H. R. 964
To protect consumers from price-gouging of gasoline and other fuels,
and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
March 9, 2011
Mr. BISHOP of New York (for himself, Mr. MCNERNEY, Mr. WALZ of Minnesota,
Mr. MCINTYRE, Mr. BRALEY of Iowa, Mr. YARMUTH, and Mr. CHANDLER) introduced
the following bill; which was referred to the Committee on Energy and Commerce
To protect consumers from price-gouging of gasoline and other fuels,
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.
This Act may be cited as the `Federal Price Gouging Prevention Act'.
SEC. 2. UNCONSCIONABLE PRICING OF GASOLINE AND OTHER PETROLEUM DISTILLATES
(a) Unconscionable Pricing-
(1) IN GENERAL- It shall be unlawful for any person to sell, at wholesale
or at retail in an area and during a period of an international crisis affecting
the oil markets proclaimed under paragraph (2), gasoline or any other petroleum
distillate covered by a proclamation issued under paragraph (2) at a price
(A) is unconscionably excessive; and
(B) indicates the seller is taking unfair advantage of the circumstances
related to an international crisis to increase prices unreasonably.
(2) ENERGY EMERGENCY PROCLAMATION-
(A) IN GENERAL- The President may issue a proclamation of an international
crisis affecting the oil markets and may designate any area within the
jurisdiction of the United States, where the prohibition in paragraph
(1) shall apply. The proclamation shall state the geographic area covered,
the gasoline or other petroleum distillate covered, and the time period
that such proclamation shall be in effect.
(B) DURATION- The proclamation--
(i) may not apply for a period of more than 30 consecutive days, but
may be renewed for such consecutive periods, each not to exceed 30 days,
as the President determines appropriate; and
(ii) may include a period of time not to exceed 1 week preceding a reasonably
(3) FACTORS CONSIDERED- In determining whether a person has violated paragraph
(1), there shall be taken into account, among other factors--
(A) whether the amount charged by such person for the applicable gasoline
or other petroleum distillate at a particular location in an area covered
by a proclamation issued under paragraph (2) during the period such proclamation
is in effect--
(i) grossly exceeds the average price at which the applicable gasoline
or other petroleum distillate was offered for sale by that person during
the 30 days prior to such proclamation;
(ii) grossly exceeds the price at which the same or similar gasoline
or other petroleum distillate was readily obtainable in the same area
from other competing sellers during the same period;
(iii) reasonably reflected additional costs, not within the control
of that person, that were paid, incurred, or reasonably anticipated
by that person, or reflected additional risks taken by that person to
produce, distribute, obtain, or sell such product under the circumstances;
(iv) was substantially attributable to local, regional, national, or
international market conditions; and
(B) whether the quantity of gasoline or other petroleum distillate the
person produced, distributed, or sold in an area covered by a proclamation
issued under paragraph (2) during a 30-day period following the issuance
of such proclamation increased over the quantity that that person produced,
distributed, or sold during the 30 days prior to such proclamation, taking
into account usual seasonal demand variations.
(b) Definitions- As used in this section--
(1) the term `wholesale', with respect to sales of gasoline or other petroleum
distillates, means either truckload or smaller sales of gasoline or petroleum
distillates where title transfers at a product terminal or a refinery, and
dealer tank wagon sales of gasoline or petroleum distillates priced on a
delivered basis to retail outlets; and
(2) the term `retail', with respect to sales of gasoline or other petroleum
distillates, includes all sales to end users such as motorists as well as
all direct sales to other end users such as agriculture, industry, residential,
and commercial consumers.
SEC. 3. ENFORCEMENT BY THE FEDERAL TRADE COMMISSION.
(a) Enforcement by FTC- A violation of section 2 shall be treated as a violation
of a rule defining an unfair or deceptive act or practice prescribed under
section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
The Federal Trade Commission shall enforce this Act in the same manner, by
the same means, and with the same jurisdiction as though all applicable terms
and provisions of the Federal Trade Commission Act were incorporated into
and made a part of this Act. In enforcing section 2 of this Act, the Commission
shall give priority to enforcement actions concerning companies with total
United States wholesale or retail sales of gasoline and other petroleum distillates
in excess of $10,000,000,000 per year.
(1) IN GENERAL- Notwithstanding the penalties set forth under the Federal
Trade Commission Act, any person who violates section 2 with actual knowledge
or knowledge fairly implied on the basis of objective circumstances shall
be subject to--
(A) a civil penalty of not more than 3 times the amount of profits gained
by such person through such violation; or
(B) a civil penalty of not more than $100,000,000.
(2) METHOD- The penalties provided by paragraph (1) shall be obtained in
the same manner as civil penalties obtained 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
(B) the court shall take into consideration, among other factors, 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.
SEC. 4. CRIMINAL PENALTIES.
(a) In General- In addition to any penalty applicable under section 3, any
person who violates section 2 shall be fined under title 18, United States
Code, in an amount not to exceed $500,000,000.
(b) Enforcement- The criminal penalty provided by subsection (a) may be imposed
only pursuant to a criminal action brought by the Attorney General or other
officer of the Department of Justice. The Attorney General shall give priority
to enforcement actions concerning companies with total United States wholesale
or retail sales of gasoline and other petroleum distillates in excess of $10,000,000,000
SEC. 5. ENFORCEMENT AT RETAIL LEVEL 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 2 of this Act, or to impose the civil penalties
authorized by section 3(b)(1)(B), 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 violation of this
Act or a regulation under this Act, involving a retail sale.
(b) Notice- The State shall serve written notice to the Federal Trade Commission
of any civil action under subsection (a) prior to initiating such civil action.
The notice shall include a copy of the complaint to be filed to initiate such
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
such civil action.
(c) Authority To Intervene- Upon receiving the notice required by subsection
(b), the Federal Trade Commission may intervene in such civil action and upon
(1) be heard on all matters arising in such civil action; and
(2) 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
(1) the venue shall be a judicial district in which--
(A) the defendant operates;
(B) the defendant was authorized to do business; or
(C) 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 Federal
Trade Commission has instituted a civil action or an administrative action
for violation of this Act, no State attorney general, or official or agency
of a State, may bring an action under this subsection during the pendency
of that action against any defendant named in the complaint of the Federal
Trade Commission or the other agency for any violation of this Act alleged
in the complaint.
(g) Enforcement of State Law- Nothing contained in this section shall prohibit
an authorized State official from proceeding in State court to enforce a civil
or criminal statute of such State.
SEC. 6. EFFECT ON OTHER LAWS.
(a) Other Authority of Federal Trade Commission- Nothing in this Act shall
be construed to limit or affect in any way the Federal Trade 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
(b) State Law- Nothing in this Act preempts any State law.