117 HR 7688 EH: Consumer Fuel Price Gouging Prevention Act
U.S. House of Representatives
text/xml
EN
Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
I
117th CONGRESS
2d Session
H. R. 7688
IN THE HOUSE OF REPRESENTATIVES
AN ACT
To protect consumers from price-gouging of consumer fuels, and for other purposes.
1.

Short title
This Act may be cited as the “Consumer Fuel Price Gouging Prevention Act”.
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.
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:
“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))”.
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.”.
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.
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.
Cheryl L. Johnson,
Clerk.