Federal Register, Volume 74, Number 76, April 22, 2009, Pages 18285-18448 Page: 18,305
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Federal Register/Vol. 74, No. 76/Wednesday, April 22, 2009/Proposed Rules
Comments containing material for
which confidential treatment is
requested must be filed in paper form,
must be clearly labeled "Confidential,"
and must comply with FTC Rule 4.9(c),
16 CFR 4.9(c).3
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 comments in electronic
form. Comments filed in electronic form
should be submitted by using the
following weblink: (https://
secure. comm en tworks. com/ftc-
marketmanipulationRNPRM), (and
following the instructions on the web-
based form). To ensure that the
Commission considers an electronic
comment, you must file it on the web-
based form at the weblink (https://
secure. commentworks. com/ftc-
marketmanipulationRNPRM). If this
RNPRM appears at (http://
www.regulations.gov/search/index.jsp),
you may also file an electronic comment
through that website. The Commission
will consider all comments that
regulations.gov forwards to it. You may
also visit the FTC website at (http://
www.ftc.gov/opa/2009/04/rnprm.shtm)
to read the RNPRM and the news release
describing it.
A comment filed in paper form
should include the "Market
Manipulation Rulemaking, P082900"
reference both in the text and on the
envelope, and should be mailed to the
following address: Federal Trade
Commission, Market Manipulation
Rulemaking, P.O. Box 2846, Fairfax, VA
22031-0846. This address does not
accept courier or overnight deliveries.
Courier or overnight deliveries should
be delivered to: Federal Trade
Commission/Office of the Secretary,
Room H-135 (Annex G), 600
Pennsylvania Avenue, N.W.,
Washington, DC 20580.
The FTC Act and other laws the
Commission administers permit the
collection of public comments to
consider and use in this proceeding as
appropriate. The Commission will
consider all timely and responsive
public comments that it receives,
whether filed in paper or electronic
form. Comments received will be
available to the public on the FTC
website, to the extent practicable, at
3 See also FTC Rule 4.2(d), 16 CFR 4.2(d). The
comment must be accompanied by an explicit
request for confidential treatment, including the
factual and legal basis for the request, and must
identify the specific portions of the comment to be
withheld from the public record. The request will
be granted or denied by the Commission's GeneralCounsel, consistent with applicable law and the
public interest. See FTC Rule 4.9(c), 16 CFR 4.9(c).(http://www.ftc.gov/os/
publiccomments.shtm). As a matter of
discretion, the Commission makes every
effort to remove home contact
information for individuals from the
public comments it receives before
placing those comments 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).
FOR FURTHER INFORMATION CONTACT:
Patricia V. Galvan, Deputy Assistant
Director, Bureau of Competition,
Federal Trade Commission, 600
Pennsylvania Avenue, N.W.,
Washington, DC 20580, (202) 326-3772.
SUPPLEMENTARY INFORMATION:
I. Background
EISA became law on December 19,
2007.4 Subtitle B of Title VIII of EISA
targets market manipulation in
connection with the purchase or sale of
crude oil, gasoline, or petroleum
distillates at wholesale, and the
reporting of false or misleading
information related to the wholesale
price of those products. Specifically,
Section 811 prohibits "any person"
from "directly or indirectly": (1) using
or employing "any manipulative or
deceptive device or 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
Section 812 prohibits "any person"
from reporting information that is
"required by law to be reported"--and
that is "related to the wholesale price of
crude oil gasoline or petroleum
distillates"-to a federal department or
agency if the person: (1) "knew, or
reasonably should have known, [that]
the information [was] false or
misleading;" and (2) intended such false
or misleading information "to affect
data compiled by the department or
agency for statistical or analytical
purposes with respect to the market for
crude oil, gasoline, or petroleum
distillates.'"6 6
Subtitle B also contains three
additional sections that address,
respectively, enforcement of the Subtitle
(Section 813),7 penalties for violations
4 42 U.S.C. 17001-17386.
5 42 U.S.C. 17301.
6 42 U.S.C. 17302.
7 Section 813(a) provides that Subtitle B shall beenforced by the FTC "in the same manner, by the
same means, and with the same jurisdiction asof Section 812 or any FTC rule
published pursuant to Section 811
(Section 814),8 and the interplay
between Subtitle B and existing laws
(Section 815).9
The revised proposed Rule in this
RNPRM retains the anti-fraud approach
of the initial proposed Rule published
by the Commission in a Notice of
Proposed Rulemaking ("NPRM") on
August 19, 2008.10 The revised
proposed Rule would achieve the anti-
manipulation objectives of Section 811
by prohibiting any person, directly or
indirectly, in connection with the
purchase or sale of crude oil, gasoline,
or petroleum distillates at wholesale,
from (a) knowingly engaging in any act,
practice, or course of business-
including the making of any untrue
statement of material fact-that operates
or would operate as a fraud or deceit
upon any person, or (b) intentionally
failing to state a material fact that under
the circumstances renders a statement
made by such person misleading,
provided that such omission distorts or
tends to distort market conditions for
any such product.11
though all applicable terms of the [FTC] Act (15
U.S.C. 41 et seq.) were incorporated into and made
a part of [Subtitle B]." Section 813(b) provides that
a violation of any provision of Subtitle B "shall be
treated as an unfair or deceptive act or practice
proscribed under a rule issued under [S]ection
18(a)(1)(B) of the [FTC] Act (15 U.S.C.
57a(a)(1)(B))." 42 U.S.C. 17303.
8 Section 814(a) of Subtitle B provides that-"[i]n
addition to any penalty applicable" under the FTC
Act-"any supplier that violates [S]ection 811 or
812 shall be punishable by a civil penalty of not
more than $1,000,000." Further, Section 814(c)
provides that "each day of a continuing violation
shall be considered a separate violation." 42 U.S.C.
17304.
9 Section 815(a) provides that nothing in Subtitle
B "limits or affects" Commission authority "to
bring an enforcement action or take any other
measure" under the FTC Act or "any other
provision of law." Section 815(b) provides that
"[n]othing in [Subtitle B] shall be construed to
modify, impair, or supersede the operation" of: (1)
any of the antitrust laws (as defined in Section 1(a)
of the Clayton Act, 15 U.S.C. 12(a)), or (2) Section
5 of the FTC Act "to the extent that ... [S]ection
5 applies to unfair methods of competition."
Section 815(c) provides that nothing in Subtitle B
"preempts any State law." 42 U.S.C. 17305.
10 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. 19, 2008). The NPRM was
preceded by the publication for comment of an
Advance Notice of Proposed Rulemaking ("ANPR").
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).
11 As the Commission stated in the ANPR and the
NPRM, the phrase "crude oil gasoline or petroleum
distillates" is used without commas in Section 811
(as well as in the first clause of Section 812), while
the phrase is used with commas in Section 812(3):
"crude oil, gasoline, or petroleum distillates." The
absence of commas is presumably a non-substantive, typographical error; therefore, the
Continued18305
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United States. Office of the Federal Register. Federal Register, Volume 74, Number 76, April 22, 2009, Pages 18285-18448, periodical, April 22, 2009; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc132938/m1/27/?rotate=90: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.