N.Y. Agriculture & Markets Law § 192-a: Fuel octane labelling requirements

§ 192-a. Fuel octane labelling requirements. 1. Automotive fuel

ratings, certification and posting for automotive gasoline. No person

shall distribute, sell, or offer for sale any automotive gasoline unless

it meets such rating, certification and posting requirements as may be

established by regulations duly promulgated by the commissioner. Any

such requirements shall be the same as the applicable provisions of

Title 15 of the United States Code and any rule adopted pursuant

thereto. For purposes of this section, automotive gasoline shall mean an

automotive spark-ignition engine fuel, which includes, but is not

limited to gasohol, reformulated gasoline and oxygenated gasoline.

2. Regular gasoline. As used in this section, "regular gasoline" means

unleaded gasoline, as defined in section one hundred ninety-two-b of

this article, with an octane rating (R+M)/2 of eighty-seven, as defined

in Title 15 of the United States Code and rules adopted pursuant

thereto. The term "regular", either by itself or in combination with any

other term or name, shall not be used in connection with the sale,

offering for sale, advertising or marketing of unleaded gasoline at

retail that has a posted octane rating other than eighty-seven.

3. Inspection, investigation; recordkeeping. (a) The commissioner or

the commissioner's designee, or the director of a municipal consumer

affairs office or the director's designee, and/or a municipal director

of weights and measures or the director's designee, upon presentation of

appropriate credentials, shall be authorized to enter during regular

business hours upon or through the business premises of any person who

sells or offers for sale automotive gasoline or other petroleum products

for use in motor vehicles or any place where such gasoline or petroleum

product is stored, for the purposes of making inspections, taking

samples and conducting tests to determine compliance with the provisions

of this section or any rules or regulations promulgated hereunder and

under section one hundred seventy-nine of this chapter.

(b) Whenever the commissioner, or the director of a municipal consumer

affairs office and/or a municipal director of weights and measures, has

reason to believe that a violation of this section or any rule or

regulation adopted pursuant to this section has occurred, he or she

shall be authorized to make such investigation as he or she shall deem

necessary, and to the extent necessary for this purpose, he or she may

examine any person and may compel the production of all relevant

records.

(c) Any person subject to the provisions of this section shall

maintain such written records as the commissioner, or the director of a

municipal consumer affairs office and/or a municipal director of weights

and measures, may prescribe by regulation.

4. Violations and penalties. (a) (1) Upon finding that a person has

violated any of the provisions of this section, or of any rule or

regulation promulgated thereunder, the commissioner or the director of a

municipal consumer affairs office, or a municipal director of weights

and measures, or a representative of any one of such officials, may

issue and cause to be served upon such person an order directing the

person to cease and desist from engaging in the prohibited activity.

Upon the issuance of such an order, the person who is the subject of the

order shall be provided written notice of the violation or violations

charged and notice of such person's right to appear, in person or by

attorney, for a hearing before the commissioner or director, as

appropriate, or his or her designee, to be heard with respect to the

violation or violations alleged. In the event that the imposition of

penalties is to be considered at such hearing, the notice shall set

forth the maximum penalties permissible under this section and the

grounds for the penalties. Such notice shall further set forth that such

person must notify, in writing, the commissioner or a director, as

appropriate, within thirty days of the issuance of the notice of his or

her intent to contest the violation or violations alleged; failure to so

notify shall constitute a waiver of such person's right to a hearing on

the violation or violations alleged. Upon receipt of such person's

notice of intent to contest the violation or violations alleged, the

commissioner or a director, as appropriate, shall schedule a hearing

within a reasonable period of time. Following a hearing, the

commissioner or a director, as appropriate, shall issue a written

determination setting forth his or her findings, including any penalties

imposed and cause such findings to be served upon such person by first

class mail. The order shall become final upon the expiration of the time

allowed for filing any administrative appeal which may be available.

(2) Any person who violates a final order of the commissioner, or of

the director of a municipal consumer affairs office or a municipal

director of weights and measures, as the case may be, shall be liable

for a civil penalty of not less than five hundred dollars nor more than

ten thousand dollars for each violation, notwithstanding the penalty

provisions of section forty of this chapter which shall not apply to a

violation of such order.

(b) Any person who violates the provisions of this section or any

rules or regulations promulgated thereunder with actual knowledge or

knowledge fairly implied on the basis of objective circumstances that

the act or practice underlying the violation is unfair or deceptive

shall be liable for a civil penalty of not less than five hundred

dollars nor more than ten thousand dollars; provided, however, that in

order for any retailer to be held liable under this paragraph for

violating any of the provisions of this section related to octane

rating, certification or posting, such retailer shall be shown to have

had actual knowledge that the act or practice underlying the violation

is unfair or deceptive. Any person who engages in a particular act or

practice after receiving written notice from the commissioner or the

director of a municipal consumer affairs office, or a municipal director

of weights and measures, or a representative of any one of such

officials, that such act or practice constitutes a violation of this

section, shall be presumed to have actual knowledge that such act or

practice is unfair or deceptive. Such presumption shall be rebuttable by

a preponderance of credible evidence which shows that such person did

not have actual knowledge that such act or practice is unfair or

deceptive. In determining the amount of any civil penalty imposed under

this paragraph, the following shall be considered: the degree of

culpability; any history of prior such conduct; ability to pay; effect

on ability to continue to do business; and such other matters as justice

may require.

(c) In the case of a violation through continuing failure to comply

with any of the provisions of this section, any rules or regulations

promulgated thereunder, or any order of the commissioner, or of the

director of a municipal consumer affairs office and/or a municipal

director of weights and measures, issued pursuant to this subdivision,

each day of the continuance of such failure shall be treated as a

separate violation.

(d) The civil penalties prescribed by the provisions of this

subdivision may be imposed by the commissioner, or by the director of a

municipal consumer affairs office or a municipal director of weights and

measures, as the case may be, after due notice and an opportunity to be

heard have been provided for any violation which has not been noticed

for a hearing under subparagraph one of paragraph (a) of this

subdivision, or may be recovered in a civil action in the name of the

state, or the municipality, as the case may be, commenced in a court of

competent jurisdiction. A right of action for the recovery of a

liability for the civil penalties incurred as provided in this section

may be released, settled or compromised by the commissioner or the

director of a municipal consumer affairs office or municipal director of

weights and measures before the matter is referred to the attorney

general as provided in section forty-four of this chapter, or by the

attorney for the municipality, as the case may be, and thereafter may be

released, settled or compromised by the attorney general or the attorney

for the municipality, as the case may be, either before or after an

action is brought to recover such penalty. The commissioner or a

director of a municipal consumer affairs office or a municipal director

of weights and measures may apply to a court of appropriate jurisdiction

for an injunction to restrain any person subject to the provisions of

this section from the further violation of such provisions or for such

other relief as the court deems proper. Any plaintiff seeking such

relief shall not be required to furnish security and the costs of the

application may be granted in the discretion of the court.

(e) Notwithstanding the foregoing, the commissioner, or the director

of a municipal consumer affairs office and/or a municipal director of

weights and measures, as the case may be, in a manner consistent with

the rules, regulations or policies of such commissioner or director or

directors, as the case may be, shall cause to be published once each

month the name and business location of any person, firm or corporation

that has been found to have violated any provision of this section

during the month immediately preceding.

(f) The provisions of sections thirty-nine, forty and forty-one of

this chapter shall not apply to a violation described in this

subdivision.

5. Concurrent enforcement by municipalities. The provisions of this

section and the regulations promulgated thereunder may be enforced

concurrently by the director of a municipal consumer affairs office

and/or a municipal director of weights and measures, except that nothing

in this section or in subdivision three, twelve or nineteen of section

one hundred seventy-nine of this article or in section one hundred

ninety-two-b or one hundred ninety-two-c or one hundred ninety-two-d of

this article shall be construed to prohibit a political subdivision of

the state from also continuing to implement and enforce any local law

and regulations that were in effect prior to the date this section took

effect, and any subsequent amendments thereto, provided such local law

and regulations or amendments thereto are not inconsistent with

requirements imposed by the provisions of this section or by regulations

adopted pursuant to this section. Notwithstanding the provisions of

section forty-five of this chapter, all moneys collected hereunder at

the instance of a municipal enforcement officer shall be retained by the

municipality.

6. Authority of commissioner of environmental conservation to prevent

or decrease pollution unimpaired. Nothing in this section shall be

deemed to limit or restrict the authority of the commissioner of

environmental conservation to adopt rules and regulations that affect

the composition, storage, transport, handling or commerce of petroleum

products for the purpose of preventing or decreasing pollution pursuant

to the environmental conservation law.

7. Rules and regulations. The commissioner shall have the authority to

promulgate such rules and regulations as the commissioner shall deem

necessary to effectuate the purposes of this section, consistent with

its provisions.