S.1735 - Energy Emergency Consumer Protection Act of 2005109th Congress (2005-2006)
|Sponsor:||Sen. Cantwell, Maria [D-WA] (Introduced 09/20/2005)|
|Committees:||Senate - Commerce, Science, and Transportation|
|Latest Action:||Senate - 09/20/2005 Read twice and referred to the Committee on Commerce, Science, and Transportation. (All Actions)|
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Text: S.1735 — 109th Congress (2005-2006)All Information (Except Text)
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Introduced in Senate (09/20/2005)
[Congressional Bills 109th Congress] [From the U.S. Government Publishing Office] [S. 1735 Introduced in Senate (IS)] 109th CONGRESS 1st Session S. 1735 To improve the Federal Trade Commission's ability to protect consumers from price-gouging during energy emergencies, and for other purposes. _______________________________________________________________________ IN THE SENATE OF THE UNITED STATES September 20, 2005 Ms. Cantwell (for herself, Mr. Reid, Mr. Durbin, Mr. Inouye, Mrs. Feinstein, Mr. Kerry, Mr. Feingold, Mrs. Clinton, Mr. Wyden, Mr. Kohl, Mr. Schumer, Ms. Stabenow, Mr. Dorgan, Mr. Jeffords, Mrs. Boxer, Ms. Mikulski, Mr. Biden, Mr. Lieberman, Mr. Harkin, Mr. Reed, and Mr. Salazar) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation _______________________________________________________________________ A BILL To improve the Federal Trade Commission's ability to protect consumers from price-gouging during energy emergencies, 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 ``Energy Emergency Consumer Protection Act of 2005''. (b) Table of Contents.--The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Unfair or deceptive acts or practices in commerce related to gasoline and petroleum distillates. Sec. 3. Declaration of energy emergency. Sec. 4. Enforcement. Sec. 5. Enforcement by State attorneys general. Sec. 6. Penalties. Sec. 7. Effect on other laws. Sec. 8. Market transparency for crude oil, gasoline, and petroleum distillates. Sec. 9. Report on United States energy emergency preparedness. Sec. 10. Alternative fuels investment by major oil companies and automobile manufacturers. Sec. 11. Protective action to prevent future disruptions of supply. Sec. 12. Authorization of appropriations. SEC. 2. UNFAIR OR DECEPTIVE ACTS OR PRACTICES IN COMMERCE RELATED TO GASOLINE AND PETROLEUM DISTILLATES. (a) Sales to Consumers at Unconscionable Price.-- (1) In general.--During any energy emergency declared by the President under section 3, it is unlawful for any person to sell crude oil, gasoline, or petroleum distillates in, or for use in, the area to which that declaration applies at a price that-- (A) is unconscionably excessive; or (B) indicates the seller is taking unfair advantage of the circumstances to increase prices unreasonably. (2) Factors considered.--In determining whether a violation of paragraph (1) has occured, there shall be taken into account, among other factors, whether-- (A) the amount charged represents a gross disparity between the price of the crude oil, gasoline, or petroleum distillate sold and the price at which it was offered for sale in the usual course of the seller's business immediately prior to the energy emergency; or (B) the amount charged grossly exceeds the price at which the same or similar crude oil, gasoline, or petroleum distillate was readily obtainable by other purchasers in the area to which the declaration applies. (3) Mitigating factors.--In determining whether a violation of paragraph (1) has occurred, there also shall be taken into account, among other factors, the price that would reasonably equate supply and demand in a competitive and freely functioning market and whether the price at which the crude oil, gasoline, or petroleum distillate was sold reasonably reflects additional costs, not within the control of the seller, that were paid or incurred by the seller. (b) False Pricing Information.--It is unlawful for any person to report information related to the wholesale price of crude oil, gasoline, or petroleum distillates to the Federal Trade 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 that department or agency for statistical or analytical purposes with respect to the market for crude oil, gasoline, or petroleum distillates. (c) 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. 3. 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))), 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 declaration shall apply to the Nation, a geographical region, or 1 or more States, as determined by the President, but may not be in effect for a period of more than 45 days. (c) Extensions.--The President may-- (1) extend a declaration under subsection (a) for a period of not more than 45 days; and (2) extend such a declaration more than once. SEC. 4. ENFORCEMENT UNDER FEDERAL TRADE COMMISSION ACT. (a) Enforcement by Commission.--This Act shall be enforced by the Federal Trade Commission. In enforcing section 2(a) 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)). 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(a) of this Act, or to impose the civil penalties authorized by section 6 for violations of section 2(a), 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 person engaged in retail sales of gasoline or petroleum distillates to consumers for purposes other than resale that violates this Act or a regulation under this Act. (b) Notice.--The State shall serve written notice to the 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 Commission may intervene in such civil action and upon intervening-- (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 (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, 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 Commission or the other agency for any violation of this Act alleged in the complaint. (f) 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. PENALTIES. (a) Civil Penalty.-- (1) In general.--In addition to any penalty applicable under the Federal Trade Commission Act-- (A) any person who violates section 2(b) or 2(c) of this Act is punishable by a civil penalty of not more than $1,000,000; and (B) any person who violates section 2(a) of this Act is punishable by a civil penalty of not more than $3,000,000. (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 2(a) of this Act is punishable by a fine of not more than $1,000,000, imprisonment for not more than 5 years, or both. SEC. 7. EFFECT ON OTHER LAWS. (a) Other Authority of 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. SEC. 8. MARKET TRANSPARENCY FOR CRUDE OIL, GASOLINE, AND PETROLEUM DISTILLATES. (a) In General.--The Federal Trade Commission shall facilitate price transparency in markets for the sale of crude oil and essential petroleum products at wholesale, having due regard for the public interest, the integrity of those markets, fair competition, and the protection of consumers. (b) Marketplace Transparency.-- (1) Dissemination of information.--In carrying out this section the Commission shall provide by rule for the dissemination, on a timely basis, of information about the availability and prices of wholesale crude oil, gasoline, and petroleum distillates to the Commission, States, wholesale buyers and sellers, and the public. (2) Protection of public from anticompetitive activity.--In determining the information to be made available under this section and time to make the information available, the Commission shall seek to ensure that consumers and competitive markets are protected from the adverse effects of potential collusion or other anticompetitive behaviors that can be facilitated by untimely public disclosure of transaction- specific information. (3) Protection of market mechanisms.--The Commission shall withhold from public disclosure under this section any information the Commission determines would, if disclosed, be detrimental to the operation of an effective market or jeopardize security. (c) Information Sources.-- (1) In general.--In carrying out subsection (b), the Commission may-- (A) obtain information from any market participant; and (B) rely on entities other than the Commission to receive and make public the information, subject to the disclosure rules in subsection (b)(3). (2) Published data.--In carrying out this section, the Commission shall consider the degree of price transparency provided by existing price publishers and providers of trade processing services, and shall rely on such publishers and services to the maximum extent possible. (3) Electronic information systems.--The Commission may establish an electronic information system if it determines that existing price publications are not adequately providing price discovery or market transparency. Nothing in this section, however, shall affect any electronic information filing requirements in effect under this Act as of the date of enactment of this section. (4) De minimus exception.--The Commission may not require entities who have a de minimus market presence to comply with the reporting requirements of this section. (d) Cooperation With Other Federal Agencies.-- (1) Memorandum of understanding.--Within 180 days after the date of enactment of this Act, the Commission shall conclude a memorandum of understanding with the Commodity Futures Trading Commission and other appropriate agencies (if applicable) relating to information sharing, which shall include provisions-- (A) ensuring that information requests to markets within the respective jurisdiction of each agency are properly coordinated to minimize duplicative information requests; and (B) regarding the treatment of proprietary trading information. (2) CFTC jurisdiction.--Nothing in this section may be construed to limit or affect the exclusive jurisdiction of the Commodity Futures Trading Commission under the Commodity Exchange Act (7 U.S.C. 1 et seq.). (e) Rulemaking.--Within 180 days after the date of enactment of this Act, the Commission shall initiate a rulemaking proceeding to establish such rules as the Commission determines to be necessary and appropriate to carry out this section. SEC. 9. REPORT ON UNITED STATES ENERGY EMERGENCY PREPAREDNESS. (a) Potential Impacts Report.--Within 30 days after the date of enactment of this Act, the Federal Trade Commission shall transmit to the Congress a report describing the potential impact on domestic prices of crude oil, residual fuel oil, and refined petroleum products that would result from the disruption for periods of 1 week, 1 year, and 5 years, respectively, of not less than-- (1) 30 percent of United States oil production; (2) 20 percent of United States refining capacity; and (3) 5 percent of global oil supplies. (b) Projections and Possible Remedies.--The President shall include in the report-- (1) projections of the impact any such disruptions would be likely to have on the United States economy; and (2) detailed and prioritized recommendations for remedies under each scenario covered by the report. SEC. 10. ALTERNATIVE FUELS INVESTMENT BY MAJOR OIL COMPANIES AND AUTOMOBILE MANUFACTURERS. The Comptroller General shall conduct an investigation within 1 year after the date of enactment of this Act and every 4 years thereafter of the extent to which companies with total United States wholesale or retail sales of crude oil, gasoline, and petroleum distillates in excess of $500,000,000 per year and automobile manufacturers have invested in alternative fuels production, infrastructure, and technology development to diversify the motor vehicle fuel and vehicle options available to consumers in the United States. At the conclusion of each such investigation, the Comptroller General shall transmit a report containing the findings and conclusions to the Congress. SEC. 11. PROTECTIVE ACTION TO PREVENT FUTURE DISRUPTIONS OF SUPPLY. The National Academy of Sciences shall review expenditures by, and activities undertaken by, companies with total United States wholesale or retail sales of crude oil, gasoline, and petroleum distillates in excess of $500,000,000 per year to protect the energy supply system from terrorist attacks, international supply disruptions, and natural disasters, and ensure a stable and reasonably priced supply of such products to consumers in the United States, that includes an assessment of the companies' preparations for the current forecasted period of more frequent and, due to global warming, more intense hurricane activity in the Gulf of Mexico and other vulnerable coastal areas. SEC. 12. AUTHORIZATION OF APPROPRIATIONS. There are authorized to be appropriated to the Federal Trade Commission such sums as may be necessary to carry out the provisions of this Act. <all>D23/