A BILL TO BE ENTITLED
AN ACT to amend the motor fuel marketing act.
The General Assembly of North Carolina enacts:
SECTION 1.  Article 3 of Chapter 75 of the General Statutes reads as rewritten:
"Article 3.
"Motor Fuel Marketing Act.
"§ 75‑80.  Title.
This Article shall be known and may be cited as the "Motor Fuel Marketing Act".
"§ 75‑81.  Definitions.
 As used in this  Article, unless the context   indicates  otherwise, the following definitions apply:
(1)	"Person"  means any person, firm, association, organization, partnership, business trust, joint stock company, company, corporation or legal entity.
(2)	"Sale"  means selling, offering for sale or advertising for sale.
(3)	"Motor Fuel" means motor fuel, as defined in G.S. 105‑449.60, and alternative fuel, as defined in G.S. 105‑449.130.
(4)	"Cost" or "Costs" means as follows:
a.	For a refiner or terminal supplier, costs shall be presumed to be the refiner's or terminal supplier's prevailing price to the wholesale class of trade at the terminal used by the refiner or terminal supplier to obtain the motor fuel in question or the lowest prevailing price within 10 days prior to a sale alleged to be in violation of G.S. 75‑82 hereof plus all transportation expenses including freight expenses (incurred and not otherwise included in the cost of the motor fuel), and motor fuel taxes. If a refiner or terminal supplier does not regularly sell to the wholesale class of trade at the terminal in question, then such refiner or terminal supplier shall use as the prevailing price either (i) the lowest price to the wholesale class of trade of those other refiners or terminal suppliers at the same terminal who regularly sell to the wholesaler class or (ii) a price determined by using standard functional accounting procedures.
b.	For all other sellers, cost includes the invoice or replacement cost, whichever is less, of the grade, brand or blend, of motor fuel within  three days prior to the date of sale, in the quantity or quantities last purchased, less all rebates and discounts received at the wholesale level, including prompt payment discounts and plus all applicable State, federal and local taxes, and transportation expenses including freight expenses, incurred and not otherwise included in the cost of the motor fuel.
(5)	"Prompt Payment Discounts" means any allowance for payment within a specified time, but shall not include discounts for cash made to the motoring public at motor fuel outlets.
(6)	"Affiliate"  means any person who (other than by means of a franchise) controls, is controlled by or is under common control with, any other person.
(7)	"Motor Fuel Merchant"  means any person selling motor fuel to the public.
(8)	"Motor Fuel Outlet"  means any retail facility selling motor fuel to the motoring public.
(9)	 
(10)	"Refiner"  means any person engaged in the production or refining of motor fuel, whether such production or refining occurs in this State or elsewhere, and includes any affiliate of such person or firm.
(11)	"Terminal Supplier"  means any person engaged in selling or brokering motor fuel to wholesalers or retailers from a storage facility of more than 2,000,000 gallons capacity and such person has an ownership interest in or control of the storage facility.
"§ 75‑82.  Unlawful  motor fuel marketing; exceptions.
(a)	It shall be unlawful where the intent or effect is to injure competition for any motor fuel merchant or the affiliate of any motor fuel merchant to sell with such frequency as to indicate a general business practice of selling at a motor fuel outlet any grade, brand or blend of motor fuel for less than the cost of that grade, brand or blend of motor fuel  unless either of the following applies:
(1)	The price is established in good faith to meet  the lower price of a competitor  selling the same or comparable product of like  quality.
(2)	The sale is made pursuant to the order or authority of any court or governmental agency.

(bl)	A party may rebut the presumption created by this section by presenting evidence to establish that the party qualifies for an exception under subdivision (1) or subdivision (2) of subsection (a) of this section.
(c)	This Article shall apply only to retail sales of motor fuel at  motor fuel outlets.
(d)	A violation of this section is an unfair method of competition under G.S. 75‑1.1.
"§ 75‑83.  Unlawful inducement; civil penalty.
It  is unlawful to knowingly induce, or to knowingly attempt to induce, a violation of this Article, whether by otherwise lawful or unlawful means. In any action initiated by the Attorney General, anyone found to have violated this provision shall be subject to the civil penalty applicable to the sales made in violation of this Article; or, if no sales were made, to a civil penalty of one thousand dollars ($1,000). The clear proceeds of any civil penalties imposed in any actions initiated by the Attorney General under this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C‑457.2.
"§ 75‑84.  Separate offenses; injunctions.
Each act of establishing a price less than cost in violation of this Article shall constitute a separate offense by the  seller, and the civil penalty for each offense shall be not more than one thousand dollars ($1,000). Upon a proper showing by the Attorney General,  further violations may be temporarily or permanently enjoined.
The clear proceeds of civil penalties provided for in this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C‑457.2.
"§ 75‑85.  Investigations by Attorney General.
The Attorney General is authorized to investigate any allegation of a violation of this Article made by a motor fuel merchant  or group of motor fuel merchants. If an investigation discloses a violation, the Attorney General may exercise the authority under this Article to seek an injunction and may also  impose civil penalties. The clear proceeds of civil penalties provided for in this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C‑457.2.
"§ 75‑86.  Private actions.
Any person, corporation, or other business entity  that is engaged in the sale of motor fuel for resale or consumption and  that is directly or indirectly injured by a violation of this Article may bring an action in the district court  or superior court  of the county where the violation is alleged to have occurred to recover  treble damages, costs, and reasonable attorneys' fees. The court shall also grant such equitable relief as is proper, including a declaratory judgment and injunctive relief. Any action under this Article must be brought within one year of the alleged violation.
"§ 75‑87.  Private action presumptions.
(a)	In any private action brought under this Article, a violation shall be presumed to have occurred  if any of the following apply:
(1)	The prevailing price under G.S. 75‑81(4)(a) for any grade, brand or blend of a motor fuel sold by a refiner or terminal supplier to a wholesaler or retailer is greater than the price of the same grade, brand or blend of motor fuel sold by such refiner or terminal supplier directly through its own motor fuel outlet or through the outlet of an affiliate of said refiner or terminal  supplier.
(2)	The product price of any grade, brand or blend of a motor fuel sold by a wholesaler to a retailer is greater than the retail price of the same grade, brand or blend of motor fuel sold by such wholesaler through its own motor fuel outlet or the outlet of an affiliate of said wholesaler, provided the method of delivery and quantities of each delivery of motor fuel to the retailer and to the wholesaler's outlet or affiliate's outlet are the same or comparable.
(3)	A motor fuel merchant or affiliate of a motor fuel merchant sells motor fuel for less than cost.
(b)	A party may rebut the presumption created by this section by presenting evidence to establish  that the party qualifies for an exception under subdivision (1) or subdivision (2) of subsection (a) of G.S. 75‑82.
"§ 75‑88.  Public  disclosure; quantity of motor fuel available for sale.
(a)	Any refiner or terminal supplier computing prevailing price under the provisions of  G.S. 75‑81(4) shall be required to publicly disclose  this price.
(b)	No entity shall limit the quantity of motor fuel sold or offered for sale from a motor fuel pump to any one customer to a quantity less than the entire supply that is owned or possessed by the seller and that the seller is authorized to sell at the place of sale or offering for sale unless this subsection is preempted by a State or federal state of emergency.
(c)	Motor fuel purchased under this section shall be dispensed into a container approved by the fire prevention code, the State Building Code as authorized under G.S. 143‑139, or a containment vehicle approved by the Department of Transportation.
(d)	Each act that is in violation of this section shall constitute a separate offense and is subject to a civil penalty. The civil penalty for each offense shall be not more than five thousand dollars ($5,000). Upon a proper showing by the Attorney General, further violations may be temporarily or permanently enjoined. The proceeds of civil penalties under this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C‑457.2.
"§ 75‑89.  Powers and remedies supplementary.
The powers and remedies provided by this Article shall be cumulative and supplementary to all powers and remedies otherwise provided by law."
SECTION 2.  This act becomes effective October 1, 2005, and applies to sales of motor fuels and offers of sales of motor fuels on or after that date.