[Federal Register: September 16, 2008 (Volume 73, Number 180)]
[Proposed Rules]
[Page 53394-53395]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16se08-12]
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FEDERAL TRADE COMMISSION
16 CFR Part 317
[Project No. P082900]
RIN 3084-AB12
Public Workshop Concerning Petroleum Market Manipulation
Rulemaking
AGENCY: Federal Trade Commission.
ACTION: Notice announcing public workshop.
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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') will
host a public workshop to discuss issues arising from, and comments
submitted in regard to, its rulemaking proceeding concerning
Prohibitions on Market Manipulation and False Information in Subtitle B
of Title VIII of The Energy Independence and Security Act of 2007
(``EISA''). In particular, the workshop will consider the desirability
and scope of the proposed rule prohibiting market manipulation in
wholesale petroleum markets. The Commission will publish an agenda on
its website prior to the workshop.
DATES: The workshop will be held on Thursday, November 6, 2008, in Room
H-432 of the Federal Trade Commission's Headquarters Building, located
at 600 Pennsylvania Avenue, NW, Washington, DC 20580. Requests to
participate as a panelist must comply with all applicable requirements
set forth in this document and must be received by October 6, 2008. To
be considered as a panelist for the workshop, interested parties must
also submit a comment in response to the FTC's Notice of Proposed
Rulemaking (``NPRM'') in this matter\1\ by the close of the comment
period on October 17, 2008.\2\
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\1\ FTC, Prohibitions On Market Manipulation and False
Information in Subtitle B of Title VIII of The Energy Independence
and Security Act of 2007, 73 FR 48317 (Aug. 13, 2008). The NPRM was
announced in a press release on August 13, 2008, available at
(http://www.ftc.gov/opa/2008/08/nprm.shtm).
\2\ Specific instructions for submitting a comment are included
in the NPRM. See 73 FR 48317. Please note that all such comments,
like requests to participate, are public filings and will be placed
on the public record of this proceeding, including the FTC's public
website. See footnote 3 below for further information.
ADDRESSES: Requests to participate in the public workshop may be filed
in paper form or sent via e-mail to mmr@ftc.gov,\3\ and should refer to
``Market Manipulation Rulemaking Workshop--Request to Participate,
P082900'' to facilitate organization of such requests. Requests must
comply with all other applicable requirements set forth in the
SUPPLEMENTARY INFORMATION section below and elsewhere in this document.
A request to participate filed in paper form should include this
reference both in the text and on the envelope, and should be mailed or
delivered to: Federal Trade Commission/Office of the Secretary, Room H-
135 (Annex G), 600 Pennsylvania Avenue, NW, Washington, DC 20580.
Because paper mail in the Washington area, and specifically to the FTC,
is subject to delay due to heightened security screening, please
consider submitting your request to participate via e-mail to:
mmr@ftc.gov.
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\3\ Please note that your request constitutes a public filing
before the Commission, and will be placed on the public record of
the proceeding, including on the publicly accessible FTC website, at
http://www.ftc.gov/os/publiccomments.shtm. Therefore, your request
should not include any sensitive or confidential information. In
particular, it should not include any sensitive personal
information--such as any individual's Social Security Number; date
of birth; driver's license number or other state identification
number or foreign country equivalent; passport number; financial
account number; or credit or debit card number--or any sensitive
health information, such as medical records or other individually
identifiable health information. Your request should also not
include any ``[t]rade secrets and commercial or financial
information obtained from a person and privileged or confidential. .
. .,'' as provided in section 6(f) of the FTC Act, 15 U.S.C. 46(f),
and Commission rule 4.10(a)(2), 16 CFR 4.10(a)(2) (2008).
The Federal Trade Commission Act and other laws the Commission
administers permit the collection of requests to participate in the
above workshop to consider and use in this proceeding as
appropriate. As a matter of discretion, the Commission makes every
effort to remove home contact information for individuals before
placing requests to participate on the FTC website. More
information, including routine uses permitted by the Privacy Act,
may be found in the FTC's privacy policy, at http://www.ftc.gov/ftc/
privacy.shtm.
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The workshop will be open to the public, and there is no fee for
attendance. For admittance to the building, all attendees will be
required to show a valid photo identification, such as a driver's
license. Pre-registration is not required for attendees, but persons
desiring to participate as panelists must submit a request to
participate and file a comment in response to the FTC's NPRM in this
matter. Members of the public and press who cannot attend in person may
view a live webcast of the workshop on the FTC's website. The workshop
will be transcribed, and the transcript will be placed on the public
record.
The workshop venue will be accessible to persons with disabilities.
If you need an accommodation related to a disability, call Carrie
McGlothin at (202) 326-3388. Such requests should include a detailed
description of the accommodations needed and a way to contact you if we
need more information. Please provide advance notice of any needs for
such accommodations.
FOR FURTHER INFORMATION CONTACT: Catherine Harrington-McBride, Bureau
of Consumer Protection, Federal Trade Commission, Market Manipulation
Rulemaking Workshop, P.O. Box 2846, Fairfax, VA 22031-0846; (202) 326-
2452; mmr@ftc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
EISA became law on December 19, 2007.\4\ Section 811 of EISA
prohibits ``any person'' from directly or indirectly: (1) using or
employing ``any manipulative or deceptive device or
[[Page 53395]]
contrivance;'' (2) ``in connection with the purchase or sale of crude
oil gasoline or petroleum distillates at wholesale;'' (3) that violates
a rule or regulation that the FTC ``may prescribe as necessary or
appropriate in the public interest or for the protection of United
States citizens.''\5\
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\4\ Public Law 110-140, codified at 42 U.S.C. 17001-17386.
\5\ 42 U.S.C 17301.
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On August 13, 2008, the FTC issued an NPRM seeking public comments
on a proposed rule prohibiting market manipulation in the petroleum
industry.\6\ The proposed Rule would make it unlawful for any person,
directly or indirectly, in connection with the purchase or sale of
crude oil, gasoline, or petroleum distillates at wholesale:
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\6\ The Commission previously issued an Advance Notice of
Proposed Rulemaking (``ANPR'') in this proceeding. FTC, Prohibitions
On Market Manipulation and False Information in Subtitle B of The
Energy Independence and Security Act of 2007, 73 FR 25614 (May 7,
2008). The ANPR was announced in a press release on May 1, 2008,
available at (http://www.ftc.gov/opa/2008/05/anpr.shtm).
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(a) To use or employ any device, scheme, or artifice to defraud,
(b) To make any untrue statement of a material fact or to omit to
state a material fact necessary in order to make the statements made,
in the light of the circumstances under which they were made, not
misleading, or
(c) To engage in any act, practice, or course of business that
operates or would operate as a fraud or deceit upon any person.
The comment period on the proposed Rule closes on October 17, 2008.
The Commission has scheduled a public workshop for Thursday, November
6, 2008, to allow interested parties to discuss the proposed Rule and
comments filed in response to the NPRM.
II. Issues for Discussion at the Workshop
The workshop will address the desirability and scope of the
Commission's proposed Rule prohibiting market manipulation in wholesale
petroleum markets. The Commission will consider the views expressed at
the workshop, along with previously submitted comments, in determining
the desirability of promulgating a market manipulation rule and the
contours of any such rule. The issues that will be discussed include
the basis for and the contours of the proposed Rule; the element of
scienter and the recklessness standard proposed by the Commission to
satisfy the scienter element; and the Commission's decision not to
require a showing of price effects in order to establish a violation of
the proposed Rule.
The Commission based its proposed Rule on Securities and Exchange
Commission (``SEC'') Rule 10b-5.\7\ The proposed Rule would prohibit
fraud and deception in wholesale petroleum markets. At the workshop,
staff will examine support for and opposition to this approach, as well
as any alternatives raised in response to the NPRM. Staff will also
explore the Rule 10b-5 concept of fraud and deception, including the
contours of fraud and deception under securities law, and how such
concepts might apply to wholesale petroleum markets.
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\7\ 17 CFR 240.10b-5.
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The NPRM makes clear that the Commission anticipates requiring a
showing of intent in determining whether there has been a violation of
any final market manipulation rule. In the NPRM, the Commission
indicated that a showing of recklessness may satisfy the intent
requirement. At the workshop, staff will examine the types of evidence
that could establish the requisite level of intent, with a particular
focus on the evidentiary proof used to establish intent under
securities law precedent. In addition, staff will explore the potential
costs and benefits to industry and consumers of permitting a showing of
recklessness to satisfy the intent element.
In the NPRM, the Commission noted that it does not anticipate
requiring a showing of price effects as an element of a violation of
any final market manipulation rule. At the workshop, staff will explore
whether a showing of price effects should be required, and the
advantages and disadvantages of requiring evidence of such effects.
Staff also anticipates examining the kinds of direct or indirect
evidence that would demonstrate price effects from manipulative or
deceptive conduct in wholesale petroleum markets, including the
treatment of such evidence under relevant securities law precedent.
III. Requests to Participate as Panelists
As noted earlier, parties interested in participating as panelists
must submit written comments addressing the issues raised in the NPRM,
in addition to a formal written request to participate in the form and
manner described above. Parties must include in their request a brief
statement setting forth their expertise or knowledge of the issues on
which the workshop will focus, as well as their contact information,
including, if available: a telephone number, facsimile number, and e-
mail address to enable the FTC to notify requesters if they have been
selected to participate.
FTC staff will select panelists based on the following criteria: 1)
the party has expertise in or knowledge of the issues that are the
focus of the workshop; 2) the party's participation would promote a
balance of interests represented at the workshop; and 3) the party has
been designated by one or more interested parties (who timely file
requests to participate) as a party who shares the interests of the
designator(s). Members of the general public who attend the workshop
may have an opportunity to make brief oral statements presenting their
views on issues raised in the NPRM. Oral statements by members of the
general public will be limited on the basis of the time available and
the number of persons who wish to make statements.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. E8-21604 Filed 9-15-08: 8:45 am]
BILLING CODE 6750-01-S