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This entry was published on 2014-09-22
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SECTION 192-A
Fuel octane labelling requirements
Agriculture & Markets (AGM) CHAPTER 69, ARTICLE 16
§ 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.