主题：【现炒现卖】之美国对外商直接投资的监管 -- 南方有嘉木

联邦贸易委员会8月12日发布的反石油市场操纵规定，将于11月4日生效。规则很简单，今天先贴个翻译和英文说明。

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317.1 范围

本规则为《2007年能源独立和安全法》第8章B节的实施细则。就联邦贸易委员会根据《联邦贸易委员会法》拥有管辖权之任何人，本规则均得以适用。

317.2 定义

就本规则所使用术语定义如下：

（a）原油：（略）

（b）汽油：（略）

（c）故意：指行为人知道或应该知道其行为是欺诈或欺骗性的。

（d）人：指任何个人、团体、非公司合作社、有限或无限合伙，公司或其他商业组织。

（e）石油分馏物：（略）

（f）批发：（略）

317.3 禁止的行为

任何人不得直接或间接地，就原油、汽油或石油馏分物的批发购买或销售，从事以下行为：

（a）故意从事任何构成或可能构成对他人进行欺诈或欺骗的行为、实践或商业运作，包括就关键事实的任何不实陈述；或者

（b）有目的地不陈述某个关键事实，使得在当时情境下，行为人所为的陈述具有误导性，并且该种遗漏扭曲或可能扭曲该产品的市场条件。

317.4 法律的优先适用

联邦贸易委员会无意通过本规则的制定使其优先于任何州政府或地方政府的法律得以适用，除非该等法律与本规则存有冲突。如地方法律针对被禁止的行为提供了平等的或更大程度的保护，则不得认为其与本规则存有冲突。

317.5 可分割性

本规则的各条款相互独立。任一条款的无效不得影响剩余条款的持续生效。

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英文解释：

1. Legal source

When the Congress of U.S.A passed the Energy Independence and Security Act of 2007 (EISA), it authorized the Federal Trade Commission (FTC) to develop a rule to prevent manipulation in wholesale energy markets. The goal of Congress was for the Commission to detect and prevent market manipulation that might lead to higher gas prices for consumers. Since early 2008, a task force of the staff of the Commission has devoted to the development of such rule, and they issued the Final Rule on Aug. 12, 2009.

2. Summary of the Rule

The Rule prohibits any person, directly or indirectly, in connection with the purchase or sale of crude oil, gasoline, or petroleum distillates at wholesale, from 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 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 is likely to distort market conditions for any such product.

The Rule will effect on November 4, 2009.

3. Scope of the Rule

§317.1 Scope.

This part implements Subtitle B of Title VIII of the Energy Independence and Security Act of 2007. This Rule applies to any person over which the Federal Trade Commission has jurisdiction under the Federal Trade Commission Act.

So, the scope of the Rule is coextensive with the reach of the FTC Act. The only problem here concerned pipelines and futures markets. With respect to pipeline, not all pipelines necessarily fall outside the coverage of the FTC Act. Certain pipeline companies or their activities may fall outside the coverage of the FTC Act to the extent that they are acting as common carriers. However, pipeline companies and their owners or affiliates often are involved in multiple aspects of the petroleum industry-including the purchase or sale of petroleum products, and the provision of transportation services – and they may engage in conduct in connection with wholesale petroleum markets covered by EISA. The Commission has therefore determined that it must assess on a case-by-case basis whether any particular person – or any conduct at issue – falls outside the scope of the Rule.

For similar reasons, the commission declines to adopt a blanket safe harbor for futures markets activities, and intends to work cooperatively with the CFTC to execute the Commission’s objective to prevent fraud or deceit in wholesale petroleum markets.

4. Definitions in the Rule

§317.2 Definitions.

The following definitions shall apply throughout this Rule:

(a) Crude Oil means any mixture of hydrocarbons that exists:

(1) In liquid phase in natural underground reservoirs and that remains liquid at atmospheric pressure after passing through separating facilities; or

(2) As shale oil or tar sands requiring further processing for sale as a refinery feedstock.

(b) Gasoline means:

(1) Finished gasoline, including, but not limited to, conventional, reformulated, and oxygenated blends; and

(2) Conventional and reformulated gasoline blend-stock for oxygenate blending.

(c) Knowingly means that the person knew or must have known that his or her conduct was fraudulent or deceptive.

(d) Person means any individual, group, unincorporated association, limited or general partnership, corporation, or other business entity.

(e) Petroleum distillates means:

(1) Jet fuels, including, but not limited to, all commercial and military specification jet fuels; and

(2) Diesel fuels and fuel oils, including, but not limited to, No. 1, No.

2, and No. 4 diesel fuel, and No. 1, No.2, and No. 4 fuel oil.

(f) Wholesale means:

(1) All purchases or sales of crude oil or jet fuel; and

(2) All purchases or sales of gasoline or petroleum distillates (other than jet fuel) at the terminal rack or upstream of the terminal rack level.

For purpose of enforcement of final Rule, the Commission has determined that s a showing of extreme recklessness is, at a minimum, necessary to prove the scienter element. The extreme recklessness standard requires a showing that an actor knew or must have known that his conduct created a danger of misleading buyers or sellers.

5. Prohibited Practices of the Rule

§ 317.3 Prohibited practices.

It shall be unlawful for any person, directly or indirectly, in connection with the purchase or sale of crude oil, gasoline, or petroleum distillates at wholesale, to:

(a) Knowingly engage 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 fail to state a material fact that under the circumstances renders a statement made by such person misleading, provided that such omission distorts or is likely to distort market conditions for any such product.

(1) “Directly or Indirectly”

This phrase delineates the level of involvement necessary to establish liability under the Rule. It means that the Rule imposes liability not only upon any person who directly engages in manipulation but also upon any person who does so indirectly.

(2) “In connection with”

The Commission believes that Congress intended that it construe this phrase broadly, so it disagrees that the “in connection with” language should never reach supply or operational decisions. Instead, the language can reach those decisions whenever there is a sufficient nexus between the conduct at issue and the purchase or sale of crude oil, gasoline, or petroleum distillates.

With respect to product coverage, the Commission intends to reach products – such as renewable fuels (e.g., ethanol or biodiesel) or blending components (e.g., alkylate or reformate) only if there is a sufficient nexus between conduct involving those products and wholesale petroleum markets for covered products. Renewable fuels and blending components are integral to the overall supply of finished motor fuels. Thus, manipulating purchases or sales of these products can have the requisite nexus with wholesale petroleum markets.