New York Agriculture & Markets Law
Sec. § 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 commissioners designee, or the director of a municipal consumer affairs office or the directors designee, and/or a municipal director of weights and measures or the directors 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 persons 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 persons right to a hearing on the violation or violations alleged. Upon receipt of such persons 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.
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Dec. 13, 2016