Page images
PDF
EPUB

(2) except as provided in subsection (b), not less than 90 days prior to the date on which such termination or nonrenewal takes

effect. (b)(1) In circumstances in which it would not be reasonable for the franchisor to furnish notification, not less than 90 days prior to the date on which termination or nonrenewal takes effect, as required by subsection (a) (2)

(A) such franchisor shall furnish notification to the franchisee affected thereby on the earliest date on which furnishing of such notification is reasonably practicable; and (B) in the case of leased marketing premises, such franchisor

(i) may not establish a new franchise relationship with respect to such premises before the expiration of the 30-day period which begins

(I) on the date notification was posted or personally delivered, or

(II) if later, on the date on which such termination or nonrenewal takes effect; and (ii) may, if permitted to do so by the franchise agreement, repossess such premises and, in circumstances under which it would be reasonable to do so, operate such premises

through employees or agents. (2) In the case of any termination of any franchise or any nonrenewal of any franchise relationship pursuant to the provisions of section 102(b) (2) (E) or section 103(c)(2), the franchisor shall

(A) furnish notification to the franchisee not less than 180 days prior to the date on which such termination or nonrenewal takes

and (B) promptly provide a copy of such notification, together with a plan describing the schedule and conditions under which the franchisor will withdraw from the marketing of motor fuel through retail outlets in the relevant geographic area, to the Governor of each State which contains a portion of such area. (c) Notification under this section

(1) shall be in writing;

(2) shall be posted by certified mail or personally delivered to the franchisee; and (3) shall contain

(A) a statement of intention to terminate the franchise or not to renew the franchise relationship, together with the reasons therefor;

(B) the date on which such termination or nonrenewal takes effect; and

(C) the summary statement prepared under subsection (d). Publication in (d) (1) Not later than 30 days after the date of enactment of this Federal Register. Act, the Secretary of Energy shall prepare and publish in the Federal

Register a simple and concise summary of the provisions of this title, including a statement of the respective responsibilities of, and the remedies and relief available to, any franchisor and franchisee under this title.

(2) In the case of summaries required to be furnished under the provisions of section 102(b) (2) (D) or subsection (c)(3) (C) of this section before the date of publication of such summary in the Federal Register, such summary may be furnished not later than 5 days after it is so published rather than at the time required under such provisions.

effect;

[ocr errors]

ENFORCEMENT Sec. 105. (a) If a franchisor fails to comply with the requirements 15 USC 2805. of section 102 or 103, the franchisee may maintain a civil action against such franchisor. Such action may be brought, without regard to the Jurisdiction. amount in controversy, in the district court of the United States in any judicial district in which the principal place of business of such franchisor is located or in which such franchisee is doing business, except that no such action may be maintained unless commenced within 1 year after the later of

(1) the date of termination of the franchise or nonrenewal of the franchise relationship; or

(2) the date the franchisor fails to comply with the requirements of section 102 or 103. (b)(1) In any action under subsection (a), the court shall grant such equitable relief as the court determines is necessary to remedy the effects of any failure to comply with the requirements of section 102 or 103, including declaratory judgment, mandatory or prohibitive injunctive relief, and interim equitable relief.

(2) Except as provided in paragraph (3), in any action under sub- Preliminary section (a), the court shall grant a preliminary injunction if- injunction.

(A) the franchisee shows

(i) the franchise of which he is a party has been terminated or the franchise relationship of which he is a party has not been renewed, and

(ii) there exist sufficiently serious questions going to the merits to make such questions a fair ground for litigation;

and (B) the court determines that, on balance, the hardships imposed upon the franchisor by the issuance of such preliminary injunctive relief will be less than the hardship which would be imposed upon such franchisee if such preliminary injunctive relief

were not granted. (3) Nothing in this subsection prevents any court from requiring the franchisee in any action under subsection (a) to post a bond, in an amount established by the court, prior to the issuance or continuation of any equitable relief.

(4) In any action under subsection (a), the court need not exercise its equity powers to compel continuation or renewal of the franchise relationship if such action was commenced

(A) more than 90 days after the date on which notification pursuant to section 104(a) was posted or personally delivered to the franchisee;

(B) more than 180 days after the date on which notification pursuant to section 104 (b) (2) was posted or personally delivered to the franchisee; or

(C) more than 30 days after the date on which the termination of such franchise or the nonrenewal of such franchise relationship takes effect if less than 90 days notification was provided pursuant

to section 104 (b) (1). (c) In any action under subsection (a), the franchisee shall have the burden of proving the termination of the franchise or the nonrenewal of the franchise relationship. The franchisor shall bear the burden of going forward with evidence to establish as an affirmative defense that such termination or nonrenewal was permitted under section 102(b) or 103, and, if applicable, that such franchisor complied with the requirements of section 102(d).

Damages.

(d) (1) If the franchisee prevails in any action under subsection (a), such franchisee shall be entitled

(A) consistent with the Federal Rules of Civil Procedure, to actual damages;

(B) in the case of any such action which is based upon conduct of the franchisor which was in willful disregard of the requirements of section 102 or 103, or the rights of the franchisee thereunder, to exemplary damages, where appropriate; and

(C) to reasonable attorney and expert witness fees to be paid by the franchisor, unless the court determines that only nominal damages are to be awarded to such franchisee, in which case the court,

in its discretion, need not direct that such fees be paid by the franchisor. (2) The question of whether to award exemplary damages and the amount of any such award shall be determined by the court and not by a jury.

(3) In any action under subsection (a), the court may, in its discretion, direct that reasonable attorney and expert witness fees be paid by the franchisee if the court finds that such action is frivolous.

(e) (1) In any action under subsection (a) with respect to a failure of a franchisor to renew a franchise relationship in compliance with the requirements of section 102, the court may not compel a continuation or renewal of the franchise relationship if the franchisor demonstrates to the satisfaction of the court that,

(A) the basis for such nonrenewal is a determination made by the franchisor in good faith and in the normal course of business

(i) to convert the leased marketing premises to a use other than the sale or distribution of motor fuel,

(ii) to materially alter, add to, or replace such premises, (iii) to sell such premises,

(iv) to withdraw from the marketing of motor fuel through retail outlets in the relevant geographic market area in which the marketing premises are located, or

(v) that renewal of the franchise relationship is likely to be uneconomical to the franchisor despite any reasonable changes or reasonable additions to the provisions of the fran

chise which may be acceptable to the franchisee; and

(B) the requirements of section 104 have been complied with. (2) The provisions of paragraph (1) shall not affect any right of any franchisee to recover actual damages and reasonable attorney and expert witness fees under subsection (d) if such nonrenewal is prohibited by section 102.

RELATIONSHIP OF THIS TITLE TO STATE LAW

15 USC 2806.

Sec. 106. (a) To the extent that any provision of this title applies to the termination (or the furnishing of notification with respect thereto) of any franchise, or to the nonrenewal (or the furnishing of notification with respect thereto) of any franchise relationship, no State or any political subdivision thereof may adopt, enforce, or continue in effect any provision of any law or regulation (including any remedy or penalty applicable to any violation thereof) with respect to termination (or the furnishing of notification with respect thereto) of any such franchise or to the nonrenewal (or the furnishing of notification with respect thereto) of any such franchise relationship unless such provision of such law or regulation is the same as the applicable provision of this title.

(b) Nothing in this title authorizes any transfer or assignment of any franchise or prol ibits any transfer or assignment of any franchise as authorized by the provisions of such franchise or by any applicable provision of State law which permits such transfer or assignment without regard to any provision of the franchise.

TITLE II-OCTANE DISCLOSURE

DEFINITIONS

15 USC 2821.

Sec. 201. As used in this title:

(1) The term "octane rating" means the rating of the antiknock characteristics of a grade or type of automotive gasoline as determined by dividing by 2 the sum of the research octane number plus the motor octane number, unless another procedure is prescribed under section 203 (c) (3), in which case such term means the rating of such characteristics as determined under the procedure so prescribed.

(2) The terms "research octane number” and “motor octane number” have the meanings given such terms in the specifications of the American Society for Testing and Materials (ASTM) entitled "Standard Specifications for Automotive Gasoline” designated D 439 (as in effect on the date of the enactment of this Act) and, with respect to any grade or type of automotive gasoline, are determined in accordance with test methods set forth in ASTM standard test methods designated D 2699 and D 2700 (as in effect on such date).

(3) The term “knock” means the combustion of a fuel spontaneously in localized areas of a cylinder of a spark-ignition engine, instead of the combustion of such fuel progressing from the spark.

(4) The term "gasoline retailer" means any person who markets automotive gasoline to the general public for ultimate consumption. (5) The term “refiner” means any person engaged in

(A) the refining of crude oil to produce automotive gasoline; or

(B) the importation of automotive gasoline. (6) The term “automotive gasoline” means gasoline of a type distributed for use as a fuel in any motor vehicle.

(7) The term “motor vehicle” means any self-propelled fourwheeled vehicle, of less than 6,000 pounds gross vehicle weight, which is designed primarily for use on public streets, roads, and highways.

(8) The term “new motor vehicle” means any motor vehicle the equitable or legal title to which has not previously been transferred to an ultimate purchaser.

(9) The term “ultimate purchaser" means, with respect to any item, the first person who purchases such item for purposes other than resale.

(10) The term “manufacturer” means any person who imports, manufactures, or assembles motor vehicles for sale.

(11) The term "octane requirement” means, with respect to automotive gasoline for use in a motor vehicle or a class thereof, imported, manufactured, or assembled by a manufacturer, the minimum octane rating of such automotive gasoline which such manufacturer recommends for the efficient operation of such

motor vehicle, or a substantial portion of such class, without knocking

(12) The term “model year” means a manufacturer's annual production period (as determined by the Federal Trade Commission) for motor vehicles or a class of motor vehicles. If a manufacturer has no annual production period, the term “model year” ineans the calendar year.

(13) The term “commerce" means any trade, traffic, transportation, exchange, or other commerce

(A) between any State and any place outside of such State; or

(B) which affects any trade, transportation, exchange, or other commerce described in subparagraph (A). (14) The term “State" means any State of the Únited States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, and any other commonwealth, territory, or possession of the United States.

(15) the term “person", for purposes of applying any provision of the Federal Trade Commission Act with respect to any provision of this title, includes a partnership and a corporation.

(16) The term “distributor" means any person who receives gasoline and distributes such gasoline to another person other than the ultimate purchaser.

OCTANE TESTING AND DISCLOSURE REQUIREMENTS

15 USC 2822.

Sec. 202. (a) Each refiner who distributes automotive gasoline in commerce shall

(1) determine the octane rating of any such gasoline; and

(2) if such refiner distributes such gasoline to any person other than the ultimate purchaser, certify, consistent with the determination made under paragraph (i), the octane rating of such

gasoline. (b) Each distributor who receives automotive gasoline, the octane rating of which is certified to him under this section, and distributes such gasoline in commerce to another person other than the ultimate purchaser shall certify to such other person the octane rating of such gasoline consistent with

(1) the octane rating of such gasoline certified to such distributor; or

(2) if such distributor elects (at such time and in such manner as the Federal Trade Commission may, by rule, prescribe), the

octane rating of such gasoline determined by such distributor. (c) Each gasoline retailer shall display in a clear and conspicuous manner, at the point of sale to ultimate purchasers of automotive gasoline, the octane rating of such gasoline, which octane rating shall be consistent with

(1) the octane rating of such gasoline certified to such retailer under subsection (a) (2) or (b);

(2) if such gasoline retailer elects (at such time and in such manner as the Federal Trade Commission may, by rule, prescribe), the octane rating of such gasoline determined by such retailer for such gasoline; or

(3) if such gasoline retailer is a refiner, the octane rating of such gasoline determined under subsection (a)(1). (d) The Federal Trade Commission shall, by rule, prescribe requirements, applicable to any manufacturer of new motor vehicles, with

« PreviousContinue »