4.
Comment: The BSC recommended proposed § 4.3 be revised to add several types of weighing and measuring devices that were not identified in that section as being types which a CEWM is authorized to inspect.
Response: The Department declines to implement this recommendation, since the types of weighing and measuring devices that had been in proposed § 4.3 are identical to the types in section 4112(b) of the act. The Department may only accept an inspection report from a CEWM with respect to a type of weighing and measuring device listed in section 4112(b) of the act. The Department deleted these types of weighing and measuring devices from § 4.3, since they are also listed in § 4.4 (relating to categories and types of weighing and measuring devices which a CEWM may inspect).
Comment: The Senate Committee recommended proposed § 4.3(a) be revised to specifically state that it is acceptable under the act for a CEWM to conduct an inspection of weighing and measuring devices which the CEWM owns or operates, or which are owned or operated by the CEWM's employer.
Response: The Department accepts the Senate Committee's recommendation, and has revised § 4.3 accordingly.
Comment: The PPGA noted that proposed § 4.3(b) would allow a CEWM to set the fees for that CEWM's inspection services, and expressed concern that these fees should be more closely-regulated.
Response: The Department will allow a CEWM to charge whatever fees the market for the CEWM's services will bear. The prospect that a CEWM could price himself out-of-business should act to temper the fees a CEWM will charge. It should also be considered that the Department is ultimately obligated to provide any inspection required under the act free of charge (except where a county or city has undertaken inspection responsibilities pursuant to a memorandum of understanding with the Department--in which case the county or city may charge a fee that reflects the costs that are incidental to the performance of its contractual duties). For this reason, a business entity need hire a CEWM to perform a required inspection only when considerations of time, convenience or other reasons militate in favor of paying a CEWM to perform a required inspection.
Comment: PWSC reviewed the various categories of commercially used weighing and measuring devices with respect to which a person can be certified as a CEWM, and asked how the Department intends to address scales that weigh items over 1,000 pounds and vehicle scales. The referenced categories are in § 4.4.
Response: Section 4.4 restates the statutorily-prescribed categories of commercially used weighing and measuring devices with respect to which the Department may accept the inspection report of a CEWM in lieu of conducting the inspection itself. These categories are found in section 4112(b) of the act. Although the Department agrees with the commentator that it would be of benefit if the Department could accept inspection reports from CEWMs with respect to more types of commercially used weighing and measuring devices than are listed in § 4.4 or section 4112(b) of the act, it is constrained by the act in this regard. Scales that weigh items over 1,000 pounds would have to be inspected by a State inspector or an authorized county sealer or city sealer.
Comment: The PPGA voiced concern regarding the Department's proposed rulemaking of weighing and measuring devices on liquid petroleum gas meters. Proposed § 4.4(6) makes specific reference to truck-mounted liquid petroleum gas meters. The PPGA commented that the proposed rulemaking would have an adverse economic impact on propane companies and consumers throughout this Commonwealth. The PPGA referenced the requirements of Executive Order 1996-1 (''Regulatory Review and Promulgation''), and commented that the Department had not conducted the cost-benefit analysis that order requires.
Response: The Department does not have the discretion to exclude truck-mounted liquid petroleum gas meters from those commercially used weighing and measuring devices it inspects. The inclusion of truck-mounted liquid petroleum gas meters among those commercially used weighing and measuring devices the Department must inspect is not the product of the regulation, but is the specific requirement of section 4112(b) of the act. Since this requirement is imposed by statute, any resultant financial impact upon propane companies or the public is the product of the act, rather than the final-form regulations.
Comment: The PPGA also commented that the proposed regulation might result in inspections of truck-mounted liquid petroleum gas meters occurring at intervals of between 14 and 18 months, and that this would result in increased costs to the propane industry ''. . .as the meters tend to malfunction at about 14 months from the last inspection by providing more product to the consumer than identified by the meter.'' These meters are referenced in proposed § 4.4(6).
Response: Section 4112(b) of the act requires the inspection of truck-mounted liquid petroleum gas meters at intervals of no more than 12 months. A seller of liquid petroleum gas who suspects the truck-mounted meter used to dispense the gas is allowing purchasers to acquire more gas than they paid for can arrange for the immediate repair of the meter, without the involvement of the Department in the repair process. The inspection requirements in § 6.6 (relating to newly-installed or repaired commercial weighing and measuring devices) would then be applicable to the repaired device.
Comment: The PPGA acknowledged the Department's authority to delegate inspection responsibility with respect to truck-mounted liquid petroleum gas meters, but expressed concern that inspections be conducted promptly, efficiently and at a reasonable cost. The PPGA also commented that the Department should ensure there are adequate numbers of inspectors to meet the inspection demands. As stated, these meters are referenced in proposed § 4.4(6).
Response: The Department is ultimately required to conduct the referenced inspections at no cost (except where a county or city has undertaken inspection responsibilities pursuant to a memorandum of understanding with the Department--in which case the county or city may charge a fee that reflects the costs that are incidental to the performance of its contractual duties). It will be the Department's responsibility to ensure it has an adequate number of trained, equipped State inspectors, county sealers or city sealers to perform these inspections. The Department will conduct these inspections on schedule and with efficiency. Any CEWM conducting these inspections may charge whatever fee the market will bear.
Comment: IRRC suggested proposed §§ 4.5(1) and 4.6 (relating to certification standards; and training courses) be revised to delete any reference to the Department approving NIST training courses. IRRC further commented that under section 4110(a)(4) of the act, these NIST courses are already considered approved.
Response: The Department accepts this suggestion, and has revised the referenced sections accordingly in the final-form regulations.
Comment: The PPGA recommended the Department establish procedures under which it will review the qualifications of a CEWM to ensure that ''. . . a systematic and uniform inspection program is achieved.''
Response: The Department is satisfied that the final-form regulations will result in a uniform CEWM program. Section 4.6 requires that a CEWM candidate successfully complete appropriate NIST training. Section 4.13 requires a CEWM to report the results of any inspection conducted under authority of a CEWM certificate. Section 4.14 allows for random inspection and testing by the Department to verify that a CEWM is conducting inspections in the proper manner. Section 4.15 (relating to suspension or revocation of certification) allows for the revocation or suspension of a CEWM's certificate. On balance, the Department is satisfied these provisions, and the other provisions of Chapter 4, are adequate to ensure the CEWM program is systematic and uniform.
Comment: IRRC recommended the Department delete the list of approved NIST courses appearing in proposed § 4.6(b) and either publish the referenced list at intervals in the Pennsylvania Bulletin or indicate that a current list may be obtained from the Department.
Response: The Department accepts this recommendation and has revised § 4.6(b) to indicate that a current list of NIST courses may be obtained from the Department.
Comment: In the context of its comments with respect to proposed § 4.6, IRRC suggested the final-form regulations contain the standards, technical procedures and reporting procedures referenced in section 4110(a)(1) and (2) of the act.
Response: Section 4110(a)(1) and (2) of the act allow the Department to incorporate into its regulations standards of net weight, measure, count and fill for any commodity in package form, and technical and reporting procedures for State inspectors, county sealers and city sealers to follow in the discharge of their official duties. The Department is satisfied the final-form regulations address these topics to the extent necessary. It should also be noted that the current regulations in Chapters 21, 23, 25 and 27 address a number of the standards and procedures referenced in the comment. If, in the administration of these final-form regulations, the Department determines more detailed regulatory provisions on the topics addressed in section 4110(a)(1) and (2) are necessary, the Department will amend the regulations.
Comment: The BSC asked whether an application for certification, as described in proposed § 4.8 (relating to applying for certification) could be denied.
Response: An application for a CEWM certificate can be denied, as described in § 4.8(c).
Comment: IRRC suggested proposed § 4.10 (relating to expiration of CEWM certificate) be reworded for greater clarity.
Response: The Department accepts this suggestion, and has implemented it in § 4.10.
Comment: The BSC commented that proposed § 4.12 (relating to testing and inspection performance standards) does not clearly identify or list the NIST standards it adopts in that section, and suggested these standards be cited in the final-form regulations.
Response: The referenced NIST standards represent an evolving body of knowledge, and are revised and updated on a fairly regular basis. Just as the Department elected to delete the list of current approved NIST training courses for CEWMs that had been included in proposed § 4.6(b), the Department is reluctant to include specific NIST standards in § 4.12. As written, § 4.12 automatically makes any new or revised NIST standards those of the Department. The Department believes this approach will obviate the need to revise the regulation on a regular basis to address new NIST standards.
Comment: Representative Cappabianca recommended the Department develop a specific inspection report form for CEWMs and require the use of that form to make it easier for the Department to handle these required reports and compile information from them. It was further recommended that proposed § 4.13 be revised to implement this recommendation. IRRC and the BSC offered similar comments, suggesting there be a single, uniform inspection form for use throughout this Commonwealth.
Response: The Department believes it will not have any significant problems in compiling information from inspection report forms. Section 4.13(c) adequately sets forth the information an inspection report form must contain. In addition, the Department will provide sample inspection report forms to any requesting party. Although a CEWM might vary the form, the form must still meet the substantive requirements of § 4.13. For these reasons, the Department declines to implement the suggested revision.
Comment: The BSC offered the comment that the CEWM inspection report form described in proposed § 4.13 calls for subjective determinations on the part of the person completing the form and has the potential to result in inconsistency in reporting. The BSC focused on proposed § 4.13(c)(7) and (8), which call for determinations as to defects or deficiencies in a weighing or measuring device and a statement of whether the device is in compliance with NIST performance standards.
Response: The NIST performance standards prescribe tolerances for various weighing and measuring devices, and are quite objective in this regard. A weighing and measuring device is either in compliance or it is not. The Department believes the NIST performance standards and the inspection report form will serve to make inspections less subjective and more consistent. In response to this comment, though, the Department has revised § 4.13(c) to add a comment space on the inspection report form to allow a CEWM to offer an explanation or clarification of any inspection the CEWM performs.
Comment: The BSC suggested proposed § 4.13 be revised to require a CEWM to report items such as: ''pit condition, strain load test, repeatability, RFI, bi-directional test, missing security seal, over-capacity use and decreasing load readings. . .''
Response: The items referenced in this comment can be reported by a CEWM in the comment section of the inspection report form.
Comment: Representative Cappabianca reviewed proposed § 4.14 and agreed with the Department's plan to conduct random inspection and testing of a sample of the devices that have been inspected and tested by CEWMs. It was further recommended, though, that the testing described in this section constitute a statistical sample of each type of device inspected by CEWMs. These types are listed in § 4.4. IRRC endorsed this comment, as well.
Response: The Department will conduct random inspections of a cross section of each of the types of weighing and measuring devices described in § 4.4. Section 4.14(a) has been revised to make this more clear.
Comment: The BSC reviewed proposed § 4.15 (relating to suspension or revocation of certification) and asked whether it was the original intent of the Department to have suspension and revocation matters reviewed by a board comprised of knowledgeable industry representatives, other neutral parties and representatives of the Department.
Response: The Department does not intend to establish a board to resolve CEWM revocation, suspension or enforcement issues under the act.
Comment: In the course of a conversation with one of the commentators, the commentator suggested it would be useful if the Department had some mechanism by which to suspend or revoke the authority of a CEWM or a certified UPC/PLU inspector on an emergency basis.
Response: The Department rejects this informal comment. The statute at 2 Pa.C.S. § 504 (relating to hearing and record) requires that a license holder be afforded reasonable notice and an opportunity to be heard prior to suspension or revocation of the license.
Comment: The BSC noted proposed § 4.15(a)(3) and observed that in its experience State inspectors have tested and approved scales for commercial use that the BSC determined should not have been approved. The BSC stated that this situation underscores the need for a rigid, uniform testing procedure.
Response: The Department believes the final-form regulations will help establish a uniform testing procedure for commercially used weighing and measuring devices, and encourages the commentator to report any incident when a State inspector approved a device which the commentator feels should not have been approved.
Comment: IRRC recommended proposed § 4.15(b) be revised to require the Department to include in a due process hearing notice a reference to the rules of administrative practice and procedure applicable to the proceedings.
Response: Although the Department will cite any applicable rules of administrative practice and procedure in the written notice of its intention to suspend or revoke certification described in § 4.15(b) it does not believe it necessary that the final-form regulations impose this as a regulatory requirement.
Comment: The PWSC reviewed the penalty provisions in proposed § 4.17 (relating to civil penalties), and expressed apprehension that this section might be used as a revenue generating device by the Department. The commentator acknowledged that--under the Department's long standing ''inform, warn, prosecute'' approach to weights and measures matters--§ 4.17 is not likely to be misused. The commentator's apprehensions were with respect to future administration of the act by the Department.
Response: The provisions appearing in § 4.17 are derived from section 4191(b) of the act, which authorizes civil penalties of up to $10,000 for violations of the act. The Department has no plans to change its ''inform, warn, prosecute'' approach to enforcement, though. Any civil penalty assessed by the Department will be in proportion to the seriousness of the violation.
Comment: The House Committee, the Senate Committee, Representative Cappabianca and Senator Madigan--the prime sponsor of the act--noted that the Legislative intent of the act was to permit the private sector to implement private certification programs and allow for self-inspection of UPC scanning systems and PLU devices by these private certification programs. In other words, a retail store chain that develops its own private certification program and has its UPC scanning systems and PLU devices inspected under this private certification program in accordance with the act should be exempt from annual inspection and testing by the Department.
These commentators recommended the final-form regulations contain specific language stating that self-inspection by private certification programs is acceptable. IRRC suggested that--if the Department intends to allow for self-inspection by private certification programs--§§ 5.21 and 5.22 (relating to registration; and requirements and fees), respectively should clearly reflect this. The Senate Committee recommended this be accomplished by revising proposed § 5.2(c) (relating to requirement of annual testing and inspection).
Response: The Department agrees that the final-form regulations should more clearly state that self-inspection by private certification programs is acceptable. The Department has revised § 5.5(a) (relating to authority of certified UPC/PLU inspector) to accomplish this clarification. Although the commentators suggested this clarification be accomplished in other sections the Department believes the clarification best fits within the context of the subject matter of § 5.5.
Comment: The SCP raised several concerns regarding the practice of allowing self-inspection of commercially used UPC scanning systems and PLU devices by private certification programs. The SCP registered its strong opposition to this type of self-inspection, and urged the Department to reconsider allowing this practice in the final-form regulations. The basis for this opposition was that: 1) self-inspection allows certified UPC/PLU inspectors to be employes or for-profit contractors of an entity whose UPC scanning systems and PLU devices it inspects; 2) self-inspection enables entities which have UPC scanning systems or PLU devices that must be inspected under the act to create their own private certification programs for the purpose of inspecting themselves; and 3) self-inspection cannot be unannounced or unbiased. The SCP believes self-inspection is contrary to the consumer protection interests the act attempts to protect. IRRC recommended that--if the Department intends to allow for self-inspection by private certification programs--it specify the criteria or limitations ''. . . necessary to preserve the unannounced inspection requirement and the integrity of procedures to protect consumers and users.''
Response: The Department believes the act cannot be construed as prohibiting self-inspection of commercially used UPC scanning systems and PLU devices by private certification programs. This is underscored by the fact that--as noted in the previous comment--the Department received comment letters from a number of legislators encouraging the Department to clarify in the final-form regulations that self-inspection by private certification programs is acceptable.
Section 4112(c) of the act refers to private certification programs, but imposes no requirement these programs be nonprofit or be completely disassociated from the entities whose UPC scanning systems and PLU devices they inspect.
A person conducting an inspection of a UPC scanning system or PLU device may be an employe or paid contractor of the entity owning that system or device. In accordance with § 5.4 (relating to certified UPC/PLU inspector), though, any person intending to conduct such an inspection must first be designated a certified UPC/PLU inspector. Sections 5.14 and 5.15 (relating to inspection and testing by the department; and suspension or revocation of certification, respectively) establish the Department's authority to oversee the quality of inspections being conducted by certified UPC/PLU inspectors, and allow the Department to revoke or suspend the certification of persons for a variety of reasons--including fraud or incompetence in inspections.
Section 4112 of the act requires inspections of UPC scanning systems and PLU devices by private certification programs be conducted on an unannounced basis. The Department has recourse against the certified UPC/PLU inspector if that person fails to inspect on an unannounced basis. The Department implemented IRRC's suggestion, and revised § 5.5 to address the requirement that a certified UPC/PLU inspector conducting inspections as part of a private certification program conduct those inspections on an unannounced basis. This requirement is also in § 5.22(a) (relating to requirements and fees). The Department is satisfied the final-form regulation properly implements the provisions of the act relating to self-inspection of commercially used UPC scanning systems and PLU devices.
Comment: The PAWM voiced the same comment offered by the SCP, and suggested that self-inspection of commercially used UPC scanning systems and PLU devices be prohibited. PAWM also offered the recommendation proposed in § 5.2(c)(3) (relating to requirement of annual testing and inspection) be revised to accomplish this prohibition.
Response: The Department declines to implement PAWM's suggestion, for the reasons articulated in the response to the immediately preceding comment.
Comment: The PWSC reviewed proposed § 5.2 and stated that it is ultimately the responsibility of the owner or user of a commercially used weighing and measuring device to ensure the device is inspected in accordance with the act. The commentator asked whether an owner or user would tend to utilize State inspectors or authorized county sealers or city sealers instead of paying a CEWM for inspection services.
Response: The Department notes that the inspections of UPC scanning systems and PLU devices referenced in § 5.2 will be conducted by certified UPC/PLU inspectors, rather than CEWMs. With this clarification, the Department is inclined to agree with the commentator. The Department will not charge for inspection services required under the act. County sealers and city sealers who conduct inspections pursuant to a memorandum of understanding with the Department may charge a fee that reasonably reflects the costs of inspection. The CEWMs and private certification programs may inspect on a for-profit basis and charge any fees they deem appropriate. The commentator is correct that the owner of any commercially used weighing and measuring device that is required to be inspected under the act may have the inspection conducted by a State Inspector at no charge (except when a county or city has undertaken inspection responsibilities pursuant to a memorandum of understanding with the Department--in which case the county or city may charge a fee that reflects the costs that are incidental to the performance of its contractual duties).
Comment: IRRC suggested proposed § 5.2(c)(1) be revised for greater clarity.
Response: The Department is satisfied that § 5.2(c)(1) clearly and accurately describes the appropriate inspection interval, and declines to implement IRRC's suggestion.
Comment: Representative Cappabianca reviewed proposed § 5.15 and noted that the suspension and revocation actions described in that section are only applicable to a certified UPC/PLU inspector who conducts inspections on behalf of a private certification program--as opposed to a certified UPC/PLU inspector who is a city sealer, a county sealer or an employe of the Department. The commentator requested an explanation of the Department's reasons for limiting its suspension and revocation authority in this section.
Response: Three categories of persons may conduct inspections of commercially used UPC scanning systems and PLU devices under the act. These are: 1) State inspectors of weights and measures (who are employes of the Department); 2) employes of a city or county acting as city sealers or county sealers in accordance with a memorandum of understanding with the Department; and 3) persons acting on behalf of private certification programs. The Department believes it has immediate and adequate recourse against any person in the first two categories who conducts any of the violations listed in § 5.15(a)(1)--(5) and that including these two categories of person within § 5.15 is unnecessary. With respect to a State inspector who commits the violation, the Department can counsel, retrain and--if necessary--discipline its employe without regard to the suspension or revocation procedure. With respect to city sealers or county sealers, the Department has recourse against the city or county under the memorandum of understanding.
Comment: IRRC recommended proposed § 5.15(b) be revised to cite the applicable rules of administrative practice and procedure the Department will employ in a due process hearing.
Response: The Department will cite any applicable rules of administrative practice and procedure in the written notice of its intention to suspend or revoke certification described in § 5.15(b).
Comment: The PWSC reviewed proposed § 5.21 (relating to registration) and asked whether a large company utilizing multiple scales could hire or employ its own CEWM. The commentator also asked whether a company could have a CEWM on staff to certify scales it loans or rents to third parties.
Response: The answer to both of the commentator's questions is yes.
Comment: Representative Cappabianca noted that proposed § 6.2 (relating to registration requirement) would exempt sellers, installers, servicers and repairers of commercially used UPC scanning systems and PLU devices from having to register with the Department. The commentator sought the rationale for this exception, noting that if the Department deleted this exception from the final-form regulations a registered seller, installer, servicer or repairer of commercially used UPC scanning systems or PLU devices would be required to provide the Department information in accordance with the reporting responsibilities in § 6.6(b) (relating to newly installed or repaired commercial weighing or measuring devices). The commentator believes this information would be useful to the Department in determining the number and location of UPC scanning systems and PLU devices throughout this Commonwealth. IRRC also endorsed this comment, and raised the question of whether the Department had the statutory authority to grant the exception in proposed § 6.2.
Response: The Department declines to delete the exception at § 6.2(b).
The Department has the statutory authority--under section 4113 of the act--to establish the registration requirements in Chapter 6. The Department believes this authority includes the discretion to exclude certain categories of persons from the registration requirement if it has a reasonable basis for doing so. This discretion is evident in section 4113 of the act, which begins with the phrase ''The department shall have the authority . . .'' to require registration. This grant of discretion contrasts with the next section of the act -- section 4114--which begins with the phrase ''The department shall establish . . .'' and imposes a mandatory requirement upon the Department.
In light of the following, the Department believes it has a reasonable basis for the exception in § 6.2(b).
Although UPC scanning systems and PLU devices are referenced in the definition of ''weights and measures'' in section 4102 of the act and the Department is responsible to inspect them under section 4112(c) of the act, they are unlike other weights and measures in several important respects.
UPC scanning systems and PLU devices do not weigh or measure anything.
The principal components of a UPC scanning system or a PLU device typically include computer equipment that has applications other than commercial weighing or measuring. For example, computer equipment that can be used to retain a database reflecting items in a store's inventory and the corresponding price of each item in that inventory can also be used for other purposes. A person who sells or installs that computer equipment would probably not consider himself a seller or installer of commercial weighing and measuring devices.
Section 7.3 (relating to requirement: registration of devices by owners) contains a requirement that the owners of commercially used UPC scanning systems and PLU devices register these devices with the Department. In addition, § 5.12 requires all certified UPC/PLU inspectors to file reports with the Department pertaining to any inspection the certified UPC/PLU inspector conducts. On balance, the Department is satisfied these sections of the final-form regulations will facilitate the Department's effort at developing a comprehensive database of the numbers, types and locations of commercially used UC scanning systems and PLU devices in this Commonwealth.
Comment: The BSC asked whether the registration requirements in proposed Chapter 6 were applicable to business entities engaged in repairing, selling, installing or servicing commercially used weighing and measuring devices, employes of those business entities, or both.
Response: The Department intended this chapter as requiring the registration of natural persons, as opposed to legal persons such as corporations, partnerships or other business organizations. Since the term ''person'' is defined in § 2.1 and is used throughout the final-form regulations, and includes legal persons, the Department has revised §§ 6.1--6.4 in the final-form regulation to make the necessary distinction between natural and legal persons.
Comment: The PWSC reviewed the registration requirements for sellers, installers, servicers and repairers of commercially used weighing and measuring devices in proposed § 6.2, and asked whether there was any relationship between these requirements and being a CEWM. This also raised the question: ''Can one person (technician) have both titles?''
Response: The requirements of Chapters 4 and 6 are distinct from each other. A CEWM may also be a registrant under § 6.2.
Comment: The BSC reviewed proposed Chapter 6 and asked how the Department intended to ensure persons registered under that chapter had adequate equipment and skill to perform installations and repairs of commercially used weighing and measuring devices.
Response: Section 6.3 (relating to field standards) requires a prospective registrant have adequate field standards. Section 6.4((b)(5) (relating to registration procedure) requires that an applicant for registration provide a copy of the current verification from the State Metrology Laboratory with respect to the accuracy of these field standards. Section 6.6 requires a newly-installed or repaired commercial weighing or measuring device be inspected by a State inspector or, when appropriate, a city sealer or county sealer. These provisions will help ensure the quality of installations and repairs of commercial weighing and measuring devices.
Comment: The PWSC reviewed proposed § 6.3 and asked how often it would be necessary for a CEWM to have the accuracy of the field standards that CEWM uses certified by the State Metrology Laboratory.
Response: The Department has revised § 6.3(b) to require that verifications of accuracy for field standards be obtained at intervals of no greater than 1 year.
Comment: IRRC reviewed proposed § 6.4(c) and suggested it be revised to reflect that an applicant for registration under Chapter 6 may not act as a seller, installer, repairer or servicer of commercially used weighing and measuring devices in this Commonwealth until notified by the Department that the application has been approved.
Response: The Department accepts this comment, and has revised § 6.2(a) accordingly.
Comment: The PAWM suggested proposed § 6.6(b) be revised to allow an installer or repairer to report an installation or repair of a commercial weighing or measuring device to the appropriate city sealer or county sealer, rather than the Department, in those instances where the city or county in which the device is located has assumed enforcement responsibilities pursuant to a memorandum of understanding with the Department. The commentator stated that this revision would decrease the time between notification and inspection. IRRC suggested this subsection be revised to require reporting to both the Department and the appropriate city sealer or county sealer.
Response: The Department declines to implement the suggested revision. The Department considered two factors in arriving at its decision: first, the Department has an interest in learning the location and type of newly-installed or repaired commercially used weighing and measuring devices and adding these devices to its database. Second, the owner or operator of the device has an interest in having the Department (or, if appropriate, a county sealer or city sealer) inspect the device promptly. The Department elected to address both these interests by requiring the installation or repair be reported to the Department and by extending the time within which the Department (or county sealer or city sealer) must inspect the device. Currently, under § 35.3 (relating to conditional use prior to inspection), newly installed devices must be inspected within 5 days and repaired devices must be inspected within 10 days. Section 6.6(d) extends both of these deadlines to 15 days. This should allow ample time for the Department to conduct the inspection or advise the appropriate county sealer or city sealer to conduct the inspection.
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