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Petroleum Products Pricing Regulations

made under Section 14 of the

Petroleum Products Pricing Act

S.N.S. 2005, c. 11

O.I.C. 2009-399 (September 24, 2009, effective October 1, 2009), N.S. Reg. 286/2009

as amended to O.I.C. 2010-327 (August 24, 2010), N.S. Reg. 128/2010


Citation

1     These regulations may be cited as the Petroleum Products Pricing Regulations.


Purpose of regulations

2     The purpose of these regulations is to ensure just and reasonable prices for specified petroleum products, taking into consideration all of the following objectives:

 

                (a)    preserving availability of specified petroleum products in rural areas;

 

                (b)    stabilizing prices of specified petroleum products;

 

                (c)    minimizing the variances in prices of specified petroleum products across the Province.


Definitions

3     In these regulations,

 

“Act” means the Petroleum Products Pricing Act;

 

“agent” means an agent as defined in clause 5(a) of the Revenue Act Regulations made under the Revenue Act;

 

“benchmark price” means the price prescribed by the Board under Section 17 [16];

 

“Bloombergs Guide” means the Bloombergs Oil Buyers’ Guide produced by Bloomberg L.P.;

 

“Board” means the Nova Scotia Utility and Review Board established under the Utility and Review Board Act;

 

“gasoline” means any of the following grades of gasoline, as differentiated by the antiknock index and set out in the Canadian General Standards Board standard CAN/CGSB-3.5-2004, Unleaded Automotive Gasoline, as amended:

 

                         (i)     Grade 1—Regular,

 

                         (ii)    Grade 2—Mid-grade,

 

                         (iii)   Grade 3—Premium;

 

“Platts Report” means the Platts Oilgram Price Report/US Marketscan produced by Platts, a division of The McGraw-Hill Companies;

 

“point of sale” means

 

                         (i)     with respect to the sale of petroleum products by a wholesaler or wholesaler-retailer to a retailer, the location where the delivery of the product to the retailer takes place, and

 

                         (ii)    with respect to the sale of petroleum products by a retailer to a consumer, the location where the product is delivered to the consumer;

 

“promotion” means any item, service, or saving opportunity with an implied value extended to a retail consumer in order to entice the consumer to purchase petroleum products of a particular brand;

“promotion” added: O.I.C. 2010-327, N.S. Reg. 128/2010.

 

“reported product price” for a type of petroleum product is the daily price reported for that type of product in the Platts Report under the heading “Product Price Assessments, New York Cargo”, or in the Bloomberg Guide if the relevant data is not available from the Platts Report;

 

“wholesaler-retailer” means a wholesaler who also sells or keeps a petroleum product for sale directly to consumers;

 

“winter blending” means the process used to ensure satisfactory fuel operability in cold temperature environments.


Application of Act and regulations

4     (1)    Except as otherwise provided in this Section, the following types of petroleum products are subject to these regulations:

 

                (a)    gasoline;

 

                (b)    ultra-low-sulfur diesel oil.

 

       (2)    A petroleum product of a type that is not listed in subsection (1) is exempt from these regulations and from Sections 4 to 7 of the Act.

 

       (3)    All of the following petroleum products are exempt from these regulations and from Sections 4 to 7 of the Act:

 

                (a)    aviation gasoline;

 

                (b)    except as provided in subsection (4), any petroleum product sold or purchased for use as fuel in a watercraft or an aircraft equipped to float on water;

 

                (c)    except as provided in subsection (4), any petroleum product sold or purchased for use as fuel in an off-highway vehicle as defined in clause 2(d) of the Off-highway Vehicles Act;

 

                (d)    gasoline and ultra-low-sulfur diesel oil bought by a consumer through a commercial bulk volume contract for 5000 L or more;

 

                (e)    gasoline and ultra-low-sulfur diesel oil sold or purchased at a restricted access outlet as defined in clause 2(p) of the Motive Fuel and Fuel Oil Approval Regulations made under the Environment Act for use as fuel in a vehicle being operated for the carriage of persons or property for commercial gain;

 

                (f)    any petroleum product that is exempt from tax under Section 22 of the Revenue Act Regulations made under the Revenue Act.

 

       (4)    These regulations apply to any petroleum product listed in clause (3)(b) or (c) if the product is sold or purchased from a retailer, wholesaler or wholesaler-retailer who also sells a petroleum product for other purposes.

 

       (5)    These regulations do not apply to a retailer or wholesaler-retailer if the only petroleum products they sell or purchase are any of the products listed in clause (3)(b) or (c).

 

       (6)    These regulations apply to a retailer, wholesaler or wholesaler-retailer if they sell or purchase any petroleum product listed in clause (3)(b) or (c) in addition to selling or purchasing a petroleum product for other purposes.


Regulations prevail over contract

5     These regulations prevail over a contract between a wholesaler or wholesaler-retailer and a retailer with respect to the wholesale price and retail mark-up of a petroleum product.


Retailer may opt out of regulations

6     Despite the Act and these regulations, a retailer who is a party to a contract with a wholesaler or wholesaler-retailer may opt out of these regulations with respect to the wholesale price and retail mark-up of a petroleum product.


Retailer opting out

7     (1)    A retailer who decides to opt out of these regulations must notify the Minister by providing the Minister with all of the following:

 

                (a)    a statement in the form required by the Minister and signed by the retailer, indicating that the retailer has decided to opt out of these regulations;

 

                (b)    a copy of their contract with their wholesaler or wholesaler-retailer.

 

       (2)    The documents required by subsection (1) must be provided to the Minister no later than the following:

 

                (a)    for a retailer who holds an existing contract with a wholesaler or wholesaler-retailer, 30 days after the contract expires;

 

                (b)    for a retailer who does not hold an existing contract with a wholesaler or wholesaler-retailer, 30 days after the retailer is issued a motive fuel retailer’s approval under the Environment Act.

 

       (3)    Before the applicable deadline in subsection (2) for sending the statement to the Minister, a retailer must send a copy of the statement required by clause (1)(a) to their wholesaler or wholesaler-retailer, and the wholesaler or wholesaler-retailer must sign the copy and return it to the Minister no later than 15 days after the date they receive it.

 

       (4)    A contract between a retailer who opts out of these regulations and a wholesaler or wholesaler-retailer prevails over these regulations with respect to the wholesale price and retail mark-up of a petroleum product.


Retailer not opting out

8     (1)    A retailer who decides not to opt out of these regulations with respect to the wholesale price and retail mark-up of a petroleum product must notify the Minister by providing the Minister with a statement in the form required by the Minister and signed by the retailer, indicating the retailer has decided not to opt out of these regulations.

 

       (2)    The statement required by subsection (1) must be provided to the Minister no later than the following:

 

                (a)    for a retailer who holds an existing contract with a wholesaler or wholesaler-retailer, 30 days after the contract expires;

 

                (b)    for a retailer who does not hold an existing contract with a wholesaler or wholesaler-retailer, 30 days after the retailer is issued a motive fuel retailer’s approval under the Environment Act.

 

       (3)    Before the applicable deadline in subsection (2) for sending the statement to the Minister, a retailer must send a copy of the statement required under subsection (1) to their wholesaler or wholesaler-retailer and the wholesaler or wholesaler-retailer must sign the copy and return it to the Minister no later than 15 days after the date they received it.

 

       (4)    Any contractual provision respecting compensation, including cross leases, dealer incentive payments, volume-associated payments, bonus incentives or any other type of compensation determined by the Minister, in a contract between a retailer who decides not to opt out of these regulations and a wholesaler or wholesaler-retailer is null and void, but nothing in these regulations prevents a retailer and a wholesaler or wholesaler-retailer from entering a new agreement respecting compensation other than the retail mark-up.


Retailer remains responsible for debts owed under contract

9     A retailer remains responsible, in accordance with the terms of any contract with a wholesaler or wholesaler-retailer, for repayment of any debt owed to the wholesaler or wholesaler-retailer regardless of whether or not the retailer opts out of these regulations with respect to the wholesale price and retail mark-up of a petroleum product.


Prescribed minimum and maximum retail price[s] still apply

10   A retailer must comply with Section 14, respecting the price to be charged to a consumer for a petroleum product, regardless of whether the retailer and the wholesaler or wholesaler-retailer have opted out of these regulations with respect to the wholesale price and retail mark-up of a petroleum product as permitted by Section 6.


Monthly assessment fee

11   (1)    A wholesaler or wholesaler-retailer who sells a petroleum product in the Province must pay monthly assessment fees based upon the sales volume of the petroleum product sold by the person in the Province at rates determined by the Minister and the Board.

 

       (2)    The monthly assessment fees must be paid at the same time as the tax required to be remitted to the Minister of Finance and Treasury Board under Section 12 of the Revenue Act Regulations made under the Revenue Act and a wholesaler or wholesaler-retailer must file an addendum to the agent’s return as required by the Minister.

[Note: The reference to the Minister of Finance has been updated in accordance with Order in Council 2013-348 under the Public Service Act, R.S.N.S. 1989, c. 376, effective October 22, 2013.]

 

       (3)    The Board may recover all or part of its direct and indirect costs for administering any powers or duties delegated to it under the Act or regulations from the monthly assessment fees set by the Board as costs of administering the Act or regulations.


Delegation of authority

12   (1)    Effective immediately after these regulations come into force, and subject to these regulations, all of the following powers under the Act are delegated to the Board:

 

                (a)    the power to divide the Province into 1 or more zones in the Province as set out in clause 14(1)(c) of the Act, and in accordance with subsection 13(2);

 

                (b)    the power to prescribe the fixed wholesale price as set out in subclause 14(1)(c)(i) of the Act;

 

                (c)    the power to prescribe a maximum retail price as set out in subclause 14(1)(c)(ii) of the Act;

 

                (d)    the power to prescribe minimum and maximum retail mark-ups as set out in subclause 14(1)(c)(iii) of the Act;

 

                (e)    the power to appoint a consumer advocate and determine the powers and duties of the advocate as set out in subclause 14(1)(h) of the Act, and in accordance with Sections 26 to 28;

 

                (f)    the power to set fees to be charged to wholesalers to cover the Board’s costs of administering the Act and its regulations, as set out in clause 14(1)(d) of the Act.

 

       (2)    The power to set fees to be charged to wholesalers to cover the Minister’s costs of administering the Act and its regulations as set out in clause 14(1)(d) of the Act is delegated to the Minister.


Zones

13   (1)    Until the Board exercises the power delegated under clause 12(1)(a), the Province is divided into the following zones for the purpose of prescribing prices for each zone:

 

                (a)    Zone 1 consists of all of the following:

 

                         (i)     Halifax County,

 

                         (ii)    Hants County,

 

                         (iii)   the southern portion of Colchester County, as divided by a straight line running from Clifton in Colchester County to the intersection of the county lines of Colchester, Pictou, Guysborough and Halifax Counties;

 

                (b)    Zone 2 consists of all of the following:

 

                         (i)     Kings County,

 

                         (ii)    Lunenburg County,

 

                         (iii)   the eastern portion of Annapolis County, as divided by a straight line running northwest from the top section of the Queens-Lunenburg county line and extending to the Bay of Fundy;

 

                (c)    Zone 3 consists of all of the following:

 

                         (i)     Queens County,

 

                         (ii)    Shelburne County,

 

                         (iii)   Yarmouth County,

 

                         (iv)   Digby County,

 

                         (v)    the western portion of Annapolis County as divided in clause (b);

 

                (d)    Zone 4 consists of Cumberland County;

 

                (e)    Zone 5 consists of all of the following:

 

                         (i)     Guysborough County,

 

                         (ii)    Antigonish County,

 

                         (iii)   Pictou County,

 

                         (iv)   the northern portion of Colchester County as divided in clause (a),

 

                         (v)    the Town of Port Hawkesbury in Inverness County,

 

                         (vi)   an area of land bounded by a straight line extending along the prolongation of the eastern boundary of the Town of Port Hawkesbury to the Trans-Canada Highway (Highway 105) and then southwesterly along the Trans-Canada Highway to the Strait of Canso.

 

                (f)    Zone 6 consists of all of the following:

 

                         (i)     Cape Breton County,

 

                         (ii)    Victoria County,

 

                         (iii)   Richmond County,

 

                         (iv)   Inverness County, except the Town of Port Hawkesbury and an area of land bounded by a straight line extending along the prolongation of the eastern boundary of the Town of Port Hawkesbury to the Trans-Canada Highway (Highway 105) and then southwesterly along the Trans-Canada Highway to the Strait of Canso.

 

       (2)    In exercising the power delegated under clause 12(1)(a), the Board may consider any factors the Board considers relevant, including the following factors:

 

                (a)    the retail prices that have been charged to retailers and consumers for petroleum products throughout the Province, over a period of time that the Board considers appropriate;

 

                (b)    any factors that could explain the differences, if any, between the retail prices across the Province for the period of time established in clause (a), including any of the following:

 

                         (i)     the distance from a refinery gate to the proposed boundaries for a zone,

 

                         (ii)    the volume of petroleum product sold to retailers during the period,

 

                         (iii)   innovations within the industry;

 

                (c)    whether new zones are required in order to preserve the viability of markets affected by their proximity to the provincial border;

 

                (d)    whether price differences between zones are just and reasonable.


Must charge prices for zone where point of sale located

14   (1)    A wholesaler or wholesaler-retailer must charge a retailer the fixed wholesale price for a type of petroleum product for the zone where the point of sale is located or as prescribed by the Board under subsection (3).

 

       (2)    A retailer must not charge a consumer a price for a type of petroleum product that is

 

                (a)    higher than the maximum retail price for the zone where the point of sale is located or as prescribed by the Board under subsection (3); or

 

                (b)    except as permitted by Section 15, lower than the minimum retail price for the zone where the point of sale is located or as prescribed by the Board under subsection (3).

Clause 14(2)(b) amended: O.I.C. 2010-327, N.S. Reg. 128/2010.

 

       (3)    On application by a wholesaler, wholesaler-retailer or retailer, and in order to preserve availability of a petroleum product in rural areas, to preserve the viability of markets in the provincial border areas or for another reason the Board considers appropriate, the Board may prescribe a different fixed wholesale price, a different retail mark-up or different minimum and maximum retail prices that the wholesaler, wholesaler-retailer or retailer may charge for a type of petroleum product at a particular point of sale.


Promotions to reduce price at time of sale

15   (1)    Effective September 1, 2010, a promotion that has the effect of reducing the price for a petroleum product below the minimum retail price at the time of sale is prohibited unless the wholesaler, retailer or wholesaler-retailer has notified the Minister of all of the following information no later than 5 business days before the start of the promotion:

 

                (a)    the start date of the promotion;

 

                (b)    the termination date of the promotion;

 

                (c)    a description of the promotion;

 

                (d)    the participating locations in Nova Scotia at which the promotion is being offered;

 

                (e)    any additional information required by the Minister.

 

       (2)    If, on September 1, 2010, a promotion that has the effect of reducing the price for a petroleum product below the minimum retail price at the time of sale is currently being offered, the wholesaler, retailer or wholesaler-retailer must notify the Minister of the information referred to in subsection (1) on or before September 10, 2010.

 

       (3)    Promotions that have the effect of reducing the price for a petroleum product below the minimum retail price at the time of sale are prohibited on transactions exceeding 100 litres.

 

       (4)    The Minister may publish any information received under this Section respecting current and upcoming promotions on a public website.

Section 15 replaced: O.I.C. 2010-327, N.S. Reg. 128/2010.


Benchmark price

16   (1)    Every Friday, at a time the Board considers appropriate, the Board must prescribe a benchmark price for each type of petroleum product.

 

       (2)    A benchmark price prescribed by the Board is the average of the average of the daily high and low reported product prices for the petroleum product during the period since the last benchmark price adjustment for that petroleum product.

 

       (3)    In prescribing a benchmark price, the daily noon exchange rates published by the Bank of Canada shall be used to convert United States currency to Canadian currency.

 

       (4)    A prescribed benchmark price must be expressed in Canadian cents per litre to the nearest one-tenth of a cent or in another unit of measurement appropriate to the petroleum product.

 

       (5)    If the Board considers it appropriate, the Board may prescribe a benchmark price at any time.


Fixed wholesale price

17   (1)    For each type of petroleum product, the fixed wholesale price in a zone is the sum of all of the following:

 

                (a)    the current benchmark price as prescribed by the Board under Section 16;

 

                (b)    the wholesale margin as calculated by the Board in accordance with subsection (4);

 

                (c)    all taxes, excluding the taxes imposed under subsections 165(1) and 165(2) of the Excise Tax Act (Canada);

 

                (d)    if the Board considers it appropriate, transportation adjustments and forward averaging corrections.

 

       (2)    In clause (1)(d), “forward averaging correction” means the difference between the benchmark price and the actual reported product price for a petroleum product since the last benchmark price adjustment for that petroleum product, and the forward averaging correction may be adjusted for variations in the volume sold during that period.

 

       (3)    In this Section,“wholesale margin” for a petroleum product means the difference between the benchmark price for that petroleum product and the price at which a wholesaler sells that petroleum product to a retailer, excluding taxes imposed under subsections 165(1) and 165(2) of the Excise Tax Act (Canada).

 

       (4)    In calculating the wholesale margin for a type of petroleum product in a zone, the Board may consider any factors the Board considers relevant, including any of the following:

 

                (a)    the wholesale margin for the type of petroleum product for the Province or for a zone, excluding taxes imposed under subsection[s] 165(1) and 165(2) of the Excise Tax Act (Canada), over a period of time the Board considers appropriate;

 

                (b)    whether the wholesale margins identified under clause (a) are just and reasonable, taking into account any of the following:

 

                         (i)     the distance from the refinery gate to the boundaries of a zone,

 

                         (ii)    the volume of petroleum product sold to retailers during the period, or

 

                         (iii)   innovations within the industry;

 

                (c)    whether additional margin is required for winter blending of ultra-low-sulfur diesel oil;

 

                (d)    the factors set out in subsection 14(3).

 

       (5)    The fixed wholesale price must be expressed in Canadian cents per litre to the nearest one-tenth of a cent or another unit of measurement appropriate to the petroleum product.


Maximum and minimum retail mark-up

18   (1)    When prescribing the minimum and maximum retail mark-ups for a type of petroleum product in a zone, the Board may consider any factors the Board considers relevant, including any of the following:

 

                (a)    the retail mark-ups within the Province or a zone for the type of petroleum product, excluding taxes imposed under subsections 165(1) and 165(2) of the Excise Tax Act (Canada), over a period of time the Board considers appropriate;

 

                (b)    whether the retail mark-ups identified under clause (a) are just and reasonable, taking into account any of the following:

 

                         (i)     the distance from a refinery gate to the boundaries of the zone,

 

                         (ii)    the volume of petroleum product sold to consumers during the period,

 

                         (iii)   innovations within the industry;

 

                (c)    whether the petroleum product is sold or purchased at a full-service retail outlet or a self-service retail outlet;

 

                (d)    whether the minimum retail mark-up will preserve the viability of markets affected by their proximity to the provincial border.

 

       (2)    The minimum and maximum retail mark-ups must be expressed in Canadian cents per litre to the nearest one-tenth of a cent or another unit of measurement appropriate to the petroleum product.


Maximum and minimum retail price[s]

19   (1)    For each type of petroleum product, the maximum retail price in a zone is the sum of all of the following:

 

                (a)    the fixed wholesale price;

 

                (b)    the maximum retail mark-up prescribed by the Board under Section 18;

 

                (c)    all taxes.

 

        (2)    For each type of petroleum product, the minimum retail price in a zone is the sum of all of the following:

 

                (a)    the fixed wholesale price;

 

                (b)    the minimum retail mark-up prescribed by the Board under Section 18;

 

                (c)    all taxes.


Informing wholesalers, wholesaler-retailers and retailers of prices

20   (1)    The Board must ensure that all wholesalers and wholesaler-retailers are informed of the fixed wholesale prices and maximum and minimum retail prices before they are to take effect.

 

       (2)    A wholesaler or wholesaler-retailer must ensure that any retailer to whom it sells a petroleum product is informed of any price change before it takes effect.


No disclosure of price before in effect

21   Unless authorized by the Board or under the Act or regulations, a wholesaler, wholesaler-retailer or retailer must not disclose to any person a price set under these regulations before the date on which the price comes into effect.


Public hearings by Board

22   (1)    The Board is hereby designated under subsection [clause] 14(1)(g) of the Act to conduct public hearings respecting any matter within its jurisdiction under these regulations, including any of the following:

 

                (a)    dividing the Province into zones;

 

                (b)    fixing wholesale prices, maximum retail prices and minimum and maximum retail mark-ups set under these regulations;

 

                (c)    the effect of promotions on the regulatory scheme established by the Act and regulations, and has the power to make recommendations to the Minister about promotions.

 

       (2)    The Board may order that some or all of its direct and indirect costs of a hearing be paid by a participant at the hearing.

 

       (3)    If the Board allows applications for funding to intervenors under its hearing processes and procedures, the funding is an expense of the Board.


Powers and duties of Board

23   The Board has all the powers set out in the Utility and Review Board Act, including the power to establish its own processes and procedures for fulfilling its functions and duties under the Act and regulations.


Investigations by Board to ensure matters just and reasonable

24   (1)    With or without notice, the Board may on its own motion investigate whether any matter within its jurisdiction under these regulations is just and reasonable, including any of the following matters:

 

                (a)    the boundaries of the zones;

 

                (b)    the fixed wholesale prices;

 

                (c)    the maximum retail prices;

 

                (d)    the minimum and maximum retail mark-ups.

 

       (2)    On application by any of the following, the Board must carry out an investigation under subsection (1):

 

                (a)    a retailer, wholesaler or wholesaler-retailer;

 

                (b)    any 5 persons, firms or corporations;

 

                (c)    the Minister.

 

       (3)    Following an investigation, the Board may make any order it considers necessary to ensure any matter within its jurisdiction under these regulations is just and reasonable, but no order may be made by the Board until a public hearing or inquiry is held in respect of the matter.


Policies, directives and bulletins of Board

25   The Board may issue general policies, directives, and bulletins consistent with the Act and these regulations about any matter within the Board’s jurisdiction under these regulations, including any of the following:

 

                (a)    forward averaging corrections,

 

                (b)    additional margin that may be required for winter blending of the ultra-low-sulphur diesel oil;

 

                (c)    circumstances when it is appropriate for the Board to prescribe a benchmark price under subsection 16(5).


When consumer advocate appointed

26   If the Board considers it appropriate, or on direction from the Minister, the Board must appoint a person to act as a consumer advocate in a hearing before the Board under these regulations.


Powers and duties of consumer advocate

27   (1)    A consumer advocate must do all of the following:

 

                (a)    participate in all aspects of a hearing before the Board;

 

                (b)    represent the interests of consumers as a full intervenor.

 

       (2)    A consumer advocate has all the powers and authority necessary to carry out their duties under subsection (1) or any other duties assigned by the Board.


Fees and expenses of consumer advocate

28   (1)    The Board may fix fees and expenses of a consumer advocate in performing their functions and duties.

 

       (2)    The fees and expenses referred to in subsection (1)

 

                (a)    are expenses of the Board;

 

                (b)    may include the cost of retaining experts and legal counsel to provide the consumer advocate with advice, including testimony, on technical and legal matters.


Information provided to Board

29   (1)    A party to a proceeding before the Board, a wholesaler, wholesaler-retailer or retailer must give the Board all information required by it to carry out its duties under the Act and regulations and must give specific answers to all specific questions asked by the Board.

 

       (2)    A wholesaler, wholesaler-retailer or retailer who receives a blank form from the Board with directions to fill in the form must answer each question on the form fully and correctly, and if a question is not fully and correctly answered must give a good and sufficient reason for failing to do so.

 

       (3)    The responses given under subsection (2) must be certified by an authorized representative of the wholesaler, wholesaler-retailer or retailer and returned to the Board at its office no later than the deadline set by the Board.

 

       (4)    If required by the Board, a wholesaler, wholesaler-retailer or retailer must deliver to the Board any documents, books, accounts, papers, records or memoranda, or copies of them, in whatever form the Board directs.


Inspection of records by Board

30   (1)    The Board, a member of the Board or a person employed by the Board for that purpose, has, on demand, the right to inspect the documents, books, accounts, papers, records and memoranda of a wholesaler, wholesaler-retailer or retailer.

 

       (2)    A person other than a Board member who makes a demand under subsection (1) must produce their authority to make the inspection or examination.


Examination under oath

31   The Board or a member of the Board has the power to examine, under oath, an officer, agent or employee of a wholesaler, wholesaler-retailer or retailer in relation to its business and affairs.


Transitional–retailers remain opted out of regulations or not opted out of regulations

32   (1)    A retailer who opted out of the regulations with respect to the wholesale price and retail mark-up of a petroleum product under any previous regulations respecting petroleum pricing made under the Act and who remained opted out of the regulations on September 30, 2009, continues to be opted out under these regulations until the retailer notifies the Minister under Section 7 or 8.

 

       (2)    A retailer who decided not to opt out of the regulations with respect to the wholesale price and retail mark-up of a petroleum product under any previous regulations respecting petroleum pricing made under the Act and who remained not opted out of the regulations on September 30, 2009, continues to be not opted out under these regulations until the retailer notifies the Minister under Section 7 or 8.