§ 192-A — Fuel octane labelling requirements

§ 192-a. Fuel octane labelling requirements. 1. Automotive fuel\nratings, certification and posting for automotive gasoline. No person\nshall distribute, sell, or offer for sale any automotive gasoline unless\nit meets such rating, certification and posting requirements as may be\nestablished by regulations duly promulgated by the commissioner. Any\nsuch requirements shall be the same as the applicable provisions of\nTitle 15 of the United States Code and any rule adopted pursuant\nthereto. For purposes of this section, automotive gasoline shall mean an\nautomotive spark-ignition engine fuel, which includes, but is not\nlimited to gasohol, reformulated gasoline and oxygenated gasoline.\n 2. Regular gasoline. As used in this section, "regular gasoline" means\nunleaded gasoline, as defined in section one hundred ninety-two-b of\nthis article, with an octane rating (R+M)/2 of eighty-seven, as defined\nin Title 15 of the United States Code and rules adopted pursuant\nthereto. The term "regular", either by itself or in combination with any\nother term or name, shall not be used in connection with the sale,\noffering for sale, advertising or marketing of unleaded gasoline at\nretail that has a posted octane rating other than eighty-seven.\n 3. Inspection, investigation; recordkeeping. (a) The commissioner or\nthe commissioner's designee, or the director of a municipal consumer\naffairs office or the director's designee, and/or a municipal director\nof weights and measures or the director's designee, upon presentation of\nappropriate credentials, shall be authorized to enter during regular\nbusiness hours upon or through the business premises of any person who\nsells or offers for sale automotive gasoline or other petroleum products\nfor use in motor vehicles or any place where such gasoline or petroleum\nproduct is stored, for the purposes of making inspections, taking\nsamples and conducting tests to determine compliance with the provisions\nof this section or any rules or regulations promulgated hereunder and\nunder section one hundred seventy-nine of this chapter.\n (b) Whenever the commissioner, or the director of a municipal consumer\naffairs office and/or a municipal director of weights and measures, has\nreason to believe that a violation of this section or any rule or\nregulation adopted pursuant to this section has occurred, he or she\nshall be authorized to make such investigation as he or she shall deem\nnecessary, and to the extent necessary for this purpose, he or she may\nexamine any person and may compel the production of all relevant\nrecords.\n (c) Any person subject to the provisions of this section shall\nmaintain such written records as the commissioner, or the director of a\nmunicipal consumer affairs office and/or a municipal director of weights\nand measures, may prescribe by regulation.\n 4. Violations and penalties. (a) (1) Upon finding that a person has\nviolated any of the provisions of this section, or of any rule or\nregulation promulgated thereunder, the commissioner or the director of a\nmunicipal consumer affairs office, or a municipal director of weights\nand measures, or a representative of any one of such officials, may\nissue and cause to be served upon such person an order directing the\nperson to cease and desist from engaging in the prohibited activity.\nUpon the issuance of such an order, the person who is the subject of the\norder shall be provided written notice of the violation or violations\ncharged and notice of such person's right to appear, in person or by\nattorney, for a hearing before the commissioner or director, as\nappropriate, or his or her designee, to be heard with respect to the\nviolation or violations alleged. In the event that the imposition of\npenalties is to be considered at such hearing, the notice shall set\nforth the maximum penalties permissible under this section and the\ngrounds for the penalties. Such notice shall further set forth that such\nperson must notify, in writing, the commissioner or a director, as\nappropriate, within thirty days of the issuance of the notice of his or\nher intent to contest the violation or violations alleged; failure to so\nnotify shall constitute a waiver of such person's right to a hearing on\nthe violation or violations alleged. Upon receipt of such person's\nnotice of intent to contest the violation or violations alleged, the\ncommissioner or a director, as appropriate, shall schedule a hearing\nwithin a reasonable period of time. Following a hearing, the\ncommissioner or a director, as appropriate, shall issue a written\ndetermination setting forth his or her findings, including any penalties\nimposed and cause such findings to be served upon such person by first\nclass mail. The order shall become final upon the expiration of the time\nallowed for filing any administrative appeal which may be available.\n (2) Any person who violates a final order of the commissioner, or of\nthe director of a municipal consumer affairs office or a municipal\ndirector of weights and measures, as the case may be, shall be liable\nfor a civil penalty of not less than five hundred dollars nor more than\nten thousand dollars for each violation, notwithstanding the penalty\nprovisions of section forty of this chapter which shall not apply to a\nviolation of such order.\n (b) Any person who violates the provisions of this section or any\nrules or regulations promulgated thereunder with actual knowledge or\nknowledge fairly implied on the basis of objective circumstances that\nthe act or practice underlying the violation is unfair or deceptive\nshall be liable for a civil penalty of not less than five hundred\ndollars nor more than ten thousand dollars; provided, however, that in\norder for any retailer to be held liable under this paragraph for\nviolating any of the provisions of this section related to octane\nrating, certification or posting, such retailer shall be shown to have\nhad actual knowledge that the act or practice underlying the violation\nis unfair or deceptive. Any person who engages in a particular act or\npractice after receiving written notice from the commissioner or the\ndirector of a municipal consumer affairs office, or a municipal director\nof weights and measures, or a representative of any one of such\nofficials, that such act or practice constitutes a violation of this\nsection, shall be presumed to have actual knowledge that such act or\npractice is unfair or deceptive. Such presumption shall be rebuttable by\na preponderance of credible evidence which shows that such person did\nnot have actual knowledge that such act or practice is unfair or\ndeceptive. In determining the amount of any civil penalty imposed under\nthis paragraph, the following shall be considered: the degree of\nculpability; any history of prior such conduct; ability to pay; effect\non ability to continue to do business; and such other matters as justice\nmay require.\n (c) In the case of a violation through continuing failure to comply\nwith any of the provisions of this section, any rules or regulations\npromulgated thereunder, or any order of the commissioner, or of the\ndirector of a municipal consumer affairs office and/or a municipal\ndirector of weights and measures, issued pursuant to this subdivision,\neach day of the continuance of such failure shall be treated as a\nseparate violation.\n (d) The civil penalties prescribed by the provisions of this\nsubdivision may be imposed by the commissioner, or by the director of a\nmunicipal consumer affairs office or a municipal director of weights and\nmeasures, as the case may be, after due notice and an opportunity to be\nheard have been provided for any violation which has not been noticed\nfor a hearing under subparagraph one of paragraph (a) of this\nsubdivision, or may be recovered in a civil action in the name of the\nstate, or the municipality, as the case may be, commenced in a court of\ncompetent jurisdiction. A right of action for the recovery of a\nliability for the civil penalties incurred as provided in this section\nmay be released, settled or compromised by the commissioner or the\ndirector of a municipal consumer affairs office or municipal director of\nweights and measures before the matter is referred to the attorney\ngeneral as provided in section forty-four of this chapter, or by the\nattorney for the municipality, as the case may be, and thereafter may be\nreleased, settled or compromised by the attorney general or the attorney\nfor the municipality, as the case may be, either before or after an\naction is brought to recover such penalty. The commissioner or a\ndirector of a municipal consumer affairs office or a municipal director\nof weights and measures may apply to a court of appropriate jurisdiction\nfor an injunction to restrain any person subject to the provisions of\nthis section from the further violation of such provisions or for such\nother relief as the court deems proper. Any plaintiff seeking such\nrelief shall not be required to furnish security and the costs of the\napplication may be granted in the discretion of the court.\n (e) Notwithstanding the foregoing, the commissioner, or the director\nof a municipal consumer affairs office and/or a municipal director of\nweights and measures, as the case may be, in a manner consistent with\nthe rules, regulations or policies of such commissioner or director or\ndirectors, as the case may be, shall cause to be published once each\nmonth the name and business location of any person, firm or corporation\nthat has been found to have violated any provision of this section\nduring the month immediately preceding.\n (f) The provisions of sections thirty-nine, forty and forty-one of\nthis chapter shall not apply to a violation described in this\nsubdivision.\n 5. Concurrent enforcement by municipalities. The provisions of this\nsection and the regulations promulgated thereunder may be enforced\nconcurrently by the director of a municipal consumer affairs office\nand/or a municipal director of weights and measures, except that nothing\nin this section or in subdivision three, twelve or nineteen of section\none hundred seventy-nine of this article or in section one hundred\nninety-two-b or one hundred ninety-two-c or one hundred ninety-two-d of\nthis article shall be construed to prohibit a political subdivision of\nthe state from also continuing to implement and enforce any local law\nand regulations that were in effect prior to the date this section took\neffect, and any subsequent amendments thereto, provided such local law\nand regulations or amendments thereto are not inconsistent with\nrequirements imposed by the provisions of this section or by regulations\nadopted pursuant to this section. Notwithstanding the provisions of\nsection forty-five of this chapter, all moneys collected hereunder at\nthe instance of a municipal enforcement officer shall be retained by the\nmunicipality.\n 6. Authority of commissioner of environmental conservation to prevent\nor decrease pollution unimpaired. Nothing in this section shall be\ndeemed to limit or restrict the authority of the commissioner of\nenvironmental conservation to adopt rules and regulations that affect\nthe composition, storage, transport, handling or commerce of petroleum\nproducts for the purpose of preventing or decreasing pollution pursuant\nto the environmental conservation law.\n 7. Rules and regulations. The commissioner shall have the authority to\npromulgate such rules and regulations as the commissioner shall deem\nnecessary to effectuate the purposes of this section, consistent with\nits provisions.\n