Opn. No. ( 1982 )

Honorable J. Roger Barber Commissioner Department of Agriculture and Markets

Weights and measures officials are responsible for inspecting any device used for dispensing petroleum products to determine whether it has been properly installed and adjusted to measure accurately the petroleum product dispensed (Agriculture and Markets Law, § 192[1]). You have asked whether the return after testing of blended gasoline to the low octane tank is an adulteration of fuel in violation of section391-a of the General Business Law.

The facts as explained in your letter and by your staff are as follows. Blended gasoline is produced by proportionately mixing gas from one high octane and one low octane tank. In accordance with the National Board of Standards test, utilized by State weights and measures officials, one gallon of each blend is drawn and tested. The blends are a mix of gasoline from the two tanks and therefore do not match the octane ratings of either tank. Their octane rating is lower than that of the high octane tank and higher than that of the low octane tank. Upon return of the blended gasoline to the low octane tank, the octane level of the tank will be increased to some extent. (In the case of unblended gasoline, which is drawn from a single tank, after testing the gasoline can be returned to the tank from which it was taken with no change in octane levels.) The average capacity of gasoline tanks serving blending pumps is 10,000 gallons. Generally, the tanks are filled before they go under one-third full. Most blending pumps provide three different gasoline blends. Therefore, in most cases the weights and measures officials testing the pumps would be faced with the prospect of returning three gallons of blended gasoline to the low octane tank.

Your question is whether the return of the blended gas to the low octane tank is a violation of section 391-a(4), (6) of the General Business Law. The section provides that it is a misdemeanor to mix or adulterate liquid fuels, lubricating oils or other similar products sold, offered for sale or distributed under trade names. The prefatory language of the section notes that practice of manufacturers and distributors of fuels to market their products under trade names by means of tanks, pumps and other distributing devices bearing their trade names or signs (id., § 391-a). It is customary for manufacturers and distributors to furnish these distributing devices to dealers and others to assure the safe and convenient storage of the fuel, and to identify the products sold (ibid.). This method of identifying the fuels by trade name affords protection to purchasers against sale of "adulterated or inferior products" (ibid.). Section 391-a establishes criminal penalties for behavior that would tend to undermine this goal.

It is clear that weights and measures officials have the duty to inspect petroleum dispensing devices (Agriculture and Markets Law, § 192[1]). We believe there is amply authority for you to promulgate rules requiring that weights and measures officials return all gasoline retrieved for testing to the tanks, with blended gasoline returned to the low octane tank (id., § 179[2]). Such a rule would eliminate any question as to whether the officials are acting in accordance with their offical duties. In performing these official responsibilities, the return by weights and measures officials of the blended gasoline to the low octane tank will improve the octane rating of the tank very slightly. The amount returned is about three gallons, so that the impact on the tank's octane rating will be minimal. In our opinion, it is not the purpose of section 391-a to make this behavior criminal. Since the return of gasoline after testing to the low octane tank increases the octane rating of the tank, "inferior products" do not result. Nor does the practice "adulterate" the product (see definition, "adulterate", Webster's Third New International Dictionary [1968]). To the contrary, it improves its quality. With this opinion we supersede a previous opinion, 1958 Reports of the Attorney General, page 140.

We conclude that a weights and measures official who, in accordance with rules of the Commissioner of Agriculture and Markets, tests and returns blended gasoline to the low octane tank does not violate section391-a of the General Business Law.