[Federal Register Volume 73, Number 180 (Tuesday, September 16, 2008)]
[Proposed Rules]
[Pages 53394-53395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21604]


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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 <a href="/cdn-cgi/l/email-protection#b4d9d9c6f4d2c0d79ad3dbc2"><span class="__cf_email__" data-cfemail="117c7c63517765723f767e67">[email protected]</span></a>,\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: 
<a href="/cdn-cgi/l/email-protection#d7babaa597b1a3b4f9b0b8a1"><span class="__cf_email__" data-cfemail="1b7676695b7d6f78357c746d">[email protected]</span></a>.
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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; <a href="/cdn-cgi/l/email-protection#8ee3e3fccee8faeda0e9e1f8"><span class="__cf_email__" data-cfemail="f19c9c83b1978592df969e87">[email protected]</span></a>.

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


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