II 

108TH CONGRESS 

1ST SESSION S. 1737

To amend the Clayton Act to enhance the authority of the Federal Trade 

Commission or the Attorney General to prevent anticompetitive practices 

in tightly concentrated gasoline markets. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 15, 2003

Mr. WYDEN introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL

To amend the Clayton Act to enhance the authority of the 

Federal Trade Commission or the Attorney General to 

prevent anticompetitive practices in tightly concentrated 

gasoline markets.

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 ‘‘Gasoline Free Market 

5 Competition Act of 2003’’. 

6 SEC. 2. RESTRAINT OF TRADE. 

7 The Clayton Act (15 U.S.C. 12 et seq.) is amended 

8 by adding at the end the following new section: 
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1 ‘‘SEC. 27. RESTRAINT OF TRADE REGARDING GASOLINE 

2 MARKET ANTICOMPETITIVE PRACTICES. 

3 ‘‘(a) IN GENERAL.—It shall be unlawful for any per4 son engaged in commerce, in the course of such commerce, 

5 directly or indirectly—

6 ‘‘(1) to impose any condition, restriction, agree7 ment, or understanding between a refiner and dis8 tributor that limits or prevents the distributor from 

9 supplying branded gasoline to independent retailers 

10 in a highly concentrated market, unless the limita11 tion can be proven not to injure, destroy, or limit 

12 competition; 

13 ‘‘(2) if that person is a refiner, to sell the same 

14 brand of gasoline to retailers owned or controlled by 

15 that refiner in a highly concentrated market at dif16 ferent prices than the refiner sells to its independent 

17 dealers, or to sell to independent dealers in the same 

18 relevant geographic market at different prices if 

19 those dealers are located in a highly concentrated 

20 market; or 

21 ‘‘(3) to engage in any other practice that the 

22 Commission determines by regulation, after notice 

23 and opportunity for public comment, would be likely 

24 to reduce supply or increase the price of gasoline in 

25 a highly concentrated market. 

26 ‘‘(b) CONSUMER WATCH ZONE.—
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1 ‘‘(1) NOTICE.—Not later than 90 days after the 

2 date of enactment of this section, the Commission or 

3 the Attorney General shall provide notice to each re4 finer, distributor, and retailer doing business in a 

5 highly concentrated market that the highly con6 centrated market is a consumer watch zone and sub7 ject to the conditions of paragraph (2). 

8 ‘‘(2) CONDITIONS.—In a consumer watch zone 

9 the following conditions shall apply to a refiner, dis10 tributor, or retailer: 

11 ‘‘(A) SHIFT OF BURDEN OF PROOF.—If 

12 the Commission or the Attorney General makes 

13 a prima facie case of a violation of subsection 

14 (a) against a refiner, distributor, or retailer, the 

15 burden of proof of proving a benefit to the con16 sumers shall shift to the refiner, distributor, or 

17 retailer. A refiner, distributor, or retailer may 

18 rebut the prima facie case by showing that the 

19 action that is the basis of the alleged violation 

20 was taken to lower gasoline price in a good 

21 faith effort to meet an equally low price of a 

22 competitor. 

23 ‘‘(B) CEASE AND DESIST.—The Commis24 sion or the Attorney General may issue a cease 
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1 and desist order under this section for a viola2 tion of subsection (a). 

3 ‘‘(c) EVALUATION OF OIL MERGER.—In evaluating 

4 whether any combination of refiners violates the antitrust 

5 laws, the Commission or the Attorney General shall not 

6 approve any combination that would create a highly con7 centrated market that would injure, destroy, or limit com8 petition. 

9 ‘‘(d) ACTION BY STATE ATTORNEY GENERAL.—Any 

10 attorney general of a State may bring a civil action in the 

11 name of such State in any district court of the United 

12 States having jurisdiction of the defendant to secure relief 

13 for a violation of subsection (a) or (b) as provided in sec14 tion 4C. 

15 ‘‘(e) DEFINITIONS.—In this section: 

16 ‘‘(1) HIGHLY CONCENTRATED MARKET.—The 

17 term ‘highly concentrated market’ means a gasoline 

18 market where the 4 largest refiners control 70 per19 cent or more of the gasoline market in a relevant ge20 ographic market area. 

21 ‘‘(2) OTHER TERMS.—The terms ‘distributor’, 

22 ‘refiner’, ‘retailer’, and ‘relevant geographic market 

23 area’ have the same meanings given those terms in 
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1 section 101 of the Petroleum Marketing Practices 

2 Act (15 U.S.C. 2801).’’.

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