Oil Consumer Protection Act of 2011

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

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

(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— 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.

(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;

(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.

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.

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

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:

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.

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.

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.

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.

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.

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.

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).

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).

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).

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

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Nothing in this title preempts any State law.