I 

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. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Oil Consumer Protec3 tion Act of 2011’’. 

4 TITLE I—APPLICATION OF THE 

5 SHERMAN ACT 

6 SEC. 101. SHORT TITLE. 

7 This title may be cited as the ‘‘No Oil Producing and 

8 Exporting Cartels Act of 2011’’ or ‘‘NOPEC’’. 

9 SEC. 102. SHERMAN ACT. 

10 The Sherman Act (15 U.S.C. 1 et seq.) is amended 

11 by adding after section 7 the following: 

12 ‘‘SEC. 7A. (a) It shall be illegal and a violation of 

13 this Act for any foreign state, or any instrumentality or 

14 agent of any foreign state, to act collectively or in com15 bination with any other foreign state, any instrumentality 

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

17 whether by cartel or any other association or form of co18 operation or joint action— 

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

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

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

22 gas, or any petroleum product; or 

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

24 trade for oil, natural gas, or any petroleum product; 

25 when such action, combination, or collective action has a 

26 direct, substantial, and reasonably foreseeable effect on 


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1 the market, supply, price, or distribution of oil, natural 

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

3 ‘‘(b) A foreign state engaged in conduct in violation 

4 of subsection (a) shall not be immune under the doctrine 

5 of sovereign immunity from the jurisdiction or judgments 

6 of the courts of the United States in any action brought 

7 to enforce this section. 

8 ‘‘(c) No court of the United States shall decline, 

9 based on the act of state doctrine, to make a determina10 tion on the merits in an action brought under this section. 

11 ‘‘(d) The Attorney General of the United States may 

12 bring an action to enforce this section in any district court 

13 of the United States as provided under the antitrust 

14 laws.’’. 

15 SEC. 103. SOVEREIGN IMMUNITY. 

16 Section 1605(a) of title 28, United States Code, is 

17 amended— 

18 (1) in paragraph (6) by striking ‘‘or’’ after the 

19 semicolon, 

20 (2) in paragraph (7) by striking the period and 

21 inserting ‘‘, or’’, and 

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

23 ‘‘(8) in which the action is brought under sec24 tion 7A of the Sherman Act.’’. 


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1 TITLE II—APPLICATION OF THE 

2 CLAYTON ACT 

3 SEC. 201. SHORT TITLE. 

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

5 Antitrust Act of 2011’’. 

6 SEC. 202. 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 

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

11 ‘‘SEC. 28. OIL AND NATURAL GAS. 

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

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

14 or to export or divert, existing supplies of petroleum, gaso15 line, or other fuel derived from petroleum, or natural gas 

16 with the primary intention of increasing prices or creating 

17 a shortage in a geographic market. 

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

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

20 existing supplies of petroleum, gasoline, or other fuel de21 rived from petroleum or natural gas has done so with the 

22 intent of increasing prices or creating a shortage in a geo23 graphic market under subsection (a), the court shall con24 sider whether— 


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

2 processing, marketing, selling, or otherwise making 

3 such products available has increased; and 

4 ‘‘(2) the price obtained from exporting or di5 verting existing supplies is greater than the price ob6 tained where the existing supplies are located or are 

7 intended to be shipped.’’. 

8 SEC. 203. REVIEW OF CLAYTON ACT. 

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

10 Chairman of the Federal Trade Commission shall conduct 

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

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

13 should be amended to modify how that section applies to 

14 persons engaged in the business of exploring for, pro15 ducing, refining, or otherwise processing, storing, mar16 keting, selling, or otherwise making available petroleum, 

17 gasoline or other fuel derived from petroleum, or natural 

18 gas. 

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

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

21 Chairman of the Federal Trade Commission shall submit 

22 a report to Congress regarding the findings of the study 

23 conducted under subsection (a), including recommenda24 tions and proposed legislation, if any. 


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1 SEC. 204. STUDY BY THE GOVERNMENT ACCOUNTABILITY 

2 OFFICE. 

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

4 consent decree’’ means a consent decree— 

5 (1) to which either the Federal Trade Commis6 sion or the Department of Justice is a party, 

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

8 earlier than 10 years before the date of enactment 

9 of this Act, 

10 (3) that required divestitures, and 

11 (4) that involved a person engaged in the busi12 ness of exploring for, producing, refining, or other13 wise processing, storing, marketing, selling, or other14 wise making available petroleum, gasoline or other 

15 fuel derived from petroleum, or natural gas. 

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

17 180 days after the date of enactment of this Act, the 

18 Comptroller General of the United States shall conduct 

19 a study evaluating the effectiveness of divestitures re20 quired under covered consent decrees. 

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

22 180 days after the date of enactment of this Act, the 

23 Comptroller General shall submit a report to Congress, the 

24 Federal Trade Commission, and the Department of Jus25 tice regarding the findings of the study conducted under 

26 subsection (b). 


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1 (d) FEDERAL AGENCY CONSIDERATION.—Upon re2 ceipt of the report required by subsection (c), the Attorney 

3 General or the Chairman of the Federal Trade Commis4 sion, as appropriate, shall consider whether any additional 

5 action is required to restore competition or prevent a sub6 stantial lessening of competition occurring as a result of 

7 any transaction that was the subject of the study con8 ducted under subsection (b). 

9 SEC. 205. JOINT FEDERAL AND STATE TASK FORCE. 

10 The Attorney General and the Chairman of the Fed11 eral Trade Commission shall establish a joint Federal12 State task force, which shall include the attorney general 

13 of any State that chooses to participate, to investigate in14 formation sharing (including through the use of exchange 

15 agreements and commercial information services) among 

16 persons in the business of exploring for, producing, refin17 ing, or otherwise processing, storing, marketing, selling, 

18 or otherwise making available petroleum, gasoline or other 

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

20 person about which the Energy Information Administra21 tion collects financial and operating data as part of its 

22 Financial Reporting System). 


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1 TITLE III—PREVENTION OF 

2 PRICE GOUGING 

3 SEC. 301. SHORT TITLE. 

4 This title may be cited as the ‘‘Federal Price Gouging 

5 Prevention Act’’. 

6 SEC. 302. UNCONSCIONABLE PRICING OF GASOLINE AND 

7 OTHER PETROLEUM DISTILLATES DURING 

8 EMERGENCIES. 

9 (a) UNCONSCIONABLE PRICING.— 

10 (1) IN GENERAL.—It shall be unlawful for any 

11 person to sell, at wholesale or at retail in an area 

12 and during a period of an international crisis affect13 ing the oil markets proclaimed under paragraph (2), 

14 gasoline or any other petroleum distillate covered by 

15 a proclamation issued under paragraph (2) at a 

16 price that— 

17 (A) is unconscionably excessive; and 

18 (B) indicates the seller is taking unfair ad19 vantage of the circumstances related to an 

20 international crisis to increase prices unreason21 ably. 

22 (2) ENERGY EMERGENCY PROCLAMATION.— 

23 (A) IN GENERAL.—The President may 

24 issue a proclamation of an international crisis 

25 affecting the oil markets and may designate any 


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1 area within the jurisdiction of the United 

2 States, where the prohibition in paragraph (1) 

3 shall apply. The proclamation shall state the ge4 ographic area covered, the gasoline or other pe5 troleum distillate covered, and the time period 

6 that such proclamation shall be in effect. 

7 (B) DURATION.—The proclamation— 

8 (i) may not apply for a period of more 

9 than 30 consecutive days, but may be re10 newed for such consecutive periods, each 

11 not to exceed 30 days, as the President de12 termines appropriate; and 

13 (ii) may include a period of time not 

14 to exceed 1 week preceding a reasonably 

15 foreseeable emergency. 

16 (3) FACTORS CONSIDERED.—In determining 

17 whether a person has violated paragraph (1), there 

18 shall be taken into account, among other factors— 

19 (A) whether the amount charged by such 

20 person for the applicable gasoline or other pe21 troleum distillate at a particular location in an 

22 area covered by a proclamation issued under 

23 paragraph (2) during the period such proclama24 tion is in effect— 


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1 (i) grossly exceeds the average price 

2 at which the applicable gasoline or other 

3 petroleum distillate was offered for sale by 

4 that person during the 30 days prior to 

5 such proclamation; 

6 (ii) grossly exceeds the price at which 

7 the same or similar gasoline or other pe8 troleum distillate was readily obtainable in 

9 the same area from other competing sellers 

10 during the same period; 

11 (iii) reasonably reflected additional 

12 costs, not within the control of that person, 

13 that were paid, incurred, or reasonably an14 ticipated by that person, or reflected addi15 tional risks taken by that person to 

16 produce, distribute, obtain, or sell such 

17 product under the circumstances; and 

18 (iv) was substantially attributable to 

19 local, regional, national, or international 

20 market conditions; and 

21 (B) whether the quantity of gasoline or 

22 other petroleum distillate the person produced, 

23 distributed, or sold in an area covered by a 

24 proclamation issued under paragraph (2) dur25 ing a 30-day period following the issuance of 


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1 such proclamation increased over the quantity 

2 that that person produced, distributed, or sold 

3 during the 30 days prior to such proclamation, 

4 taking into account usual seasonal demand vari5 ations. 

6 (b) DEFINITIONS.—As used in this section— 

7 (1) the term ‘‘wholesale’’, with respect to sales 

8 of gasoline or other petroleum distillates, means ei9 ther truckload or smaller sales of gasoline or petro10 leum distillates where title transfers at a product 

11 terminal or a refinery, and dealer tank wagon sales 

12 of gasoline or petroleum distillates priced on a deliv13 ered basis to retail outlets; and 

14 (2) the term ‘‘retail’’, with respect to sales of 

15 gasoline or other petroleum distillates, includes all 

16 sales to end users such as motorists as well as all 

17 direct sales to other end users such as agriculture, 

18 industry, residential, and commercial consumers. 

19 SEC. 303. ENFORCEMENT BY THE FEDERAL TRADE COM20 MISSION. 

21 (a) ENFORCEMENT BY FTC.—A violation of section 

22 302 shall be treated as a violation of a rule defining an 

23 unfair or deceptive act or practice prescribed under section 

24 18(a)(1)(B) of the Federal Trade Commission Act (15 

25 U.S.C. 57a(a)(1)(B)). The Federal Trade Commission 


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1 shall enforce this title in the same manner, by the same 

2 means, and with the same jurisdiction as though all appli3 cable terms and provisions of the Federal Trade Commis4 sion Act were incorporated into and made a part of this 

5 title. In enforcing section 302 of this title, the Commission 

6 shall give priority to enforcement actions concerning com7 panies with total United States wholesale or retail sales 

8 of gasoline and other petroleum distillates in excess of 

9 $10,000,000,000 per year. 

10 (b) CIVIL PENALTIES.— 

11 (1) IN GENERAL.—Notwithstanding the pen12 alties set forth under the Federal Trade Commission 

13 Act, any person who violates section 302 with actual 

14 knowledge or knowledge fairly implied on the basis 

15 of objective circumstances shall be subject to— 

16 (A) a civil penalty of not more than 3 

17 times the amount of profits gained by such per18 son through such violation; or 

19 (B) a civil penalty of not more than 

20 $100,000,000. 

21 (2) METHOD.—The penalties provided by para22 graph (1) shall be obtained in the same manner as 

23 civil penalties obtained under section 5 of the Fed24 eral Trade Commission Act (15 U.S.C. 45). 


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1 (3) MULTIPLE OFFENSES; MITIGATING FAC2 TORS.—In assessing the penalty provided by sub3 section (a)— 

4 (A) each day of a continuing violation shall 

5 be considered a separate violation; and 

6 (B) the court shall take into consideration, 

7 among other factors, the seriousness of the vio8 lation and the efforts of the person committing 

9 the violation to remedy the harm caused by the 

10 violation in a timely manner. 

11 SEC. 304. CRIMINAL PENALTIES. 

12 (a) IN GENERAL.—In addition to any penalty appli13 cable under section 303, any person who violates section 

14 302 shall be fined under title 18, United States Code, in 

15 an amount not to exceed $500,000,000. 

16 (b) ENFORCEMENT.—The criminal penalty provided 

17 by subsection (a) may be imposed only pursuant to a 

18 criminal action brought by the Attorney General or other 

19 officer of the Department of Justice. The Attorney Gen20 eral shall give priority to enforcement actions concerning 

21 companies with total United States wholesale or retail 

22 sales of gasoline and other petroleum distillates in excess 

23 of $10,000,000,000 per year. 


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1 SEC. 305. ENFORCEMENT AT RETAIL LEVEL BY STATE AT2 TORNEYS GENERAL. 

3 (a) IN GENERAL.—A State, as parens patriae, may 

4 bring a civil action on behalf of its residents in an appro5 priate district court of the United States to enforce the 

6 provisions of section 302, or to impose the civil penalties 

7 authorized by section 303(b)(1)(B), whenever the attorney 

8 general of the State has reason to believe that the interests 

9 of the residents of the State have been or are being threat10 ened or adversely affected by a violation of this title or 

11 a regulation under this title, involving a retail sale. 

12 (b) NOTICE.—The State shall serve written notice to 

13 the Federal Trade Commission of any civil action under 

14 subsection (a) prior to initiating such civil action. The no15 tice shall include a copy of the complaint to be filed to 

16 initiate such civil action, except that if it is not feasible 

17 for the State to provide such prior notice, the State shall 

18 provide such notice immediately upon instituting such civil 

19 action. 

20 (c) AUTHORITY TO INTERVENE.—Upon receiving the 

21 notice required by subsection (b), the Federal Trade Com22 mission may intervene in such civil action and upon inter23 vening— 

24 (1) be heard on all matters arising in such civil 

25 action; and 


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1 (2) file petitions for appeal of a decision in such 

2 civil action. 

3 (d) CONSTRUCTION.—For purposes of bringing any 

4 civil action under subsection (a), nothing in this section 

5 shall prevent the attorney general of a State from exer6 cising the powers conferred on the attorney general by the 

7 laws of such State to conduct investigations or to admin8 ister oaths or affirmations or to compel the attendance 

9 of witnesses or the production of documentary and other 

10 evidence. 

11 (e) VENUE; SERVICE OF PROCESS.—In a civil action 

12 brought under subsection (a)— 

13 (1) the venue shall be a judicial district in 

14 which— 

15 (A) the defendant operates; 

16 (B) the defendant was authorized to do 

17 business; or 

18 (C) the defendant in the civil action is 

19 found; 

20 (2) process may be served without regard to the 

21 territorial limits of the district or of the State in 

22 which the civil action is instituted; and 

23 (3) a person who participated with the defend24 ant in an alleged violation that is being litigated in 


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1 the civil action may be joined in the civil action with2 out regard to the residence of the person. 

3 (f) LIMITATION ON STATE ACTION WHILE FEDERAL

4 ACTION IS PENDING.—If the Federal Trade Commission 

5 has instituted a civil action or an administrative action 

6 for violation of this title, no State attorney general, or offi7 cial or agency of a State, may bring an action under this 

8 subsection during the pendency of that action against any 

9 defendant named in the complaint of the Federal Trade 

10 Commission or the other agency for any violation of this 

11 title alleged in the complaint. 

12 (g) ENFORCEMENT OF STATE LAW.—Nothing con13 tained in this section shall prohibit an authorized State 

14 official from proceeding in State court to enforce a civil 

15 or criminal statute of such State. 

16 SEC. 306. EFFECT ON OTHER LAWS. 

17 (a) OTHER AUTHORITY OF FEDERAL TRADE COM18 MISSION.—Nothing in this title shall be construed to limit 

19 or affect in any way the Federal Trade Commission’s au20 thority to bring enforcement actions or take any other 

21 measure under the Federal Trade Commission Act (15 

22 U.S.C. 41 et seq.) or any other provision of law. 

23 (b) STATE LAW.—Nothing in this title preempts any 

24 State law. 

Æ 


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