PRIOR PRINTER'S NOS. 770, 1976 PRINTER'S NO. 2133
No. 684 Session of 2007
INTRODUCED BY MARKOSEK, CARROLL, LONGIETTI, PAYTON, WAGNER, BENNINGTON, CALTAGIRONE, FABRIZIO, FRANKEL, FREEMAN, GEIST, GIBBONS, HENNESSEY, JAMES, JOSEPHS, KORTZ, KOTIK, LEVDANSKY, MAHONEY, MANN, MYERS, PICKETT, PRESTON, SABATINA, SANTONI, STAIRS, SURRA, TANGRETTI, THOMAS, WALKO, WATSON, KULA, HORNAMAN, SIPTROTH, RAMALEY, SCAVELLO, COSTA, MAHER, GERGELY, GRUCELA, GOODMAN AND PAYNE, MARCH 9, 2007
AS RE-REPORTED FROM COMMITTEE ON TRANSPORTATION, HOUSE OF REPRESENTATIVES, AS AMENDED, JUNE 27, 2007
AN ACT 1 Providing for the establishment of an automotive fuel testing 2 and disclosure program, for standards for automotive fuel and 3 for inspection, sampling and testing of automotive fuel; 4 imposing powers and conferring duties on the Department of 5 Agriculture; ESTABLISHING THE OCTANE TESTING ACCOUNT; and <-- 6 providing for penalties. 7 The General Assembly of the Commonwealth of Pennsylvania 8 hereby enacts as follows: 9 Section 1. Short title. 10 This act shall be known and may be cited as the Automotive 11 Fuel Testing Act. 12 Section 2. Definitions. 13 The following words and phrases when used in this act shall 14 have the meanings given to them in this section unless the 15 context clearly indicates otherwise: 16 "American Society for Testing and Materials" or "ASTM." An 17 organization which develops quality standards and test methods
1 for petroleum products. 2 "Antiknock characteristics." The number assigned to an 3 automotive fuel which designates the antiknock quality of such 4 fuel. 5 "Antiknock quality." The distinctive properties or 6 components of a grade or type of automotive fuel which enhance 7 the performance of such fuel. 8 "Automotive fuel." A liquid fuel of a type distributed for 9 use as a fuel in any motor vehicle. The term shall include, but 10 is not limited to: 11 (1) Automotive spark-ignition engine fuel, which 12 includes, but is not limited to: 13 (i) Gasoline. 14 (ii) Gasohol, a mixture of unleaded gasoline and at 15 least 10% denatured ethanol. 16 (iii) Fuels developed to comply with the Clean Air 17 Act (Public Law 95-95, 42 U.S.C. § 7401 et seq.), such as 18 reformulated gasoline and oxygenated gasoline. 19 (2) Alternative liquid automotive fuels, including, but 20 not limited to: 21 (i) Methanol, denatured ethanol and other alcohols. 22 (ii) Mixtures of gasoline containing 85% or more by 23 volume of methanol, denatured ethanol and other alcohols. 24 "Automotive fuel rating." For automotive spark-ignition 25 engine fuel, the octane rating or, for alternative liquid 26 automotive fuel, the commonly used name of the fuel with a 27 disclosure of the amount, expressed as a minimum percent by 28 volume, of the principal components of the fuel. 29 "Consumer." A person who purchases automotive fuel for 30 purposes other than resale. 20070H0684B2133 - 2 -
1 "Department." The Department of Agriculture of the 2 Commonwealth. 3 "Dispenser" or "dispensing system." A device designed to 4 measure and deliver automotive fuel into the fuel supply tank of 5 a motor vehicle. 6 "Distributor." A person who receives automotive fuel in this 7 Commonwealth for storage and subsequent distribution to another 8 person other than the consumer. 9 "EPA." The United States Environmental Protection Agency. 10 "FTC." The United States Federal Trade Commission. 11 "Fueling dispensers." Individual fueling points, recognized 12 by price and/or volume displays for the devices' points of sale. 13 "Load rack terminals." A location where the commercial 14 transfer of petroleum products at the wholesale level is 15 conducted utilizing meters employed in the measurement of 16 product delivered to the seller by the buyer. 17 "Octane rating" or "octane number." The rating of the 18 antiknock characteristics of a grade or type of automotive fuel, 19 as determined by dividing by two the sum of the research octane 20 number plus the motor octane number, unless another procedure is 21 determined by the Department of Agriculture to be more 22 appropriate for the purposes of this act. 23 "Oxygenate." A substance which, when added to gasoline, 24 increases the amount of oxygen in that gasoline blend. 25 "Oxygenate blender." A person who owns, leases, operates, 26 controls or supervises an oxygenate blending facility. 27 "Oxygenate blending facility." A refinery, bulk terminal, 28 bulk plant, other facility or truck or another place at which 29 oxygenated gasoline is produced. 30 "Oxygenated gasoline." Gasoline which contains at least 2% 20070H0684B2133 - 3 -
1 oxygen by weight. 2 "Person." A natural person, corporation, partnership, 3 association or other legal entity. 4 "Producer." A person who purchases component elements and 5 blends them to produce automotive fuel. 6 "Refiner." A person engaged in the manufacture, production 7 or importation of automotive fuel. 8 "Reformulated gasoline." Any gasoline which is certified by 9 the Environmental Protection Agency as complying with the 10 requirements of section 211 of the Clean Air Act (Public Law 95- 11 95, 42 U.S.C. § 7401 et seq.) and any regulations promulgated 12 pursuant to the Clean Air Act. 13 "Research octane number" and "motor octane number." The 14 terms shall have the meanings given these terms in the 15 specifications of the American Society for Testing and Materials 16 entitled "Standard Specifications for Automotive Spark Ignition 17 Engine Fuel," designated D4814, and, with respect to any grade 18 or type of automotive fuel, are determined in accordance with 19 the test methods set forth in American Society for Testing and 20 Materials standard test methods, designated D2699, "Standard 21 Test Method for Knock Characteristics of Motor Fuels by the 22 Research Method," and ASTM D2700, "Standard Test Method for 23 Knock Characteristics of Motor and Aviation Fuels by the Motor 24 Method." 25 "Retailer." A person who sells automotive fuel to the 26 consumer. 27 "Secretary." The Secretary of Agriculture of the 28 Commonwealth. 29 Section 3. Automotive Fuel Testing and Disclosure Program. 30 (a) Establishment.--The department shall establish and 20070H0684B2133 - 4 -
1 implement the Automotive Fuel Testing and Disclosure Program. 2 (b) Program requirements.--The Automotive Fuel Testing and 3 Disclosure Program shall provide for the testing of automotive 4 fuel on a random, unannounced basis and otherwise as determined 5 necessary by the department. 6 (c) Duties of department.--The department shall enforce the 7 provisions of this act and shall: 8 (1) Appoint or employ such inspectors as may be 9 necessary to carry out the provisions of this act. 10 (2) Take samples of automotive fuel wherever it is 11 processed, produced, blended, held, stored, imported, 12 transferred, offered or exposed for sale or use or sold in 13 this Commonwealth. The samples shall be taken in accordance 14 with procedures and standards prescribed by ASTM. 15 (3) Inspect and test automotive fuel samples in 16 accordance with the methods of the ASTM or other test methods 17 adopted by the FTC pursuant to the Petroleum Marketing 18 Practices Act (Public Law 95-297, 15 U.S.C. § 2801 et seq.) 19 or by regulation of the department to determine whether such 20 automotive fuel complies with the requirements of this act. 21 (4) Maintain records of all inspections. 22 (5) Inspect and test samples submitted to the department 23 by a distributor or retailer. The department may by 24 regulation establish and collect fees from any distributor or 25 retailer who submits automotive fuel samples to the 26 department for testing. 27 (6) Inspect the labeling of automotive fuel dispensers 28 and storage tanks at retail businesses or locations where 29 such products are sold or offered or exposed for sale or use. 30 (7) Enter into contractual agreements with qualified 20070H0684B2133 - 5 -
1 laboratories for the purpose of analyzing automotive fuel
2 samples.
3 (8) Promulgate such regulations as necessary for the
4 enforcement and administration of this act.
5 (d) Sealers of weight and measures.--The department may
6 enter into agreements with any city or county for which a sealer
7 has been appointed for the enforcement of provisions of this act
8 and rules or regulations promulgated under this act. The sealer
9 of a city or county shall have the same authority and shall
10 perform the same duties within the city or county as are granted
11 to and imposed upon the department with respect to the
12 inspection, testing and taking of automotive fuel samples.
13 Section 4. Standards for automotive fuel.
14 (a) Adoption of standards.--The department shall adopt
15 standards for automotive spark-ignition engine fuels. The
16 department shall adopt the latest standards of the ASTM or other
17 standards as determined by the FTC.
18 (b) Automotive fuel.--Gasoline sold, offered or exposed for
19 sale, stored or held for distribution in this Commonwealth shall
20 comply with ASTM specification D4814 and with the volatility
21 requirements promulgated by the EPA under 40 CFR Part 80 PT. 80 <--
22 (RELATING TO REGULATION OF FUELS AND FUEL ADDITIVES). Gasoline
23 may be blended with an agriculturally derived ethanol or with a
24 detergent additive, antiknock additive or any other additive
25 approved and registered by the EPA. After gasoline is sold,
26 transferred or otherwise removed from a refinery, the gasoline
27 shall not be sold, offered or exposed for sale or stored or held
28 for distribution to a consumer in this Commonwealth if it has
29 been:
30 (1) Blended with any other petroleum product which is
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1 not gasoline unless the blended product conforms with ASTM 2 standards. 3 (2) Blended with products commonly and commercially 4 known as casinghead gasoline, absorption gasoline, 5 condensation gasoline, drip gasoline or natural gasoline. 6 (3) Blended with any contaminant. 7 (c) Records and audits.--Each distributor, producer or 8 retailer who distributes, produces, transports, stores, sells or 9 offers or exposes for sale automotive fuel in this Commonwealth 10 shall maintain for one year original copies of all bills, 11 manifests, delivery tickets, invoices and any other information 12 the department may by regulation require for the purpose of 13 audits by the department. 14 Section 5. Automotive fuel rating; disclosure and labeling 15 requirements. 16 (a) Disclosure requirements.--Each distributor, producer or 17 refiner who sells or offers or exposes for sale, delivers, 18 distributes or produces automotive fuel in this Commonwealth 19 shall provide, at the time of delivery, a bill, shipping 20 manifest or other type of written invoice to the person who 21 receives the automotive fuel. The bill, shipping manifest or 22 other written invoice shall state the automotive fuel rating. 23 (b) Posting and labeling requirements.--Each retailer of 24 automotive fuel in this Commonwealth shall label in a clear and 25 conspicuous manner each automotive fuel dispenser which is used 26 to sell or offer or expose for sale automotive fuel, with the 27 automotive fuel rating of such fuel, which shall be consistent 28 with the automotive fuel rating certified to such retailer by 29 the refiner or distributor, as the case may be. In the case of 30 gasoline which is blended with other gasoline by the retailer, 20070H0684B2133 - 7 -
1 the automotive fuel rating shall be the average, weighted by 2 volume, of the octane rating certified to the retailer by the 3 distributor or refiner for each gasoline in the blend, or 4 consistent with the lowest octane rating for any gasoline in the 5 blend as certified to the retailer by a refiner or distributor. 6 (c) Oxygenated gasoline labeling requirements.--Whenever 7 oxygenated gasoline is sold, a person who sells or offers or 8 exposes such gasoline for sale shall clearly and conspicuously 9 label the dispenser which is used to sell oxygenated gasoline at 10 retail or to dispense oxygenated gasoline into the fuel supply 11 tanks of motor vehicles with a notice stating that the gasoline 12 is oxygenated and will reduce the carbon monoxide emissions from 13 the motor vehicle. 14 (d) Reformulated gasoline labeling requirements.--Whenever 15 reformulated gasoline is required to be sold, a person who sells 16 or offers or exposes such gasoline for sale shall clearly and 17 conspicuously label the dispenser which is used to sell 18 reformulated gasoline at retail or to dispense reformulated 19 gasoline into the fuel supply tanks of motor vehicles with a 20 notice stating that the gasoline is reformulated. 21 (e) Representation of antiknock characteristics of 22 automotive fuel.--No distributor of automotive fuel in this 23 Commonwealth shall make any representation of the antiknock 24 characteristics of automotive fuel unless the representation 25 discloses the minimum antiknock index requirements of the fuel 26 as adopted by the National Conference of Weights and Measures 27 and published in Handbook 130, and supplements thereto, or in 28 any publication revising or superseding Handbook 130. 29 (f) Storage tank labels; retail locations.--Each retailer of 30 automotive fuel shall attach an identification device on the 20070H0684B2133 - 8 -
1 inlet end of the fill pipe of an automotive fuel storage tank at 2 retail locations where automotive fuel is sold or offered or 3 exposed for sale. The identification device shall clearly 4 display the automotive fuel rating of the automotive fuel held 5 in the storage tank. The automotive fuel rating displayed on the 6 identification device shall be consistent with the automotive 7 fuel rating displayed on the dispensing system through which the 8 fuel is dispensed. 9 (g) Labeling tolerance.--In accordance with specifications 10 of the ASTM entitled "Specifications for Automotive Spark 11 Ignition-Engine Fuel," designated D4814, in the case of 12 gasoline, tolerance allowed shall be limited to 0.7 for 87 13 octane and under and 0.6 for all other octane grades. 14 (h) Federal regulations.--All regulations and supplements 15 thereto or revisions thereof adopted by the FTC pursuant to the 16 Petroleum Marketing Practices Act (Public Law 95-297, 15 U.S.C. 17 § 2801 et seq.) to govern the certification, disclosure, posting 18 and labeling of automotive fuel before, on or after the 19 effective date of this act are hereby adopted as regulations in 20 this Commonwealth and shall remain in effect unless subsequently 21 modified by regulations promulgated by the department. 22 Section 6. Investigations. 23 (a) General rule.--The department may conduct investigations 24 to determine compliance with this act or any regulation 25 promulgated pursuant to this act. Inspections shall be performed 26 during normal business hours and shall include the collection 27 and removal of samples for laboratory testing. 28 (b) Entry upon premises.--The department shall have the 29 right of access to the premises and records of any establishment 30 where automotive fuel is stored, held, processed, distributed, 20070H0684B2133 - 9 -
1 offered or exposed for sale or sold in this Commonwealth to: 2 (1) Inspect the automotive fuel in storage tanks and 3 take samples from such tanks and the dispensing system 4 connected to the storage tanks. The retailer or distributor 5 may request a second sample to be taken by the inspector at 6 the same time the initial sample is drawn. All costs of the 7 second sample shall be paid by the retailer or distributor, 8 as the case may be, making the request. If the request for a 9 second sample is made by the retailer in accordance with 10 procedures established through an agreement with the 11 distributor, producer or refiner, all costs of drawing, 12 handling and shipping the sample shall be borne by the 13 distributor, producer or refiner who supplied the automotive 14 fuel to the retailer. If the request for a second sample is 15 made by the distributor in accordance with procedures 16 established through an agreement with the producer or 17 refiner, all costs of drawing, handling and shipping the 18 sample shall be borne by the producer or refiner who supplied 19 the automotive fuel to the distributor. 20 (2) Inspect automotive fuel dispensing systems and 21 related equipment, oxygenate labels, reformulated labels and 22 octane labels. 23 (3) Audit and make copies of automotive fuel shipping, 24 receiving and invoice documents and records to determine 25 compliance with sections 4 and 5. 26 The department shall limit such inspections, auditing and 27 copying to information and data relating to product quantity, 28 quality, oxygen content, octane, source and other information as 29 may be reasonably requested. 30 (c) Remedies.--Whenever the department determines that an 20070H0684B2133 - 10 -
1 automotive fuel sample does not conform with the standards set 2 forth in section 4 or that a label displayed on a dispensing 3 system, storage tank or other dispensing device does not conform 4 with the requirements of section 5, the department may initiate 5 any or all of the following actions to prohibit sale of the 6 nonconforming automotive fuel or to prohibit the use of the 7 nonconforming dispensing system, storage tank or other 8 dispensing device: 9 (1) Reject and mark as rejected the dispensing system, 10 storage tank or other dispensing device from which the sample 11 was obtained or on which the nonconforming label is attached. 12 (2) Seal and mark as sealed the storage tanks from which 13 the sample was drawn or the nonconforming label attached. 14 (3) Initiate criminal proceedings under section 7(d). 15 (4) Issue a citation. 16 (5) Issue a stop sale notice under subsection (d). 17 (6) Advise the retailer or distributor that the 18 automotive fuel must be blended with another automotive fuel 19 to bring it into compliance, provided that the product does 20 not endanger public health or safety or adversely affect the 21 emissions characteristics of the motor vehicles in which it 22 is used. 23 (7) Issue a written warning directing the retailer or 24 distributor to correct the nonconforming label. 25 (d) Stop sale notice.--The department shall have the 26 authority to immediately seize and seal, in order to prevent 27 further sales, any dispensing system, storage tank or other 28 dispensing device from which automotive fuel is sold or offered 29 or exposed for sale in violation of the provisions of this act 30 and to issue a stop sale notice to the retailer or distributor, 20070H0684B2133 - 11 -
1 if the department has reason to believe the retailer or 2 distributor willfully or intentionally violated this act or the 3 regulations promulgated in accordance with this act. Any 4 automotive fuel subject to a stop sale notice shall not be sold 5 or exposed or offered for sale or transported unless the 6 retailer or distributor has received approval from the 7 department. Automotive fuel which has been seized and sealed by 8 the department for violation of section 4 or 5 shall not be 9 offered or exposed for sale until the department has been fully 10 satisfied that the automotive fuel has been blended or refined 11 or properly labeled to meet the requirements of this act, and 12 the retailer or distributor has been notified of the 13 department's decision to permit the sale or relabeling of the 14 fuel. 15 (e) Posting of stop sale notice.--The department shall cause 16 to be posted in a conspicuous place on the premises where a 17 dispensing system, storage tank or other dispensing device has 18 been sealed a notice stating that sealing has taken place and 19 giving warning that it shall be unlawful to break, mutilate or 20 destroy the seal or to remove the contents of the dispensing 21 system, storage tank or other dispensing device without the 22 approval of the department. 23 (f) Notice required to remove seal.--Any retailer, 24 distributor or producer who owns an automotive fuel dispensing 25 system, storage tank or other dispensing device which has been 26 sealed by the department shall obtain the approval of the 27 department before the fuel is removed or a proper label 28 attached. A written notice of any corrective action taken shall 29 be submitted to the department within three working days. The 30 department may reinspect the automotive fuel dispensing system, 20070H0684B2133 - 12 -
1 storage tank or other dispensing device to determine compliance. 2 The retailer, distributor, producer or refiner who owns the 3 system or device which has been sealed shall provide 4 documentation of the corrective action taken, including any 5 applicable shipping papers or bills of lading showing the 6 disposal or final disposition of the automotive fuel and such 7 other information necessary to permit the department to audit 8 and confirm that the corrective action was as previously 9 approved by the department. A retailer, distributor, producer or 10 refiner shall not remove a seal except when given specific 11 approval by the department. 12 Section 7. Violations and penalties. 13 (a) Retail violations.--The department may assess a civil 14 penalty of not more than $5,000 upon a retailer who sells or 15 offers or exposes for sale automotive fuel from any dispensing 16 system, storage tank or other dispensing device which has not 17 been labeled in accordance with the provisions of this act, or 18 who sells or offers or exposes for sale any automotive fuel 19 which does not meet the required standards for automotive fuel 20 rating displayed on the label attached to the dispensing system, 21 storage tank or other dispensing device, or who sells or offers 22 or exposes for sale automotive fuel which has been contaminated. 23 (b) Distributor, producer or refiner violations.--The 24 department may assess a civil penalty of not more than $5,000 25 upon a distributor, producer or refiner who sells or offers or 26 exposes for sale automotive fuel which does not meet the 27 automotive fuel rating certified by the distributor, producer or 28 refiner or who sells or offers or exposes for sale automotive 29 fuel which does not meet the requirements of section 4. 30 (c) Knowledge of deceptive practice.--In addition to any 20070H0684B2133 - 13 -
1 civil penalty imposed for violations of subsection (a) or (b), 2 the department may assess a distributor, producer, refiner or 3 retailer with an additional civil penalty equal to the 4 difference between the price per gallon charged to the consumer 5 for the automotive fuel in question and the price per gallon 6 charged to the consumer for the lowest octane grade at the 7 retail dispensing facility at the time of the violation, 8 multiplied by the capacity of the storage tank from which the 9 product in question was dispensed, if the distributor, producer, 10 refiner or retailer violates any provisions of this act or any 11 regulations promulgated pursuant to this act with actual 12 knowledge that the act or practice underlying the violation is 13 unfair or deceptive. 14 (d) Repeat violations.--In addition to any civil penalty 15 assessed in accordance with the provisions of this section, the 16 department may initiate criminal proceedings for a second or 17 subsequent violation of sections 4 and 5 or any regulations 18 promulgated pursuant to such sections. Such a second or 19 subsequent violation shall constitute a misdemeanor of the third 20 degree. 21 (e) Removal of seals.--The department may assess a civil 22 penalty of not less than $1,000 nor more than $5,000 on any 23 person, other than a person designated by the department, who 24 breaks, mutilates or destroys any seal placed upon a dispensing 25 system, storage tank or other dispensing device used to deliver 26 or store automotive fuel, or who removes automotive fuel from a 27 dispensing system, storage tank or other dispensing device which 28 has been sealed, or who defaces or removes a posted notice of 29 sealing. 30 (f) Hearings.--No civil penalty shall be assessed under this 20070H0684B2133 - 14 -
1 section unless the person charged has been given notice and 2 opportunity for hearing in accordance with 2 Pa.C.S. (relating 3 to administrative law and procedure). 4 (g) Innocent sellers exemption.--The department shall not 5 impose a civil penalty for a violation of subsection (a) 6 regarding labeling if the retailer labeled the dispensing 7 system, storage tank or other dispensing device in reasonable 8 reliance on documentation provided by the distributor, producer 9 or refiner certifying the standards for automotive fuel rating. 10 (h) Private action by retailer.--Whenever a retailer 11 unknowingly and without deception sells or offers or exposes for 12 sale automotive fuel which does not conform with the provisions 13 of this act, the distributor, producer, oxygenate blender or 14 refiner, as the case may be, of the nonconforming automotive 15 fuel shall be liable in damages to the retailer for any 16 ascertainable loss of money or property. 17 (i) Acts or practices constituting unfair trade.--It shall 18 be an unfair method of competition and an unfair or deceptive 19 act or practice in or affecting trade and commerce in this 20 Commonwealth within the meaning of section 3 of the act of 21 December 17, 1968 (P.L.1224, No.387), known as the Unfair Trade 22 Practices and Consumer Protection Law, for any retailer, 23 producer, distributor, oxygenate blender or refiner to violate 24 the provisions of this act or any regulations promulgated 25 pursuant to this act. 26 Section 8. Annual report. 27 The department shall file an annual report with the 28 Transportation Committee of the Senate and the Transportation 29 Committee of the House of Representatives. The report shall 30 summarize the details and impact of the Automotive Fuel Testing 20070H0684B2133 - 15 -
1 and Disclosure Program for the year being reported. The 2 department shall file the report no later than May 1 of the 3 following year. 4 Section 9. Octane Testing Account. 5 (a) Establishment.--There is established in a restricted <-- 6 revenue account in the General Fund an account to be known as 7 the Octane Testing Account. THE OCTANE TESTING ACCOUNT IS <-- 8 ESTABLISHED AS A RESTRICTED REVENUE ACCOUNT IN THE GENERAL FUND. 9 The following are the sources of money for the Octane Testing 10 Account: 11 (1) Fees per year as follows: 12 1-9 FUELING dispensers - $100 per year <-- 13 10-19 FUELING dispensers - $200 per year <-- 14 20 or more FUELING dispensers - $300 per year <-- 15 (2) Fees per load rack terminal as follows: 16 1-9 meters - $500 per year 17 10 or more meters - $1,000 per year 18 The department reserves the right to MAY adjust the fees as <-- 19 necessary. Notice of any fee adjustment shall be published in 20 the Pennsylvania Bulletin. 21 (b) Appropriations from account.--Money in the Octane 22 Testing Account is hereby appropriated, upon approval by the 23 Governor, to be used exclusively for the implementation and 24 administration of this act. 25 Section 10. Effective date. 26 This act shall take effect July 1, 2007. C6L12JAM/20070H0684B2133 - 16 -