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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY GREENLEAF, TARTAGLIONE, STACK, FONTANA, BREWSTER, KASUNIC, ALLOWAY, FERLO AND GORDNER, JANUARY 28, 2011 |
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| REFERRED TO CONSUMER PROTECTION AND PROFESSIONAL LICENSURE, JANUARY 28, 2011 |
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| AN ACT |
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1 | Amending Title 3 (Agriculture) of the Pennsylvania Consolidated |
2 | Statutes, establishing an Automotive Fuel Testing and |
3 | Disclosure Program. |
4 | The General Assembly of the Commonwealth of Pennsylvania |
5 | hereby enacts as follows: |
6 | Section 1. Chapter 41 of Title 3 of the Pennsylvania |
7 | Consolidated Statutes is amended by adding a subchapter to read: |
8 | SUBCHAPTER F |
9 | AUTOMOTIVE FUEL TESTING |
10 | AND DISCLOSURE PROGRAM |
11 | Sec. |
12 | 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. |
18 | 4187.6. Investigations. |
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1 | 4187.7. Violations and penalties. |
2 | 4187.8. Annual report. |
3 | § 4187.1. Scope of subchapter. |
4 | This subchapter relates to automotive fuel testing and |
5 | disclosure. |
6 | § 4187.2. Definitions. |
7 | The following words and phrases when used in this subchapter |
8 | shall have the meanings given to them in this section unless the |
9 | context clearly indicates otherwise: |
10 | "American Society for Testing and Materials International" or |
11 | "ASTM." The international voluntary consensus standards |
12 | organization formed for the development of standards on |
13 | characteristics and performance of materials, products, systems, |
14 | services and the promotion of related knowledge. |
15 | "Automotive fuel." Any liquid or gaseous matter used for the |
16 | generation of power in an internal combustion engine. |
17 | "Automotive fuel rating." For automotive spark-ignition |
18 | engine fuel, the octane rating or, for alternative liquid |
19 | automotive fuel, the commonly used name of the fuel with a |
20 | disclosure of the amount, expressed as a minimum percent by |
21 | volume, of the principal components of the fuel. |
22 | "Consumer." A person who purchases automotive fuel for |
23 | purposes other than resale. |
24 | "Dispenser" or "dispensing system." A device designed to |
25 | measure and deliver automotive fuel into the fuel supply tank of |
26 | a motor vehicle. |
27 | "Distributor." A person who receives automotive fuel in this |
28 | Commonwealth for storage and subsequent distribution to another |
29 | person other than the consumer. |
30 | "EPA." The United States Environmental Protection Agency. |
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1 | "FTC." The United States Federal Trade Commission. |
2 | "Fueling dispensers." Individual fueling points, recognized |
3 | by price and volume displays for a dispenser's points of sale. |
4 | "Load rack terminals." A location where the commercial |
5 | transfer of petroleum products at the wholesale level is |
6 | conducted utilizing meters employed in the measurement of |
7 | product delivered to a seller by a buyer. |
8 | "Octane rating" or "octane number." The rating of the |
9 | antiknock characteristics of a grade or type of automotive fuel |
10 | as determined by dividing by two the sum of the research octane |
11 | number plus the motor octane number unless another procedure is |
12 | determined by the Department of Agriculture to be more |
13 | appropriate for the purposes of this subchapter. |
14 | "Oxygenate." A substance which, when added to gasoline, |
15 | increases the amount of oxygen in the gasoline blend. |
16 | "Oxygenate blender." A person who owns, leases, operates, |
17 | controls or supervises an oxygenate blending facility. |
18 | "Oxygenate blending facility." A refinery, bulk terminal, |
19 | bulk plant, other facility or truck or another place at which |
20 | oxygenated gasoline is produced. |
21 | "Oxygenated gasoline." Gasoline which contains at least 2% |
22 | oxygen by weight. |
23 | "Producer." A person who purchases component elements and |
24 | blends them to produce automotive fuel. |
25 | "Program." The Automotive Fuel Testing and Disclosure |
26 | Program. |
27 | "Refiner." A person engaged in the manufacture, production |
28 | or importation of automotive fuel. |
29 | "Reformulated gasoline." Any gasoline which is certified by |
30 | the United States Environmental Protection Agency as complying |
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1 | with the requirements of 42 U.S.C. § 7545 (relating to |
2 | regulation of fuels) and any regulations promulgated under the |
3 | Clean Air Act (69 Stat. 322, 42 U.S.C. § 7401 et seq.). |
4 | "Retailer." A person who sells automotive fuel to the |
5 | consumer. |
6 | § 4187.3. Automotive Fuel Testing and Disclosure Program. |
7 | (a) Establishment.--The department shall establish and |
8 | implement the Automotive Fuel Testing and Disclosure Program. |
9 | (b) Program requirements.--The program shall provide for the |
10 | annual testing of automotive fuel on a random, unannounced |
11 | basis. |
12 | (c) Duties of department.--The department shall enforce the |
13 | provisions of this subchapter and shall: |
14 | (1) Take samples of automotive fuel wherever it is |
15 | offered or exposed for sale or use or sold in this |
16 | Commonwealth. No more than 10% of the automotive fuel |
17 | dispensers may be tested. Testing shall be coordinated with |
18 | the testing required for proper volumes of gasoline and shall |
19 | be conducted using a hand-held, battery-powered, near- |
20 | infrared (NIR) analyzer. |
21 | (2) Inspect and test on a random, unannounced basis. If |
22 | the octane level of the reading does not match the octane |
23 | rating as displayed on the fueling dispenser, the automotive |
24 | fuel sample shall be tested in accordance with the methods of |
25 | the ASTM or other test methods adopted by the FTC under the |
26 | Petroleum Marketing Practices Act (Public Law 95-297, 15 |
27 | U.S.C. § 2801 et seq.) to ensure that the motor fuel sample |
28 | is in compliance with the motor fuel specifications of the |
29 | ASTM. |
30 | (3) Maintain records of all inspections. |
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1 | (4) Inspect the labeling of automotive fuel dispensers |
2 | and storage tanks at retail businesses or locations where the |
3 | products are sold or offered or exposed for sale or use. |
4 | (5) Enter into contractual agreements with qualified |
5 | laboratories as a cost-saving measure for the purpose of |
6 | analyzing automotive fuel samples, if the octane level of the |
7 | automotive fuel is questioned. |
8 | (6) Promulgate regulations as necessary for the |
9 | enforcement and administration of this subchapter. All |
10 | regulations adopted by the FTC under the Petroleum Marketing |
11 | Practices Act to govern the certification, disclosure, |
12 | posting and labeling of automotive fuel before, on or after |
13 | the effective date of this section are adopted as regulations |
14 | in this Commonwealth and shall remain in effect unless |
15 | subsequently modified by regulations promulgated by the |
16 | department. |
17 | (d) Sealers of weight and measures.-- |
18 | (1) The department may enter into agreements with any |
19 | city or county for which a sealer has been appointed for the |
20 | enforcement of provisions of this subchapter and of rules or |
21 | regulations promulgated under this subchapter. |
22 | (2) The sealer of a city or county shall have the same |
23 | authority and shall perform the same duties within the city |
24 | or county as are granted to and imposed upon the department |
25 | with respect to the inspection, testing and taking of |
26 | automotive fuel samples. |
27 | (3) The agreement shall provide that any revenues |
28 | generated pursuant to enforcement activities carried out by |
29 | the sealer of the city or county shall be retained by the |
30 | city or county. |
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1 | § 4187.4. Standards for automotive fuel. |
2 | (a) Adoption of standards.--The department shall adopt the |
3 | latest standards for automotive spark ignition engines based on |
4 | the latest standards of the ASTM as determined by the FTC. The |
5 | standards shall be published as a notice in the Pennsylvania |
6 | Bulletin. |
7 | (b) Automotive fuel.--Gasoline sold, offered or exposed for |
8 | sale or stored or held for distribution in this Commonwealth |
9 | shall comply with all of the following: |
10 | (1) ASTM specification D4814. |
11 | (2) Volatility requirements promulgated by the EPA under |
12 | 40 CFR Pt. 80 (relating to regulation of fuels and fuel |
13 | additives). |
14 | (3) The Uniform Engine Fuels, Petroleum Products and |
15 | Automotive Lubricants Regulation as adopted by the National |
16 | Conference on Weights and Measures in the National Institute |
17 | of Standards and Technology Handbook 130 and any supplements |
18 | and revisions of the regulation. |
19 | (c) Records and compliance review.--Each distributor, |
20 | producer or retailer who distributes, produces, transports, |
21 | stores, sells or offers or exposes for sale automotive fuel in |
22 | this Commonwealth shall maintain for one year original copies of |
23 | all bills, manifests, delivery tickets and invoices for the |
24 | purpose of compliance review. |
25 | § 4187.5. Automotive fuel rating, disclosure and labeling |
26 | requirements. |
27 | (a) Disclosure requirements.--Each distributor, producer or |
28 | refiner who sells or offers or exposes for sale or delivers, |
29 | distributes or produces automotive fuel in this Commonwealth |
30 | shall provide, at the time of delivery, a bill, shipping |
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1 | manifest or other type of written invoice to the person who |
2 | receives the automotive fuel. The bill, shipping manifest or |
3 | other written invoice shall state the automotive fuel rating. |
4 | (b) Posting and labeling requirements.-- |
5 | (1) Each retailer of automotive fuel in this |
6 | Commonwealth shall label in a clear and conspicuous manner |
7 | each automotive fuel dispenser which is used to sell or offer |
8 | or expose for sale automotive fuel, with the automotive fuel |
9 | rating of the fuel, which shall be consistent with the |
10 | automotive fuel rating certified to the retailer by the |
11 | refiner or distributor, as the case may be. |
12 | (2) In the case of gasoline which is blended with other |
13 | gasoline by the retailer, the automotive fuel rating shall be |
14 | the average, weighted by volume, of the octane rating |
15 | certified to the retailer by the distributor or refiner for |
16 | each gasoline in the blend or consistent with the lowest |
17 | octane rating for any gasoline in the blend as certified to |
18 | the retailer by a refiner or distributor. |
19 | (c) Oxygenated gasoline labeling requirements.--A person who |
20 | sells or offers or exposes oxygenated gasoline for sale shall |
21 | clearly and conspicuously label the dispenser which is used to |
22 | sell oxygenated gasoline at retail or to dispense oxygenated |
23 | gasoline into the fuel supply tanks of motor vehicles with a |
24 | notice stating that the gasoline is oxygenated. |
25 | (d) Reformulated gasoline labeling requirements.--A person |
26 | who sells or offers or exposes the reformulated gasoline for |
27 | sale shall clearly and conspicuously label the dispenser which |
28 | is used to sell reformulated gasoline at retail or to dispense |
29 | reformulated gasoline into the fuel supply tanks of motor |
30 | vehicles with a notice stating that the gasoline is |
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1 | reformulated. |
2 | (e) Labeling tolerance.--Labeling shall be in accordance |
3 | with specifications of the ASTM entitled "Specifications for |
4 | Automotive Spark-Ignition Engine Fuel," designated D4814. |
5 | § 4187.6. Investigations. |
6 | (a) General rule.--The department may conduct investigations |
7 | to determine compliance with this subchapter. Investigations |
8 | shall be conducted in accordance with sections 4116 (relating to |
9 | investigations) and 4120 (relating to police powers; right of |
10 | entry and stoppage). Inspections may be performed during normal |
11 | business hours and may include the collection and removal of |
12 | samples for laboratory testing if the quality or reliability of |
13 | the automotive fuel is questioned. |
14 | (b) Entry upon premises.-- |
15 | (1) The department may access the premises and records |
16 | of any establishment where automotive fuel is stored, held, |
17 | processed, distributed, offered or exposed for sale or sold |
18 | in this Commonwealth to: |
19 | (i) Inspect the automotive fuel in storage tanks and |
20 | take samples from the tanks and the dispensing system |
21 | connected to the storage tanks. The retailer or |
22 | distributor may request a second sample to be taken by |
23 | the inspector at the same time the initial sample is |
24 | drawn. All costs of the second sample shall be paid by |
25 | the retailer or distributor, as the case may be, making |
26 | the request. If the request for a second sample is made |
27 | by the retailer in accordance with procedures established |
28 | through an agreement with the distributor, producer or |
29 | refiner, all costs of drawing, handling and shipping the |
30 | sample shall be borne by the distributor, producer or |
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1 | refiner who supplied the automotive fuel to the retailer. |
2 | If the request for a second sample is made by the |
3 | distributor in accordance with procedures established |
4 | through an agreement with the producer or refiner, all |
5 | costs of drawing, handling and shipping the sample shall |
6 | be borne by the producer or refiner who supplied the |
7 | automotive fuel to the distributor. |
8 | (ii) Inspect automotive fuel dispensing systems and |
9 | related equipment, oxygenate labels, reformulated labels |
10 | and octane labels. |
11 | (iii) Make copies of automotive fuel shipping, |
12 | receiving and invoice documents and records to determine |
13 | compliance with sections 4187.4 (relating to standards |
14 | for automotive fuel) and 4187.5 (relating to automotive |
15 | fuel rating, disclosure and labeling requirements). |
16 | (2) The department shall limit inspections, compliance |
17 | reviews and copying under this subsection to information and |
18 | data relating to product quantity, quality, oxygen content, |
19 | octane, source and other information as may be reasonably |
20 | requested. |
21 | (c) Remedies.--If the department determines that an |
22 | automotive fuel sample does not conform with the standards set |
23 | forth in section 4187.4 or that a label displayed on a |
24 | dispensing system, storage tank or other dispensing device does |
25 | not conform with the requirements of section 4187.5, the |
26 | department may initiate any or all of the following actions to |
27 | prohibit sale of the nonconforming automotive fuel or to |
28 | prohibit the use of the nonconforming dispensing system, storage |
29 | tank or other dispensing device: |
30 | (1) Reject and mark as rejected the dispensing system, |
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1 | storage tank or other dispensing device from which the sample |
2 | was obtained or on which the nonconforming label is attached. |
3 | (2) Seal and mark as sealed the storage tanks from which |
4 | the sample was drawn or the nonconforming label attached. |
5 | (3) Initiate criminal proceedings under section |
6 | 4187.7(d) (relating to violations and penalties). |
7 | (4) Issue a citation. |
8 | (5) Issue a stop-sale notice under subsection (d). |
9 | (6) Advise the retailer or distributor that the |
10 | automotive fuel must be blended with another automotive fuel |
11 | to bring it into compliance, provided that the product does |
12 | not endanger public health or safety or adversely affect the |
13 | emissions characteristics of the motor vehicles in which it |
14 | is used. |
15 | (7) Issue a written warning directing the retailer or |
16 | distributor to correct the nonconforming label. |
17 | (d) Stop-sale notice.-- |
18 | (1) The department may immediately seize and seal, in |
19 | order to prevent further sales, any dispensing system, |
20 | storage tank or other dispensing device from which automotive |
21 | fuel is sold or offered or exposed for sale in violation of |
22 | the provisions of this subchapter and to issue a stop-sale |
23 | notice to the retailer or distributor if the department has |
24 | reason to believe the retailer or distributor willfully or |
25 | intentionally violated this subchapter or the regulations |
26 | promulgated in accordance with this subchapter. |
27 | (2) No automotive fuel subject to a stop-sale notice may |
28 | be sold, exposed, offered for sale or transported unless the |
29 | retailer or distributor has received approval from the |
30 | department. |
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1 | (3) No automotive fuel which has been seized and sealed |
2 | by the department for violation of section 4187.4 or 4187.5 |
3 | may be offered or exposed for sale until the department has |
4 | been fully satisfied that the automotive fuel has been |
5 | blended, refined or properly labeled to meet the requirements |
6 | of this subchapter and the retailer or distributor has been |
7 | notified of the department's decision to permit the sale or |
8 | relabeling of the fuel. |
9 | (e) Posting of stop-sale notice.--The department shall post, |
10 | in a conspicuous place on the premises where a dispensing |
11 | system, storage tank or other dispensing device has been sealed, |
12 | a notice stating that sealing has taken place and warning that |
13 | it shall be unlawful to break, mutilate or destroy the seal or |
14 | to remove the contents of the dispensing system, storage tank or |
15 | other dispensing device without the approval of the department. |
16 | (f) Notice required to remove seal.-- |
17 | (1) A retailer, distributor or producer who owns an |
18 | automotive fuel dispensing system, storage tank or other |
19 | dispensing device which has been sealed by the department |
20 | shall obtain the approval of the department before the fuel |
21 | is removed or a proper label attached. |
22 | (2) A written notice of any corrective action taken |
23 | shall be submitted to the department within three working |
24 | days. |
25 | (3) The department may reinspect the automotive fuel |
26 | dispensing system, storage tank or other dispensing device to |
27 | determine compliance. The retailer, distributor, producer or |
28 | refiner that owns the system or device which has been sealed |
29 | shall provide documentation of the corrective action taken, |
30 | including any applicable shipping papers or bills of lading |
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1 | showing the disposal or final disposition of the automotive |
2 | fuel and any other information necessary to permit the |
3 | department to audit and confirm that the corrective action |
4 | was as previously approved by the department. |
5 | (4) No retailer, distributor, producer or refiner may |
6 | remove a seal, except when given specific approval by the |
7 | department. |
8 | § 4187.7. Violations and penalties. |
9 | (a) Retail violations.--The department may assess a civil |
10 | penalty of not more than $5,000 upon a retailer who sells or |
11 | offers or exposes for sale automotive fuel from any dispensing |
12 | system, storage tank or other dispensing device which has not |
13 | been labeled in accordance with the provisions of this |
14 | subchapter, or who sells or offers or exposes for sale any |
15 | automotive fuel which does not meet or exceed the required |
16 | standards for the automotive fuel rating displayed on the label |
17 | attached to the dispensing system, storage tank or other |
18 | dispensing device, or who sells or offers or exposes for sale |
19 | automotive fuel which has been contaminated. |
20 | (b) Distributor, producer or refiner violations.--The |
21 | department may assess a civil penalty of not more than $5,000 |
22 | upon a distributor, producer or refiner who sells or offers or |
23 | exposes for sale automotive fuel which does not meet the |
24 | automotive fuel rating certified by the distributor, producer or |
25 | refiner or who sells or offers or exposes for sale automotive |
26 | fuel which does not meet the requirements of section 4187.4 |
27 | (relating to standards for automotive fuel). |
28 | (c) Knowledge of deceptive practice.--In addition to any |
29 | civil penalty imposed for violations of subsection (a) or (b), |
30 | the department may assess a distributor, producer, refiner or |
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1 | retailer with an additional civil penalty equal to: |
2 | (1) the difference between the price per gallon charged |
3 | to the consumer for the automotive fuel in question and the |
4 | price per gallon charged to the consumer for the lowest |
5 | octane grade at the retail dispensing facility at the time of |
6 | the violation; and |
7 | (2) multiplied by the capacity of the storage tank from |
8 | which the product in question was dispensed; |
9 | if the distributor, producer, refiner or retailer violates any |
10 | provisions of this subchapter with actual knowledge that the act |
11 | or practice underlying the violation is unfair or deceptive. |
12 | (d) Repeat violations.--In addition to any civil penalty |
13 | assessed in accordance with the provisions of this section, the |
14 | department may initiate criminal proceedings for a second or |
15 | subsequent violation of sections 4187.4 and 4187.5 (relating to |
16 | automotive fuel rating, disclosure and labeling requirements). A |
17 | second or subsequent violation shall constitute a misdemeanor of |
18 | the third degree. |
19 | (e) Removal of seals.--The department may assess a civil |
20 | penalty of not less than $1,000 nor more than $5,000 on any |
21 | person, other than a person designated by the department, who: |
22 | (1) breaks, mutilates or destroys any seal placed upon a |
23 | dispensing system, storage tank or other dispensing device |
24 | used to deliver or store automotive fuel; |
25 | (2) removes automotive fuel from a dispensing system, |
26 | storage tank or other dispensing device which has been |
27 | sealed; or |
28 | (3) defaces or removes a posted notice of sealing. |
29 | (f) Hearings.--No civil penalty shall be assessed under this |
30 | section unless the person charged has been given notice and |
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1 | opportunity for hearing in accordance with 2 Pa.C.S. (relating |
2 | to administrative law and procedure). |
3 | (g) Innocent sellers exemption.--The department shall not |
4 | impose a civil penalty for a violation of subsection (a) |
5 | regarding labeling if the retailer labeled the dispensing |
6 | system, storage tank or other dispensing device in reasonable |
7 | reliance on documentation provided by the distributor, producer |
8 | or refiner certifying the standards for automotive fuel rating. |
9 | (h) Private action by retailer.--If a retailer unknowingly |
10 | and without deception sells or offers or exposes for sale |
11 | automotive fuel which does not conform with the provisions of |
12 | this subchapter, the distributor, producer, oxygenate blender or |
13 | refiner, as the case may be, of the nonconforming automotive |
14 | fuel shall be liable in damages to the retailer for any |
15 | ascertainable loss of money or property. |
16 | (i) Acts or practices constituting unfair trade.--It shall |
17 | be an unfair method of competition and an unfair or deceptive |
18 | act or practice in or affecting trade and commerce in this |
19 | Commonwealth within the meaning of section 3 of the act of |
20 | December 17, 1968 (P.L.1224, No.387), known as the Unfair Trade |
21 | Practices and Consumer Protection Law, for any retailer, |
22 | producer, distributor, oxygenate blender or refiner to violate |
23 | the provisions of this subchapter or any regulations promulgated |
24 | under this subchapter. |
25 | § 4187.8. Annual report. |
26 | The department shall file an annual report with the |
27 | Transportation Committee of the Senate and the Transportation |
28 | Committee of the House of Representatives. The report shall |
29 | summarize the details and impact of the program for the year |
30 | being reported. The department shall file the report no later |
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1 | than May 1 of the following year. |
2 | Section 2. The heading of Subchapter F of Chapter 41 of |
3 | Title 3 is amended to read: |
4 | SUBCHAPTER [F] G |
5 | MISCELLANEOUS PROVISIONS |
6 | Section 3. The Automotive Fuel Testing and Disclosure |
7 | Program established in 3 Pa.C.S. Ch 41 Subch. F shall be subject |
8 | to available funds appropriated for that purpose. |
9 | Section 4. This act shall take effect July 1, 2011, or |
10 | immediately, whichever is later. |
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