```

[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 1263 Introduced in Senate (IS)]

  1st Session
                                S. 1263

 To protect the welfare of consumers by prohibiting price gouging with 
respect to gasoline and petroleum distillates during natural disasters 
        and abnormal market disruptions, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                              May 2, 2007

Ms. Cantwell (for herself, Mr. Smith, Mr. Kerry, Mrs. Boxer, Mr. Nelson 
    of Florida, Mrs. McCaskill, Mr. Rockefeller, Mrs. Murray, Mrs. 
 Feinstein, Mr. Biden, Mrs. Stabenow, Mr. Wyden, Mr. Reed, Mr. Dorgan, 
 Mr. Durbin, and Mr. Harkin) introduced the following bill; which was 
  read twice and referred to the Committee on Commerce, Science, and 
                             Transportation

_______________________________________________________________________

                                 A BILL

 
 To protect the welfare of consumers by prohibiting price gougingwith 
respect to gasoline and petroleum distillates during natural disasters 
        and abnormal market disruptions, and for other purposes.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short title.--This Act may be cited as the ``Petroleum Consumer 
Price Gouging Protection Act''.
    (b) Table of contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Prohibition on price gouging during energy emergencies.
Sec. 4. Prohibition on market manipulation.
Sec. 5. Prohibition on false information.
Sec. 6. Presidential declaration of energy emergency.
Sec. 7. Enforcement by the Federal Trade Commission.
Sec. 8. Enforcement by State Attorneys General.
Sec. 9. Penalties.
Sec. 10. Effect on other laws.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Affected area.--The term ``affected area'' means an 
        area covered by a Presidential declaration of energy emergency.
            (2) Supplier.--The term ``supplier'' means any person 
        engaged in the trade or business of selling or reselling, at 
        retail or wholesale, or distributing crude oil, gasoline, or 
        petroleum distillates.
            (3) Price gouging.--The term ``price gouging'' means the 
        charging of an unconscionably excessive price by a supplier in 
        an affected area.
            (4) Unconscionably excessive price.--The term 
        ``unconscionably excessive price'' means a price charged in an 
        affected area for crude oil, gasoline, or petroleum distillates 
        that--
                    (A)(i) represents a gross disparity between the 
                price at which it was offered for sale in the usual 
                course of the supplier's business immediately prior to 
                the President's declaration of an energy emergency;
                    (ii) grossly exceeds the price at which the same or 
                similar crude oil, gasoline, or petroleum distillate 
                was readily obtainable by other purchasers in the 
                affected area; or
                    (iii) represents an exercise of unfair leverage or 
                unconscionable means on the part of the supplier, 
                during a period of declared energy emergency; and
                    (B) is not attributable to increased wholesale or 
                operational costs outside the control of the supplier, 
                incurred in connection with the sale of crude oil, 
                gasoline, or petroleum distillates.
            (5) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.

SEC. 3. PROHIBITION ON PRICE GOUGING DURING ENERGY EMERGENCIES.

    (a) In General.--During any energy emergency declared by the 
President under section 6 of this Act, it is unlawful for any supplier 
to sell, or offer to sell, crude oil, gasoline, or petroleum 
distillates in, or for use in, the area to which that declaration 
applies at an unconscionably excessive price.
    (b) Factors Considered.--In determining whether a violation of 
subsection (a) has occurred, there shall be taken into account, among 
other factors, the price that would reasonably equate supply and demand 
in a competitive and freely functioning market.

SEC. 4. PROHIBITION ON MARKET MANIPULATION.

    It is unlawful for any person, directly or indirectly, to use or 
employ, in connection with the purchase or sale of crude oil, gasoline, 
or petroleum distillates at wholesale, any manipulative or deceptive 
device or contrivance, in contravention of such rules and regulations 
as the Commission may prescribe as necessary or appropriate in the 
public interest or for the protection of United States citizens.

SEC. 5. PROHIBITION ON FALSE INFORMATION.

    (a) In General.--It is unlawful for any person to report 
information related to the wholesale price of crude oil, gasoline, or 
petroleum distillates to the Commission if--
            (1) that person knew, or reasonably should have known, the 
        information to be false or misleading;
            (2) the information was required by law to be reported; and
            (3) the person intended the false or misleading data to 
        affect data compiled by the Commission for statistical or 
        analytical purposes with respect to the market for crude oil, 
        gasoline, or petroleum distillates.

SEC. 6. PRESIDENTIAL DECLARATION OF ENERGY EMERGENCY.

    (a) In General.--If the President finds that the health, safety, 
welfare, or economic well-being of the citizens of the United States is 
at risk because of a shortage or imminent shortage of adequate supplies 
of crude oil, gasoline, or petroleum distillates due to a disruption in 
the national distribution system for crude oil, gasoline, or petroleum 
distillates (including such a shortage related to a major disaster (as 
defined in section 102(2) of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (42 U.S.C. 5122(2))), or significant pricing 
anomalies in national energy markets for crude oil, gasoline, or 
petroleum distillates, the President may declare that a Federal energy 
emergency exists.
    (b) Scope and Duration.--The emergency declaration shall specify--
            (1) the period, not to exceed 30 days, for which the 
        declaration applies;
            (2) the circumstance or condition necessitating the 
        declaration; and
            (3) the area or region to which it applies, which, for the 
        48 contiguous states may not be limited to a single State.
    (c) Extensions.--The President may--
            (1) extend a declaration under subsection (a) for a period 
        of not more than 30 days; and
            (2) extend such a declaration more than once.

SEC. 7. ENFORCEMENT BY THE FEDERAL TRADE COMMISSION.

    (a) Enforcement.--This Act shall be enforced by the Federal Trade 
Commission. In enforcing section 3 of this Act, the Commission shall 
give priority to enforcement actions concerning companies with total 
United States wholesale or retail sales of crude oil, gasoline, and 
petroleum distillates in excess of $500,000,000 per year but shall not 
exclude enforcement actions against companies with total United States 
wholesale sales of $500,000,000 or less per year.
    (b) Violation is Unfair or Deceptive Act or Practice.--The 
violation of any provision of this Act shall be treated as an unfair or 
deceptive act or practice proscribed under a rule issued under section 
18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 
57a(a)(1)(B)).
    (c) Commission Actions.--Following the declaration of an energy 
emergency by the President under section 6 of this Act, the Commission 
shall--
            (1) establish within the Commission--
                    (A) a toll-free hotline that a consumer may call to 
                report an incident of price gouging in the affected 
                area; and
                    (B) a program to develop and distribute to the 
                public informational materials to assist residents of 
                the affected area in detecting and avoiding price 
                gouging;
            (2) consult with the Attorney General, the United States 
        Attorney for the districts in which a disaster occurred (if the 
        declaration is related to a major disaster), and State and 
        local law enforcement officials to determine whether any 
        supplier in the affected area is charging or has charged an 
        unconscionably excessive price for crude oil, gasoline, or 
        petroleum distillates in the affected area; and
            (3) conduct an investigation to determine whether any 
        supplier in the affected area has violated section 3 of this 
        Act, and upon such finding, take any action the Commission 
        determines to be appropriate to remedy the violation.

SEC. 8. ENFORCEMENT BY STATE ATTORNEYS GENERAL.

    (a) In General.--A State, as parens patriae, may bring a civil 
action on behalf of its residents in an appropriate district court of 
the United States to enforce the provisions of section 3 of this Act, 
or to impose the civil penalties authorized by section 9 for violations 
of section 3, whenever the attorney general of the State has reason to 
believe that the interests of the residents of the State have been or 
are being threatened or adversely affected by a supplier engaged in the 
sale or resale, at retail or wholesale, or distribution of crude oil, 
gasoline, or petroleum distillates in violation of section 3 of this 
Act.
    (b) Notice.--The State shall serve written notice to the Commission 
of any civil action under subsection (a) prior to initiating the 
action. The notice shall include a copy of the complaint to be filed to 
initiate the civil action, except that if it is not feasible for the 
State to provide such prior notice, the State shall provide such notice 
immediately upon instituting the civil action.
    (c) Authority to Intervene.--Upon receiving the notice required by 
subsection (b), the Commission may intervene in the civil action and, 
upon intervening--
            (1) may be heard on all matters arising in such civil 
        action; and
            (2) may file petitions for appeal of a decision in such 
        civil action.
    (d) Construction.--For purposes of bringing any civil action under 
subsection (a), nothing in this section shall prevent the attorney 
general of a State from exercising the powers conferred on the Attorney 
General by the laws of such State to conduct investigations or to 
administer oaths or affirmations or to compel the attendance of 
witnesses or the production of documentary and other evidence.
    (e) Venue; Service of Process.--In a civil action brought under 
subsection (a)--
            (1) the venue shall be a judicial district in which--
                    (A) the defendant operates;
                    (B) the defendant was authorized to do business; or
                    (C) where the defendant in the civil action is 
                found;
            (2) process may be served without regard to the territorial 
        limits of the district or of the State in which the civil 
        action is instituted; and
            (3) a person who participated with the defendant in an 
        alleged violation that is being litigated in the civil action 
        may be joined in the civil action without regard to the 
        residence of the person.
    (f) Limitation on State Action while Federal Action is Pending.--If 
the Commission has instituted a civil action or an administrative 
action for violation of this Act, a State attorney general, or official 
or agency of a State, may not bring an action under this section during 
the pendency of that action against any defendant named in the 
complaint of the Commission or the other agency for any violation of 
this Act alleged in the Commission's civil or administrative action.
    (g) No Preemption.--Nothing contained in this section shall 
prohibit an authorized State official from proceeding in State court to 
enforce a civil or criminal statute of that State.

SEC. 9. PENALTIES.

    (a) Civil Penalty.--
            (1) In general.--In addition to any penalty applicable 
        under the Federal Trade Commission Act, any supplier--
                    (A) that violates section 4 or section 5 of this 
                Act is punishable by a civil penalty of not more than 
                $1,000,000; and
                    (B) that violates section 3 of this Act is 
                punishable by a civil penalty of--
                            (i) not more than $500,000, in the case of 
                        an independent small business marketer of 
                        gasoline (within the meaning of section 324(c) 
                        of the Clean Air Act (42 U.S.C. 7625(c))); and
                            (ii) not more than $5,000,000 in the case 
                        of any other supplier.
            (2) Method of assessment.--The penalties provided by 
        paragraph (1) shall be assessed in the same manner as civil 
        penalties imposed under section 5 of the Federal Trade 
        Commission Act (15 U.S.C. 45).
            (3) Multiple offenses; mitigating factors.--In assessing 
        the penalty provided by subsection (a)--
                    (A) each day of a continuing violation shall be 
                considered a separate violation; and
                    (B) the Commission shall take into consideration 
                the seriousness of the violation and the efforts of the 
                person committing the violation to remedy the harm 
                caused by the violation in a timely manner.
    (b) Criminal Penalty.--Violation of section 3 of this Act is 
punishable by a fine of not more than $5,000,000, imprisonment for not 
more than 5 years, or both.

SEC. 10. EFFECT ON OTHER LAWS.

    (a) Other Authority of the Commission.--Nothing in this Act shall 
be construed to limit or affect in any way the Commission's authority 
to bring enforcement actions or take any other measure under the 
Federal Trade Commission Act (15 U.S.C. 41 et seq.) or any other 
provision of law.
    (b) State Law.--Nothing in this Act preempts any State law.
                                 <all>
```