[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 2724 Introduced in Senate (IS)]







107th CONGRESS
  2d Session
                                S. 2724

To provide regulatory oversight over energy trading markets and metals 
                trading markets, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                July 11 (legislative day, July 10), 2002

Mrs. Feinstein (for herself, Mr. Fitzgerald, Mr. Harkin, Mr. Luger, Ms. 
 Cantwell, Mr. Wyden, Mr. Corzine, Mr. Leahy, Mrs. Boxer, Mr. Durbin, 
 and Mr. Nelson of Nebraska) introduced the following bill; which was 
read twice and referred to the Committee on Agriculture, Nutrition, and 
                                Forestry

_______________________________________________________________________

                                 A BILL


 
To provide regulatory oversight over energy trading markets and metals 
                trading markets, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. JURISDICTION OF THE COMMODITY FUTURES TRADING COMMISSION 
              OVER ENERGY TRADING MARKETS AND METALS TRADING MARKETS.

    (a) FERC Liaison.--Section 2(a)(8) of the Commodity Exchange Act (7 
U.S.C. 2(a)(8)) is amended by adding at the end the following:
                    ``(C) FERC liaison.--The Commission shall, in 
                cooperation with the Federal Energy Regulatory 
                Commission, maintain a liaison between the Commission 
                and the Federal Energy Regulatory Commission.''.
    (b) Exempt Transactions.--Section 2 of the Commodity Exchange Act 
(7 U.S.C. 2) is amended--
            (1) in subsection (h), by adding at the end the following:
            ``(7) Applicability.--This subsection does not apply to an 
        agreement, contract, or transaction in an exempt energy 
        commodity or an exempt metal commodity described in section 
        2(j)(1).''; and
            (2) by adding at the end the following:
    ``(j) Exempt Transactions.--
            ``(1) Transactions in exempt energy commodities and exempt 
        metals commodities.--An agreement, contract, or transaction 
        (including a transaction described in section 2(g)) in an 
        exempt energy commodity or exempt metal commodity shall be 
        subject to--
                    ``(A) sections 4b, 4c(a), 4c(b), 4o, and 5b;
                    ``(B) subsections (c) and (d) of section 6 and 
                sections 6c, 6d, and 8a, to the extent that those 
                provisions--
                            ``(i) provide for the enforcement of the 
                        requirements specified in this subsection; and
                            ``(ii) prohibit the manipulation of the 
                        market price of any commodity in interstate 
                        commerce or for future delivery on or subject 
                        to the rules of any contract market;
                    ``(C) sections 6c, 6d, 8a, and 9(a)(2), to the 
                extent that those provisions prohibit the manipulation 
                of the market price of any commodity in interstate 
                commerce or for future delivery on or subject to the 
                rules of any contract market;
                    ``(D) section 12(e)(2); and
                    ``(E) section 22(a)(4).
            ``(2) Bilateral dealer markets.--
                    ``(A) In general.--Except as provided in paragraph 
                (6), a person or group of persons that constitutes, 
                maintains, administers, or provides a physical or 
                electronic facility or system in which a person has the 
                ability to offer, execute, trade, or confirm the 
                execution of an agreement, contract, or transaction 
                (including a transaction described in section 2(g)) 
                (other than an agreement, contract, or transaction in 
                an excluded commodity) by making or accepting the bids 
                and offers of 1 or more participants on the facility or 
                system (including facilities or systems described in 
                clauses (i) and (iii) of section 1a(33)(B)), the person 
                or group of persons, and the facility or system 
                (referred to in this subsection as a `bilateral dealer 
                market') may offer to enter into, enter into, or 
                confirm the execution of any agreement, contract, or 
                transaction under paragraph (1) (other than an 
                agreement, contract, or transaction in an excluded 
                commodity) if the bilateral dealer market meets the 
                requirement of subparagraph (B).
                    ``(B) Requirement.--The requirement of this 
                subparagraph is that a bilateral dealer market shall--
                            ``(i) provide notice to the Commission in 
                        such form as the Commission may specify by rule 
                        or regulation;
                            ``(ii) file with the Commission any reports 
                        (including large trader position reports) that 
                        the Commission requires by rule or regulation;
                            ``(iii)(I) consistent with section 4i, 
                        maintain books and records relating to each 
                        transaction in such form as the Commission may 
                        specify for a period of 5 years after the date 
                        of the transaction; and
                            ``(II) make those books and records 
                        available to representatives of the Commission 
                        and the Department of Justice for inspection 
                        for a period of 5 years after the date of each 
                        transaction; and
                            ``(iv) make available to the public on a 
                        daily basis such information as total volume by 
                        commodity, settlement price, open interest, 
                        opening and closing ranges, and any other 
                        information that the Commission determines to 
                        be appropriate for public disclosure, except 
                        that the Commission may not--
                                    ``(I) require the real time 
                                publication of proprietary information; 
                                or
                                    ``(II) prohibit the commercial sale 
                                of real time proprietary information.
            ``(3) Reporting requirements.--On request of the 
        Commission, an eligible contract participant that trades on a 
        bilateral dealer market shall provide to the Commission, within 
        the time period specified in the request and in such form and 
        manner as the Commission may specify, any information relating 
        to the transactions of the eligible contract participant on the 
        bilateral dealer market within 5 years after the date of any 
        transaction that the Commission determines to be appropriate.
            ``(4) Capital requirements.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), a bilateral dealer market shall adopt 
                a value-at-risk model approved by the Commission.
                    ``(B) Capital commensurate with risk.--If there is 
                an interaction of multiple bids and multiple offers on 
                the bilateral dealer market in a predetermined, 
                nondiscretionary automated trade matching and trade 
                execution algorithm or bids and offers and acceptances 
                of bids and offers made on the bilateral dealer market 
                are binding, a bilateral dealer market shall maintain 
                sufficient capital commensurate with the risk 
                associated with transactions on the bilateral dealer 
                market, as determined by the Commission.
            ``(5) Transactions exempted by commission action.--Any 
        agreement, contract, or transaction on a bilateral dealer 
        market (other than an agreement, contract, or transaction in an 
        excluded commodity) that would otherwise be exempted by the 
        Commission under section 4(c) shall be subject to--
                    ``(A) sections 4b, 4c(a), 4c(b), 4o, and 5b; and
                    ``(B) subsections (c) and (d) of section 6 and 
                sections 6c, 6d, 8a, and 9(a)(2), to the extent that 
                those provisions prohibit the manipulation of the 
                market price of any commodity in interstate commerce or 
                for future delivery on or subject to the rules of any 
                contract market.
            ``(6) No effect on other ferc authority.--This subsection 
        does not affect the authority of the Federal Energy Regulatory 
        Commission to regulate transactions under the Federal Power Act 
        (16 U.S.C. 791a et seq.) or the Natural Gas Act (15 U.S.C 717 
        et seq.).
            ``(7) Applicability.--This subsection does not apply to--
                    ``(A) a designated contract market regulated under 
                section 5; or
                    ``(B) a registered derivatives transaction 
                execution facility regulated under section 5a.''.
    (c) Contracts Designed to Defraud or Mislead.--Section 4b of the 
Commodity Exchange Act (7 U.S.C. 6b) is amended by striking subsection 
(a) and inserting the following:
    ``(a) Prohibition.--It shall be unlawful for any member of a 
registered entity, or for any correspondent, agent, or employee of any 
member, in or in connection with any order to make, or the making of, 
any contract of sale of any commodity in interstate commerce, made, or 
to be made on or subject to the rules of any registered entity, or for 
any person, in or in connection with any order to make, or the making 
of, any agreement, transaction, or contract in a commodity subject to 
this Act--
            ``(1) to cheat or defraud or attempt to cheat or defraud 
        any person;
            ``(2) willfully to make or cause to be made to any person 
        any false report or statement, or willfully to enter or cause 
        to be entered any false record;
            ``(3) willfully to deceive or attempt to deceive any person 
        by any means; or
            ``(4) to bucket the order, or to fill the order by offset 
        against the order of any person, or willfully, knowingly, and 
        without the prior consent of any person to become the buyer in 
        respect to any selling order of any person, or to become the 
        seller in respect to any buying order of any person.''
    (d) Conforming Amendments.--The Commodity Exchange Act is amended--
            (1) in section 2 (7 U.S.C. 2)--
                    (A) in subsection (h)--
                            (i) in paragraph (1), by striking 
                        ``paragraph (2)'' and inserting ``paragraphs 
                        (2) and (7)''; and
                            (ii) in paragraph (3), by striking 
                        ``paragraph (4)'' and inserting ``paragraphs 
                        (4) and (7)''; and
                    (B) in subsection (i)(1)(A), by striking ``section 
                2(h) or 4(c)'' and inserting ``subsection (h) or (j) or 
                section 4(c)'';
            (2) in section 4i (7 U.S.C. 6i)--
                    (A) by striking ``any contract market or'' and 
                inserting ``any contract market,''; and
                    (B) by inserting ``, or pursuant to an exemption 
                under section 4(c)'' after ``transaction execution 
                facility'';
            (3) in section 5a(g)(1) (7 U.S.C. 7a(g)(1)), by striking 
        ``section 2(h)'' and inserting ``subsection (h) or (j) of 
        section 2'';
            (4) in section 5b (7 U.S.C. 7a-1)--
                    (A) in subsection (a)(1), by striking ``2(h) or'' 
                and inserting ``2(h), 2(j), or''; and
                    (B) in subsection (b), by striking ``2(h) or'' and 
                inserting ``2(h), 2(j), or''; and
            (5) in section 12(e)(2)(B) (7 U.S.C. 16(e)(2)(B)), by 
        striking ``section 2(h) or 4(c)'' and inserting ``subsection 
        (h) or (j) of section 2 or section 4(c)''.

SEC. 2. JURISDICTION OF THE FEDERAL ENERGY REGULATORY COMMISSION OVER 
              ENERGY TRADING MARKETS.

    Section 402 of the Department of Energy Organization Act (42 U.S.C. 
7172) is amended by adding at the end the following:
    ``(i) Jurisdiction Over Derivatives Transactions.--
            ``(1) In general.--To the extent that the Commission 
        determines that any contract that comes before the Commission 
        is not under the jurisdiction of the Commission, the Commission 
        shall refer the contract to the appropriate Federal agency.
            ``(2) Meetings.--A designee of the Commission shall meet 
        quarterly with a designee of the Commodity Futures Trading 
        Commission, the Securities Exchange Commission, the Federal 
        Trade Commission, and the Federal Reserve Board to discuss--
                    ``(A) conditions and events in energy trading 
                markets; and
                    ``(B) any changes in Federal law (including 
                regulations) that may be appropriate to regulate energy 
                trading markets.
            ``(3) Liaison.--The Commission shall, in cooperation with 
        the Commodity Futures Trading Commission, maintain a liaison 
        between the Commission and the Commodity Futures Trading 
        Commission.''.
                                 <all>