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1 would not be reasonable to provide advance notice of ninety

2 days, the franchisor shall provide notice at the earliest date

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(2) In any case where less than ninety days' advance 5 notice is given, the franchisor may not establish a new fran6 chise relationship with respect to the franchise for which 7 notice was given pursuant to paragraph (1) before the 8 expiration of the thirty-day period which begins on the date 9 such notice is given under paragraph (1), except that a 10 franchisor may, where specified in the franchise, repossess 11 any facilities subject to the franchise and operate such 12 facility (through his own employees or agents) during such 13 thirty-day period where it would be reasonable under the 14 circumstances to do so.

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(3) The notification specified in paragraph (1) of this 16 subsection shall contain a statement of intention to terminate

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or cancel, or fail to renew, such franchise as the case may be, 18 together with the reasons therefor, the date on which such 19 termination or cancellation, or failure to renew shall take

20 effect, and a summary statement of the provisions of this Act. SEC. 4. (a) If a franchisor, with respect to a fran

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22 chise, engages in conduct prohibited under section 3 of this 23 Act, the franchisee of such franchise may maintain a suit 24 against such franchisor. Such action may be brought in the 25 district court of the United States any judicial district in

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1 which such franchisor resides, is found, or is doing business, 2 without regard to the amount in controversy.

3 (b) The court shall grant such equitable relief as is 4 necessary to remedy the effects of the conduct prohibited 5 under section 3 of this Act which it finds to exist, including 6 declaratory judgment and mandatory or prohibitive injunc7 tive relief. The court may grant interim equitable relief, and, 8 if the franchisee prevails, shall award actual damages, and 9 punitive damages where appropriate, and shall direct that 10 actual costs, including reasonable attorney and expert wit11 ness fees, be paid by the defendant.

12 (c) The question of whether to award punitive dam13 ages and the amount of such award shall be questions for the 14 court only and not for the jury.

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(d) In the case of an action with respect to a failure 16 to renew which failure is prohibited under section 3, the court 17 shall not exercise its permanent injunctive authority speci18 fied in subsection (b) to compel a continuation or renewal 19 of the franchise relationship where the franchisor demon20 strates to the satisfaction of the court that the basis for such 21 failure is a reasonable business judgment on the part of the 22 franchisor except that, in such a case if the franchisee pre23 vails, the court shall award actual damages and direct that

24 actual costs, including reasonable attorney and expert wit

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SEC. 5. (a) Subsections (a) and (c) of section 3 of

2 this Act, as such subsections apply to termination or can3 cellation and the giving of notice with respect to termina4 tion or cancellation before the expiration date specified in 5 the franchise, shall not apply to any franchise entered into 6 prior to the date of enactment of this Act but such subsec7 tions shall apply to any franchise entered into after such 8 date. Subsections (b) and (c) of section 3 of this Act, as 9 such subsections apply to a failure to renew a franchise and 10 the giving of notice with respect to such failure to renew, shall apply to any franchise in effect on the date of enactment or entered into after such date.

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(b) No State, territory, possession, the District of 14 Columbia, or the Commonwealth of Puerto Rico may adopt

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or enforce any law or regulation with respect to a termina16 tion or cancellation, or a failure to renew, a franchise, or the 17 giving of notice with respect to a termination or cancellation,

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or failure to renew a franchise, which is inconsistent with the 19 provisions of this Act.

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(c) Nothing in this Act shall relieve any person from the obligation to comply with any other provision of Federal

or State law which is not inconsistent with this Act.

94TH CONGRESS 1ST SESSION

H. R. 10070

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 7, 1975

Mr. DOWNEY of New York introduced the following bill; which was referred to the Committee on Interstate and Foreign Commerce

A BILL

To regulate commerce and to protect petroleum product dealers from unfair practices, and for other purposes.

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Be it enacted by the Senate and House of Representa

2 tives of the United States of America in Congress assembled,

3 That this Act may be cited as the "Fair Marketing of

4 Petroleum Products Act".

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DECLARATION OF POLICY

SEC. 2. Competition and equal access to supplies for all 7 retailers and distributors and nondiscriminatory practices 8 are essential to the fair and efficient functioning of a free 9 market economy. Gasoline and other petroleum products 10 should be produced, distributed, and marketed in the manner 11 most beneficial to the consumer. Therefore, it is declared to

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1 be the policy of the Congress to assist consumers and mar

2 keters of refined petroleum products to reach these goals.

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DEFINITIONS

SEC. 3. As used in this Act, the term

(1) "commerce" means any trade, traffic, transportation, or exchange (A) between any State and any

place outside of such State, or (B) which affects any trade, traffic, transportation, or exchange described in subparagraph (A) of this paragraph;

(2) "controlled" means having actual or legal power or influence over another person through any 12 means other than a contractual relationship;

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(3) "distributor" or "distributorship" means a per

son engaged in commerce in any State in the marketing of petroleum products through the sale, consignment, or distribution of such products to wholesale or retail outlets (whether or not such person owns, leases, or in any way controls such outlets) (A) under a petroleum products franchise or (B) independent of a petroleum products franchise;

(4) "major market shareholder" means a refiner who is not an "independent refiner" or a "small refiner"

as those terms are defined in section 3 of the Emergency Petroleum Allocation Act of 1973 (15 U.S.C. 752);

(5) "petroleum products franchise" means any