N.Y. Agriculture & Markets Law § 192-c: Motor fuel standards and labelling; grade of diesel fuel; alcohol content

§ 192-c. Motor fuel standards and labelling; grade of diesel fuel;

alcohol content. 1. As used in this section, the following terms shall

have the following meanings:

a. "Co-solvent" means an alcohol with a higher molecular weight than

methanol which is blended with methanol to prevent phase separation in

gasoline.

b. "Diesel motor fuel" means any fuel sold in this state and for use

in diesel engines which is commercially known or offered for sale as

diesel motor fuel.

c. "Cetane rating" means the property of a diesel motor fuel expressed

as a number determined pursuant to a method adopted by the American

Society of Testing and Materials, concerning the fuel's ignition

properties.

d. "Gasoline" means any fuel sold in this state for use in internal

combustion engines which is commercially known or offered for sale as

gasoline.

e. "Refiner" means a person, firm or corporation who owns, leases,

operates, controls or supervises a commercial entity producing gasoline

or diesel motor fuel.

f. "Distributor" means any person, firm or corporation who purchases,

transports, stores or causes the transportation or storage of gasoline

or diesel motor fuel at any point between commercial entities.

g. "Reseller" means any person who purchases gasoline identified by

the corporate, trade or brand name of a refiner from such refiner or a

distributor and resells or transfers it to retailers or wholesale

purchaser-consumers displaying the refiner's brands, and whose assets or

facilities are not substantially owned, leased or controlled by such

refiner.

h. "Retailer" means a person, firm or corporation who owns, leases,

operates, controls or supervises a commercial entity at which gasoline

or diesel motor fuel is sold or offered for sale to the general public.

i. "Wholesale purchaser-consumer" means any organization that is an

ultimate consumer of gasoline and which purchases or obtains gasoline

from a supplier for use in motor vehicles and receives delivery of that

product into a storage tank which has a capacity of five hundred fifty

gallons or more and is substantially under the control of that

organization.

j. "Ultimate purchaser" means the first person who purchases gasoline

for purposes other than resale.

2. No refiner, distributor, reseller or retailer shall transfer, sell,

dispense or offer any grade of diesel motor fuel for sale in this state

unless said diesel motor fuel meets the standards and specifications

established for such product by regulations promulgated by the

commissioner or by the commissioner of environmental conservation, after

due notice and public hearing. No refiner, distributor, reseller or

retailer shall transfer, sell, dispense or offer gasoline for sale in

this state unless said gasoline meets the standards and specifications,

other than those relating to octane and lead content, established for

such product by regulations promulgated by the commissioner or by the

commissioner of environmental conservation, after due notice and public

hearing.

3. a. A refiner, distributor or reseller shall not transfer, sell or

dispense gasoline for sale in this state without delivering to the

purchaser a bill, invoice or other instrument evidencing the transaction

which shall indicate:

(i) the presence of methanol and co-solvent, each as a percentage of

the total volume, if the quantity of methanol exceeds three-tenths of

one percent; and

(ii) the presence of ethanol, as a percentage of the total volume, if

such quantity exceeds one percent of the total volume.

b. A refiner, distributor or reseller shall not transfer, sell or

dispense diesel motor fuel in this state without delivering to the

purchaser a bill, invoice or other instrument evidencing the transaction

which shall indicate the grade of such diesel motor fuel.

c. For the purposes of this section, the instrument evidencing the

transaction shall be on such form as may be required by the

commissioner. The commissioner shall consult with the department of

taxation and finance and to the extent practicable, the form used for

certification of prepayment of the sales tax and payment of motor fuel

tax shall be modified and adapted for this purpose, such that said form

shall indicate the brand, type and quality of each product delivered.

4. a. A refiner, distributor or reseller shall not transfer, sell,

dispense, or offer gasoline or diesel motor fuel for sale in this state

to a retailer unless the refiner, distributor or reseller provides to

the retailer the materials necessary to comply with the posting

requirements contained in this section.

b. It shall be a defense to any violation of paragraph a of this

subdivision that a refiner, distributor or reseller, if acting in good

faith, had reasonable cause to believe that the retailer had the

materials necessary to comply with the posting requirements contained in

this section. No common carrier shall be held liable for any violation

of paragraph a of this subdivision to the extent that the materials

necessary to comply with such posting requirements were not transferred

to him or her or his or her agent along with such gasoline or diesel

motor fuel.

c. Each retailer shall record, for each day during which gasoline or

diesel motor fuel is sold or offered for sale to the general public the

cumulative gallon meter readings for each retail petroleum dispensing

device and the volume contained in each gasoline and diesel motor fuel

storage tank. These records shall be maintained for a period of one

year.

5. a. A retailer or reseller shall not transfer, sell, dispense or

offer gasoline for sale in this state if it contains more than:

(i) one percent by total volume of ethanol unless the retail petroleum

dispensing device displays a sign with at least one-quarter inch block

letters on a contrasting background, reading "Contains.....% Ethanol",

the blank being filled in with the maximum percentage of ethanol in the

gasoline; and

(ii) three-tenths of one percent of total volume of methanol unless

the retail petroleum dispensing device displays a sign with at least

one-quarter inch block letters on a contrasting background reading

"Contains.....% Methanol" and "Contains.....% Co-Solvent", the blanks

being filled in with the maximum percentage of methanol and minimum

percentage of co-solvent in the gasoline.

b. A retailer shall not transfer, sell, dispense or offer diesel motor

fuel for sale in this state unless the retail petroleum dispensing

device displays a sign disclosing the grade.

6. No refiner, distributor, reseller or retailer shall store, sell,

transfer, dispense or offer for sale gasoline or diesel motor fuel in

this state without having in his or her possession a copy of the bill,

invoice, or other written instrument evidencing the transaction by which

such refiner, distributor, reseller or retailer came into possession of

the gasoline or diesel motor fuel; provided, however, that this

requirement shall not apply to refiners with respect to gasoline or

diesel motor fuel which such refiner has produced from crude oil.

7. a. Except as otherwise provided, any retailer, reseller or

distributor charged with a violation under this section may plead and

prove by a preponderance of the evidence that the violation was not

caused by him or her or his or her agent or employee as an affirmative

defense to such charge.

b. Notwithstanding any other provision of this section, a common

carrier transporting gasoline or diesel motor fuel shall be deemed to be

liable under the provisions of subdivision two of this section only if

it is proved by a preponderance of the evidence that a violation was

caused by him or her or his or her agent or employee.

8. a. The commissioner or his authorized representative, upon

presentation of appropriate credentials, shall have the right to enter

during regular business hours upon or through the premises or property

of any refiner, distributor, reseller or retailer, and shall have the

right to make inspections, take samples of gasoline and diesel motor

fuel being stored, offered for sale or in the process of being delivered

or transported, and conduct tests during normal business hours to

determine compliance with this section.

b. The commissioner may require a refiner, distributor, reseller or

retailer to report information regarding the receipt, transfer, delivery

or sale of gasoline and diesel motor fuel and to allow the reproduction

of that information except that the refiner, distributor, reseller or

retailer shall not be required to provide information not maintained in

the normal course of business, except as otherwise required in this

section. A refiner, distributor, reseller or retailer shall preserve

information regarding the receipt, transfer, delivery, or sale of

gasoline and diesel motor fuel for one year.

9. Any refiner, distributor, reseller or retailer who or which

violates this section shall be liable for a civil penalty not to exceed

ten thousand dollars for each violation, and for the first violation not

to be less than two hundred fifty dollars, and for the second violation

not to be less than one thousand dollars. In the case of a violation

through continuing failure to comply with any of the provisions of this

section, or any rules or regulations promulgated thereunder, each day of

the continuance of such failure shall be treated as a separate

violation. Provided, however, that the penalty for any violation of

paragraph c of subdivision four of this section for failure to keep the

required records shall be a maximum two hundred dollar civil penalty for

the first violation, and a maximum four hundred dollar civil penalty for

the second and subsequent violations. 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 a 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.

The provisions of sections thirty-nine, forty and forty-one of this

chapter shall not apply to a violation described in this subdivision.

10. Whenever the commissioner or an authorized representative of the

commissioner shall find that a refiner, distributor, reseller or

retailer has transferred, sold, dispensed or offered gasoline or diesel

motor fuel for sale in this state in violation of this section, such

commissioner or his authorized representative may exercise any remedies

authorized by section one hundred eighty-five of this article. Any

refiner, distributor, reseller or retailer violating an order issued

pursuant to this subdivision shall be subject to an additional civil

penalty not to exceed five thousand dollars, notwithstanding the penalty

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

violation of such order.

11. The provisions of this section and the regulations promulgated

hereunder may be enforced concurrently by the director of a municipal

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

measures. Notwithstanding the provisions of section forty-five of this

chapter, all moneys collected hereunder shall be retained by the

municipality.

12. 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.

13. 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.