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[Utah Code Table of Contents]
[TITLE 13. Table of Contents]
13-16-1 Short title.
This chapter is known as the "Motor Fuel Marketing Act."
1987
13-16-2 Definitions.
As used in this chapter:
(1) "Affiliate" means a person that owns or controls, or is owned or controlled by, another person, whether through stock ownership or otherwise.
(2) "Cost" means an amount calculated as follows:
(a) (i) if motor fuel is not purchased from an affiliate:
(A) the lowest invoice cost that the seller charged to the purchaser for motor fuel of like grade and quality within five days prior to the date of any alleged unlawful resale by the purchaser; or
(B) if there was no sale to the purchaser within the preceding five days, the purchaser's last invoice cost for motor fuel of like grade and quality; or
(ii) if motor fuel is purchased or received from an affiliate:
(A) the lowest transfer price that the affiliate charged to the purchaser or receiver for motor fuel of like grade and quality within five days prior to the date of any alleged unlawful resale by the purchaser or receiver; or
(B) if there was no purchase or receipt within the preceding five days, the last transfer price for motor fuel of like grade and quality;
(b) less each of the following that the purchaser receives on the particular invoice or transfer:
(i) a trade discount;
(ii) an allowance; or
(iii) a rebate; and
(c) plus the following if not included in the invoice cost or transfer price:
(i) freight charges;
(ii) all applicable federal, state, and local taxes; and
(iii) charges imposed by a federal, state, or local government that are not taxes.
(3) "Motor fuel" means gasoline, diesel fuel, gasohol, and all other fuels of a type designated for use as a motor fuel in self-propelled vehicles designated primarily for use on public streets, roads, and highways.
(4) "Person" means any individual, partnership, corporation, or legal entity.
(5) (a) "Posted rack price" means the price at which a refiner or other person offers a grade of motor fuel for sale at the rack before:
(i) a reduction for:
(A) a trade discount;
(B) an allowance; or
(C) a rebate; or
(ii) the addition of:
(A) a charge for freight;
(B) a federal, state, or local tax; or
(C) a charge imposed by a federal, state, or local government that is not a tax.
(b) Notwithstanding Subsection (5)(a), the posted rack price for a refiner or other person offering motor fuel for sale at the rack who does not establish a posted rack price shall be the lowest posted rack price of any person for motor fuel of like grade or quality in the geographic area served by the refiner or other person.
(6) "Purchase," "purchases," or "purchased" means the acquisition of motor fuel as a result of a sale or resale.
(7) "Rack" means a deck, platform, or open bay that consists of a series of metered pipes and hoses for the delivery or removal of motor fuel from the refinery or terminal into:
(a) a motor vehicle;
(b) a rail car; or
(c) a vessel.
(8) "Receipt" or "received" has the same meaning as purchase under Subsection (6).
(9) "Resale" or "resales" has the same meaning as sale under Subsection (11).
(10) "Retail sale" means any sale of motor fuel to a member of the motoring public for consumption.
(11) (a) "Sale," "sales," "sell," "sells," or "sold" means the transfer of, or offer to transfer:
(i) ownership, title to, or possession of, motor fuel from one person to another; and
(ii) with or without consideration.
(b) "Sale," "sales," "sell," "sells," or "sold" includes any method by which any person transfers or offers to transfer ownership, title to, or possession of, motor fuel to itself or an affiliate for resale at another marketing level.
(12) "Terminal" means a facility:
(a) for the storage of motor fuel that is:
(i) part of a refinery; or
(ii) supplied by:
(A) a motor vehicle;
(B) a pipeline; or
(C) a vessel; and
(b) from which motor fuel is removed for distribution at a rack.
(13) "Transfer price" means the price used by a refiner
in connection with any sale of motor fuel to itself or an
affiliate for resale at another marketing level.
2001
13-16-3 Requirement to establish and disclose "transfer prices" and "posted rack prices."
A refiner engaged in commerce in this state is required to:
(1) establish:
(a) its transfer price on all grades of motor fuel sold to itself or an affiliate for resale in this state at a different marketing level of distribution; and
(b) a posted rack price on all grades of motor fuel the refiner or other person sells at the rack in this state; and
(2) at the request of the attorney general, disclose to the attorney general:
(a) any transfer price described in Subsection (1)(a); or
(b) any posted rack price described in Subsection (1)(b).
2001
13-16-4 Unlawful sale by persons engaged in commerce.
(1) It is unlawful for any person engaged in commerce within this state to sell motor fuel in this state below cost as defined in Subsection 13-16-2 (2) if the intent or effect of the sale is to:
(a) injure competition;
(b) induce the buying of other merchandise;
(c) unfairly divert trade from a competitor; or
(d) otherwise injure a competitor.
(2) It is unlawful for any person engaged in commerce in this state, in the course of such commerce, either directly or indirectly, to:
(a) sell motor fuel through an affiliate for retail sale in this state on a different marketing level of distribution at a price lower than the price it charges a person who purchases motor fuel of like grade and quality at reasonably the same time for retail sale in this state on the same level of distribution, if the intent or effect of the sale is to injure competition; or
(b) sell motor fuel for resale in this state at a price
lower than the seller charges other persons purchasing motor
fuel of like grade and quality at reasonably the same time
for resale in this state on the same level of distribution,
if the intent or effect of the sale is to injure competition.
2001
13-16-6 Sales not considered violations.
(1) It is not a violation of Subsection 13-16-4 (2) if:
(a) a difference exists at the same level of distribution between the transfer price or sales price of motor fuel of like grade and quality and the price charged to a person who purchases for resale, including any discount, rebate, allowance, service, or facility granted to any person, including any of a supplier's own marketing operations, who purchases for resale, in excess of those provided to any other person who purchases for resale if the difference makes only due allowance for differences in the cost of:
(i) manufacturing;
(ii) transportation, shipping, or other delivery method; or
(iii) marketing or sale resulting from the method or quantity in which the motor fuel is sold or delivered; or
(b) a difference exists in transfer price and sales price or between sales prices at the same marketing level if the difference exists because of a good faith effort to meet the equally low price of a competitor or if the sale is exempt under Section 13-5-12 .
(2) It is not a violation of Subsection 13-16-4 (1) if a sale below cost is:
(a) the result of a good faith effort to meet the equally low price of a competitor; or
(b) a sale exempt under Section
13-5-12
.
2001
13-16-7 Investigations and civil actions authorized - Expenses - Jurisdiction and venue.
(1) (a) The attorney general may conduct investigations of violations of this chapter and may issue civil investigative demands as provided in Subsections 76-10-917 (1) through (7), and (9), stating the nature of the activities under investigation constituting the alleged violation of this chapter and the applicable provision of law and that any information provided in response to the demand may be used in a civil proceeding. If the attorney general has reason to believe that a person has engaged in acts or practices that violate Section 13-16-4 , the attorney general may commence a civil action to enjoin the acts or practices, seek civil penalties as provided in Subsection (1)(b), and upon a proper showing, a temporary restraining order, preliminary injunction, or permanent injunction shall issue without the necessity of a bond.
(b) Any person who violates Section 13-16-4 is liable to the state for a civil penalty, assessed by a court, not to exceed $5,000 per day for each business location where a violation occurred.
(2) (a) Any person injured as a result of an act or practice that violates Section 13-16-4 may bring a civil action for appropriate relief, including an action for a declaratory judgment, injunctive relief, a treble award of actual damages, and exemplary damages.
(b) Any action under this Subsection (2) shall be brought within two years after the alleged violation occurred.
(3) The court, in making an award under Subsection (1) or (2), may award court costs and a reasonable attorney's fee to the prevailing party, except that the court may not award attorney's fees or court costs against the state, a state agency, or a political subdivision of the state.
(4) If the state, a state agency, or a political subdivision of the state prevails in an action under this chapter, it is entitled to an award for reasonable investigative expenses in addition to any other relief granted.
(5) (a) The district courts of this state may hear and determine all cases brought under this section.
(b) Venue lies in any county where the defendant is doing
business or in the county where the plaintiff resides.
2001
13-16-10 Recordkeeping - Civil penalty.
(1) Persons engaged in commerce within this state who sell motor fuel in this state 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 which was met. These records shall be maintained for a period of two years.
(2) The records shall be made available to the attorney general on request.
(3) A person who fails to comply with Subsection (1) is
liable to the state for a civil penalty, assessed by a court,
of $500 per day for each business location where a violation
occurred.
2001
13-16-11 Applicability.
Section
13-16-4
applies equally to all persons engaged in commerce
in the marketing of motor fuel, regardless of the size of
a marketing operation.
2001
13-16-13 Confidentiality and use of information.
(1) Any transfer price or posted rack price disclosed to the attorney general pursuant to Subsection 13-16-3 (2), any records disclosed to the attorney general pursuant to Section 13-16-10 , and any testimony, responses to interrogatories, documents or materials provided to the attorney general pursuant to a civil investigative demand shall be kept confidential by the attorney general unless confidentiality is waived in writing by the person who has:
(a) provided the transfer price, posted rack price, or records; or
(b) testified, answered interrogatories, provided documents or materials.
(2) Notwithstanding any other provision of this section, the attorney general may disclose any records, testimony, documents, materials, or other information obtained under this section, without either the consent of the person from whom it was received or the person being investigated, to:
(a) any court; and
(b) officers and employees of federal or state law enforcement agencies, provided the person from whom the information, documents, or objects were obtained is notified 20 days prior to disclosure, and the federal or state law enforcement agency certifies that the information will be:
(i) maintained in confidence, as required by Subsection 13-16-13 (1); and
(ii) used only for official law enforcement purposes.
2001
