New Legislation

20120208ua

Session of 2012

No. 2012-208

SB 341

AN ACT

Amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, authorizing an Automotive Fuel Testing and Disclosure Program.

The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:  20120208u1s

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. Standards for automotive fuel.

4187.5. Automotive fuel rating, disclosure and labeling requirements.

4187.6. Investigations.

4187.7. Violations and penalties.

4187.8. (Reserved).

§ 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."  A member-based, international standards organization that develops and publishes voluntary consensus technical standards and test methods for a variety of materials and products, including automotive fuel and other petroleum products, or any successor organization.

"Automotive fuel."  Any liquid or gaseous matter used for the generation of power in an internal combustion engine. The term shall include, but may not be limited to, the following:

(1)  Automotive spark-ignition engine fuel, which includes, but is not limited to:

(i)  Gasoline.

(ii)  Gasohol, a mixture of unleaded gasoline and at least 10% denatured ethanol.

(iii)  Fuels developed to comply with the Clean Air Act (69 Stat. 1, 42 U.S.C. § 7401 et seq.), such as reformulated gasoline and oxygenated gasoline.

(2)  Alternative liquid automotive fuels, including, but not limited to:

(i)  Methanol, denatured ethanol and other alcohols.

(ii)  Mixtures of gasoline containing 85% or more by volume of methanol, denatured ethanol and other alcohols.

(iii)  Liquefied natural gas.

(iv)  Liquefied petroleum gas.

(v)  Coal-derived liquid fuels.

"Automotive fuel rating."  For gasoline, 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.

"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 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 a dispenser's points of sale.

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

"Oxygenated gasoline."  Gasoline which contains at least 2% oxygen by weight.

"Producer."  A person who purchases component elements and blends them to produce or market 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. 1, 42 U.S.C. § 7401 et seq.).

"Research octane number" and "motor octane number."  The terms shall have the meanings given to them in the specifications of the American Society for Testing and Materials International entitled "Standard Specifications for Automotive Spark Engine Fuel," designated D4814 or any subsequent updated specification, 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 International standard test methods for research octane number and motor octane number as may be adopted by the Federal Trade Commission.

"Retailer."  A person who sells or offers for sale automotive fuel to the general public for ultimate consumption.

§ 4187.3.  Automotive Fuel Testing and Disclosure Program.

(a)  Authorization.--The department may establish and implement the Automotive Fuel Testing and Disclosure Program to provide for the testing of automotive fuel on a random, unannounced basis.

(b)  Duties of department.--The department may enforce the provisions of this subchapter and shall have the following authority:

(1)  Take samples of automotive fuel for testing of its octane rating wherever it is offered or exposed for sale or use or sold by a retailer in this Commonwealth. When testing occurs, it shall be coordinated with the testing required for proper volumes of gasoline.

(2)  Inspect and test on a random, unannounced basis and upon consumer complaint. If the octane rating of a tested automotive fuel 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 as a cost-saving measure for the purpose of analyzing automotive fuel samples, if the octane level of the automotive fuel is questioned.

(6)  Promulgate regulations as necessary for the enforcement and administration of this subchapter. All regulations 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 adopted as regulations in this Commonwealth and shall remain in effect unless subsequently modified by regulations promulgated by the department.

(c)  Sealers of weight and measures.--

(1)  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.

(2)  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.

(3)  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.  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 as a notice in the Pennsylvania Bulletin.

(b)  Automotive fuel.--Automotive fuel sold, offered or exposed for sale or stored or held for distribution in this Commonwealth shall comply with all of the following:

(1)  Volatility requirements promulgated by the EPA under 40 CFR Pt. 80 (relating to regulation of fuels and fuel additives) or any supplement thereto or revisions thereof.

(2)  The Uniform Engine Fuels, Petroleum Products and Automotive Lubricants Regulation as adopted by the National Conference on Weights and Measures in the National Institute of Standards and Technology Handbook 130 and any supplements and revisions of the regulation.

(c)  Records and compliance review.--Each distributor, producer or retailer who distributes, produces, blends, 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.

§ 4187.5.  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, blends 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.--

(1)  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, distributor or oxygenate blender, as the case may be.

(2)  In the case of gasoline which is blended with other gasoline, 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.--A person who sells or offers or exposes 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)  (Reserved).

§ 4187.6.  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 may enter the premises and access records of any establishment where automotive fuel is stored, held, produced, 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 4187.4 (relating to standards for automotive fuel) and 4187.5 (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 4187.4 or that a label displayed on a dispensing system, storage tank or other dispensing device does not conform with the requirements of section 4187.5, 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 4187.7(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.--

(1)  The department may 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.

(2)  No automotive fuel subject to a stop-sale notice may be sold, exposed, offered for sale or transported unless the retailer or distributor has received approval from the department.

(3)  No automotive fuel which has been seized and sealed by the department for violation of section 4187.4 or 4187.5 may 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 post, 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 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.--

(1)  A 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.

(2)  A written notice of any corrective action taken shall be submitted to the department within three working days.

(3)  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.

(4)  No retailer, distributor, producer or refiner may remove a seal, except when given specific approval by the department.

§ 4187.7.  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 or exceed 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 4187.4 (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:

(1)  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; and

(2)  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 4187.4 and 4187.5 (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:

(1)  breaks, mutilates or destroys any seal placed upon a dispensing system, storage tank or other dispensing device used to deliver or store automotive fuel;

(2)  removes automotive fuel from a dispensing system, storage tank or other dispensing device which has been sealed; or

(3)  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.

§ 4187.8.  (Reserved).

20120208u2s

Section 2.  The heading of Subchapter F of Chapter 41 of Title 3 is amended to read:

SUBCHAPTER [F] G

MISCELLANEOUS PROVISIONS

20120208u3s

Section 3.  This act shall take effect in 30 days.

 

APPROVED--The 1st day of November, A.D. 2012.

 

TOM CORBETT



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