HB 1621-FN – AS AMENDED BY THE HOUSE
15Feb2006… 0729h
2006 SESSION
05/10
HOUSE BILL 1621-FN
AN ACT prohibiting the overpricing of commodities during a declared state of emergency or a market emergency.
SPONSORS: Rep. Marshall Quandt, Rock 13; Rep. Matthew Quandt, Rock 13; Rep. Weyler, Rock 8; Rep. Packard, Rock 3; Rep. Plifka, Ches 4; Sen. Fuller Clark, Dist 24
This bill prohibits distributors and merchants from selling commodities at unconscionably high prices during a declared state of emergency or a market emergency.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
15Feb2006… 0729h
06-2333
05/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Six
AN ACT prohibiting the overpricing of commodities during a declared state of emergency or a market emergency.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Commodity Prices; Overpricing Prohibited. Amend RSA by inserting after chapter 359-H the following new chapter:
CHAPTER 359-I
COMMODITY PRICES
359-I:1 Definitions. In this chapter:
I. “Commodity” means any goods, services, materials, merchandise, supplies, equipment, resources, or other article of commerce, including food, water, ice, medicine, chemicals, petroleum products, and lumber, necessary for consumption or use as a direct result of a declared state of emergency or market emergency.
II. “Distributor” means the seller of a commodity to a selling merchant.
III. “Market emergency” means a significant disruption to the production, distribution, or sale of a commodity or commodities caused by an event such as a natural or man-made emergency or disaster.
IV. “Selling merchant” means the retail seller of a commodity to an end user of the commodity.
359-I:2 Prohibition on Price Gouging.
I. It is unlawful for any distributor or selling merchant, or his or her agent or employee, to sell a commodity to a consumer at an unconscionably high price during any of the following events:
(a) During a declaration of a state of emergency by the governor within the area of the declared state of emergency.
(b) Following the finding of a market emergency by the Merrimack county superior court upon petition filed by the attorney general within the area of the finding of a market emergency.
II. A price is unconscionably high if the amount charged represents a gross disparity between the price of the commodity and:
(a) The price at which the same commodity was sold or offered for sale in the usual course of business during the 7 days immediately prior to the declared state of emergency or market emergency; and
(b) The price of the commodity of like grade and quality when compared to the highest price at which the commodity was offered for sale by other similar businesses in the same or adjacent county.
III. Price increases due to an increase in the amount charged attributable to increased wholesale, delivery, labor, replacement costs or other necessary costs incurred or reasonably anticipated to be incurred by the selling merchant or wholesaler, shall not be considered price gouging.
IV. A violation of this chapter shall be enforceable by the attorney general for civil penalties pursuant to RSA 358-A:4, and shall not be subject to the criminal provisions under RSA 358-A:6 or the private right of action of RSA 358-A:10. Any violation of this chapter shall be based on the setting of the price and such violation shall not be based on each separate sale.
2 Effective Date. This act shall take effect January 1, 2007.
LBAO
06-2333
12/1/05
HB 1621-FN - FISCAL NOTE
AN ACT prohibiting overpricing of fuel.
FISCAL IMPACT:
The Judicial Branch, Judicial Council and Department of Justice have determined this bill will increase state expenditures by an indeterminable amount in FY 2007 and each year thereafter. There will be no fiscal impact on county and local expenditures or state, county and local revenue.
METHODOLOGY:
The Judicial Branch stated this bill would enact RSA chapter 359-I regarding fuel prices. The new chapter would make it unlawful to sell fuel for an excessive price. A price more than ten percent above the average price during the previous thirty days would be prima facie evidence of excessive price, unless attributable to additional costs. The statute would apply to both retailers and distributors. The penalty is a violation of the Consumer Protection Act. Consumer Protection Act claims are often hard-fought and carry with them the potential for enforcement actions by the attorney general (RSA 358-A:4), criminal prosecution (RSA 358.A:6), and private actions with the potential of up to treble damages (RSA 358-A:10). The Branch has no information on which to estimate the potential volume of cases that could arise under the proposed new chapter; however, given the recent rapid rise in fuel prices, that volume could be large. One could assume that the attorney general would exercise discretion to bring enforcement actions and criminal prosecutions in only the most important violations. Nevertheless, incentive does exist for a large number of private actions since damages are a minimum of $1,000 and attorney's fees are recoverable. Thus, the fiscal impact on the Branch of this bill could be very high, and in an era of rapidly rising prices would almost certain to exceed the fiscal impact threshold of $10,000.
The Judicial Council assumes that any cases arising from the enactment of this bill for which the Indigent Defense Fund may be liable, will in the first instance, be handled by the public defender or contract attorney who accepts these cases on a fixed fee basis of $275 per misdemeanor charged. If an assigned counsel attorney must be used, the hourly rate of $60 with a fee cap of $1,000 will apply. If a motion to exceed the fee cap is approved and/or “services other than counsel” are approved, these will also be chargeable to the Indigent
Defense Fund. Any charge within the criminal justice system, committed by a juvenile, will be compensated within the flat fee contract system of $275 per case through disposition, plus $206.25 for each and every review hearing following disposition. Assigned counsel will be at the $60 per hour rate with a fee cap of $1,200. The fee cap may be waived upon motion filed with the court and approved in advance. Any case where a defendant has been found guilty may also result in appeals to either the Superior Court or the Supreme Court, which would have a cost implication for Indigent Defense expenditures made by the State. The Council is unable to predict the number of cases which may result from the passage of this bill, and are unable to determine the exact fiscal impact at this time.
The Department of Justice (DOJ) anticipates this bill will result in an increase in investigations and prosecutions under the Consumer Protection Act. It is anticipated that the increase will result in the use of approximately 5% of an attorney’s time, estimated to be $5,000 annually.
The Department of Corrections has stated this bill will have no fiscal impact on the Department.