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lotter on DSK11XQN23PROD with RULES1

Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Rules and Regulations empowered the Presiding Officers to lead the hearing process.
In light of these Congressional concerns, why does todays proposal move away from using independent ALJs as Presiding Officers? How can we avoid public perception that the Commission is politicizing the rulemaking process if the Chair appoints the Presiding Officer?
How can we preserve the independence of the Presiding Officer if the Commission, not the Presiding Officer, decides which issues will be discussed at the hearing and which parties will be permitted to testify, conduct cross-examination, and offer rebuttal evidence?
How can the Commission ensure we get a neutral and thorough accounting of evidence and data instead of a cherry-picked record that serves an agenda?
Under the revised rules, the Commission, not the Presiding Officer, will determine the list of disputed issues of material facts. How can stakeholders ensure that their proposed factual disputes will be part of the rulemaking record if their input is out of step with the majority view of the Commission?
Second, with respect to procedural limitations that impact public understanding and opportunities for input: The rule revisions remove selfimposed restrictions I view as deliberate choices by this agency to comply not just with the letter of our Congressional mandate but the spirit of the law.
Following our rulemaking spree in the 1970s, the FTC was stripped of funding, stripped of legal authorities, and required to institute new and substantial rulemaking steps to foster public trust in our trade rules.9 Recognizing this agency was on the brink of being shuttered, our rules of practice adopted a number of rulemaking procedures that provided for additional public comment periods, publication of a staff report, and multiple opportunities for the public to weigh in on disputed issues of material fact. While the procedures as revised may comply with the statute as drafted, I support the FTCs existing approach that provides for robust additional public input.
If the agency is preparing to remove discretionary steps from our rulemaking process, are we concerned the more limited process will fail to identify unintended consequences of proposed rules, particularly those that could harm 9 Id. See also J. Howard Beales III, The Federal Trade Commissions Use of Unfairness Authority:
Its Rise, Fall, and Resurrection, 22 J. Pub. Poly &
Mktg. 192 2003.

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small businesses and marginalized communities?
Is the Commission concerned that the public will view the more limited opportunities to comment on proposed rules as running counter to the democratic rationales for rulemaking my colleagues have previously espoused?
Additionally, rulemaking efforts are enhanced when the public has the input from expert staff at agencies overseeing the rulemaking process. The FTC has built transparency into our rules of practice by requiring that rulemaking staff publish a staff report containing their analysis of the rulemaking record and recommendations as to the form of the final rule. But the new rules eliminate the staff report requirement.
Considering the value of staff reports, how will the Commission build trust in the enforcement of new trade rules without transparency into staffs recommendations?
In what ways will the publics understanding of any final rules suffer because the Commission will no longer publish a report from expert FTC staff highlighting key issues and formulating recommendations based on the record?
The Commissions proposal to revise its rules of practice related to Section 18
rulemaking procedures is not a small adjustment enacted to improve efficiency. These changes have the potential to usher in a return to aggressive, unbounded rulemaking efforts that could transform entire industries without clear theories of law violations and empirical foundations for recommended regulatory burdens. Even as we speak, Congress is considering bills that run the gamut from giving the FTC expansive new authority and resources to eliminating the agencys jurisdiction. In the midst of so much criticism and scrutiny from so many angles regarding so many aspects of our jurisdiction, why are we embarking on this path of revisiting an era that led to such significant constraints on our jurisdiction?
As the saying goes, if you dont acknowledge the mistakes of the past, you are doomed to repeat them. One striking example of this disregard for history can be found in the House Judiciary Committees Majority Staff Report, which 12 different times points to railroad regulation as a model for Big Tech.10 In a stunning omission, 10 For other reactions to the Majority Staff Report, see Christine S. Wilson, Remarks for American Bar Association Webcast, Interview with Commissioner Wilson and Barry Nigro on the House Judiciary Report, Nov. 13 2020, https www.ftc.gov/system/
files/documents/public_statements/1588040/aba_
interview_with_commissioner_wilson_on_the_
house_judiciary_report.pdf and Christine S. Wilson,
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nowhere in its 450 pages or 2,500
footnotes does the report mention the fact of the bipartisan repeal of this regulatory framework because it harmed consumers and stifled innovation;
neither does it mention the benefits that came from deregulation.11
There are many at the FTC who lived through the 1970s and 1980s and experienced the public and Congressional backlash during those dark days of the agencys history. There are many others who worked with and learned from those who lived through that period. Current management would be wise to seek their guidance.
FR Doc. 202115313 Filed 72121; 8:45 am BILLING CODE 675001P

DEPARTMENT OF HOMELAND
SECURITY
U.S. Customs and Border Protection 19 CFR Part 145
CBP Dec. 2108
RIN 1651AB33

Mandatory Advance Electronic Information for International Mail Shipments; Correction U.S. Customs and Border Protection, DHS.
ACTION: Interim final rule; correcting amendments.
AGENCY:

Remarks for the 2020 Global Forum on Competition, Dec. 7 2020, https www.ftc.gov/
system/files/documents/publicstatements/1589376/
wilson-oecd-2020remarks.pdf.
11 See Majority Staff Of H. Comm. On The Judiciary, 116th Cong., Investigation Of Competition In Digital Markets 7 2020, https
judiciary.house.gov/uploadedfiles/competition_in_
digital_markets.pdf at 380 In the railroad industry, for example, a congressional investigation found that the expansion of common carrier railroads into the coal market undermined independent coal producers, whose wares the railroads would deprioritize in to give themselves superior access to markets. In 1893, the Committee on Interstate and Foreign Commerce wrote that no competition can exist between two producers of a commodity when one of them has the power to prescribe both the price and output of the other.
Congress subsequently enacted a provision to prohibit railroads from transporting any goods that they had produced or in which they held an interest.; id. at 382 The 1887 Interstate Commerce Act, for example, prohibited discriminatory treatment by railroads.; id. at 383
Historically, Congress has implemented nondiscrimination requirements in a variety of markets. With railroads, the Interstate Commerce Commission oversaw obligations and prohibitions applied to railroads designated as common carriers; see also Christine S. Wilson & Keith Klovers, The growing nostalgia for past regulatory misadventures and the risk of repeating these mistakes with Big Tech, 8 J. Antitrust Enforcement 10, 1214 2019, https academic.oup.com/
antitrust/article/8/1/10/564371 discussing the benefits from dissolving the ICC.

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