2023 New York Laws › AGM - Agriculture and Markets › Article 16 - Weights and Measures › 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.