Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO: KRS 363.900-363.908,
16 C.F.R.
306.12,
40 C.F.R.
80.27
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
363.902 requires the commissioner of the
department to implement and administer an inspection and testing program for
motor fuels. This administrative regulation establishes procedures to implement
and administer a motor fuels inspection and testing program.
Section 1. Definitions.
(1) "Distributor" means any person who
transports, stores, or causes the transportation or storage of gasoline at any
point between any gasoline refinery or importer's facility and any retail
outlet or wholesale purchaser-consumer facility.
(2) "Gasoline-oxygenate blend" means a fuel
consisting primarily of gasoline with a substantial amount of one (1) or more
oxygenates added.
(3) "Octane
rating" means the rating of the antiknock characteristic of a grade or type of
gasoline which is determined by taking the average of the sum of the research
octane number and the motor octane number.
Section 2. Administration. The Division of
Regulation and Inspection, Kentucky Department of Agriculture shall administer
the Motor Fuels Inspection and Testing Program pursuant to KRS
363.900-908.
Section 3. Standard
Specifications.
(1) Pursuant to
KRS
363.902(2), Gasoline offered
for sale at a retail facility shall conform to current ASTM D-4814
specifications, with the following exceptions:
(a) Distillation range (ASTM D-86) of
gasoline containing up to ten (10) percent ethanol shall be the same as
specified for gasoline except the minimum temperature at fifty (50) percent
evaporated shall be 150 degrees Fahrenheit (sixty-six (66) degrees Celsius).
For gasoline containing up to ten (10) percent ethanol, the vapor pressure
limit for each class shall be increased by one (1) pound per square inch and
the ASTM V/L (vapor to liquid ratio) specification is waived as required by
KRS
363.904(1)(b) 2.
(b) For the periods from May 1 through
September 15, the concentration of ethanol shall be at least nine (9) percent
and no more than ten (10) percent by volume of the gasoline to qualify for the
increased vapor pressure allowance.
(2) The test methods used to determine the
standards of fuel quality shall conform to ASTM D-4814.
(3) Samples of motor fuels obtained for
testing shall be obtained in a manner consistent with ASTM D-4814.
(4) Gasoline shall not be offered for retail
sale under the name "premium" or "super" gasoline unless the antiknock octane
index is greater than or equal to ninety-one (91) antiknock octane
index.
(5) Gasoline shall not be
offered for retail sale under the name "plus" or "mid-grade" gasoline unless
the antiknock octane index is greater than or equal to eighty-nine
(89).
(6) Gasoline shall not be
offered for retail sale under the name "regular" gasoline unless the antiknock
octane index is greater than or equal to eight-six (86).
Section 4. General Considerations.
(1) Gasoline, diesel fuel, and
gasoline-oxygenate blends sold in Kentucky shall state on either the bill of
lading or invoice the following:
(a) The name
of the person transferring the motor fuel;
(b) The name of the person to whom the motor
fuel is being transferred;
(c) The
date of the transfer;
(d) The
octane rating, if the motor fuel is gasoline or a gasoline oxygenate blend;
and
(e) A declaration of any
oxygenate or combination of oxygenates present in concentration of at least one
(1) percent by volume in the motor fuel.
(2) Each retail facility selling motor fuel
shall retain the bills of lading or invoices at the location to which the motor
fuel is transferred for a period of not less than thirty (30) days. If a person
sells motor fuels at more than one (1) location, the bills of lading or
invoices may be retained at a central location, if the bills of lading or
invoices are made available to the department upon request.
(3) Retail dispensing devices.
(a) All retail dispensing devices shall post
the octane rating of all gasoline sold to consumers. At least one (1) label on
each face of the dispenser shall identify the octane rating. If two (2) or more
gasolines with different octane ratings are sold from a single dispenser,
separate labels for each octane rating shall be placed on the face of the
dispenser.
(b) The label, or
labels, shall be placed conspicuously on the dispenser and be in full view of
consumers. The label, or labels, shall also be placed as near as reasonably
practical to the price of the gasoline.
(c) The label showing the minimum octane
rating shall meet the same specifications as required under
16 C.F.R.
Part 306.12.
Section 5. Diesel Fuel.
(1) Pursuant to
KRS
363.902(2), diesel fuel
offered for sale at a retail facility for use as a motor fuel shall conform to
current ASTM D-975 specifications.
(2) Each retail dispenser dispensing diesel
fuel to be used as a motor fuel shall be labeled with a name or grade
containing the word "diesel". The labeling shall be placed conspicuously on the
dispenser and be in full view of consumers.
Section 6. Product Storage Identification.
The fill connection for any petroleum product storage tank or vessel at the
retail level shall be permanently, plainly, and visibly marked in accordance
with the American Petroleum Institute color codes as specified and published in
the API Recommended Practice 1637.
Section
7. Inspection of Premises.
(1)
The department shall have access during normal business hours to all
distributor and retailer records relating to the distribution or sale of motor
fuel.
(2) The department shall have
access to all motor fuel for the purpose of examination, inspection, taking of
samples and investigation of a retailer or distributor. If access is denied by
the owner or person representing a retailer or distributor, the department may
obtain a search warrant or an injunction from a court of competent
jurisdiction.
(3) Samples of not
more than one (1) gallon per grade per inspection may be collected from any
distributor or retail outlet without cost to the state. The department
inspector shall present proper identification to the employee in charge prior
to obtaining samples.
(4) The
department may issue a stop-sale order for any motor fuel not in compliance
with provisions of this administrative regulation. The retailer shall be
notified immediately of the stop-sale order. The order shall be in writing and
contain an explanation of the violation. A stop-sale order shall be rescinded
by the department upon resolution of the violation. The stop-sale order shall
apply only to the location where sample analysis indicates an ASTM
specification violation.
Section
8. Violation Process.
(1) If the
department determines a violation of KRS 363.900-908 has occurred, the
offending party shall be immediately notified in writing of the violation. A
notice of violation which contains a brief description of the specific
violation shall be issued.
(2) A
stop-sale order may be included with the notice of violation.
(3) If a stop-sale order is issued, the
product shall be removed from sale to the public until the product is brought
into compliance with KRS 363.900-908.
(4) A certification that the product meets
the requirements of KRS 363.900-908 shall be furnished to the department before
sale shall be resumed. Additional samples of the product may be
required.
(5) The retail facility,
within ten (10) days of receipt of notice of violation, shall provide detailed
documentation to the department describing the corrective action to bring the
product into compliance with KRS 363.900-908.
(6) In issuing an order under
KRS
363.900 to
363.908,
the department shall use the "Motor Fuels Inspection and Testing Civil Penalty
Guidelines of 1995" and may also consider the degree and extent of harm caused
by the violation, the cost of rectifying the noncompliance, the amount of
financial benefit derived from the violation, whether the violation was
committed willfully, and the compliance record of the violator when determining
the civil penalty to be assessed.
(7) For a first violation, the civil penalty
shall not exceed $1,000 nor be less than twenty-five (25) dollars. For a second
or subsequent violations, the civil penalty shall not exceed $5,000 nor be less
than fifty (50) dollars.
(8) The
civil penalty shall be due within thirty (30) days of receipt of the notice of
violation unless a hearing is requested in accordance with subsection (10) of
this section.
(9) Failure to pay a
civil penalty within thirty (30) days after receipt of the violation may result
in a stop-sale order being issued by the department.
(10) Upon receipt of notice of violation, an
aggrieved party may, within ten (10) days, request in writing to the
department, a hearing to contest the validity of the department's findings and
order. The hearing shall be conducted in accordance with KRS Chapter
13B.
(11) Appeals may be taken from
final orders within thirty (30) days to the Franklin Circuit Court.
Section 9. Incorporation by
Reference.
(1) The following material is
incorporated by reference:
(a) American
Petroleum Institute color codes as specified and published in API Recommended
Practice 1637, September 1995 edition; and
(b) "Motor Fuels Inspection and Testing Civil
Penalty Guidelines", 1995.
(2) This material may be inspected, copied,
or obtained, subject to applicable copyright law, at the office of the
Department of Agriculture, Division of Regulation and Inspection, 107 Corporate
Drive, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30
p.m.
STATUTORY AUTHORITY:
KRS
363.902,
16 C.F.R.
306.12,
40 C.F.R.
80.27
The
repealed version of this section by
49
Ky.R. 225; eff. 10/20/2022 is not yet
available.