USCC Rulemaking Petition to Amend Rule 4 17


September 13, 2023


The U.S. Chamber of Commerce (the “Chamber”) respectfully petitions the Federal Trade Commission (“FTC”), pursuant to the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. §45, and 16 C.F.R. §1.9, to initiate a rulemaking to revise the rule regarding disqualification of Commissioners (16 C.F.R. §4.17). Under the request, the current rule regarding disqualification of Commissioners would be amended (1) to formalize legal consultation with ethics experts in the FTC’s Office of General Counsel and (2) to enhance transparency and improve actual and perceived integrity of agency adjudications by requiring Commissioners, including the Commissioner whose disqualification is sought, to provide the public with a written statement outlining the reasons for declining any recusal decisions. The proposal also recommends that the written statement of the Commissioner subject to the recusal petition become part of the record for the Commission’s final order resolving any recusal petition. The petition further includes timing obligations and legal standards applicable to the disqualification proceeding.

The FTC occupies a powerful position in the federal government, often operating as legislator, prosecutor, and judge in proceedings it brings. Public confidence in the integrity of the administrative process is especially important when all of those responsibilities are collapsed into a single body and worth protecting through recusal in appropriate circumstances. Congress recognized the inherent risks in collapsing these roles into one agency and set forth a specific regime, with standards different from those that apply to Congress or the courts. As such, this petition seeks to encourage more effective enforcement of those existing standards through increased transparency.

The FTC’s current recusal rules leave much about the decision process shrouded and lack defined rules of the road. The FTC’s discretionary recusal standard does not adequately address concerns about perceptions of bias or partiality and leaves agency enforcement decisions vulnerable to judicial challenge. Bolstering recusal rules would improve institutional legitimacy and public confidence in the FTC’s proceedings. The rulemaking petition should be accepted.

USCC Rulemaking Petition to Amend Rule 4 17