II 

109TH CONGRESS 

2D SESSION S. 2557 

To improve competition in the oil and gas industry, to strengthen antitrust 

enforcement with regard to industry mergers, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 6, 2006 

Mr. SPECTER (for himself, Mr. KOHL, Mr. DEWINE, Mr. LEAHY, Mrs. FEINSTEIN, and Mr. DURBIN) introduced the following bill; which was read 

twice and referred to the Committee on the Judiciary 

A BILL 

To improve competition in the oil and gas industry, to 

strengthen antitrust enforcement with regard to industry 

mergers, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Oil and Gas Industry 

5 Antitrust Act of 2006’’. 

6 SEC. 2. PROHIBITION ON UNILATERAL WITHHOLDING. 

7 The Clayton Act (15 U.S.C. 12 et seq.) is amended— 

8 (1) by redesignating section 28 as section 29; 

9 and 


jcorcoran on PROD1PC62 with BILLS
2 

•S 2557 IS

1 (2) by inserting after section 27 the following: 

2 ‘‘SEC. 28. OIL AND NATURAL GAS. 

3 ‘‘(a) IN GENERAL.—Except as provided in subsection 

4 (b), it shall be unlawful for any person to refuse to sell, 

5 or to export or divert, existing supplies of petroleum, gaso6 line, or other fuel derived from petroleum, or natural gas 

7 with the primary intention of increasing prices or creating 

8 a shortage in a geographic market. 

9 ‘‘(b) CONSIDERATIONS.—In determining whether a 

10 person who has refused to sell, or exported or diverted, 

11 existing supplies of petroleum, gasoline, or other fuel de12 rived from petroleum or natural gas has done so with the 

13 intent of increasing prices or creating a shortage in a geo14 graphic market under subsection (a), the court shall con15 sider whether— 

16 ‘‘(1) the cost of acquiring, producing, refining, 

17 processing, marketing, selling, or otherwise making 

18 such products available has increased; and 

19 ‘‘(2) the price obtained from exporting or di20 verting existing supplies is greater than the price ob21 tained where the existing supplies are located or are 

22 intended to be shipped.’’. 

23 SEC. 3. REVIEW OF CLAYTON ACT. 

24 (a) IN GENERAL.—The Attorney General and the 

25 Chairman of the Federal Trade Commission shall conduct 


jcorcoran on PROD1PC62 with BILLS
3 

•S 2557 IS

1 a study, including a review of the report submitted under 

2 section 4, regarding whether section 7 of the Clayton Act 

3 should be amended to modify how that section applies to 

4 persons engaged in the business of exploring for, pro5 ducing, refining, or otherwise processing, storing, mar6 keting, selling, or otherwise making available petroleum, 

7 gasoline or other fuel derived from petroleum, or natural 

8 gas. 

9 (b) REPORT.—Not later than 270 days after the date 

10 of enactment of this Act, the Attorney General and the 

11 Chairman of the Federal Trade Commission shall submit 

12 a report to Congress regarding the findings of the study 

13 conducted under subsection (a), including recommenda14 tions and proposed legislation, if any. 

15 SEC. 4. STUDY BY THE GOVERNMENT ACCOUNTABILITY OF16 FICE. 

17 (a) DEFINITION.—In this section, the term ‘‘covered 

18 consent decree’’ means a consent decree— 

19 (1) to which either the Federal Trade Commis20 sion or the Department of Justice is a party; 

21 (2) that was entered by the district court not 

22 earlier than 10 years before the date of enactment 

23 of this Act; 

24 (3) that required divestitures; and 


jcorcoran on PROD1PC62 with BILLS
4 

•S 2557 IS

1 (4) that involved a person engaged in the busi2 ness of exploring for, producing, refining, or other3 wise processing, storing, marketing, selling, or other4 wise making available petroleum, gasoline or other 

5 fuel derived from petroleum, or natural gas. 

6 (b) REQUIREMENT FOR A STUDY.—Not later than 

7 180 days after the date of enactment of this Act, the 

8 Comptroller General of the United States shall conduct 

9 a study evaluating the effectiveness of divestitures re10 quired under covered consent decrees. 

11 (c) REQUIREMENT FOR A REPORT.—Not later than 

12 180 days after the date of enactment of this Act, the 

13 Comptroller General shall submit a report to Congress, the 

14 Federal Trade Commission, and the Department of Jus15 tice regarding the findings of the study conducted under 

16 subsection (b). 

17 (d) FEDERAL AGENCY CONSIDERATION.—Upon re18 ceipt of the report required by subsection (c), the Attorney 

19 General or the Chairman of the Federal Trade Commis20 sion, as appropriate, shall consider whether any additional 

21 action is required to restore competition or prevent a sub22 stantial lessening of competition occurring as a result of 

23 any transaction that was the subject of the study con24 ducted under subsection (b). 


jcorcoran on PROD1PC62 with BILLS
5 

•S 2557 IS

1 SEC. 5. JOINT FEDERAL AND STATE TASK FORCE. 

2 The Attorney General and the Chairman of the Fed3 eral Trade Commission shall establish a joint Federal4 State task force, which shall include the attorney general 

5 of any State that chooses to participate, to investigate in6 formation sharing (including through the use of exchange 

7 agreements and commercial information services) among 

8 persons in the business of exploring for, producing, refin9 ing, or otherwise processing, storing, marketing, selling, 

10 or otherwise making available petroleum, gasoline or other 

11 fuel derived from petroleum, or natural gas (including any 

12 person about which the Energy Information Administra13 tion collects financial and operating data as part of its 

14 Financial Reporting System). 

15 SEC. 6. NO OIL PRODUCING AND EXPORTING CARTELS. 

16 (a) SHORT TITLE.—This section may be cited as the 

17 ‘‘No Oil Producing and Exporting Cartels Act of 2006’’ 

18 or ‘‘NOPEC’’. 

19 (b) SHERMAN ACT.—The Sherman Act (15 U.S.C. 

20 1 et seq.) is amended— 

21 (1) by redesignating section 8 as section 9; and 

22 (2) by inserting after section 7 the following: 

23 ‘‘SEC. 8. OIL PRODUCING CARTELS. 

24 ‘‘(a) IN GENERAL.—It shall be illegal and a violation 

25 of this Act for any foreign state, or any instrumentality 

26 or agent of any foreign state, in the circumstances deVerDate Aug 31 2005 01:52 Apr 12, 2006 Jkt 049200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2557.IS S2557

jcorcoran on PROD1PC62 with BILLS
6 

•S 2557 IS

1 scribed in subsection (b), to act collectively or in combina2 tion with any other foreign state, any instrumentality or 

3 agent of any other foreign state, or any other person, 

4 whether by cartel or any other association or form of co5 operation or joint action— 

6 ‘‘(1) to limit the production or distribution of 

7 oil, natural gas, or any other petroleum product; 

8 ‘‘(2) to set or maintain the price of oil, natural 

9 gas, or any petroleum product; or 

10 ‘‘(3) to otherwise take any action in restraint of 

11 trade for oil, natural gas, or any petroleum product. 

12 ‘‘(b) CIRCUMSTANCES.—The circumstances described 

13 in this subsection are an instance when an action, com14 bination, or collective action described in subsection (a) 

15 has a direct, substantial, and reasonably foreseeable effect 

16 on the market, supply, price, or distribution of oil, natural 

17 gas, or other petroleum product in the United States. 

18 ‘‘(c) SOVEREIGN IMMUNITY.—A foreign state en19 gaged in conduct in violation of subsection (a) shall not 

20 be immune under the doctrine of sovereign immunity from 

21 the jurisdiction or judgments of the courts of the United 

22 States in any action brought to enforce this section. 

23 ‘‘(d) INAPPLICABILITY OF ACT OF STATE DOC24 TRINE.—No court of the United States shall decline, 


jcorcoran on PROD1PC62 with BILLS
7 

•S 2557 IS

1 based on the act of state doctrine, to make a determina2 tion on the merits in an action brought under this section. 

3 ‘‘(e) ENFORCEMENT.—The Attorney General of the 

4 United States may bring an action to enforce this section 

5 in any district court of the United States as provided 

6 under the antitrust laws, as defined in section 1(a) of the 

7 Clayton Act (15 U.S.C. 12(a)).’’. 

8 (c) SOVEREIGN IMMUNITY.—Section 1605(a) of title 

9 28, United States Code, is amended— 

10 (1) in paragraph (6), by striking ‘‘or’’ at the 

11 end; 

12 (2) in paragraph (7), by striking the period at 

13 the end and inserting ‘‘; or’’; and 

14 (3) by adding at the end the following: 

15 ‘‘(8) in which the action is brought under sec16 tion 8 of the Sherman Act.’’. 

Æ 


jcorcoran on PROD1PC62 with BILLS