THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY MARKOSEK, CALTAGIRONE, CARROLL, D. COSTA, DONATUCCI, FABRIZIO, GEIST, GEORGE, HESS, JOSEPHS, KORTZ, KULA, LONGIETTI, MAHONEY, M. O'BRIEN, PASHINSKI AND STURLA, MARCH 21, 2011

REFERRED TO COMMITTEE ON AGRICULTURE AND RURAL AFFAIRS, MARCH 21, 2011  

AN ACT

Amending Title 3 (Agriculture) of the Pennsylvania Consolidated

Statutes, establishing an Automotive Fuel Testing and

Disclosure Program.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Chapter 41 of Title 3 of the Pennsylvania

Consolidated Statutes is amended by adding a subchapter to read:

SUBCHAPTER F

AUTOMOTIVE FUEL TESTING

AND DISCLOSURE PROGRAM

Sec.

4187.1.  Scope of subchapter.

4187.2.  Definitions.

4187.3.  Automotive Fuel Testing and Disclosure Program.

4187.4.  Additional testing authority.

4187.5.  Standards for automotive fuel.

4187.6.  Automotive fuel rating, disclosure and labeling

requirements.

4187.7.  Investigations.

4187.8.  Violations and penalties.

4187.9.  Annual report.

§ 4187.1.  Scope of subchapter.

This subchapter relates to automotive fuel testing and

disclosure.

§ 4187.2.  Definitions.

The following words and phrases when used in this subchapter

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

context clearly indicates otherwise:

"American Society for Testing and Materials International" or

"ASTM."  The international voluntary consensus standards

organization formed for the development of standards on

characteristics and performance of materials, products, systems,

services and the promotion of related knowledge.

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

generation of power in an internal combustion engine.

"Automotive fuel rating."  For automotive spark-ignition

engine fuel, the octane rating or, for alternative liquid

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

disclosure of the amount, expressed as a minimum percent by

volume, of the principal components of the fuel.

"Consumer."  A person who purchases automotive fuel for

purposes other than resale.

"Department."  The Department of Agriculture of the

Commonwealth.

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

measure and deliver automotive fuel into the fuel supply tank of

a motor vehicle.

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

Commonwealth for storage and subsequent distribution to another

person other than the consumer.

"EPA."  The United States Environmental Protection Agency.

"FTC."  The United States Federal Trade Commission.

"Fueling dispensers."  Individual fueling points, recognized

by price and volume displays for the devices' points of sale.

"Load rack terminals."  A location where the commercial

transfer of petroleum products at the wholesale level is

conducted utilizing meters employed in the measurement of

product delivered to the seller by the buyer.

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

characteristics of a grade or type of automotive fuel as

determined by dividing by two the sum of the research octane

number plus the motor octane number unless another procedure is

determined by the Department of Agriculture to be more

appropriate for the purposes of this subchapter.

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

increases the amount of oxygen in the gasoline blend.

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

controls or supervises an oxygenate blending facility.

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

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

oxygenated gasoline is produced.

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

oxygen by weight.

"Person."  A natural person, corporation, partnership,

association or other legal entity.

"Producer."  A person who purchases component elements and

blends them to produce automotive fuel.

"Program."  The Automotive Fuel Testing and Disclosure

Program.

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

or importation of automotive fuel.

"Reformulated gasoline."  Any gasoline which is certified by

the United States Environmental Protection Agency as complying

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

regulation of fuels) and any regulations promulgated under the

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

"Research octane number" and "motor octane number."  The

terms shall have the meanings given them in the specifications

of the American Society for Testing and Materials entitled

"Standard Specifications for Automotive Spark-Ignition Engine

Fuel," designated D4814, and, with respect to any grade or type

of automotive fuel, are determined in accordance with the test

methods set forth in American Society for Testing and Materials

standard test methods, designated D2699, "Standard Test Method

for Knock Characteristics of Motor Fuels by the Research

Method," American Society for Testing and Materials D2700,

"Standard Test Method for Knock Characteristics of Motor and

Aviation Fuels by the Motor Method."

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

consumer.

"Secretary."  The Secretary of Agriculture of the

Commonwealth.

§ 4187.3.  Automotive Fuel Testing and Disclosure Program.

(a)  Establishment.--The department shall establish and

implement the Automotive Fuel Testing and Disclosure Program.

(b)  Program requirements.--The Automotive Fuel Testing and

Disclosure Program shall provide for the annual testing of

automotive fuel on a random, unannounced basis and otherwise as

determined necessary by the department.

(c)  Duties of department.--The department shall enforce the

provisions of this subchapter and shall:

(1)  Take samples of automotive fuel wherever it is

offered or exposed for sale or use or sold in this

Commonwealth. No more than 10% of the automotive fuel

dispensers may be tested. Testing shall be coordinated with

the testing required for proper volumes of gasoline.

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

the octane level of the reading does not match the octane

rating as displayed on the fueling dispenser, the automotive

fuel sample shall be tested in accordance with the methods of

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

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

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

is in compliance with the motor fuel specifications of the

ASTM.

(3)  Maintain records of all inspections.

(4)  Inspect the labeling of automotive fuel dispensers

and storage tanks at retail businesses or locations where the

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

(5)  Enter into contractual agreements with qualified

laboratories for the purpose of analyzing automotive fuel

samples, if the octane level of the automotive fuel is

questioned, as a cost-saving measure.

(6)  Promulgate regulations as necessary for the

enforcement and administration of this subchapter. All

regulations and supplements thereto or revisions thereof

adopted by the FTC under the Petroleum Marketing Practices

Act to govern the certification, disclosure, posting and

labeling of automotive fuel before, on or after the effective

date of this section are hereby adopted as regulations in

this Commonwealth and shall remain in effect unless

subsequently modified by regulations promulgated by the

department.

(d)  Sealers of weight and measures.--The department may

enter into agreements with any city or county for which a sealer

has been appointed for the enforcement of provisions of this

subchapter and of rules or regulations promulgated under this

subchapter. The sealer of a city or county shall have the same

authority and shall perform the same duties within the city or

county as are granted to and imposed upon the department with

respect to the inspection, testing and taking of automotive fuel

samples. The agreement shall provide that any revenues generated

pursuant to enforcement activities carried out by the sealer of

the city or county shall be retained by the city or county.

§ 4187.4.  Additional testing authority.

(a)  Testing.--Upon the complaint of any distributor,

retailer or consumer, or when it deems necessary, the department

shall test or cause to be tested automotive fuel sold or offered

for sale, on a random sample basis, to determine the quality of

the automotive fuel.

(b)  Contracting.--If the department does not have the

laboratory capability to test the automotive fuel in accordance

with the requirements of this subchapter, it may contract with

laboratories capable of testing of automotive fuel samples

submitted by the department.

(c)  Fees and costs.--In addition to any civil penalty

imposed for a violation under § 4187.8 (relating to violations

and penalties), the department shall assess and collect a fee of

$100 for administrative costs, collect a fee for sampling in an

amount not to exceed the actual cost and collect the actual cost

for the laboratory testing of each sample which fails to comply

with the standards of this subchapter.

(d)  Duty of last seller.--The last seller of the automotive

fuel sample which fails to comply with this subchapter shall pay

the administrative, sampling and laboratory testing costs.

§ 4187.5.  Standards for automotive fuel.

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

latest standards for automotive spark ignition engines based on

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

standards shall be published in the Pennsylvania Bulletin.

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

sale or stored or held for distribution in this Commonwealth

shall comply with ASTM specification D4814 and with the

volatility requirements promulgated by the EPA under 40 CFR Pt.

80 (relating to regulation of fuels and fuel additives).

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

producer or retailer who distributes, produces, transports,

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

this Commonwealth shall maintain for one year original copies of

all bills, manifests, delivery tickets and invoices for the

purpose of compliance review.

§ 4187.6.  Automotive fuel rating, disclosure and labeling

requirements.

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

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

distributes or produces automotive fuel in this Commonwealth

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

manifest or other type of written invoice to the person who

receives the automotive fuel. The bill, shipping manifest or

other written invoice shall state the automotive fuel rating.

(b)  Posting and labeling requirements.--Each retailer of

automotive fuel in this Commonwealth shall label, in a clear and

conspicuous manner, each automotive fuel dispenser which is used

to sell or offer or expose for sale automotive fuel, with the

automotive fuel rating of the fuel, which shall be consistent

with the automotive fuel rating certified to the retailer by the

refiner or distributor, as the case may be. In the case of

gasoline which is blended with other gasoline by the retailer,

the automotive fuel rating shall be the average, weighted by

volume, of the octane rating certified to the retailer by the

distributor or refiner for each gasoline in the blend or

consistent with the lowest octane rating for any gasoline in the

blend as certified to the retailer by a refiner or distributor.

(c)  Oxygenated gasoline labeling requirements.--If

oxygenated gasoline is sold, a person who sells or offers or

exposes the oxygenated gasoline for sale shall clearly and

conspicuously label the dispenser which is used to sell

oxygenated gasoline at retail or to dispense oxygenated gasoline

into the fuel supply tanks of motor vehicles with a notice

stating that the gasoline is oxygenated.

(d)  Reformulated gasoline labeling requirements.--If

reformulated gasoline is sold, a person who sells or offers or

exposes the reformulated gasoline for sale shall clearly and

conspicuously label the dispenser which is used to sell

reformulated gasoline at retail or to dispense reformulated

gasoline into the fuel supply tanks of motor vehicles with a

notice stating that the gasoline is reformulated.

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

with specifications of the ASTM entitled "Specifications for

Automotive Spark-Ignition Engine Fuel," designated D4814.

§ 4187.7.  Investigations.

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

to determine compliance with this subchapter. Investigations

shall be conducted in accordance with sections 4116 (relating to

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

entry and stoppage). Inspections may be performed during normal

business hours and may include the collection and removal of

samples for laboratory testing if the quality or reliability of

the automotive fuel is questioned.

(b)  Entry upon premises.--

(1)  The department shall have the right of access to the

premises and records of any establishment where automotive

fuel is stored, held, processed, distributed, offered or

exposed for sale or sold in this Commonwealth to:

(i)  Inspect the automotive fuel in storage tanks and

take samples from the tanks and the dispensing system

connected to the storage tanks. The retailer or

distributor may request a second sample to be taken by

the inspector at the same time the initial sample is

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

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

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

by the retailer in accordance with procedures established

through an agreement with the distributor, producer or

refiner, all costs of drawing, handling and shipping the

sample shall be borne by the distributor, producer or

refiner who supplied the automotive fuel to the retailer.

If the request for a second sample is made by the

distributor in accordance with procedures established

through an agreement with the producer or refiner, all

costs of drawing, handling and shipping the sample shall

be borne by the producer or refiner who supplied the

automotive fuel to the distributor.

(ii)  Inspect automotive fuel dispensing systems and

related equipment, oxygenate labels, reformulated labels

and octane labels.

(iii)  Make copies of automotive fuel shipping,

receiving and invoice documents and records to determine

compliance with sections 4187.5 (relating to standards

for automotive fuel) and 4187.6 (relating to automotive

fuel rating, disclosure and labeling requirements).

(2)  The department shall limit inspections, compliance

reviews and copying under this subsection to information and

data relating to product quantity, quality, oxygen content,

octane, source and other information as may be reasonably

requested.

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

automotive fuel sample does not conform with the standards set

forth in section 4187.5 or that a label displayed on a

dispensing system, storage tank or other dispensing device does

not conform with the requirements of section 4187.6, the

department may initiate any or all of the following actions to

prohibit sale of the nonconforming automotive fuel or to

prohibit the use of the nonconforming dispensing system, storage

tank or other dispensing device:

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

storage tank or other dispensing device from which the sample

was obtained or on which the nonconforming label is attached.

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

the sample was drawn or the nonconforming label attached.

(3)  Initiate criminal proceedings under section

4187.8(d) (relating to violations and penalties).

(4)  Issue a citation.

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

(6)  Advise the retailer or distributor that the

automotive fuel must be blended with another automotive fuel

to bring it into compliance, provided that the product does

not endanger public health or safety or adversely affect the

emissions characteristics of the motor vehicles in which it

is used.

(7)  Issue a written warning directing the retailer or

distributor to correct the nonconforming label.

(d)  Stop-sale notice.--The department shall have the

authority to immediately seize and seal, in order to prevent

further sales, any dispensing system, storage tank or other

dispensing device from which automotive fuel is sold or offered

or exposed for sale in violation of the provisions of this

subchapter and to issue a stop-sale notice to the retailer or

distributor if the department has reason to believe the retailer

or distributor willfully or intentionally violated this

subchapter or the regulations promulgated in accordance with

this subchapter. Any automotive fuel subject to a stop-sale

notice shall not be sold, exposed, offered for sale or

transported unless the retailer or distributor has received

approval from the department. Automotive fuel which has been

seized and sealed by the department for violation of section

4187.5 or 4187.6 shall not be offered or exposed for sale until

the department has been fully satisfied that the automotive fuel

has been blended, refined or properly labeled to meet the

requirements of this subchapter and the retailer or distributor

has been notified of the department's decision to permit the

sale or relabeling of the fuel.

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

to be posted, in a conspicuous place on the premises where a

dispensing system, storage tank or other dispensing device has

been sealed, a notice stating that sealing has taken place and

giving warning that it shall be unlawful to break, mutilate or

destroy the seal or to remove the contents of the dispensing

system, storage tank or other dispensing device without the

approval of the department.

(f)  Notice required to remove seal.--Any retailer,

distributor or producer who owns an automotive fuel dispensing

system, storage tank or other dispensing device which has been

sealed by the department shall obtain the approval of the

department before the fuel is removed or a proper label

attached. A written notice of any corrective action taken shall

be submitted to the department within three working days. The

department may reinspect the automotive fuel dispensing system,

storage tank or other dispensing device to determine compliance.

The retailer, distributor, producer or refiner that owns the

system or device which has been sealed shall provide

documentation of the corrective action taken, including any

applicable shipping papers or bills of lading showing the

disposal or final disposition of the automotive fuel and any

other information necessary to permit the department to audit

and confirm that the corrective action was as previously

approved by the department. A retailer, distributor, producer or

refiner shall not remove a seal except when given specific

approval by the department.

§ 4187.8.  Violations and penalties.

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

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

offers or exposes for sale automotive fuel from any dispensing

system, storage tank or other dispensing device which has not

been labeled in accordance with the provisions of this

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

automotive fuel which does not meet the required standards for

the automotive fuel rating displayed on the label attached to

the dispensing system, storage tank or other dispensing device,

or who sells or offers or exposes for sale automotive fuel which

has been contaminated.

(b)  Distributor, producer or refiner violations.--The

department may assess a civil penalty of not more than $5,000

upon a distributor, producer or refiner who sells or offers or

exposes for sale automotive fuel which does not meet the

automotive fuel rating certified by the distributor, producer or

refiner or who sells or offers or exposes for sale automotive

fuel which does not meet the requirements of section 4187.5

(relating to standards for automotive fuel).

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

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

the department may assess a distributor, producer, refiner or

retailer with an additional civil penalty equal to the

difference between the price per gallon charged to the consumer

for the automotive fuel in question and the price per gallon

charged to the consumer for the lowest octane grade at the

retail dispensing facility at the time of the violation,

multiplied by the capacity of the storage tank from which the

product in question was dispensed, if the distributor, producer,

refiner or retailer violates any provisions of this subchapter

with actual knowledge that the act or practice underlying the

violation is unfair or deceptive.

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

assessed in accordance with the provisions of this section, the

department may initiate criminal proceedings for a second or

subsequent violation of sections 4187.5 and 4187.6 (relating to

automotive fuel rating, disclosure and labeling requirements). A

second or subsequent violation shall constitute a misdemeanor of

the third degree.

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

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

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

breaks, mutilates or destroys any seal placed upon a dispensing

system, storage tank or other dispensing device used to deliver

or store automotive fuel, or who removes automotive fuel from a

dispensing system, storage tank or other dispensing device which

has been sealed, or who defaces or removes a posted notice of

sealing.

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

section unless the person charged has been given notice and

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

to administrative law and procedure).

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

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

regarding labeling if the retailer labeled the dispensing

system, storage tank or other dispensing device in reasonable

reliance on documentation provided by the distributor, producer

or refiner certifying the standards for automotive fuel rating.

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

and without deception sells or offers or exposes for sale

automotive fuel which does not conform with the provisions of

this subchapter, the distributor, producer, oxygenate blender or

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

fuel shall be liable in damages to the retailer for any

ascertainable loss of money or property.

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

be an unfair method of competition and an unfair or deceptive

act or practice in or affecting trade and commerce in this

Commonwealth within the meaning of section 3 of the act of

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

Practices and Consumer Protection Law, for any retailer,

producer, distributor, oxygenate blender or refiner to violate

the provisions of this subchapter or any regulations promulgated

under this subchapter.

§ 4187.9.  Annual report.

The department shall file an annual report with the

Transportation Committee of the Senate and the Transportation

Committee of the House of Representatives. The report shall

summarize the details and impact of the program for the year

being reported. The department shall file the report no later

than May 1 of the following year.

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

Title 3 is amended to read:

SUBCHAPTER [F] Z

MISCELLANEOUS PROVISIONS

Section 3.  This act shall take effect July 1, 2012, or

immediately, whichever is later.