[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 3044 Placed on Calendar Senate (PCS)]






                                                       Calendar No. 743
110th CONGRESS
  2d Session
                                S. 3044

    To provide energy price relief and hold oil companies and other 
   entities accountable for their actions with regard to high energy 
                    prices, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 20, 2008

 Mr. Reid (for himself, Mrs. Boxer, Mr. Brown, Mr. Cardin, Mr. Conrad, 
  Mr. Dodd, Mr. Durbin, Mr. Johnson, Mr. Kennedy, Ms. Klobuchar, Mr. 
    Kohl, Mr. Lautenberg, Mr. Leahy, Mr. Levin, Mrs. McCaskill, Ms. 
  Mikulski, Mrs. Murray, Mr. Reed, Mr. Schumer, Ms. Stabenow, and Mr. 
  Whitehouse) introduced the following bill; which was read the first 
                                  time

                              May 21, 2008

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 A BILL


 
    To provide energy price relief and hold oil companies and other 
   entities accountable for their actions with regard to high energy 
                    prices, 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. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Consumer-First 
Energy Act of 2008''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings.
             TITLE I--TAX PROVISIONS RELATED TO OIL AND GAS

Sec. 101. Denial of deduction for major integrated oil companies for 
                            income attributable to domestic production 
                            of oil, gas, or primary products thereof.
Sec. 102. Elimination of the different treatment of foreign oil and gas 
                            extraction income and foreign oil related 
                            income for purposes of the foreign tax 
                            credit.
Sec. 103. Windfall profits tax.
Sec. 104. Energy Independence and Security Trust Fund.
                        TITLE II--PRICE GOUGING

Sec. 201. Short title.
Sec. 202. Definitions.
Sec. 203. Energy emergency and additional price gouging enforcement.
Sec. 204. Presidential declaration of energy emergency.
Sec. 205. Enforcement by the Federal Trade Commission.
Sec. 206. Enforcement by State attorneys general.
Sec. 207. Penalties.
Sec. 208. Effect on other laws.
                 TITLE III--STRATEGIC PETROLEUM RESERVE

Sec. 301. Suspension of petroleum acquisition for Strategic Petroleum 
                            Reserve.
            TITLE IV--NO OIL PRODUCING AND EXPORTING CARTELS

Sec. 401. No Oil Producing and Exporting Cartels Act of 2008.
                      TITLE V--MARKET SPECULATION

Sec. 501. Speculative limits and transparency for off-shore oil 
                            trading.
Sec. 502. Margin level for crude oil.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) excessive prices for petroleum products have created, 
        or imminently threaten to create, severe economic dislocations 
        and hardships, including the loss of jobs, business failures, 
        disruption of economic activity, curtailment of vital public 
        services, and price increases throughout the economy;
            (2) those hardships and dislocations jeopardize the normal 
        flow of commerce and constitute a national energy and economic 
        crisis that is a threat to the public health, safety, and 
        welfare of the United States;
            (3) consumers, workers, small businesses, and large 
        businesses of the United States are particularly vulnerable to 
        those price increase due to the failure of the President to 
        aggressively develop alternatives to petroleum and petroleum 
        products and to promote efficiency and conservation;
            (4) reliable and affordable supplies of crude oil and 
        products refined from crude oil (including gasoline, diesel 
        fuel, heating oil, and jet fuel) are vital to the economic and 
        national security of the United States given current energy 
        infrastructure and technology;
            (5) the price of crude oil and products refined from crude 
        oil (including gasoline, diesel fuel, heating oil, and jet 
        fuel) have skyrocketed to record levels and are continuing to 
        rise;
            (6) since 2001, oil prices have increased from $29 per 
        barrel to levels near $120 per barrel and gasoline prices have 
        more than doubled from $1.47 per gallon to more than $3.50 per 
        gallon;
            (7) the record prices for crude oil and products refined 
        from crude oil (including gasoline, diesel fuel, heating oil, 
        and jet fuel)--
                    (A) are hurting millions of consumers, workers, 
                small businesses, and large businesses of the United 
                States, and threaten long-term damage to the economy 
                and security of the United States;
                    (B) are partially due to--
                            (i) the declining value of the dollar and a 
                        widespread lack of confidence in the management 
                        of economic and foreign policy by the 
                        President;
                            (ii) the accumulation of national debt and 
                        growing budget deficits under the failed 
                        economic policies of the President; and
                            (iii) high levels of military expenditures 
                        under the failed policies of the President in 
                        Iraq; and
                    (C) are no longer justified by traditional forces 
                of supply and demand;
            (8) rampant speculation in the markets for crude oil and 
        products refined from crude oil has magnified the price 
        increases and market volatility resulting from those underlying 
        causes of price increases; and
            (9) Congress must take urgent action to protect consumers, 
        workers, and businesses of the United States from rampant 
        speculation in the energy markets and the price increases 
        resulting from the failed domestic and foreign policies of the 
        President.

             TITLE I--TAX PROVISIONS RELATED TO OIL AND GAS

SEC. 101. DENIAL OF DEDUCTION FOR MAJOR INTEGRATED OIL COMPANIES FOR 
              INCOME ATTRIBUTABLE TO DOMESTIC PRODUCTION OF OIL, GAS, 
              OR PRIMARY PRODUCTS THEREOF.

    (a) In General.--Subparagraph (B) of section 199(c)(4) (relating to 
exceptions) is amended by striking ``or'' at the end of clause (ii), by 
striking the period at the end of clause (iii) and inserting ``, or'', 
and by inserting after clause (iii) the following new clause:
                            ``(iv) in the case of any major integrated 
                        oil company (as defined in section 
                        167(h)(5)(B)), the production, refining, 
                        processing, transportation, or distribution of 
                        oil, gas, or any primary product thereof during 
                        any taxable year described in section 
                        167(h)(5)(B).''.
    (b) Primary Product.--Section 199(c)(4)(B) is amended by adding at 
the end the following flush sentence:
                ``For purposes of clause (iv), the term `primary 
                product' has the same meaning as when used in section 
                927(a)(2)(C), as in effect before its repeal.''.
    (c) Effective Date.--The amendments made by this section shall 
apply to taxable years beginning after December 31, 2008.

SEC. 102. ELIMINATION OF THE DIFFERENT TREATMENT OF FOREIGN OIL AND GAS 
              EXTRACTION INCOME AND FOREIGN OIL RELATED INCOME FOR 
              PURPOSES OF THE FOREIGN TAX CREDIT.

    (a) In General.--Subsections (a) and (b) of section 907 of the 
Internal Revenue Code of 1986 (relating to special rules in case of 
foreign oil and gas income) are amended to read as follows:
    ``(a) Reduction in Amount Allowed as Foreign Tax Under Section 
901.--In applying section 901, the amount of any foreign oil and gas 
taxes paid or accrued (or deemed to have been paid) during the taxable 
year which would (but for this subsection) be taken into account for 
purposes of section 901 shall be reduced by the amount (if any) by 
which the amount of such taxes exceeds the product of--
            ``(1) the amount of the combined foreign oil and gas income 
        for the taxable year,
            ``(2) multiplied by--
                    ``(A) in the case of a corporation, the percentage 
                which is equal to the highest rate of tax specified 
                under section 11(b), or
                    ``(B) in the case of an individual, a fraction the 
                numerator of which is the tax against which the credit 
                under section 901(a) is taken and the denominator of 
                which is the taxpayer's entire taxable income.
    ``(b) Combined Foreign Oil and Gas Income; Foreign Oil and Gas 
Taxes.--For purposes of this section--
            ``(1) Combined foreign oil and gas income.--The term 
        `combined foreign oil and gas income' means, with respect to 
        any taxable year, the sum of--
                    ``(A) foreign oil and gas extraction income, and
                    ``(B) foreign oil related income.
            ``(2) Foreign oil and gas taxes.--The term `foreign oil and 
        gas taxes' means, with respect to any taxable year, the sum 
        of--
                    ``(A) oil and gas extraction taxes, and
                    ``(B) any income, war profits, and excess profits 
                taxes paid or accrued (or deemed to have been paid or 
                accrued under section 902 or 960) during the taxable 
                year with respect to foreign oil related income 
                (determined without regard to subsection (c)(4)) or 
                loss which would be taken into account for purposes of 
                section 901 without regard to this section.''.
    (b) Recapture of Foreign Oil and Gas Losses.--Paragraph (4) of 
section 907(c) of the Internal Revenue Code of 1986 (relating to 
recapture of foreign oil and gas extraction losses by recharacterizing 
later extraction income) is amended to read as follows:
            ``(4) Recapture of foreign oil and gas losses by 
        recharacterizing later combined foreign oil and gas income.--
                    ``(A) In general.--The combined foreign oil and gas 
                income of a taxpayer for a taxable year (determined 
                without regard to this paragraph) shall be reduced--
                            ``(i) first by the amount determined under 
                        subparagraph (B), and
                            ``(ii) then by the amount determined under 
                        subparagraph (C).
                The aggregate amount of such reductions shall be 
                treated as income (from sources without the United 
                States) which is not combined foreign oil and gas 
                income.
                    ``(B) Reduction for pre-2008 foreign oil extraction 
                losses.--The reduction under this paragraph shall be 
                equal to the lesser of--
                            ``(i) the foreign oil and gas extraction 
                        income of the taxpayer for the taxable year 
                        (determined without regard to this paragraph), 
                        or
                            ``(ii) the excess of--
                                    ``(I) the aggregate amount of 
                                foreign oil extraction losses for 
                                preceding taxable years beginning after 
                                December 31, 1982, and before January 
                                1, 2008, over
                                    ``(II) so much of such aggregate 
                                amount as was recharacterized under 
                                this paragraph (as in effect before and 
                                after the date of the enactment of the 
                                Consumer-First Energy Act of 2008) for 
                                preceding taxable years beginning after 
                                December 31, 1982.
                    ``(C) Reduction for post-2008 foreign oil and gas 
                losses.--The reduction under this paragraph shall be 
                equal to the lesser of--
                            ``(i) the combined foreign oil and gas 
                        income of the taxpayer for the taxable year 
                        (determined without regard to this paragraph), 
                        reduced by an amount equal to the reduction 
                        under subparagraph (A) for the taxable year, or
                            ``(ii) the excess of--
                                    ``(I) the aggregate amount of 
                                foreign oil and gas losses for 
                                preceding taxable years beginning after 
                                December 31, 2008, over
                                    ``(II) so much of such aggregate 
                                amount as was recharacterized under 
                                this paragraph for preceding taxable 
                                years beginning after December 31, 
                                2008.
                    ``(D) Foreign oil and gas loss defined.--
                            ``(i) In general.--For purposes of this 
                        paragraph, the term `foreign oil and gas loss' 
                        means the amount by which--
                                    ``(I) the gross income for the 
                                taxable year from sources without the 
                                United States and its possessions 
                                (whether or not the taxpayer chooses 
                                the benefits of this subpart for such 
                                taxable year) taken into account in 
                                determining the combined foreign oil 
                                and gas income for such year, is 
                                exceeded by
                                    ``(II) the sum of the deductions 
                                properly apportioned or allocated 
                                thereto.
                            ``(ii) Net operating loss deduction not 
                        taken into account.--For purposes of clause 
                        (i), the net operating loss deduction allowable 
                        for the taxable year under section 172(a) shall 
                        not be taken into account.
                            ``(iii) Expropriation and casualty losses 
                        not taken into account.--For purposes of clause 
                        (i), there shall not be taken into account--
                                    ``(I) any foreign expropriation 
                                loss (as defined in section 172(h) (as 
                                in effect on the day before the date of 
                                the enactment of the Revenue 
                                Reconciliation Act of 1990)) for the 
                                taxable year, or
                                    ``(II) any loss for the taxable 
                                year which arises from fire, storm, 
                                shipwreck, or other casualty, or from 
                                theft,
                        to the extent such loss is not compensated for 
                        by insurance or otherwise.
                            ``(iv) Foreign oil extraction loss.--For 
                        purposes of subparagraph (B)(ii)(I), foreign 
                        oil extraction losses shall be determined under 
                        this paragraph as in effect on the day before 
                        the date of the enactment of the Consumer-First 
                        Energy Act of 2008.''.
    (c) Carryback and Carryover of Disallowed Credits.--Section 907(f) 
of the Internal Revenue Code of 1986 (relating to carryback and 
carryover of disallowed credits) is amended--
            (1) by striking ``oil and gas extraction taxes'' each place 
        it appears and inserting ``foreign oil and gas taxes'', and
            (2) by adding at the end the following new paragraph:
            ``(4) Transition rules for pre-2009 and 2009 disallowed 
        credits.--
                    ``(A) Pre-2009 credits.--In the case of any unused 
                credit year beginning before January 1, 2009, this 
                subsection shall be applied to any unused oil and gas 
                extraction taxes carried from such unused credit year 
                to a year beginning after December 31, 2008--
                            ``(i) by substituting `oil and gas 
                        extraction taxes' for `foreign oil and gas 
                        taxes' each place it appears in paragraphs (1), 
                        (2), and (3), and
                            ``(ii) by computing, for purposes of 
                        paragraph (2)(A), the limitation under 
                        subparagraph (A) for the year to which such 
                        taxes are carried by substituting `foreign oil 
                        and gas extraction income' for `foreign oil and 
                        gas income' in subsection (a).
                    ``(B) 2009 credits.--In the case of any unused 
                credit year beginning in 2009, the amendments made to 
                this subsection by the Consumer-First Energy Act of 
                2008 shall be treated as being in effect for any 
                preceding year beginning before January 1, 2009, solely 
                for purposes of determining how much of the unused 
                foreign oil and gas taxes for such unused credit year 
                may be deemed paid or accrued in such preceding 
                year.''.
    (d) Conforming Amendment.--Section 6501(i) of the Internal Revenue 
Code of 1986 is amended by striking ``oil and gas extraction taxes'' 
and inserting ``foreign oil and gas taxes''.
    (e) Effective Date.--The amendments made by this section shall 
apply to taxable years beginning after December 31, 2008.

SEC. 103. WINDFALL PROFITS TAX.

    (a) In General.--Subtitle E of the Internal Revenue Code of 1986 
(relating to alcohol, tobacco, and certain other excise taxes) is 
amended by adding at the end thereof the following new chapter:

              ``CHAPTER 56--WINDFALL PROFITS ON CRUDE OIL

``Sec. 5896. Imposition of tax.
``Sec. 5897. Windfall profit; qualified investment.
``Sec. 5898. Special rules and definitions.

``SEC. 5896. IMPOSITION OF TAX.

    ``(a) In General.--In addition to any other tax imposed under this 
title, there is hereby imposed on any applicable taxpayer an excise tax 
in an amount equal to 25 percent of the excess of--
            ``(1) the windfall profit of such taxpayer, over
            ``(2) the excess of--
                    ``(A) the amount of the qualified investments of 
                such applicable taxpayer for such taxable year, over
                    ``(B) the average of the qualified investment of 
                such applicable taxpayer for taxable years beginning 
                during the 2002-2006 taxable year period.
    ``(b) Applicable Taxpayer.--For purposes of this chapter, the term 
`applicable taxpayer' means any major integrated oil company (as 
defined in section 167(h)(5)(B)).

``SEC. 5897. WINDFALL PROFIT; QUALIFIED INVESTMENT.

    ``(a) General Rule.--For purposes of this chapter, the term 
`windfall profit' means the excess of the adjusted taxable income of 
the applicable taxpayer for the taxable year over the reasonably 
inflated average profit for such taxable year.
    ``(b) Adjusted Taxable Income.--For purposes of this chapter, with 
respect to any applicable taxpayer, the adjusted taxable income for any 
taxable year is equal to the taxable income for such taxable year 
(within the meaning of section 63 and determined without regard to this 
subsection)--
            ``(1) increased by any interest expense deduction, 
        charitable contribution deduction, and any net operating loss 
        deduction carried forward from any prior taxable year, and
            ``(2) reduced by any interest income, dividend income, and 
        net operating losses to the extent such losses exceed taxable 
        income for the taxable year.
In the case of any applicable taxpayer which is a foreign corporation, 
the adjusted taxable income shall be determined with respect to such 
income which is effectively connected with the conduct of a trade or 
business in the United States.
    ``(c) Reasonably Inflated Average Profit.--For purposes of this 
chapter, with respect to any applicable taxpayer, the reasonably 
inflated average profit for any taxable year is an amount equal to the 
average of the adjusted taxable income of such taxpayer for taxable 
years beginning during the 2002-2006 taxable year period (determined 
without regard to the taxable year with the highest adjusted taxable 
income in such period) plus 10 percent of such average.
    ``(d) Qualified Investment.--For purposes of this chapter, the term 
`qualified investment' means, with respect to any applicable taxpayer, 
means any amount paid or incurred with respect to--
            ``(1) any qualified facility described in paragraph (1), 
        (2), (3), (4), (5), (6), (7), or (9) of section 45(d) 
        (determined without regard to any placed in service date), or
            ``(2) any facility for the production renewable fuel or 
        advanced biofuel (as defined in section 211(o) of the Clean Air 
        Act 942 U.S.C. 7545).

``SEC. 5898. SPECIAL RULES AND DEFINITIONS.

    ``(a) Withholding and Deposit of Tax.--The Secretary shall provide 
such rules as are necessary for the withholding and deposit of the tax 
imposed under section 5896.
    ``(b) Records and Information.--Each taxpayer liable for tax under 
section 5896 shall keep such records, make such returns, and furnish 
such information as the Secretary may by regulations prescribe.
    ``(c) Return of Windfall Profit Tax.--The Secretary shall provide 
for the filing and the time of such filing of the return of the tax 
imposed under section 5896.
    ``(d) Crude Oil.--The term `crude oil' includes crude oil 
condensates and natural gasoline.
    ``(e) Businesses Under Common Control.--For purposes of this 
chapter, all members of the same controlled group of corporations 
(within the meaning of section 267(f)) and all persons under common 
control (within the meaning of section 52(b) but determined by treating 
an interest of more than 50 percent as a controlling interest) shall be 
treated as 1 person.
    ``(f) Regulations.--The Secretary shall prescribe such regulations 
as may be necessary or appropriate to carry out the purposes of this 
chapter.''.
    (b) Clerical Amendment.--The table of chapters for subtitle E of 
the Internal Revenue Code of 1986 is amended by adding at the end the 
following new item:

             ``Chapter 56. Windfall Profit on Crude Oil.''.

    (c) Deductibility of Windfall Profit Tax.--The first sentence of 
section 164(a) of the Internal Revenue Code of 1986 (relating to 
deduction for taxes) is amended by inserting after paragraph (5) the 
following new paragraph:
            ``(6) The windfall profit tax imposed by section 5896.''.
    (d) Effective Date.--The amendments made by this section shall 
apply to taxable years beginning after December 31, 2007.

SEC. 104. ENERGY INDEPENDENCE AND SECURITY TRUST FUND.

    (a) Establishment.--Subchapter A of chapter 98 of the Internal 
Revenue Code of 1986 (relating to trust fund code) is amended by adding 
at the end the following new section:

``SEC. 9511. ENERGY INDEPENDENCE AND SECURITY TRUST FUND.

    ``(a) Creation of Trust Fund.--There is established in the Treasury 
of the United States a trust fund to be known as `Energy Independence 
and Security Trust Fund' (referred to in this section as the `Trust 
Fund'), consisting of such amounts as may be appropriated or credited 
to the Trust Fund as provided in this section or section 9602(b).
    ``(b) Transfers to Trust Fund.--There is hereby appropriated to the 
Trust Fund an amount equivalent to the increase in the revenues 
received in the Treasury as the result of the amendments made by 
sections 101, 102, and 103 of the Consumer-First Energy Act of 2008.
    ``(c) Distribution of Amounts in Trust Fund.--Amounts in the Trust 
Fund shall be available, as provided by appropriation Acts, for the 
purposes of reducing the dependence of the United States on foreign and 
unsustainable energy sources and reducing the risks of global warming 
through programs and measures that--
            ``(1) reduce the burdens on consumers of rising energy 
        prices;
            ``(2) diversify and expand the use of secure, efficient, 
        and environmentally-friendly energy supplies and technologies;
            ``(3) result in net reductions in emissions of greenhouse 
        gases; and
            ``(4) prevent energy price gouging, profiteering, and 
        market manipulation.''.
    (b) Clerical Amendment.--The table of sections for subchapter A of 
chapter 98 of such Code is amended by adding at the end the following 
new item:

``Sec. 9511. Energy Independence and Security Trust Fund.''.
    (c) Effective Date.--The amendments made by this section shall take 
effect on the date of the enactment of this Act.

                        TITLE II--PRICE GOUGING

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Petroleum Consumer Price Gouging 
Protection Act''.

SEC. 202. DEFINITIONS.

    In this title:
            (1) Affected area.--The term ``affected area'' means an 
        area covered by a Presidential declaration of energy emergency.
            (2) Supplier.--The term ``supplier'' means any person 
        engaged in the trade or business of selling or reselling, at 
        retail or wholesale, or distributing crude oil, gasoline, 
        petroleum distillates, or biofuel.
            (3) Price gouging.--The term ``price gouging'' means the 
        charging of an unconscionably excessive price by a supplier in 
        an affected area.
            (4) Unconscionably excessive price.--The term 
        ``unconscionably excessive price'' means an average price 
        charged during an energy emergency declared by the President in 
        an area and for a product subject to the declaration, that--
                    (A)(i)(I) constitutes a gross disparity from the 
                average price at which it was offered for sale in the 
                usual course of the supplier's business during the 30 
                days prior to the President's declaration of an energy 
                emergency; and
                    (II) grossly exceeds the prices at which the same 
                or similar crude oil, gasoline, petroleum distillates, 
                or biofuel was readily obtainable by purchasers from 
                other suppliers in the same relevant geographic market 
                within the affected area; or
                    (ii) represents an exercise of unfair leverage or 
                unconscionable means on the part of the supplier, 
                during a period of declared energy emergency; and
                    (B) is not attributable to increased wholesale or 
                operational costs, including replacement costs, outside 
                the control of the supplier, incurred in connection 
                with the sale of crude oil, gasoline, petroleum 
                distillates, or biofuel, and is not attributable to 
                local, regional, national, or international market 
                conditions.
            (5) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.

SEC. 203. ENERGY EMERGENCY AND ADDITIONAL PRICE GOUGING ENFORCEMENT.

    (a) In General.--During any energy emergency declared by the 
President under section 204 of this title, it is unlawful for any 
supplier to sell, or offer to sell crude oil, gasoline, petroleum 
distillates, or biofuel subject to that declaration in, or for use in, 
the area to which that declaration applies at an unconscionably 
excessive price.
    (b) Factors Considered.--In determining whether a violation of 
subsection (a) has occurred, there shall be taken into account, among 
other factors, whether--
            (1) the price charged was a price that would reasonably 
        exist in a competitive and freely functioning market; and
            (2) the amount of gasoline, other petroleum distillates, or 
        biofuel the seller produced, distributed, or sold during the 
        period the Proclamation was in effect increased over the 
        average amount during the preceding 30 days.

SEC. 204. PRESIDENTIAL DECLARATION OF ENERGY EMERGENCY.

    (a) In General.--If the President finds that the health, safety, 
welfare, or economic well-being of the citizens of the United States is 
at risk because of a shortage or imminent shortage of adequate supplies 
of crude oil, gasoline, petroleum distillates, or biofuel due to a 
disruption in the national distribution system for crude oil, gasoline, 
petroleum distillates, or biofuel (including such a shortage related to 
a major disaster (as defined in section 102(2) of the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 
5122(2)))), or significant pricing anomalies in national energy markets 
for crude oil, gasoline, petroleum distillates, or biofuel the 
President may declare that a Federal energy emergency exists.
    (b) Scope and Duration.--The emergency declaration shall specify--
            (1) the period, not to exceed 30 days, for which the 
        declaration applies;
            (2) the circumstance or condition necessitating the 
        declaration;
            (3) the area or region to which it applies which may not be 
        limited to a single State; and
            (4) the product or products to which it applies.
    (c) Extensions.--The President may--
            (1) extend a declaration under subsection (a) for a period 
        of not more than 30 days;
            (2) extend such a declaration more than once; and
            (3) discontinue such a declaration before its expiration.

SEC. 205. ENFORCEMENT BY THE FEDERAL TRADE COMMISSION.

    (a) Enforcement.--This title shall be enforced by the Federal Trade 
Commission in the same manner, by the same means, and with the same 
jurisdiction as though all applicable terms of the Federal Trade 
Commission Act were incorporated into and made a part of this title. In 
enforcing section 203 of this title, the Commission shall give priority 
to enforcement actions concerning companies with total United States 
wholesale or retail sales of crude oil, gasoline, petroleum 
distillates, and biofuel in excess of $500,000,000 per year but shall 
not exclude enforcement actions against companies with total United 
States wholesale sales of $500,000,000 or less per year.
    (b) Violation Is Treated as Unfair or Deceptive Act or Practice.--
The violation of any provision of this title shall be treated as an 
unfair or deceptive act or practice proscribed under a rule issued 
under section 18(a)(1)(B) of the Federal Trade Commission Act (15 
U.S.C. 57a(a)(1)(B)).
    (c) Commission Actions.--Following the declaration of an energy 
emergency by the President under section 204 of this title, the 
Commission shall--
            (1) maintain within the Commission--
                    (A) a toll-free hotline that a consumer may call to 
                report an incident of price gouging in the affected 
                area; and
                    (B) a program to develop and distribute to the 
                public informational materials to assist residents of 
                the affected area in detecting, avoiding, and reporting 
                price gouging;
            (2) consult with the Attorney General, the United States 
        Attorney for the districts in which a disaster occurred (if the 
        declaration is related to a major disaster), 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 crude oil, gasoline, 
        petroleum distillates, or biofuel in the affected area; and
            (3) conduct investigations as appropriate to determine 
        whether any supplier in the affected area has violated section 
        203 of this title, and upon such finding, take any action the 
        Commission determines to be appropriate to remedy the 
        violation.

SEC. 206. ENFORCEMENT BY STATE ATTORNEYS GENERAL.

    (a) In General.--A State, as parens patriae, may bring a civil 
action on behalf of its residents in an appropriate district court of 
the United States to enforce the provisions of section 203 of this 
title, or to impose the civil penalties authorized by section 207 for 
violations of section 203, whenever the attorney general of the State 
has reason to believe that the interests of the residents of the State 
have been or are being threatened or adversely affected by a supplier 
engaged in the sale or resale, at retail or wholesale, or distribution 
of crude oil, gasoline, petroleum distillates, or biofuel in violation 
of section 203 of this title.
    (b) Notice.--The State shall serve written notice to the Commission 
of any civil action under subsection (a) prior to initiating the 
action. The notice shall include a copy of the complaint to be filed to 
initiate the civil action, except that if it is not feasible for the 
State to provide such prior notice, the State shall provide such notice 
immediately upon instituting the civil action.
    (c) Authority To Intervene.--Upon receiving the notice required by 
subsection (b), the Commission may intervene in the civil action and, 
upon intervening--
            (1) may be heard on all matters arising in such civil 
        action; and
            (2) may file petitions for appeal of a decision in such 
        civil action.
    (d) Construction.--For purposes of bringing any civil action under 
subsection (a), nothing in this section shall prevent the attorney 
general of a State from exercising the powers conferred on the Attorney 
General by the laws of such State to conduct investigations or to 
administer oaths or affirmations or to compel the attendance of 
witnesses or the production of documentary and other evidence.
    (e) Venue; Service of Process.--In a civil action brought under 
subsection (a)--
            (1) the venue shall be a judicial district in which--
                    (A) the defendant operates;
                    (B) the defendant was authorized to do business; or
                    (C) where the defendant in the civil action is 
                found;
            (2) process may be served without regard to the territorial 
        limits of the district or of the State in which the civil 
        action is instituted; and
            (3) a person who participated with the defendant in an 
        alleged violation that is being litigated in the civil action 
        may be joined in the civil action without regard to the 
        residence of the person.
    (f) Limitation on State Action While Federal Action Is Pending.--If 
the Commission has instituted a civil action or an administrative 
action for violation of this title, a State attorney general, or 
official or agency of a State, may not bring an action under this 
section during the pendency of that action against any defendant named 
in the complaint of the Commission or the other agency for any 
violation of this title alleged in the Commission's civil or 
administrative action.
    (g) No Preemption.--Nothing contained in this section shall 
prohibit an authorized State official from proceeding in State court to 
enforce a civil or criminal statute of that State.

SEC. 207. PENALTIES.

    (a) Civil Penalty.--
            (1) In general.--In addition to any penalty applicable 
        under the Federal Trade Commission Act, any supplier--
                    (A) that violates section 203 of this title is 
                punishable by a civil penalty of not more than 
                $1,000,000; and
                    (B) that violates section 203 of this title is 
                punishable by a civil penalty of--
                            (i) not more than $500,000, in the case of 
                        an independent small business marketer of 
                        gasoline (within the meaning of section 324(c) 
                        of the Clean Air Act (42 U.S.C. 7625(c))); and
                            (ii) not more than $5,000,000 in the case 
                        of any other supplier.
            (2) Method.--The penalties provided by paragraph (1) shall 
        be obtained in the same manner as civil penalties imposed under 
        section 5 of the Federal Trade Commission Act (15 U.S.C. 45).
            (3) Multiple offenses; mitigating factors.--In assessing 
        the penalty provided by subsection (a)--
                    (A) each day of a continuing violation shall be 
                considered a separate violation; and
                    (B) the court shall take into consideration, among 
                other factors, the seriousness of the violation and the 
                efforts of the person committing the violation to 
                remedy the harm caused by the violation in a timely 
                manner.
    (b) Criminal Penalty.--Violation of section 203 of this title is 
punishable by a fine of not more than $5,000,000, imprisonment for not 
more than 5 years, or both.

SEC. 208. EFFECT ON OTHER LAWS.

    (a) Other Authority of the Commission.--Nothing in this title shall 
be construed to limit or affect in any way the Commission's authority 
to bring enforcement actions or take any other measure under the 
Federal Trade Commission Act (15 U.S.C. 41 et seq.) or any other 
provision of law.
    (b) State Law.--Nothing in this title preempts any State law.

                 TITLE III--STRATEGIC PETROLEUM RESERVE

SEC. 301. SUSPENSION OF PETROLEUM ACQUISITION FOR STRATEGIC PETROLEUM 
              RESERVE.

    (a) In General.--Except as provided in subsection (b) and 
notwithstanding any other provision of law, during the period beginning 
on the date of enactment of this Act and ending on December 31, 2008--
            (1) the Secretary of the Interior shall suspend acquisition 
        of petroleum for the Strategic Petroleum Reserve through the 
        royalty-in-kind program; and
            (2) the Secretary of Energy shall suspend acquisition of 
        petroleum for the Strategic Petroleum Reserve through any other 
        acquisition method.
    (b) Resumption.--Not earlier than 30 days after the date on which 
the President notifies Congress that the President has determined that 
the weighted average price of petroleum in the United States for the 
most recent 90-day period is $75 or less per barrel--
            (1) the Secretary of the Interior may resume acquisition of 
        petroleum for the Strategic Petroleum Reserve through the 
        royalty-in-kind program; and
            (2) the Secretary of Energy may resume acquisition of 
        petroleum for the Strategic Petroleum Reserve through any other 
        acquisition method.
    (c) Existing Contracts.--In the case of any oil scheduled to be 
delivered to the Strategic Petroleum Reserve pursuant to a contract 
entered into by the Secretary of Energy prior to, and in effect on, the 
date of enactment of this Act, the Secretary shall, to the maximum 
extent practicable, negotiate a deferral of the delivery of the oil for 
a period of not less than 1 year, in accordance with procedures of the 
Department of Energy in effect on the date of enactment of this Act for 
deferrals of oil.

            TITLE IV--NO OIL PRODUCING AND EXPORTING CARTELS

SEC. 401. NO OIL PRODUCING AND EXPORTING CARTELS ACT OF 2008.

    (a) Short Title.--This section may be cited as the ``No Oil 
Producing and Exporting Cartels Act of 2008'' or ``NOPEC''.
    (b) Sherman Act.--The Sherman Act (15 U.S.C. 1 et seq.) is amended 
by adding after section 7 the following:

``SEC. 7A. OIL PRODUCING CARTELS.

    ``(a) In General.--It shall be illegal and a violation of this Act 
for any foreign state, or any instrumentality or agent of any foreign 
state, to act collectively or in combination with any other foreign 
state, any instrumentality or agent of any other foreign state, or any 
other person, whether by cartel or any other association or form of 
cooperation or joint action--
            ``(1) to limit the production or distribution of oil, 
        natural gas, or any other petroleum product;
            ``(2) to set or maintain the price of oil, natural gas, or 
        any petroleum product; or
            ``(3) to otherwise take any action in restraint of trade 
        for oil, natural gas, or any petroleum product;
when such action, combination, or collective action has a direct, 
substantial, and reasonably foreseeable effect on the market, supply, 
price, or distribution of oil, natural gas, or other petroleum product 
in the United States.
    ``(b) Sovereign Immunity.--A foreign state engaged in conduct in 
violation of subsection (a) shall not be immune under the doctrine of 
sovereign immunity from the jurisdiction or judgments of the courts of 
the United States in any action brought to enforce this section.
    ``(c) Inapplicability of Act of State Doctrine.--No court of the 
United States shall decline, based on the act of state doctrine, to 
make a determination on the merits in an action brought under this 
section.
    ``(d) Enforcement.--The Attorney General of the United States may 
bring an action to enforce this section in any district court of the 
United States as provided under the antitrust laws.''.
    (c) Sovereign Immunity.--Section 1605(a) of title 28, United States 
Code, is amended--
            (1) in paragraph (6), by striking ``or'' after the 
        semicolon;
            (2) in paragraph (7), by striking the period and inserting 
        ``; or''; and
            (3) by adding at the end the following:
            ``(8) in which the action is brought under section 7A of 
        the Sherman Act.''.

                      TITLE V--MARKET SPECULATION

SEC. 501. SPECULATIVE LIMITS AND TRANSPARENCY FOR OFF-SHORE OIL 
              TRADING.

    Section 4 of the Commodity Exchange Act (7 U.S.C. 6) is amended by 
adding at the end the following:
    ``(e) Foreign Boards of Trade.--
            ``(1) In general.--In the case of any foreign board of 
        trade for which the Commission has granted or is considering an 
        application to grant a board of trade located outside of the 
        United States relief from the requirement of subsection (a) to 
        become a designated contract market, derivatives transaction 
        execution facility, or other registered entity, with respect to 
        an energy commodity that is physically delivered in the United 
        States, prior to continuing to or initially granting the 
        relief, the Commission shall determine that the foreign board 
        of trade--
                    ``(A) applies comparable principles or requirements 
                regarding the daily publication of trading information 
                and position limits or accountability levels for 
                speculators as apply to a designated contract market, 
                derivatives transaction execution facility, or other 
                registered entity trading energy commodities physically 
                delivered in the United States; and
                    ``(B) provides such information to the Commission 
                regarding the extent of speculative and nonspeculative 
                trading in the energy commodity that is comparable to 
                the information the Commission determines necessary to 
                publish a Commitment of Traders report for a designated 
                contract market, derivatives transaction execution 
                facility, or other registered entity trading energy 
                commodities physically delivered in the United States.
            ``(2) Existing foreign boards of trade.--During the period 
        beginning 1 year after the date of enactment of this subsection 
        and ending 18 months after the date of enactment of this 
        subsection, the Commission shall determine whether to continue 
        to grant relief in accordance with paragraph (1) to any foreign 
        board of trade for which the Commission granted relief prior to 
        the date of enactment of this subsection.''.

SEC. 502. MARGIN LEVEL FOR CRUDE OIL.

    (a) In General.--Section 2(a)(1) of the Commodity Exchange Act (7 
U.S.C. 2(a)(1)) is amended by adding at the end the following:
                    ``(G) Margin level for crude oil.--Not later than 
                90 days after the date of enactment of this 
                subparagraph, the Commission shall promulgate 
                regulations to set a substantial increase in margin 
                levels for crude oil traded on any trading facility or 
                as part of any agreement, contract, or transaction 
                covered by this Act in order to reduce excessive 
                speculation and protect consumers.''.
    (b) Studies.--
            (1) Study relating to effect of certain regulations.--Not 
        later than 1 year after the date of enactment of this Act, the 
        Commodity Futures Trading Commission shall submit to the 
        appropriate committees of Congress a report describing the 
        effect of the amendment made by subsection (a) on any trading 
        facilities and agreements, contracts, and transactions covered 
        by the Commodity Exchange Act (7 U.S.C. 1 et seq.).
            (2) Study relating to effects of changes in margin 
        levels.--Not later than 180 days after the date of enactment of 
        this Act, the Comptroller General of the United States shall 
        submit to the appropriate committees of Congress a report 
        describing the effect (including any effect relating to trade 
        volume or volatility) of any change of a margin level that 
        occurred during the 10-year period ending on the date of 
        enactment of this Act.
                                                       Calendar No. 743

110th CONGRESS

  2d Session

                                S. 3044

_______________________________________________________________________

                                 A BILL

    To provide energy price relief and hold oil companies and other 
   entities accountable for their actions with regard to high energy 
                    prices, and for other purposes.

_______________________________________________________________________

                              May 21, 2008

            Read the second time and placed on the calendar