Full Text of HB0553 94th General Assembly
HB0553ham001 94TH GENERAL ASSEMBLY
|
Consumer Protection Committee
Filed: 2/23/2005
|
|
09400HB0553ham001 |
|
LRB094 06725 RXD 40992 a |
|
| 1 |
| AMENDMENT TO HOUSE BILL 553
| 2 |
| AMENDMENT NO. ______. Amend House Bill 553 by replacing | 3 |
| everything after the enacting clause with the following:
| 4 |
| "Section 1. Short title. This Act may be cited as the Motor | 5 |
| Fuel Fair Marketing Practices Act. | 6 |
| Section 5. Legislative findings; purpose. | 7 |
| (a) Retail marketing of motor fuel is affected by the | 8 |
| public's interest.
| 9 |
| (b) Consumers benefit from ample numbers of conveniently | 10 |
| located motor fuel facilities and ample storage of motor fuels | 11 |
| to readily accommodate consumer demand. | 12 |
| (c) Local communities benefit from motor fuel businesses | 13 |
| owned and operated by independent retailers and wholesalers, | 14 |
| because independents generally support private sector | 15 |
| businesses that are local or regional in nature, including but | 16 |
| not limited to, lenders, insurance providers, providers of | 17 |
| accounting services, and providers of legal services. | 18 |
| (d) Communities also benefit from financial, equipment, | 19 |
| and manpower support from independent retailers and | 20 |
| wholesalers to not-for-profit organizations operating within | 21 |
| such communities. | 22 |
| (e) Despite actual differences in motor fuel production and | 23 |
| quality, motor fuel is considered largely to be a "commodity | 24 |
| product", with price having evolved as the primary basis of |
|
|
|
09400HB0553ham001 |
- 2 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| competition. | 2 |
| (f) With price as the primary basis of competition, profit | 3 |
| margins and returns on investment for retail marketers of motor | 4 |
| fuel are generally low and most retailers of motor fuel must be | 5 |
| competent in order to survive. | 6 |
| (g) Retail marketers of motor fuel must earn a margin of | 7 |
| profit on the sale of motor fuel for reinvestment in the | 8 |
| business because many motor fuels are flammable and combustible | 9 |
| liquids, that must be distributed in a safe manner, utilizing | 10 |
| specially designed and costly explosion-proof equipment. | 11 |
| (h) Retail marketers of motor fuel must earn a margin of | 12 |
| profit on the sale of motor fuel for maintenance and | 13 |
| reinvestment in the business because motor fuels are | 14 |
| potentially hazardous to the underground environment, such | 15 |
| that specially designed and costly equipment must be used to | 16 |
| contain and monitor the containment of motor fuels, and to | 17 |
| comply with governmentally-imposed regulations. | 18 |
| (i) Over the years, the margin of profit earned on the sale | 19 |
| of motor fuel has lessened, largely due to the advent of | 20 |
| self-service as well as the sharing of costs of motor fuel | 21 |
| retailing with the retailing of other goods and services | 22 |
| offered at the motor fuel facility, including but not limited | 23 |
| to, the sale of convenience store goods and services, car | 24 |
| washes, and fast-foods, where the shared costs can include | 25 |
| cashiering, management, accounting, facility maintenance, | 26 |
| facility development, land acquisition, and land development. | 27 |
| (j) Given today's cost of doing business and the average | 28 |
| volume motor fuel station facility, the sharing of personnel to | 29 |
| accommodate transactions of both convenience store items and | 30 |
| motor fuel sales has allowed for a significant reduction in the | 31 |
| minimum needed profit margin on a motor fuel operation | 32 |
| benefiting from cost sharing as compared with a motor fuel | 33 |
| operation not benefiting from such cost sharing.
| 34 |
| (k) A lower margin of profit on the sale of motor fuel has |
|
|
|
09400HB0553ham001 |
- 3 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| been a gain to consumers through lower retail prices on motor | 2 |
| fuel, which for many years has allowed the majority of | 3 |
| competently-run independent businesses to remain financially | 4 |
| viable because of cost sharing. | 5 |
| (l) In recent years, however, the profit earned on the sale | 6 |
| of motor fuel within a growing number of markets has gone below | 7 |
| what is reasonable and necessary for an independent marketer to | 8 |
| cover its costs of doing business, even when the motor fuel | 9 |
| marketer is benefiting from cost sharing. | 10 |
| (m) The primary reason that the profit earned on the sale | 11 |
| of motor fuel has gone below what is reasonable and necessary | 12 |
| for a cost-sharing retailer to cover its costs of doing | 13 |
| business is the growing practice of below-cost marketing of | 14 |
| motor fuels. | 15 |
| (n) With price as the number one basis of competition in | 16 |
| the retailing of motor fuel, below-cost retailing by the | 17 |
| competition leaves the independent retailer of motor fuel with | 18 |
| only 2 choices: (1) join in the below-cost retailing of motor | 19 |
| fuel to keep its customer base, which will eventually cause the | 20 |
| independent retailer to become financially unsound and not | 21 |
| competitive because it cannot generate capital to reinvest in | 22 |
| its business; or (2) do not join in the below-cost retailing of | 23 |
| motor fuel, and lose customers and sales volumes as a result, | 24 |
| eventually becoming financially unsound and not competitive | 25 |
| through the inability to generate reinvestment capital. Either | 26 |
| way, many independent retailers will be selling out or closing | 27 |
| up.
| 28 |
| (o) Those who initiate below-cost marketing of motor fuel | 29 |
| are able to do so either from subsidized pricing unrelated to | 30 |
| cost-sharing or from wholesale price discrimination. | 31 |
| (p) Subsidized pricing stems from one of the following 4 | 32 |
| sources: | 33 |
| (1) A retailer covers its losses on the sale of motor | 34 |
| fuel from profits generated by the sale of products and |
|
|
|
09400HB0553ham001 |
- 4 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| services unrelated to the retail sale of motor fuels and | 2 |
| unrelated to the sharing of personnel and other costs | 3 |
| involved in the sale of motor fuel products. Examples | 4 |
| include, but are not necessarily limited to, bulk | 5 |
| distributors of motor fuel, supermarket operators and mass | 6 |
| merchandiser retailers who have added motor fuel as an | 7 |
| additional separate product offering, and who provide | 8 |
| motor fuel discounts and subsidize motor fuel operations | 9 |
| with revenue generated on separate operations, as well as | 10 |
| those involved in money laundering and illegal trade. This | 11 |
| form of subsidization is referred to as "subsidization via | 12 |
| revenue sharing from diversification". | 13 |
| (2) Large chain retailers who cover a large geographic | 14 |
| market and subsidize their below-cost sales in one market | 15 |
| with profits generated in other markets. This form of | 16 |
| subsidization is referred to as "subsidization via revenue | 17 |
| sharing from geographic dispersion". | 18 |
| (3) Vertically integrated companies that subsidize the | 19 |
| retailing end of the business from either the wholesaling, | 20 |
| transportation, refining, and oil production portions of | 21 |
| their business. This form of subsidization is hereinafter | 22 |
| referred to as "subsidization via revenue sharing from | 23 |
| vertical integration". | 24 |
| (4) Foreign nationals who receive subsidies from | 25 |
| abroad in order to maintain business and citizenship | 26 |
| opportunities in the United States. This form of | 27 |
| subsidization is hereinafter referred to as "subsidization | 28 |
| via revenue sharing from foreign sources". | 29 |
| (q) Wholesale price discrimination occurs when refiners or | 30 |
| other originators of motor fuel sell to one wholesaler or | 31 |
| retailer in a market area at an advantaged price over another | 32 |
| wholesaler or retailer in the same market area, when the | 33 |
| pricing differential is not cost-justified. | 34 |
| (r) Below-cost marketing of motor fuel is unfair |
|
|
|
09400HB0553ham001 |
- 5 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| competition because it injures and threatens the viability of | 2 |
| independent motor fuel marketers, even those possessing the | 3 |
| highest degree of competence and that are engaging in | 4 |
| cost-sharing by way of diversified retail operations, by | 5 |
| depriving independent motor fuel marketers of their ability to | 6 |
| accumulate capital, which is essential in a capitalistic | 7 |
| economy, and which is essential for reinvestment in the motor | 8 |
| fuel operation. | 9 |
| (s) The inability of independent motor fuel marketers to | 10 |
| accumulate capital, due to unfair competition in the motor fuel | 11 |
| industry, also damages local and regional suppliers of | 12 |
| equipment, facilities, technology, and other goods and | 13 |
| services with whom independents regularly do business, all to | 14 |
| the detriment of local and regional economies. | 15 |
| (t) Unfair competition in the retail motor fuel industry | 16 |
| also injures the ability of independent motor fuel marketers to | 17 |
| generate money to cover the costs of regulation compliance | 18 |
| related to underground storage tank systems, potentially | 19 |
| endangering the environment. | 20 |
| (u) Unfair competition in the retail motor fuel industry | 21 |
| also injures the ability of local independent retailers to | 22 |
| provide new jobs, expand career opportunities for their current | 23 |
| employees, implement new technologies, raise living standards | 24 |
| for their employees, and enhance the overall economic welfare | 25 |
| of their local communities and region. | 26 |
| (v) Unfair competition in the retail motor fuel industry | 27 |
| also adversely affects the State because it adversely affects | 28 |
| business spending by independent marketers in the high-wage | 29 |
| sectors of construction, manufacturing, and technology, and it | 30 |
| adversely affects the revenue-generating abilities of the | 31 |
| State through lower sales and income tax collections. | 32 |
| (w) Below-cost marketing of motor fuel is inherently | 33 |
| predatory and stands to injure competition and reduce the | 34 |
| number of competitors in petroleum marketing, especially the |
|
|
|
09400HB0553ham001 |
- 6 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| number of independently owned marketers, to the detriment of | 2 |
| the consuming public welfare by limiting the number of motor | 3 |
| fuel retail outlets available to State motorists, and by making | 4 |
| motorists susceptible to increased retail prices long-term. | 5 |
| (x) Unfair competition by way of the predatory practice of | 6 |
| below-cost pricing also tends to create barriers to entry or | 7 |
| re-entry into the motor fuel marketplace by independent motor | 8 |
| fuel marketers, resulting in a marketplace that is not truly | 9 |
| free. | 10 |
| (y) While the federal government has regulations dealing | 11 |
| with predatory pricing, the regulations fail to protect | 12 |
| businesses and consumers because the regulations are not held | 13 |
| to be violated until long after the damage caused by predatory | 14 |
| pricing has been done, with much of the damage (i.e. bankrupt | 15 |
| and closed family and other independent businesses) being | 16 |
| irreversible. | 17 |
| (z) Federal regulations also fail to take into account the | 18 |
| unique circumstances associated with the retail motor fuel | 19 |
| industry, including, but not necessarily limited to, the | 20 |
| following: | 21 |
| (1) There is a barrier to entry into the motor fuel | 22 |
| market on the basis of product differentiation because | 23 |
| motor fuel is perceived largely as a commodity product, | 24 |
| where product differentiation is small and price is the | 25 |
| number one basis of competition, providing little for the | 26 |
| independent motor fuel marketer to do on a strategy of | 27 |
| differentiation. | 28 |
| (2) The high investment cost required to enter the | 29 |
| motor fuel industry (with the average cost for fuel | 30 |
| improvements and fuel equipment running approximately | 31 |
| $300,000 and the cost for land, land development, and | 32 |
| improvements and equipment for cost-sharing running as | 33 |
| much as $900,000, for a total entry cost being as much as | 34 |
| $1.2 million depending on the geographic area of the |
|
|
|
09400HB0553ham001 |
- 7 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| State), requires those entering into the motor fuel | 2 |
| business to have a reasonable opportunity to earn a | 3 |
| positive return on investment. | 4 |
| (3) The threat of continued or repeated predatory | 5 |
| pricing practices creates a significant barrier to | 6 |
| re-entry into the business by those previously run out of | 7 |
| business, as well as a significant barrier to entry by | 8 |
| those wanting to enter the market for the first time. | 9 |
| (aa) On the other end of the spectrum, in the past, | 10 |
| following times of national crisis, an isolated number of motor | 11 |
| fuel retailers have engaged in price gouging, which has served | 12 |
| to exacerbate the crisis by stimulating public panic over the | 13 |
| purchase of motor fuel. | 14 |
| (bb) Competent independent motor fuel marketers (dealers, | 15 |
| distributors, jobbers, and wholesalers) are vital to a healthy, | 16 |
| competitive marketplace, and are important to the economic | 17 |
| viability of the State and its local communities. | 18 |
| (cc) While retailers of motor fuel should not be guaranteed | 19 |
| a financial net profit from the marketing of motor fuel, | 20 |
| retailers of motor fuel also should not be guaranteed a | 21 |
| financial net loss from the marketing of motor fuel. | 22 |
| (dd) Consumer protection and protection of honest | 23 |
| businesses are both important to the economic viability of the | 24 |
| State and local communities. | 25 |
| (ee) The General Assembly declares that there is a need for | 26 |
| public policy that is balanced between the needs of consumers | 27 |
| and businesses, and that demonstrates care and concern for both | 28 |
| consumers and those businesses that serve consumers. | 29 |
| (ff) The General Assembly declares that there is a need for | 30 |
| public policy based on protection through prevention: | 31 |
| protection of competently run, diversified, cost-sharing motor | 32 |
| fuel retailers through the prevention of pricing that is | 33 |
| predatory, protection of consumers through the prevention of | 34 |
| the lessening of competition (resulting from the elimination of |
|
|
|
09400HB0553ham001 |
- 8 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| competent retailers of motor fuel because of predatory | 2 |
| pricing), and through the prevention of pricing that is gouging | 3 |
| following times of national crises and State emergencies.
| 4 |
| (gg) The General Assembly declares that there is a need for | 5 |
| public policy to set a floor below which the retail price of | 6 |
| motor fuel shall not be set, unless the motor fuel marketer can | 7 |
| demonstrate that the price of motor fuel below the floor is not | 8 |
| below its retail selling cost of such motor fuel, or unless the | 9 |
| motor fuel marketer can demonstrate that it is meeting the | 10 |
| equally low price of a competitor, thereby allowing retail | 11 |
| motor fuel prices to be set by those who are able to establish | 12 |
| the lowest cost of selling motor fuel. | 13 |
| (hh) The General Assembly further declares that there is | 14 |
| also a need, during times of national disaster or State | 15 |
| emergency, for public policy to set a ceiling above which the | 16 |
| retail price of motor fuel shall not be set, unless the motor | 17 |
| fuel marketer can demonstrate that the price of motor fuel, | 18 |
| above the ceiling is necessary to cover its costs of selling | 19 |
| motor fuel. | 20 |
| (ii) In order to provide the most simplicity in determining | 21 |
| when a motor fuel marketer is in compliance with this Act, and | 22 |
| to eliminate the need for rules and regulations governing | 23 |
| wholesale price discrimination, transfer pricing, commodities | 24 |
| trading, or related issues involved in the subsidization of | 25 |
| motor fuel at retail from a vertically integrated motor fuel | 26 |
| marketer, the General Assembly declares that there is a need | 27 |
| for a neutral guideline on which to base fuel prices for the | 28 |
| purpose of determining if below-cost pricing or price-gouging | 29 |
| is occurring. | 30 |
| (jj) The General Assembly recognizes the existence of | 31 |
| reporting services, including, but not necessarily limited to, | 32 |
| Oil Price Information Service (OPIS) or AXXIS Petroleum | 33 |
| (AXXIS), which neutrally reports wholesale prices of motor fuel | 34 |
| from a myriad of motor fuel suppliers from which average |
|
|
|
09400HB0553ham001 |
- 9 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| wholesale rack/terminal pricing may be established. Prices | 2 |
| reported by OPIS and AXXIS are used as a benchmark by the world | 3 |
| to buy and sell U.S. gasoline and diesel fuel. Neither OPIS nor | 4 |
| AXXIS have a stake in fuel transactions, neither is funded by | 5 |
| oil industry initiatives, and each strictly adheres to | 6 |
| antitrust guidelines determined by independent legal counsel. | 7 |
| The General Assembly declares that such a pricing service shall | 8 |
| be utilized to provide a benchmark for determining if | 9 |
| below-cost pricing or price-gouging is occurring. | 10 |
| (kk) Because a motor fuel marketer shall be allowed to meet | 11 |
| the equally low price of another motor fuel marketer, there | 12 |
| must be a mechanism that provides for the periodic restoration | 13 |
| of pricing of motor fuel to a level that is not below cost. | 14 |
| (ll) Below-cost selling laws have been effective in other | 15 |
| states in protecting competent independent and small-business | 16 |
| retailers and wholesalers from subsidized, below-cost pricing. | 17 |
| The purpose of this Act is to substantially lessen subsidized | 18 |
| pricing of petroleum and related products, while still allowing | 19 |
| the reduction of motor fuel pricing through cost-sharing over | 20 |
| the sales of other products and services, where cost-savings | 21 |
| are the result of sharing personnel and other relevant cost | 22 |
| factors in motor fuel retailing, including sales, management, | 23 |
| maintenance, accounting, and property costs. | 24 |
| (mm) This Act provides that the advertising, offering for | 25 |
| sale, or sale of motor fuel below cost is necessarily done with | 26 |
| the intent of injuring competitors or destroying or | 27 |
| substantially lessening competition and is an unfair and | 28 |
| deceptive trade practice. The policy of the State is to promote | 29 |
| the general welfare through the prohibition of such sales. The | 30 |
| purpose of this Act is to carry out that policy in the public | 31 |
| interest, providing for exceptions under stated circumstances, | 32 |
| providing for enforcement and providing penalties. | 33 |
| (nn) Because motor fueling constitutes one of the most | 34 |
| competitive industries in the marketplace, it is important that |
|
|
|
09400HB0553ham001 |
- 10 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| one motor fuel marketer not be advantaged over another motor | 2 |
| fuel marketer as a result of any type of governmental subsidy; | 3 |
| therefore, the development of a motor fuel facility, or the | 4 |
| development of a facility that has, as a part thereof, a | 5 |
| facility for the sale of motor fuel, should not be | 6 |
| government-subsidized when such facility would be in | 7 |
| competition with another non-subsidized facility in the same | 8 |
| market area. | 9 |
| (oo) It is believed that the costs of ensuring compliance | 10 |
| with and enforcing this Act will be more than offset by the | 11 |
| additional sales and income tax revenues stemming from | 12 |
| compliance and enforcement.
| 13 |
| Section 10. Definitions. In this Act: | 14 |
| "Actual costs of selling motor fuel" means any costs and | 15 |
| expenses reasonably incurred by a retailer of motor fuel | 16 |
| associated with the selling of motor fuel at a retail motor | 17 |
| fuel facility, including the following costs and expenses | 18 |
| defined in this Act: the applicable laid-in cost of motor fuel, | 19 |
| plus expense costs of selling motor fuel, plus investment costs | 20 |
| of selling motor fuel, plus costs and expenses excluded from | 21 |
| expense costs of selling motor fuel, plus extraordinary costs | 22 |
| of selling motor fuel, plus other costs reasonably incurred. | 23 |
| "Actual costs of selling motor fuel from dedicated | 24 |
| supplier" means any costs and expenses reasonably incurred by a | 25 |
| retailer of motor fuel associated with the selling of motor | 26 |
| fuel at a retail motor fuel facility, including the applicable | 27 |
| laid-in cost of motor fuel originating from dedicated supplier, | 28 |
| plus expense costs of selling motor fuel, plus investment costs | 29 |
| of selling motor fuel, plus costs and expenses excluded from | 30 |
| expense costs of selling motor fuel, plus extraordinary costs | 31 |
| of selling motor fuel, plus other costs reasonably incurred. | 32 |
| "Actual costs of selling motor fuel per gallon" means the | 33 |
| actual costs of selling motor fuel, divided by the number of |
|
|
|
09400HB0553ham001 |
- 11 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| gallons sold, during the period in which motor fuel was sold. | 2 |
| "Actual costs of selling motor fuel per gallon from | 3 |
| dedicated supplier" means the actual costs of selling motor | 4 |
| fuel from dedicated supplier, divided by the number of gallons | 5 |
| sold, during the period in which motor fuel was sold. | 6 |
| "Actual health insurance costs" means the health insurance | 7 |
| costs, if any, actually incurred. | 8 |
| "Advertising expenses" means the following forms of | 9 |
| advertising: newspaper, Internet, magazine, television, radio, | 10 |
| direct-mail, billboard, and other forms of off-premises | 11 |
| advertising related to motor fuel. | 12 |
| "Affiliate" means a person who is related to another person | 13 |
| through common ownership or common control. Franchisees and | 14 |
| licensees of branded motor fuel suppliers are not affiliates of | 15 |
| their branded fuel suppliers. | 16 |
| "Average monthly gallons of motor fuel sold" means the | 17 |
| mathematical result obtained by dividing the total number of | 18 |
| gallons of motor fuel sold at a given retail motor fuel | 19 |
| facility over the 12 months preceding the date in question, by | 20 |
| the number of months that motor fuel was sold from such | 21 |
| facility over the 12-month period. | 22 |
| "AXXIS Petroleum (AXXIS)" is an independent reporting | 23 |
| service, located in the state of Minnesota, providing daily | 24 |
| reports of prices of refined motor fuel, including the gasoline | 25 |
| grades being sold, as well as No. 2 low sulfur clear diesel | 26 |
| fuel, that is widely accepted as an independent fuel price | 27 |
| benchmark for supply. | 28 |
| "Below cost sale", "below cost selling", "selling below | 29 |
| cost", "to sell below cost", and "sell below cost" means the | 30 |
| selling of gasoline or No. 2 low sulfur clear diesel fuel at | 31 |
| retail in the State at a price that is below the lower of: (1) | 32 |
| the regulated minimum retail cost price of motor fuel sold, or | 33 |
| (2) the mathematical sum of the applicable laid-in cost of | 34 |
| motor fuel plus the cost of selling the motor fuel at retail on |
|
|
|
09400HB0553ham001 |
- 12 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| a per gallon basis. | 2 |
| "Benchmark pricing service" means the independent | 3 |
| reporting service providing daily reports of supplier | 4 |
| wholesale prices of refined motor fuel from wholesale rack | 5 |
| terminals, including the gasoline grades being sold as well as | 6 |
| No. 2 low sulfur clear diesel fuel, whichever service is | 7 |
| selected by the Department under this Act. OPIS and AXXIS are | 8 |
| the only 2 such pricing services known to be available at the | 9 |
| time of passage of this Act. If one or more other such pricing | 10 |
| services becomes available, the Department shall have | 11 |
| discretion to select any other such pricing service in | 12 |
| accordance with this Act. | 13 |
| "Competition" means the vying for motor fuel sales between | 14 |
| any 2 persons selling motor fuel in the same market area at the | 15 |
| same level of distribution. | 16 |
| "Competitor" means any person who vies for motor fuel sales | 17 |
| against another person in the same market area at the same | 18 |
| level of distribution. | 19 |
| "Cost of selling motor fuel at retail on a per gallon | 20 |
| basis" means a per gallon cost determined mathematically by the | 21 |
| sum of the following 2 cost items: (1) the mathematical result | 22 |
| derived from dividing the expense costs of selling motor fuel | 23 |
| at retail during the 24 months before the date in question by | 24 |
| the number of gallons of motor fuel sold during the 24 months | 25 |
| before the date in question, plus (2) the mathematical result | 26 |
| derived from dividing the investment costs of selling motor | 27 |
| fuel at retail by the average monthly gallons of motor fuel | 28 |
| sold. | 29 |
| "Credit card and bank card related expenses" means any | 30 |
| costs to the motor fuel retailer associated with accommodating | 31 |
| the payment of motor fuel by way of bank and credit card | 32 |
| transactions, including, but not limited to, fixed fees, | 33 |
| transaction fees, and network processing fees. In the event | 34 |
| that goods and services, other than motor fuel, are sold within |
|
|
|
09400HB0553ham001 |
- 13 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| the same facility as motor fuel, in the event that the payment | 2 |
| of such goods and services are also by way of bank and credit | 3 |
| card transactions, and to the extent that any costs associated | 4 |
| with accommodating the payment of motor fuel by way of bank and | 5 |
| credit cards are not made separate and readily distinguishable | 6 |
| from the costs associated with accommodating the payment of | 7 |
| non-motor fuel items by bank and credit cards, then the portion | 8 |
| of costs not made separate and readily distinguishable that | 9 |
| should be allocated as motor fuel related costs shall be | 10 |
| determined mathematically as follows: total bank card and | 11 |
| credit card related costs incurred by the retailer for the | 12 |
| applicable retail facility, multiplied by the total dollars | 13 |
| associated with motor fuel purchases paid by bank or credit | 14 |
| cards at the retail facility, divided by the total dollars | 15 |
| associated with total purchases paid by bank or credit cards at | 16 |
| the facility. | 17 |
| "Credit carrying and handling costs of the motor fuel | 18 |
| retailer" means those costs incurred by the motor fuel retailer | 19 |
| in providing its own credit to its customers on the sale of | 20 |
| motor fuel, including, but not limited to, the cost of tying up | 21 |
| money, as well as billing and bad debt expenses, but excluding, | 22 |
| credit card and bank card related expenses. Because such costs | 23 |
| can vary from time to time and from retailer to retailer (due | 24 |
| to fluctuating interest rates, due to fluctuations in the | 25 |
| economy, and other factors not within the control of the motor | 26 |
| fuel retailer), and because such costs may be very difficult to | 27 |
| precisely calculate, such costs, for purposes of this Act, | 28 |
| shall be deemed to equal the lowest rate available to the motor | 29 |
| fuel retailer for the processing of general bank cards (as | 30 |
| opposed to any bank cards that are co-branded or sponsored by | 31 |
| the brand of the motor fuel retailer), whether or not the motor | 32 |
| fuel retailer is utilizing the lowest priced bank card | 33 |
| processor available to the retailer. To the extent that a motor | 34 |
| fuel retailer is unable to provide information regarding the |
|
|
|
09400HB0553ham001 |
- 14 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| lowest priced bank card processor available to the retailer, | 2 |
| then the credit carrying and handling costs of such motor fuel | 3 |
| retailer shall be presumed to be 2% of the motor fuel sale. | 4 |
| "Dedicated supplier" means a motor fuel supplier of a motor | 5 |
| fuel retailer for the retail facility in question to which the | 6 |
| retailer is contractually committed at the time of the motor | 7 |
| fuel purchase by the retailer from the retailer's supplier for | 8 |
| the retail facility in question. | 9 |
| "Department of Revenue" and "Department" means the | 10 |
| Department of Revenue of the State of Illinois. | 11 |
| "Depreciation allowance on fuel equipment" means, on a | 12 |
| monthly basis, the original acquisition and installation cost | 13 |
| value in all installed fuel equipment including, but not | 14 |
| limited to, fuel pumps, fuel dispensers, fuel tanks, fuel | 15 |
| piping, fuel tank gauge systems, fuel controllers, credit card | 16 |
| acceptance devices on the fuel dispensers, fuel distribution | 17 |
| boxes, pump access modules, and fuel related signage, divided | 18 |
| by a factor of 180 months. | 19 |
| "Depreciation allowance on fuel improvements" means, on a | 20 |
| monthly basis, the original cost value of all fuel improvements | 21 |
| including, but not limited to, fuel canopy, fuel canopy | 22 |
| fixtures, fuel canopy and fuel canopy breezeway fixtures, | 23 |
| pavement above the underground storage tanks and piping, | 24 |
| pavement below the fuel canopy and canopy breezeway, fuel | 25 |
| islands, and fuel related electrical conduit and wiring, fuel | 26 |
| kiosk, and that portion of any other building where motor fuel | 27 |
| transactions are accommodated, divided by a factor of 240 | 28 |
| months. | 29 |
| "Direct labor costs" means the wages and payroll taxes | 30 |
| associated with those personnel directly involved in the sale, | 31 |
| delivery, or transfer of motor fuel, including maintenance on | 32 |
| motor fuel facilities. Direct labor costs also include | 33 |
| workman's compensation, unemployment insurance, imputed health | 34 |
| insurance costs, and other human resources costs directly |
|
|
|
09400HB0553ham001 |
- 15 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| related to such personnel excluding, actual health insurance | 2 |
| costs. In the event that personnel directly involved in the | 3 |
| sale, delivery or transfer of motor fuel from one retail | 4 |
| facility are also directly involved in the sale, delivery, or | 5 |
| transfer of motor fuel from one or more other retail | 6 |
| facilities, and to the extent that direct labor costs for one | 7 |
| facility are not separate and readily distinguishable from the | 8 |
| direct labor costs of another facility, then the portion of | 9 |
| costs not made separate and readily distinguishable that should | 10 |
| be allocated as direct labor costs for a given facility shall | 11 |
| be determined mathematically as follows: total | 12 |
| non-distinguishable direct labor costs multiplied by the total | 13 |
| sales dollars at the given retail facility, divided by the | 14 |
| total sales dollars of all retail facilities for whom the | 15 |
| direct labor costs are incurred. In the further or other event | 16 |
| that goods and services, other than motor fuel, are sold within | 17 |
| the same facility as motor fuel, in the event that the | 18 |
| personnel directly involved in the sale, delivery, or transfer | 19 |
| of motor fuel are also involved in the sale or delivery of such | 20 |
| other goods and services, and to the extent that the personnel | 21 |
| costs associated with motor fuel are not separate and readily | 22 |
| distinguishable from the personnel costs associated with | 23 |
| non-motor fuel sales or service delivery, then the portion of | 24 |
| costs not made separate and readily distinguishable that should | 25 |
| be allocated as motor fuel related costs shall be determined | 26 |
| mathematically as follows: total non-distinguishable direct | 27 |
| labor costs for the retail facility multiplied by the total | 28 |
| motor fuel sales dollars at the retail facility, divided by the | 29 |
| total sales dollars of all products and services, motor fuel | 30 |
| sales and non-motor fuel sales, at the retail facility. "Direct | 31 |
| labor costs" does not include credit carrying and handling | 32 |
| costs of the motor fuel retailer. | 33 |
| "Disaster" has the meaning given in Section 4 of the | 34 |
| Illinois Emergency Management Agency Act. |
|
|
|
09400HB0553ham001 |
- 16 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| "Expense costs of selling motor fuel at retail" means the | 2 |
| mathematical sum obtained by adding the following costs | 3 |
| associated with the retailing of motor fuel at a given retail | 4 |
| facility: direct labor, plus indirect labor costs, plus credit | 5 |
| card and bank card related expenses, plus credit carrying and | 6 |
| handling costs of the motor fuel retailer, plus utilities | 7 |
| expenses, plus property taxes, plus insurance expenses, plus | 8 |
| maintenance expenses, plus supplies expenses, plus | 9 |
| telecommunications expenses, plus inventory losses, plus | 10 |
| regulatory compliance costs. "Expense costs of selling motor | 11 |
| fuel at retail" does not include interest on borrowed capital, | 12 |
| dividends paid on equity capital, advertising expenses, actual | 13 |
| health insurance costs, life insurance costs, or leasing costs | 14 |
| since a substitute for leasing costs is provided by investment | 15 |
| costs of selling motor fuel as defined in this Section. | 16 |
| "Extraordinary costs of selling motor fuel" means costs | 17 |
| other than those customarily incurred in the sale of motor fuel | 18 |
| at retail, but does not include, expense costs of selling motor | 19 |
| fuel at retail, laid-in cost of motor fuel, investment costs of | 20 |
| selling motor fuel at retail, interest on borrowed capital, | 21 |
| dividends paid on equity capital, advertising expenses, actual | 22 |
| health insurance costs, or life insurance costs. While it is | 23 |
| difficult to anticipate what such costs may include, and while | 24 |
| what follows is not intended to limit the range of what may be | 25 |
| an extraordinary cost, one example would be the costs | 26 |
| associated with the placement and running, whether by lease, | 27 |
| purchase, or otherwise, of an electric generator to accommodate | 28 |
| motor fuel sales during power outages. Another example would be | 29 |
| costs associated with financial penalties owed, or reasonably | 30 |
| anticipated to be owed to a dedicated supplier as a result of a | 31 |
| purchase in excess of a supplier-imposed allocation, or below a | 32 |
| supplier-imposed minimum purchase quantity. | 33 |
| "Fuel equipment" includes, but is not limited to, fuel | 34 |
| pumps, fuel dispensers, fuel tanks, fuel piping, fuel tank |
|
|
|
09400HB0553ham001 |
- 17 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| gauge systems, fuel controllers, credit card acceptance | 2 |
| devices on the fuel dispensers, fuel distribution boxes, pump | 3 |
| access modules, and fuel related signage. | 4 |
| "Fuel improvements" includes, but are not limited to, fuel | 5 |
| canopy, fuel canopy fixtures, fuel canopy and fuel canopy | 6 |
| breezeway fixtures, pavement above the underground storage | 7 |
| tanks and piping, pavement below the fuel canopy and canopy | 8 |
| breezeway, fuel islands, fuel-related electrical conduit and | 9 |
| wiring, fuel kiosk, and that portion of any other building | 10 |
| where motor fuel transactions are accommodated. | 11 |
| "Government subsidy" means any State or local governmental | 12 |
| money disbursed to develop a facility or to develop the | 13 |
| infrastructure contained on property of the facility, as well | 14 |
| as any State or local government money foregone by any | 15 |
| governmental entity as a result of the development of a | 16 |
| facility or the infrastructure of the land on which the | 17 |
| facility is located, including, but not limited to, reduced | 18 |
| taxes stemming from incremental tax districts and enterprise | 19 |
| zones. | 20 |
| "Gross margin on motor fuel" means the difference between | 21 |
| the retail price of the motor fuel and the applicable laid-in | 22 |
| cost of motor fuel or the applicable laid-in cost of motor fuel | 23 |
| from a dedicated supplier, whichever is applicable. | 24 |
| "Imputed health insurance costs" means 75% of the most | 25 |
| recent reported average premiums cost for employer-sponsored | 26 |
| health insurance coverage, as published by the Henry J. Kaiser | 27 |
| Family Foundation, or other authoritative source as selected by | 28 |
| the Department, applicable to all specified employees of the | 29 |
| motor fuel retailer, except those that have health insurance | 30 |
| coverage through an employer group health plan other than his | 31 |
| or her retail motor fuel employer that are working for the | 32 |
| motor fuel retailer for 30 or more hours per work week, and | 33 |
| that have been employed by the motor fuel retailer for at least | 34 |
| 90 consecutive days working 30 or more hours per work week.
|
|
|
|
09400HB0553ham001 |
- 18 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| "Inadvertent incident" means that the incident can be shown | 2 |
| not to be deliberate, but, rather accidental. Examples of | 3 |
| accidental incidents include, but are not limited to, errors or | 4 |
| omissions on the part of the retail personnel who change the | 5 |
| prices, the failure on the part of clerical personnel to | 6 |
| properly enter pricing data into a data processing system, and | 7 |
| the failure to include, in computing laid-in cost of motor | 8 |
| fuel, the wholesale pricing of a new supplier due to a lack of | 9 |
| awareness of such new supplier. Failure to perform the | 10 |
| computations necessary to ensure compliance with this Act shall | 11 |
| not be deemed accidental. | 12 |
| "Indirect labor costs" means labor costs other than direct | 13 |
| labor costs, including, but not limited to, supervisory, | 14 |
| bookkeeping, and administrative personnel who are indirectly | 15 |
| related to the sale, delivery, transfer, or accounting of motor | 16 |
| fuel, whether or not such personnel are situated at the motor | 17 |
| fuel facility. Indirect labor costs also include workman's | 18 |
| compensation, unemployment insurance, imputed health insurance | 19 |
| costs, and other human resources costs directly related to such | 20 |
| personnel, excluding actual health insurance costs. In the | 21 |
| event that personnel indirectly involved in the sale, delivery | 22 |
| or transfer of motor fuel from one retail facility also are | 23 |
| indirectly involved in the sale, delivery or transfer of motor | 24 |
| fuel from one or more other retail facilities, and to the | 25 |
| extent that indirect labor costs for one facility are not | 26 |
| separate and readily distinguishable from the indirect labor | 27 |
| costs of another facility, then the portion of costs not made | 28 |
| separate and readily distinguishable that should be allocated | 29 |
| as indirect labor costs for a given facility shall be | 30 |
| determined mathematically as follows: total | 31 |
| non-distinguishable indirect labor costs multiplied by the | 32 |
| total sales dollars at the given retail facility, divided by | 33 |
| the total sales dollars of all retail facilities for whom the | 34 |
| indirect labor costs are incurred. In the further or other |
|
|
|
09400HB0553ham001 |
- 19 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| event that goods and services, other than motor fuel, are sold | 2 |
| within the same facility as motor fuel, and in the event that | 3 |
| the personnel indirectly involved in the sale, delivery, or | 4 |
| transfer of motor fuel at the facility are also indirectly | 5 |
| involved in the sale or operations of such other goods and | 6 |
| services, and to the extent that the personnel costs associated | 7 |
| with motor fuel are not separate and readily distinguishable | 8 |
| from the personnel costs associated with non-motor fuel sales | 9 |
| or operational activities, then the portion of costs not made | 10 |
| separate and readily distinguishable that should be allocated | 11 |
| as motor fuel related costs for that facility shall be | 12 |
| determined mathematically as follows: total | 13 |
| non-distinguishable indirect labor costs for that facility (as | 14 |
| determined above if such indirect labor costs are attributable | 15 |
| to more than one facility) multiplied by the total motor fuel | 16 |
| sales dollars at that facility, divided by the total sales | 17 |
| dollars of all products and services (motor fuel sales and | 18 |
| non-motor fuel sales) at the facility. "Indirect labor costs" | 19 |
| does not include credit carrying and handling costs of the | 20 |
| motor fuel retailer. | 21 |
| "Insurance expenses" means any insurance costs associated | 22 |
| with the retail sale of motor fuel at a given retail facility, | 23 |
| including liability insurance, property insurance, employer's | 24 |
| liability costs and expenses on direct and indirect labor, | 25 |
| except that insurance expenses does not include actual health | 26 |
| insurance costs, imputed health insurance costs, life | 27 |
| insurance costs or the labor related insurance expenses of | 28 |
| workers' compensation and unemployment compensation. | 29 |
| "Inventory losses" means losses due to breakage, damage, | 30 |
| shrinkage, or theft. | 31 |
| "Investment costs of selling motor fuel at retail" means a | 32 |
| monthly cost obtained by adding land holding costs, plus land | 33 |
| development costs, plus depreciation allowance on fuel | 34 |
| improvements, plus depreciation allowance on fuel equipment. |
|
|
|
09400HB0553ham001 |
- 20 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| "Isolated incident" means that the occurrence was | 2 |
| exceptional and not generally repeated, unless the cause for | 3 |
| repeating was definitely accidental and such accident occurred | 4 |
| with the retailer having one or less prior inquiries from the | 5 |
| Department of Revenue within 18 months immediately preceding | 6 |
| the occurrence for the facility in question. | 7 |
| "Labor costs" means direct labor costs plus indirect labor | 8 |
| costs. | 9 |
| "Laid-in cost of motor fuel" means the regional | 10 |
| benchmarking pricing service average price per gallon on the | 11 |
| day preceding the sale in question for the gasoline grade being | 12 |
| sold or for No. 2 low sulfur clear diesel fuel, whichever is | 13 |
| applicable, plus all applicable taxes and governmentally | 14 |
| imposed fees applicable to the motor fuel purchase by and | 15 |
| delivery to the retailer, plus transportation charges to | 16 |
| transport the motor fuel from the wholesale or supply point to | 17 |
| the retail point, plus one quarter of a cent per gallon (for | 18 |
| ordering and other inventory management costs associated with | 19 |
| motor fuel), plus sales taxes and other governmental taxes and | 20 |
| fees imposed on the sale of the fuel at the pump. | 21 |
| "Laid-in cost of motor fuel originating from dedicated | 22 |
| supplier" means the actual price per gallon charged to the | 23 |
| retailer by the retailer's dedicated supplier on the day | 24 |
| preceding the sale in question for the gasoline grade being | 25 |
| sold or for No. 2 low sulfur clear diesel fuel, whichever is | 26 |
| applicable, plus all applicable taxes and governmentally | 27 |
| imposed fees applicable to the motor fuel purchase by or | 28 |
| delivery to the retailer, plus transportation charges to | 29 |
| transport the motor fuel from the wholesale or supply point to | 30 |
| the retail point, plus one quarter of a cent per gallon (for | 31 |
| ordering and other inventory management costs associated with | 32 |
| motor fuel), plus sales taxes and other governmental taxes and | 33 |
| fees imposed on the sale of the fuel at the pump. | 34 |
| "Land holding costs" means on a monthly basis, a 7% return |
|
|
|
09400HB0553ham001 |
- 21 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| on the market value of the land occupied by motor fuel | 2 |
| facilities (motor fuel facilities consisting of motor fuel | 3 |
| improvements and equipment). Since motor fuel facilities will | 4 |
| not always occupy all of the land at a site where motor fuel | 5 |
| sales take place in conjunction with the sales of other goods | 6 |
| and services, the portion of the land that the motor fueling | 7 |
| facilities occupy (including the area of driveway entrances and | 8 |
| driveways utilized by motor fueling motorists in their ingress | 9 |
| to and egress from motor fueling facilities) shall be measured, | 10 |
| in square feet, and that area shall be divided by the total | 11 |
| area, in square feet, of the entire developed area of land to | 12 |
| determine the percentage of the land occupied by motor fuel | 13 |
| facilities. That percentage, 100% in the case of a stand-alone | 14 |
| motor fuel facility, shall be multiplied by the total market | 15 |
| value of the land to determine the value of the land | 16 |
| attributable to the motor fuel facility. That proportional | 17 |
| value shall then be multiplied by a factor of 7%, then divided | 18 |
| by a factor of 12 to determine the land holding costs per month | 19 |
| for the motor fuel facility. In the event that the land is | 20 |
| leased, not owned, by the motor fuel retailer, and if the | 21 |
| monthly leasing costs, for the portion of the land occupied by | 22 |
| the motor fueling facilities, is greater than the proportional | 23 |
| value of the land and multiplied by a factor of 7%, divided by | 24 |
| a factor of 12, then the land holding costs for the motor fuel | 25 |
| facility shall be equal to the monthly leasing costs | 26 |
| attributable to the land portion of the motor fuel facility. | 27 |
| "Land development costs" means, on a monthly basis, a 7% | 28 |
| return on the costs of developing land occupied by motor fuel | 29 |
| facilities (motor fuel facilities consisting of motor fuel | 30 |
| improvements and equipment). Land development costs include, | 31 |
| but are not limited to, paving, storm sewer, and underground | 32 |
| utilities costs, excluding however, any costs of motor fuel | 33 |
| improvements and equipment. In the event that motor fuel | 34 |
| facilities do not occupy all of the land development at a site |
|
|
|
09400HB0553ham001 |
- 22 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| where motor fuel sales take place in conjunction with sales of | 2 |
| other goods and services, the portion of the costs attributable | 3 |
| to developing the land occupied by motor fuel facilities shall | 4 |
| be determined mathematically as follows: total costs of | 5 |
| developing the land, multiplied by the area, in square feet, | 6 |
| occupied by the motor fuel facility (motor fuel facility | 7 |
| includes fuel improvements and fuel equipment, as well as the | 8 |
| area of driveway entrances and driveways utilized by motor | 9 |
| fueling motorists in their ingress to and egress from motor | 10 |
| fueling facilities), divided by the total area, in square feet, | 11 |
| of the entire developed area of land.
That percentage (100% in | 12 |
| the case of a stand-alone motor fuel facility) shall be | 13 |
| multiplied by the total costs of developing the land occupied | 14 |
| by motor fuel facilities to determine the value of developed | 15 |
| land attributable to the motor fuel facility. That proportional | 16 |
| value shall then be multiplied by a factor of 7%, then divided | 17 |
| by a factor of 12, to determine the land development costs per | 18 |
| month for the motor fuel facility. In the event that the land | 19 |
| development is leased, not owned by the motor fuel retailer, | 20 |
| and in the further event that the monthly leasing costs for the | 21 |
| portion of the land development occupied by the motor fueling | 22 |
| facilities, is greater than the proportional value of such land | 23 |
| multiplied by a factor of 7%, divided by a factor of 12, then | 24 |
| the land development costs for the motor fuel facility shall be | 25 |
| equal to the monthly leasing costs attributable to the land | 26 |
| development portion of the motor fuel facility. | 27 |
| "Leasing costs" means lease expenses on land, land | 28 |
| improvements, fuel improvements, and fuel equipment. In the | 29 |
| event that motor fuel facilities do not comprise all of the | 30 |
| land development at a site where motor fuel sales take place in | 31 |
| conjunction with the sales of other goods and services, the | 32 |
| portion of the lease expenses attributable to the motor fuel | 33 |
| facility shall be determined mathematically as follows: total | 34 |
| lease costs of the land, land improvements, fuel improvements, |
|
|
|
09400HB0553ham001 |
- 23 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| and fuel equipment multiplied by the area, in square feet, | 2 |
| occupied the motor fuel facility (including fuel improvements | 3 |
| and fuel equipment, as well as the area of driveway entrances | 4 |
| and driveways utilized by motor fueling motorists in their | 5 |
| ingress to and egress from motor fueling facilities), divided | 6 |
| by the total area, in square feet, of the entire leased area of | 7 |
| land.
| 8 |
| "Life insurance costs" means those costs associated with | 9 |
| providing life insurance on personnel related to the applicable | 10 |
| retail motor fuel facility. | 11 |
| "Maintenance expenses" means the maintenance costs | 12 |
| associated with a given motor fuel facility (including fuel | 13 |
| improvements, fuel equipment, and land improvements). In the | 14 |
| event that motor fuel facilities do not comprise all of the | 15 |
| land at a site where motor fuel sales take place in conjunction | 16 |
| with the sales of other goods and services, the proportional | 17 |
| cost of maintenance on the land and land improvements allocable | 18 |
| to motor fuel retailing shall be determined mathematically as | 19 |
| follows: total maintenance costs on the land and on the land | 20 |
| improvements, multiplied by the area, in square feet, occupied | 21 |
| by the motor fuel facility (including fuel improvements and | 22 |
| fuel equipment, as well as the area of driveway entrances and | 23 |
| driveways utilized by motor fueling motorists in their ingress | 24 |
| to and egress from motor fueling facilities), divided by the | 25 |
| total area, in square feet, of the entire developed area of | 26 |
| land. | 27 |
| "Market area" means a distance of 4 miles by road in | 28 |
| non-urban areas, a distance of 2.5 miles by road in a standard | 29 |
| metropolitan statistical area, and a distance of 60 miles by | 30 |
| road for truck stop outlets with more than 60% of fuel sales to | 31 |
| vehicles with gross weight of over 50,000 lbs. | 32 |
| "Market value of land" means the appraised valuation of the | 33 |
| land occupied by a retail motor fueling facility, such | 34 |
| appraisal to have been given by a certified, MAI Appraiser |
|
|
|
09400HB0553ham001 |
- 24 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| sometime within a 48-month period before the date or within the | 2 |
| 18-month period following the date that such appraisal is used | 3 |
| to document land holding costs under this Act. | 4 |
| "Motor fuel" means those products upon which the State | 5 |
| excise tax levied, or defined, in the Motor Fuel Tax Law, as | 6 |
| amended, is imposed. | 7 |
| "Oil Price Information Service (OPIS)" means the | 8 |
| independent reporting service located in the state of Maryland, | 9 |
| which provides daily reports of prices of refined motor fuel, | 10 |
| including the gasoline grades being sold as well as No. 2 low | 11 |
| sulfur clear diesel fuel that is widely accepted as an | 12 |
| independent fuel price benchmark for supply. | 13 |
| "Person" means any individual, club, firm, association, | 14 |
| organization, partnership, business, trust, joint-stock | 15 |
| company, company, corporation, or other entity, legal or | 16 |
| otherwise. | 17 |
| "Price gouging of motor fuel", "price gouging", or "motor | 18 |
| fuel price gouging" means the self-service sale of gasoline or | 19 |
| No. 2 low sulfur clear diesel fuel at retail in the State at a | 20 |
| price greater than the greater of the following: (1) the | 21 |
| regulated maximum retail cost price of motor fuel sold at the | 22 |
| time the motor fuel was sold, (2) 19 cents per gallon above the | 23 |
| retailer's actual costs of selling motor fuel per gallon at the | 24 |
| time the motor fuel was sold, or (3) 19 cents per gallon above | 25 |
| the retailer's actual costs of selling motor fuel per gallon | 26 |
| from a dedicated supplier at the time the motor fuel was sold. | 27 |
| "Property taxes" means taxes on land, real estate, | 28 |
| improvements, and personal property.
| 29 |
| "Regional benchmark pricing service average price" for an | 30 |
| applicable retail motor fuel station means the average price of | 31 |
| all wholesale rack or terminal suppliers actively supplying and | 32 |
| offering for sale motor fuel within a 70-mile radius of the | 33 |
| motor fuel station being supplied, excluding, the one highest | 34 |
| priced terminal supplier within that 70-mile radius. |
|
|
|
09400HB0553ham001 |
- 25 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| Notwithstanding the foregoing, in the event that there are not | 2 |
| at least 3 wholesale rack suppliers actively supplying and | 3 |
| offering for sale motor fuel within a 70-mile radius of a motor | 4 |
| fuel station being supplied, the radius shall be extended until | 5 |
| there are at least 3 such wholesale rack suppliers. | 6 |
| "Regulated maximum retail cost price of motor fuel sold" or | 7 |
| "regulated maximum price" relates to motor fuel sales at | 8 |
| self-service, and means the greater of: (1) the regulated | 9 |
| minimum retail cost price of motor fuel sold plus 19 cents per | 10 |
| gallon at the time the motor fuel was sold, (2) the regulated | 11 |
| minimum retail cost price of motor fuel sold from a dedicated | 12 |
| supplier plus 19 cents per gallon at the time the motor fuel | 13 |
| was sold, (3) the regulated minimum retail cost price of motor | 14 |
| fuel sold plus 19 cents per gallon at the time the motor fuel | 15 |
| was sold plus any extraordinary costs (on a per gallon basis) | 16 |
| incurred by the motor fuel retailer at or for the time the | 17 |
| motor fuel was sold, or (4) the regulated minimum retail cost | 18 |
| price of motor fuel sold from a dedicated supplier plus 19 | 19 |
| cents per gallon plus any extraordinary costs (on a per gallon | 20 |
| basis) incurred by the motor fuel retailer at or for the time | 21 |
| the motor fuel was sold. | 22 |
| "Regulated minimum retail cost price of motor fuel sold" or | 23 |
| "regulated minimum price" means the lowest pump price that | 24 |
| includes a positive gross margin to the retailer of 6% over the | 25 |
| retailer's laid-in cost of motor fuel for the time in question. | 26 |
| As such the regulated minimum retail cost price of motor fuel | 27 |
| sold is the quotient of the applicable laid-in cost of motor | 28 |
| fuel divided by 0.94 (i.e. the sum of 1.00 minus the minimum | 29 |
| margin of 6%, or 1.00 minus 0.06 = 0.94). As an example, if the | 30 |
| laid-in cost of motor fuel on a given day is $1.738, the | 31 |
| regulated minimum retail cost price of motor fuel sold for that | 32 |
| day is $1.849, calculated as follows: $1.738, laid-in cost | 33 |
| divided by 0.94, (gross margin factor of 6%), equals $1.849. | 34 |
| Since laid-in cost of motor fuel includes taxes and fees |
|
|
|
09400HB0553ham001 |
- 26 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| imposed on the sale of motor fuel at the pump (these taxes and | 2 |
| fees are, at the time of passage of this Act, State sales tax | 3 |
| of 6.25%, State motor fuel tax of $0.19 per gallon, | 4 |
| Environmental Impact Fee of $0.008 per gallon, and the Illinois | 5 |
| Underground Storage Tank Fee of $0.003 per gallon), and since | 6 |
| the taxes and fees imposed on the sale of motor fuel at the | 7 |
| pump are both percentage taxes and flat taxes or fees (State | 8 |
| sales tax being a percentage tax and the remainder, at the time | 9 |
| of passage of this Act, being flat taxes and fees) and since | 10 |
| the State, at the time of passage of this Act, imposes sales | 11 |
| tax on only 2 of the 3 flat taxes (at the time of passage of | 12 |
| this Act, Illinois imposes sales tax on the Environmental | 13 |
| Impact Fee and the Illinois Underground Storage Tank Fee, but | 14 |
| does not impose sales tax on the State motor fuel tax), the | 15 |
| following is provided as an additional aid in calculating | 16 |
| regulated minimum price: THE FOLLOWING IS PROVIDED AS AN AID | 17 |
| ONLY AND THE FOLLOWING DOES NOT SHOW MUNICIPAL TAXES IMPOSED ON | 18 |
| THE SALE OF MOTOR FUEL THAT WOULD NEED TO BE INCLUDED TO THE | 19 |
| EXTENT APPLICABLE. IN THE EVENT THAT, AFTER THE DATE OF PASSAGE | 20 |
| OF THIS ACT, THERE ARE CHANGES IN THE AMOUNT, STRUCTURE, | 21 |
| CALCULATION, TIME OF IMPOSITION OR TYPE OF TAXES OR FEES | 22 |
| IMPOSED ON THE DELIVERY OF MOTOR FUEL TO A RETAILER, ON THE | 23 |
| PURCHASE OF MOTOR FUEL BY A RETAILER, OR ON THE SALE OF MOTOR | 24 |
| FUEL AT THE PUMP, THE REGULATED MINIMUM PRICE UNDER THIS ACT | 25 |
| SHALL REMAIN THE LOWEST PUMP PRICE THAT INCLUDES A POSITIVE | 26 |
| GROSS MARGIN TO THE RETAILER OF 6% OVER THE APPLICABLE LAID-IN | 27 |
| COST OF MOTOR FUEL, AS DEFINED IN THIS ACT, FOR THE TIME IN | 28 |
| QUESTION. Assume $1.446 is the retailer's applicable laid-in | 29 |
| cost of motor fuel as defined in this Act, EXCLUDING TAXES AND | 30 |
| FEES IMPOSED ON THE SALE OF MOTOR FUEL AT THE PUMP. Further | 31 |
| assume the taxes and fees imposed on the sale of motor fuel at | 32 |
| the pump are: State motor fuel tax of $0.19 per gallon, | 33 |
| Environmental Impact Fee of $0.008 per gallon, Underground | 34 |
| Storage Tank Fee of $0.003 per gallon, and State sales tax of |
|
|
|
09400HB0553ham001 |
- 27 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| 6.25%. Further assume that sales tax is levied on the entire | 2 |
| sale price, EXCEPT the State motor fuel tax of $0.19 per | 3 |
| gallon. The regulated minimum price must include ALL taxes, | 4 |
| plus a 6% gross margin to the retailer. The regulated minimum | 5 |
| price is calculated as follows: Step (1) laid-in cost of motor | 6 |
| fuel, EXCLUSIVE OF STATE SALES TAX, is $1.647 ($1.446 + $0.19 + | 7 |
| $0.008 + $0.003 = $1.647). Step (2) laid-in cost of motor fuel, | 8 |
| EXCLUSIVE OF STATE SALES TAX, plus a 6% gross margin, equals | 9 |
| $1.7521 ($1.647 divided by 0.94 = $1.7521 [rounded to the | 10 |
| fourth decimal]). Step (3) sales tax, on the appropriate | 11 |
| taxable amount, equals $0.0911 (0.0625 times $1.457 [the sum of | 12 |
| $1.446 + $0.008 + $0.003 is $1.457] = $0.0911 [rounded to the | 13 |
| fourth decimal]). Step (4) sales tax, plus a 6% gross margin | 14 |
| equals, $0.0969 ($0.0911 divided by 0.94 = $0.0969 [rounded to | 15 |
| the fourth decimal]). Step (5) the regulated minimum price is | 16 |
| $1.849 ($1.7521 + $0.0969 = $1.849).
| 17 |
| "Regulated minimum retail cost price of motor fuel sold | 18 |
| from a dedicated supplier" or "regulated minimum price from a | 19 |
| dedicated supplier" is calculated the same as the regulated | 20 |
| minimum retail cost price of motor fuel sold, except that | 21 |
| laid-in cost of motor fuel is replaced by laid-in cost of motor | 22 |
| fuel originating from dedicated supplier. | 23 |
| "Regulated period for price restoration" means every | 24 |
| Wednesday, during the period of time from 8:30 a.m. to 11:30 | 25 |
| a.m., whenever the retailer's actual price of motor fuel is | 26 |
| less than the retailer's regulated minimum retail cost price of | 27 |
| motor fuel sold. | 28 |
| "Regulatory compliance costs" means those costs incurred | 29 |
| by the motor fuel retailer to comply with regulations governing | 30 |
| the storage and sale of motor fuel at a retail facility, | 31 |
| including, but not limited to, costs associated with meter | 32 |
| accuracy, leak detection of tanks or piping, and corrosion | 33 |
| protection of tanks or piping, but only to the extent that such | 34 |
| costs are not already included in depreciation allowance on |
|
|
|
09400HB0553ham001 |
- 28 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| fuel equipment. | 2 |
| "Relevant geographic market" means the geographic area of | 3 |
| effective competition.
| 4 |
| "Retailer" means a person engaged in the business of | 5 |
| selling motor fuel to a member of the motoring public for | 6 |
| consumption. | 7 |
| "Sale" or "sell" means a transfer of money or other value | 8 |
| or combination, exchange, barter, gift, sale, offer for sale, | 9 |
| advertisement for sale, soliciting an order, and distribution | 10 |
| in any manner or by any means whatsoever, of motor fuel, | 11 |
| including a transfer of motor fuel by a person to another | 12 |
| person, or by a person to that person, to a member of that | 13 |
| person, or to an affiliate of that person. | 14 |
| "Sales tax" means the retailer's occupation tax, use tax, | 15 |
| or other applicable tax that may be imposed in connection with | 16 |
| the sale or use of motor fuel, whether it be imposed by or to | 17 |
| the benefit of the State of Illinois or a municipality thereof. | 18 |
| "Supply point" or "terminal facility" means any inland, | 19 |
| waterfront, or offshore appurtenance on land used for the | 20 |
| purpose of storing, handling, or transferring motor fuel, but | 21 |
| does not include, wholesale bulk storage facilities owned or | 22 |
| operated by a retailer, unless other retailers are also | 23 |
| supplied from such wholesale bulk storage facilities. | 24 |
| "Supplies expenses" means the costs of those items consumed | 25 |
| as part of a motor fuel facility operation that are not sold to | 26 |
| consumers or are not capitalized as an asset. Supplies include, | 27 |
| but are not limited to, windshield wash paper towels, | 28 |
| windshield wash solvent, squeegees, driveway oil absorbent, | 29 |
| funnels to assist customers in adding fluids to vehicles, | 30 |
| cleaning agents and materials (for floors, counters, | 31 |
| restrooms, food service equipment, etc.), mops, brooms, | 32 |
| printed forms, office copy paper, tape, paper clips, pens, | 33 |
| pencils, fuel and HVAC filters. | 34 |
| "Telecommunications expenses" means all communications |
|
|
|
09400HB0553ham001 |
- 29 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| expenses incurred to accommodate the sale of motor fuel at | 2 |
| retail, including, but not limited to, telephone line and use | 3 |
| expenses, Internet access fees, satellite service expenses, | 4 |
| cable fees, and other wire and wireless communications | 5 |
| expenses. In the event that goods and services, other than | 6 |
| motor fuel, are sold within the same facility as motor fuel, in | 7 |
| the event that the telecommunications expenses are shared to | 8 |
| accommodate sales and operations associated with the other | 9 |
| goods and services, and to the extent that the | 10 |
| telecommunications costs associated with motor fuel are not | 11 |
| separate and readily distinguishable from the | 12 |
| telecommunications costs associated with non-motor fuel sales | 13 |
| or operational activities, then the portion of costs not made | 14 |
| separate and readily distinguishable that should be allocated | 15 |
| as telecommunications expenses for the motor fuel facility | 16 |
| shall be determined mathematically as follows: total | 17 |
| telecommunications costs for the facility multiplied by the | 18 |
| total motor fuel sales dollars at the facility, divided by the | 19 |
| total sales dollars of all products and services (motor fuel | 20 |
| sales and non-motor fuel sales at the facility). | 21 |
| "Transportation charges" shall be defined as the rate per | 22 |
| gallon not to exceed 1.10 times the average computed | 23 |
| independent commercial posted tariff (common carrier) rates | 24 |
| for delivery of motor fuel, from the relevant supply point to | 25 |
| the relevant destination point, as a single account, in effect | 26 |
| at the time of delivery, based on the rates of at least 2 | 27 |
| eligible carriers.
| 28 |
| "Utilities expenses" means all electrical, water, sewer, | 29 |
| natural gas, fuel oil, propane, and other energy and utilities | 30 |
| expenses incurred in the sale of motor fuel at retail. In the | 31 |
| event that goods and services, other than motor fuel, are sold | 32 |
| within the same facility as motor fuel, in the event that the | 33 |
| utilities expenses are shared to accommodate sales and | 34 |
| operations associated with the other goods and services, and to |
|
|
|
09400HB0553ham001 |
- 30 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| the extent that the utilities expenses associated with motor | 2 |
| fuel are not separate and readily distinguishable from the | 3 |
| utilities costs associated with non-motor fuel sales or | 4 |
| operational activities, then the portion of costs not made | 5 |
| separate and readily distinguishable that should be allocated | 6 |
| as motor fuel related utilities costs shall be determined | 7 |
| mathematically as follows: total utilities costs at the retail | 8 |
| facility multiplied by the total motor fuel sales dollars at | 9 |
| the retail facility, divided by the total sales dollars of all | 10 |
| products and services (motor fuel sales and non-motor fuel | 11 |
| sales at the retail facility). | 12 |
| "Wholesaler" means a person engaged in the business of | 13 |
| making sales of motor fuel at wholesale to a reseller of motor | 14 |
| fuel. | 15 |
| Section 15. Illegal motor fuel price gouging. | 16 |
| (a) It is a violation of this Act to engage in motor fuel | 17 |
| price gouging in response to the occurrence of a national | 18 |
| disaster or State emergency, except where the sale is both an | 19 |
| isolated and inadvertent incident. | 20 |
| (b) Motor fuel price gouging that occurs within the 7 days | 21 |
| immediately following the occurrence of a disaster or emergency | 22 |
| is rebuttably presumed to have been in response to the | 23 |
| occurrence of the disaster or emergency.
| 24 |
| Section 20. Illegal sale below cost. It is a violation of | 25 |
| this Act to sell or advertise for sale motor fuel at a retail | 26 |
| price that would constitute a below cost sale, except: | 27 |
| (a) In response to the equally low price of a competitor | 28 |
| within the market area, except during regulated periods for | 29 |
| price restoration, provided that detailed records are kept | 30 |
| indicating the date and time of day of each change in the sale | 31 |
| price of motor fuel and the identity of the person who recorded | 32 |
| the price change, and if the change in price is to meet a lower |
|
|
|
09400HB0553ham001 |
- 31 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| price of one or more competitors, the records shall set forth | 2 |
| the name and address of each such competitor, specifying the | 3 |
| price which was met, and further documenting the price of each | 4 |
| such competitor each day that the price remains below cost, to | 5 |
| show that the retailer was responding to the equally low prices | 6 |
| of one or more competitors as a "follower", not a leader in the | 7 |
| below cost selling, and that the retailer made efforts to | 8 |
| support restoration of pricing to a level at or above cost when | 9 |
| one or more other competing retailers made such effort; | 10 |
| (b) During a publicized grand opening to introduce a new or | 11 |
| remodeled business not to exceed 72 consecutive hours in length | 12 |
| once every 3 years; | 13 |
| (c) During and in conjunction with the introduction period | 14 |
| of a new or improved motor fuel product, where coupon discounts | 15 |
| shall be permitted of up to $2 off on the customer purchase of | 16 |
| 10 or more gallons of such new or improved motor fuel, provided | 17 |
| that the redemptive acceptance of the permitted coupons is | 18 |
| limited in time to one calendar month within any given calendar | 19 |
| year; | 20 |
| (d) During a bona fide clearance sale or final business | 21 |
| liquidation sale, not exceeding one week in length, for the | 22 |
| purpose of discontinuing trade in such motor fuel. This | 23 |
| exception shall not be considered as the price of a competitor | 24 |
| and shall not be used as a basis for establishing a below cost | 25 |
| sale by another retailer; | 26 |
| (e) During a sale of motor fuel by a fiduciary or other | 27 |
| officer under the order or direction of any court from a good | 28 |
| faith effort to dispose of a grade, brand, or blend of motor | 29 |
| fuel. This exception shall not be considered as the price of a | 30 |
| competitor and shall not be used as a basis for establishing a | 31 |
| below cost sale by another retailer; | 32 |
| (f) Where motor fuel is advertised, offered for sale, or | 33 |
| sold as imperfect or damaged, and the advertising, offer for | 34 |
| sale, or sale shall state the reason and the quantity of such |
|
|
|
09400HB0553ham001 |
- 32 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| motor fuel advertised, offered for sale, or to be sold; or | 2 |
| (g) Where such sale is both an isolated and inadvertent | 3 |
| incident. | 4 |
| Section 25. Rebates, discounts, gifts, premiums, | 5 |
| promotional items, and other concessions subtracted from | 6 |
| retail price. | 7 |
| (a) Except as hereinafter provided in this Section 25, the | 8 |
| payment or allowance of rebates, refunds, gifts, premiums, | 9 |
| promotional items, commissions, discounts or other concessions | 10 |
| of any kind, in connection with the sale of or payment for | 11 |
| motor fuel at retail (hereinafter referred to as "concession" | 12 |
| or "concessions"), whether in the form of money, coupons, | 13 |
| discounts, or the value of items, articles, premiums, or | 14 |
| commodities gifted or price-subsidized in connection with the | 15 |
| sale of or payment for motor fuel at retail, shall be | 16 |
| mathematically subtracted from the retail fuel price to | 17 |
| determine whether a retailer is selling below cost, whether or | 18 |
| not such concessions are actually subtracted from the retail | 19 |
| fuel price at the time or place of the sale, and whether or not | 20 |
| such concessions are offered or given by the retailer or by | 21 |
| another person. | 22 |
| (b) Concessions offered, given, issued, distributed, | 23 |
| provided or paid in connection with the sale of or payment for | 24 |
| motor fuel at retail, up to a total concession not to exceed 5% | 25 |
| of the total motor fuel sale, shall not be subtracted from the | 26 |
| retail fuel price in determining whether the retailer is | 27 |
| selling below cost if: (1) the concession is not given, issued, | 28 |
| distributed, provided, or paid by the motor fuel retailer or an | 29 |
| affiliate of the motor fuel retailer; (2) the cost of the | 30 |
| concession is borne by a person other than the motor fuel | 31 |
| retailer or an affiliate of the motor fuel retailer; and (3) | 32 |
| the concession does not reduce the pump price and does not | 33 |
| reduce the net amount paid for the motor fuel at the time and |
|
|
|
09400HB0553ham001 |
- 33 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| place of sale, but, rather the concession is provided or | 2 |
| applied separate from the time and place of sale of motor fuel. | 3 |
| A motor fuel retailer shall not be deemed to bear the cost of a | 4 |
| concession by the motor fuel retailer's agreement to pay or | 5 |
| payment of a standard bank, credit or payment card processing | 6 |
| fee of less than or equal to 3% of the motor fuel sale plus | 7 |
| $0.10 per card transaction (hereinafter referred to as | 8 |
| "allowable card transaction processing fee"), provided that | 9 |
| such allowable card transaction processing fee includes any and | 10 |
| all costs borne by the retailer in connection with the use of | 11 |
| the bank, credit or payment card to pay for the motor fuel | 12 |
| sale. In addition, a motor fuel retailer shall not be deemed to | 13 |
| bear the cost of a concession by the motor fuel retailer's | 14 |
| agreement to pay or payment of a bank, credit or payment card | 15 |
| having a processing fee in excess of the allowable card | 16 |
| transaction processing fee if the retailer can demonstrate, to | 17 |
| the satisfaction of the Motor Fuel Review Board, that the | 18 |
| processing fee paid by the retailer in excess of the allowable | 19 |
| card transaction processing fee is not due or related to the | 20 |
| concession, but rather is the standard processing fee of the | 21 |
| particular bank, credit or payment card provider to which the | 22 |
| fee is paid. | 23 |
| (c) If a concession meets all the requirements under | 24 |
| subsection (b) of this Section for not being subtracted from | 25 |
| the motor fuel retail price in determining whether the motor | 26 |
| fuel retailer is selling below cost, except that the | 27 |
| concession, or the sum of all concessions, exceeds 5% of the | 28 |
| motor fuel sale ("excessive concessions"), that portion of the | 29 |
| concession that exceeds 5% of the sale shall be subtracted from | 30 |
| the retail motor fuel price in determining whether the motor | 31 |
| fuel retailer is selling below cost, unless all of the | 32 |
| following additional conditions are met: (1) the excessive | 33 |
| concession was offered, given, issued, distributed, provided | 34 |
| or paid by a person other than the motor fuel retailer or an |
|
|
|
09400HB0553ham001 |
- 34 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| affiliate of the motor fuel retailer and without the advance | 2 |
| knowledge or consent and beyond the reasonable control of the | 3 |
| motor fuel retailer; (2) within 30 days after the motor fuel | 4 |
| retailer first knows or reasonably should know about the | 5 |
| excessive concession, the motor fuel retailer delivers a | 6 |
| written request to the person offering, giving, issuing, | 7 |
| distributing, providing or paying the excessive concession | 8 |
| that such person discontinue any and all excessive concessions; | 9 |
| and (3) if, after 90 days following the motor fuel retailer's | 10 |
| written request that such person discontinue the excessive | 11 |
| concession, the motor fuel retailer knows or reasonably should | 12 |
| know that such person has not discontinued the excessive | 13 |
| concession, the motor fuel retailer shall take all reasonable | 14 |
| and necessary actions that the motor fuel retailer can, in good | 15 |
| faith, take to discontinue any involvement in, participation in | 16 |
| or facilitation of the excessive concession by the motor fuel | 17 |
| retailer. If the motor fuel retailer's only involvement in the | 18 |
| excessive concession is the retailer's acceptance of a | 19 |
| particular bank, credit, or other payment card as payment for | 20 |
| motor fuel sales, the retailer shall stop accepting such | 21 |
| particular bank, credit or other payment card as payment for | 22 |
| motor fuel sales, unless the retailer cannot stop accepting | 23 |
| such particular card without being required to stop accepting | 24 |
| cards of card providers that are not offering, giving, issuing, | 25 |
| distributing, providing or paying excessive concessions, in | 26 |
| which event the excessive concession of the particular card | 27 |
| provider shall not be subtracted from the retail motor fuel | 28 |
| price in determining whether the motor fuel retailer is selling | 29 |
| below cost if the motor fuel retailer, within 120 days after | 30 |
| the motor fuel retailer's request to the particular card | 31 |
| provider to discontinue the excessive concession, shall send | 32 |
| written notice to the Department of Revenue at an address | 33 |
| specified by the Department stating: (a) the identity of the | 34 |
| person offering, giving, issuing, distributing, providing or |
|
|
|
09400HB0553ham001 |
- 35 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| paying excessive concessions, and (b) the motor fuel retailer's | 2 |
| inability to discriminately stop accepting the card of the | 3 |
| person offering, giving, issuing, distributing, providing or | 4 |
| paying the excessive concession. | 5 |
| Section 30. Establishment of Motor Fuel Cost Review Board. | 6 |
| (a) A Motor Fuel Cost Review Board shall be established to | 7 |
| consider matters brought before the Board relating to issues of | 8 |
| motor fuel price gouging and below-cost selling including the | 9 |
| selection of the entity to provide benchmark pricing services | 10 |
| as provided for in this Act. | 11 |
| (b) The Board shall be comprised of 5 members, including: | 12 |
| (1) the Director of Revenue or his or her designated | 13 |
| representative; | 14 |
| (2) a resident of Illinois who is an active retailer of | 15 |
| motor fuel and a member in good standing with the Illinois | 16 |
| Petroleum Marketers Association; | 17 |
| (3) an Illinois resident who is a member in good | 18 |
| standing with the Illinois Retail Merchants Association; | 19 |
| (4) a certified managerial accountant licensed to | 20 |
| practice public accounting in the State; and | 21 |
| (5) a resident of the State, retired from the petroleum | 22 |
| retailing industry, having had a minimum of 10 years | 23 |
| experience working in the retail motor fuel industry before | 24 |
| retiring. | 25 |
| (c) Appointments to the Board shall be by the Governor, | 26 |
| with the advice and consent of at least a majority of the | 27 |
| Illinois Senate. Appointments shall be for a term of 3 years. | 28 |
| (d) The Board shall meet and be under the direction of the | 29 |
| Director of Revenue, or his or her designated representative, | 30 |
| who shall serve as chairperson of the Board. The Board shall | 31 |
| meet, at minimum one time a year and at maximum 5 times a year, | 32 |
| at which time the members of the Board shall receive an annual | 33 |
| report from the Director of Revenue or his or her designated |
|
|
|
09400HB0553ham001 |
- 36 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| representative, about complaints and matters relating to price | 2 |
| gouging below cost selling, reports of excessive concessions, | 3 |
| and the activities of the Department. | 4 |
| (e) The certified managerial accountant shall be | 5 |
| compensated at a rate that is usual and customary for | 6 |
| professional services provided by a certified managerial | 7 |
| accountant in the State, while other non-government employee | 8 |
| members of the Board shall be compensated at the rate of $40 | 9 |
| per hour (such hourly rate to be increased every 3 years by a | 10 |
| factor based on one-half the rate of increase in the consumer | 11 |
| price index over the prior 3-year period) for time spent in | 12 |
| meetings of the Board, whether meetings be conducted in person | 13 |
| or by telephone conference call, with a minimum compensation | 14 |
| payment of $100 per person per meeting, such minimum to help | 15 |
| offset some of the outside preparation time and considerations | 16 |
| involved prior to meetings of short duration. While members of | 17 |
| the Board shall not be compensated for the time traveling to | 18 |
| and from meetings, members of the Board shall be reimbursed for | 19 |
| reasonable travel and lodging expenses upon request, the rates | 20 |
| of reimbursement for such expenses not to exceed those allowed | 21 |
| of State employees. Payments relating to this Section shall be | 22 |
| made by the Department. | 23 |
| Section 35. Remedies and penalties for below-cost sales. | 24 |
| (a) If a retailer is selling motor fuel in a given market | 25 |
| area below the regulated minimum retail cost price of motor | 26 |
| fuel sold for another retailer in the same market, the | 27 |
| complaining retailer may file a complaint with the Department | 28 |
| of Revenue. The complaint shall include, at minimum, the name, | 29 |
| contact person, address and telephone number of the complaining | 30 |
| retailer, and the name, address and telephone number of the | 31 |
| competing retailer (also referred to as "alleged violator"), | 32 |
| the name and address of each retail location subject to the | 33 |
| complaint, the pricing at each such location on the applicable |
|
|
|
09400HB0553ham001 |
- 37 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| dates, the regulated minimum price of the complaining retailer | 2 |
| for each applicable date, with documentation supporting the | 3 |
| complaining retailer's computed regulated minimum price for | 4 |
| each such date. Within 30 days after receipt of the complaint, | 5 |
| the Department shall give written notice of the complaint to | 6 |
| the alleged violator. Such notice shall include a copy of the | 7 |
| complaint and all documentation filed. The alleged violator | 8 |
| shall have 60 days from the date of the notice to respond to | 9 |
| the Department with evidence that the alleged violator, for any | 10 |
| and all periods of time subject to the complaint, and for any | 11 |
| and all periods of time following the last date named in the | 12 |
| complaint to the date of the notice, was not selling below its | 13 |
| regulated minimum price, or that any sale below the regulated | 14 |
| minimum price meets one of the exceptions under subsections (a) | 15 |
| through (f) of Section 20. The Department shall have 90 days | 16 |
| from the date of the Department's receipt of the alleged | 17 |
| violator's response to provide to the complainant and to the | 18 |
| alleged violator written findings of: (i) whether the | 19 |
| complaining retailer has made a prima facie showing in its | 20 |
| complaint that the alleged violator sold below the complaining | 21 |
| retailer's regulated minimum price, and, if such prima facie | 22 |
| showing is made, then (ii), whether the alleged violator has | 23 |
| proven in its response, by a preponderance of the evidence, | 24 |
| that it did not sell below its regulated minimum price, or that | 25 |
| it meets one of exceptions provided under Section 20. | 26 |
| (b) If the Department finds: (i) that the complainant has | 27 |
| failed to make a prima facie showing under subsection (a), (ii) | 28 |
| that the alleged violator has proven either an exception under | 29 |
| Section 20, or (iii) that it did not sell below its regulated | 30 |
| minimum price, the complaint shall be closed. If the Department | 31 |
| finds that the complainant has made the required prima facie | 32 |
| showing and that the alleged violator has neither rebutted that | 33 |
| showing nor proven an exception under Section 20, the alleged | 34 |
| violator shall be given the opportunity to provide full |
|
|
|
09400HB0553ham001 |
- 38 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| disclosure and cost-accounting documentation that it did not | 2 |
| sell below cost. Certified by either a certified managerial | 3 |
| accountant or certified public accountant hired by the alleged | 4 |
| violator, the alleged violator shall file such documentation | 5 |
| with the Department within 90 days after the date of the | 6 |
| Department's written findings under subsection (a), and shall, | 7 |
| on the same day, serve the complainant with a copy. The | 8 |
| Department shall then have a period of 180 days in which to | 9 |
| review the data provided by the alleged violator, during which | 10 |
| time the Department may, at its option, submit the matter to | 11 |
| the Motor Fuel Cost Review Board for advisory comment. At any | 12 |
| time during this 180-day period, the Department may request | 13 |
| further data and clarification from the alleged violator, and | 14 |
| the alleged violator shall have a period of 60 days after each | 15 |
| additional request in which to respond with service of a copy | 16 |
| of each additional response upon the complainant. After the | 17 |
| final response, the Department shall have an additional period | 18 |
| of 180 days in which to review the supplemental data. If the | 19 |
| Department finds that the documentation provided by the alleged | 20 |
| violator proves by a preponderance of the evidence that it did | 21 |
| not sell below cost, then the complaint shall be closed. If the | 22 |
| Department shall find otherwise, or if the alleged violator | 23 |
| shall fail to provide data and documentation to support that it | 24 |
| did not sell below cost, the Department shall conclude that the | 25 |
| alleged violator violated this Act. The Department shall | 26 |
| promptly provide written notice to the alleged violator and the | 27 |
| complainant of the Department's conclusion, and fine the | 28 |
| violator in accordance with this Act. | 29 |
| (c) If the alleged violator fails or refuses to respond in | 30 |
| a timely manner to the requests of the Department or fails to | 31 |
| pay fines to the Department within 30 days after notice of the | 32 |
| imposition of a fine, the Department shall refer the matter to | 33 |
| the Office of the Illinois Attorney General for prosecution. | 34 |
| Upon receipt of such referral, the Office of the Illinois |
|
|
|
09400HB0553ham001 |
- 39 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| Attorney General, or at its discretion, the State's Attorney | 2 |
| for the county in which the alleged below-cost sale occurred, | 3 |
| shall commence a civil action to enforce the findings of and | 4 |
| fines imposed by the Department. While the civil action is | 5 |
| pending, the Attorney General or the State's Attorney shall | 6 |
| seek to enjoin the violator from below cost pricing, and upon a | 7 |
| proper showing, a temporary restraining order, preliminary | 8 |
| injunction, or permanent injunction shall be issued without the | 9 |
| necessity of a bond. | 10 |
| (d) Any person who has been found by the Department to have | 11 |
| committed a violation of below-cost selling under this Act | 12 |
| shall be listed as a "below cost seller" by the Department. If | 13 |
| such person is found to have committed another act of below | 14 |
| cost selling within 18 months after the date of the first act | 15 |
| of below-cost selling, the Department shall fine the violator a | 16 |
| sum not to exceed $5,000 per violation, unless a violation was | 17 |
| determined accidental, in which case the civil penalty shall | 18 |
| not exceed $2,500. The violator shall also be liable for | 19 |
| accountant's fees, expert witness fees, and investigative | 20 |
| expenses incurred by the Department, and shall be subject to | 21 |
| injunctive relief. Each day that a violation of below-cost | 22 |
| selling under this Act occurs is considered a separate | 23 |
| violation. If an action is brought by a State's Attorney, the | 24 |
| entire amount of the fine shall be paid to the treasury of the | 25 |
| county in which the judgment was entered. If such action is | 26 |
| brought by the Attorney General, one-half of the penalty shall | 27 |
| be paid to the treasury of the county where the action was | 28 |
| brought and one-half shall be paid to the State Treasury, | 29 |
| earmarked for the Attorney General's State Project and Court | 30 |
| Order Distribution Fund. Fines paid to the Department without | 31 |
| involvement of the Attorney General shall go to the General | 32 |
| Revenue Fund. | 33 |
| (e) Any person in competition with a person suspected of | 34 |
| below cost selling or threatening to sell below cost under this |
|
|
|
09400HB0553ham001 |
- 40 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| Act may file and maintain an action in any court of competent | 2 |
| jurisdiction to prevent, restrain, or enjoin such violation or | 3 |
| threatened violation and recover damages for the violation or | 4 |
| threatened violation, whether or not such person has filed a | 5 |
| complaint under subsection (a) of this Section of this Act and | 6 |
| whether or not an action is pending under subsection (c) of | 7 |
| this Section. Upon proper application by the plaintiff in any | 8 |
| action under this subsection (e), the court shall grant | 9 |
| preliminary injunctive relief if the plaintiff shows that he or | 10 |
| she is a proper person to seek the relief requested and that | 11 |
| the defendant is selling motor fuel below the plaintiff's | 12 |
| regulated minimum price for the time in question.
In such | 13 |
| action, there shall be a rebuttable presumption that the | 14 |
| defendant has violated this Act if the plaintiff can show that, | 15 |
| on a given day, the defendant sold or offered for sale, motor | 16 |
| fuel at a price below the plaintiff's regulated minimum price. | 17 |
| The defendant may rebut such presumption by proving by a | 18 |
| preponderance of the evidence that: (i) the plaintiff's | 19 |
| calculation of the regulated minimum price was inaccurate and | 20 |
| the defendant did not in fact sell below the actual regulated | 21 |
| minimum price; (ii) that the defendant qualifies for one of the | 22 |
| exceptions under Section 20; or (iii) that the defendant did | 23 |
| not in fact sell or offer for sale motor fuel below cost. If | 24 |
| the plaintiff proves a prima facie violation of this Act, and | 25 |
| the defendant does not rebut such proof, the court shall enjoin | 26 |
| and restrain, or otherwise prohibit, such violation or | 27 |
| threatened violation and, in addition, the court shall assess | 28 |
| in favor of the plaintiff and against the defendant the costs | 29 |
| of the lawsuit, including reasonable attorney's fees. It shall | 30 |
| not be necessary that actual damages to the plaintiff be | 31 |
| alleged or proved, but if damages are alleged and proved, the | 32 |
| plaintiff shall also be entitled to actual damages, exemplary | 33 |
| or punitive damages, and restitution. If the plaintiff fails to | 34 |
| make a prima facie showing that the defendant sold motor fuel |
|
|
|
09400HB0553ham001 |
- 41 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| below the plaintiff's regulated minimum price, or if the | 2 |
| defendant proves that the plaintiff's calculation of | 3 |
| plaintiff's regulated minimum price was inaccurate, the court | 4 |
| may award court costs and reasonable attorney's fees to the | 5 |
| defendant. | 6 |
| (f) The circuit courts of this State are empowered with | 7 |
| jurisdiction to hear and determine all cases brought under this | 8 |
| Section. Venue lies in the county in which the alleged | 9 |
| violation occurred. | 10 |
| (g) If any action is brought for a violation of a | 11 |
| below-cost sale, the burden of proof, upon a prima facie | 12 |
| showing of a violation, shall shift to the defendant to show | 13 |
| justification. A prima facie showing of a violation shall be | 14 |
| made if the plaintiff shows that the retail price of motor fuel | 15 |
| of the defendant-retailer was below the regulated minimum | 16 |
| retail cost price of motor fuel sold of the plaintiff retailer. | 17 |
| Unless justification is shown by the defendant by a | 18 |
| preponderance of the evidence, the court shall award judgment | 19 |
| to the plaintiff. | 20 |
| Section 40. Remedies and penalties for price gouging. | 21 |
| (a) Complaints of price gouging shall be made to the | 22 |
| Department of Revenue, specifying the name and address of each | 23 |
| retail location subject to the complaint, and the pricing at | 24 |
| each location on applicable dates that the violations are | 25 |
| alleged to have occurred. Within 30 days of receipt of the | 26 |
| complaint, the Department shall make contact with the alleged | 27 |
| violator, and the alleged violator shall have 60 days after | 28 |
| receipt of notice in which to provide evidence that for any and | 29 |
| all periods of time subject to the complaint, and for any and | 30 |
| all periods of time from the date of the last violation alleged | 31 |
| in the complaint to the date of the notice, the alleged | 32 |
| violator was not pricing above the regulated maximum price. | 33 |
| Upon a prima facie showing that the alleged violator sold or |
|
|
|
09400HB0553ham001 |
- 42 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| offered for sale motor fuel at a price above the regulated | 2 |
| maximum price on the date in question, the alleged violator | 3 |
| shall have the burden to prove, by a preponderance of the | 4 |
| evidence that he or she did not price above the regulated | 5 |
| maximum price on the date in question. If the alleged violator | 6 |
| can show, by a preponderance of the evidence, that he or she | 7 |
| did not price in excess of the regulated maximum price, the | 8 |
| complaint shall be closed. If the Department shall find that | 9 |
| the alleged violator did not prove that he or she did not price | 10 |
| in excess of the regulated maximum price for each day subject | 11 |
| to the complaint, the alleged violator shall be given the | 12 |
| opportunity to provide full disclosure and cost-accounting | 13 |
| documentation, certified by either a certified managerial | 14 |
| accountant or certified public accountant hired by the alleged | 15 |
| violator, that it did not engage in motor fuel price gouging. | 16 |
| The Department shall then have a period of 180 days in which to | 17 |
| review the data provided by the alleged violator, during which | 18 |
| time, the Department may, at its option, submit the matter to | 19 |
| the Motor Fuel Cost Review Board, for advisory comment. At any | 20 |
| time during this 180-day period, the Department may request | 21 |
| further data and clarification from the alleged violator, and | 22 |
| the alleged violator shall have a period of 60 days, after each | 23 |
| such request, in which to respond. After receipt of the final | 24 |
| response, the Department shall have an additional period of 180 | 25 |
| days in which to review the supplemental data. If the | 26 |
| Department finds that the documentation provided by the alleged | 27 |
| violator proves by a preponderance of the evidence that he or | 28 |
| she did not engage in motor fuel price gouging, then the | 29 |
| complaint shall be closed. If the Department shall find | 30 |
| otherwise, or if the alleged violator shall fail to provide | 31 |
| data and documentation to support that he or she did not engage | 32 |
| in price gouging, the Department shall conclude that the | 33 |
| alleged violator violated this Act. The Department shall then | 34 |
| notify the alleged violator of the Department's conclusion, and |
|
|
|
09400HB0553ham001 |
- 43 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| fine the violator in accordance with this Act. | 2 |
| (b) If the alleged violator fails or refuses to respond in | 3 |
| a timely manner to the requests of the Department or fails to | 4 |
| pay fines to the Department within 30 days after notice of the | 5 |
| imposition of the fine, the Department shall refer the matter | 6 |
| to the Attorney General for prosecution. Upon receipt of such | 7 |
| referral, the Attorney General, or at its discretion, the | 8 |
| State's Attorney of the county in which the violation occurred, | 9 |
| shall commence a civil action to enforce the findings of and | 10 |
| fines imposed by the Department. While the civil action is | 11 |
| pending, the Attorney General shall seek to enjoin the violator | 12 |
| from price gouging, and upon a proper showing, a temporary | 13 |
| restraining order, preliminary injunction, or permanent | 14 |
| injunction shall be issued without the necessity of a bond. | 15 |
| (c) Any person who is found to have committed a violation | 16 |
| of price gouging, as defined by this Act, shall be subject to a | 17 |
| civil penalty not to exceed $5,000 per violation for each | 18 |
| offense. Any such violator shall also be liable for the fees of | 19 |
| accountants, expert witness fees, and investigative expenses, | 20 |
| incurred by the State, if the State prevails in an action under | 21 |
| this Act. Each day that a violation of price gouging under this | 22 |
| Act occurs is considered a separate violation. If brought by a | 23 |
| State's Attorney, the entire amount of the fine shall be paid | 24 |
| to the treasury of the county in which the judgment was | 25 |
| entered. If brought by the Attorney General, one-half of the | 26 |
| penalty shall be paid to the treasury of the county where the | 27 |
| action was brought and one-half shall be paid to the State | 28 |
| Treasury, earmarked for the Attorney General's State Project | 29 |
| and Court Order Distribution Fund. Fines paid to the Department | 30 |
| without involvement of the Attorney General shall go to the | 31 |
| General Revenue Fund. | 32 |
| Section 45. Illegal contracts. Any contract, express or | 33 |
| implied, made by any person in violation of any of the |
|
|
|
09400HB0553ham001 |
- 44 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| provisions of this Act is illegal and void, and recovery shall | 2 |
| not be awarded. | 3 |
| Section 50. Recordkeeping. | 4 |
| (a) Persons engaged in commerce within this State who sell | 5 |
| or offer to sell motor fuel shall maintain records accurately | 6 |
| indicating the date and the time of day of each change in the | 7 |
| sale price of motor fuel and the identity of the person who | 8 |
| recorded the price change. In the event the change in price is | 9 |
| to meet a lower price of a competitor, the record shall set | 10 |
| forth the competitor's name and address, specifying the price | 11 |
| which was met. These records shall be maintained for a period | 12 |
| of 3 years. | 13 |
| (b) The records shall be made available to the Department | 14 |
| of Revenue and Attorney General on request. | 15 |
| Section 55. Witnesses; production of books and records. Any | 16 |
| defendant, or any witness, in any civil action brought under | 17 |
| the provisions of this Act may be required to testify, and any | 18 |
| defendant, or any witness, may, upon proper process, be | 19 |
| compelled to produce his books, records, invoices, and all | 20 |
| other documents of any such defendant or witness into court and | 21 |
| the same may be introduced as evidence, but no testimony given | 22 |
| or produced shall be received against such defendant upon any | 23 |
| criminal proceeding or investigation against the defendant. | 24 |
| Section 60. Trade association may file suit. Any duly | 25 |
| organized and existing trade association, whether incorporated | 26 |
| or not, is authorized to institute and prosecute a suit or | 27 |
| suits for injunctive relief and costs provided for under the | 28 |
| terms of this Act, as the real party in interest for and on | 29 |
| behalf of one or more of the association's members, when a | 30 |
| violation of this Act directly or indirectly affects or | 31 |
| threatens to affect or injure such member or members, or where |
|
|
|
09400HB0553ham001 |
- 45 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| violation of this Act threatens to impair fair competition or | 2 |
| otherwise affects the member. | 3 |
| Section 65. Limitations period. Any action brought by the | 4 |
| Attorney General or any State's Attorney shall be brought | 5 |
| within 2 years after the alleged violation occurred or should | 6 |
| reasonably have been discovered. Any action brought by any | 7 |
| other person or entity shall be brought within 3 years after | 8 |
| the alleged violation occurred or should reasonably have been | 9 |
| discovered. | 10 |
| Section 70. Powers and duties. | 11 |
| (a) The Department of Revenue has the following powers and | 12 |
| duties: | 13 |
| (1) to investigate complaints regarding violations of | 14 |
| this Act; | 15 |
| (2) to seek injunctive relief as appropriate; | 16 |
| (3) to levy fines for a violation of this Act; | 17 |
| (4) to determine what rates of compensation are usual | 18 |
| and customary for certified managerial or cost accountants | 19 |
| practicing in the State, and to set the hourly fee of the | 20 |
| managerial or cost-accountant serving on the Motor Fuel | 21 |
| Cost Review Board; and | 22 |
| (5) to select the entity to provide the benchmark | 23 |
| pricing services provided for in conjunction with this Act. | 24 |
| The following criteria shall be utilized to choose the | 25 |
| benchmark pricing service provider from the alternatives | 26 |
| available at the time of choosing: (i) which entity | 27 |
| provides for the most complete coverage of wholesale | 28 |
| terminal suppliers not only within the State, but also | 29 |
| within neighboring states having wholesale supply rack or | 30 |
| terminals within the area relevant to the calculation of | 31 |
| the regional benchmark pricing service average price, (ii) | 32 |
| which entity will make its information the easiest to |
|
|
|
09400HB0553ham001 |
- 46 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| access for Illinois motor fuel retailers and the | 2 |
| Department, and (iii) which entity will make access to its | 3 |
| information the least costly for Illinois motor fuel | 4 |
| retailers and the Department. The Department shall | 5 |
| coordinate presentations to be made by the available | 6 |
| reporting services to the Department and to the Motor Fuel | 7 |
| Cost Review Board. The Motor Fuel Cost Review Board shall | 8 |
| provide an advisory recommendation to the Department as to | 9 |
| the benchmark service provider to be selected or what | 10 |
| performance standards should be required of the service | 11 |
| provider to be selected. The Department will then utilize | 12 |
| this advisory input to make the selection of the benchmark | 13 |
| pricing service and to develop performance | 14 |
| responsibilities for the benchmark pricing service. Any | 15 |
| benchmark service provider selected in this manner shall | 16 |
| remain the benchmark service provider under this Act for at | 17 |
| least 24 months without formal review of other providers, | 18 |
| unless such benchmark service provider defaults on its | 19 |
| obligations, or unless two-thirds of the Motor Fuel Cost | 20 |
| Review Board votes to reactivate the selection process to | 21 |
| reconvene. | 22 |
| (b) The Attorney General has the following powers and | 23 |
| duties: | 24 |
| (1) to investigate complaints regarding violations of | 25 |
| this Act; | 26 |
| (2) to seek injunctive relief as appropriate; | 27 |
| (3) to seek restitution for victims of motor fuel price | 28 |
| gouging and other violations of this Act; | 29 |
| (4) to institute an action to collect a civil penalty | 30 |
| for a violation of this Act; and | 31 |
| (5) to delegate to any appropriate State's Attorney its | 32 |
| powers and duties. | 33 |
| Section 75. Confidentiality. |
|
|
|
09400HB0553ham001 |
- 47 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| (a) Information obtained by the Department, Attorney | 2 |
| General, or State's Attorney in the course of an investigation | 3 |
| under this Act, including information from a person who | 4 |
| responds to the investigation and designates the information as | 5 |
| confidential, must be maintained as confidential until the | 6 |
| investigation is completed and a course of action is | 7 |
| determined. Neither the Department, Attorney General, or | 8 |
| State's Attorney may make known in any manner information | 9 |
| obtained in the course of the investigation to persons other | 10 |
| than those specified in subsection (c) of this Section or the | 11 |
| members of the Motor Fuel Cost Review Board. Once the | 12 |
| investigation is completed, if there is a settlement or if a | 13 |
| civil action is filed, the information may be made public. | 14 |
| (b) This Section does not prohibit the use of confidential | 15 |
| information to prepare statistics of other general data for | 16 |
| publication, if the information is presented in a manner that | 17 |
| prevents identification of particular persons or locations | 18 |
| under investigation. | 19 |
| (c) For purposes of this Section, references to the | 20 |
| Department, Attorney General, or State's Attorney include | 21 |
| other individuals designated to write and act on their behalf | 22 |
| during an investigation. A person designated shall preserve the | 23 |
| confidentiality of information as provided for in subsection | 24 |
| (a) of this Section. | 25 |
| (d) A person who is served a subpoena with a request for | 26 |
| information, to give testimony orally or in writing, or to | 27 |
| produce books, papers, correspondence, memoranda, agreements, | 28 |
| or other documents or records under this Act may apply to the | 29 |
| appropriate circuit court for protection against abuse or undue | 30 |
| hardship. | 31 |
| Section 80. Banning of government subsidies for motor fuel | 32 |
| marketers. | 33 |
| (a) It is the policy of this State that no development |
|
|
|
09400HB0553ham001 |
- 48 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| containing a facility for selling motor fuel shall receive any | 2 |
| government subsidy, State or local, to aid in the cost of | 3 |
| development, when the motor fuel facility being developed would | 4 |
| be in competition with another Illinois-based facility within | 5 |
| the same market area. | 6 |
| (b) For any facility that has been built with any | 7 |
| government subsidy, before a motor fuel facility shall be added | 8 |
| to, about, or in affiliation with such facility, all government | 9 |
| subsidies received before, shall be paid back to each | 10 |
| governmental body providing any such subsidy. | 11 |
| (c) Any competitor of a person suspected of receiving a | 12 |
| government subsidy in violation of this Act shall have standing | 13 |
| to prosecute a civil action to enjoin a violation of this | 14 |
| Section and to compel restitution of any such subsidy received | 15 |
| or government monies foregone in violation of this Section. | 16 |
| Section 85. Severability. If any provision of this Act or | 17 |
| its application to any person or circumstance is held invalid, | 18 |
| the invalidity of that provision or application does not affect | 19 |
| other provisions or applications of this Act that can be given | 20 |
| effect without the invalid provision or application. | 21 |
| Section 90. Rulemaking authority and duty to inform. The | 22 |
| Department of Revenue may issue rules to administer and enforce | 23 |
| this Act. The Department shall also have the duty to inform | 24 |
| motor fuel marketers of this Act, including the requirements | 25 |
| not to sell below cost and not to engage in price gouging, | 26 |
| though failure to receive such notice shall not be a defense | 27 |
| under this Act. This duty shall be performed by the following: | 28 |
| (1) between the time that the Act is signed into law and its | 29 |
| effective date, the Department of Revenue shall issue written | 30 |
| notification to all persons who are currently filing motor fuel | 31 |
| tax returns, as well as all persons listed on prepaid sales tax | 32 |
| forms as being retailers from whom prepaid sales taxes have |
|
|
|
09400HB0553ham001 |
- 49 - |
LRB094 06725 RXD 40992 a |
|
| 1 |
| been collected on motor fuels, informing them of this Act, and | 2 |
| the requirements not to sell below cost and not to engage in | 3 |
| price gouging as defined in this Act, (2) within one year of | 4 |
| the effective date of this Act, the Department shall have | 5 |
| revised and issued forms requiring filers of motor fuel tax | 6 |
| returns to certify their awareness of the Motor Fuel Fair | 7 |
| Marketing Practices Act, including the requirements not to sell | 8 |
| below cost and not to engage in price gouging, and (3) at the | 9 |
| time that new motor fuel licenses are issued, the Department | 10 |
| shall include a notice of the existence of this Act, such | 11 |
| notice including the requirements not to sell below cost and | 12 |
| not to engage in price gouging. | 13 |
| Section 95. Appropriations. The Department of Revenue and | 14 |
| Office of the Illinois Attorney General shall request, by way | 15 |
| of appropriations, the costs and expenses necessary to comply | 16 |
| with this Act.".
|
|