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| PRIOR PRINTER'S NO. 110 | PRINTER'S NO. 1070 |
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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY GREENLEAF, WILLIAMS, TARTAGLIONE, GORDNER, BROWNE, FERLO, COSTA, EARLL, O'PAKE, LOGAN, STACK AND WASHINGTON, JANUARY 30, 2009 |
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| SENATOR CORMAN, APPROPRIATIONS, RE-REPORTED AS AMENDED, JUNE 1, 2009 |
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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. |
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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 |
6 | disclosure. |
7 | § 4187.2. Definitions. |
8 | The following words and phrases when used in this subchapter |
9 | shall have the meanings given to them in this section unless the |
10 | 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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1 | "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. |
22 | "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. |
28 | "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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1 | 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 |
4 | 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. |
8 | (a) Establishment.--The department shall establish and |
9 | implement the Automotive Fuel Testing and Disclosure Program. |
10 | (b) Program requirements.--The program shall provide for the |
11 | annual testing of automotive fuel on a random, unannounced |
12 | basis. |
13 | (c) Duties of department.--The department shall enforce the |
14 | provisions of this subchapter and shall: |
15 | (1) Take samples of automotive fuel wherever it is |
16 | offered or exposed for sale or use or sold in this |
17 | Commonwealth. No more than 10% of the automotive fuel |
18 | dispensers may be tested. Testing shall be coordinated with |
19 | the testing required for proper volumes of gasoline and shall |
20 | be conducted using a hand-held, battery-powered, near- |
21 | infrared (NIR) analyzer. |
22 | (2) Inspect and test on a random, unannounced basis. If |
23 | the octane level of the reading does not match the octane |
24 | rating as displayed on the fueling dispenser, the automotive |
25 | fuel sample shall be tested in accordance with the methods of |
26 | the ASTM or other test methods adopted by the FTC under the |
27 | Petroleum Marketing Practices Act (Public Law 95-297, 15 |
28 | U.S.C. § 2801 et seq.) to ensure that the motor fuel sample |
29 | is in compliance with the motor fuel specifications of the |
30 | ASTM. |
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1 | (3) Maintain records of all inspections. |
2 | (4) Inspect the labeling of automotive fuel dispensers |
3 | and storage tanks at retail businesses or locations where the |
4 | products are sold or offered or exposed for sale or use. |
5 | (5) Enter into contractual agreements with qualified |
6 | laboratories as a cost-saving measure for the purpose of |
7 | analyzing automotive fuel samples, if the octane level of the |
8 | automotive fuel is questioned. |
9 | (6) Promulgate regulations as necessary for the |
10 | enforcement and administration of this subchapter. All |
11 | regulations adopted by the FTC under the Petroleum Marketing |
12 | Practices Act to govern the certification, disclosure, |
13 | posting and labeling of automotive fuel before, on or after |
14 | the effective date of this section are adopted as regulations |
15 | in this Commonwealth and shall remain in effect unless |
16 | subsequently modified by regulations promulgated by the |
17 | department. |
18 | (d) Sealers of weight and measures.-- |
19 | (1) The department may enter into agreements with any |
20 | city or county for which a sealer has been appointed for the |
21 | enforcement of provisions of this subchapter and of rules or |
22 | regulations promulgated under this subchapter. |
23 | (2) The sealer of a city or county shall have the same |
24 | authority and shall perform the same duties within the city |
25 | or county as are granted to and imposed upon the department |
26 | with respect to the inspection, testing and taking of |
27 | automotive fuel samples. |
28 | (3) The agreement shall provide that any revenues |
29 | generated pursuant to enforcement activities carried out by |
30 | the sealer of the city or county shall be retained by the |
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1 | city or county. |
2 | § 4187.4. Standards for automotive fuel. |
3 | (a) Adoption of standards.--The department shall adopt the |
4 | latest standards for automotive spark ignition engines based on |
5 | the latest standards of the ASTM as determined by the FTC. The |
6 | standards shall be published as a notice in the Pennsylvania |
7 | Bulletin. |
8 | (b) Automotive fuel.--Gasoline sold, offered or exposed for |
9 | sale or stored or held for distribution in this Commonwealth |
10 | shall comply with all of the following: |
11 | (1) ASTM specification D4814. |
12 | (2) Volatility requirements promulgated by the EPA under |
13 | 40 CFR Pt. 80 (relating to regulation of fuels and fuel |
14 | additives). |
15 | (3) The Uniform Engine Fuels, Petroleum Products and |
16 | Automotive Lubricants Regulation as adopted by the National |
17 | Conference on Weights and Measures in the National Institute |
18 | of Standards and Technology Handbook 130 and any supplements |
19 | and revisions of the regulation. |
20 | (c) Records and compliance review.--Each distributor, |
21 | producer or retailer who distributes, produces, transports, |
22 | stores, sells or offers or exposes for sale automotive fuel in |
23 | this Commonwealth shall maintain for one year original copies of |
24 | all bills, manifests, delivery tickets and invoices for the |
25 | purpose of compliance review. |
26 | § 4187.5. Automotive fuel rating, disclosure and labeling |
27 | requirements. |
28 | (a) Disclosure requirements.--Each distributor, producer or |
29 | refiner who sells or offers or exposes for sale or delivers, |
30 | distributes or produces automotive fuel in this Commonwealth |
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1 | shall provide, at the time of delivery, a bill, shipping |
2 | manifest or other type of written invoice to the person who |
3 | receives the automotive fuel. The bill, shipping manifest or |
4 | other written invoice shall state the automotive fuel rating. |
5 | (b) Posting and labeling requirements.-- |
6 | (1) Each retailer of automotive fuel in this |
7 | Commonwealth shall label in a clear and conspicuous manner |
8 | each automotive fuel dispenser which is used to sell or offer |
9 | or expose for sale automotive fuel, with the automotive fuel |
10 | rating of the fuel, which shall be consistent with the |
11 | automotive fuel rating certified to the retailer by the |
12 | refiner or distributor, as the case may be. |
13 | (2) In the case of gasoline which is blended with other |
14 | gasoline by the retailer, the automotive fuel rating shall be |
15 | the average, weighted by volume, of the octane rating |
16 | certified to the retailer by the distributor or refiner for |
17 | each gasoline in the blend or consistent with the lowest |
18 | octane rating for any gasoline in the blend as certified to |
19 | the retailer by a refiner or distributor. |
20 | (c) Oxygenated gasoline labeling requirements.--A person who |
21 | sells or offers or exposes oxygenated gasoline for sale shall |
22 | clearly and conspicuously label the dispenser which is used to |
23 | sell oxygenated gasoline at retail or to dispense oxygenated |
24 | gasoline into the fuel supply tanks of motor vehicles with a |
25 | notice stating that the gasoline is oxygenated. |
26 | (d) Reformulated gasoline labeling requirements.--A person |
27 | who sells or offers or exposes the reformulated gasoline for |
28 | sale shall clearly and conspicuously label the dispenser which |
29 | is used to sell reformulated gasoline at retail or to dispense |
30 | reformulated gasoline into the fuel supply tanks of motor |
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1 | vehicles with a notice stating that the gasoline is |
2 | reformulated. |
3 | (e) Labeling tolerance.--Labeling shall be in accordance |
4 | with specifications of the ASTM entitled "Specifications for |
5 | Automotive Spark-Ignition Engine Fuel," designated D4814. |
6 | § 4187.6. Investigations. |
7 | (a) General rule.--The department may conduct investigations |
8 | to determine compliance with this subchapter. Investigations |
9 | shall be conducted in accordance with sections 4116 (relating to |
10 | investigations) and 4120 (relating to police powers; right of |
11 | entry and stoppage). Inspections may be performed during normal |
12 | business hours and may include the collection and removal of |
13 | samples for laboratory testing if the quality or reliability of |
14 | the automotive fuel is questioned. |
15 | (b) Entry upon premises.-- |
16 | (1) The department may access the premises and records |
17 | of any establishment where automotive fuel is stored, held, |
18 | processed, distributed, offered or exposed for sale or sold |
19 | in this Commonwealth to: |
20 | (i) Inspect the automotive fuel in storage tanks and |
21 | take samples from the tanks and the dispensing system |
22 | connected to the storage tanks. The retailer or |
23 | distributor may request a second sample to be taken by |
24 | the inspector at the same time the initial sample is |
25 | drawn. All costs of the second sample shall be paid by |
26 | the retailer or distributor, as the case may be, making |
27 | the request. If the request for a second sample is made |
28 | by the retailer in accordance with procedures established |
29 | through an agreement with the distributor, producer or |
30 | refiner, all costs of drawing, handling and shipping the |
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1 | sample shall be borne by the distributor, producer or |
2 | refiner who supplied the automotive fuel to the retailer. |
3 | If the request for a second sample is made by the |
4 | distributor in accordance with procedures established |
5 | through an agreement with the producer or refiner, all |
6 | costs of drawing, handling and shipping the sample shall |
7 | be borne by the producer or refiner who supplied the |
8 | automotive fuel to the distributor. |
9 | (ii) Inspect automotive fuel dispensing systems and |
10 | related equipment, oxygenate labels, reformulated labels |
11 | and octane labels. |
12 | (iii) Make copies of automotive fuel shipping, |
13 | receiving and invoice documents and records to determine |
14 | compliance with sections 4187.4 (relating to standards |
15 | for automotive fuel) and 4187.5 (relating to automotive |
16 | fuel rating, disclosure and labeling requirements). |
17 | (2) The department shall limit inspections, compliance |
18 | reviews and copying under this subsection to information and |
19 | data relating to product quantity, quality, oxygen content, |
20 | octane, source and other information as may be reasonably |
21 | requested. |
22 | (c) Remedies.--If the department determines that an |
23 | automotive fuel sample does not conform with the standards set |
24 | forth in section 4187.4 or that a label displayed on a |
25 | dispensing system, storage tank or other dispensing device does |
26 | not conform with the requirements of section 4187.5, the |
27 | department may initiate any or all of the following actions to |
28 | prohibit sale of the nonconforming automotive fuel or to |
29 | prohibit the use of the nonconforming dispensing system, storage |
30 | tank or other dispensing device: |
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1 | (1) Reject and mark as rejected the dispensing system, |
2 | storage tank or other dispensing device from which the sample |
3 | was obtained or on which the nonconforming label is attached. |
4 | (2) Seal and mark as sealed the storage tanks from which |
5 | the sample was drawn or the nonconforming label attached. |
6 | (3) Initiate criminal proceedings under section |
7 | 4187.7(d) (relating to violations and penalties). |
8 | (4) Issue a citation. |
9 | (5) Issue a stop-sale notice under subsection (d). |
10 | (6) Advise the retailer or distributor that the |
11 | automotive fuel must be blended with another automotive fuel |
12 | to bring it into compliance, provided that the product does |
13 | not endanger public health or safety or adversely affect the |
14 | emissions characteristics of the motor vehicles in which it |
15 | is used. |
16 | (7) Issue a written warning directing the retailer or |
17 | distributor to correct the nonconforming label. |
18 | (d) Stop-sale notice.-- |
19 | (1) The department may immediately seize and seal, in |
20 | order to prevent further sales, any dispensing system, |
21 | storage tank or other dispensing device from which automotive |
22 | fuel is sold or offered or exposed for sale in violation of |
23 | the provisions of this subchapter and to issue a stop-sale |
24 | notice to the retailer or distributor if the department has |
25 | reason to believe the retailer or distributor willfully or |
26 | intentionally violated this subchapter or the regulations |
27 | promulgated in accordance with this subchapter. |
28 | (2) No automotive fuel subject to a stop-sale notice may |
29 | be sold, exposed, offered for sale or transported unless the |
30 | retailer or distributor has received approval from the |
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1 | department. |
2 | (3) No automotive fuel which has been seized and sealed |
3 | by the department for violation of section 4187.4 or 4187.5 |
4 | may be offered or exposed for sale until the department has |
5 | been fully satisfied that the automotive fuel has been |
6 | blended, refined or properly labeled to meet the requirements |
7 | of this subchapter and the retailer or distributor has been |
8 | notified of the department's decision to permit the sale or |
9 | relabeling of the fuel. |
10 | (e) Posting of stop-sale notice.--The department shall post, |
11 | in a conspicuous place on the premises where a dispensing |
12 | system, storage tank or other dispensing device has been sealed, |
13 | a notice stating that sealing has taken place and warning that |
14 | it shall be unlawful to break, mutilate or destroy the seal or |
15 | to remove the contents of the dispensing system, storage tank or |
16 | other dispensing device without the approval of the department. |
17 | (f) Notice required to remove seal.-- |
18 | (1) A retailer, distributor or producer who owns an |
19 | automotive fuel dispensing system, storage tank or other |
20 | dispensing device which has been sealed by the department |
21 | shall obtain the approval of the department before the fuel |
22 | is removed or a proper label attached. |
23 | (2) A written notice of any corrective action taken |
24 | shall be submitted to the department within three working |
25 | days. |
26 | (3) The department may reinspect the automotive fuel |
27 | dispensing system, storage tank or other dispensing device to |
28 | determine compliance. The retailer, distributor, producer or |
29 | refiner that owns the system or device which has been sealed |
30 | shall provide documentation of the corrective action taken, |
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1 | including any applicable shipping papers or bills of lading |
2 | showing the disposal or final disposition of the automotive |
3 | fuel and any other information necessary to permit the |
4 | department to audit and confirm that the corrective action |
5 | was as previously approved by the department. |
6 | (4) No retailer, distributor, producer or refiner may |
7 | remove a seal, except when given specific approval by the |
8 | department. |
9 | § 4187.7. Violations and penalties. |
10 | (a) Retail violations.--The department may assess a civil |
11 | penalty of not more than $5,000 upon a retailer who sells or |
12 | offers or exposes for sale automotive fuel from any dispensing |
13 | system, storage tank or other dispensing device which has not |
14 | been labeled in accordance with the provisions of this |
15 | subchapter, or who sells or offers or exposes for sale any |
16 | automotive fuel which does not meet or exceed the required | <-- |
17 | standards for the automotive fuel rating displayed on the label |
18 | attached to the dispensing system, storage tank or other |
19 | dispensing device, or who sells or offers or exposes for sale |
20 | automotive fuel which has been contaminated. |
21 | (b) Distributor, producer or refiner violations.--The |
22 | department may assess a civil penalty of not more than $5,000 |
23 | upon a distributor, producer or refiner who sells or offers or |
24 | exposes for sale automotive fuel which does not meet the |
25 | automotive fuel rating certified by the distributor, producer or |
26 | refiner or who sells or offers or exposes for sale automotive |
27 | fuel which does not meet the requirements of section 4187.4 |
28 | (relating to standards for automotive fuel). |
29 | (c) Knowledge of deceptive practice.--In addition to any |
30 | civil penalty imposed for violations of subsection (a) or (b), |
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1 | the department may assess a distributor, producer, refiner or |
2 | retailer with an additional civil penalty equal to: |
3 | (1) the difference between the price per gallon charged |
4 | to the consumer for the automotive fuel in question and the |
5 | price per gallon charged to the consumer for the lowest |
6 | octane grade at the retail dispensing facility at the time of |
7 | the violation; and |
8 | (2) multiplied by the capacity of the storage tank from |
9 | which the product in question was dispensed; |
10 | if the distributor, producer, refiner or retailer violates any |
11 | provisions of this subchapter with actual knowledge that the act |
12 | or practice underlying the violation is unfair or deceptive. |
13 | (d) Repeat violations.--In addition to any civil penalty |
14 | assessed in accordance with the provisions of this section, the |
15 | department may initiate criminal proceedings for a second or |
16 | subsequent violation of sections 4187.4 and 4187.5 (relating to |
17 | automotive fuel rating, disclosure and labeling requirements). A |
18 | second or subsequent violation shall constitute a misdemeanor of |
19 | the third degree. |
20 | (e) Removal of seals.--The department may assess a civil |
21 | penalty of not less than $1,000 nor more than $5,000 on any |
22 | person, other than a person designated by the department, who: |
23 | (1) breaks, mutilates or destroys any seal placed upon a |
24 | dispensing system, storage tank or other dispensing device |
25 | used to deliver or store automotive fuel; |
26 | (2) removes automotive fuel from a dispensing system, |
27 | storage tank or other dispensing device which has been |
28 | sealed; or |
29 | (3) defaces or removes a posted notice of sealing. |
30 | (f) Hearings.--No civil penalty shall be assessed under this |
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1 | section unless the person charged has been given notice and |
2 | opportunity for hearing in accordance with 2 Pa.C.S. (relating |
3 | to administrative law and procedure). |
4 | (g) Innocent sellers exemption.--The department shall not |
5 | impose a civil penalty for a violation of subsection (a) |
6 | regarding labeling if the retailer labeled the dispensing |
7 | system, storage tank or other dispensing device in reasonable |
8 | reliance on documentation provided by the distributor, producer |
9 | or refiner certifying the standards for automotive fuel rating. |
10 | (h) Private action by retailer.--If a retailer unknowingly |
11 | and without deception sells or offers or exposes for sale |
12 | automotive fuel which does not conform with the provisions of |
13 | this subchapter, the distributor, producer, oxygenate blender or |
14 | refiner, as the case may be, of the nonconforming automotive |
15 | fuel shall be liable in damages to the retailer for any |
16 | ascertainable loss of money or property. |
17 | (i) Acts or practices constituting unfair trade.--It shall |
18 | be an unfair method of competition and an unfair or deceptive |
19 | act or practice in or affecting trade and commerce in this |
20 | Commonwealth within the meaning of section 3 of the act of |
21 | December 17, 1968 (P.L.1224, No.387), known as the Unfair Trade |
22 | Practices and Consumer Protection Law, for any retailer, |
23 | producer, distributor, oxygenate blender or refiner to violate |
24 | the provisions of this subchapter or any regulations promulgated |
25 | under this subchapter. |
26 | § 4187.8. Annual report. |
27 | The department shall file an annual report with the |
28 | Transportation Committee of the Senate and the Transportation |
29 | Committee of the House of Representatives. The report shall |
30 | summarize the details and impact of the program for the year |
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1 | being reported. The department shall file the report no later |
2 | than May 1 of the following year. |
3 | Section 2. The heading of Subchapter F of Chapter 41 of |
4 | Title 3 is amended to read: |
5 | SUBCHAPTER [F] G |
6 | MISCELLANEOUS PROVISIONS |
7 | Section 3. This act shall take effect July 1, 2009, or |
8 | immediately, whichever is later. |
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