To improve the Federal Trade Commission's ability to protect consumers from price-gouging during energy emergencies, and for other purposes.

SA 2612. Ms. CANTWELL (form herself, Mr. Bayh, Mr. Lieberman, Mr.
Schumer, Mrs. Boxer, Mr. Carper, Mrs. Clinton, Mr. Salazar, Mr. Kohl,
Mrs. Murray, Ms. Stabenow, and Mrs. Feinstein) submitted an amendment
to the bill S. 2020, to provide for reconciliation pursuant to section
202(b) of the concurrent resolution on the budget for fiscal year 2006;
as follows:

At the end of the bill, insert the following:

TITLE I--ENERGY EMERGENCY CONSUMER PROTECTION

SEC. __. 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 occurred, 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. __. 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. __. 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. __. 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

[[Page S13211]]

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.
(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. __. 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. __. 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.
______