S. 4038

119 S4038 IS: Small Business Liberation 2.0 Act
 U.S. Senate
 2026-03-10
 text/xml
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 II  119th CONGRESS  2d Session  S. 4038  IN THE SENATE OF THE UNITED STATES   March 10, 2026   Mr. Markey  (for himself,  Ms. Hirono ,  Mr. Schumer ,  Mrs. Gillibrand ,  Mr. Hickenlooper ,  Ms. Klobuchar ,  Mr. Van Hollen , and  Ms. Rosen ) introduced the following bill; which was read twice and referred to the  Committee on Finance    A BILL
To exempt small business concerns from duties imposed by the President under section 122 of the Trade Act of 1974 and to prevent price gouging with respect to goods subject to such duties.
1.
Short title
The Act may be cited as the   Small Business Liberation 2.0 Act  .
2.
Definitions
In this Act:
(1)
Commission
The term  Commission  means the Federal Trade Commission.
(2)
Component
The term  component  means a good that is offered for sale to consumers through incorporation into a final good.
(3)
Covered duty
The term  covered duty  means a duty imposed under the authority provided by section 122 of the Trade Act of 1974 ( 19 U.S.C. 2132 ).
(4)
Covered good
The term  covered good  means the following:
(A)
A final good or a component that is subject to a covered duty imposed on or after January 20, 2026.
(B)
A good that is assembled, in whole or in part, in the United States and that includes a component described in subparagraph (A).
(C)
A final good or a component with respect to which there is a planned duty.
(D)
A good that is assembled, in whole or in part, in the United States and that includes a component described in subparagraph (C).
(5)
Duty-related shock date
(A)
In general
The term  duty-related shock date  means any date if, during the 30-day period preceding that date—
(i)
covered duties with respect to goods classifiable under 5 or more subheadings of the Harmonized Tariff Schedule of the United States took effect; or
(ii)
planned duties with respect to goods classifiable under 5 or more such subheadings were demonstrated by a written or spoken statement.
(B)
Consideration of number of trading partners
Subparagraph (A) applies without regard to the number of trading partners to which a covered duty or planned duty is applicable.
(6)
Final good
The term  final good  means a good that does not require any further assembly to be ready for sale to consumers.
(7)
Good
The term  good  means any good offered for sale in commerce.
(8)
Planned duty
The term  planned duty  means a covered duty that is intended to be imposed or increased, as demonstrated by a written or spoken statement by the President, the United States Trade Representative, the Secretary of Commerce, or another senior Federal official determined appropriate by the Commission, including by means of a press release, a comment at a press conference, meeting, or public event, or any other public communication.
(9)
Small business concern
The term  small business concern  has the meaning given that term in section 3 of the Small Business Act ( 15 U.S.C. 632 ).
(10)
State
The term  State  means each of the several States, the District of Columbia, each commonwealth, territory, or possession of the United States, and each federally recognized Indian Tribe.
(11)
Ultimate parent entity
The term  ultimate parent entity  has the meaning given such term in section 801.1 of title 16, Code of Federal Regulations (or any successor regulation).
3.
Exemption and refunds for small business concerns from duties under balance-of-payments authority
(a)
Exemption
A covered duty shall not apply with respect to goods imported by or for the use of a small business concern.
(b)
Refunds
Not later than 90 days after the date of the enactment of this Act, the President shall refund the amount of any covered duties paid on goods imported by or for the use of a small business concern.
4.
Prevention of price gouging with respect to goods subject to duties under balance-of-payments authority
(a)
Prohibition on price gouging
(1)
In general
No person may sell or offer for sale in the United States a covered good at an unreasonably high price during the 5-year period that follows the date on which—
(A)
a covered duty with respect to the good took effect or was increased; or
(B)
a planned duty with respect to the good was demonstrated by a written or spoken statement.
(2)
Role in supply chain immaterial
The prohibition under paragraph (1) applies without regard to the position of a person in a supply chain or distribution network.
(3)
Unreasonably high price
(A)
In general
For purposes of this subsection, a person sells or offers for sale a covered good at an unreasonably high price if the person—
(i)
has raised the price of a covered good that is a final good by more than the amount of—
(I)
the costs directly generated by the imposition of or an increase in a covered duty with respect to the good; and
(II)
additional costs incurred by the person in providing the good that demonstrate that the covered duty was not used by the person as a pretext for a price increase; or
(ii)
has raised the price of a covered good that is or includes a component by more than the amount of—
(I)
the costs directly generated by the imposition of or an increase in a covered duty with respect to the component; and
(II)
additional costs incurred by the person in providing the good that demonstrate that the covered duty was not used by the person as a pretext for a price increase.
(B)
Planned duties
With respect to a covered good, no costs may be determined to be directly generated by the imposition of a covered duty with respect to the good before the date on which the covered duty takes effect with respect to the good.
(C)
Baseline price determinations
For purposes of this paragraph, the price of a covered good before the date on which any covered duty or planned duty applicable to the good took effect or was demonstrated by a written or spoken statement, as the case may be, shall be determined by reference to the average price of the good during the 180-day period preceding that date.
(b)
Exemption for small businesses
Subsection (a) does not apply to the sale, or offering for sale, of a covered good by a small business concern.
(c)
Presumption of violation
(1)
In general
With respect to any duty-related shock date, a person shall be presumed to be in violation of subsection (a) if a preponderance of the evidence demonstrates that the person—
(A)
has unfair leverage (as described in paragraph (3)); and
(B)
sold or offered for sale on that date a covered good at a price that was greater than the average price of the good during the 180-day period preceding the date on which the most recent covered duty or planned duty applicable to the good took effect or was demonstrated by a written or spoken statement, as the case may be.
(2)
Rebuttal
A person may rebut a presumption under paragraph (1) if the person demonstrates by clear and convincing evidence that the relevant increase in the price of a covered good is attributable, in full, to—
(A)
costs directly generated by the imposition of or an increase in a covered duty with respect to the good; and
(B)
additional costs incurred by the person in providing the good that demonstrate that the covered duty was not used by the person as a pretext for such increase.
(3)
Unfair leverage
(A)
Characteristics
For purposes of this subsection, a person has unfair leverage if the person or the ultimate parent entity of the person—
(i)
is not a small business concern; or
(ii)
satisfies another characteristic set forth in a regulation promulgated by the Commission with respect to determining unfair leverage.
(B)
Inflation adjustment
In January of the first year beginning after the date of the enactment of this Act, and annually thereafter, the Commission shall adjust the amount specified in subparagraph (A)(i) by the percentage change in the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics with respect to the 12-month period preceding the date of such adjustment.
(C)
Considerations
In promulgating regulations under subparagraph (A)(ii), the Commission shall consider the capacity of a person to do the following:
(i)
Absorb, in whole or in part, costs directly generated by a covered duty.
(ii)
Increase production, in the United States, of a good that is identical or substantially similar to a covered good.
(d)
Regulations
(1)
In general
The Commission may promulgate, in accordance with section 553 of title 5, United States Code, such regulations as may be necessary to carry out this section.
(2)
Interagency consultation
The Commission, in promulgating regulations under this subsection, shall consult with the United States Trade Representative, the United States International Trade Commission, the Commissioner of U.S. Customs and Border Protection, and the Commissioner of the Bureau of Labor Statistics.
(e)
Enforcement by Commission
(1)
Unfair or deceptive acts or practices
A violation of this section or a regulation promulgated under this section shall be treated as a violation of a regulation under section 18(a)(1)(B) of the  Federal Trade Commission Act  ( 15 U.S.C. 57a(a)(1)(B) ) regarding unfair or deceptive acts or practices.
(2)
Powers of Commission
The Commission shall enforce this section and the regulations promulgated under 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  ( 15 U.S.C. 41 et seq. ) were incorporated into and made a part of this section. Any person who violates this section or a regulation promulgated under this section shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act.
(3)
Authority preserved
Nothing in this section may be construed to limit the authority of the Commission under any other provision of law.
(f)
Actions by States
(1)
In general
In any case in which the attorney general of a State, or an official or agency of a State, has reason to believe that an interest of the residents of such State has been or is threatened or adversely affected by an act or practice in violation of this section or a regulation promulgated under this section, the State, as parens patriae, may bring a civil action on behalf of the residents of the State in an appropriate State court or an appropriate district court of the United States to—
(A)
enjoin such act or practice;
(B)
enforce compliance with this section or such regulation;
(C)
obtain damages, restitution, or other compensation on behalf of residents of the State; or
(D)
obtain such other legal and equitable relief as the court may consider to be appropriate.
(2)
Notice
Before filing an action under this subsection, the attorney general, official, or agency of the State involved shall provide to the Commission a written notice of such action and a copy of the complaint for such action. If the attorney general, official, or agency determines that it is not feasible to provide the notice described in this paragraph before the filing of the action, the attorney general, official, or agency shall provide written notice of the action and a copy of the complaint to the Commission immediately upon the filing of the action.
(3)
Authority of Commission
On receiving notice under paragraph (2) of an action under this subsection, the Commission shall have the right—
(A)
to intervene in the action;
(B)
upon so intervening, to be heard on all matters arising therein; and
(C)
to file petitions for appeal.
(4)
Rules of construction
(A)
Exercising of certain powers
For purposes of bringing a civil action under this subsection, nothing in this Act may be construed to prevent an attorney general, official, or agency of a State from exercising the powers conferred on the attorney general, official, or agency by the laws of such State to conduct investigations, administer oaths and affirmations, or compel the attendance of witnesses or the production of documentary and other evidence.
(B)
State proceedings
Nothing in this subsection may be construed to prohibit an authorized official of a State from initiating or continuing any proceeding in a court of the State for a violation of any civil or criminal law of the State.
(g)
Effect on other laws
Nothing in this section may be construed to preempt or otherwise affect any State or local law.
(h)
Reporting by consumers and related investigations
(1)
In general
Not later than 180 days after the date of the enactment of this Act, the Commission shall establish a mechanism for consumers to report to the Commission potential violations of this section.
(2)
Requirements
The mechanism established under paragraph (1) shall allow a consumer to report a potential violation by a variety of means, including the following:
(A)
A telephone number.
(B)
A mailing address.
(C)
A website.
(3)
Consideration
Not later than 180 days after the date of the enactment of this Act, the Commission shall promulgate regulations establishing, and providing a detailed description of, the process by which the Commission shall consider reports provided through the mechanism established under paragraph (1) and, if applicable, open investigations into potential violations of this section.
(4)
Rule of construction
Nothing in this subsection may be construed to preclude the Commission from unilaterally initiating an investigation of a potential violation of this section.
5.
Reports
(a)
International Trade Commission and Bureau of Labor Statistics report
(1)
In general
Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the United States International Trade Commission and the Commissioner of the Bureau of Labor Statistics shall jointly submit to Congress, and make available to the public, a report on the prices of goods sold by any entity that is not a small business concern, with a focus on identifying changes in the prices of covered goods.
(2)
Sufficiency of surveys
(A)
In general
Before submitting the first report required by paragraph (1), the Commissioner of the Bureau of Labor Statistics shall identify whether the existing surveys of the Bureau collect sufficiently granular data with respect to pricing decisions and consumer prices to effectively identify price increases for covered goods.
(B)
Development of new surveys
If the Commissioner determines under subparagraph (A) that the surveys of the Bureau are insufficient, the Bureau shall develop and include in such surveys new questions to collect the data necessary for the report required under paragraph (1).
(b)
Federal Trade Commission report
Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Commission shall submit to Congress, and make available to the public, a report on the enforcement activities of the Commission under this Act, which shall include an assessment of the impact of the enforcement of this Act on consumer prices, both for covered goods and all goods.