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108th CONGRESS
1st Session
S. 509
To modify the authority of the Federal Energy Regulatory Commission to
conduct investigations, to increase the penalties for violations of the
Federal Power Act and the Natural Gas Act, to authorize the Chairman of
the Federal Energy Regulatory Commission to contract for consultant
services, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 4, 2003
Mrs. Feinstein (for herself, Mr. Fitzgerald, Mr. Lugar, Mr. Harkin, Ms.
Cantwell, Mr. Wyden, and Mr. Leahy) introduced the following bill;
which was read twice and referred to the Committee on Agriculture,
Nutrition, and Forestry
_______________________________________________________________________
A BILL
To modify the authority of the Federal Energy Regulatory Commission to
conduct investigations, to increase the penalties for violations of the
Federal Power Act and the Natural Gas Act, to authorize the Chairman of
the Federal Energy Regulatory Commission to contract for consultant
services, 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 ``Energy Market Oversight Act''.
SEC. 2. JURISDICTION OF THE FEDERAL ENERGY REGULATORY COMMISSION OVER
ENERGY TRADING MARKETS.
Section 402 of the Department of Energy Organization Act (42 U.S.C.
7172) is amended by adding at the end the following:
``(i) Jurisdiction Over Derivatives Transactions and Other
Financial Transactions .--
``(1) Referral.--
``(A) In general.--To the extent that the
Commission determines that any contract for a
derivative transaction or other financial transaction
that comes before the Commission is not under the
jurisdiction of the Commission, the Commission shall
refer the contract to the appropriate Federal agency.
``(B) No effect on authority.--The authority of the
Commission or any Federal agency shall not be limited
or otherwise affected based on whether the Commission
has or has not referred a contract described in
subparagraph (A).
``(2) Meetings.--A designee of the Commission shall meet
quarterly with a designee of the Commodity Futures Trading
Commission, the Securities Exchange Commission, the Federal
Trade Commission, the Department of Justice, the Department of
the Treasury, and the Federal Reserve Board to discuss--
``(A) conditions and events in energy trading
markets; and
``(B) any changes in Federal law (including
regulations) that may be appropriate to regulate energy
trading markets.
``(3) Liaison.--The Commission shall, in cooperation with
the Commodity Futures Trading Commission, maintain a liaison
between the Commission and the Commodity Futures Trading
Commission.''.
SEC. 3. INVESTIGATIONS BY THE FEDERAL ENERGY REGULATORY COMMISSION
UNDER THE NATURAL GAS ACT AND FEDERAL POWER ACT.
(a) Investigations Under the Natural Gas Act.--Section 14(c) of the
Natural Gas Act (15 U.S.C. 717m(c)) is amended--
(1) by striking ``(c) For the purpose of'' and inserting
the following:
``(c) Taking of Evidence.--
``(1) In general.--For the purpose of'';
(2) by striking ``Such attendance'' and inserting the
following:
``(2) No geographic limitation.--The attendance'';
(3) by striking ``Witnesses summoned'' and inserting the
following:
``(3) Expenses.--Any witness summoned''; and
(4) by adding at the end the following:
``(4) Authorities.--Notwithstanding any other provision of
law, the exercise of the authorities of the Commission under
this subsection shall not be subject to the consent of the
Office of Management and Budget or any other Federal agency.''.
(b) Investigations Under the Federal Power Act.--Section 307(b) of
the Federal Power Act (16 U.S.C. 825f(b)) is amended--
(1) by striking ``(b) For the purpose of'' and inserting
the following:
``(b) Taking of Evidence.--
``(1) In general.--For the purpose of'';
(2) by striking ``Such attendance'' and inserting the
following:
``(2) No geographic limitation.--The attendance'';
(3) by striking ``Witnesses summoned'' and inserting the
following:
``(3) Expenses.--Any witness summoned''; and
(4) by adding at the end the following:
``(4) Authorities.--Notwithstanding any other provision of
law, the exercise of the authorities of the Commission under
this subsection shall not be subject to the consent of the
Office of Management and Budget or any other Federal agency.''.
SEC. 4. INCREASE IN CRIMINAL PENALTIES UNDER THE NATURAL GAS ACT AND
FEDERAL POWER ACT.
(a) Criminal Penalties Under the Natural Gas Act.--Section 21 of
the Natural Gas Act (15 U.S.C. 717t) is amended--
(1) in subsection (a), by striking ``punished by a fine of
not more than $5,000 or by imprisonment for not more than two
years, or both'' and inserting ``imprisoned not more than 5
years, fined not more than $1,000,000, or both''; and
(2) in subsection (b), by striking ``$500 for each and
every day during which such offense occurs'' and inserting
``$50,000 for each day of each violation''.
(b) Criminal Penalties Under the Federal Power Act.--
(1) General penalties.--Section 316 of the Federal Power
Act (16 U.S.C. 825o) is amended--
(A) in subsection (a), by striking ``punished by a
fine of not more than $5,000 or by imprisonment for not
more than two years or both'' and inserting
``imprisoned not more than 5 years, fined not more than
$1,000,000, or both''; and
(B) in subsection (b), by striking ``$500 for each
and every day during which such offense occurs'' and
inserting ``$50,000 for each day of each violation''.
(2) Enforcement of certain provisions.--Section 316A of the
Federal Power Act (16 U.S.C. 825o-1) is amended--
(A) by striking subsection (a) and inserting the
following:
``(a) Violations.--It shall be unlawful for any person--
``(1) to violate any provision of part II (including any
rule or order issued under a provision of that part); or
``(2) to fail to comply, within a time period specified by
the Commission, with--
``(A) any written request by the Commission or a
member of the staff of the Commission for information;
or
``(B) a formal investigation or proceeding under
this part.''; and
(B) in subsection (b)--
(i) by striking ``section 211, 212, 213 or
214 or any provision of any rule or order
thereunder'' and inserting the following:
``part II (including any rule or order issued
under a provision of that part) or fails to
comply in a timely manner with any written
request for information by the Commission or a
member of the staff of the Commission or in a
formal investigation or proceeding under this
part''; and
(ii) by striking ``$10,000 for each day
that such violation continues'' and inserting
``$50,000 for each day of each violation''.
SEC. 5. REFUND EFFECTIVE DATE.
Section 206(b) of the Federal Power Act (16 U.S.C. 824e(b)) is
amended--
(1) in the second sentence, by striking ``the date 60
days'' and all that follows and inserting ``the date of filing
of the complaint nor later than the date that is 150 days after
the date of filing of the complaint, unless the Commission
determines that the complaint could not have been brought
earlier because of fraud, intentional misrepresentation, or any
similar act by the public utility named in the complaint, in
which case the refund effective date shall be the date on which
the rate, charge, classification, rule, regulation, practice,
or contract that is found to be unjust, unreasonable, unduly
discriminatory, or preferential came into effect.''; and
(2) in the third sentence--
(A) by striking ``date 60 days after the
publication'' and inserting ``date of publication'';
and
(B) by striking ``expiration of such 60-day
period'' and inserting ``the publication date, unless
the Commission determines that the motion could not
have been made earlier because of fraud, intentional
misrepresentation, or any similar act by the public
utility named in the motion, in which case the refund
effective date shall be the date on which the rate,
charge, classification, rule, regulation, practice, or
contract that is found to be unjust, unreasonable,
unduly discriminatory, or preferential came into
effect''.
SEC. 6. CONSULTING SERVICES.
Title IV of the Department of Energy Organization Act (42 U.S.C.
7171 et seq.) is amended by adding at the end the following:
``SEC. 408. CONSULTING SERVICES.
``(a) In General.--The Chairman may contract for the services of
consultants to assist the Commission in carrying out any
responsibilities of the Commission under this Act, the Federal Power
Act (16 U.S.C. 791a et seq.), or the Natural Gas Act (15 U.S.C. 717 et
seq.).
``(b) Applicable Law.--In contracting for consultant services under
subsection (a), if the Chairman determines that the contract is in the
public interest, the Chairman, in entering into a contract, shall not
be subject to--
``(1) section 5, 253, 253a, or 253b of title 41, United
States Code; or
``(2) any law (including a regulation) relating to
conflicts of interest.''.
SEC. 7. LEGAL CERTAINTY FOR TRANSACTIONS IN EXEMPT COMMODITIES.
Section 2 of the Commodity Exchange Act (7 U.S.C. 2) is amended by
striking subsections (g) and (h) and inserting the following:
``(g) Off-Exchange Transactions in Exempt Commodities.--
``(1) Definitions.--In this subsection:
``(A) Covered entity.--The term `covered entity'
means--
``(i) an electronic trading facility; and
``(ii) a dealer market.
``(B) Dealer market.--
``(i) In general.--The term `dealer market'
has the meaning given the term by the
Commission.
``(ii) Inclusions.--The term `dealer
market' includes each bilateral or multilateral
agreement, contract, or transaction determined
by the Commission, regardless of the means of
execution of the agreement, contract, or
transaction.
``(2) Exemption for transactions not on trading
facilities.--Except as provided in paragraph (4), nothing in
this Act shall apply to an agreement, contract, or transaction
in an exempt commodity that--
``(A) is entered into solely between persons that
are eligible contract participants at the time the
persons enter into the agreement, contract, or
transaction; and
``(B) is not entered into on a trading facility.
``(3) Exemption for transactions on covered entities.--
Except as provided in paragraphs (4), (5), and (7), nothing in
this Act shall apply to an agreement, contract, or transaction
in an exempt commodity that is--
``(A) entered into on a principal-to-principal
basis solely between persons that are eligible contract
participants at the time at which the persons enter
into the agreement, contract, or transaction; and
``(B) executed or traded on a covered entity.
``(4) Regulatory and oversight requirements.--
``(A) In general.--An agreement, contract, or
transaction described in paragraph (2) or (3) (and the
covered entity on which the agreement, contract, or
transaction is executed) shall be subject to--
``(i) sections 5b, 12(e)(2)(B), and
22(a)(4);
``(ii) the provisions relating to
manipulation and misleading transactions under
sections 4b, 4c(a), 4c(b), 4o, 6(c), 6(d), 6c,
6d, 8a, and 9(a)(2); and
``(iii) the provisions relating to fraud
and misleading transactions under sections 4b,
4c(a), 4c(b), 4o, and 8a.
``(B) Transactions exempted by commission action.--
Notwithstanding any exemption by the Commission under
section 4(c), an agreement, contract, or transaction
described in paragraph (2) or (3) shall be subject to
the authorities in clauses (i), (ii), and (iii) of
subparagraph (A).
``(5) Covered entities.--An agreement, contract, or
transaction described in paragraph (3) and the covered entity
on which the agreement, contract, or transaction is executed,
shall be subject to (to the extent the Commission determines
appropriate)--
``(A) section 5a, to the extent provided in section
5a(g)) and 5d;
``(B) consistent with section 4i, a requirement
that books and records relating to the business of the
covered entity on which the agreement, contract, or
transaction is executed be made available to
representatives of the Commission and the Department of
Justice for inspection for a period of at least 5 years
after the date of each transaction, including--
``(i) information relating to data entry
and transaction details sufficient to enable
the Commission to reconstruct trading activity
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