87R13856 TYPED     By: Goldman H.B. No. 3408       A BILL TO BE ENTITLED   AN ACT   relating to motor fuel metering and quality.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 2310.001 of the Occupations Code is   amended as follows:          Sec. 2310.001.  DEFINITIONS. (a)  In this chapter:                (1)  "Automotive fuel rating" has the meaning assigned   by 15 U.S.C. Section 2821.                (2) [(1)]  "Commercial [weighing or] measuring device"   means a [weighing or] measuring device used in a commercial   transaction.                (3) [(2)]  "Commission" means the Texas Commission of   Licensing and Regulation.                (4) [(3)]  "Dealer" means a person who[:]                      [(A)] is the operator of a retail motor fuel   facility [ service station or other retail outlet; and]                      [(B) delivers motor fuel into the fuel tanks of   motor vehicles or motor boats].                (5) [(4)]  "Department" means the Texas Department of   Licensing and Regulation.                (6)  "Distributor" means a person who makes retail or   wholesale sales of motor fuel.                (7) [(5)]  "Executive director" means the executive   director of the department.                (8) [(6)]  "Motor fuel" means gasoline, diesel fuel,   gasoline blended fuel, aviation gasoline, aviation jet fuel,   compressed natural gas, liquified natural gas, and other products   that are capable of use as fuel for a gasoline-powered engine or a   diesel-powered engine [has the meaning assigned by Section 162.001,   Tax Code].                (9) [(7)]  "Motor fuel metering device" means a   commercial [weighing or] measuring device used for motor fuel   sales.                (10) [(8)]  "Operator" or "user" means a person in   possession or control of a [weighing or] measuring device,   including an owner, custodian, and seller.                (11) [(9)]  "Sell" includes barter or exchange.                (12)  "Supplier" has the meaning assigned by Section   162.001, Tax Code.                (13) [(10)]  "Measuring [Weighing or measuring]   device" means a [scale or a] mechanical or electronic device used to   dispense or deliver a motor fuel by [weight,] volume, flow rate, or   other measure or to compute the charge for a service related to   motor fuel.                [(11) "Weight or measure of a motor fuel" means the   weight or measure of a motor fuel as determined by a weighing or   measuring device.]                (14)  "Wholesaler" means a person who purchases   tax-paid gasoline for resale or distribution at wholesale.          SECTION 2.  Section 2310.002(c) of the Occupations Code, is   amended as follows:          (c)  The department may contract with one or more license   holders under Subchapter D of this chapter [or Subchapter I,   Chapter 13, Agriculture Code,] to perform the department's duties   under this chapter related to motor fuel metering devices. A   reference in this chapter to the commission or department in the   context of a contracted service means the contractor.          SECTION 3.  Section 2310.051 of the Occupations Code is   amended as follows:          Sec. 2310.051.  LEGAL STANDARDS. (a) The legal standard for   the [weight or] measure of a motor fuel in this state is the   standard [weight or] measure adopted and used by the government of   the United States for that motor fuel. If the United States does   not provide a standard [weight or] measure for a motor fuel, the   standard for the motor fuel is that established by this subchapter.          (b)  The commission may adopt rules for the purpose of   administering this subchapter and bringing about uniformity   between the standards established under this subchapter and the   standards established by federal law.          (c)  Except as otherwise provided by an express contract, a   contract for work or sales by [weight or] measure of a motor fuel   shall be construed in accordance with the standards of this   subchapter.          (d)  The standards of this subchapter shall be the guide for   making any adjustment of [weighing or] measuring devices under the   law of this state.          SECTION 4.  Section 2310.053 of the Occupations Code is   amended by adding subsection (c) as follows:          (c)  A weighing or measuring device, as described by Chapter   13, Agriculture Code, that measures liquified petroleum gas is   exempt from this chapter.          SECTION 5.  Sections 2310.054, 2310.057, 2310.059, and   2310.060 of the Occupations Code are amended as follows:          Sec. 2310.054.  SALE OF MOTOR FUEL BY PROPER MEASURE. (a)     Motor [Except as otherwise provided by this section, motor] fuel   shall be sold by liquid measure.          [(b)  Compressed natural gas and liquefied natural gas shall   be sold by weight].          (b) [(c)]  A person violates this chapter if, in violation of   this section, the person sells motor fuel by other than [weight or]   liquid measure.          Sec. 2310.056.  FALSE REPRESENTATION OF MOTOR FUEL QUANTITY.   A person violates this chapter if the person or the person's   representative or agent:                (1)  sells or offers or exposes for sale a quantity of   motor fuel that is less than the quantity the person represents; or                (2)  as a buyer furnishing the [weight or] measure of a   motor fuel by which the amount of the motor fuel is determined,   takes or attempts to take more than the quantity the person   represents.          Sec. 2310.057.  USE OF INCORRECT MOTOR FUEL METERING DEVICE.   (a) A person commits an offense if the person or the person's   representative or agent knowingly uses an incorrect [weighing or]   measuring device in:                (1)  buying or selling motor fuel; or                (2)  computing a charge for services rendered on the   basis of [weight or] measure; or                (3)  determining the [weight or] measure of motor fuel,   if a charge is made for the determination.          Sec. 2310.059.  TESTING BY DEPARTMENT. (a) The department   shall from time to time [weigh or] measure an amount of motor fuel   that is kept or offered for sale, sold, or in the process of   delivery, in order to determine:                (1)  if the motor fuel is of the amount or quantity   represented; or                (2)  if the motor fuel is being offered for sale or sold   in accordance with law.          (b)  If the department finds that any lot of motor fuel   contains less of the motor fuel than the amount represented, the   department may seize the motor fuel as evidence.          (c)  A person commits an offense if the person or the   person's employee or agent refuses to exhibit motor fuel being sold   or offered for sale at a given [weight or] quantity, or ordinarily   sold in that manner, to the department for testing and proving as to   quantity.          Sec. 2310.060.  STOP-SALE ORDER. (a) If the department has   reason to believe that motor fuel is being sold or kept, offered, or   exposed for sale in violation of this chapter or that motor fuel is   being sold or offered for sale by or through the use of a motor fuel   metering device that is in violation of this chapter, the executive   director may issue an order to stop the sale of the motor fuel. The   executive director shall issue the order to the dealer or operator   of the retail motor fuel facility selling or offering [owner or   custodian of] the motor fuel for sale [or seller of the motor fuel].   The person receiving the order may not sell the motor fuel until   discharged by a court under Subsection (b) or until the executive   director finds that the motor fuel or motor fuel metering device is   in compliance with this chapter.          (b)  A dealer or operator [The owner, custodian, or seller of   motor fuel] prohibited from selling motor fuel [sale] by an order of   the executive director is entitled to sue in a court where the motor   fuel is found or is being sold or offered for sale for a judgment as   to the justification of the order and for the discharge of the motor   fuel in accordance with the findings of the court.          (c)  This section does not limit the right of the department   to proceed as authorized by other sections of this code.          SECTION 6.  Section 2310.061(b) of the Occupations Code is   amended as follows:          (b)  It is a defense to prosecution or to the imposition of a   civil or administrative penalty for a violation of Section 2310.057   or 2310.059 that a discrepancy between the actual [weight or]   volume at the time of sale to a consumer or a discrepancy between   the fill of a container and the capacity of the container is due to   unavoidable leakage, shrinkage, evaporation, waste, or causes   beyond the control of the seller acting in good faith.          SECTION 7.  Sections 2310.101 and 2310.106 of the   Occupations Code are amended as follows:          Sec. 2310.101.  AUTHORITY TO INSPECT. [(a)] If the   department has reason to believe that a motor fuel metering device   is being used for a commercial transaction, [and] the device is not   registered with the department, or the device is being used to   facilitate the perpetuation of fraud, the department may inspect   the device and the records [of the owner, operator, or user of the   device] that relate to use of the device to determine whether the   device is in compliance with this chapter.          [(b)  The department has reason to believe a motor fuel   metering device is being used for a commercial transaction if:]                [(1)  the motor fuel metering device is found near   motor fuel being sold or offered for sale by weight or measure and   the device appears to be under the control or in the possession of   the person selling the motor fuel or offering the motor fuel for   sale; or]                [(2)  other available evidence is sufficient for a   prudent person to believe that the motor fuel metering device is   being used for a commercial transaction.]          Sec. 2310.106.  INSPECTION OF STANDARDS USED TO PERFORM   DEVICE MAINTENANCE ACTIVITIES. (a)  In this section, "state   metrology laboratory" means the metrology laboratory maintained by   the Department of Agriculture under Subchapter C, Chapter 13,   Agriculture Code.          (b)  The commission may adopt rules to regulate the frequency   and place of inspection and correction of the standards for motor   fuel used by an individual or business licensed by the department to   perform device maintenance activities under Subchapter D [or an   individual or business licensed under Subchapter I, Chapter 13,   Agriculture Code].          (c)  The department may inspect any standard for motor fuel   used by an individual or business licensed by the department to   perform device maintenance activities described by Subchapter D [or   an individual or business licensed under Subchapter I, Chapter 13,   Agriculture Code], if the department has reason to believe a   standard is no longer in compliance with this chapter.          (d)  The department shall keep a record of the inspection and   character of standards for motor fuel inspected under this section.          [(e)  The state metrology laboratory shall purchase   additional sets of standards as necessary for use by a department   inspector or other department personnel.]          (f)  The state metrology laboratory, or a metrology   laboratory certified by the National Institute of Standards and   Technology and approved by the department, shall inspect and   correct the standards for motor fuel used by the [a] department   [inspector, another department employee], or an individual or   business licensed by the department to perform device maintenance   activities under Subchapter D[, or an individual or business   licensed under Subchapter I, Chapter 13, Agriculture Code].          (g)  The department and the state metrology laboratory may   shall enter into a memorandum of understanding to implement this   section. The memorandum of understanding must provide department   personnel and persons licensed under Subchapter D with access to   state metrology laboratory services equal to the access provided to   Department of Agriculture personnel and persons licensed under   Subchapter I, Chapter 13, Agriculture Code, and under equivalent   terms and conditions.          SECTION 8.  Section 2310.110(b) of the Occupations Code is   amended as follows:          (b)  A person commits an offense if the person or the   person's representative or agent knowingly:                (1)  offers or exposes for sale, hire, or award or sells   an incorrect motor fuel metering device;                (2)  possesses an incorrect motor fuel metering device;   or                (3)  sells, offers for sale, uses, or possesses for the   purpose of sale or use a device or instrument to be used to falsify   or intended to falsify a [weight or] measure for motor fuel.          SECTION 9.  Section 2310.154(a) of the Occupations Code is   amended as follows:          (a)  A person is not required to hold a license issued under   this subchapter if the person:                (1)  is a department employee who is performing device   maintenance activities in the scope of the person's duties for the   department;                (2)  is the owner or operator of a motor fuel metering   device or an employee of the owner or operator of a motor fuel   metering device and the person:                      (A)  completely removes the motor fuel metering   device from the location at which the device was installed,   including a device subject to an out-of-order tag, stop-sale order,   security seal, lock, condemnation notice, or other item placed on   the device by the department to prohibit use of the device; and                      (B)  notifies the department of the motor fuel   metering device's removal not later than the 10th day after the date   the device was removed in the manner provided by commission rule;                (3)  performs device maintenance activities only on a   motor fuel metering device that is:                      (A)  exempt from the inspection and registration   requirements of Sections 2310.102 and 2310.103 under commission   rules; and                      (B)  not required to be inspected by other   commission rules; or                [(4)  is a license holder under Subchapter I, Chapter   13, Agriculture Code.]          SECTION 10.  Section 2310.2012(a) of the Occupations Code is   amended as follows:          (a)  Except as provided by Subsection (b), a distributor,   supplier, or wholesaler[, or jobber] of motor fuel may not deliver   to an outlet in this state a motor fuel mixture that contains   ethanol or methanol exceeding one percent by volume of the mixture   unless, at the time of the delivery of the mixture, the person also   delivers to the outlet receiving the delivery a manifest, bill of   sale, bill of lading, or other document evidencing delivery of the   mixture, that includes a statement containing:                (1)  the percentage of ethanol or methanol contained in   the mixture; and                (2)  the types and percentages of any associated   cosolvents contained in the mixture.          SECTION 11.  Section 2310.2013 of the Occupations Code is   amended as follows:          Sec. 2310.2013.  RECORD OF DELIVERY DOCUMENTS; INSPECTION   AUTHORIZED. (a) Each dealer shall keep a copy of each document   required to be delivered to the dealer by Section 2310.2012 until   the fourth anniversary of the delivery date.          (b)  Each distributor, supplier, and wholesaler[, and   jobber] of motor fuel shall keep a copy of each document required to   be delivered to the dealer by Section 2310.2012 until the fourth   anniversary of the delivery date.          (c)  The department or an authorized representative of the   department may inspect documents described by this section. On   written notice issued by the department or an authorized   representative of the department to any employee at a dealer's   retail motor fuel facility [station or retail outlet] or mailed to   the principal place of business of a dealer, distributor, supplier,   or wholesaler, [or jobber,] the dealer, distributor, supplier, or   wholesaler[, or jobber] shall provide the department or authorized   representative of the department with the documents described by   this section within the period specified in the notice.          (d)  The commission by rule may:                (1)  require each dealer, distributor, supplier, and   wholesaler[, and jobber] to maintain and make available to the   department:                      (A)  invoices, receipts, or other transmittal   documents or records, including electronically stored information,   showing or describing the purchase, sale, delivery, or distribution   of motor fuel;                      (B)  invoices, receipts, work orders, reports, or   other documents, including electronically stored information,   showing or describing the installation, maintenance, or repair of:                            (i)  motor fuel dispensing devices; and                            (ii)  any equipment used in connection with   motor fuel dispensing devices to record, display, or produce   receipts or audit trails concerning the purchase, sale, delivery,   or distribution of motor fuel; and                      (C)  any record or other document related to the   sampling and testing of motor fuel purchased, sold, delivered, or   distributed by the dealer, distributor, supplier, or wholesaler[,   or jobber]; and                (2)  prescribe:                      (A)  the manner of filing documents or records   required to be kept under this section or by commission rule; and                      (B)  the time, place, and manner of inspection of   the documents or records.          SECTION 12.  Section 2310.2014 of the Occupations Code,   subsections (b) and (c) are amended as follows:          (b)  Each distributor, [or] supplier, or wholesaler shall   keep for at least one year at the distributor's, [or] supplier's, or   wholesaler's principal place of business a copy of each delivery   ticket or letter of certification required to be delivered by the   distributor, [or] supplier, or wholesaler to a dealer in this state   under 16 C.F.R. Part 306.          (c)  The department or an authorized representative of the   department may inspect a document required to be kept under this   section. On written notice issued by the department or an   authorized representative of the department to any employee at a   dealer's retail motor fuel facility [station or retail outlet] or   mailed to the dealer's principal place of business, the dealer   shall provide the department or authorized representative of the   department with the documents described by this section within the   period specified in the notice.          SECTION 13.  Section 2310.2015(b) of the Occupations Code,   is amended as follows:          (b)  A distributor, wholesaler or supplier of motor fuel may   not deliver or transfer to a dealer in this state motor fuel that   has an automotive fuel rating lower than the certification of the   rating the distributor, wholesaler or supplier is required to make   to the dealer under federal law.          SECTION 14.  Section 2310.203 of the Occupations Code, is   amended as follows:          Sec. 2310.203.  TESTING OF MOTOR FUEL QUALITY. (a) The   department or an authorized [a] representative of the department   may collect samples and conduct testing at any location where motor   fuel is kept, transferred, sold, or offered for sale to verify that   the motor fuel complies with the minimum standards required by   Section 2310.202.  A license holder under Subchapter D of this   chapter is considered an authorized representative of the   department for purposes of this section.          [(b)  The collection of samples and conducting of testing at   a dealer's location must be performed by a license holder under   Subchapter D of this chapter or Subchapter I, Chapter 13,   Agriculture Code, under contract with the dealer. The license   holder is considered a representative of the department for   purposes of this section.]          (b) [(c)]  On arriving at a facility to conduct testing under   Subsection (a), the department or an authorized [a] representative   of the department shall notify the owner or manager of the facility   of the department's or authorized representative's presence and   purpose.  The department or an authorized representative of the   department shall follow the most recent applicable procedures   specified by the American Society for Testing and Materials (ASTM)   International Standard D4057, D4177, D5842, or D5854 for the   collection, sampling, and handling of fuel to prepare for   laboratory analysis.          (c) [(d)]  A person commits an offense if the person refuses   to allow the [a] department or an authorized representative of the   department to collect samples or conduct motor fuel testing under   Subsection (a).          (d) [(e)]  An offense under Subsection (c) [(d)] is a Class C   misdemeanor.          SECTION 15.  Section 2310.207 of the Occupations Code,   subsections (a) and (b), are amended as follows:          Sec. 2310.207.  CIVIL ACTION. (a) If a dealer or a   distributor, supplier, or wholesaler[, or jobber] of motor fuel   violates Section 2310.201, 2310.2012, 2310.2013, 2310.2014, or   2310.2015, a person [motor fuel user] who purchased the motor fuel   and sustained damages or who has a complaint about the product may   bring an action against the dealer, distributor, supplier, or   wholesaler[, or jobber].          (b)  The action may be brought, without regard to the   specific amount of damages, in the district court in any county in   which:                (1)  the dealer, distributor, supplier, or    wholesaler[, or jobber] transacts business; or                (2)  the dealer resides.          SECTION 16.  Section 2310.208 of the Occupations Code is   amended as follows:          Sec. 2310.208.  CIVIL PENALTY. A dealer, distributor,   supplier, or wholesaler[, or jobber] who violates Section 2310.201,   2310.2012, 2310.2013, 2310.2014, or 2310.2015 is liable to this   state for a civil penalty of not less than $200 and not more than   $10,000.          SECTION 17.  Chapter 2310 of the Occupations Code is amended   by adding Subchapter F as follows:   SUBCHAPTER F. MOTOR FUEL METERING AND QUALITY ADVISORY BOARD.          Sec. 2310.220.  Board; Membership.  (a)  The Motor Fuel   Metering and Quality Advisory Board consists of nine members   appointed by the presiding officer of the commission, with the   commission's approval, as follows:                (1)  two members who are dealers, or their   representatives:                      (A)  one member with 500 or fewer registered   devices;                      (B)  one member with more than 1,000 registered   devices;                (2)  one member who represents a service company   licensed by the department;                (3)  one member who represents a wholesaler or   distributor;                (4)  one member who represents a supplier;                (5)  one member who represents a financial institution,   as defined by 277.001(3), Financial Code, or credit card issuer;   and                (6)  one member who represents a law enforcement   agency.          (b)  Appointments to the board shall be made without regard   to the race, color, disability, sex, religion, age, or national   origin of the appointee.          Sec. 2310.221.  Terms; Vacancy.  (a)  Members of the board   serve staggered six-year terms, with the terms of one or two members   expiring on the same date each odd-numbered year.          (b)  If a vacancy occurs during a member's term, the   presiding officer of the commission, with the commission's   approval, shall appoint a replacement to fill the unexpired term.          Sec. 2310.222.  Presiding Officer.  The presiding officer of   the commission, with the commission's approval, shall designate one   member of the advisory board as presiding officer to serve in that   capacity for a two-year term.          Sec. 2310.223.  Board Duties.  The board may advise the   commission and department on:                (1)  the adoption of appropriate standards for the   installation, maintenance, calibration, alteration, operation,   testing, and inspection of motor fuel dispensers, devices, and   fuel;                (2)  education and curricula for applicants and   licensees;                (2)  the content of examinations;                (3)  proposed rules and standards on technical issues   related to motor fuel metering and quality and payment card fraud,   including payment card skimmers and shimmers; and                (4)  other issues affecting motor fuel metering and   quality.          (b)  The advisory board shall meet at the call of the   executive director or the presiding officer of the commission.          SECTION 18.  The following provision of the Occupations Code   are repealed:                (1)  Section 2310.2001.          SECTION 19.  Not later than December 31, 2021, the Texas   Commission of Licensing and Regulation shall appoint members to the   motor fuel metering and quality advisory board in accordance with   this Act.          SECTION 20.  This Act takes effect immediately if it   receives a vote of two-thirds of all the members elected to each   house, as provided by Section 39, Article III, Texas Constitution.     If this Act does not receive the vote necessary for immediate   effect, the Act takes effect September 1, 2021.