[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 7688 Placed on Calendar Senate (PCS)]
<DOC>
Calendar No. 373
117th CONGRESS
2d Session
H. R. 7688
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 19 (legislative day, May 17), 2022
Received; read the first time
May 19, 2022
Read the second time and placed on the calendar
_______________________________________________________________________
AN ACT
To protect consumers from price-gouging of consumer 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 ``Consumer Fuel Price Gouging
Prevention Act''.
SEC. 2. UNCONSCIONABLE PRICING OF CONSUMER FUELS DURING EMERGENCIES.
(a) Unconscionable Pricing.--
(1) In general.--It shall be unlawful for any person to
sell a consumer fuel, at wholesale or retail, in an area and
during a period of an energy emergency covered by a
proclamation issued under paragraph (2) at a price that--
(A) is unconscionably excessive; and
(B) indicates the seller is exploiting the
circumstances related to an energy emergency to
increase prices unreasonably.
(2) Energy emergency proclamation.--
(A) In general.--The President may issue an energy
emergency proclamation for any area within the
jurisdiction of the United States, during which the
prohibition in paragraph (1) shall apply, that includes
the geographic area covered, the consumer fuel 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 before a reasonably foreseeable
emergency.
(3) Factors considered.--
(A) In general.--In determining whether a person
has violated paragraph (1), there shall be taken into
account, among other factors, the aggravating factors
described in subparagraph (B) and the mitigating factor
described in subparagraph (C).
(B) Aggravating factors.--The aggravating factors
described in this subparagraph are the following:
(i) Whether the amount charged by such
person grossly exceeds the average price at
which the consumer fuel was offered for sale by
such person during--
(I) the 30-day period before the
date on which the proclamation was
issued; or
(II) another appropriate benchmark
period, as determined by the
Commission.
(ii) Whether the amount charged by such
person grossly exceeds the price at which the
same or a similar consumer fuel was readily
obtainable in the same area from other sellers
during the energy emergency period.
(C) Mitigating factor.--The mitigating factor
described in this subparagraph is whether the quantity
of any consumer fuel such person produced, distributed,
or sold in an area covered by the proclamation during
the 30-day period following the date on which the
proclamation was issued increased over the quantity
such person produced, distributed, or sold during the
30-day period before the date on which the proclamation
was issued, taking into account any usual seasonal
demand variation.
(b) Affirmative Defense.--It shall be an affirmative defense in any
civil action or administrative action to enforce subsection (a), with
respect to the sale, at wholesale or retail, of a consumer fuel by a
person, that the increase in the price of such consumer fuel reasonably
reflects additional costs that were paid, incurred, or reasonably
anticipated by such person, or reasonably reflects additional risks
taken by such person, to produce, distribute, obtain, or sell such
consumer fuel under the circumstances.
(c) Rule of Construction.--This section may not be construed to
cover a transaction on a futures market.
(d) Enforcement.--
(1) Federal trade commission.--A violation of subsection
(a) 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
section in the same manner, by the same means, and with the
same jurisdiction, powers, and duties as though all applicable
terms and provisions of the Federal Trade Commission Act were
incorporated into and made a part of this section. In enforcing
subsection (a), the Commission shall give priority to
enforcement actions concerning companies with total United
States wholesale or retail sales of consumer fuels in excess of
$500,000,000 per year.
(2) Enforcement at retail level by state attorneys
general.--
(A) In general.--If the chief law enforcement
officer of a State, or an official or agency designated
by a State, has reason to believe that any person has
violated or is violating subsection (a) involving a
retail sale, the attorney general, official, or agency
of the State, in addition to any authority it may have
to bring an action in State court under its laws, may
bring a civil action in any appropriate United States
district court or in any other court of competent
jurisdiction to--
(i) enjoin further such violation by such
person;
(ii) enforce compliance with such
subsection;
(iii) obtain civil penalties; and
(iv) obtain damages, restitution, or other
compensation on behalf of residents of the
State.
(B) Notice.--The State shall serve written notice
to the Commission of any civil action under
subparagraph (A) before 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 receipt of the
notice required by subparagraph (B), the Commission may
intervene in such civil action and upon intervening--
(i) be heard on all matters arising in such
civil action; and
(ii) file petitions for appeal of a
decision in such civil action.
(D) Construction.--For purposes of bringing any
civil action under subparagraph (A), nothing in this
paragraph 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) Limitation on state action while federal action
is pending.--If the Commission has instituted a civil
action or an administrative action for violation of
subsection (a), a State attorney general, or official
or agency of a State, may not bring an action under
this paragraph during the pendency of that action
against any defendant named in the complaint of the
Commission or another agency for any violation of this
Act alleged in the complaint.
(F) Rule of construction.--This paragraph may not
be construed to prohibit an authorized State official
from proceeding in State court to enforce a civil or
criminal statute of such State.
(e) Low Income Energy Assistance.--
(1) Deposit of funds.--Amounts collected in any penalty
under subsection (d)(1) shall be deposited in a separate fund
in the Treasury to be known as the Consumer Relief Trust Fund.
(2) Use of funds.--To the extent provided for in advance in
appropriations Acts, the amounts deposited into the fund shall
be used to provide assistance under the Low Income Home Energy
Assistance Program described in section 2602 of the Low-Income
Home Energy Assistance Act of 1981 (42 U.S.C. 8621)
administered by the Secretary of Health and Human Services and
the Weatherization Assistance Program established under part A
of title IV of the Energy Conservation and Production Act (42
U.S.C. 6861 et seq.) administered by the Secretary of Energy.
(f) Effect on Other Laws.--
(1) Other authority of commission.--Nothing in this section
may be construed to limit the authority of the Commission under
the Federal Trade Commission Act (15 U.S.C. 41 et seq.) or any
other provision of law.
(2) State law.--Nothing in this section preempts any State
law.
(g) Definitions.--In this section:
(1) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(2) Consumer fuel.--The term ``consumer fuel'' includes
gasoline, distillate fuel oil, jet fuel, liquid propane,
aviation gasoline, compressed natural gas, and biofuel
(including ethanol, biomass-based diesel, and renewable
blending components) used for transportation fuels, and home
heating oil and liquid propane used for residential heating or
residential energy generation.
(3) Retail.--The term ``retail'', with respect to the sale
of a consumer fuel, 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.
(4) Wholesale.--The term ``wholesale'', with respect to the
sale of a consumer fuel, means sale to any person for resale.
SEC. 3. AMENDMENTS TO THE PROHIBITIONS ON MARKET MANIPULATION AND FALSE
INFORMATION PROVISIONS OF THE ENERGY INDEPENDENCE AND
SECURITY ACT OF 2007.
(a) Application to Transportation Fuel.--Subtitle B of title VIII
of the Energy Independence and Security Act of 2007 (42 U.S.C. 17301 et
seq.) is amended--
(1) in section 811, by striking ``gasoline or petroleum
distillates'' and inserting ``or transportation fuel'';
(2) in section 812--
(A) in the matter preceding paragraph (1), by
striking ``gasoline or petroleum distillates'' and
inserting ``or transportation fuel''; and
(B) in paragraph (3), by striking ``, gasoline, or
petroleum distillates'' and inserting ``or
transportation fuel''; and
(3) by adding at the end the following new section:
``SEC. 816. DEFINITION OF TRANSPORTATION FUEL.
``In this subtitle, the term `transportation fuel' includes
gasoline, distillate fuels (including heating oil), jet fuel, aviation
gasoline, and biofuel (including ethanol, biomass-based diesel and
distillates, and renewable blending components).''.
(b) Prohibition on False Information.--Section 812 of the Energy
Independence and Security Act of 2007 (42 U.S.C. 17302) is amended--
(1) in the matter preceding paragraph (1)--
(A) by striking ``wholesale'' and inserting
``supply of, operational actions related to, output
related to, or wholesale''; and
(B) by striking ``to a Federal department or
agency'';
(2) in paragraph (1), by adding ``and'' at the end;
(3) by striking paragraph (2) and redesignating paragraph
(3), as amended by subsection (a), as paragraph (2); and
(4) in paragraph (2), as so redesignated, by striking ``the
person intended the false or misleading data to affect data
compiled by the department or agency'' and inserting ``the
false or misleading information reported by the person affected
analyses or data compiled by a Federal department or agency or
a private sector price-reporting agency''.
(c) Enforcement.--Section 813(a) of the Energy Independence and
Security Act of 2007 (42 U.S.C. 17303(a)) is amended by striking ``This
subtitle'' and inserting ``Except as otherwise provided in section 814,
this subtitle''.
(d) Penalties.--Section 814 of the Energy Independence and Security
Act of 2007 (42 U.S.C. 17304) is amended--
(1) in subsection (a), by striking ``$1,000,000'' and
inserting ``$2,000,000''; and
(2) in subsection (b), by striking ``section 5 of the
Federal Trade Commission Act (15 U.S.C. 45)'' and inserting
``section 5(m)(1)(A) of the Federal Trade Commission Act (15
U.S.C. 45(m)(1)(A))''.
SEC. 4. TRANSPORTATION FUEL MARKET TRANSPARENCY.
Section 205 of the Department of Energy Organization Act (42 U.S.C.
7135) is amended by adding at the end the following:
``(n) Transportation Fuel Market Transparency.--
``(1) Definitions.--In this subsection:
``(A) Energy company.--The term `energy company'
means a person (as defined in section 11(e) of the
Energy Supply and Environmental Coordination Act of
1974 (15 U.S.C. 796(e))) that--
``(i) owns or controls commercial amounts
of crude oil or transportation fuel; or
``(ii) is engaged in--
``(I) exploration for, or
development of, crude oil;
``(II) extraction of crude oil;
``(III) refining or otherwise
processing crude oil or transportation
fuel;
``(IV) commercial storage of crude
oil or transportation fuel;
``(V) transportation by any means
of commercial amounts of crude oil or
transportation fuel; or
``(VI) wholesale or retail
distribution of crude oil or
transportation fuel.
``(B) Transportation fuel.--The term
`transportation fuel' means--
``(i) gasoline;
``(ii) distillate fuels, including heating
oil;
``(iii) jet fuel;
``(iv) aviation gasoline; and
``(v) biofuel, including ethanol, biomass-
based diesel and distillates, and renewable
blending components.
``(2) Purpose.--The purpose of this subsection is to
collect data necessary to facilitate transparent and
competitive transportation fuel markets, determine adherence to
relevant international sanctions, and protect consumers.
``(3) Surveys.--
``(A) In general.--The Administrator shall conduct
surveys of energy companies to collect detailed and
timely information on United States crude oil and
transportation fuel markets.
``(B) Exemption.--The Administrator shall exempt an
energy company from participating in the surveys
conducted under subparagraph (A) if the energy company
has a de minimis market presence or impact, as
determined by the Administrator.
``(4) Data collected.--
``(A) In general.--The surveys conducted under
paragraph (3) shall collect information on a national,
regional, State, and energy company basis.
``(B) Information.--The surveys conducted under
paragraph (3) shall collect the following information
with respect to crude oil and transportation fuel, as
applicable:
``(i) The quantity of crude oil and
transportation fuel imported and exported.
``(ii) The quantity of crude oil and
transportation fuel refined, stored, and
transported.
``(iii) The quantity of crude oil and
transportation fuel entering final retail and
commercial commerce.
``(iv) The quantity of crude oil and
transportation fuel purchased and sold at any
upstream point between energy companies,
including off-exchange bilateral sales and
sales between subsidiaries of the same energy
company.
``(v) Market price data for the
transactions described in clauses (i) through
(iv).
``(vi) Submissions to relevant price
reporting entities.
``(vii) Any other such data, analyses, or
evaluations that the Administrator determines
is necessary to achieve the purpose described
in paragraph (2).
``(C) Origin of fuel.--In obtaining the information
described in subparagraph (B), the Administrator shall,
to the maximum extent practicable, track and publish
the country of original production of crude oil and
transportation fuel that may have been resold, refined,
blended, stored, or otherwise been exchanged or sold
before being imported or exported into the United
States.
``(D) Other sources.--The Administrator may, when
practicable and determined reliable by the
Administrator, obtain information described in
subparagraph (B) from private price publishers and
providers of trade processing services.
``(5) Minimizing reporting burdens.--The Administrator
shall seek to minimize any burdens on energy companies in
reporting information to the Administrator, including by
automating data submission practices for data collected under
the surveys conducted under paragraph (3).
``(6) Public distribution.--
``(A) In general.--To the maximum extent
practicable, subject to this paragraph, the
Administrator shall consistently and promptly make
publicly available analyses of the results of the data
collected pursuant to this subsection in a form and
manner easily adaptable for public use and machine
analysis.
``(B) Geographical specificity.--Analyses published
under subparagraph (A)--
``(i) shall be geographically specific
enough to provide meaningful differentiation
between fuel markets; and
``(ii) shall not organize geographical data
in the form of Petroleum Administration for
Defense Districts or other geographic
aggregations lacking sufficient resolution to
ascertain regionally specific market trends or
disparities.
``(C) Nondisclosure.--Any analysis published under
subparagraph (A) shall not disclose matters exempted
from mandatory disclosure under section 552(b) of title
5, United States Code.
``(7) Data-sharing agreements.--
``(A) Federal trade commission.--Notwithstanding
subchapter III of chapter 35 of title 44, United States
Code (commonly known as the `Confidential Information
Protection and Statistical Efficiency Act of 2018'),
not later than 1 year after the date of enactment of
this subsection, the Administrator shall enter into a
data-sharing agreement with the Federal Trade
Commission that shall allow any information collected
pursuant to this subsection to be requested by and
transferred to the Federal Trade Commission without
limitation or delay.
``(B) Other federal agencies.--The Administrator
may enter into data-sharing agreements with other
Federal agencies that have energy-related policy
decision-making responsibilities, including the
Commodity Futures Trading Commission, the Federal
Energy Regulatory Commission, and the Securities and
Exchange Commission.
``(8) Authorization of appropriations.--There are
authorized to be appropriated to the Administrator to carry out
this section such sums as are necessary for each of fiscal
years 2022 through 2027.''.
SEC. 5. FTC INVESTIGATION AND REPORT ON GASOLINE PRICES.
(a) Investigation.--
(1) In general.--The Federal Trade Commission shall conduct
an investigation to determine if the price of gasoline is being
manipulated by reducing refinery capacity or by any other form
of market manipulation or artificially increased by price
gouging practices.
(2) Consideration.--In conducting the investigation under
paragraph (1), the Federal Trade Commission may consider the
impact of mergers and acquisitions in the oil and gas industry,
including mergers and acquisitions involving producers,
refiners, transporters, and gas stations.
(b) Report.--Not later than 270 days after the date of the
enactment of this Act, the Federal Trade Commission shall submit to
Congress a report on the investigation conducted under subsection (a),
including a long-term strategy for the Commission and Congress to
address manipulation of oil and gas markets during times of national or
international crisis or emergency.
(c) Exemption From Paperwork Reduction Act.--Chapter 35 of title
44, United States Code, shall not apply to the collection of
information under subsection (a).
(d) Authorization of Appropriations.--There is authorized to be
appropriated to the Federal Trade Commission to carry out this section
$1,000,000 for fiscal year 2023.
SEC. 6. TRANSPORTATION FUEL MONITORING AND ENFORCEMENT WITHIN THE
FEDERAL TRADE COMMISSION.
(a) Establishment of the Transportation Fuel Monitoring and
Enforcement Unit.--
(1) In general.--The Commission shall establish within the
Commission the Transportation Fuel Monitoring and Enforcement
Unit (in this section referred to as the ``Unit'').
(2) Duties of the unit.--
(A) Primary responsibility.--The primary
responsibility of the Unit shall be to assist the
Commission in protecting the public interest by
continuously and comprehensively collecting,
monitoring, and analyzing crude oil and transportation
fuel market data in order to--
(i) support transparent and competitive
market practices;
(ii) identify any market manipulation,
reporting of false information, use of market
power to disadvantage consumers, or other
unfair method of competition; and
(iii) facilitate enforcement of penalties
against persons in violation of relevant
statutory prohibitions.
(B) Specific duties.--In order to carry out the
responsibility under subparagraph (A), the Unit shall
assist the Commission in carrying out the following
duties:
(i) Receiving, compiling, and analyzing
relevant buying and selling activity in order
to identify and investigate anomalous market
trends and suspicious behavior.
(ii) Determining whether excessive
concentration or exclusive control of energy-
related infrastructure may allow or result in
anti-competitive behaviors.
(iii) Gathering evidence of wrongdoing
against any person in violation of the
statutory prohibitions on market manipulation
and false information established in, and
consistent with, subtitle B of title VIII of
the Energy Independence and Security Act of
2007 or any other applicable provisions of the
Federal Trade Commission Act (15 U.S.C. 45 et
seq.).
(iv) Obtaining a data-sharing agreement
with the Energy Information Administration that
includes the data collected in accordance with
section 205(n) of the Department of Energy
Organization Act (42 U.S.C. 7135).
(v) Obtaining data-sharing agreements with
the Commodities Futures Trading Commission, the
Federal Energy Regulatory Commission, and as
necessary and practicable, State energy offices
or commissions, and relevant public and private
data sources that will allow the Commission to
receive and archive information on--
(I) crude oil and transportation
fuel buying and selling activity;
(II) individual physical and
financial market positions of market
participants regarding crude oil and
transportation fuel;
(III) refinery output, capacity,
and inventory levels of crude oil and
transportation fuel;
(IV) imports and exports of crude
oil and transportation fuel within
regions and at levels that could impact
prices faced by consumers;
(V) public announcements by energy
companies of planned pricing or output
decisions regarding crude oil and
transportation fuel; and
(VI) other relevant market
information that will facilitate the
gathering of evidence described in
clause (iii), including sufficient
market information necessary to monitor
for cross-market manipulations that may
include multiple financial and physical
market positions.
(vi) Any other information determined
appropriate by the Commission to carry out the
responsibility under subparagraph (A).
(b) Definitions.--In this section:
(1) Commission.--Other than in subsection (a)(2)(B)(v), the
term ``Commission'' means the Federal Trade Commission.
(2) Transportation fuel.--The term ``transportation fuel''
includes gasoline, distillate fuels (including heating oil),
jet fuel, aviation gasoline, and biofuel (including ethanol,
biomass-based diesel and distillates, and renewable blending
components).
(c) Regulations.--Not later than 90 days after the date of
enactment of this Act, the Commission shall promulgate regulations to
carry out this section.
(d) Authorization of Appropriations.--There is authorized to be
appropriated to the Commission such sums as may be necessary for each
of fiscal years 2022 through 2027 to carry out this section.
Passed the House of Representatives May 19, 2022.
Attest:
CHERYL L. JOHNSON,
Clerk.
Calendar No. 373
117th CONGRESS
2d Session
H. R. 7688
_______________________________________________________________________
AN ACT
To protect consumers from price-gouging of consumer fuels, and for
other purposes.
_______________________________________________________________________
May 19, 2022
Read the second time and placed on the calendar