II
109th CONGRESS
1st Session
S. 1744
IN THE SENATE OF THE UNITED STATES
September 21, 2005
Mr. Nelson of Florida (for himself and Mr. Bingaman) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation
A BILL
To prohibit price gouging relating to gasoline and diesel fuels in areas affected by major disasters.
Short title
This Act may be cited as the
Price Gouging Act of
2005
.
Price gouging prohibition following major disasters
The Federal Trade Commission Act (15 U.S.C. 41 et seq.) is amended—
by redesignating sections 25 and 26 (15 U.S.C. 57c, 58) as sections 26 and 27, respectively; and
by inserting after section 24 (15 U.S.C. 57b–5) the following:
Protection from price gouging following major disasters
Definitions
In this section:
Affected area
The term affected area means an area affected by a major disaster declared by the President under Federal law in existence on the date of enactment of this subsection.
Price gouging
The term price gouging means the charging of an unconscionably excessive price by a supplier in an affected area.
Supplier
The term supplier means any person that sells gasoline or diesel fuel for resale or ultimate consumption.
Unconscionably excessive price
The term unconscionably excessive price means a price charged in an affected area for gasoline or diesel fuel that—
represents a gross disparity, as determined by the Commission in accordance with subsection (e), between the price charged for gasoline or diesel fuel and the average price of gasoline or diesel fuel charged by suppliers in the affected area during the 30-day period immediately before the President declares the existence of a major disaster; and
is not attributable to increased wholesale or operational costs incurred by the supplier in connection with the sale of gasoline or diesel fuel.
Determination of the Commission
Following the declaration of a major disaster by the President, the Commission shall—
consult with the Attorney General, the United States Attorney for the district in which the disaster occurred, and State and local law enforcement officials to determine whether any supplier in the affected area is charging or has charged an unconscionably excessive price for gasoline or diesel fuel provided in the affected area; and
establish within the Commission—
a toll-free hotline that a consumer may call to report an incidence of price gouging in the affected area; and
a program to develop and distribute to the public informational materials in English and Spanish to assist residents of the affected area in detecting and avoiding price gouging.
Price gouging involving disaster victims
Offense
During the 180-day period after the date on which a major disaster is declared by the President, no supplier shall sell, or offer to sell, gasoline or diesel fuel in an affected area at an unconscionably excessive price.
Action by Commission
In general
During the period described in paragraph (1), the Commission shall conduct investigations to determine whether any supplier in an affected area is in violation of paragraph (1).
Positive determination
If the Commission determines under subparagraph (A) that a supplier is in violation of paragraph (1), the Commission shall take any action the Commission determines to be appropriate to remedy the violation.
Civil penalties
A supplier that commits an offense described in paragraph (1) may, in a civil action brought in a court of competent jurisdiction, be subject to—
a civil penalty of not more than $500,000;
an order to pay special and punitive damages;
an order to pay reasonable attorney's fees;
an order to pay costs of litigation relating to the offense;
an order for disgorgement of profits earned as a result of a violation of paragraph (1); and
any other relief determined by the court to be appropriate.
Criminal penalty
A supplier that knowingly commits an offense described in paragraph (1) shall be imprisoned not more than 1 year.
Action by victims
A person, Federal agency, State, or local government that suffers loss or damage as a result of a violation of paragraph (1) may bring a civil action against a supplier in any court of competent jurisdiction for disgorgement, special or punitive damages, injunctive relief, reasonable attorney's fees, costs of the litigation, and any other appropriate legal or equitable relief.
Action by State attorneys general
An attorney general of a State, or other authorized State official, may bring a civil action in the name of the State, on behalf of persons residing in the State, in any court of competent jurisdiction for disgorgement, special or punitive damages, reasonable attorney's fees, costs of litigation, and any other appropriate legal or equitable relief.
No preemption
Nothing in this section preempts any State law.
Report
Not later than 1 year after the date of enactment of this subsection, and annually thereafter, the Commission shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Energy and Commerce of the House of Representatives a report describing—
the number of price gouging complaints received by the Commission for each major disaster declared by the President during the preceding year;
the number of price gouging investigations of the Commission initiated, in progress, and completed as of the date on which the report is prepared;
the number of enforcement actions of the Commission initiated, in progress, and completed as of the date on which the report is prepared;
an evaluation of the effectiveness of the toll-free hotline and program established under subsection (b)(2); and
recommendations for any additional action with respect to the implementation or effectiveness of this section.
Definition of gross disparity
Not later than 180 days after the date of enactment of this subsection, the Commission shall promulgate regulations to define the term gross disparity for purposes of this section.
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Effect of Act
Nothing in this Act, or an amendment made by this Act, affects any authority of the Federal Trade Commission in existence on the date of enactment of this Act with respect to price gouging actions.