[Federal Register Volume 86, Number 39 (Tuesday, March 2, 2021)]
[Rules and Regulations]
[Pages 12091-12092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04196]


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FEDERAL TRADE COMMISSION

16 CFR Part 317

[RIN 3084-AB57]


Prohibition of Energy Market Manipulation Rule Review

AGENCY: Federal Trade Commission.

ACTION: Confirmation of rule.

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SUMMARY: The Federal Trade Commission (``Commission'') has completed 
its regulatory review of its Prohibition of Energy Market Manipulation 
Rule implementing Section 811 of Subtitle B of Title VIII of the Energy 
Independence and Security Act of 2007. This regulatory review is part 
of the Commission's periodic review of all its regulations and guides. 
The Commission has determined to retain the Rule in its present form.

DATES: This action is effective March 2, 2021.

ADDRESSES: Relevant portions of the record of this proceeding, 
including this document, are available at https://www.ftc.gov.

FOR FURTHER INFORMATION CONTACT: Peter Richman (202-326-2563), 
Assistant Director, Mergers III, Bureau of Competition, Federal Trade 
Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The Commission reviews its rules and guides periodically to seek 
information about their benefits and costs, as well as their regulatory 
and economic impact. This information assists the Commission in 
identifying rules and guides that warrant modification or rescission.
    Pursuant to this process, on June 5, 2020, the Commission initiated 
a regulatory rule review by publishing a document in the Federal 
Register requesting public comment (``Request'') on the Prohibition of 
Energy Market Manipulation Rule (``Rule'').\1\ The Commission sought 
comment on standard regulatory review questions such as whether the 
Rule continues to serve a useful purpose; the costs and benefits of the 
Rule for consumers and businesses; and what effects, if any, 
technological or economic changes have had on the Rule. In addition to 
generally requesting comments recommending modifications to the Rule, 
the Commission also invited comment regarding two specific issues. 
First, the Commission requested comment identifying any evidence Sec.  
317.3 of the Rule does not reach behavior that falls within the scope 
of acts prohibited by its authorizing statute, 42 U.S.C. 17301, and 
violates the antitrust or consumer protection laws. Second, the 
Commission invited comment with respect to the definition of 
``knowingly'' in Sec.  317.2(c) of the Rule, its possible limitations, 
and the appropriateness of a modification of the definition to capture 
acts, practices, or courses of business a person ``knew or should have 
known'' were fraudulent or deceptive.
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    \1\ Federal Trade Commission: Rule Review; Request for Public 
Comment, 85 FR 34548 (June 5, 2020).
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    After considering the comments and evidence, the Commission has 
determined to retain the Rule without modification.

II. Background

    The Rule, authorized by the Energy Independence and Security Act of 
2007 (``EISA''),\2\ prohibits market manipulation in connection with 
the purchase or sale of crude oil or petroleum products. The Rule 
prohibits fraudulent or deceptive conduct (including making false or 
misleading statements of material fact) in connection with wholesale 
purchases or sales of crude oil, gasoline, or petroleum distillates. 
The Rule separately bans the intentional failure to state a material 
fact when the omission (1) makes the statement misleading and (2) 
distorts or is likely to distort market conditions for any product 
covered by the Rule. The Commission issued the Rule on August 6, 2009, 
with an effective date of November 4, 2009.
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    \2\ 42 U.S.C. 17301-17305.
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III. Regulatory Review Comment and Analysis

    The Commission received one substantive comment, submitted by 
Eversheds Sutherland (US) LLP (``ESUS''). ESUS recommends the 
Commission rescind the Rule. The comment addresses whether there is a 
continuing need for the Rule and its benefits and costs, but not any of 
the other questions in the Request. This rule review summarizes the 
comment and

[[Page 12092]]

explains the Commission's decision to retain the Rule in its current 
form.
    ESUS recommends the Commission rescind the Rule partly because the 
Commodity Futures Trading Commission (``CFTC'') has the legal authority 
and the ability to regulate market manipulation of wholesale petroleum 
markets.\3\ This overlap in regulatory authority is by design.\4\ It is 
intended to facilitate cooperation and ensure comprehensive enforcement 
that enhances regulatory certainty for businesses and consumers, a 
point the CFTC made in 2011 in response to a similar comment during the 
CFTC's rulemaking process.\5\ The Commission stated its intent to 
cooperate with other agencies, including the CFTC, when adopting the 
Rule in 2009,\6\ and memorialized that commitment in a 2011 Memorandum 
of Understanding with the CFTC. Under the Memorandum of Understanding, 
the Commission and the CFTC continue to cooperate on ``issues of common 
regulatory interest, particularly as such interest relates to market 
manipulation, [to] foster fair competition and promote the integrity of 
the markets, including petroleum markets.'' \7\
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    \3\ Comment of Eversheds Sutherland (US) LLP at 3-5 (Sep. 3, 
2020), available at https://beta.regulations.gov/comment/FTC-2020-0047-0003.
    \4\ Federal Trade Commission: Prohibitions on Market 
Manipulation; Final Rule, 74 FR at 40690, n.58 (Aug. 12, 2009) 
(citing Comment of Senator Maria Cantwell at 2); see also Comment of 
Senator Cantwell at 2 (``Congress, however, specifically intended 
for the Commission to exercise this new authority by working 
cooperatively and in tandem with the CFTC to prevent and deter any 
manipulative activity, including in the futures markets, which would 
affect wholesale petroleum markets.''). ESUS identifies the Dodd-
Frank Wall Street Reform and Consumer Protection Act of 2010 
(``Dodd-Frank'') as a source of legal authority for the CFTC to 
regulate market manipulation of wholesale petroleum markets. The 
Commission notes that Senator Cantwell, who sponsored the EISA 
provision authorizing the Rule, also helped lead the effort to pass 
the Dodd-Frank provision to which ESUS refers. Federal Trade 
Commission: Prohibitions on Market Manipulation; Final Rule, 74 FR 
at 40704 (Aug. 12, 2009); Commodity Futures Trading Commission: 
Prohibition on the Employment, or Attempted Employment, of 
Manipulative and Deceptive Devices and Prohibition on Price 
Manipulation; Final Rule, 76 FR at 41410 (July 14, 2011).
    \5\ Commodity Futures Trading Commission: Prohibition on the 
Employment, or Attempted Employment, of Manipulative and Deceptive 
Devices and Prohibition on Price Manipulation; Final Rule, 76 FR at 
41409 (July 14, 2011).
    \6\ Federal Trade Commission: Prohibitions on Market 
Manipulation; Final Rule, 74 FR at 40691 (Aug. 12, 2009).
    \7\ Federal Trade Commission, Memorandum of Understanding 
Between the Commodity Futures Trading Commission and the Federal 
Trade Commission Regarding Information Sharing in Areas of Common 
Regulatory Interest, at 1 ] 3 (Apr. 12, 2011), available at https://www.ftc.gov/policy/cooperation-agreements/commodity-futures-trading-commission-federal-trade-commission.
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    ESUS also asserts that rescinding the Rule eliminates the risk 
market participants will incur penalties from both the Commission and 
the CFTC for the same act of market manipulation.\8\ This risk has 
never materialized.
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    \8\ Comment of Eversheds Sutherland (US) LLP at 8 (Sep. 3, 
2020), available at https://beta.regulations.gov/comment/FTC-2020-0047-0003.
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    ESUS also asserts the Rule imposes compliance costs on market 
participants and diverts Commission resources away from enforcement of 
consumer protection and antitrust laws.\9\ With respect to compliance 
costs on market participants, the Commission notes the Rule does not 
require any affirmative compliance efforts such as recordkeeping or 
disclosure of information; rather, the Rule requires only that market 
participants refrain from fraudulent and deceptive statements or 
behavior.\10\ As ESUS points out, the CFTC's broader authority to 
regulate market manipulation includes prohibiting the conduct the 
Commission's Rule prohibits.\11\ Maintaining compliance programs to 
avoid violating these substantially similar requirements does not lead 
to additive compliance costs. As a result, and given the absence of any 
additional substantiation of compliance costs associated with the Rule, 
the Commission concludes the Rule continues to impose minimal costs on 
businesses.
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    \9\ Id. at 9.
    \10\ Federal Trade Commission: Prohibitions on Market 
Manipulation; Final Rule, 74 FR at 40701 (Aug. 12, 2009).
    \11\ Comment of Eversheds Sutherland (US) LLP at 6, 9 (Sep. 3, 
2020), available at https://beta.regulations.gov/comment/FTC-2020-0047-0003.
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    Finally, after consideration, and given the benefits to consumers 
relative to the costs associated with Rule enforcement, the Commission 
declines to adopt ESUS' position that rescinding the Rule ``would allow 
the FTC to rededicate limited internal resources to its core consumer 
protection and antitrust missions.'' \12\
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    \12\ Id.
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IV. Conclusion

    After considering the comment and the evidence, the Commission 
concludes (1) there is a continuing need for the Rule; (2) the Rule 
benefits consumers and businesses; (3) the Rule does not impose 
substantial economic burdens; and (4) the benefits outweigh the minimal 
costs the Rule imposes. Accordingly, the Commission has determined to 
retain the current Rule and is terminating this review.

    By direction of the Commission.
April J. Tabor,
Secretary.
[FR Doc. 2021-04196 Filed 3-1-21; 8:45 am]
BILLING CODE 6750-01-P