Section 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.