TITLE 21 AGRICULTURE
AND RANCHING
CHAPTER 16 AGRICULTURAL
WEIGHTS AND MEASURES
PART
12 APPLYING ADMINISTRATIVE
PENALTIES: WEIGHMASTER ACT
21.16.12.1 ISSUING AGENCY: New Mexico State University,
New Mexico Department of Agriculture
[21.16.12.1 NMAC - N, 3/14/2008; A, 5/29/09]
[MSC 3189, P. O. Box 30005, Las Cruces, New Mexico
88003-8005 Telephone: (575) 646-3007]
21.16.12.2 SCOPE: All parties regulated under the
Weighmaster Act.
[21.16.12.2 NMAC - N, 3/14/2008]
21.16.12.3 STATUTORY AUTHORITY: Granted to the board of regents
of New Mexico state university under the Weighmaster Act, Chapter 57, Article
18, Sections 1 through 26, New Mexico Statutes Annotated, 1978 Compilation as
amended by Chapter 80, Laws of 1979.
[21.16.12.3 NMAC - N, 3/14/2008]
21.16.12.4 DURATION: Permanent
[21.16.12.4 NMAC - N, 3/14/2008]
21.16.12.5 EFFECTIVE DATE: March 14, 2008, unless a later
date is cited at the end of a section.
[21.16.12.5 NMAC - N, 3/14/2008]
21.16.12.6 OBJECTIVE: This part provides for
assessment of administrative penalties for violations of the Weighmaster Act or
rules adopted under the act and specifies the appeal process.
[21.16.12.6 NMAC - N, 3/14/2008]
21.16.12.7 DEFINITIONS:
A. “Department” means the New Mexico
department of agriculture.
B. “Director” means the
director/secretary of the New Mexico department of agriculture.
C. “Division director” means the
director of the division of standards and consumer services within the New
Mexico department of agriculture.
D. “Inspector” means an individual employed
by the New Mexico department of agriculture who, under the direction of the
director, is granted the same authority as the director for the administration
of the Weighmaster Act and associated rules.
E. “Violation /offense” means
disregard of field enforcement actions or the law.
F. “Routine inspection” means
inspections conducted within the prescribed guidelines for frequency.
G. “Testing and inspection procedures” means procedures
adopted from various handbooks, rules and reference materials which include,
but are not limited, to the following: the
national institute of standards and technology (NIST) handbook 44,
specifications, tolerances, and other technical requirements for weighing and
measuring devices; NIST handbook 112, examination procedure outlines for
commercial weighing and measuring devices a manual for weights and measures
officials.
[21.16.12.7 NMAC - N, 3/14/2008]
21.16.12.8 [RESERVED]
21.16.12.9 ASSESSING PENALTIES: The assessment of
administrative penalties will be used as an intermediate step between field
enforcement actions and court action, or when out of orders are not appropriate
or have proven to be ineffective in resolving a problem, and not as a daily
punitive enforcement tool. All monies
derived from administrative penalties to be deposited in the state general fund
after all expenses. When a duly
authorized agent of the director finds, in his judgment, that a person has
violated a provision of law or rules adopted pursuant to law, with concurrence
of the supervisor, he shall notify the person in writing that the department
intends to assess a penalty in accordance with the provisions of this
rule. Such penalty may be in addition to
or in lieu of administrative actions.
The department also reserves the right to file criminal charges
according to the provisions of the laws administered by the department.
A. The inspector shall notify his division director, through
his immediate supervisor, of the proposed penalty. The division director shall
review the facts in the case, and may request additional information. If the division director determines there
should be no penalty assessed, the alleged violator shall be notified in
writing.
B. If the division director, after careful review and
consideration determines there should be a penalty assessed, he shall make
recommendation to the director as to the amount and nature of the penalty. The director shall review the facts in the
case, and may request additional information.
If the director determines there should be no penalty, the alleged
violator shall be notified in writing by the division director. If the director determines a penalty is
warranted by the facts in the case, he shall notify the alleged violator of the
amount and nature of the penalty.
Violations/offenses are per business location not per company and will
be based on offenses per routine inspection. All inspections will be based on
adopted testing and inspection procedures. In making his determination as to
the nature and amount of penalty, the director shall be guided by Sections 10,
11, 12, and 14 of this part.
[21.16.12.9
NMAC - N, 3/14/2008]
21.16.12.10 GRAVITY OF VIOLATION:
A. Factors: Any one
or all of the following factors may be considered in determining the gravity of
a violation.
(1) Potential monetary consequences.
(2) Degree of inconvenience or deception to
the user or prospective user.
(3) Degree of disregard for the law.
B. COLUMN A: Minimal gravity -- When the violation has a
minimal gravity, the penalty shall be determined from Column A, Section 14.
C. COLUMN B: Moderate gravity -- When the violation
has a moderate gravity, the penalty shall be determined from Column B, Section
14.
D. COLUMN C: Great
gravity -- When the violation has a great gravity, the penalty shall be
determined from Column C, Section 14.
[21.16.12.10
NMAC - N, 3/14/2008]
21.16.12.11 FREQUENCY OF VIOLATION: The more frequently a person
commits the same violation, the greater the penalty shall be, as provided by
the table in Section 14.
A. When a person commits the same violation more than three
(3) times in a twelve (12) month period, double the penalty for the third
violation shall be assessed.
B. The period of time in determining frequency of violations
shall be a twelve (12) month period. If
a person has not committed the same offense in a twelve (12) month period, the
next offense shall be considered as a first offense.
C. A person who has committed the same offense three times
in five (5) years shall not be protected by the twelve (12) month limitation
and shall be subject to the penalty for the third offense.
[21.16.12.11
NMAC - N, 3/14/2008]
21.16.12.12 APPEALS:
A. Any person accused of a violation for which a penalty has
been assessed may request a hearing before the director to contest the amount
of the penalty or whether the violation occurred or both.
B. A request for a hearing before the director must be in
writing and must be submitted within fifteen (15) days of notification of
penalty
C. In the event the alleged violator does not feel the
department followed the correct procedures in arriving at a decision in his/her
case, the individual may ask the district court to review the administrative
proceedings and penalty in the manner and to the extent provided by the laws of
New Mexico. If the penalty is not set
aside or abated, the original penalty is due and payable as provided in Section
13.
[21.16.12.12
NMAC - N, 3/14/2008]
21.16.12.13 PAYMENT OF PENALTY: If no hearing is requested, the
penalty is due and payable within thirty (30) days of the issuance of notice of
the violation. Failure to pay will be
considered an additional offense and the penalty originally applied will be
doubled.
[21.16.12.13
NMAC - N, 3/14/2008]
21.16.12.14 PENALTY TABLE:
TABLE I
FIRST OFFENSE SECOND OFFENSE THIRD OFFENSE
Gravity A B C A B C A B C
$250. $1000. $1500. $2000. $2500. $3000. $3500. $4000. $5000.
[21.16.12.14
NMAC - N, 3/14/2008]
HISTORY
OF 21.16.12 NMAC: [RESERVED]