Can fuel suppliers refuse autogas sales for aviation?

In the past three years, the authors of the GAFuels blog have assisted countless pilots, flight schools, flying clubs, FBOs, airport managers and others in the search for suppliers of ethanol-free autogas. If existing suppliers of the other FAA-approved aviation fuels (avgas and Jet-A) would offer autogas, our help would not be necessary. (Why they don’t sell it is a mystery to us — after all, these same companies already produce enormous quantities of autogas, then adulterate it with ethanol before selling it for highway use.)

This forces airports to deal with their local fuel suppliers, often small “jobbers” as they are called, who haul a variety of fuel from area terminals to those who need it. Often, this includes deliveries of ethanol-free fuel to gas stations (best found via Pure-Gas.org), marinas, race tracks, farms, and to various others who prefer ethanol-free gasoline. One such company, Renner Petroleum, hauls the fuel from a terminal in Reno, Nev., all the way to Fortuna, Calif., to be used in commercial fishing boats whose engines do not tolerate ethanol blends. That’s a distance of 334 miles, each way!

On occasion, we hear from someone who has contacted his local supplier of ethanol-free fuel to arrange deliveries to his airport, only to be told that the company will not sell its products for use in aircraft. When probed for a reason, the typical answer has to do with the company’s legal department knee-jerking over their perception of unusual liability related to aviation. Such an attitude is not only ignorant, but ironic, given that fuel suppliers appear to have no apprehension to selling ethanol blends that are known to cause serious damage and safety risks to hundreds of millions of engines. Is there no liability for the risk to the sport fisherman whose engine fails due to ethanol 50 miles offshore with an approaching storm?

Ignorance aside, what about the legality of a fuel producer or supplier agreeing to sell his product to one market but not to another? Autogas has been an FAA-approved aviation fuel since the first STCs were issued in 1982. Since then it has been in daily use in tens of thousands of legacy aircraft with autogas STCs. It is the most appropriate fuel for auto engine conversions widely used in experimental-category aircraft, and it is an approved fuel for nearly all of the latest generation of piston aircraft engines from Rotax, ULPower, Jabiru, Continental, Lycoming and others. As long as the fuel meets the STC or TC requirements, pilots can and should use it when appropriate, and sellers have no solid technical or certificate-related arguments to refuse sales for aviation.

We recently wrote a lengthy article that describes how ethanol-free fuel sold at many gasoline stations complies with all the requirements needed for aviation. Nevertheless, some fuel producers have released statements that imply that their products are not suitable for aviation. Take, for instance, a flyer that the Marathon Oil Company has distributed in recent years. Marathon markets its popular “Recreational Gasoline” to those needing an ethanol-free alternative. In the flyer, the company claims that its gasolines “are manufactured to meet high automotive standards, including those of ASTM D4814.” The flyer then goes on to state “We are aware the Federal Aviation Administration has issued Supplemental Type Certificates approving the use of unleaded automotive gasoline with a minimum (R+M)/2 octane of 87.0 and meets automotive gasoline standard ASTM D4814 in certain small aircraft. Although Marathon’s gasolines may meet these specifications, Marathon does not recommend use of its fuel for aircraft of any type, including aircraft with a Supplemental Type Certificate for use of automotive gasoline.”

Why? That question remained unanswered in the company’s statement. Its authors need to update their information — autogas can power 70%-80% of the entire piston-engine fleet, nearly all new LSAs, and a wide range of warbirds and old cargo aircraft, not, as Marathon’s flyer suggests “…certain small aircraft.”

Marathon and its competitors must manufacture and distribute their products as complying with specific ASTM designations and provide disclosure in order to sell it. Proof of compliance may be found in the Bill of Ladings provided to the fuel jobber when a load is picked up at a terminal. If a product does not comply, the supplier is mislabeling their product and can be fined or sued by consumer protection agencies, not to mention customers who relied on their labeling, regardless of warnings. Since aircraft STCs and TCs approve the labeled products, there is no special liability for the seller simply because the fuel is sold for aviation.

What about laws that prevent a producer from prejudicial sales, i.e., selling the same product to one individual but denying it to another, although both have a legitimate reason for purchase? It is clear that if a company offers a product for sale across state lines, as most gasoline producers do, then they are subject to federal and state trade laws.

USLegal.com describes restraint of trade as follows: “Restraint of trade means any activity which tends to limit trade, sales and transportation in interstate commerce or has a substantial impact on interstate commerce. Antitrust law prohibits most of these types of practices. The main antitrust law is the Sherman Act. To prevent trusts from creating restraints on trade or commerce and reducing competition, Congress passed the Sherman Antitrust Act in 1890. The Sherman Act aims to eliminate restraints on trade and competition.States also have laws against restraints of trade that have strictly local impact. ” When a producer refuses to sell his product to one group, but agrees to sell it to others, this reduces competition as the party excluded from purchase has fewer options to buy the same product elsewhere.

Well, there you have it. Not only are fuel suppliers who refuse to sell autogas for aviation purposes ignorant of it being an FAA-approved aviation fuel for nearly three decades, they are likely in violation of federal and state laws. If you are on the receiving end of such a refusal, cite the Sherman Antitrust Act and ask what gives this company the right to ignore it.

On a related matter, some airports have attempted in the past to prevent pilots from fueling their own aircraft, citing restrictions in their own “Master Plans.” The lack of self-service fueling generally leads to higher costs for FBOs, limitations on when fuel is available, and almost always to higher costs of fuel for pilots. The FAA, however, includes fueling as one of the preventative maintenance activities we’re allowed to perform on our aircraft, according to Title 14 of the Code of Federal Regulations. Once again, when confronted with what seems to be an unusual restriction on the use of your airplane, ask to see the federal or state law that makes this so. As they say, “forewarned is forearmed.”

The GAfuels Blog is written by two private pilots concerned about the future availability of fuels for piston-engine aircraft: Dean Billing, Sisters, Ore., an expert on autogas and ethanol, and Kent Misegades, Cary, N.C., an aerospace engineer, aviation sales rep for U-Fuel, and president of EAA1114.