PRIOR PRINTER'S NO. 317

PRINTER'S NO.  2036

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

341

Session of

2011

  

  

INTRODUCED BY GREENLEAF, TARTAGLIONE, STACK, FONTANA, BREWSTER, KASUNIC, ALLOWAY, FERLO, GORDNER, WASHINGTON, BROWNE AND FARNESE, JANUARY 28, 2011

  

  

SENATOR CORMAN, APPROPRIATIONS, RE-REPORTED AS AMENDED, MARCH 26, 2012   

  

  

  

AN ACT

  

1

Amending Title 3 (Agriculture) of the Pennsylvania Consolidated

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Statutes, establishing authorizing an Automotive Fuel Testing

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3

and Disclosure Program.

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The General Assembly of the Commonwealth of Pennsylvania

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hereby enacts as follows:

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Section 1.  Chapter 41 of Title 3 of the Pennsylvania

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Consolidated Statutes is amended by adding a subchapter to read:

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SUBCHAPTER F

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AUTOMOTIVE FUEL TESTING

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AND DISCLOSURE PROGRAM

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Sec.

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4187.1.  Scope of subchapter.

13

4187.2.  Definitions.

14

4187.3.  Automotive Fuel Testing and Disclosure Program.

15

4187.4.  Standards for automotive fuel.

16

4187.5.  Automotive fuel rating, disclosure and labeling

17

requirements.

 


1

4187.6.  Investigations.

2

4187.7.  Violations and penalties.

3

4187.8.  Annual report.

4

§ 4187.1.  Scope of subchapter.

5

This subchapter relates to automotive fuel testing and

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disclosure.

7

§ 4187.2.  Definitions.

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The following words and phrases when used in this subchapter

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shall have the meanings given to them in this section unless the

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context clearly indicates otherwise:

11

"American Society for Testing and Materials International" or

12

"ASTM."  The international voluntary consensus standards

13

organization formed for the development of standards on

14

characteristics and performance of materials, products, systems,

15

services and the promotion of related knowledge.

16

"Automotive fuel."  Any liquid or gaseous matter used for the

17

generation of power in an internal combustion engine.

18

"Automotive fuel rating."  For automotive spark-ignition

19

engine fuel, the octane rating or, for alternative liquid

20

automotive fuel, the commonly used name of the fuel with a

21

disclosure of the amount, expressed as a minimum percent by

22

volume, of the principal components of the fuel.

23

"Consumer."  A person who purchases automotive fuel for

24

purposes other than resale.

25

"Dispenser" or "dispensing system."  A device designed to

26

measure and deliver automotive fuel into the fuel supply tank of

27

a motor vehicle.

28

"Distributor."  A person who receives automotive fuel in this

29

Commonwealth for storage and subsequent distribution to another

30

person other than the consumer.

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"EPA."  The United States Environmental Protection Agency.

2

"FTC."  The United States Federal Trade Commission.

3

"Fueling dispensers."  Individual fueling points, recognized

4

by price and volume displays for a dispenser's points of sale.

5

"Load rack terminals."  A location where the commercial

6

transfer of petroleum products at the wholesale level is

7

conducted utilizing meters employed in the measurement of

8

product delivered to a seller by a buyer.

9

"Octane rating" or "octane number."  The rating of the

10

antiknock characteristics of a grade or type of automotive fuel

11

as determined by dividing by two the sum of the research octane

12

number plus the motor octane number unless another procedure is

13

determined by the Department of Agriculture to be more

14

appropriate for the purposes of this subchapter.

15

"Oxygenate."  A substance which, when added to gasoline,

16

increases the amount of oxygen in the gasoline blend.

17

"Oxygenate blender."  A person who owns, leases, operates,

18

controls or supervises an oxygenate blending facility.

19

"Oxygenate blending facility."  A refinery, bulk terminal,

20

bulk plant, other facility or truck or another place at which

21

oxygenated gasoline is produced.

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"Oxygenated gasoline."  Gasoline which contains at least 2%

23

oxygen by weight.

24

"Producer."  A person who purchases component elements and

25

blends them to produce automotive fuel.

26

"Program."  The Automotive Fuel Testing and Disclosure

27

Program.

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"Refiner."  A person engaged in the manufacture, production

29

or importation of automotive fuel.

30

"Reformulated gasoline."  Any gasoline which is certified by

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the United States Environmental Protection Agency as complying

2

with the requirements of 42 U.S.C. § 7545 (relating to

3

regulation of fuels) and any regulations promulgated under the

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Clean Air Act (69 Stat. 322, 42 U.S.C. § 7401 et seq.).

5

"Retailer."  A person who sells automotive fuel to the

6

consumer.

7

§ 4187.3.  Automotive Fuel Testing and Disclosure Program.

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(a)  Establishment Authorization.--The department shall may 

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establish and implement the Automotive Fuel Testing and

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Disclosure Program.

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(b)  Program requirements.--The program shall to provide for

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the annual testing of automotive fuel on a random, unannounced

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13

basis.

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(c) (b)  Duties of department.--The department shall may 

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enforce the provisions of this subchapter and shall have the

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following authority:

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(1)  Take samples of automotive fuel wherever it is

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offered or exposed for sale or use or sold in this

19

Commonwealth. No more than 10% of the automotive fuel

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dispensers may be tested. Testing When testing occurs, it 

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21

shall be coordinated with the testing required for proper

22

volumes of gasoline and shall be conducted using a hand-held,

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23

battery-powered, near-infrared (NIR) analyzer.

24

(2)  Inspect and test on a random, unannounced basis. If

25

the octane level of the reading does not match the octane

26

rating as displayed on the fueling dispenser, the automotive

27

fuel sample shall be tested in accordance with the methods of

28

the ASTM or other test methods adopted by the FTC under the

29

Petroleum Marketing Practices Act (Public Law 95-297, 15

30

U.S.C. § 2801 et seq.) to ensure that the motor fuel sample

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is in compliance with the motor fuel specifications of the

2

ASTM.

3

(3)  Maintain records of all inspections.

4

(4)  Inspect the labeling of automotive fuel dispensers

5

and storage tanks at retail businesses or locations where the

6

products are sold or offered or exposed for sale or use.

7

(5)  Enter into contractual agreements with qualified

8

laboratories as a cost-saving measure for the purpose of

9

analyzing automotive fuel samples, if the octane level of the

10

automotive fuel is questioned.

11

(6)  Promulgate regulations as necessary for the

12

enforcement and administration of this subchapter. All

13

regulations adopted by the FTC under the Petroleum Marketing

14

Practices Act to govern the certification, disclosure,

15

posting and labeling of automotive fuel before, on or after

16

the effective date of this section are adopted as regulations

17

in this Commonwealth and shall remain in effect unless

18

subsequently modified by regulations promulgated by the

19

department.

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(d) (c)  Sealers of weight and measures.--

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(1)  The department may enter into agreements with any

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city or county for which a sealer has been appointed for the

23

enforcement of provisions of this subchapter and of rules or

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regulations promulgated under this subchapter.

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(2)  The sealer of a city or county shall have the same

26

authority and shall perform the same duties within the city

27

or county as are granted to and imposed upon the department

28

with respect to the inspection, testing and taking of

29

automotive fuel samples.

30

(3)  The agreement shall provide that any revenues

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generated pursuant to enforcement activities carried out by

2

the sealer of the city or county shall be retained by the

3

city or county.

4

§ 4187.4.  Standards for automotive fuel.

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(a)  Adoption of standards.--The department shall adopt the

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latest standards for automotive spark ignition engines based on

7

the latest standards of the ASTM as determined by the FTC. The

8

standards shall be published as a notice in the Pennsylvania

9

Bulletin.

10

(b)  Automotive fuel.--Gasoline sold, offered or exposed for

11

sale or stored or held for distribution in this Commonwealth

12

shall comply with all of the following:

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(1)  ASTM specification D4814.

14

(2)  Volatility requirements promulgated by the EPA under

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40 CFR Pt. 80 (relating to regulation of fuels and fuel

16

additives).

17

(3)  The Uniform Engine Fuels, Petroleum Products and

18

Automotive Lubricants Regulation as adopted by the National

19

Conference on Weights and Measures in the National Institute

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of Standards and Technology Handbook 130 and any supplements

21

and revisions of the regulation.

22

(c)  Records and compliance review.--Each distributor,

23

producer or retailer who distributes, produces, transports,

24

stores, sells or offers or exposes for sale automotive fuel in

25

this Commonwealth shall maintain for one year original copies of

26

all bills, manifests, delivery tickets and invoices for the

27

purpose of compliance review.

28

§ 4187.5.  Automotive fuel rating, disclosure and labeling

29

requirements.

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(a)  Disclosure requirements.--Each distributor, producer or

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refiner who sells or offers or exposes for sale or delivers,

2

distributes or produces automotive fuel in this Commonwealth

3

shall provide, at the time of delivery, a bill, shipping

4

manifest or other type of written invoice to the person who

5

receives the automotive fuel. The bill, shipping manifest or

6

other written invoice shall state the automotive fuel rating.

7

(b)  Posting and labeling requirements.--

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(1)  Each retailer of automotive fuel in this

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Commonwealth shall label in a clear and conspicuous manner

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each automotive fuel dispenser which is used to sell or offer

11

or expose for sale automotive fuel, with the automotive fuel

12

rating of the fuel, which shall be consistent with the

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automotive fuel rating certified to the retailer by the

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refiner or distributor, as the case may be.

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(2)  In the case of gasoline which is blended with other

16

gasoline by the retailer, the automotive fuel rating shall be

17

the average, weighted by volume, of the octane rating

18

certified to the retailer by the distributor or refiner for

19

each gasoline in the blend or consistent with the lowest

20

octane rating for any gasoline in the blend as certified to

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the retailer by a refiner or distributor.

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(c)  Oxygenated gasoline labeling requirements.--A person who

23

sells or offers or exposes oxygenated gasoline for sale shall

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clearly and conspicuously label the dispenser which is used to

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sell oxygenated gasoline at retail or to dispense oxygenated

26

gasoline into the fuel supply tanks of motor vehicles with a

27

notice stating that the gasoline is oxygenated.

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(d)  Reformulated gasoline labeling requirements.--A person

29

who sells or offers or exposes the reformulated gasoline for

30

sale shall clearly and conspicuously label the dispenser which

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is used to sell reformulated gasoline at retail or to dispense

2

reformulated gasoline into the fuel supply tanks of motor

3

vehicles with a notice stating that the gasoline is

4

reformulated.

5

(e)  Labeling tolerance.--Labeling shall be in accordance

6

with specifications of the ASTM entitled "Specifications for

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Automotive Spark-Ignition Engine Fuel," designated D4814.

8

§ 4187.6.  Investigations.

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(a)  General rule.--The department may conduct investigations

10

to determine compliance with this subchapter. Investigations

11

shall be conducted in accordance with sections 4116 (relating to

12

investigations) and 4120 (relating to police powers; right of

13

entry and stoppage). Inspections may be performed during normal

14

business hours and may include the collection and removal of

15

samples for laboratory testing if the quality or reliability of

16

the automotive fuel is questioned.

17

(b)  Entry upon premises.--

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(1)  The department may access the premises and records

19

of any establishment where automotive fuel is stored, held,

20

processed, distributed, offered or exposed for sale or sold

21

in this Commonwealth to:

22

(i)  Inspect the automotive fuel in storage tanks and

23

take samples from the tanks and the dispensing system

24

connected to the storage tanks. The retailer or

25

distributor may request a second sample to be taken by

26

the inspector at the same time the initial sample is

27

drawn. All costs of the second sample shall be paid by

28

the retailer or distributor, as the case may be, making

29

the request. If the request for a second sample is made

30

by the retailer in accordance with procedures established

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through an agreement with the distributor, producer or

2

refiner, all costs of drawing, handling and shipping the

3

sample shall be borne by the distributor, producer or

4

refiner who supplied the automotive fuel to the retailer.

5

If the request for a second sample is made by the

6

distributor in accordance with procedures established

7

through an agreement with the producer or refiner, all

8

costs of drawing, handling and shipping the sample shall

9

be borne by the producer or refiner who supplied the

10

automotive fuel to the distributor.

11

(ii)  Inspect automotive fuel dispensing systems and

12

related equipment, oxygenate labels, reformulated labels

13

and octane labels.

14

(iii)  Make copies of automotive fuel shipping,

15

receiving and invoice documents and records to determine

16

compliance with sections 4187.4 (relating to standards

17

for automotive fuel) and 4187.5 (relating to automotive

18

fuel rating, disclosure and labeling requirements).

19

(2)  The department shall limit inspections, compliance

20

reviews and copying under this subsection to information and

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data relating to product quantity, quality, oxygen content,

22

octane, source and other information as may be reasonably

23

requested.

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(c)  Remedies.--If the department determines that an

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automotive fuel sample does not conform with the standards set

26

forth in section 4187.4 or that a label displayed on a

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dispensing system, storage tank or other dispensing device does

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not conform with the requirements of section 4187.5, the

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department may initiate any or all of the following actions to

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prohibit sale of the nonconforming automotive fuel or to

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prohibit the use of the nonconforming dispensing system, storage

2

tank or other dispensing device:

3

(1)  Reject and mark as rejected the dispensing system,

4

storage tank or other dispensing device from which the sample

5

was obtained or on which the nonconforming label is attached.

6

(2)  Seal and mark as sealed the storage tanks from which

7

the sample was drawn or the nonconforming label attached.

8

(3)  Initiate criminal proceedings under section

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4187.7(d) (relating to violations and penalties).

10

(4)  Issue a citation.

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(5)  Issue a stop-sale notice under subsection (d).

12

(6)  Advise the retailer or distributor that the

13

automotive fuel must be blended with another automotive fuel

14

to bring it into compliance, provided that the product does

15

not endanger public health or safety or adversely affect the

16

emissions characteristics of the motor vehicles in which it

17

is used.

18

(7)  Issue a written warning directing the retailer or

19

distributor to correct the nonconforming label.

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(d)  Stop-sale notice.--

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(1)  The department may immediately seize and seal, in

22

order to prevent further sales, any dispensing system,

23

storage tank or other dispensing device from which automotive

24

fuel is sold or offered or exposed for sale in violation of

25

the provisions of this subchapter and to issue a stop-sale

26

notice to the retailer or distributor if the department has

27

reason to believe the retailer or distributor willfully or

28

intentionally violated this subchapter or the regulations

29

promulgated in accordance with this subchapter.

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(2)  No automotive fuel subject to a stop-sale notice may

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1

be sold, exposed, offered for sale or transported unless the

2

retailer or distributor has received approval from the

3

department.

4

(3)  No automotive fuel which has been seized and sealed

5

by the department for violation of section 4187.4 or 4187.5

6

may be offered or exposed for sale until the department has

7

been fully satisfied that the automotive fuel has been

8

blended, refined or properly labeled to meet the requirements

9

of this subchapter and the retailer or distributor has been

10

notified of the department's decision to permit the sale or

11

relabeling of the fuel.

12

(e)  Posting of stop-sale notice.--The department shall post,

13

in a conspicuous place on the premises where a dispensing

14

system, storage tank or other dispensing device has been sealed,

15

a notice stating that sealing has taken place and warning that

16

it shall be unlawful to break, mutilate or destroy the seal or

17

to remove the contents of the dispensing system, storage tank or

18

other dispensing device without the approval of the department.

19

(f)  Notice required to remove seal.--

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(1)  A retailer, distributor or producer who owns an

21

automotive fuel dispensing system, storage tank or other

22

dispensing device which has been sealed by the department

23

shall obtain the approval of the department before the fuel

24

is removed or a proper label attached.

25

(2)  A written notice of any corrective action taken

26

shall be submitted to the department within three working

27

days.

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(3)  The department may reinspect the automotive fuel

29

dispensing system, storage tank or other dispensing device to

30

determine compliance. The retailer, distributor, producer or

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1

refiner that owns the system or device which has been sealed

2

shall provide documentation of the corrective action taken,

3

including any applicable shipping papers or bills of lading

4

showing the disposal or final disposition of the automotive

5

fuel and any other information necessary to permit the

6

department to audit and confirm that the corrective action

7

was as previously approved by the department.

8

(4)  No retailer, distributor, producer or refiner may

9

remove a seal, except when given specific approval by the

10

department.

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§ 4187.7.  Violations and penalties.

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(a)  Retail violations.--The department may assess a civil

13

penalty of not more than $5,000 upon a retailer who sells or

14

offers or exposes for sale automotive fuel from any dispensing

15

system, storage tank or other dispensing device which has not

16

been labeled in accordance with the provisions of this

17

subchapter, or who sells or offers or exposes for sale any

18

automotive fuel which does not meet or exceed the required

19

standards for the automotive fuel rating displayed on the label

20

attached to the dispensing system, storage tank or other

21

dispensing device, or who sells or offers or exposes for sale

22

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 4187.4

30

(relating to standards for automotive fuel).

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1

(c)  Knowledge of deceptive practice.--In addition to any

2

civil penalty imposed for violations of subsection (a) or (b),

3

the department may assess a distributor, producer, refiner or

4

retailer with an additional civil penalty equal to:

5

(1)  the difference between the price per gallon charged

6

to the consumer for the automotive fuel in question and the

7

price per gallon charged to the consumer for the lowest

8

octane grade at the retail dispensing facility at the time of

9

the violation; and

10

(2)  multiplied by the capacity of the storage tank from

11

which the product in question was dispensed;

12

if the distributor, producer, refiner or retailer violates any

13

provisions of this subchapter with actual knowledge that the act

14

or practice underlying the violation is unfair or deceptive.

15

(d)  Repeat violations.--In addition to any civil penalty

16

assessed in accordance with the provisions of this section, the

17

department may initiate criminal proceedings for a second or

18

subsequent violation of sections 4187.4 and 4187.5 (relating to

19

automotive fuel rating, disclosure and labeling requirements). A

20

second or subsequent violation shall constitute a misdemeanor of

21

the third degree.

22

(e)  Removal of seals.--The department may assess a civil

23

penalty of not less than $1,000 nor more than $5,000 on any

24

person, other than a person designated by the department, who:

25

(1)  breaks, mutilates or destroys any seal placed upon a

26

dispensing system, storage tank or other dispensing device

27

used to deliver or store automotive fuel;

28

(2)  removes automotive fuel from a dispensing system,

29

storage tank or other dispensing device which has been

30

sealed; or

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(3)  defaces or removes a posted notice of sealing.

2

(f)  Hearings.--No civil penalty shall be assessed under this

3

section unless the person charged has been given notice and

4

opportunity for hearing in accordance with 2 Pa.C.S. (relating

5

to administrative law and procedure).

6

(g)  Innocent sellers exemption.--The department shall not

7

impose a civil penalty for a violation of subsection (a)

8

regarding labeling if the retailer labeled the dispensing

9

system, storage tank or other dispensing device in reasonable

10

reliance on documentation provided by the distributor, producer

11

or refiner certifying the standards for automotive fuel rating.

12

(h)  Private action by retailer.--If a retailer unknowingly

13

and without deception sells or offers or exposes for sale

14

automotive fuel which does not conform with the provisions of

15

this subchapter, the distributor, producer, oxygenate blender or

16

refiner, as the case may be, of the nonconforming automotive

17

fuel shall be liable in damages to the retailer for any

18

ascertainable loss of money or property.

19

(i)  Acts or practices constituting unfair trade.--It shall

20

be an unfair method of competition and an unfair or deceptive

21

act or practice in or affecting trade and commerce in this

22

Commonwealth within the meaning of section 3 of the act of

23

December 17, 1968 (P.L.1224, No.387), known as the Unfair Trade

24

Practices and Consumer Protection Law, for any retailer,

25

producer, distributor, oxygenate blender or refiner to violate

26

the provisions of this subchapter or any regulations promulgated

27

under this subchapter.

28

§ 4187.8.  Annual report.

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The department shall file an annual report with the

30

Transportation Committee of the Senate and the Transportation

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1

Committee of the House of Representatives. The report shall

2

summarize the details and impact of the program for the year

3

being reported. The department shall file the report no later

4

than May 1 of the following year.

5

Section 2.  The heading of Subchapter F of Chapter 41 of

6

Title 3 is amended to read:

7

SUBCHAPTER [F] G

8

MISCELLANEOUS PROVISIONS

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Section 3.  The Automotive Fuel Testing and Disclosure

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10

Program established in 3 Pa.C.S. Ch 41 Subch. F shall be subject

11

to available funds appropriated for that purpose.

12

Section 4 3.  This act shall take effect July 1, 2011, or

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13

immediately, whichever is later in 30 days.

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