HB1933 95TH GENERAL ASSEMBLY

LRB095 08973 LCT 31746 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB1933

Introduced 2/23/2007, by Rep. Roger L. Eddy

SYNOPSIS AS INTRODUCED:

New Act

Creates the Renewable Motor Fuels Retail Infrastructure Development and Maintenance Act. Makes it a violation to sell motor fuel below cost. Provides that it is a violation of the Act to engage in motor fuel price gouging in response to the occurrence of a national disaster or State emergency, except where the sale is both an isolated and inadvertent incident. Provides that in certain instances it is not a violation of the Act to sell or advertise for sale motor fuel at a retail price that would constitute a below-cost sale. Allows concessions of up to 5% of the motor fuel sale, provided that the concessions are not given by the motor fuel retailer or an affiliate and that the cost of the concessions do not reduce the pump price and net amount paid for the motor fuel at the time of the sale. Establishes a Motor Fuel Cost and Bio-Fuels Blend Ratio Review Board. Removes, after the listed time period, the protection against predatory pricing for any retail motor fuel facility that fails to either offer motor fuels at retail with the required blend ratios or to have upgraded or installed an infrastructure at the retail motor fuel station that can safely store and dispense motor fuel containing ethanol alcohol or biodiesel in the required blend ratios. Sets out the duties and powers of the Department of Revenue, the Department of Agriculture, the Office of the State Fire Marshal, and the Attorney General. Effective 90 days after becoming law.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning business.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Renewable Motor Fuels Retail Infrastructure Development and Maintenance Act.

Section 5. Legislative Findings; Purpose.

(a) Retail marketing of motor fuel is affected by the public's interest.

(b) Motor fuels are essential to the transportation system of the State and its citizenry.

(c) Consumers benefit from ample numbers of conveniently located motor fuel facilities and ample storage of motor fuels to readily accommodate consumer demand.

(d) Local communities benefit from motor fuel businesses owned and operated by independent retailers and wholesalers, because independents generally support private sector businesses that are local or regional in nature including, but not limited to, lenders, insurance providers, providers of accounting services, and providers of legal services.

(e) Communities also benefit from financial, equipment, and manpower support from independent retailers and wholesalers to not-for-profit organizations operating within such communities.

(f) Currently, motor fuels in America are largely produced from non-renewable sources of energy, which are largely imported from areas outside of this nation.

(g) Hostilities in those parts of the world have the potential to disrupt the vital flow of oil and to potentially compromise the security interests of this nation and of this State.

(h) The public has an especial interest in reducing the dependency on foreign sources of motor fuel energy. Given the limited supply of available petroleum reserves in this nation, and given that petroleum is a non-renewable fossil fuel, the public has a further interest in the development and use of renewable forms of motor fuel energy.

(i) In recognition of the public's interest in reducing the public's dependency on foreign sources of motor fuel energy, and in utilization of renewable sources of motor fuel energy, the major auto manufacturers have recently introduced flexible fuel vehicles that will enable passenger vehicles to utilize gasoline containing larger blend ratios of ethanol than commonly available to motorists in motor fuels today, such vehicles that can operate on motor fuel blended with up to 85% ethanol alcohol (known as "E-85" gasoline), said blending ratio of ethanol depending on the ambient temperatures occurring during the time of year.

(j) Passenger vehicles and trucks are also being manufactured to operate on diesel fuel containing greater blends of bio-fuel, which, when these fuels are blended, they are known as blended "biodiesel".

(k) Midwestern states that are agriculturally based, including the State of Illinois, have an especial economic interest in the use of motor fuels containing blends of bio-fuels that are produced from agricultural products, and, therefore, have an especial economic interest in the consumer's use of ethanol and biodiesel blended fuels within the State.

(l) Since increasing numbers of motor vehicles can flexibly operate on fuel containing up to 85% ethanol, since other motor vehicles can operate on bio-fuel blended with conventional diesel, and given the State's objective to become less dependent on non-renewable motor fuel, consumers should have access to motor fuels containing bio-fuels including motor fuels containing 85% ethanol.

(m) Overall, the retail motor fuel infrastructure that is currently in place, cannot safely accommodate motor fuel containing blend ratios of up to 85% ethanol alcohol. In fact, much of the existing infrastructure may not even accommodate blending with ethanol in even the conventionally small ratio of 10% due to moisture infiltration. Water infiltration into fuel containing ethanol is a problem because water and ethanol bond with each other, and then separate as a compound from gasoline. Fuel that has undergone this phase separation can potentially damage motor vehicles and, therefore, is unmarketable, necessitating that costly, remedial action be taken on the part of the motor fuel retailer in order to safeguard the motoring public. Water infiltration is not a problem with non-ethanol motor fuel because water, which is heavier than gasoline, will not blend with such fuel. Instead, water falls to and collects at the bottom of the fuel tank, where it can be readily detected by in-place tank gauging technology, prompting remedial measures before the problem becomes as costly as it otherwise could.

(n) Excessive water infiltration into an underground storage tank containing ethanol, due to its concealing detection of water infiltration (the concealment being due to water bonding with the ethanol), can, with enough infiltration, also potentially result in motor fuel product being pushed out of the top of a tank, potentially impacting the underground environment.

(o) Water can also adversely affect biodiesel, as water in biodiesel promotes the growth of hydrocarbon-degrading bacteria and mold that can use biodiesel as food. However, in a tank of biodiesel, water will fall to and collect at the bottom of the tank, where it can be detected by tank-gauging technology, thereby prompting remedial measures.

(p) The retail motor fuel infrastructure commonly includes underground storage tanks, fill-piping, spill prevention equipment, submerged pumps, piping from the submerged pumps to fuel dispensers, blending valves, leak detection and prevention equipment, and other components.

(q) To safeguard against water and moisture infiltration into motor fuel containing ethanol (and potentially, even biodiesel), improvements may need to be made to certain components of the retail motor fuel infrastructure, or additional components added, all at considerable investment cost to the motor fuel retailer.

(r) To accommodate motor fuel with greater blend ratios of ethanol at retail, not only should certain components of the motor fuel infrastructure be improved to safeguard against moisture infiltration, but also a special motor fuel infrastructure can be required to safely receive, store, pipe, blend, and dispense the ethanol or ethanol blended fuel at retail. This is largely because of the chemical properties of ethanol differ from that of conventional gasoline.

(s) The special retail infrastructure to accommodate the motor fuel containing greater blend ratios of ethanol, including, but not limited to, E-85 gasoline, necessitates a significant financial investment by the motor fuel retailer, given that a significant portion of the fuel tanks in existence at the retail level are not currently compatible with E-85 gasoline, given that the majority of the fuel piping in existence at retail is likewise not currently compatible, and given that virtually all of the blend valves, leak detection equipment, probes, sensors, and fuel dispensing equipment in existence at retail are also not compatible with E-85.

(t) Nationally, less than 1% of all retail motor fuels stations offer E-85 gasoline, and the overwhelming majority of motor fuel stations do not offer gasoline containing ethanol in a blend ratio greater than 10%.

(u) Motor fuel retailers, when able to generate sufficient revenue from the sale of motor fuel to cover the costs of selling motor fuel, have a track record for providing the motor fuel infrastructure needed at the retail level, as evidenced by the investment efforts in the past when unleaded gasoline was introduced into the marketplace.

(v) Despite actual differences in motor fuel production and quality, motor fuel is considered largely to be a commodity product, with price having evolved as the primary basis of competition at the retail level, as evidenced by, and in part due to, the fact that the price of motor fuel is uniquely advertised 365 days a year on large, illuminated price signs.

(w) With price as the primary basis of competition, profit margins and returns on investment for retail marketers of motor fuel are generally low and most retailers of motor fuel must be competent in order to survive.

(x) In addition, many motor fuels are flammable and combustible liquids, which must be distributed in a safe manner, utilizing specially designed and costly explosion-proof equipment.

(y) Motor fuels are also potentially hazardous to the underground environment, such that specially designed and costly equipment must be used to contain and monitor the containment of motor fuels and to comply with governmentally-imposed regulations.

(z) Retail marketers of motor fuel must have an opportunity to earn a margin of profit on the sale of motor fuel to enable development and maintenance of a retail infrastructure that will accommodate low ratio and high blend ratios of renewable fuels in a manner that is safe for the motoring public as well as the environment.

(aa) Over the years, the margin of profit earned on the sale of motor fuel has lessened in a sustainable manner, largely due to the advent of self-service as well as the sharing of costs of motor fuel retailing with the retailing of other goods and services offered at the motor fuel facility including, but not limited to, the sale of convenience store goods and services, car washes, or fast-foods, where the shared costs can include cashiering, management, accounting, facility maintenance, facility development, land acquisition, and land development.

(bb) Given today's cost of doing business and the average volume motor fuel station facility, the sharing of personnel to accommodate transactions of both convenience store items and motor fuel sales has legitimately allowed for a significant reduction in the minimum needed profit margin on a motor fuel operation, a profit reduction that is sustainable without subsidy or later recoupment.

(cc) A lower margin of profit on the sale of motor fuel has been a gain to consumers through lower retail prices on motor fuel, which, for many years, has allowed the majority of competently-run independent businesses to remain financially viable because of cost sharing.

(dd) In recent years, however, the profit earned on the sale of motor fuel within a growing number of markets has gone below what is reasonable and necessary for an independent marketer to cover its costs of doing business, even when the motor fuel marketer is benefiting from cost sharing.

(ee) The primary reason that the profit earned on the sale of motor fuel has gone below what is reasonable and necessary for a cost-sharing retailer to cover its costs of doing business is the growing practice of below-cost marketing of motor fuels.

(ff) With price as the number one basis of competition in the retailing of motor fuel, below-cost retailing by the competition leaves the independent retailer of motor fuel with only 2 choices: (1) join in the below-cost retailing of motor fuel to keep its customer base, which will eventually cause the independent retailer to become financially unsound or not competitive because it cannot generate capital to reinvest in its business; or (2) do not join in the below-cost retailing of motor fuel, and lose customers and sales volumes as a result thereof, eventually becoming financially unsound or not competitive through the inability to generate reinvestment capital. Either way, many independent retailers will be selling out, closing up, and failing to upgrade their facilities, including upgrades to accommodate motor fuels with low or high blend ratios of ethanol gasoline or biodiesel.

(gg) Those who initiate below-cost marketing of motor fuel are able to do so either from subsidized pricing unrelated to cost-sharing, from wholesale price discrimination, or from having greater financial resources enabling the initiator to outlast those with fewer financial resources.

(hh) Subsidized pricing stems from one of the following 4 sources:

(1) A retailer covers its losses on the sale of motor fuel from profits generated by the sales of products or services unrelated to the retail sale of motor fuels and unrelated to the sharing of personnel and other costs involved in the sales of motor fuel products. Examples include, but are not necessarily limited to, bulk distributors of motor fuel, supermarket operators, and mass merchandiser retailers who have added motor fuel as an additional, separate, product offering, and who provide motor fuel discounts or subsidize motor fuel operations with revenue generated on separate operations, as well as those involved in money laundering or illegal trade. This form of subsidization can result in higher prices of the products that are subsidizing the below-cost sales of motor fuels. This form of subsidization is hereinafter referred to as "subsidization via revenue sharing from diversification".

(2) Large chain retailers who cover a large geographic market and subsidize their below-cost sales in one market with profits generated in other markets. This form of subsidization can result in motor fuel prices being higher in the markets where the profits are being generated than would otherwise be the case had there not been below-cost sales of motor fuel in the markets being subsidized. This form of subsidization is hereinafter referred to as "subsidization via revenue sharing from geographic dispersion".

(3) Vertically integrated companies that subsidize the retailing end of the business from either the wholesaling, transportation, refining, or oil production portions of their business. This form of subsidization is hereinafter referred to as "subsidization via revenue sharing from vertical integration".

(4) Foreign nationals who receive subsidies from abroad in order to maintain business and citizenship opportunities in the United States. This form of subsidization is hereinafter referred to as "subsidization via revenue sharing from foreign sources".

(ii) Wholesale price discrimination occurs when refiners or other originators of motor fuel sell to one wholesaler or retailer in a market area at an advantaged price over another wholesaler or retailer in the same market area, when the pricing differential is not cost-justified.

(jj) Below-cost marketing of motor fuel is unfair competition, because it injures and threatens the viability of motor fuel retailers who do not engage in subsidization, even those possessing the highest degree of competence and who are engaging in cost-sharing by way of diversified retail operations, and deprives them of the ability to accumulate the capital necessary for reinvestment in the motor fuel operation.

(kk) Below-cost selling of motor fuels is dangerous and detrimental to the public because it discourages motor fuel retailers from making the financial investments necessary to develop and maintain the infrastructure necessary to store and dispense motor fuels in the safest, most environmental-friendly manner, including the infrastructure to safely store, blend, and dispense varying blend ratios of renewable bio-fuels.

(ll) The inability of motor fuel retailers to accumulate capital, due to unfair competition in the motor fuel industry also damages local and regional suppliers of equipment, facilities, technology, and other goods and services with whom the motor fuel retailers regularly do business, all to the detriment of local and regional economies.

(mm) Unfair competition in the retail motor fuel industry also injures the ability of motor fuel retailers to generate money to cover the costs of regulation compliance related to underground storage tank systems, potentially endangering the environment.

(nn) Unfair competition in the retail motor fuel industry also injures the ability of local-based motor fuel retailers to provide new jobs, expand career opportunities for their current employees, implement new technologies, raise living standards for their employees, and enhance the overall economic welfare of their local communities and region.

(oo) Unfair competition in the retail motor fuel industry also adversely affects the State because it adversely affects business spending by motor fuel retailers in the high-wage sectors of construction, manufacturing, and technology, and it adversely affects the revenue-generating abilities of the State through lower sales and income tax collections.

(pp) Below-cost selling of motor fuel is inherently predatory and stands to injure competition by reducing the number of competitors in petroleum marketing, especially the number of independently-owned motor fuel retailers who do not engage in subsidization, rendering the market susceptible to increased retail prices in the long-term.

(qq) Unfair competition by way of the predatory practice of below-cost pricing also tends to create barriers to entry or re-entry into the motor fuel marketplace by independently-owned motor fuel retailers, resulting in a marketplace that is not truly free as a result of said economic barriers.

(rr) Below-cost pricing of motor fuel creates a financial barrier to motor fuel retailers developing the infrastructure to safely accommodate low and high blend ratios of renewable bio-fuels, as well as a financial barrier to maintaining the infrastructure once developed.

(ss) Even when governmental income tax credits exist to provide an incentive for private companies to invest in a retail infrastructure to accommodate greater blends of bio-fuels, the credits are of little use if the retailer is unable to earn taxable income from which the credit would be deducted.

(tt) Governmental grants that pay for only a small percentage of the infrastructure costs can be limited in effectiveness in helping to stimulate the infrastructure development if, and to the extent that, the retailer is unable to obtain the resources necessary to pay for the portion of costs not covered by the grants.

(uu) Federal regulations dealing with predatory pricing do not adequately protect businesses and consumers because these regulations are not held to be violated until the damage caused by predatory pricing, much of which is irreversible, has been done, such as the bankrupting or closing of family and other independently-owned businesses.

(vv) Federal regulations also fail to take into account the unique circumstances associated with the retail motor fuel industry that create significant economic barriers including, but not necessarily limited to, the following: (1) motor fuel is perceived largely as a commodity product, where product differentiation is small and price is the number one basis of competition, providing little for the independent motor fuel marketer to do on a strategy of differentiation; (2) there is a high investment cost required to enter the motor fuel industry (with the average cost, for fuel improvements and fuel equipment running approximately $300,000 and the cost for land, land development, and improvements and equipment for cost-sharing running easily as much as $900,000, for a total entry cost being easily as much as $1.2 million, more or less, depending on the geographic area of the State), requiring those entering into the motor fuel business to have a reasonable opportunity to earn a positive return on investment, rather than treat motor fuel as a loss leader; and (3) the threat of continued or repeated predatory pricing practices, creates a significant barrier to re-entry into the business by those previously run out of business, as well as a significant barrier to entry by rational, law-abiding persons wanting to enter the market for the first time.

(ww) On the other end of the spectrum, in the past, following times of national crisis, an isolated number of motor fuel retailers have engaged in price gouging, which has exacerbated the crisis by causing public panic over the purchase of motor fuel.

(xx) Competent, fair, law-abiding, independent motor fuel marketers (dealers, retailers, distributors, jobbers, and wholesalers) are vital to a healthy, competitive marketplace and are important to the economic viability of the State and its local communities.

(yy) Competent retailers of motor fuel should have a reasonable opportunity to earn sufficient revenue to cover the reasonable costs of doing business from the marketing of motor fuel when striving to be price competitive with others.

(zz) Insofar as the retail segment of motor fuel is concerned, generally, consumers are inherently protected from motor fuel price gouging, because motor fuel is largely a commodity product, where price has become the primary basis of competition, where the prices of motor fuels are uniquely advertised continuously on large, illuminated signs.

(aaa) Because price is the primary basis of competition, and because of the large investment costs necessary to develop and maintain motor fuel facilities, independently-owned motor fuel retailers are subject to exploitation by other motor fuel retailers who, because of their advantaged financial resources and sources of subsidy, can sell below cost.

(bbb) A retail environment that enables the development and maintenance of a retail infrastructure to safely accommodate the retail storage and sale of motor fuels containing low and high blend ratios of bio-fuels, including ethanol gasoline and biodiesel, is also important to the State.

(ccc) The General Assembly recognizes that without such an infrastructure, motorist acceptance of motor fuels containing bio-fuels can be impeded, as can retailer offering of such fuels, and the underground environment can be adversely impacted.

(ddd) The General Assembly declares that there is a need to reduce dependence on foreign sources of non-renewable energy, by relying increasingly on renewable sources of energy from bio-fuels, especially those produced from agricultural products in Illinois and other Midwestern states, including ethanol and biodiesel.

(eee) The General Assembly declares that there may need to be rules promulgated regarding underground storage tank systems to better safeguard against water and moisture infiltration, so that the underground storage tank systems will be able to safely accommodate ethanol and ethanol blended motor fuel.

(fff) The General Assembly recognizes that there may need to be rules developed regarding underground storage tanks and dispensing systems to safely accommodate the receipt, storage, in-line flow, blending, and dispensing of motor fuels containing high blend ratios of bio-fuels.

(ggg) The General Assembly recognizes that retailer compliance with the rules will be costly.

(hhh) The General Assembly recognizes that the practice of below-cost pricing of motor fuels creates a significant impediment to the development of a retail infrastructure to accommodate bio-fuels.

(iii) The General Assembly recognizes that other states have laws that attempt to address below-cost pricing.

(jjj) The General Assembly declares that there is a need for public policy in this State to encourage an improved economic environment for the private development and maintenance of a motor fuels infrastructure at retail motor fuel stations and to safely accommodate motor fuels containing both low and high blend ratios of bio-fuels, including ethanol and biodiesel.

(kkk) The General Assembly declares that there is a need to set a floor below which the retail price of motor fuel shall not be set, unless the motor fuel retailer can demonstrate that the price of motor fuel, below the floor, is not below the retailer's selling cost of the motor fuel, or that the motor fuel retailer is meeting the equally low price of a competitor, thereby allowing retail motor fuel prices to be set by those who are able to establish the lowest cost of selling motor fuel.

(lll) The General Assembly declares that there is a need for public policy to prevent predatory pricing of motor fuels in order to encourage increased use of bio-fuels and thereby reduce our State's dependence on foreign, non-renewable sources of energy.

(mmm) To achieve the purpose of this Act, the protection provided to retailers under this Act must be tied to the retailer's development and maintenance of a retail motor fuel infrastructure to safely accommodate the receipt, storage, in-line flow, blending, and dispensing of low and high blend ratios of bio-fuels.

(nnn) The General Assembly recognizes that a significant number of motor fuel retailers have not been profitable in recent years, largely due to below-cost pricing of motor fuel during those years. The lack of profitability has significantly hindered the ability of the motor fuel retailers to internally generate the capital necessary to make improvements to the motor fuel infrastructure, as well as hindered the ability of motor fuel retailers to secure necessary bank financing to do the same.

(ooo) The General Assembly recognizes that many motor fuel retailers must have time and opportunity to generate future financial performance to demonstrate to financiers the worthiness of the motor fuel retailers to be awarded bank financing to make the improvements provided for in this Act.

(ppp) The General Assembly recognizes that motor fuel retailers must have time to make and pay for the improvements to prevent moisture infiltration or to otherwise make improvements to accommodate the safe storage and dispensing of low and high blend ratios of bio-fuels.

(qqq) The General Assembly declares that a 7-year period, from the effective date of this Act, or from the effective date of any applicable rules promulgated by the Office of the State Fire Marshal under this Act, whichever date is the later, is adequate time for the improvements provided for in this Act.

(rrr) The General Assembly recognizes that time is of the essence in the effective date of this Act, given that the longer that enactment of this Act is delayed, the longer it will take for motor fuel retailers to have an opportunity to restore to financial health, to qualify for bank financing, and to make and pay for the costly retail motor fuel infrastructure improvements hoped for in this Act.

(sss) The General Assembly further declares that there is also a need, during times of national disaster or State emergency, for public policy to set a ceiling above which the retail price of motor fuel shall not be set, unless the motor fuel retailer can demonstrate that the price of motor fuel, above the ceiling, is necessary to cover its costs of selling motor fuel.

(ttt) In order to provide the most simplicity in determining when a motor fuel retailer is or is not in compliance with this Act, and to also eliminate the need for rules governing wholesale price discrimination, transfer pricing, commodities trading, and related issues involved in the subsidization of motor fuel at retail from a vertically integrated motor fuel marketer, the General Assembly further declares that there is a need for a neutral guideline on which to base fuel prices for the purpose of determining if below-cost pricing or price-gouging is occurring.

(uuu) The General Assembly recognizes the existence of reporting services including, but not necessarily limited to, Oil Price Information Service (OPIS) or AXXIS Petroleum (AXXIS), which neutrally report wholesale prices of motor fuel from a myriad of motor fuel suppliers, from which average wholesale rack or terminal pricing may be established. Prices reported by OPIS and AXXIS are used as a benchmark by the world to buy and sell U.S. gasoline and diesel fuel. Neither OPIS nor AXXIS has a stake in fuel transactions, neither is funded by oil industry initiatives, and each strictly adheres to antitrust guidelines determined by independent legal counsel. The General Assembly declares that such a pricing service shall be utilized to provide a benchmark for determining if below-cost pricing or price-gouging is occurring.

(vvv) Because this Act allows a motor fuel retailer to meet the equally low price of another motor fuel retailer, there must be a mechanism for the periodic restoration of pricing of motor fuel to a level that is not below cost.

(www) One purpose of this Act is to substantially lessen subsidized pricing of petroleum and related products, while allowing the reduction of motor fuel pricing through cost-sharing over the sales of other products and services, where cost-savings are the result of sharing personnel and other relevant cost factors in motor fuel retailing, including sales, management, maintenance, accounting, and property costs.

(xxx) This Act provides that the advertising, offering for sale, or sale of motor fuel below cost is necessarily done with the intent of injuring competitors or destroying or substantially lessening competition, and is an unfair and deceptive trade practice. The policy of the State is to promote the general welfare through the prohibition of such sales. The purpose of this Act is to carry out that policy in the public interest, providing for exceptions under stated circumstances, for enforcement, and for penalties.

(yyy) Because motor fueling constitutes one of the most competitive industries in the marketplace, it is important that one motor fuel marketer not be advantaged over another motor fuel marketer as a result of any type of governmental subsidy; therefore, the development of a motor fuel facility, or the development of a facility that has, as a part thereof, a facility for the sale of motor fuel, should not be government-subsidized when the facility would be in competition with another non-subsidized facility in the same market area, except for assistance available to all such area facilities and limited to the development of a retail infrastructure to accommodate the bio-fuels blending prescribed in this Act.

(zzz) While this Act attempts to address the problems that impede the development of the retail infrastructure to accommodate the storage and sale of motor fuels containing greater blend ratios of bio-fuels, it is important to recognize that the ability of motor fuel retailers to blend with bio-fuels shall, in large part, be dependent on the production and availability, at the time, of the bio-fuels at the wholesale level.

(aaaa) It is anticipated that additional ethanol and biodiesel production facilities will be built in the time ahead, which will increase supply and make additional ethanol and biodiesel available for blending.

(bbbb) As added ethanol and biodiesel comes available (in supply), it is anticipated that more retail facilities will have an opportunity to offer blended fuels, and that retail facilities that offer blended fuels will have an opportunity to offer the fuels in greater blend ratios (demand). What the specific blend ratios will be will depend on tax incentives, as well as the supply and demand balance of ethanol and biodiesel, not only in this State, but in other states that comprise the demand for ethanol and biodiesel at the time.

(cccc) Because the supply and demand balance cannot be definitively known too far ahead of time, because there is a 7-year time frame provided for in this Act, after which protection to retailers can be ended unless an affected facility of a retailer meets certain infrastructure and blend ratio objectives of this Act, and because the supply and demand balance may not necessarily warrant a widespread blend offering of the conventional blend of 70% to 85% ethanol comprising E-85 gasoline by the beginning of the fourth year of enactment of this Act, but may warrant a smaller minimum blend of ethanol than the conventional range of 70% provided for E-85, the Department of Agriculture is given the obligation to monitor supply and demand factors, and, if the Department of Agriculture determines that the supply and demand factors warrant a lesser minimum blend ratio of ethanol in E-85 gasoline, then the Department of Agriculture shall coordinate with industry standards setters including, but not limited to, the American Society for Testing and Materials (ASTM), and shall make effort to prescribe a minimum alternative blend ratio for E-85, and, to the extent that there is also a supply and demand imbalance for high-ratio blended biodiesel, to make effort to prescribe a minimum alternative blend ratio for high blend ratio blended biodiesel, such prescription or prescriptions to be made no earlier than the fourth year and no later than the beginning of the eighth year of this Act, and for each year thereafter, with the understanding that upon commencement of the eighth year of this Act, certain minimum blends must be met in order for motor fuel retailers to be able to continue to qualify for protection under this Act.

(dddd) Whenever motor fuel is offered at retail containing a greater blend ratio of bio-fuels than that recommended by the automobile manufacturer, there is a risk of damage, especially if a motor vehicle, which is not a flexible fuel vehicle, is fueled with a higher ratio bio-fuel. Because of this, dispensers that dispense fuels containing greater blends than 10%, must contain printed warnings against using the fuel in vehicles that are not flexible fuel vehicles and that are not otherwise designed for blends greater than 10%. If, despite these warnings, an unobservant motorist fuels his or her vehicle with the wrong fuel, and causes damage to the motorist's vehicle, the motorist may seek money damages from the retailer. The risk of the unwarranted claims from motorists is a deterrent to retailers who would otherwise offer high ratio bio-fuels in accordance with this Act. To minimize the deterrence, retailers who offer high ratio bio-fuels with appropriate signage should be immune from liability for damages caused if a motorist improperly fuels his or her vehicle with a higher ratio bio-fuel than what is recommended by the vehicle's manufacturer.

(eeee) It is believed that the costs of ensuring compliance with and enforcing this Act will be more than offset by the additional sales and income tax revenues stemming from the compliance and enforcement.

Section 10. Definitions. In this Act:

(a) "Actual costs of selling motor fuel" means any costs and expenses reasonably incurred by a retailer of motor fuel associated with the selling of motor fuel at a retail motor fuel facility, including the following costs and expenses defined in this Act: the applicable laid-in cost of motor fuel, plus expense costs of selling motor fuel, plus investment costs of selling motor fuel, plus costs or expenses excluded from expense costs of selling motor fuel, plus extraordinary costs of selling motor fuel, plus other costs reasonably incurred.

(b) "Actual costs of selling motor fuel from dedicated supplier" means any and all costs and expenses reasonably incurred by a retailer of motor fuel associated with the selling of motor fuel at a retail motor fuel facility, including the applicable laid-in cost of motor fuel originating from dedicated supplier, plus expense costs of selling motor fuel, plus investment costs of selling motor fuel, plus costs or expenses excluded from expense costs of selling motor fuel, plus extraordinary costs of selling motor fuel, plus other costs reasonably incurred.

(c) "Actual costs of selling motor fuel per gallon" means the actual costs of selling motor fuel, divided by the number of gallons sold, during the period in which motor fuel was sold.

(d) "Actual costs of selling motor fuel per gallon from dedicated supplier" means the actual costs of selling motor fuel from dedicated supplier, divided by the number of gallons sold, during the period in which motor fuel was sold.

(e) "Actual health insurance costs" means the health insurance costs, if any, actually incurred.

(f) "Advertising expenses" means the following forms of advertising: newspaper, internet, magazine, television, radio, direct-mail, billboard, and other forms of off-premises advertising related to motor fuel.

(g) "Affiliate" means any person who is related to another person through common ownership or common control. Franchisees and licensees of branded motor fuel suppliers are not "affiliates" of their branded fuel suppliers.

(h) "Average monthly gallons of motor fuel sold" means the mathematical result obtained by dividing the total number of gallons of motor fuel sold at a given retail motor fuel facility over the 12 calendar months preceding the date in question, by the number of months that motor fuel was sold from that facility over the 12-month period.

(i) "AXXIS petroleum" (AXXIS) is an independent reporting service, located in the state of Minnesota, providing daily reports of prices of refined motor fuel, including the gasoline grades or blends, or both, being sold as well as the diesel fuel grades or blends, or both, being sold, that is a widely accepted as an independent fuel price benchmark for supply.

(j) "Benchmark pricing service" means the independent reporting service providing daily reports of supplier wholesale prices of refined motor fuel from wholesale rack terminals, including the gasoline grades or blends, or both, being sold as well as the diesel fuel grades or blends, or both being sold, whichever service is selected by the Department under this Act. OPIS and AXXIS are the only 2 such pricing services known to be available at the time of passage of this Act. If one or more other such pricing services become available, the Department shall have discretion to select any other such pricing service in accordance with this Act.

(k) "Below-cost sale", "below-cost selling", "selling below cost", "to sell below cost", and "sell below cost" means the selling of applicable grades or blends, or both, of gasoline or diesel fuel at retail in this State at a price that is below the lower of (1) the regulated minimum retail cost price of motor fuel sold, or (2) the mathematical sum of the applicable laid-in cost of motor fuel plus the cost of selling the motor fuel at retail on a per gallon basis.

(l) "Biodiesel" is a renewable, biodegradable fuel derived from agricultural plant oils or animal fats that meets the American Society for Testing and Materials specification D6751 Standard Specification for Biodiesel Fuel (B-100) Blend Stock for Distillate Fuels. Blended biodiesel is a blend of biodiesel with petroleum diesel fuel so that the volume percentage of biodiesel in the blend is at least 2% (petroleum diesel blended with 2% biodiesel is B-2). B-2 and B-99 are the types of biodiesel blends with the least and most volume percentage of biodiesel fuel, respectively. B-100 is 100% bio-diesel without any petroleum diesel blended therewith.

(m) "Competition" means the vying for motor fuel sales between any 2 persons selling motor fuel in the same market area at the same level of distribution.

(n) "Competitor" means any person who vies for motor fuel sales against another person in the same market area at the same level of distribution.

(o) "Cost of selling motor fuel at retail on a per gallon basis" means a per gallon cost determined mathematically by the sum of the following 2 cost items: (1) the mathematical result derived from dividing the expense costs of selling motor fuel at retail during the 24 months preceding the date in question by the number of gallons of motor fuel sold during the 24 months preceding the date in question, plus (2) the mathematical result derived from dividing the investment costs of selling motor fuel at retail by the average monthly gallons of motor fuel sold.

(p) "Credit card and bank card related expenses" means any costs to the motor fuel retailer associated with accommodating the payment of motor fuel by way of bank and credit card transactions including, but not limited to, fixed fees, transaction fees, and network processing fees. In the event that goods and services, other than motor fuel, are sold within the same facility as motor fuel, in the event that the payment of the goods and services are also by way of bank or credit card transactions, and to the extent that any costs associated with accommodating the payment of motor fuel by way of bank or credit cards are not made separate and readily distinguishable from the costs associated with accommodating the payment of non-motor fuel items by bank or credit cards, then the portion of costs not made separate and readily distinguishable that should be allocated as motor fuel related costs shall be determined mathematically as follows: total bank card and credit card related costs incurred by the retailer for the applicable retail facility, multiplied by the total dollars associated with motor fuel purchases paid by bank and credit cards at the retail facility, divided by the total dollars associated with total purchases paid by bank and credit cards at the facility.

(q) "Credit carrying and handling costs of the motor fuel retailer" means those costs incurred by the motor fuel retailer in providing its own credit to its customers on the sale of motor fuel including, but not necessarily limited to, the cost of tying up money, as well as billing and bad debts expenses, but excluding credit card and bank card related expenses. Because the costs can vary from time to time and from retailer to retailer, from time to time (due to fluctuating interest rates, due to fluctuations in the economy, and other factors not within the control of the motor fuel retailer), and because the costs may be very difficult to precisely calculate, the costs, for purposes of this Act, shall be deemed to equal the lowest rate available to the motor fuel retailer for the processing of general bank cards (as opposed to any bank cards that are co-branded or sponsored by the brand of the motor fuel retailer), whether or not the motor fuel retailer is utilizing the lowest priced bank card processor available to the retailer. To the extent that a motor fuel retailer is unable to provide information regarding the lowest priced bank card processor available to the retailer, then the credit carrying and handling costs of the motor fuel retailer shall be presumed to be 2% of the motor fuel sale.

(r) "Dedicated supplier" means a motor fuel supplier of a motor fuel retailer (for the retail facility in question) to which the retailer is contractually committed at the time of the motor fuel purchase by the retailer from the retailer's supplier (for the retail facility in question).

(s) "Department of Agriculture" and "Department" means the Department of Agriculture of the State of Illinois.

(t) "Department of Revenue" means the Department of Revenue of the State of Illinois.

(u) "Depreciation allowance on fuel equipment" means, on a monthly basis, the original acquisition and installation cost value in all installed fuel equipment (including, but not limited to, fuel pumps, fuel dispensers, fuel tanks, fuel piping, fuel tank gauge systems, fuel controllers, credit card acceptance devices on the fuel dispensers, fuel distribution boxes, pump access modules, and fuel related signage), divided by a factor of 180 months.

(v) "Depreciation allowance on fuel improvements" means, on a monthly basis, the original cost value of all fuel improvements (including, but not limited to, fuel canopy, fuel canopy fixtures, fuel canopy and fuel canopy breezeway fixtures, pavement above the underground storage tanks and piping, pavement below the fuel canopy and canopy breezeway, fuel islands, and fuel related electrical conduit and wiring, fuel kiosk, and that portion of any other building where motor fuel transactions are accommodated), divided by a factor of 240 months.

(w) "Diesel" means motor fuel commonly classified and labeled as diesel, which is derived largely from petroleum hydrocarbons. "Diesel", under this Act, shall also include bio-fuels when such serve as a fuel-source in diesel-type motor vehicle engines including, but not necessarily limited to, bio-diesel.

(x) "Direct labor costs" means the wages and payroll taxes associated with those personnel directly involved in the sale, delivery, or transfer of motor fuel, including maintenance on motor fuel facilities. Direct labor costs also include workman's compensation, unemployment insurance, imputed health insurance costs, and other human resources costs directly related to personnel, excluding actual health insurance costs. In the event that personnel directly involved in the sale, delivery, or transfer of motor fuel from one retail facility also are directly involved in the sale, delivery, or transfer of motor fuel from one or more other retail facilities, and to the extent that direct labor costs for one facility are not separate and readily distinguishable from the direct labor costs of another facility, then the portion of costs not made separate and readily distinguishable that should be allocated as direct labor costs for a given facility shall be determined mathematically as follows: total non-distinguishable direct labor costs multiplied by the total sales dollars at the given retail facility, divided by the total sales dollars of all retail facilities for whom the direct labor costs are incurred. In the further or other event that goods and services, other than motor fuel, are sold within the same facility as motor fuel, in the event that the personnel directly involved in the sale, delivery, or transfer of motor fuel are also involved in the sale or delivery of the other goods and services, and to the extent that the personnel costs associated with motor fuel are not separate and readily distinguishable from the personnel costs associated with non-motor fuel sales or service delivery, or both, then the portion of costs not made separate and readily distinguishable that should be allocated as motor fuel related costs shall be determined mathematically as follows: total non-distinguishable direct labor costs for the retail facility multiplied by the total motor fuel sales dollars at the retail facility, divided by the total sales dollars of all products and services (motor fuels sales and non-motor fuel sales) at the retail facility. "Direct labor costs" do not include credit carrying and handling costs of the motor fuel retailer.

(y) "Disaster" has the meaning given in Section 4 of the Illinois Emergency Management Agency Act.

(z) "E-85" means a fuel blend that meets the American Society for Testing and Materials standard specification 5798-99 for fuel ethanol, nominally consisting of one of the following a) 85% ethanol and 15% hydrocarbon gasoline (1) typical blend ratio in warm weather months), (2) 70% ethanol and 30% hydrocarbon gasoline (a typical blend ratio in some areas in cold weather months), or (3) some blend ratio between the foregoing (when transitioning from one blend ratio to another). "E-85", or "alternative E-85", shall consist of a blend containing less than 70% fuel ethanol, but equal to or greater than 20% fuel ethanol, for use in automotive spark engines, with the remainder of the blend being hydrocarbon gasoline, when and to the extent that a lesser blend is permitted or prescribed by the Department of Agriculture as provided for in this Act.

(aa) "Expense costs of selling motor fuel at retail" means the mathematical sum obtained by adding the following costs associated with the retailing of motor fuel at a given retail facility: direct labor, plus indirect labor costs, plus credit card and bank card related expenses, plus credit carrying and handling costs of the motor fuel retailer, plus utilities expenses, plus property taxes, plus insurance expenses, plus maintenance expenses, plus supplies expenses, plus telecommunications expenses, plus inventory losses, plus regulatory compliance costs. "Expense costs of selling motor fuel at retail" does not include interest on borrowed capital, dividends paid on equity capital, advertising expenses, actual health insurance costs, life insurance costs, or leasing costs (since a substitute for leasing costs is provided by investment costs of selling motor fuel as defined herein).

(bb) "Extraordinary costs of selling motor fuel" means costs other than those customarily incurred in the sale of motor fuel at retail, but does not include expense costs of selling motor fuel at retail, laid-in cost of motor fuel, investment costs of selling motor fuel at retail, interest on borrowed capital, dividends paid on equity capital, advertising expenses, actual health insurance costs, or life insurance costs. While it is difficult to anticipate what these costs may include, and while what follows is not intended to limit the range of what may be an extraordinary cost, one example would be the costs associated with the placement and running (whether by lease, purchase, or otherwise) of an electric generator to accommodate motor fuel sales during power outages. Another example would be costs associated with financial penalties owed or reasonably anticipated to be owed to a dedicated supplier as a result of a purchase in excess of a supplier-imposed allocation or below a supplier-imposed minimum purchase quantity.

(cc) "Flexible fuel vehicle" means any vehicle equipped to operate on fuel blended or not blended with ethanol alcohol, and, if blended with ethanol alcohol, then with any blend above 0% and up to 85% ethanol.

(dd) "Fuel equipment" includes, but is not necessarily limited to, fuel pumps, fuel dispensers, fuel tanks, fuel piping, fuel tank gauge systems, fuel controllers, credit card acceptance devices on the fuel dispensers, fuel distribution boxes, pump access modules, and fuel related signage.

(ee) "Fuel improvements" include, but are not necessarily limited to, fuel canopy, fuel canopy fixtures, fuel canopy and fuel canopy breezeway fixtures, pavement above the underground storage tanks and piping, pavement below the fuel canopy and canopy breezeway, fuel islands, fuel-related electrical conduit and wiring, fuel kiosk, and that portion of any other building where motor fuel transactions are accommodated.

(ff) "Gasoline" means motor fuel commonly classified and labeled as gasoline, which is derived largely from petroleum hydrocarbons. "Gasoline" shall also include bio-fuels when such serve individually or in combination with fuel as a fuel-source in gasoline-type motor vehicle engines including, but not necessarily limited to, fuel ethanol alcohol (whether the ethanol is derived from corn or from plant waste materials including, but not limited to, corn husks and wood pulp, the latter also known as or "cellulosic ethanol").

(gg) "Government subsidy" means any State or local governmental money disbursed to develop a facility or to develop the infrastructure contained on property of the facility, as well as any State or local government money foregone by any governmental entity as a result of the development of a facility or the infrastructure of the land on which the facility is located including, but not be limited to, reduced taxes stemming from incremental tax districts and enterprise zones.

(hh) "Grade" means a specific classification of either gasoline or diesel that is common at the time among and between the majority of fuel suppliers. Examples of "grades" of gasoline include regular, mid-grade (also referred to as plus), and premium.

(ii) "Gross margin on motor fuel" means the difference between the retail price of the motor fuel and the applicable laid-in cost of motor fuel or the applicable laid-in cost of motor fuel from a dedicated supplier, whichever is applicable.

(jj) "Imputed health insurance costs" means 75% of the most recent reported average premiums cost for employer-sponsored health insurance coverage, as published by the Henry J. Kaiser Family Foundation (or other authoritative source as selected by the Department), applicable to all applicable employees of the motor fuel retailer (except those that have health insurance coverage through an employer group health plan other than their retail motor fuel employer) who are working for the motor fuel retailer for 30 or more hours per work week, and who have been employed by the motor fuel retailer for at least 90 consecutive days working 30 or more hours per work week.

(kk) "Inadvertent incident" means that the incident can be shown to be not deliberate, but, rather, accidental. Examples of accidental include, but are not necessarily limited to, errors or inadvertent omissions on the part of the retail personnel who change the retail prices, failure on the part of clerical personnel to accurately enter retail or wholesale pricing data into a data processing system, and the failure to include, in computing laid-in cost of motor fuel, the wholesale pricing of a new supplier due to a lack of awareness of the new supplier. Mere failure to perform the computations necessary to ensure compliance with this Act shall not be deemed accidental. Even if an incident is an inadvertent incident, an alleged violator cannot rely on the inadvertency of the incident as an excuse under this Act (whether in response to a complaint filed with the Department of Agriculture or in response to any lawsuit filed in court) more than 3 times during any 18-month period for the same retail facility, unless each such multiple inadvertent incident occurs prior to the alleged violator's receipt of the initial notice of the filing of a below-cost-selling complaint against the alleged violator, as provided in subsection (a) of Section 40 of this Act, and the fifth day following the alleged violator's receipt of the initial notice, in which case, the number of inadvertent incidents shall not be limited.

(ll) "Indirect labor costs" means labor costs other than direct labor costs including, but not necessarily limited to, supervisory, bookkeeping, and administrative personnel who are indirectly related to the sale, delivery, transfer, or accounting of motor fuel, whether or not the personnel are situated at the motor fuel facility. "Indirect labor costs" also include workman's compensation, unemployment insurance, imputed health insurance costs, and other human resources costs directly related to such personnel, excluding actual health insurance costs. In the event that personnel indirectly involved in the sale, delivery, or transfer of motor fuel from one retail facility also are indirectly involved in the sale, delivery, or transfer of motor fuel from one or more other retail facilities, and to the extent that indirect labor costs for one facility are not separate and readily distinguishable from the indirect labor costs of another facility, then the portion of costs not made separate and readily distinguishable that should be allocated as indirect labor costs for a given facility shall be determined mathematically as follows: total non-distinguishable indirect labor costs multiplied by the total sales dollars at the given retail facility, divided by the total sales dollars of all retail facilities for whom the indirect labor costs are incurred. In the further or other event that goods and services, other than motor fuel, are sold within the same facility as motor fuel, and in the event that the personnel indirectly involved in the sale, delivery, or transfer of motor fuel at the facility are also indirectly involved in the sale or operations of such other goods and services, and to the extent that the personnel costs associated with motor fuel are not separate and readily distinguishable from the personnel costs associated with non-motor fuel sales or operational activities, then the portion of costs not made separate and readily distinguishable that should be allocated as motor fuel related costs for that facility shall be determined mathematically as follows: total non-distinguishable indirect labor costs for that facility (as determined above if the indirect labor costs are attributable to more than one facility) multiplied by the total motor fuel sales dollars at that facility, divided by the total sales dollars of all products and services (motor fuels sales and non-motor fuel sales) at the facility. "Indirect labor costs" do not include credit carrying and handling costs of the motor fuel retailer.

(mm) "Insurance expenses" means all insurance costs associated with the retail sale of motor fuel at a given retail facility including liability insurance, property insurance, employer's liability, costs, and expenses on direct and indirect labor. "Insurance expenses" does not include actual health insurance costs, imputed health insurance costs, life insurance costs, or the labor related insurance expenses of workman's compensation and unemployment compensation.

(nn) "Inventory losses" means losses due to breakage, damage, shrink, or theft.

(oo) "Investment costs of selling motor fuel at retail" means a monthly cost obtained by adding land holding costs, plus land development costs, plus depreciation allowance on fuel improvements, plus depreciation allowance on fuel equipment.

(pp) "Isolated incident" as it relates to selling below cost means that the occurrence was exceptional and not repeated, as evidenced by the fact that the motor fuel retailer, prior to this occurrence, had never previously been determined by the Department to engage in a below-cost sale within 18 months immediately preceding the occurrence, for the facility in question. Even if an incident is determined to be exceptional and not repeated, and even if the motor fuel retailer had not been determined to have engaged in a below-cost sale within the prior 18 months, the incident shall not be considered to be an "isolated incident" as it relates to below-cost selling if the Department of Agriculture had provided notice to the retailer about a complaint within 18 months immediately preceding the incident, for the facility in question, that, after investigation by the Department of Agriculture of that prior complaint, the motor fuel retailer was determined to have been selling below cost. "Isolated incident" as it relates to motor fuel price gouging means that the occurrence was exceptional and not repeated, as evidenced by the fact that the motor fuel retailer, prior to this occurrence, had never previously been determined by the Department to engage in motor fuel price gouging within 18 months immediately preceding the occurrence, for the facility in question.

(qq) "Labor costs" means direct labor costs plus indirect labor costs.

(rr) "Laid-in cost of motor fuel" means the regional benchmark pricing service average price per gallon on the day preceding the sale in question for the gasoline grade or blend being sold or for the diesel fuel grade or blend being sold, whichever is applicable, plus all applicable taxes and governmentally-imposed fees applicable to the motor fuel purchase by or delivery to the retailer, plus transportation charges to transport the motor fuel from the applicable wholesale or supply point to the retail point, plus one quarter of $0.01 per gallon (for ordering and other inventory management costs associated with motor fuel) plus sales taxes and other taxes and fees imposed by the government on the sale of the fuel at the pump.

(ss) "Laid-in cost of motor fuel originating from dedicated supplier" means the actual price per gallon charged to the retailer by the retailer's dedicated supplier on the day preceding the sale in question for the gasoline grade or blend being sold or for diesel fuel grade or blend being sold, whichever is applicable, plus all applicable taxes and governmentally imposed fees applicable to the motor fuel purchase by or delivery to the retailer, plus transportation charges to transport the motor fuel from the applicable wholesale or supply point to the retail point, plus one quarter of $0.01 per gallon (for ordering and other inventory management costs associated with motor fuel), plus sales taxes and other taxes and fees imposed by the government on the sale of the fuel at the pump.

(tt) "Land holding costs" means, on a monthly basis, a 7% return on the market value of the land occupied by motor fuel facilities (motor fuel facilities consisting of motor fuel improvements and equipment). Since motor fuel facilities will not always occupy all of the land at a site where motor fuel sales take place in conjunction with the sales of other goods and services, the portion of the land that the motor fueling facilities occupy, including the area of driveway entrances and driveways utilized by motor fueling motorists in their ingress to and egress from motor fueling facilities, shall be measured, in square feet, and that area shall be divided by the total area, in square feet, of the entire developed area of land to determine the percentage of the land occupied by motor fuel facilities. That percentage (100% in the case of a stand-alone motor fuel facility) shall be multiplied by the total market value of the land to determine the value of the land attributable to the motor fuel facility. That proportional value shall then be multiplied by a factor of 7%, then divided by a factor of 12, to determine the land holding costs per month for the motor fuel facility. In the event that the land is leased, not owned, by the motor fuel retailer, and in the further event that the monthly leasing costs, for the portion of the land occupied by the motor fueling facilities, is greater than the proportional value of the land multiplied by a factor of 7%, divided by a factor of 12, then the land holding costs for the motor fuel facility shall be equal to the monthly leasing costs attributable to the land portion of the motor fuel facility.

(uu) "Land development costs" means, on a monthly basis, a 7% return on the costs of developing land occupied by motor fuel facilities (motor fuel facilities consisting of motor fuel improvements and equipment). "Land development costs" include, but are not limited to, paving, storm sewer, and underground utilities costs, excluding any costs of motor fuel improvements and equipment. In the event that motor fuel facilities do not occupy all of the land development at a site where motor fuel sales take place in conjunction with sales of other goods and services, the portion of the costs attributable to developing the land occupied by motor fuel facilities shall be determined mathematically as follows: total costs of developing the land, multiplied by the area, in square feet, occupied by the motor fuel facility (motor fuel facility including fuel improvements and fuel equipment, as well as the area of driveway entrances and driveways utilized by motor fueling motorists in their ingress to and egress from motor fueling facilities), divided by the total area, in square feet, of the entire developed area of land. That percentage (100% in the case of a stand-alone motor fuel facility) shall be multiplied by the total costs of developing the land occupied by motor fuel facilities to determine the value of developed land attributable to the motor fuel facility. That proportional value shall then be multiplied by a factor of 7%, then divided by a factor of 12, to determine the land development costs per month for the motor fuel facility. In the event that the land development is leased, not owned, by the motor fuel retailer, and in the further event that the monthly leasing costs, for the portion of the land development occupied by the motor fueling facilities, is greater than the proportional value of the land multiplied by a factor of 7%, divided by a factor of 12, then the land development costs for the motor fuel facility shall be equal to the monthly leasing costs attributable to land development portion of the motor fuel facility.

(vv) "Leasing costs" means lease expenses on land, land improvements, fuel improvements, and fuel equipment. In the event that motor fuel facilities do not comprise all of the land development at a site where motor fuel sales take place in conjunction with the sales of other goods and services, the portion of the lease expenses attributable to the motor fuel facility shall be determined mathematically as follows: total lease costs of the land, land improvements, fuel improvements, and fuel equipment multiplied by the area, in square feet, occupied the motor fuel facility (including fuel improvements and fuel equipment, as well as the area of driveway entrances and driveways utilized by motor fueling motorists in their ingress to and egress from motor fueling facilities), divided by the total area, in square feet, of the entire leased area of land.

(ww) "Life insurance costs" means those costs associated with providing life insurance on personnel related to the applicable retail motor fuel facility.

(xx) "Maintenance expenses" means the maintenance costs associated with a given motor fuel facility, including fuel improvements, fuel equipment, and land improvements. In the event that motor fuel facilities do not comprise all of the land at a site where motor fuel sales take place in conjunction with the sales of other goods and services, the proportional cost of maintenance on the land and land improvements allocable to motor fuel retailing shall be determined mathematically as follows: total maintenance costs on the land and on the land improvements, multiplied by the area, in square feet, occupied by the motor fuel facility (including fuel improvements and fuel equipment, as well as the area of driveway entrances and driveways utilized by motor fueling motorists in their ingress to and egress from motor fueling facilities), divided by the total area, in square feet, of the entire developed area of land.

(yy) "Market area" means, absent a preponderance of the evidence to the contrary, a distance of 4 miles by road in non-urban areas; a distance of 2.5 miles by road in a standard metropolitan statistical area; and a distance of 60 miles by road for truck stop outlets with more than 60% of fuel sales to vehicles with gross weight of over 50,000 lbs.

(zz) "Market value of land" means the appraised valuation of the land occupied by a retail motor fueling facility, such appraisal to have been given by a certified, MAI appraiser sometime within a 48-month period prior to the date or within an 18-month period following the date that the appraisal is used to document land holding costs under this Act.

(aaa) "Motor fuel" means those products upon which the state excise tax levied, or defined, in the Motor Fuel Tax Law, as amended, is imposed.

(bbb) "Oil Price Information Service" (OPIS) means the independent reporting service, located in the state of Maryland, providing daily reports of prices of refined motor fuel, including the gasoline grades or blends, being sold as well as the diesel fuel grades or blends being sold, that is a widely accepted as an independent fuel price benchmark for supply.

(ccc) "Person" means any individual, club, firm, association, organization, partnership, business, trust, joint-stock company, company, corporation, or other entity, legal or otherwise.

(ddd) "Price gouging of motor fuel", "price gouging", or "motor fuel price gouging" means the self-service sale of gasoline grade or blend or diesel fuel grade or blend at retail in this State at a price greater than the greater of the following: (1) the regulated maximum retail cost price of motor fuel sold at the time the motor fuel was sold; (2) $0.19 cents per gallon above the retailer's actual costs of selling motor fuel per gallon at the time the motor fuel was sold; or (3) $0.19 cents per gallon above the retailer's actual costs of selling motor fuel per gallon from a dedicated supplier at the time the motor fuel was sold.

(eee) "Property taxes" means taxes on land, real estate, improvements, and personal property.

(fff) "Regional benchmark pricing service average price" for an applicable retail motor fuel station means the average price of all wholesale rack or terminal suppliers actively supplying and offering for sale motor fuel within a 70-mile radius of the retail motor fuel station being supplied, excluding, however, the one highest priced terminal supplier within the 70-mile radius. Notwithstanding the foregoing, in the event that there are not at least 3 wholesale rack suppliers actively supplying and offering for sale motor fuel within a 70-mile radius of a motor fuel station being supplied, the radius shall be extended until there are at least 3 wholesale rack suppliers.

(ggg) "Regulated maximum retail cost price of motor fuel sold" or "regulated maximum price" relates to motor fuel sales at self-service, and means the greater of: (1) the regulated minimum retail cost price of motor fuel sold plus $0.19 cents per gallon at the time the motor fuel was sold; (2) the regulated minimum retail cost price of motor fuel sold from a dedicated supplier plus $0.19 cents per gallon at the time the motor fuel was sold; (3) the regulated minimum retail cost price of motor fuel sold plus $0.19 cents per gallon at the time the motor fuel was sold plus any extraordinary costs (on a per gallon basis) incurred by the motor fuel retailer at or for the time the motor fuel was sold; or (4) the regulated minimum retail cost price of motor fuel sold from a dedicated supplier plus $0.19 cents per gallon plus any extraordinary costs (on a per gallon basis) incurred by the motor fuel retailer at or for the time the motor fuel was sold.

(hhh) "Regulated minimum retail cost price of motor fuel sold" or "regulated minimum price" means the lowest pump price that includes a positive gross margin to the retailer of 7% over the retailer's laid-in cost of motor fuel for the time in question. The "regulated minimum retail cost price of motor fuel sold" is the quotient of the applicable laid-in cost of motor fuel divided by 0.94 (i.e. the sum of 1.00 minus the minimum margin of 7%, or 1.00 minus .07 = 0.93). As an example, if the laid-in cost of motor fuel (as it relates to motor fuel being gasoline) on a given day is $1.738, the regulated minimum retail cost price of motor fuel sold for that day is $1.849, calculated as follows: $1.738 (laid-in cost divided by 0.94 (gross margin factor of 6%), equals $1.849. Since laid-in cost of motor fuel includes taxes and governmentally-imposed fees applicable to the motor fuel purchase by or delivery to the retailer (including, at the time of passage of this Act, federal imposed motor fuel taxes and fees), as well as taxes and fees imposed on the sale of motor fuel at the pump (the taxes and fees in this latter category are, at the time of passage of this Act, Illinois State sales tax of 6.25%, State motor fuel tax on gasoline of $0.19 per gallon, environmental impact fee of $0.008 per gallon, and the Illinois underground storage tank fee of $0.003 per gallon), and since the taxes and fees imposed on the sale of motor fuel at the pump are both percentage taxes and flat taxes or fees (Illinois State sales tax being a percentage tax and the remainder, at the time of passage of this Act, being flat taxes and fees) and since the State, at the time of passage of this Act, imposes sales tax on only 2 of the 3 flat taxes (at the time of passage of this Act, Illinois imposes sales tax on the environmental impact fee and the Illinois underground storage tank fee, but does not impose sales tax on the State motor fuel tax) the following is provided as an additional aid in calculating regulated minimum price.

The following is provided as an aid only and the following does not show municipal taxes imposed on the sale of motor fuel that would need to be included to the extent applicable. In the event that, after the date of passage of this Act, there are changes in the amount, structure, calculation, time of imposition, or type of taxes or fees imposed on the delivery of an applicable grade or blend of motor fuel to a retailer, on the purchase of and applicable grade or blend of motor fuel by a retailer, or on the sale of and applicable grade or blend of motor fuel at the pump, the "regulated minimum price" under this Act shall remain the lowest pump price that includes a positive gross margin to the retailer of 7% over the applicable laid-in cost of motor fuel, as defined in this Act, for the time in question. Assume $1.446 is the retailer's applicable laid-in cost of motor fuel as defined in this Act, excluding taxes and fees imposed on the sale of motor fuel at the pump. Further assume, the motor fuel in question is gasoline that is not blended with any other gasoline grade nor with ethanol, and that taxes and fees imposed on the sale of motor fuel at the pump are: State motor fuel tax of $0.19 per gallon, environmental impact fee of $0.008 per gallon, underground storage tank fee of $0.003 per gallon, and State sales tax of 6.25%. Further assume that sales tax is levied on the entire sale price, except the State motor fuel tax on gasoline of $0.19 per gallon. The "regulated minimum price" (for this grade of gasoline not blended with ethanol) must include all taxes, plus a 7% gross margin to the retailer. The "regulated minimum price" is calculated as follows: (step 1) laid-in cost of motor fuel, exclusive of State sales tax, is $1.647 ($1.446 + $0.19 + $0.008 + $0.003 = $1.647); (step 2) laid-in cost of motor fuel, exclusive of State sales tax, plus a 6% gross margin, equals $1.7710 ($1.647 divided by 0.93 = $1.7710 [rounded to the fourth decimal]); (step 3) sales tax, on the appropriate taxable amount, equals $0.0911 (0.0625 times $1.457 [the sum of $1.446 + $0.008 + $0.003 is $1.457] = $0.0911 [rounded to the fourth decimal]); (step 4) sales tax, plus a 7% gross margin equals, $0.0979 ($0.0911 divided by 0.93 = $0.0979 [rounded to the fourth decimal]); and (step 5) the regulated minimum price is $1.8689 ($1.7710 + $0.0979 = $1.8689).

Regarding taxation, it is important to note that the actual sales tax on the retail sale of motor fuel will be slightly greater than the amount of sales tax calculated from cost in the example above, given that the sales tax is actually computed from the final retail sales price, which includes the margin that had been added atop the taxes, and, as a result, the gross margin to the retailer will be slightly less than the a perfect 7% on the sale. For example, presuming the actual retail sales price was equal to the regulated minimum price of $1.8689 as computed above, the actual sales tax on the sale shall be $0.0988 rather than the sales tax amount computed forward from cost of $0.911, with the monetary difference between the actual sales tax and the computed sales tax being how much less than what the retailer would have grossed had the margin to the retailer been a perfect 7% on the sale. The actual sales tax of $0.0988 on the sale is calculated in the following steps: (step 1) retail sales price of motor fuel ($1.8689) less the state motor fuel tax that is not subject to sales tax ($0.19), equals the portion of the sale price of motor fuel that is sales taxable ($1.6789); (step 2) the portion of the sales price that is sales taxable ($1.6789) divided by one plus the assumed tax rate of 6.25% (1.0625), equals the sale price less State motor fuel tax and sales tax ($1.5801); (step 3) the portion of the sales price that is sales taxable ($1.6789) less the foregoing computed sales price less State motor fuel tax and sales tax ($1.5801), equals the amount of actual sales tax on the sale ($0.0988); and (step 4) the monetary margin earned by the retailer shall be less in amount what the retailer would have grossed had the margin to the retailer been a perfect 7%, by subtracting the calculated sales tax when it is computed forward from cost ($0.0911) from the actual sales tax on the sale when computing backward from the actual sale price ($0.0988), or equal to or approximately equal to $0.0077. If, in the above example, the motor fuel had been a grade being blended with another grade or with ethanol, the result could have been different, given that the laid-in cost could have differed (due to the proportionate inclusion of either the other grade or of ethanol), and the tax calculations would have been different (due to taxation on ethanol blended fuel being different than non-ethanol blended gasoline). Likewise, had the motor fuel in the above example been diesel or blended biodiesel, the calculations would have been different, given that the taxation on diesel and blended biodiesel vary from that of gasoline. It is also important to note that retailers shall be allowed to pass on the benefit of any tax exemptions applicable to a customer who is legally exempt from any and all taxes otherwise applicable on the retail sale of motor fuel.

(iii) "Regulated minimum retail cost price of motor fuel sold from a dedicated supplier" or "regulated minimum price from a dedicated supplier" is calculated the same as the regulated minimum retail cost price of motor fuel sold, except that laid-in cost of motor fuel is replaced by laid-in cost of motor fuel originating from dedicated supplier.

(jjj) "Regulated period for price restoration" means every Wednesday, during the period of time from 8:30 a.m. to 11:30 a.m., whenever the retailer's actual price of motor fuel is less than the retailer's regulated minimum retail cost price of motor fuel sold.

(kkk) "Regulatory compliance costs" means those costs incurred by the motor fuel retailer to comply with regulations governing the storage and sale of motor fuel at a retail facility, including, but not limited to, costs associated with meter accuracy, leak detection of tanks or piping, and corrosion protection of tanks or piping, but only to the extent that the costs are not already included in depreciation allowance on fuel equipment.

(lll) "Relevant geographic market" means the geographic area of effective competition.

(mmm) "Retailer" means a person engaged in the business of selling motor fuel to a member of the motoring public for consumption.

(nnn) "Sale" or "sell" means a transfer for money or other value or combination, exchange, barter, gift, sale, offer for sale, advertisement for sale, soliciting an order, and distribution in any manner or by any means whatsoever, of motor fuel, including a transfer of motor fuel by a person to another person, or by a person to that person, to a member of that person, or to an affiliate of that person.

(ooo) "Supply point" or "terminal facility" means any inland, waterfront, or offshore appurtenance on land used for the purpose of storing, handling, or transferring motor fuel, but does not include wholesale bulk storage facilities owned or operated by a retailer, unless other retailers are also supplied from the wholesale bulk storage facilities.

(ppp) "Supplies expenses" means the costs of those items consumed as part of a motor fuel facility operation that are not sold to consumers or are not capitalized as an asset. Supplies include, but are not necessarily limited to, windshield wash paper towels, windshield wash solvent, squeegees, driveway oil absorbent, funnels to assist customers in adding fluids to vehicles, cleaning agents and materials (for floors, counters, restrooms, food service equipment, etc.), mops, brooms, printed forms, office copy paper, tape, paper clips, pens, pencils, fuel, and HVAC filters.

(qqq) "Telecommunications expenses" means all communications expenses incurred to accommodate the sale of motor fuel at retail including, but not necessarily limited to, telephone line and use expenses, internet access fees, satellite service expenses, cable fees, and other wire and wireless communications expenses. In the event that goods and services, other than motor fuel, are sold within the same facility as motor fuel, in the event that the telecommunications expenses are shared to accommodate sales and operations associated with the other goods and services, and to the extent that the telecommunications costs associated with motor fuel are not separate and readily distinguishable from the telecommunications costs associated with non-motor fuel sales or operational activities, then the portion of costs not made separate and readily distinguishable that should be allocated as "telecommunications expenses" for the motor fuel facility shall be determined mathematically as follows: total telecommunications costs for the facility multiplied by the total motor fuel sales dollars at the facility, divided by the total sales dollars of all products and services (motor fuels sales and non-motor fuel sales at the facility).

(rrr) "Transportation charges" shall be defined as a rate per gallon not to exceed 1.10 times the average computed independent commercial posted tariff (common carrier) rates for delivery of motor fuel, from the relevant supply point to the relevant destination point, as a single account, in effect at time of delivery, based on the rates of at least 2 eligible carriers.

(sss) "Utilities expenses" means all electrical, water, sewer, natural gas, fuel oil, propane, and other energy and utilities expenses incurred in the sale of motor fuel at retail. In the event that goods and services, other than motor fuel, are sold within the same facility as motor fuel, in the event that the utilities expenses are shared to accommodate sales and operations associated with the other goods and services, and to the extent that the utilities expenses associated with motor fuel are not separate and readily distinguishable from the utilities costs associated with non-motor fuel sales or operational activities, then the portion of costs not made separate and readily distinguishable that should be allocated as motor fuel related utilities costs shall be determined mathematically as follows: total utilities costs at the retail facility multiplied by the total motor fuel sales dollars at the retail facility, divided by the total sales dollars of all products and services (motor fuels sales and non-motor fuel sales at the retail facility).

(ttt) "Wholesale rack terminal supplier" means any entity that sells motor fuel, on a wholesale basis, to multiple, separate retailers; for a retailer to be considered separate, the retailer must not be an affiliate of the wholesale rack terminal supplier, nor an affiliate of a fellow retailer purchasing fuel from a terminal facility.

(uuu) "Wholesaler" means a person engaged in the business of making sales of motor fuel at wholesale to a reseller of motor fuel.

Section 15. Illegal motor fuel price gouging.

(a) It is a violation of this Act to engage in motor fuel price gouging in response to the occurrence of a national disaster or State emergency, except where the sale is determined to mutually meet the criteria for both an isolated incident and an inadvertent incident.

(b) Motor fuel price gouging that occurs within the 7 days immediately following the occurrence of a disaster or emergency is rebuttably presumed to have been in response to the occurrence of the disaster or emergency.

Section 20. Illegal sale below cost; exceptions. It is a violation of this Act to sell, offer to sell, or advertise for sale motor fuel at a retail price that would constitute a below-cost sale, except:

(1) in response to the equally low price of a competitor within the market area (except during regulated periods for price restoration), provided that detailed records are kept indicating the date and time of day of each change in the sale price of motor fuel and the identity of the person who recorded the price change, the name and address of each competitor, the price of each competitor that was met, and the price of each competitor each day that the price remains below cost, to show that the retailer was responding to the equally low prices of one or more competitors as a follower, not a leader in the below-cost selling, and that the retailer made efforts to support restoration of pricing to a level at or above cost during the regulated period for price restoration, or at other times within a period of 24 hours after at least 50% of competing retailers in the market area have made the effort to restore motor fuel prices to a level that does not represent a below-cost sale;

(2) during a publicized grand opening to introduce a new or remodeled business not to exceed 72 consecutive hours in length once every 3 years;

(3) during and in conjunction with the introduction period of a new or improved motor fuel product, where coupon discounts shall be permitted of up to $2 off on the customer purchase of 10 or more gallons of the new or improved motor fuel, provided that the redemptive acceptance of the permitted coupons is limited in time to one calendar month within any given calendar year;

(4) during a bona fide clearance sale or final business liquidation sale, not exceeding one week in length, for the purpose of discontinuing trade in the motor fuel. This exception shall not be considered as the price of a competitor and shall not be used as a basis for establishing a below-cost sale by another retailer;

(5) during a sale of motor fuel by a fiduciary or other officer under the order or direction of any court from a good faith effort to dispose of a grade, brand, or blend of motor fuel. This exception shall not be considered as the price of a competitor and shall not be used as a basis for establishing a below-cost sale by another retailer;

(6) where motor fuel is advertised, offered for sale, or sold as imperfect or damaged, and the advertising, offer of sale, or sale shall state the reason therefor and the quantity of the motor fuel advertised, offered for sale, or to be sold; or

(7) where the sale is both an isolated incident and an inadvertent incident as defined in this Act.

Section 25. Rebates, discounts, gifts, premiums, promotional items, and other concessions subtracted from retail price.

(a) Except as provided in this Section, the payment or allowance of rebates, refunds, gifts, premiums, promotional items, commissions, discounts or other concessions of any kind whatsoever in connection with the sale of or payment for motor fuel at retail (hereinafter referred to as "concession" or "concessions"), whether in the form of money, coupons, discounts, or the value of items, articles, premiums, or commodities gifted or price-subsidized in connection with the sale of or payment for motor fuel at retail, shall, for purposes of this Act, be mathematically subtracted from the retail fuel price to determine whether a retailer is selling below cost, whether or not the concessions are actually subtracted from the retail fuel price at the time or place of the sale, and whether or not the concessions are offered or given by the retailer or any by another person.

(b) Concessions offered, given, issued, distributed, provided, or paid in connection with the sale of or payment for motor fuel at retail, up to a total concession or concessions not to exceed 5% of the total motor fuel sale, shall not be subtracted from the retail fuel price in determining whether the retailer is selling below cost if: (1) the concession or concessions are not given, issued, distributed, provided, or paid by the motor fuel retailer or an affiliate of the motor fuel retailer; (2) the cost of the concession or concessions are borne by a person other than the motor fuel retailer or an affiliate of the motor fuel retailer; and (3) the concession or concessions do not reduce the pump price and do not reduce the net amount paid for the motor fuel at the time and place of sale, but, rather, the concession or concessions are provided or applied separate from the time and place of sale of motor fuel. A motor fuel retailer shall not be deemed to bear the cost of a concession by the motor fuel retailer's agreement to pay or payment of a standard bank, credit, or payment card processing fee of less than or equal to 3% of the motor fuel sale plus $0.10 per card transaction (hereinafter referred to as "allowable card transaction processing fee"), provided that the allowable card transaction processing fee includes any costs borne by the retailer in connection with the use of the bank, credit, or payment card to pay for the motor fuel sale. In addition, a motor fuel retailer shall not be deemed to bear the cost of a concession by the motor fuel retailer's agreement to pay or payment of a bank, credit, or payment card having a processing fee in excess of the allowable card transaction processing fee if the retailer can demonstrate, to the satisfaction of the Department of Agriculture, following consultation with and input of the Motor Fuel Cost and Bio-Fuels Blend Ratio Review Board, that the processing fee paid by the retailer in excess of the allowable card transaction processing fee is not due or related to the concession, but rather is the standard processing fee of the particular bank, credit, or payment card provider to which the fee is paid.

(c) If a concession meets all the requirements of subsection (b) of this Section for not being subtracted from the motor fuel retail price in determining whether the motor fuel retailer is selling below cost, except that the concession, or the sum of all concessions, exceeds 5% of the motor fuel sale ("excessive concession or concessions"), that portion of the concession or concessions that exceeds 5% of the sale shall be subtracted from the retail motor fuel price in determining whether the motor fuel retailer is selling below cost, unless all of the following additional conditions are met: (1) the excessive concession or concessions were offered, given, issued, distributed, provided, or paid by a person other than the motor fuel retailer or an affiliate of the motor fuel retailer and without the advance knowledge or consent and beyond the reasonable control of the motor fuel retailer; (2) within 30 days after the motor fuel retailer first knows or reasonably should know about the excessive concession or concessions, the motor fuel retailer delivers a written request to the person offering, giving, issuing, distributing, providing or paying the excessive concession or concessions that such person discontinue any and all excessive concessions; and (3) if, after 90 days following the motor fuel retailer's written request that the person discontinue the excessive concession or concessions, the motor fuel retailer knows or reasonably should know that the person has not discontinued the excessive concession or concessions, the motor fuel retailer shall take all reasonable and necessary actions that the motor fuel retailer can, in good faith, take to discontinue any involvement in, participation in, or facilitation of the excessive concession or concessions by the motor fuel retailer. If the motor fuel retailer's only involvement in the excessive concession or concessions is the retailer's acceptance of a particular bank, credit, or other payment card as payment for motor fuel sales, the retailer shall stop accepting that particular bank, credit, or other payment card as payment for motor fuel sales, unless the retailer cannot stop accepting the particular card without being required to stop accepting cards of card providers that are not offering, giving, issuing, distributing, providing, or paying excessive concession or concessions, in which event the excessive concession or concessions of the particular card provider shall not be subtracted from the retail motor fuel price in determining whether the motor fuel retailer is selling below cost if the motor fuel retailer, within 120 days after the motor fuel retailer's request to the particular card provider to discontinue the excessive concession or concessions, shall send written notice to the Department of Agriculture at an address specified by the Department (i) the identity of the person offering, giving, issuing, distributing, providing or paying excessive concession or concessions, and (ii) the motor fuel retailer's inability to discriminately stop accepting the card or cards of the person offering, giving, issuing, distributing, providing, or paying the excessive concession or concessions.

Section 30. Establishment of Motor Fuel Cost and Bio-Fuels Blend Ratio Review Board.

(a) A Motor Fuel Cost and Bio-Fuels Blend Ratio Review Board shall be established to consider matters brought before the Board relating to issues of motor fuel price gouging and below-cost selling, including the selection of the entity to provide benchmark pricing services as provided for in this Act, to establish blending-ratios of bio-fuels within motor fuels sold at retail motor fuel facilities, to provide input whether an incident is an inadvertent incident, and to provide input to rules under consideration or already promulgated by the Department of Agriculture relating to this Act.

(b) The Motor Fuel Cost and Bio-Fuels Blend Ratio Review Board shall be comprised of 7 members, including: (1) the Director of Agriculture or his or her designated representative; (2) a resident of Illinois who is an active retailer of motor fuel and a member in good standing with the Illinois Petroleum Marketers Association, or its successor organization; (3) a resident of Illinois who is an active retailer of motor fuel who may or may not be a member in good standing with the Illinois Petroleum Marketers Association, or its successor organization; (4) a resident of Illinois who is an active member of the Illinois Renewable Energy Association, or its successor organization (and if there is no such association in Illinois, then a resident of Illinois who is a member of the National Renewable Fuels Association); (5) a resident of Illinois who is an active member of the Illinois Biodiesel Board, or its successor organization (if there is not such organization in Illinois, then a resident of Illinois who is a member of the National Biodiesel Board); (6) a certified managerial accountant licensed to practice public accounting in the State; and (7) a resident of the State, retired from the motor fuels retailing industry, having had a minimum of 10 years experience working in the retail motor fuel industry before retiring. Appointments to the Board shall be by the governor, with the advice and consent of at least a 51% majority of the Illinois Senate.

(c) Each member shall, upon accepting appointment to the Board, take an oath to uphold the intent and spirit of this Act. Should a member be unable or unwilling to uphold this oath or to otherwise fulfill his or her duties as a member of the Board, said member may be replaced by a new appointee, who will fulfill the remainder of the term of the replaced member.

(d) Appointments shall be for a term of 3 years. The Board shall meet and be under the direction of the Director of Agriculture, or his or her designated representative who shall serve as chairperson of the Board.

(e) The Board shall meet, at minimum, one time a year, at which time the members of the Board shall receive an annual report from the Director, or his or her designated representative, about complaints and matters relating to price gouging, below-cost selling, reports of excessive concessions, supply and demand balance and resulting implications for prescribed bio-fuels blend ratios, promulgated rules, and the activities of the Department as it relates thereto, and, at maximum, 5 times a year.

(f) The certified managerial accountant shall be compensated at a rate that is usual and customary for professional services provided by a certified managerial accountant in the State, while other non-government employee members of the Board shall be compensated at the rate of $40 per hour (the hourly rate to be increased every 3 years by a factor based on one-half the rate of increase in the consumer price index over the prior 3 year period) for time spent in meetings of the Board, whether meetings be conducted in person or by telephone conference call, with a minimum compensation payment of $100 per person per meeting, the minimum to help offset some of the outside preparation time and considerations involved prior to meetings of short duration. While members of the Board shall not be compensated for the time traveling to and from meetings, members of the Board shall be reimbursed for reasonable other travel, as well as lodging expenses, upon request, the rates of reimbursement for such expenses to not exceed those allowed of State employees. Payments relating to this Section shall be made by the Department.

Section 35. Rules governing development and maintenance of the retail infrastructure to safely accommodate motor fuels blended with bio-fuels. If it has not already done so by the effective date of this Act, the Office of the State Fire Marshal shall develop the following rules governing the infrastructure necessary to safely accommodate motor fuels blended with bio-fuels at retail motor fuel facilities:

(1) The Office of the State Fire Marshal shall research whether motor fuel blended with ethanol, in ratios varying from any ratio greater than 0% to 20% ethanol, requires any special rules to safeguard against water infiltration into storage tank systems, or to safeguard against phase-separation of ethanol and water from gasoline. If it finds that special rules are required, then the Office of the State Fire Marshal shall promulgate rules accordingly. The rules, if any, shall be written with the intent to reduce moisture or water infiltration into any underground storage tank system containing ethanol, to safeguard the motoring public from taking receipt of the portion of the phase-separated fuel containing the ethanol mixed with water that has been separated from the gasoline, and to further protect the public from incurring the higher motor fuel pricing that can occur if a motor fuel retailer is forced to recoup costs associated with disposal of the ethanol-water bonded portion of the fuel affected by phase separation (hereinafter referred to as "rules to safeguard against water infiltration and phase-separation"). The rules to safeguard against water infiltration and phase-separation may take into consideration factors that will vary on a facility-by-facility basis including, but not limited to, ground water table levels in the area of the affected tanks, elevation levels of water within the tank pit relevant to the comparative elevations of piping (including, for example, riser, vent, and vapor recovery piping that, before this Act have not been subject to corrosion protection rules), standing water and surface water drainage in the area of the fuel fill manholes, and other relevant factors, where the rules may warrant a variance of application. All new underground motor fuel storage tanks, as well as all replacement components of existing motor fuel tanks, permitted by the Office of the State Fire Marshal after the effective date of the rules to safeguard against water infiltration and phase-separation, must conform to such rules prior to the addition or dispensing of gasoline containing ethanol. Any underground tank in place and permitted by the Office of the State Fire Marshal prior to the effective date of the rules shall be allowed to receive and contain gasoline containing up to 20% ethanol without being in compliance with the rules to safeguard against water infiltration and phase-separation, provided that the motor fuel retailer equips all connected motor fuel dispensers with filters that will not allow the phase-separated ethanol-water mixture to pass through the filters and into a motorist's vehicle. After the seventh year, provided that the facility has had the continuous protection of this Act from below-cost pricing of motor fuels, the existing underground storage tank and dispensing systems must be upgraded so as to conform to the rules to safeguard against water infiltration and phase-separation, in order to continue taking receipt, storing, or dispensing of the blends of ethanol gasoline.

(2) Regardless of whatever rules that are or are not to be promulgated under item (1) of this Section, the Office of the State Fire Marshal shall promulgate rules that govern underground storage tank and dispensing systems that contain any content of ethanol greater than 20%. The rules shall be designed to safely accommodate the receipt, storage, water or moisture infiltration, pumping, in-line flow, leak detection, leak prevention, blending, filtering, and dispensing of a blend ratio of ethanol of 85% to 100% ethanol (the rules hereinafter referred to as "rules to accommodate high ratio blends of ethanol"). All underground storage tank systems, prior to taking receipt of, storing and dispensing of gasoline containing more than 20% ethanol alcohol, shall meet the rules to accommodate high ratio blends of ethanol, except, however, any underground storage tank and dispensing systems that, prior to the effective date of the rules to accommodate high ratio blends of ethanol, had been permitted by the Office of the State Fire Marshal to store an dispense said high-ratio blends of ethanol gasoline, shall be allowed to continue in use for the storage and dispensing of high ratio blends of ethanol gasoline through the seventh year that the facility continuously benefits from protection against below-cost pricing of motor fuel as provided for in this Act. After the seventh year, such existing underground storage tank and dispensing systems must be upgraded to conform to the rules to accommodate high ratio blends of ethanol, in order to continue taking receipt of, storing, and dispensing such high-ratio blends of ethanol gasoline.

(3) The Office of the State Fire Marshal shall also research whether motor fuel with biodiesel, in varying ratios of blending from greater than 0% to 100% bio-fuel, necessitates any special rules to safely accommodate the receiving, storage, water or moisture infiltration, pumping, in-line flow, leak detection, leak prevention, blending, filtering, and dispensing of the fuels at retail, and the Office of the State Fire Marshal shall promulgate rules accordingly. The time frames set forth in items (1) and (2) of this Section for upgrading of existing ethanol-blended-gasoline tank and dispensing systems shall also apply to systems for storing and dispensing blended biodiesel fuels.

Section 40. Remedies and penalties for below-cost sales.

(a) If a retailer is selling motor fuel in a given market area below the regulated minimum retail cost price of motor fuel sold for another retailer in the same market area, the complaining retailer may file a complaint with the Department of Agriculture, provided that the complaint is made on or within a period of 30 days after the date of the incident. The complaint shall include, at minimum, the name, contact person, address, and telephone number of the complaining retailer; the name, address, and telephone number (if the telephone number is known) of the competing retailer (also referred to as "alleged violator"); the name and address of each retail location subject to the complaint; the pricing at each such location on the applicable dates; and the believed regulated minimum price of the complaining retailer for each applicable date, with documentation supporting the complaining retailer's computed regulated minimum price for each such date. Within 30 days after receipt of the complaint, the Department shall give written notice of the complaint to the alleged violator, which notice shall be sent certified mail, return receipt requested. Notice shall be addressed and sent to the applicable retail facility, in the name of the facility, and to the retailer in the name and at the address of any home office that the retailer has provided to the Department for the sending of the notice ("initial notice"). This initial notice shall include the name and address of each retail motor fuel location subject to the complaint, each date that a below-cost sale is alleged to have occurred, and the retail pricing for each retail location for each date. The alleged violator shall be deemed to have received the initial notice on the date the notice is actually received or 5 business days after the date the notice is mailed by the Department, whichever occurs first. The alleged violator shall have 60 days from the date of its receipt of the initial notice to respond to the Department with evidence that the alleged violator, for any periods of time subject to the complaint, and for any periods of time following the last date named in the complaint to the date of the initial notice, was not selling below its regulated minimum price, or that any sale below the regulated minimum price meets one of the exceptions of Section 20 of this Act. The Department shall then have 90 days from the date the Department receives the alleged violator's response to provide to the complainant and the alleged violator written findings: (1) whether the complaining retailer has made a prima facie showing in its complaint that the alleged violator sold below the complaining retailer's regulated minimum price, and, if the prima facie showing is made, then (2) whether the alleged violator has proven in its response, by a preponderance of the evidence, that it did not sell below its regulated minimum price, or that it meets one of the Section 20 exceptions.

(b) If the Department finds that the complaining retailer has failed to make a prima facie showing under subsection (a) of this Section, and the alleged violator did not sell below the complaining retailer's regulated minimum price, the Department shall administratively fine the complaining retailer in the amount of $350. The Department shall notify the complaining retailer in writing of the administrative fine within 30 days after the Department determines that no prima facie showing was made by the complaining retailer. The written notice of administrative fine shall also contain a written notice of the complaining retailer's rights of appeal. Within 45 days after the date of the written notice of the administrative fine, the complaining retailer shall pay the State the amount of the administrative fine, unless the complaining retailer appeals the decision by following the Department's requirements relating to an appeal, in which latter case, the complaining retailer must state in writing the basis of its appeal, and, following receipt of the appeal within the time-frame prescribed by the Department, the Department shall have a period of 210 days in which to render a decision on the appeal, which decision of the Department shall be final. The foregoing notwithstanding, the complaining retailer shall not be administratively fined by the Department if the alleged violator was released from further action due to any exception permitted under Section 20 of this Act.

(c) If the Department finds: (1) that the complaining retailer failed to make a prima facie showing under subsection (a) of this Section; or (2) that the alleged violator either qualifies for a Section 20 exception or did not sell below its regulated minimum price, the complaint shall be closed. If the Department finds that the complainant has made the required prima facie showing and finds that the alleged violator has neither rebutted that showing nor proven a Section 20 exception, the alleged violator shall be given the opportunity to provide full disclosure and cost-accounting documentation that it did not sell below cost. Certified by either a certified managerial accountant or certified public accountant hired by the alleged violator, the alleged violator shall file such documentation with the Department within 90 days after the date of the Department's written findings under subsection (a) of this Section above, and shall, on the same day, serve the complainant with a copy thereof. The Department shall then have a period of 180 days in which to review the data provided by the alleged violator, during which time the Department may, at its option, submit the matter to the Motor Fuel Cost and Bio-Fuels Blend Ratio Review Board for advisory comment. At any time during this 180-day period, the Department may request further data or clarification from the alleged violator, and the alleged violator shall have a period of 60 days after each additional request in which to respond with service of a copy of each additional response upon the complainant. After the final the response, the Department shall have an additional period of 180 days in which to review the supplemental data. If the Department finds that the documentation provided by the alleged violator proves by a preponderance of the evidence that it did not sell below cost, then the complaint shall be closed. If the Department shall find otherwise, or if the alleged violator shall fail to provide data and documentation to support that it did not sell below cost, the Department shall conclude that the alleged violator violated this Act. The Department shall promptly provide written notice to the alleged violator and the complainant of the Department's conclusion and shall assess an administrative fine to the violator in accordance with this Act.

(d) If the Department concludes that the alleged violator sold motor fuel below cost, but that the alleged violator qualifies for an exception under item (7) of Section 20, then the Department shall notify the alleged violator of the Department's determination, but shall warn the alleged violator that the alleged violator has exhausted its use of an exception under item (7) of Section 20 for the time period provided for an exception in this Act.

(e) Until the Department makes a determination on a complaint, the Department shall continue to receive other complaints that may be made by either the original complaining retailer or by other complaining retailers. When receiving complaints, the Department shall note and take into account the dates of the incidents about which a complaint is made. For any incident, which is ultimately determined to be an incident of below-cost selling and that occurred after the date of a prior incident that is ultimately determined to be below-cost selling, but before the expiration of the fifth calendar day after the alleged violator has received initial notice from the Department about the first incident (that the incident in question is in fact at least the second incident of below-cost-selling by the alleged violator at the particular retail facility), the Department shall take no action against the alleged violator for the latter incidents within the prescribed time frame to the extent that the latter incidents also are inadvertent incidents. A retailer shall therefore have a safe-haven for inadvertent below-cost selling between the time of the initial incident of below-cost selling and the fifth calendar day after the retailer receives initial notice of the initial incident from the Department, provided that the initial incident is an isolated incident or an inadvertent incident as defined under this Act. Except for inadvertent incidents as provided in this subsection (e) of this Section, time periods allowed under this Section for notification by, submissions to, and determinations by the Department, shall not be used as safe-havens during which a violator may continue selling below cost with impunity.

(f) If, within the 180-day period prior to initial notice of a complaint, the alleged violator, for the facility in question, was given notice by the Department of another complaint relating to a prior incident of alleged below-cost selling at the same facility, the Department shall not rule that the latter incident meets an exception under item (7) of Section 20 unless and until the Department makes a determination regarding the prior incident. Between the time that the Department issues initial notice to the alleged violator on the earlier complaint and the time that the Department makes a determination on the subject complaint, the Department shall continue to receive other complaints, if any, that may be made by either the original complaining retailer, or by any other retailers. Any incident of below-cost selling that occurs after the fifth calendar day after the alleged violator receives initial notice from the Department on a prior complaint, but before the 180th day following the date that the Department received the prior complaint, the subsequent complaint shall not meet an exception under item (7) of Section 20 if the prior complaint is determined by the Department to constitute an act of below-cost sale.

(g) If the alleged violator fails or refuses to respond in a timely manner to the requests of the Department or fails to pay the administrative fines to the Department within 45 days after notice of the imposition of an administrative fine, the Department shall refer the matter to the Attorney General for prosecution. Upon receipt of the referral, the Attorney General, or at its discretion, the State's Attorney for the county in which the alleged below-cost sale occurred, shall commence a civil action to enforce the findings of and administrative fines imposed by the Department. While the civil action is pending, the Attorney General or the State's Attorney, as the case may be, shall seek to enjoin the violator from below-cost pricing, and upon a proper showing, a temporary restraining order, preliminary injunction, or permanent injunction shall be issued without the necessity of a bond.

(h) Any person who has been found by the Department to have committed a violation of below-cost selling under this Act shall be listed as a "below-cost seller" by the Department, unless the incident of below-cost selling qualifies for an exception under this Act. If the person is thereafter found to have committed another act of below-cost selling within 18 months after the date of the first act of below-cost selling that does not qualify for an exception under this Act, the Department shall administratively fine the violator a sum not to exceed $5,000 per violation, unless the violation was determined accidental, in which case the administrative fine shall not exceed $2,500. Any such violator shall also be liable for accountants fees, expert witness fees, and investigative expenses incurred by the Department and shall be subject to injunctive relief. Each day that a violation of below-cost selling under this Act occurs shall be considered as a separate violation. If an action is brought by a State's Attorney, the entire amount of the administrative fine shall be paid to the treasury of the county in which the judgment was entered. If an action is brought by the Attorney General, one-half of the penalty shall be paid to the treasury of the county where the action was brought and one-half shall be paid to the State Treasury, earmarked for the Attorney General's State Project and Court Order Distribution Fund. Administrative fines paid to the Department without involvement of the Attorney General shall go to the General Revenue Fund.

(i) Notwithstanding anything to the contrary contained in provisions (a), (b), (c), (d), (e), (f), (g), and (h) of this Section 40, if, after the seventh year following the effective date of this Act, or the seventh year following the effective date of rules promulgated by the Office of the State Fire Marshal governing underground storage and dispensing systems and providing for the safe storage and dispensing of gasoline containing 85% or greater in content of ethanol, whichever date is later, the Department of Agriculture and the Attorney General shall have no obligation to act on a gasoline-related complaint from a motor fuel retailer unless (1) the complaining retailer either: (A) sells E-85 gasoline to the motoring public within the retail market area subject to the complaint, or (B) has a retail facility, within the retail market area subject to the complaint, which has an infrastructure including, but not limited to, applicable tank, pump, piping, valve, leak detection and prevention equipment, and other components that can safely accommodate the storage and sale of gasoline containing a blend of at least 85% ethanol, in accordance with the rules of the Office of the State Fire Marshal, while offering for sale a lesser, alternative blend of ethanol that may be prescribed at the time by the Department of Agriculture as an alternative minimum blend ratio for E-85 gasoline; and (2) the complaining retailer has not failed to upgrade any underground storage tank system in the subject market area to prevent water infiltration into any tank storing any content of ethanol, in accordance with the rules of the Office of the State Fire Marshal. Likewise, after the seventh year, neither the Department of Agriculture nor the Attorney General shall have an obligation to act on a diesel-related complaint from a motor fuel retailer who does not have a retail facility, within the retail market area subject to the complaint, offering for sale blended biodiesel containing a blend ratio of bio-fuel prescribed at the time by the Department of Agriculture. Any person in competition with a person suspected of below-cost selling or threatening to sell below cost under this Act may file and maintain an action in any court of competent jurisdiction to prevent, restrain, or enjoin the violation or threatened violation, or to recover damages for the violation or threatened violation, whether or not the person has filed a complaint under subsection (a) of this Section and whether or not an action is pending under this Section of this Act. Any claim for damages shall be filed within a period of 24 months from the date of the alleged violation of below-cost selling. Upon proper application by the plaintiff in any action against a below-cost seller under this Act, the court shall grant preliminary injunctive relief if the plaintiff shows that he or she is a proper person to seek the relief requested and that the defendant is selling motor fuel below the plaintiff's regulated minimum price for the time in question. In such action, there shall be a rebuttable presumption that the defendant has violated this Act if the plaintiff can show that, on a given day, the defendant sold or offered for sale, motor fuel at a price below the plaintiff's regulated minimum price. The defendant may rebut the presumption by proving by a preponderance of the evidence that: (1) the plaintiff's calculation of the regulated minimum price was inaccurate and the defendant did not in fact sell below the actual regulated minimum price; (2) that the defendant qualifies for one of the exceptions contained in Section 20 of this Act; or (3) that the defendant did not in fact sell or offer for sale motor fuel below cost. If the plaintiff proves a prima facie violation of this Act, and the defendant does not rebut the proof, the court shall enjoin and restrain, or otherwise prohibit, such violation or threatened violation and, in addition thereto, the court shall assess in favor of the plaintiff and against the defendant the costs of suit, including reasonable attorneys' fees. It shall not be necessary that actual damages to the plaintiff be alleged or proved, but if damages are alleged and proved, the plaintiff shall also be entitled to actual damages, exemplary or punitive damages, and restitution. If the plaintiff fails to make a prima facie showing that the defendant sold motor fuel below the plaintiff's regulated minimum price, or if the defendant proves that the plaintiff's calculation of plaintiff's regulated minimum price was inaccurate, the court may award court costs and reasonable attorneys' fees to the defendant.

(j) The circuit courts of this State are empowered with jurisdiction to hear and determine all cases brought under this Section. Venue lies in the county in which the alleged violation occurred.

(k) If any action is brought for a violation of a below-cost sale, the burden of proof, upon a prima facie showing of a violation, shall shift to the defendant to show justification. A prima facie showing of a violation shall be made if the plaintiff shows that the retail price of motor fuel of the defendant-retailer was below the regulated minimum retail cost price of motor fuel sold of the plaintiff retailer. Unless justification is shown by the defendant by a preponderance of the evidence, the court shall award judgment to the plaintiff.

Section 45. Remedies and penalties for price gouging.

(a) Complaints of price gouging shall be made to the Department of Agriculture, specifying the name and address of each retail location subject to the complaint and the pricing at each such location on applicable date or dates that the violations are alleged to have occurred. Subject to subsection (e) of Section 40, within 30 days of receipt of the complaint, the Department shall make contact with the alleged violator, and the alleged violator shall have 60 days after receipt of notice in which to provide evidence that for all periods of time subject to the complaint and for all periods of time from the date of the last violation alleged in the complaint to the date of the notice the alleged violator was not pricing above the regulated maximum price. Upon a prima facie showing that the alleged violator sold or offered for sale motor fuel at a price above the regulated maximum price on the date in question, the alleged violator shall have the burden to prove, by a preponderance of the evidence, that it did not price above the regulated maximum price on the date in question. If the alleged violator can show, by a preponderance of the evidence, that it did not price in excess of the regulated maximum price, the complaint shall be closed. If the Department shall find that the alleged violator did not prove that it did not price in excess of the regulated maximum price for each day subject to the complaint, the alleged violator shall be given the opportunity to provide full disclosure and cost-accounting documentation, certified by either a certified managerial accountant or certified public accountant hired by the alleged violator, that it did not engage in motor fuel price gouging. The Department shall then have a period of 180 days in which to review the data provided by the alleged violator, during which time the Department may, at its option, submit the matter to the Motor Fuel Cost and Bio-Fuels Blend Ratio Review Board, for advisory comment. At any time during this 180-day period, the Department may request further data or clarification from the alleged violator, and the alleged violator shall have a period of 60 days, after each such request, in which to respond. After receipt of the final response, the Department shall have an additional period of 180 days in which to review the supplemental data. If the Department finds that the documentation provided by the alleged violator proves by a preponderance of the evidence that it did not engage in motor fuel price gouging, then the complaint shall be closed. If the Department shall find otherwise, or if the alleged violator shall fail to provide data and documentation to support that it did not engage in price gouging, the Department shall conclude that the alleged violator violated this Act. The Department shall then notify the alleged violator of the Department's conclusion, and assess an administrative fine against the violator in accordance with this Act.

(b) If the alleged violator fails or refuses to respond in a timely manner to the requests of the Department or fails to pay the administrative fines to the Department within 30 days after notice of the imposition of the administrative fine, the Department shall refer the matter to the Attorney General for prosecution. Upon receipt of such referral, the Attorney General, or at its discretion, the State's Attorney of the county in which the violation occurred, shall commence a civil action to enforce the findings of and administrative fines imposed by the Department. While the civil action is pending, the Attorney General shall seek to enjoin the violator from price gouging, and upon a proper showing, a temporary restraining order, preliminary injunction, or permanent injunction shall be issued without the necessity of a bond.

(c) Any person who is found to have committed a violation of price gouging, as defined by this Act, shall be subject to an administrative fine not to exceed $5,000 per violation for each offense. Any such violator shall also be liable for the fees of accountants, expert witness fees, and investigative expenses incurred by the State, if the State prevails in an action under this Act. Each day that a violation of price gouging under this Act occurs shall be considered as a separate violation. If brought by a State's Attorney, the entire amount of the administrative fine shall be paid to the treasury of the county in which the judgment was entered. If brought by the Attorney General, one-half of the penalty shall be paid to the treasury of the county where the action was brought and one-half shall be paid to the State Treasury, earmarked for the Attorney General's State Project and Court Order Distribution Fund. Administrative fines paid to the Department without involvement of the Attorney General shall go to the General Revenue Fund.

Section 50. Illegal contracts. Any contract, express or implied, made by any person in violation of any of the provisions of this Act is illegal and void, and recovery shall not be awarded.

Section 55. Recordkeeping.

(a) Persons engaged in commerce within this State who sell or offer to sell motor fuel shall maintain records accurately indicating the date and the time of day of each change in the sale price of motor fuel and the identity of the person who recorded the price change. In the event the change in price is to meet a lower price of a competitor, the record shall set forth the competitor by name and address, specifying the price that was met. These records shall be maintained for a period of 3 years.

(b) After the seventh year following the effective date of this Act, persons engaged in commerce within this State who sell motor fuel at retail blended with either ethanol or biodiesel, who want to qualify for protection against below-cost selling under this Act, shall maintain records accurately indicating the blend ratios of the blended fuels on a daily basis.

(c) The records shall be made available to the Department of Agriculture or Attorney General on request.

Section 60. Witnesses; production of books and records. Any defendant, or any witness, in any civil action brought under the provisions of this Act may be required to testify, and any defendant, or any witness, may, upon proper process, be compelled to produce his or her books, records, invoices, and all other documents of any defendant or witness into court and the same may be introduced as evidence, but no testimony thus given or produced shall be received against the defendant upon any criminal proceeding or investigation against the defendant.

Section 65. Trade association may file suit. Any duly organized and existing trade association, whether incorporated or not, is hereby authorized to institute and prosecute a civil action for injunctive relief and costs provided for under the terms of this Act, as the real party in interest for and on behalf of one or more of said association's members, when a violation of this Act directly or indirectly affects or threatens to affect or injure such member or members, or where violation of this Act threatens to impair fair competition or otherwise affects such member as herein provided.

Section 70. Limitations period. Any action brought by the Attorney General or any State's Attorney shall be brought within 2 years after the alleged violation occurred or should reasonably have been discovered. Any action brought by any other person or entity shall be brought within 3 years after the alleged violation occurred or should reasonably have been discovered.

Section 75. Powers; duties.

(a) The Department of Agriculture shall promulgate rules to administer and enforce this Act, seeking and taking into account the input of the Motor Fuel Cost and Bio-Fuels Blend Ratio Review Board, as well as the public, prior to the promulgation of the rules. In addition, the Department of Agriculture has the following powers and duties:

(1) to promote awareness of this Act to motor fuel retailers, including (i) making the written contents of the act available on the Department's website for inspection by the public, (ii) attendance at up to 4 regional regulatory awareness meetings, annually, as periodically conducted by the Illinois Petroleum Marketers Association for its members, and (iii) incorporating references to the Act as part of other written communications that are routinely made between the Department and motor fuel retailers (including, but not limited to, including reference to the Act in material communicated to motor fuel retailers in the Department's course of administering its responsibilities in the area of weights and measures at motor fuel stations), including, as part of said materials, information about where the retailers may view an electronic copy of the Act (including the Department's website), along with a warning statement that a false-reporting of a below-cost sale to the Department shall constitute a violation of the Act, and can result in a administrative fine of $350.

(2) to investigate complaints regarding violations of this Act;

(3) to seek injunctive relief as appropriate;

(4) to levy administrative fines for a violation of this Act;

(5) to determine if a complaining retailer should be invoiced as provided under subsection (b) of Section 40, and, in the event that the complaining retailer appeals the invoice, then, with the advisory input of the Motor Fuel Cost and Bio-Fuels Blend Ratio Review Board, to render a decision on the appeal;

(6) to determine what rates of compensation are usual and customary for certified managerial accountants practicing in Illinois, and to set the hourly fee of the managerial or cost-accountant serving on the Motor Fuel Cost and Bio-Fuels Blend Ratio Review Board;

(7) to select the entity to provide the benchmark pricing services provided for in conjunction with this Act. The following criteria shall be utilized to choose the benchmark pricing service provider from the alternatives available at the time of choosing: (i) which entity provides for the most complete coverage of wholesale terminal suppliers not only within the State, but also within neighboring states having wholesale supply rack or terminals within the area relevant to the calculation of the regional benchmark pricing service average price, (ii) which entity will make its information the easiest to access for Illinois motor fuel retailers and the Department, and (iii) which entity will make access to its information the least costly for Illinois motor fuel retailers and the Department. The Department shall coordinate presentations to be made by the available reporting services to the Department and to the Motor Fuel Cost and Bio-Fuels Blend Ratio Review Board. The Motor Fuel Cost and Bio-Fuels Blend Ratio Review Board shall provide an advisory recommendation to the Department as to the benchmark service provider to be selected or what performance standards should be required of the service provider to be selected. The Department shall then utilize this advisory input to make the selection of the benchmark pricing service and to develop performance responsibilities for the benchmark pricing service. Any benchmark service provider selected in this manner shall remain the benchmark service provider under this Act for at least 24 months without formal review of other providers, unless the benchmark service provider defaults on its obligations or unless two-thirds of the Motor Fuel Cost and Bio-Fuels Blend Ratio Review Board votes to reactivate the selection process to reconvene;

(8) to confirm whether or not a retailer who complains about the retail price of gasoline has a facility that (i) sells E-85 gasoline to the motoring public within the retail market area subject to the complaint, or (ii) has any retail facility, within the retail market area subject to the complaint, with a motor fuel infrastructure (including, but not limited to, applicable tank, pump, piping, valve, leak detection and prevention equipment, and other components) that can accommodate the storage and sale of gasoline containing a blend of at least 85% ethanol, and is offering for sale at such facility an E-85 gasoline at no less than the alternative minimum blend ratio of ethanol that is prescribed at the time by the Department of Agriculture for E-85 gasoline. The confirmation may be made in the manner selected by the Department including, but not limited to, reviewing the records of the Department, the Office of the State Fire Marshal, or the Department of Revenue;

(9) to investigate whether a retailer who complains about the retail price of diesel has a facility, within the retail market area subject to the complaint, that sells blended biodiesel to the motoring public with a blend ratio of bio-fuels, comprising blended biodiesel, prescribed by the Department of Agriculture at the time;

(10) no later than the expiration of the second year following the effective date of this Act, to begin coordinating with industry standard setters including, but not necessarily limited to, the American Society for Testing and Materials (ASTM), to seek a standard for E-85 containing a lesser blend ratio of ethanol than what is conventionally contained in E-85 fuel, to begin monitoring and evaluating the factors affecting the supply and demand balance of bio-fuels in the State, and to establish the framework for determining the optimal minimum blend ratio of E-85 gasoline in order to maintain a supply and demand balance in the State. If the optimal minimum blend ratio in order to maintain a supply and demand balance of ethanol is less than the conventional minimum blend ratio E-85 of 70%, then to publicly prescribe, effective no earlier than the first day of the fourth year and no later than the first day of the eighth year following the effective date of this Act, what the alternative minimum blend ratio, as well as applicable ASTM standards, of bio-fuels will be for E-85 gasoline as well as for high-blend ratio of blended biodiesel to the extent that a blend ratio prescription is needed to provide for a supply and demand balance of biodiesel, and to make such determinations and prescriptions relating to alternative minimum blend ratios (and ASTM standards, if applicable), at the beginning of each year thereafter, so that a given retail motor fuel facility of a given motor fuel retailer that offers such for sale, at the time, may know what minimum blend ratio or ratios that it must maintain in order to continue to qualify for protection under this Act; and

(11) to investigate, from time to time, the current rules relating to warnings that must be contained on fuel dispensers dispensing fuels containing bio-fuels, and to determine if the rules are satisfactory; and if, at any given time, the rules are not satisfactory, then to develop and prescribe written warnings that the Department deems satisfactory, including the text of the warnings, the minimum size of the text, and the recommended location on the affected fuel dispensers that the warnings should be placed (the prescribed location provided some latitude given the varying designs of fuel dispensing equipment). When prescribing written warnings, the Department shall take into account what other printed warning or warnings and other informational message or messages may be required by other governmental agencies to be placed on the fuel dispensers by motor fuel retailers, so that there will be no conflict between the requirements of the Department related to warnings and other information and the requirements of other governmental agencies regarding the warnings and other information on motor fuel dispensers. If, in the course of developing its rules relating to written warnings, the Department deems there to be conflict between where the Department believes that its prescribed printed messages should be placed and with where other governmental agencies may be requiring their printed messages to be placed, then the Department shall make contact with other governmental agencies, in an effort to reach a mutually satisfactory agreement with other agencies, so that motor fuel retailers may have an opportunity to comply with all of the legal requirements made of them as it relates to posting of required printed messages on or around motor fuel dispensers.

(b) The Attorney General has the following powers and duties:

(1) to investigate complaints regarding violations of this Act;

(2) to seek injunctive relief as appropriate;

(3) to seek restitution for victims of motor fuel price gouging and other violations of this Act;

(4) to institute an action to collect an administrative fine for a violation of this Act; and

(5) to delegate to any appropriate State's Attorney its powers and duties under this Act.

(c) The Department of Revenue shall have the following duties:

(1) to inform motor fuel marketers doing business in this State of the contents of this Act, particularly the prohibitions against below-cost selling and against price gouging, and to communicate to such marketers the administrative fine for false reporting a sale below the regulated minimum retail cost price of motor fuel sold, though failure by a marketer to receive the notice shall not be a defense under this Act. Between the time that the Act is signed into law and its effective date, the Department of Revenue shall issue written notice of the passage of this Act to all persons who have filed a motor fuel tax return during the year prior to enactment, as well as all persons who, the year prior to enactment, have filed prepaid sales tax returns including prepaid sales taxes on motor fuel deliveries. The notice shall identify the website where the Act can be reviewed, the prohibitions against below-cost selling and price gouging, the administrative fine for falsely reporting an act of pricing below the regulated minimum retail cost price of motor fuel sold, as defined in the Act, and the Act's requirement that protection may be discontinued for any facility of a retailer that fails to fulfill certain requirements of the Act by the end of the seventh year after enactment of the Act. In addition, at any time after the enactment of this Act into law that the Department of Revenue issues a new motor fuel license, it shall include with the license a notice in the form required above for filers of motor fuel tax returns; and

(2) to cooperate fully with the Department of Agriculture in its efforts to comply with the requirements of this Act where the Department of Revenue may have data, or where the Department of Revenue could readily collect data, that could aid in the compliance.

(d) The Office of the State Fire Marshal shall have the following duties:

(1) to research the need for, and to the extent any need exists, then to develop rules to safeguard against water infiltration and phase-separation as provided for in item (1) of Section 35 of this Act, and to make rules to administer and enforce those rules;

(2) to develop rules to accommodate high ratio blends of ethanol as provided for in item (2) of Section 35 of this Act, and to make rules to administer and enforce those rules;

(3) to research whether special rules should be promulgated regarding the retail motor fuel infrastructure for biodiesel or blended biodiesel as provided in item (3) of Section 35 of this Act, and to the extent that it deems that the rules are necessary for the safety of the motoring public or the environment, then to promulgate the rules and to further make rules to administer and enforce them;

(4) to seek the input of motor fuel retailers, petroleum contractors, and the public when developing any rules;

(5) to communicate to motor fuel retailers and petroleum contractors about any rules by (i) making the written contents of the developed standards and rules available on the Department's website for inspection by the public, and (ii) attending up to 4 regional regulatory awareness meetings, annually, as periodically conducted by the Illinois Petroleum Marketers Association for its members; and

(6) to cooperate fully with the Department of Agriculture in its efforts to comply with the requirements of this Act where the Office of the State Fire Marshal may have data, or where the Office of the State Fire Marshal could readily collect data, that could aid in such compliance.

Section 80. Confidentiality.

(a) Information obtained by the Department, Attorney General, or State's Attorney in the course of an investigation under this Act, including information from a person who responds to the investigation and designates the information as confidential, must be maintained as confidential until the investigation is completed and a course of action is determined. Neither the Department, Attorney General, nor State's Attorney may make known in any manner information obtained in the course of the investigation to persons other that those specified in subsection (c) of this Section or the members of the Motor Fuel Cost and Bio-Fuels Blend Ratio Review Board. Once the investigation is completed, if there is a settlement or if a civil action is filed, the information may be made public.

(b) This Section does not prohibit the use of confidential information to prepare statistics of other general data for publication, if the information is presented in a manner that prevents identification of particular persons or locations under investigation.

(c) For purposes of this Section, references to Department, Attorney General, or State's Attorney include other individuals designated in writing and acting on behalf of those persons during an investigation. A person so designated shall preserve the confidentiality of information as provided for in subsection (a) of this Section.

(d) A person who is served with a request for information or a subpoena to give testimony, orally or in writing, or to produce books, papers, correspondence, memoranda, agreements, or other documents or records under this Act may apply to the appropriate circuit court for protection against abuse or undue hardship.

Section 85. Banning of government subsidies for motor fuel retailers.

(a) It is the policy of this State that no development containing a facility for selling motor fuel, that is developed after the effective date of this Act, shall receive any government subsidy, State or local, to aid, directly or indirectly, in the cost of such development, or to aid, directly or indirectly, in the cost of the development of the motor fuel facility, when the motor fuel facility being developed would be in competition with another such Illinois-based facility within the same market area, except, however, government subsidy shall be permitted if the subsidy is generally available to all retail facilities within the same market area and is limited to the development of retail infrastructure (including tanks, pumps, piping, valves, spill prevention, leak detection, leak prevention, prevention of water infiltration, or fuel dispensing equipment as applicable) to accommodate the retail storage, in-line flow, blending, or dispensing of gasoline containing at least 85% ethanol, or the storage, in-line flow, and blending of B-100 biodiesel, as well as the equipment required for the sale of B-20 biodiesel to the extent that the equipment required for the sale of B-20 biodiesel varies from standard equipment required for the sale of diesel without a blend of biodiesel.

(b) Any subsidy, other than that permitted under this Act, that is being received prior to the opening of the motor fuel facility, or that is scheduled to be received following the opening for business of the motor fuel facility, shall cease being paid upon the opening for business of the newly developed motor fuel facility, and if payment is not ceased, then the party receiving the subsidy shall, within 30 days of its receipt, return the subsidy to the party providing the subsidy. Any subsidy other than a direct payment to the receiving party shall also cease upon the opening of the newly developed motor fuel facility.

(c) Any competitor of a person suspected of receiving or benefiting from a government subsidy in violation of this Act shall have standing to bring a civil action to enjoin the violation of this Section and to compel restitution of any such subsidy received or payment of government monies foregone in violation of this Section.

Section 90. Immunity. Retailers, sellers, suppliers, distributors, manufacturers, and refiners of gasoline greater in ethanol content than 10% shall be immune from civil liability for personal injury or property damage resulting from a person fueling any vehicle, that is not a flexible fuel vehicle, with gasoline blended with a greater proportion than 10% ethanol, but less than or equal to 85% ethanol, when the injury or damage is related in any way from the blend ratio content of ethanol and from the customer erring in the customer's selection of the fuel nozzle or fuel dispenser that contains a blend ratio of ethanol that exceeds the content of ethanol recommended by the vehicle's auto manufacturer for the customer's vehicle. This immunity shall not apply to a consumer who dispenses the ethanol blended gasoline from a fuel dispenser that does not contain a display of all of the identification and warning signage as required, at the time, by federal or State law. Retailers, sellers, suppliers, distributors, manufacturers, and refiners of blended bio-diesel greater in content of biodiesel than what is recommended by a vehicle's manufacturer, shall be immune from civil liability for personal injury or property damage resulting from a person fueling the vehicle with a diesel blended with a greater proportion of biodiesel than that recommended by the vehicle's manufacturer, when the injury or damage is related in any way from the blending ratio content of the biodiesel and from the customer erring in the customer's selection of the fuel nozzle or fuel dispenser that dispenses a blend ratio of biodiesel that exceeds the content of biodiesel recommended by the vehicle's auto manufacturer for the customer's vehicle. This immunity shall not apply to a consumer who dispenses the blended diesel fuel from a fuel dispenser that does not contain a display of all of the identification and warning signage as required, at the time, by federal or State law.

Section 95. Severability. If any provision of this Act or its application to any person or circumstance is held invalid, the invalidity of that provision or application does not affect other provisions or applications of this Act that can be given effect without the invalid provision or application.

Section 100. Appropriations. The Department of Agriculture, the Department of Revenue, the Office of the State Fire Marshal, and the Office of the Attorney General shall request, by way of appropriations, the costs and expenses necessary to comply with this Act.

Section 999. Effective date. This Act takes effect 90 days after becoming law.