[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1899 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 1899

 To amend the Sherman Act to make oil-producing and exporting cartels 
    illegal; to improve competition in the oil and gas industry, to 
 strengthen antitrust enforcement with regard to industry mergers; to 
 protect consumers from price-gouging of gasoline and other fuels; and 
                          for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 13, 2011

 Mr. Conyers introduced the following bill; which was referred to the 
Committee on the Judiciary, and in addition to the Committee on Energy 
    and Commerce, for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
 To amend the Sherman Act to make oil-producing and exporting cartels 
    illegal; to improve competition in the oil and gas industry, to 
 strengthen antitrust enforcement with regard to industry mergers; to 
 protect consumers from price-gouging of gasoline and other fuels; 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.

    This Act may be cited as the ``Oil Consumer Protection Act of 
2011''.

                TITLE I--APPLICATION OF THE SHERMAN ACT

SEC. 101. SHORT TITLE.

    This title may be cited as the ``No Oil Producing and Exporting 
Cartels Act of 2011'' or ``NOPEC''.

SEC. 102. SHERMAN ACT.

    The Sherman Act (15 U.S.C. 1 et seq.) is amended by adding after 
section 7 the following:
    ``Sec. 7A. (a) 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) 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) 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) 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.''.

SEC. 103. 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 II--APPLICATION OF THE CLAYTON ACT

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Oil and Gas Industry Antitrust Act 
of 2011''.

SEC. 202. PROHIBITION ON UNILATERAL WITHHOLDING.

    The Clayton Act (15 U.S.C. 12 et seq.) is amended--
            (1) by redesignating section 28 as section 29, and
            (2) by inserting after section 27 the following:

``SEC. 28. OIL AND NATURAL GAS.

    ``(a) In General.--Except as provided in subsection (b), it shall 
be unlawful for any person to refuse to sell, or to export or divert, 
existing supplies of petroleum, gasoline, or other fuel derived from 
petroleum, or natural gas with the primary intention of increasing 
prices or creating a shortage in a geographic market.
    ``(b) Considerations.--In determining whether a person who has 
refused to sell, or exported or diverted, existing supplies of 
petroleum, gasoline, or other fuel derived from petroleum or natural 
gas has done so with the intent of increasing prices or creating a 
shortage in a geographic market under subsection (a), the court shall 
consider whether--
            ``(1) the cost of acquiring, producing, refining, 
        processing, marketing, selling, or otherwise making such 
        products available has increased; and
            ``(2) the price obtained from exporting or diverting 
        existing supplies is greater than the price obtained where the 
        existing supplies are located or are intended to be shipped.''.

SEC. 203. REVIEW OF CLAYTON ACT.

    (a) In General.--The Attorney General and the Chairman of the 
Federal Trade Commission shall conduct a study, including a review of 
the report submitted under section 4, regarding whether section 7 of 
the Clayton Act should be amended to modify how that section applies to 
persons engaged in the business of exploring for, producing, refining, 
or otherwise processing, storing, marketing, selling, or otherwise 
making available petroleum, gasoline or other fuel derived from 
petroleum, or natural gas.
    (b) Report.--Not later than 270 days after the date of enactment of 
this Act, the Attorney General and the Chairman of the Federal Trade 
Commission shall submit a report to Congress regarding the findings of 
the study conducted under subsection (a), including recommendations and 
proposed legislation, if any.

SEC. 204. STUDY BY THE GOVERNMENT ACCOUNTABILITY OFFICE.

    (a) Definition.--In this section, the term ``covered consent 
decree'' means a consent decree--
            (1) to which either the Federal Trade Commission or the 
        Department of Justice is a party,
            (2) that was entered by the district court not earlier than 
        10 years before the date of enactment of this Act,
            (3) that required divestitures, and
            (4) that involved a person engaged in the business of 
        exploring for, producing, refining, or otherwise processing, 
        storing, marketing, selling, or otherwise making available 
        petroleum, gasoline or other fuel derived from petroleum, or 
        natural gas.
    (b) Requirement for a Study.--Not later than 180 days after the 
date of enactment of this Act, the Comptroller General of the United 
States shall conduct a study evaluating the effectiveness of 
divestitures required under covered consent decrees.
    (c) Requirement for a Report.--Not later than 180 days after the 
date of enactment of this Act, the Comptroller General shall submit a 
report to Congress, the Federal Trade Commission, and the Department of 
Justice regarding the findings of the study conducted under subsection 
(b).
    (d) Federal Agency Consideration.--Upon receipt of the report 
required by subsection (c), the Attorney General or the Chairman of the 
Federal Trade Commission, as appropriate, shall consider whether any 
additional action is required to restore competition or prevent a 
substantial lessening of competition occurring as a result of any 
transaction that was the subject of the study conducted under 
subsection (b).

SEC. 205. JOINT FEDERAL AND STATE TASK FORCE.

    The Attorney General and the Chairman of the Federal Trade 
Commission shall establish a joint Federal-State task force, which 
shall include the attorney general of any State that chooses to 
participate, to investigate information sharing (including through the 
use of exchange agreements and commercial information services) among 
persons in the business of exploring for, producing, refining, or 
otherwise processing, storing, marketing, selling, or otherwise making 
available petroleum, gasoline or other fuel derived from petroleum, or 
natural gas (including any person about which the Energy Information 
Administration collects financial and operating data as part of its 
Financial Reporting System).

                 TITLE III--PREVENTION OF PRICE GOUGING

SEC. 301. SHORT TITLE.

    This title may be cited as the ``Federal Price Gouging Prevention 
Act''.

SEC. 302. UNCONSCIONABLE PRICING OF GASOLINE AND OTHER PETROLEUM 
              DISTILLATES DURING EMERGENCIES.

    (a) Unconscionable Pricing.--
            (1) In general.--It shall be unlawful for any person to 
        sell, at wholesale or at retail in an area and during a period 
        of an international crisis affecting the oil markets proclaimed 
        under paragraph (2), gasoline or any other petroleum distillate 
        covered by a proclamation issued under paragraph (2) at a price 
        that--
                    (A) is unconscionably excessive; and
                    (B) indicates the seller is taking unfair advantage 
                of the circumstances related to an international crisis 
                to increase prices unreasonably.
            (2) Energy emergency proclamation.--
                    (A) In general.--The President may issue a 
                proclamation of an international crisis affecting the 
                oil markets and may designate any area within the 
                jurisdiction of the United States, where the 
                prohibition in paragraph (1) shall apply. The 
                proclamation shall state the geographic area covered, 
                the gasoline or other petroleum distillate covered, and 
                the time period that such proclamation shall be in 
                effect.
                    (B) Duration.--The proclamation--
                            (i) may not apply for a period of more than 
                        30 consecutive days, but may be renewed for 
                        such consecutive periods, each not to exceed 30 
                        days, as the President determines appropriate; 
                        and
                            (ii) may include a period of time not to 
                        exceed 1 week preceding a reasonably 
                        foreseeable emergency.
            (3) Factors considered.--In determining whether a person 
        has violated paragraph (1), there shall be taken into account, 
        among other factors--
                    (A) whether the amount charged by such person for 
                the applicable gasoline or other petroleum distillate 
                at a particular location in an area covered by a 
                proclamation issued under paragraph (2) during the 
                period such proclamation is in effect--
                            (i) grossly exceeds the average price at 
                        which the applicable gasoline or other 
                        petroleum distillate was offered for sale by 
                        that person during the 30 days prior to such 
                        proclamation;
                            (ii) grossly exceeds the price at which the 
                        same or similar gasoline or other petroleum 
                        distillate was readily obtainable in the same 
                        area from other competing sellers during the 
                        same period;
                            (iii) reasonably reflected additional 
                        costs, not within the control of that person, 
                        that were paid, incurred, or reasonably 
                        anticipated by that person, or reflected 
                        additional risks taken by that person to 
                        produce, distribute, obtain, or sell such 
                        product under the circumstances; and
                            (iv) was substantially attributable to 
                        local, regional, national, or international 
                        market conditions; and
                    (B) whether the quantity of gasoline or other 
                petroleum distillate the person produced, distributed, 
                or sold in an area covered by a proclamation issued 
                under paragraph (2) during a 30-day period following 
                the issuance of such proclamation increased over the 
                quantity that that person produced, distributed, or 
                sold during the 30 days prior to such proclamation, 
                taking into account usual seasonal demand variations.
    (b) Definitions.--As used in this section--
            (1) the term ``wholesale'', with respect to sales of 
        gasoline or other petroleum distillates, means either truckload 
        or smaller sales of gasoline or petroleum distillates where 
        title transfers at a product terminal or a refinery, and dealer 
        tank wagon sales of gasoline or petroleum distillates priced on 
        a delivered basis to retail outlets; and
            (2) the term ``retail'', with respect to sales of gasoline 
        or other petroleum distillates, includes all sales to end users 
        such as motorists as well as all direct sales to other end 
        users such as agriculture, industry, residential, and 
        commercial consumers.

SEC. 303. ENFORCEMENT BY THE FEDERAL TRADE COMMISSION.

    (a) Enforcement by FTC.--A violation of section 302 shall be 
treated as a violation of a rule defining an unfair or deceptive act or 
practice prescribed under section 18(a)(1)(B) of the Federal Trade 
Commission Act (15 U.S.C. 57a(a)(1)(B)). The Federal Trade Commission 
shall enforce this title in the same manner, by the same means, and 
with the same jurisdiction as though all applicable terms and 
provisions of the Federal Trade Commission Act were incorporated into 
and made a part of this title. In enforcing section 302 of this title, 
the Commission shall give priority to enforcement actions concerning 
companies with total United States wholesale or retail sales of 
gasoline and other petroleum distillates in excess of $10,000,000,000 
per year.
    (b) Civil Penalties.--
            (1) In general.--Notwithstanding the penalties set forth 
        under the Federal Trade Commission Act, any person who violates 
        section 302 with actual knowledge or knowledge fairly implied 
        on the basis of objective circumstances shall be subject to--
                    (A) a civil penalty of not more than 3 times the 
                amount of profits gained by such person through such 
                violation; or
                    (B) a civil penalty of not more than $100,000,000.
            (2) Method.--The penalties provided by paragraph (1) shall 
        be obtained in the same manner as civil penalties obtained 
        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.

SEC. 304. CRIMINAL PENALTIES.

    (a) In General.--In addition to any penalty applicable under 
section 303, any person who violates section 302 shall be fined under 
title 18, United States Code, in an amount not to exceed $500,000,000.
    (b) Enforcement.--The criminal penalty provided by subsection (a) 
may be imposed only pursuant to a criminal action brought by the 
Attorney General or other officer of the Department of Justice. The 
Attorney General shall give priority to enforcement actions concerning 
companies with total United States wholesale or retail sales of 
gasoline and other petroleum distillates in excess of $10,000,000,000 
per year.

SEC. 305. ENFORCEMENT AT RETAIL LEVEL 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 302, or to 
impose the civil penalties authorized by section 303(b)(1)(B), 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 violation of this title or a 
regulation under this title, involving a retail sale.
    (b) Notice.--The State shall serve written notice to the Federal 
Trade Commission of any civil action under subsection (a) prior to 
initiating such civil action. The notice shall include a copy of the 
complaint to be filed to initiate such 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 such civil 
action.
    (c) Authority To Intervene.--Upon receiving the notice required by 
subsection (b), the Federal Trade Commission may intervene in such 
civil action and upon intervening--
            (1) be heard on all matters arising in such civil action; 
        and
            (2) 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) 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 Federal Trade Commission has instituted a civil action or an 
administrative action for violation of this title, no State attorney 
general, or official or agency of a State, may bring an action under 
this subsection during the pendency of that action against any 
defendant named in the complaint of the Federal Trade Commission or the 
other agency for any violation of this title alleged in the complaint.
    (g) Enforcement of State Law.--Nothing contained in this section 
shall prohibit an authorized State official from proceeding in State 
court to enforce a civil or criminal statute of such State.

SEC. 306. EFFECT ON OTHER LAWS.

    (a) Other Authority of Federal Trade Commission.--Nothing in this 
title shall be construed to limit or affect in any way the Federal 
Trade 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.
                                 <all>