January 12, 2009 CONGRESSIONAL RECORD — SENATE S311 

‘‘(VI) the Integrated Automated Fingerprint Identification System (IAFIS); 

‘‘(VII) the Nonimmigrant Information System (NIIS); 

‘‘(VIII) the Reengineered Naturalization 

Applications Casework Systems (RNACS); 

and 

‘‘(IX) the Refugees, Asylum, and Parole 

System (RAPS).’’; and 

(4) by adding at the end the following: 

‘‘(v) ANNUAL REPORT.—Not less frequently 

than once each fiscal year, the Secretary of 

Homeland Security shall submit to the Committee on Foreign Relations and the Committee on the Judiciary of the Senate and 

the Committee on Foreign Affairs and the 

Committee on the Judiciary of the House of 

Representatives a report describing the visa 

overstay rate for the previous fiscal year of 

each country designated as a program country under paragraph (1).’’. 

By Mr. KOHL (for himself, Mr. 

BROWN, Mr. SPECTER, Mr. 

LEAHY, Mr. GRASSLEY, Mr. 

FEINGOLD, Ms. SNOWE, Mr. 

SCHUMER, Mr. DURBIN, Mr. 

LEVIN, and Mr. LAUTENBERG): 

S. 204. A bill to amend the Sherman 

Act to make oil-producing and exporting cartels illegal; to the Committee 

on the Judiciary. 

Mr. KOHL. Mr. President, I rise 

today to introduce, with ten of my colleagues, the No Oil Producing and Exporting Cartels Act, NOPEC. This legislation will authorize our Government, for the first time, to take action 

against the illegal conduct of the OPEC 

oil cartel. It is time for the U.S. Government to fight back on efforts to fix 

the price of oil and hold OPEC accountable when it acts illegally. Our amendment will hold OPEC member nations 

to account under U.S. antitrust law 

when they agree to limit supply or fix 

price in violation of the most basic 

principles of free competition. 

NOPEC will authorize the Attorney 

General to file suit against nations or 

other entities that participate in a conspiracy to limit the supply, or fix the 

price, of oil. In addition, it will specify 

that the doctrines of sovereign immunity and act of state do not exempt nations that participate in oil cartels 

from basic antitrust law. I have introduced this legislation in each Congress 

since 2000. This legislation passed the 

full Senate by a vote of 70–23 in June 

2007 as an amendment to the 2007 Energy Bill before being stripped from 

that bill in the conference committee. 

The identical House version of NOPEC 

passed the other body as stand alone 

legislation in May 2007 by an overwhelming 345–72 vote. It is now time 

for us to at last pass this legislation 

into law and give our Nation a long 

needed tool to counteract this pernicious and anti-consumer conspiracy. 

Throughout 2007 and 2008, crude oil 

and gasoline prices marched steadily 

upwards, peaking last summer at over 

$140 per barrel for crude and well over 

$4 per gallon for gasoline. In recent 

months, of course, these prices have 

plummeted as demand has dropped due 

to the serious global economic recession. But the recent declines in crude 

oil and gasoline prices should not fool 

us—the global oil cartel remains a 

major force conspiring to raise oil 

prices to the detriment of American 

consumers. 

The recent actions of the OPEC cartel demonstrate the dangers it presents. OPEC is doing everything it can 

to raise oil prices. On October 24, 2008, 

OPEC agreed to cut production by 1.5 

million barrels a day, don December 17 

OPEC agreed to a further 2.2 million 

barrels a day production cut. The 

OPEC cartel makes no secret of its motivation for these production cuts. 

OPEC President Chaib Khelil put it 

very simply in an interview published 

December 23, 2008, ‘‘Without these cuts, 

I don’t think we’d be seeing $43 [per 

barrel] today, we’d have seen in the 

$20s. . . . [H]opefully by the third quarter [of 2009] we will see prices rising.’’ 

In another interview in December, 

Khelil was quoted as saying ‘‘The 

stronger the decision [to cut production], the faster prices will pick up.’’ 

And if the price of crude oil begins to 

rise again as a result of these actions 

by OPEC, there is no doubt that millions of American consumers will feel 

the pinch every time they visit the gas 

pump. The Federal Trade Commission 

has estimated that 85 percent of the 

variability in the cost of gasoline is the 

result of changes in the cost of crude 

oil. 

Such blatantly anti-competitive conduct by the oil cartel violates the most 

basic principles of fair competition and 

free markets and should not be tolerated. If private companies engaged 

such an international price fixing conspiracy, there would no question that 

it would be illegal. The actions of 

OPEC should be treated no differently 

because it is a conspiracy of nations. 

For years, this price fixing conspiracy of OPEC nations has unfairly 

driven up the cost of imported crude oil 

to satisfy the greed of the oil exporters. We have long decried OPEC, but, 

sadly, no one in Government has yet 

tried to take any action. This NOPEC 

legislation will, for the first time, establish clearly and plainly that when a 

group of competing oil producers like 

the OPEC nations act together to restrict supply or set prices, they are violating U.S. law. 

It is also important to point out that 

this legislation will not authorize private lawsuits. It only authorizes the 

Attorney General to file suit under the 

antitrust laws for redress. It will always be in the discretion of the Justice 

Department and the President as to 

whether to take action to enforce 

NOPEC. Our legislation will not require the Government to bring a legal 

action against OPEC member nations, 

and no private party will have the ability to bring such an action. This decision will entirely remain in the discretion of the executive branch. Our 

NOPEC legislation will give our law enforcement agencies a tool to employ 

against the oil cartel—but the decision 

on whether to use this tool will entirely be up to the Justice Department 

and, ultimately, the President. They 

can use this tool as they see fit—to file 

a legal action, to jawbone OPEC in diplomatic discussions, or defer from any 

action should they judge foreign policy 

or other considerations warrant it. 

NOPEC will also make plain that the 

nations of OPEC cannot hide behind 

the doctrines of ‘‘sovereign immunity’’ 

or ‘‘act of state’’ to escape the reach of 

American justice. In so doing, our 

amendment will overrule one 28 year 

old lower court decision which incorrectly failed to recognize that the actions of OPEC member nations was 

commercial activity exempt from the 

protections of sovereign immunity. 

The most fundamental principle of a 

free market is that competitors cannot 

be permitted to conspire to limit supply or fix price. There can be no free 

market without this foundation. We 

should not permit any nation to flout 

this fundamental principle. 

Some critics of this legislation have 

argued that suing OPEC will not work 

or that threatening suit will hurt more 

than help. I disagree. Our NOPEC legislation will, for the first time, enable 

our Justice Department to take legal 

action to combat the illegitimate 

price-fixing conspiracy of the oil cartel. It will, at a minimum, have a real 

deterrent effect on nations that seek to 

join forces to oil prices to the detriment of consumers. This legislation 

will be the first real weapon the U.S. 

Government has ever had to deter 

OPEC from its seemingly endless cycle 

of supply cutbacks designed to raise 

price. It will mean that OPEC member 

nations will face the possibility of real 

and substantial antitrust sanctions 

should they persist in their illegal conduct. It will also deter additional nations who may today be considering 

joining OPEC. 

I urge my colleagues to support our 

NOPEC legislation so that our Nation 

will finally have an effective means to 

combat this price-fixing conspiracy of 

oil-rich nations. 

Mr. President, I ask unanimous consent that the text of the bill be printed 

in the RECORD. 

There being no objection, the text of 

the bill was ordered to be printed in 

the RECORD, as follows: 

S. 204 

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 ‘‘No Oil Producing and Exporting Cartels Act of 2009’’ or 

‘‘NOPEC’’. 

SEC. 2. 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— 


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S312 CONGRESSIONAL RECORD — SENATE January 12, 2009 

‘‘(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.’’. 

SEC. 3. 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.’’. 

By Mr. BINGAMAN (for himself, 

Mrs. HUTCHISON, Mrs. FEINSTEIN, Mr. DURBIN, Mr. MCCAIN, 

and Mr. KYL): 

S. 205. A bill to authorize additional 

resources to identify and eliminate illicit sources of firearms smuggled into 

Mexico for use by violent drug trafficking organizations, and for other 

purposes; to the Committee on the Judiciary. 

Mr. BINGAMAN. Mr. President, I rise 

today to introduce the Southwest Border Violence Reduction Act of 2009. 

This important legislation, which is cosponsored by Senators HUTCHISON, DURBIN, and FEINSTEIN, is aimed at addressing drug-related violence in Mexico by 

reducing the number of weapons that 

are illegally smuggled into the country. 

The ongoing violence in Mexico is 

having a devastating impact on the 

country. In 2008, more than 5,300 people 

were killed in Mexico—this is double 

the number in the previous year. During this last year, there were over 1,600 

deaths just in Ciudad Juarez. Drug 

traffickers are warring with each 

other, assassinations of police and government officials are commonplace, 

lawyers and journalists have been 

killed, and many innocent civilians 

have been caught up in the crossfire. 

Border communities within the 

United States are also being directly 

impacted. Many of the people living in 

this region have strong family ties to 

Mexico and the violence makes it difficult to visit loved ones. U.S. border 

hospitals have had to provide medical 

care to the wounded under armed 

guard. And in New Mexico, we had to 

briefly shut down the Columbus Port of 

Entry due to gun battles in the Mexican border town of Palomas and provide police escorts to school buses passing through the area. At one point this 

last year, the entire police force in 

Palomas resigned due to threats by 

drug traffickers and the Chief of Police 

fled to the United States to seek asylum. 

Besides the horrific human toll this 

violence is having on communities 

throughout Mexico, it also impacts the 

overall economy of the border region. 

Everyday thousands of people travel 

back and forth between the United 

States and Mexico for business and 

pleasure. This flow of people and goods 

is an essential aspect of maintaining 

healthy economic activity on both 

sides of the border. However, the current security situation is hampering 

bilateral trade, new business ventures, 

and tourism. In these tough economic 

times, the violence exacerbates an already bad economic environment. 

The United States has taken some 

important steps to help Mexico fight 

drug traffickers, such as increasing bilateral cooperation and providing substantial financial assistance as part of 

the Merida initiative. However, there is 

much more that we can be doing to 

help quell this violence. One key area 

where more can and should be done is 

with regard to stopping the flow of 

weapons being smuggled into Mexico 

from the United States. 

According to the ATF, about 90 percent of the weapons confiscated in 

Mexico come from sources within the 

United States because firearms are 

much more readily accessible in the 

United States than in Mexico. These 

weapons are the so-called ‘‘tools of the 

trade’’ for narco-traffickers. They are 

the means by which cartels maintain 

control over drug corridors and the instrument they use to execute their 

scheme of violence and intimidation. 

In the four U.S. border States there 

are about 6,600 licensed gun dealers. 

The vast majority of these dealers act 

in accordance with the law, but drug 

gangs exploit the availability of weapons in the region to supply cartels on 

the Mexican side of the border with illegal high-powered weapons. 

The ATF has a very successful initiative in place to combat southbound illicit weapons trafficking, know as 

Project Gunrunner, but they need more 

resources to adequately tackle the 

problem. 

The Southwest Border Violence Reduction Act would provide these much 

needed resources. Specially, this legislation would authorize $30 million over 

2 years to expand Project Gunrunner 

teams in the border region and $19 million to assign agents to U.S. consulates 

in Mexico to assist Mexican law enforcement with smuggling investigations. 

I would also like to make it clear 

that nothing in this bill limits the sale 

of firearms or places any additional restrictions on licensed dealers. This effort is only focused on enhancing the 

investigative capabilities of the ATF 

with regard to arms trafficking in 

order to weed out the bad actors and to 

ensure that weapons aren’t being illegally smuggled across the border. 

The United States has traditionally 

focused on enhancing efforts to prevent 

illegal narcotics from being smuggled 

into the county. While we obviously 

need to dedicate resources toward this 

end, we also should be taking a comprehensive approach that recognizes 

that the northbound flow of narcotics 

is dependent on the southbound flow of 

weapons and currency. Denying traffickers the proceeds of drug sales and 

the ability to heavily arm their cartels 

is essential in reducing the drug flow 

into the United States. 

It is insufficient to simply rely on 

Mexican authorities to stop the flow of 

guns going into their country. Drug 

trafficking is a transnational threat 

and the solution must involve sustained cooperation between the United 

States and Mexico. We must do more 

on our side of the border to disrupt 

weapons smuggling if we are going to 

be successful in combating drug cartels. 

Instability and violence in Mexico is 

taking a toll on communities on both 

sides of the border. I strongly believe 

that this is an issue that deserves more 

attention, and I hope my colleagues 

will support this bipartisan legislation. 

Mr. President, I ask unanimous consent that the text of the bill be printed 

in the RECORD. 

There being no objection, the text of 

the bill was ordered to be printed in 

the RECORD, as follows: 

S. 205 

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 ‘‘Southwest 

Border Violence Reduction Act of 2009’’. 

SEC. 2. PROJECT GUNRUNNER. 

(a) IN GENERAL.—The Attorney General 

shall dedicate and expand the resources provided for the Project Gunrunner initiative of 

the Bureau of Alcohol, Tobacco, Firearms, 

and Explosives to identify, investigate, and 

prosecute individuals involved in the trafficking of firearms across the international 

border between the United States and Mexico. 

(b) ACTIVITIES.—In carrying out this section, the Attorney General shall— 

(1) assign additional agents of the Bureau 

of Alcohol, Tobacco, Firearms, and Explosives to the area of the United States adjacent to the international border between the 

United States and Mexico to support the expansion of Project Gunrunner teams; 

(2) establish not fewer than 1 Project Gunrunner team in each State along the international border between the United States 

and Mexico; and 

(3) coordinate with the heads of other relevant Federal law enforcement agencies and 

State and local law enforcement agencies to 

address firearms trafficking in a comprehensive manner. 

(c) ADDITIONAL STAFF.—The Attorney General may hire Bureau of Alcohol, Tobacco, 


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