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Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Rules and Regulations oral communications must list all persons attending or otherwise participating in the meeting at which the oral communication was made, and summarize all data presented and arguments made during the meeting.
iii Congressional communications.
The provisions of paragraph c1ii of this section do not apply to communications from Members of Congress. Memoranda prepared by the Commissioner or Commissioners advisor setting forth the contents of any oral congressional communications will be placed on the public record. If the communication occurs within the comment period and is transcribed verbatim or summarized, the transcript or summary will be promptly placed on the rulemaking record. A transcript or summary of any oral communication which occurs after the time period for acceptance of written comments will be placed promptly on the public record.
2 Communications by certain officers, employees, and agents of the Commission. After the Commission votes to issue a notice of proposed rulemaking, any officer, employee, or agent of the Commission with investigative or other responsibility relating to any rulemaking proceeding within any operating bureau of the Commission is prohibited from communicating or causing to be communicated to any Commissioner or to the personal staff of any Commissioner any fact which is relevant to the merits of such proceeding and which is not on the rulemaking record of such proceeding, unless such communication is made available to the public and is included in the rulemaking record. The provisions of this subsection do not apply to any communication to the extent such communication is required for the disposition of ex parte matters as authorized by law.

31. Revise 1.19 to read as follows:

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1.19 Modification of a rule by the Commission at the time of judicial review.

If a reviewing court orders, under section 18e2 of the Federal Trade Commission Act 15 U.S.C. 57ae2, further submissions and presentations on the rule, the Commission may modify or set aside its rule or make a new rule by reason of the additional submissions and presentations. Such modified or new rule will then be filed with the court together with an appropriate statement of basis and purpose and the return of such submissions and presentations.

32. Revise 1.20 to read as follows:

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1.20

Alternative procedures.

If the Commission determines at the commencement of a rulemaking proceeding to employ procedures other than those established in this subpart, it may do so by announcing those procedures in the Federal Register notice commencing the rulemaking proceeding.
By direction of the Commission.
April J. Tabor, Secretary.

The Following Will Not Appear in the Code of Federal Regulations Statement of Commissioner Rebecca Kelly Slaughter Joined by Chair Lina Khan and Commissioner Rohit Chopra Regarding the Adoption of Revised Section 18 Rulemaking Procedures The FTCs revisions to Parts 0 and 1
of the Commissions Rules of Practice will bring the Commissions procedures for promulgating Trade Regulation Rules under Section 18 of the FTC Act in line with the statutes requirements.
These changes reflect the Commissions serious appreciation of its statutory obligation to avoid unnecessary costs or delay 1 in those proceedings and our commitment to using all of our available tools robustly to protect consumers from the unfair and deceptive tricks and traps they face in our modern economy.
I. Background The mandate of the Federal Trade Commission is to address unfair or deceptive acts or practices and unfair methods of competition in or affecting commerce. In 1975, Congress passed the Magnuson-Moss WarrantyFederal Trade Commission Improvement Act 2
laying out specific procedures for the promulgation of Trade Regulation Rules to protect consumers in a dynamic and changing economic landscape. Indeed, the Commission rightfully responded to this grant of authority by initiating more than a dozen rulemakings in the few months and years after its passage.3 Yet, in the intervening decades, we have nearly abandoned using Section 18 rulemaking as it was intended: To provide a U.S.C. 57ac2.
Law 93637, 88 Stat. 2183 1975.
3 Though few of the Trade Regulation Rules from that initial burst of Section 18 activity have survived the ensuing deregulatory backlash, many other TRRs under various FTC authorities have continued to provide important regulatory guidance on issues of public concern. Among those are: The Negative Option Rule 16 CFR part 425; the Franchise Rule 16 CFR part 436; the Business Opportunity Rule 16 CFR part 437; the Credit Practices Rule 16 CFR part 444; the Funeral Rule 16 CFR part 453; and the Eyeglass Rule 16 CFR
part 456.

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participatory, dynamic process for setting out clear conduct rules for industry. The change in approach began in the early 1980s amid a broad deregulatory wave, including at the Commission. The Federal Trade Commission Improvements Act of 1980
instituted some lasting revisions around the edges of FTC rulemaking, including adding a requirement to issue an Advance Notice of Proposed Rulemaking ANPRM before initiating rulemaking.4 However, the true and lasting changes to the FTC were selfimposed limitations through bureaucratic organization.
The FTC of the 1980s sought to radically reduce the agencys rulemaking capacity. A fundamental part of that posture are the agencypromulgated rules of practice. Parts 0
and 1 of these rules shape Commission behavior and process for Section 18
rulemaking. The imposition of requirements beyond what Congress provided in statute has led to the widespread belief among some commentators and policymakers that Section 18 rulemaking is too difficult to address many of the unfair and deceptive practices prevalent in the economy today.
II. Changes to the Rules of Practice These changes to the rules of practice realign Commission practice with our statutory requirements and remove those extraneous and onerous procedures that serve only to delay Commission business. These streamlined Section 18 rules still provide far greater transparency, process, and opportunity for the public and businesses alike to be heard than APA notice-and-comment rulemaking procedures.
These changes include providing the Commission with greater accountability and control over Section 18 rulemaking including deciding the final list of disputed material facts to be resolved, deciding who will make oral presentations to the Commission and who will cross examine or present rebuttals submissions. The chair will now either serve as or designate the Chief Presiding Officer and the Commission will ensure orderly conduct for those rulemakings.
Previously, the Chief Administrative Law Judge was designated as Chief Presiding Officer in Part 0, which reinforced the myth that Section 18
rulemakings required elaborate, interminable judicial processes instead of straightforward public participation.
Additionally, these streamlined 4 Public
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Law 96252, Section 8a3.

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