I 

111TH CONGRESS 

1ST SESSION H. R. 2129 

To protect consumers from price-gouging of gasoline and other fuels, and 

for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 27, 2009 

Mr. STUPAK (for himself, Mr. BAIRD, Mr. BERMAN, Ms. BORDALLO, Mr. 

CARNAHAN, Mr. CARNEY, Mr. CONYERS, Mr. COURTNEY, Mr. DOYLE, 

Ms. ESHOO, Mr. FARR, Mr. GRIJALVA, Mr. HARE, Mr. HIGGINS, Mr. 

HILL, Mr. HINCHEY, Mr. HOLDEN, Mr. LEVIN, Mr. MCGOVERN, Mr. 

MCHUGH, Mrs. MALONEY, Mr. MARKEY of Massachusetts, Mr. OBERSTAR, Mr. PASCRELL, Mr. RYAN of Ohio, Mr. SIRES, Mr. SPACE, Ms. 

SUTTON, Mr. TAYLOR, Mr. TIERNEY, Mr. VAN HOLLEN, and Mr. VISCLOSKY) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on 

Education and Labor, for a period to be subsequently determined by the 

Speaker, in each case for consideration of such provisions as fall within 

the jurisdiction of the committee concerned 

A BILL 

To protect consumers from price-gouging of gasoline and 

other fuels, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Federal Price Gouging 

5 Prevention Act’’. 


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1 SEC. 2. UNCONSCIONABLE PRICING OF GASOLINE AND 

2 OTHER PETROLEUM DISTILLATES DURING 

3 EMERGENCIES. 

4 (a) UNCONSCIONABLE PRICING.— 

5 (1) IN GENERAL.—It shall be unlawful for any 

6 person to sell, at wholesale or at retail in an area 

7 and during a period of an energy emergency, gaso8 line or any other petroleum distillate covered by a 

9 proclamation issued under paragraph (2) at a price 

10 that— 

11 (A) is unconscionably excessive; and 

12 (B) indicates the seller is taking unfair ad13 vantage of the circumstances related to an en14 ergy emergency to increase prices unreasonably. 

15 (2) ENERGY EMERGENCY PROCLAMATION.— 

16 (A) IN GENERAL.—The President may 

17 issue an energy emergency proclamation for any 

18 area within the jurisdiction of the United 

19 States, during which the prohibition in para20 graph (1) shall apply. The proclamation shall 

21 state the geographic area covered, the gasoline 

22 or other petroleum distillate covered, and the 

23 time period that such proclamation shall be in 

24 effect. 

25 (B) DURATION.—The proclamation— 


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1 (i) may not apply for a period of more 

2 than 30 consecutive days, but may be re3 newed for such consecutive periods, each 

4 not to exceed 30 days, as the President de5 termines appropriate; and 

6 (ii) may include a period of time not 

7 to exceed 1 week preceding a reasonably 

8 foreseeable emergency. 

9 (3) FACTORS CONSIDERED.—In determining 

10 whether a person has violated paragraph (1), there 

11 shall be taken into account, among other factors— 

12 (A) whether the amount charged by such 

13 person for the applicable gasoline or other pe14 troleum distillate at a particular location in an 

15 area covered by a proclamation issued under 

16 paragraph (2) during the period such proclama17 tion is in effect— 

18 (i) grossly exceeds the average price 

19 at which the applicable gasoline or other 

20 petroleum distillate was offered for sale by 

21 that person during the 30 days prior to 

22 such proclamation; 

23 (ii) grossly exceeds the price at which 

24 the same or similar gasoline or other pe25 troleum distillate was readily obtainable in 


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1 the same area from other competing sellers 

2 during the same period; 

3 (iii) reasonably reflected additional 

4 costs, not within the control of that person, 

5 that were paid, incurred, or reasonably an6 ticipated by that person, or reflected addi7 tional risks taken by that person to 

8 produce, distribute, obtain, or sell such 

9 product under the circumstances; and 

10 (iv) was substantially attributable to 

11 local, regional, national, or international 

12 market conditions; and 

13 (B) whether the quantity of gasoline or 

14 other petroleum distillate the person produced, 

15 distributed, or sold in an area covered by a 

16 proclamation issued under paragraph (2) dur17 ing a 30-day period following the issuance of 

18 such proclamation increased over the quantity 

19 that that person produced, distributed, or sold 

20 during the 30 days prior to such proclamation, 

21 taking into account usual seasonal demand vari22 ations. 

23 (b) DEFINITIONS.—As used in this section— 

24 (1) the term ‘‘wholesale’’, with respect to sales 

25 of gasoline or other petroleum distillates, means eiVerDate Nov 24 2008 02:25 Apr 29, 2009 Jkt 079200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2129.IH H2129

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1 ther truckload or smaller sales of gasoline or petro2 leum distillates where title transfers at a product 

3 terminal or a refinery, and dealer tank wagon sales 

4 of gasoline or petroleum distillates priced on a deliv5 ered basis to retail outlets; and 

6 (2) the term ‘‘retail’’, with respect to sales of 

7 gasoline or other petroleum distillates, includes all 

8 sales to end users such as motorists as well as all 

9 direct sales to other end users such as agriculture, 

10 industry, residential, and commercial consumers. 

11 (c) CONSTRUCTION.—As described in this section, a 

12 sale of gasoline or other petroleum distillate does not in13 clude a transaction on a futures market. 

14 SEC. 3. ENFORCEMENT BY THE FEDERAL TRADE COMMIS15 SION. 

16 (a) ENFORCEMENT BY FTC.—A violation of section 

17 2 shall be treated as a violation of a rule defining an un18 fair or deceptive act or practice prescribed under section 

19 18(a)(1)(B) of the Federal Trade Commission Act (15 

20 U.S.C. 57a(a)(1)(B)). The Federal Trade Commission 

21 shall enforce this Act in the same manner, by the same 

22 means, and with the same jurisdiction as though all appli23 cable terms and provisions of the Federal Trade Commis24 sion Act were incorporated into and made a part of this 

25 Act. In enforcing section 2(a) of this Act, the Commission 


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1 shall give priority to enforcement actions concerning com2 panies with total United States wholesale or retail sales 

3 of gasoline and other petroleum distillates in excess of 

4 $500,000,000 per year. 

5 (b) CIVIL PENALTIES.— 

6 (1) IN GENERAL.—Notwithstanding the pen7 alties set forth under the Federal Trade Commission 

8 Act, any person who violates this Act with actual 

9 knowledge or knowledge fairly implied on the basis 

10 of objective circumstances shall be subject to the fol11 lowing penalties: 

12 (A) PRICE GOUGING; UNJUST PROFITS.— 

13 Any person who violates section 2(a) shall be 

14 subject to— 

15 (i) a fine of not more than 3 times the 

16 amount of profits gained by such person 

17 through such violation; or 

18 (ii) a fine of not more than 

19 $3,000,000. 

20 (B) FALSE INFORMATION.—Any person 

21 who violates section 2(b) shall be subject to a 

22 civil penalty of not more than $1,000,000. 

23 (2) METHOD.—The penalties provided by para24 graph (1) shall be obtained in the same manner as 


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1 civil penalties obtained under section 5 of the Fed2 eral Trade Commission Act (15 U.S.C. 45). 

3 (3) MULTIPLE OFFENSES; MITIGATING FAC4 TORS.—In assessing the penalty provided by sub5 section (a)— 

6 (A) each day of a continuing violation shall 

7 be considered a separate violation; and 

8 (B) the court shall take into consideration, 

9 among other factors, the seriousness of the vio10 lation and the efforts of the person committing 

11 the violation to remedy the harm caused by the 

12 violation in a timely manner. 

13 SEC. 4. CRIMINAL PENALTIES. 

14 (a) IN GENERAL.—In addition to any penalty appli15 cable under section 3, any person who violates section 2 

16 shall be fined under title 18, United States Code— 

17 (1) if a corporation, not to exceed 

18 $150,000,000; and 

19 (2) if an individual not to exceed $2,000,000, 

20 or imprisoned for not more than 10 years, or both. 

21 (b) ENFORCEMENT.—The criminal penalty provided 

22 by subsection (a) may be imposed only pursuant to a 

23 criminal action brought by the Attorney General or other 

24 officer of the Department of Justice. 


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1 SEC. 5. ENFORCEMENT AT RETAIL LEVEL BY STATE ATTOR2 NEYS GENERAL. 

3 (a) IN GENERAL.—A State, as parens patriae, may 

4 bring a civil action on behalf of its residents in an appro5 priate district court of the United States to enforce the 

6 provisions of section 2(a) of this Act, or to impose the 

7 civil penalties authorized by section 3(b)(1)(B), whenever 

8 the attorney general of the State has reason to believe that 

9 the interests of the residents of the State have been or 

10 are being threatened or adversely affected by a violation 

11 of this Act or a regulation under this Act, involving a re12 tail sale. 

13 (b) NOTICE.—The State shall serve written notice to 

14 the Federal Trade Commission of any civil action under 

15 subsection (a) prior to initiating such civil action. The no16 tice shall include a copy of the complaint to be filed to 

17 initiate such civil action, except that if it is not feasible 

18 for the State to provide such prior notice, the State shall 

19 provide such notice immediately upon instituting such civil 

20 action. 

21 (c) AUTHORITY TO INTERVENE.—Upon receiving the 

22 notice required by subsection (b), the Federal Trade Com23 mission may intervene in such civil action and upon inter24 vening— 

25 (1) be heard on all matters arising in such civil 

26 action; and 


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1 (2) file petitions for appeal of a decision in such 

2 civil action. 

3 (d) CONSTRUCTION.—For purposes of bringing any 

4 civil action under subsection (a), nothing in this section 

5 shall prevent the attorney general of a State from exer6 cising the powers conferred on the attorney general by the 

7 laws of such State to conduct investigations or to admin8 ister oaths or affirmations or to compel the attendance 

9 of witnesses or the production of documentary and other 

10 evidence. 

11 (e) VENUE; SERVICE OF PROCESS.—In a civil action 

12 brought under subsection (a)— 

13 (1) the venue shall be a judicial district in 

14 which— 

15 (A) the defendant operates; 

16 (B) the defendant was authorized to do 

17 business; or 

18 (C) the defendant in the civil action is 

19 found; 

20 (2) process may be served without regard to the 

21 territorial limits of the district or of the State in 

22 which the civil action is instituted; and 

23 (3) a person who participated with the defend24 ant in an alleged violation that is being litigated in 


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1 the civil action may be joined in the civil action with2 out regard to the residence of the person. 

3 (f) LIMITATION ON STATE ACTION WHILE FEDERAL

4 ACTION IS PENDING.—If the Federal Trade Commission 

5 has instituted a civil action or an administrative action 

6 for violation of this Act, no State attorney general, or offi7 cial or agency of a State, may bring an action under this 

8 subsection during the pendency of that action against any 

9 defendant named in the complaint of the Federal Trade 

10 Commission or the other agency for any violation of this 

11 Act alleged in the complaint. 

12 (g) ENFORCEMENT OF STATE LAW.—Nothing con13 tained in this section shall prohibit an authorized State 

14 official from proceeding in State court to enforce a civil 

15 or criminal statute of such State. 

16 SEC. 6. LOW INCOME ENERGY ASSISTANCE. 

17 Amounts collected in fines and penalties under sec18 tion 3 of this Act shall be deposited in a separate fund 

19 in the treasury to be known as the Consumer Relief Trust 

20 Fund. To the extent provided for in advance in appropria21 tions Acts, the fund shall be used to provide assistance 

22 under the Low Income Home Energy Assistance Program 

23 administered by the Secretary of Health and Human Serv24 ices. 


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1 SEC. 7. EFFECT ON OTHER LAWS. 

2 (a) OTHER AUTHORITY OF FEDERAL TRADE COM3 MISSION.—Nothing in this Act shall be construed to limit 

4 or affect in any way the Federal Trade Commission’s au5 thority to bring enforcement actions or take any other 

6 measure under the Federal Trade Commission Act (15 

7 U.S.C. 41 et seq.) or any other provision of law. 

8 (b) STATE LAW.—Nothing in this Act preempts any 

9 State law. 

Æ 


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