109th CONGRESS
2d Session
H. R. 5248
To regulate over-the-counter trading of energy derivatives.
IN THE HOUSE OF REPRESENTATIVES
April 27, 2006
Mr. STUPAK (for himself, Mr. DINGELL, Mr. LARSON of Connecticut, Mr. NADLER,
Mrs. MCCARTHY, Mr. HINCHEY, Mr. BAIRD, Mrs. NAPOLITANO, Mr. CHANDLER, Ms.
SCHWARTZ of Pennsylvania, Mr. TIERNEY, Mr. INSLEE, Ms. MCKINNEY, Mr. ALLEN,
Mr. AL GREEN of Texas, Mr. DEFAZIO, Mrs. CAPPS, Mr. PASCRELL, Mr. DOGGETT,
Mr. RUPPERSBERGER, and Mr. BISHOP of New York) introduced the following
bill; which was referred to the Committee on Agriculture
A BILL
To regulate over-the-counter trading of energy derivatives.
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 `Prevent Unfair Manipulation of Prices Act
of 2006'.
SEC. 2. OVER-THE-COUNTER TRANSACTIONS IN ENERGY COMMODITIES.
(a) Definitions- Section 1a of the Commodity Exchange Act (7 U.S.C. 1a)
is amended by adding at the end the following:
`(34) INCLUDED ENERGY TRANSACTION- The term `included energy transaction'
means a contract, agreement, or transaction in an energy commodity that
is--
`(A)(i) executed or traded on an electronic trading facility; and
`(ii) entered into on a principal-to-principal basis solely between
persons that are eligible commercial entities at the time the persons
enter into the agreement, contract, or transaction; or
`(B)(i) executed or traded not on or through a trading facility; and
`(ii) entered into solely between persons that are eligible contract
participants at the time the persons enter into the agreement, contract,
or transaction, regardless of the means of execution of the agreement,
contract, or transaction.
`(A) IN GENERAL- The term `energy commodity' means a commodity (other
than an excluded commodity, a metal, or an agricultural commodity) that
is used as a source of energy.
`(B) INCLUSIONS- The term `energy commodity' includes--
`(ii) crude oil, gasoline, diesel fuel, heating oil, and propane;
`(36) ELECTRONIC ENERGY TRADING FACILITY- The term `electronic energy
trading facility' means an electronic trading facility on or through which
included energy transactions are traded or executed.'.
(b) Off-Exchange Transactions in Energy Commodities- Section 2(g) of the
Commodity Exchange Act (7 U.S.C. 2(g)) is amended--
(1) by inserting `or an energy commodity' after `agricultural commodity';
(2) by redesignating paragraphs (1) through (3) as subparagraphs (A) through
(C), respectively;
(3) by striking `No provision' and inserting the following:
`(1) IN GENERAL- No provision'; and
(4) by adding at the end the following:
`(2) TRANSACTIONS IN ENERGY COMMODITIES-
`(A) IN GENERAL- Except as provided in subparagraphs (B) and (C) and
subsection (h)(7), nothing in this Act applies to an included energy
transaction.
`(i) IN GENERAL- An included energy transaction shall be subject to--
`(I) sections 5b, 12(e)(2)(B), and 22(a)(4); and
`(II) the prohibitions in sections 4b, 4c(a), 4c(b), 4o, 6(c), 6(d),
6c, 6d, 8a, and 9(a)(2).
`(ii) TRANSACTIONS EXEMPTED BY COMMISSION ACTION- Notwithstanding
any exemption by the Commission under section 4(c), an included energy
transaction shall be subject to the sections specified in clause (i)
of this subparagraph, subparagraph (C), and subsection (h)(7).
`(C) REPORTING AND RECORDKEEPING REQUIREMENTS-
`(i) IN GENERAL- An eligible contract participant that enters into
or executes an included energy transaction that performs, or together
with other such transactions performs, a significant price discovery
function in the cash market for an energy commodity or in any other
market for agreements, contracts, or transactions relating to an energy
commodity, and an eligible commercial entity that enters into or executes
an included energy transaction described in section 1a(34)(A) shall--
`(I) provide to the Commission on a timely basis the information
required under clause (ii); and
`(II)(aa) consistent with section 4i, maintain books and records
relating to each included energy transaction, for a period of at
least 5 years after the date of the transaction, in such form as
the Commission shall require; and
`(bb) keep the books and records open to inspection by any representative
of the Commission or the Attorney General.
`(ii) REQUIRED INFORMATION-
`(I) IN GENERAL- The Commission shall require that such information
regarding included energy transactions be provided to the Commission
as the Commission considers necessary to assist in detecting and
preventing price manipulation.
`(II) INFORMATION TO BE INCLUDED- Such information shall include
information regarding large trading positions obtained through 1
or more included energy transactions that involve--
`(aa) substantial quantities of the commodity in the cash market;
or
`(bb) substantial positions, investments, or trades in agreements
or contracts related to energy commodities.
`(III) MANNER OF COMPLIANCE- The Commission shall specify when and
how such information shall be provided and maintained by eligible
contract participants and eligible commercial entities.
`(IV) PRICE DISCOVERY TRANSACTIONS-
`(aa) IN GENERAL- In specifying the information to be provided
under this paragraph, the Commission shall identify the transactions or
class of transactions that the Commission considers to perform a significant
price discovery function.
`(bb) CONSIDERATIONS- In determining which included energy transactions
perform a significant price discovery function, the Commission shall consider
the extent to which--
`(AA) standardized agreements are used to execute the transactions;
`(BB) the transactions involve standardized types or measures of a commodity;
`(CC) the prices of the transactions are reported to third parties, published,
or disseminated;
`(DD) the prices of the transactions are referenced in other transactions;
and
`(EE) other factors considered appropriate by the Commission.
`(aa) IN GENERAL- The Commission, in its discretion, may allow
large trader position reports required to be provided by an eligible commercial
entity to be provided by an electronic energy trading facility if the eligible
commercial entity authorizes the facility to provide such information on
its behalf.
`(bb) INFORMATION AND ENFORCEMENT- Nothing in an authorization
under item (aa) shall impair the ability of the Commission to obtain information
from an eligible commercial entity or otherwise enforce this Act.
`(VI) REGULATIONS- Not later than 180 days after the date of enactment
of this paragraph, the Commission shall issue a notice of proposed
rulemaking, and not later than 1 year after the date of enactment
of this paragraph, the Commission shall promulgate final regulations,
specifying the information to be provided and maintained under this
subparagraph.'.
SEC. 3. ELECTRONIC TRADING FACILITIES FOR ENERGY COMMODITIES.
Section 2(h) of the Commodity Exchange Act (7 U.S.C. 2(h)) is amended--
(1) in paragraph (1), by inserting after `an exempt commodity' the following:
`, other than an energy commodity,';
(2) in paragraph (3), by inserting after `an exempt commodity' the following:
`, other than an energy commodity,'; and
(3) by adding at the end the following:
`(7) ENERGY TRANSACTIONS-
`(A) IN GENERAL- To the extent that the Commission determines to be
appropriate under subparagraph (C), an electronic energy trading facility
shall--
`(i) be subject to the requirements of section 5a, to the extent provided
in sections 5a(g) and 5d;
`(ii)(I) consistent with section 4i, maintain books and records relating
to the business of the electronic energy trading facility, including
books and records relating to each transaction in such form as the
Commission may require; and
`(II) make the books and records required under this section available
to representatives of the Commission and the Attorney General for
inspection for a period of at least 5 years after the date of each
included energy transaction;
`(iii) make available to the public information on trading volumes,
settlement prices, open interest (where applicable), and opening and
closing ranges (or daily highs and lows, as appropriate) for included
energy transactions; and
`(iv) provide the information to the Commission in such form and at
such times as the Commission may require.
`(B) APPLICABILITY OF OTHER PROVISIONS-
`(i) PARAGRAPH (5)- An electronic energy trading facility shall comply
with paragraph (5).
`(ii) PARAGRAPH (6)- Paragraph (6) shall apply with respect to a subpoena
issued to any foreign person that the Commission believes is conducting
or has conducted transactions on or through an electronic energy trading
facility.
`(C) REGULATIONS- Not later than 180 days after the date of enactment
of this paragraph, the Commission shall issue a notice of proposed rulemaking,
and not later than 1 year after the date of enactment of this paragraph,
the Commission shall promulgate final regulations, specifying the information
to be provided, maintained, or made available to the public under subparagraphs
(A) and (B).
`(8) NONDISCLOSURE OF PROPRIETARY INFORMATION- In carrying out paragraph
(7) and subsection (g)(2), the Commission shall not--
`(A) require the real-time publication of proprietary information;
`(B) prohibit the commercial sale or licensing of real-time proprietary
information; or
`(C) publicly disclose information regarding market positions, business
transactions, trade secrets, or names of customers, except as provided
in section 8.'.
SEC. 4. NO EFFECT ON OTHER AUTHORITY.
(a) No Effect on FERC Authority- Nothing contained in this title shall affect
the jurisdiction of the Federal Energy Regulatory Commission with respect
to the authority of the Federal Energy Regulatory Commission under the Federal
Power Act (16 U.S.C. 791a et seq.), the Natural Gas Act (15 U.S.C. 717 et
seq.), or other law to obtain information or otherwise carry out the responsibilities
of the Federal Energy Regulatory Commission.
(b) No Effect on Excluded Commodities- The amendments made by this title
have no effect on the regulation of excluded commodities under the Commodity
Exchange Act (7 U.S.C. 1a et seq.).
(c) No Effect on Metals- The amendments made by this title have no effect
on the regulation of metals under the Commodity Exchange Act (7 U.S.C. 1a
et seq.).
SEC. 5. PROHIBITION OF FRAUDULENT TRANSACTIONS.
Section 4b of the Commodity Exchange Act (7 U.S.C. 6b) is amended by striking
subsection (a) and inserting the following:
`(1) IN GENERAL- It shall be unlawful(A) for any person, in or in connection
with any order to make, or the making of, any contract of sale of any
commodity for future delivery or in interstate commerce, that is made,
or to be made, on or subject to the rules of a designated contract market,
for or on behalf of any other person, or(B) for any person, in or in connection
with any order to make, or the making of, any contract of sale of any
commodity for future delivery or other agreement, contract or transaction
subject to paragraphs (1) and (2) of section 5a(g), that is made, or to
be made, for or on behalf of or with, any other person, other than on
or subject to the rules of a designated contract market--
`(i) to cheat or defraud or attempt to cheat or defraud the other person;
`(ii) willfully to make or cause to be made to such other person any
false report or statement or willfully to enter or cause to be entered
for the other person any false record;
`(iii) willfully to deceive or attempt to deceive the other person by
any means whatsoever in regard to any order or contract or the disposition
or execution of any order or contract, or in regard to any act of agency
performed, with respect to any order or contract for (or, in the case
of a contract described in subparagraph (B), with the other person)
such person; or
`(iv)(I) to bucket an order represented by the person as an order to
be executed, for or on behalf of the other person, on an organized exchange;
or
`(aa) fill an order by offset against the order or orders of the other
person; or
`(bb) willfully and knowingly and without the prior consent of the
other person, to--
`(AA) become the buyer in respect to any selling order of the other
person; or
`(BB) become the seller in respect to any buying order of the other
person,
if the order is to be executed on or subject to the rules of a designated
contract market.
`(2) LIMITATION- This subsection does not obligate any person, in connection
with a transaction in a contract of sale of a commodity for future delivery
with another person, to disclose to any other person nonpublic information
that may be material to the market price of the commodity or transaction,
except as necessary to make any statement made to the other person in
connection with the transaction not misleading in any material respect.'.
SEC. 6. CRIMINAL AND CIVIL PENALTIES.
(a) Enforcement Powers of Commission- Section 6(c) of the Commodity Exchange
Act (7 U.S.C. 9, 15) is amended in clause (3) of the tenth sentence--
(1) by inserting `(A)' after `assess such person'; and
(2) by inserting after `each such violation' the following: `, or (B)
in any case of manipulation of, or attempt to manipulate, the price of
any commodity, a civil penalty of not more than the greater of $1,000,000
or triple the monetary gain to such person for each such violation,'.
(b) Manipulations and Other Violations- Section 6(d) of the Commodity Exchange
Act (7 U.S.C. 13b) is amended in the first sentence--
(1) by striking `paragraph (a) or (b) of section 9 of this Act' and inserting
`subsection (a), (b), or (f) of section 9'; and
(2) by striking `said paragraph 9(a) or 9(b)' and inserting `subsection
(a), (b), or (f) of section 9'.
(c) Nonenforcement of Rules of Government or Other Violations- Section 6b
of the Commodity Exchange Act (7 U.S.C. 13a) is amended--
(1) in the first sentence, by inserting before the period at the end the
following: `, or, in any case of manipulation of, or an attempt to manipulate,
the price of any commodity, a civil penalty of not more than $1,000,000
for each such violation'; and
(2) in the second sentence, by inserting before the period at the end
the following: `, except that if the failure or refusal to obey or comply
with the order involved any offense under section 9(f), the registered
entity, director, officer, agent, or employee shall be guilty of a felony
and, on conviction, shall be subject to penalties under section 9(f)'.
(d) Action to Enjoin or Restrain Violations- Section 6c(d) of the Commodity
Exchange Act (7 U.S.C. 13a-1(d)) is amended by striking `(d)' and all that
follows through the end of paragraph (1) and inserting the following:
`(d) Civil Penalties- (1) In any action brought under this section, the
Commission may seek and the court shall have jurisdiction to impose, on
a proper showing, on any person found in the action to have committed any
violation--
`(A) a civil penalty in the amount of not more than the greater of $100,000
or triple the monetary gain to the person for each violation; or
`(B) in any case of manipulation of, or an attempt to manipulate, the
price of any commodity, a civil penalty in the amount of not more than
the greater of $1,000,000 or triple the monetary gain to the person for
each violation.'.
(e) Violations Generally- Section 9(a) of the Commodity Exchange Act (7
U.S.C. 13) is amended--
(1) by striking `(or $500,000 in the case of a person who is an individual)';
(2) by striking `five years' and inserting `10 years'; and
(3) in paragraph (2), by striking `false or misleading or knowingly inaccurate
reports' and inserting `knowingly false, misleading, or inaccurate reports'.
SEC. 7. CONFORMING AMENDMENTS.
(a) Section 2 of the Commodity Exchange Act (7 U.S.C. 2) is amended--
(1) in subsection (d)(1), by striking `section 5b' and inserting `section
5a(g), 5b,';
(2) in subsection (e)(1), by inserting `(1)' after `(g)'; and
(i) by striking `No provision' and inserting `IN GENERAL- Subject
to subsections (g)(2) and (h)(7), no provision'; and
(ii) in subparagraph (A), by inserting `(1)' after `2(g)'; and
(B) in paragraph (2), by striking `No provision' and inserting `IN GENERAL-
Subject to subsections (g)(2) and (h)(7), no provision'.
(b) Section 4i of the Commodity Exchange Act (7 U.S.C. 6i) is amended in
the first sentence by inserting `, or pursuant to an exemption under section
4(c)' after `transaction execution facility'.
(c) Section 8a(9) of the Commodity Exchange Act (7 U.S.C. 12a(9)) is amended--
(1) by inserting `or an electronic energy trading facility' after `direct
the contract market';
(2) by inserting after `liquidation of any futures contract' the following:
`or included energy transaction'; and
(3) by inserting `or an electronic energy trading facility' after `given
by a contract market'.
END
