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[Federal Register Volume 83, Number 175 (Monday, September 10, 2018)]
[Notices]
[Pages 45678-45679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19584]

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INTERNATIONAL TRADE COMMISSION

The Appointment of the Commission's Administrative Law Judges for 
Section 337 Investigations

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission's administrative law judges (``ALJs'') have been appointed 
in conformance with the Appointments Clause of the U.S. Constitution 
and with the Tariff Act.

FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 708-2532. General information 
concerning the Commission may also be obtained by accessing its 
internet server at http://www.usitc.gov. Hearing-impaired persons are 
advised that information on this matter can be obtained by contacting 
the Commission TDD terminal on (202) 205-1810.

SUPPLEMENTARY INFORMATION: Section 337 of the Tariff Act of 1930, as 
amended (19 U.S.C. 1337), provides for certain determinations to be 
``made on the record after notice and opportunity for a hearing in 
conformity with the provisions of subchapter II of chapter 5 of title 
5.'' 19 U.S.C. 1337(c). Pursuant to subchapter II of chapter 5 of title 
5, the Commission employs ALJs to conduct formal adjudications and to 
make initial and recommended determinations. 5 U.S.C. 556-557; 19 CFR 
210.3 (``administrative law judge'').

[[Page 45679]]

Pursuant to section 331 of the Tariff Act, 19 U.S.C. 1331, the Chairman 
of the Commission has the authority to ``appoint and fix the 
compensation of such employees of the Commission as he deems 
necessary,'' including ALJs. 19 U.S.C. 1331(a)(1)(A)(1). Any such 
decision by the Chairman, however, is ``subject to disapproval by a 
majority vote of all the commissioners in office.'' Id. Sec.  
1331(a)(1)(C). The hiring of the Commission's ALJs has been in 
conformity with Titles 5 and 19 of the U.S. Code, as well as with such 
regulations as were then in force by the Office of Personnel 
Management, 5 CFR 930.201-.211.
    The Appointments Clause of the Constitution, art. II, Sec.  2, cl. 
2, provides, in relevant part, that Congress may vest the appointment 
of inferior officers ``in the Heads of Departments.'' In the past two 
years, there have been legal developments concerning the Appointments 
Clause. These developments have included the 2016 decision of the U.S. 
Court of Appeals for the Tenth Circuit finding ALJs of the Securities 
and Exchange Commission (``SEC'') to be ``inferior officers'' for the 
purpose of the Appointments Clause, Bandimere v. SEC, 844 F.3d 1168, 
1188 (10th Cir. 2016), reh'g en banc denied (May 3, 2017). In 2018, the 
Supreme Court decided that the ALJs of the SEC are inferior officers 
whose appointments were to be made by SEC and not by the SEC's staff. 
Lucia v. SEC, 138 S. Ct. 2044, 2053-54 (2018); see Free Enterprise Fund 
v. Public Company Accounting Oversight Bd., 561 U.S. 477, 512 (2010).
    The hiring of the Commission's ALJs is, and has been, consistent 
with the Appointments Clause and with the Commission's organic statute. 
Throughout at least the period of time between the hiring of the most-
senior ALJ at the Commission (Chief Judge Bullock) until the present, 
the appointment of ALJs has been made by the Chairman, and no 
Commissioner has initiated a vote to disapprove the appointment of an 
ALJ, as is the Commissioner's right under 19 U.S.C. 1331(a)(1)(C). Out 
of an abundance of caution, on March 14 and 15, 2018, the Commission 
(then-Chairman Schmidtlein, joined by then-Vice Chairman Johanson, and 
Commissioners Williamson and Broadbent) voted, by notational voting, to 
ratify the earlier appointments of Judges Bullock, Lord, McNamara, 
Pender and Shaw. Also out of an abundance of caution, on February 8, 
2018, the Commission voted, by notational voting, in connection with 
Judge Cheney's original appointment.
    Accordingly, the Commission's ALJs have all been appointed and/or 
ratified in conformance with the Constitution, and all applicable 
statutes and regulations. In addition, by this Notice, the Commission 
reiterates its approval of the appointments of Judges Bullock, Cheney, 
Lord, McNamara, Pender, and Shaw as its own under the Constitution.

    By order of the Commission.

    Issued: September 5, 2018.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2018-19584 Filed 9-7-18; 8:45 am]
 BILLING CODE 7020-02-P
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