[Federal Register Volume 60, Number 12 (Thursday, January 19, 1995)]
[Proposed Rules]
[Pages 3785-3787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1332]



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International Trade Commission

19 CFR Part 210


Advance Notice of Proposed Rulemaking Concerning Commission 
Voting Procedures in Investigations and Related Proceedings on Unfair 
Practices in Import Trade.

AGENCY: International Trade Commission.

ACTION: Advance notice of proposed rulemaking and request for comments.

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SUMMARY: The Commission is considering revision of its recently 
effective final rules for investigations and related proceedings under 
section 337 of the Tariff Act of 1930 (19 U.S.C. Sec. 1337) to do the 
following: increase the number of votes required for the Commission to 
either review an initial determination (ID) on a matter other than 
temporary relief or grant a request for oral argument in connection 
with such a review; and prescribe the effect of a tie vote concerning 
post-review disposition of an ID on a matter other than temporary 
relief.
    The Commission hereby solicits written comments from interested 
persons to aid the Commission in determining whether it should revise 
the final rules in the manner specified below.

DATES: Comments will be considered if received on or before March 20, 
1995.

ADDRESSES: A signed original and 18 copies of each set of comments, 
along with a cover letter stating the nature of the commenter's 
interest in the proposed rulemaking, should be submitted to Donna R. 
Koehnke, Secretary, U.S. International Trade Commission, 500 E Street, 
SW., Room 112, Washington, DC 20436.

FOR FURTHER INFORMATION CONTACT: P. N. Smithey, Esq., Office of the 
General Counsel, U.S. International Trade Commission, telephone 202-
205-3061. Hearing-impaired individuals can obtain information 
concerning the proposed rulemaking by contacting the Commission's TDD 
terminal at 202-205-1810.

SUPPLEMENTARY INFORMATION:

Background

    On August 1, 1994, the Commission published final rules for 19 CFR 
part 210 to replace the interim rules currently found in 19 CFR parts 
210 and 211.<SUP>1 Final rule 210.43(d)(3) indicates that the 
Commission will review an initial determination (ID) concerning a 
matter other than temporary relief when at least one of the 
participating Commissioners votes in favor of a review. Final rule 
210.45(a) similarly provides that the Commission must grant a request 
for oral argument in connection with such a review when at least one of 
the participating Commissioners votes in favor of such argument.<SUP>2

    \1\See 59 FR 39020 (Part II) (Aug. 1, 1994).
    \2\IDs concerning temporary relief are processed differently 
from other types of IDs and thus are not subject to the one-vote-
triggers-review-or-oral-argument rules. See final rule 210.66. 

[[Page 3786]]

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    Final rule 210.45(c), which relates to review of IDs on matters 
other than temporary relief, describes the specific kinds of action 
that may be taken as a result of a review (viz., that the ID may be 
affirmed, reversed, remanded for further proceedings, modified, or set 
aside, in whole or in part). Final rule 210.45(c) says nothing, 
however, about what happens in the event that there is a tie vote on 
the disposition of the ID. The relevant statutes--i.e., section 330 of 
the Tariff Act of 1930 (19 U.S.C. Sec. 1330), section 337, and the 
Administrative Procedure Act (APA) (5 U.S.C. Sec. 551 et seq.)--are 
similarly silent on that specific issue.
    On August 19, 1994, the Commission's Inspector General (IG) issued 
Audit Report No. IG-03-94, Review of Ways to Increase the Economy and 
Efficiency of the Process for Conducting Section 337 Investigations, 
which recommended that the Commission amend its section 337 rules to 
provide that in order for a review to be conducted or a request for 
oral argument to be granted, one-half of the participating 
Commissioners must vote in favor of the review or oral argument. The IG 
further recommended that the Commission amend the rules to ``clarify a 
tie vote situation,'' e.g., to provide that a tie vote on the 
disposition of an ID will have the effect of affirming the ID. The IG 
cited several reasons for recommending that the Commission abolish the 
one-vote-triggers-review-or-oral argument rules. She noted first that 
section 330 of the Tariff Act provides that an investigation may be 
instituted and a hearing may be conducted only if one-half of the 
participating Commissioners vote in favor of the investigation or 
hearing.<SUP>3 The IG went on to say that, in her opinion, Commission 
decisions on whether to review an ID and whether to grant a request for 
oral argument are comparable to the statutory decisions on whether to 
institute an investigation and whether to conduct a hearing and, thus, 
should be subject to the same requirements as those imposed statutorily 
on institution and hearing decisions. The IG added that requiring one-
half of the participating Commissioners to vote in favor of review or 
oral argument in order for such review or argument to be conducted 
would aid in accomplishing the Commission's goal of streamlining its 
operations and reducing the burden on its ``customers.''<SUP>4

    \3\See 19 U.S.C. Sec. 1330(d)(5).
    \4\See Report No. IG-03-94 at pages 12-13.
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    In support of her recommendation that the Commission ``clarify a 
tie vote situation,'' the IG noted that the Commission had successfully 
avoided tie votes in the past, but that it would not feel the need to 
do so in the future if there were a Commission rule stating the effect 
of such votes. She also expressed the opinion that the existence of 
such a rule would be beneficial to the parties to section 337 
investigations.<SUP>5

    \5\Id. at pages 13-14.
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    The Commission notes that there is a question as to whether the 
Commission has the authority to promulgate a regulation stating that a 
tie vote would have the effect of affirming an ID under the current 
law. Section 337(c) requires that the Commission's section 337 
determinations ``shall be made on the record after notice and 
opportunity for a hearing in conformity with the provisions of [the 
APA].''<SUP>6 The APA provision concerning hearings requires that, when 
the agency itself does not preside at the reception of evidence, a 
qualified ``presiding employee,'' such as an administrative law judge 
(ALJ), preside at the reception of evidence and render an ID. The APA 
further provides that:

    \6\19 U.S.C. Sec. 1337(c).
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    When the presiding employee makes an initial decision, that 
decision then becomes the decision of the agency without further 
proceedings unless there is an appeal to, or review on motion of, 
the agency within time provided by rule. On appeal from or review of 
the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the 
issues on notice or by rule.<SUP>7

    \7\5 U.S.C. Sec. 557(b).

The limited applicable case law suggests that this provision may be 
given either of two conflicting interpretations.
    The first interpretation would be that an ID becomes the agency 
decision unless the agency decides to review it. If, however, the 
agency decides to review an ID, the agency must take some affirmative 
action to issue its decision. The common law rule for multiple-member 
administrative agencies, articulated in the frequently-cited 1930 
Bakelite decision arising from a Commission section 337 determination, 
is that a majority of a quorum is necessary to act for the 
agency.<SUP>8 Under this view, once the Commission determines to review 
an ID, a tie vote would not constitute Commission action. Instead, a 
majority of a Commission quorum would be required to take some 
affirmative action with respect to the reviewed ID.<SUP>9

    \8\Frischer & Co. v. Bakelite Corp., 39 F.2d 247, 254-55 
(C.C.P.A.), cert. denied, 282 U.S. 852 (1930). Bakelite rejected the 
argument that the Commission could not render a section 337 
determination on a 3-2 vote because three Commissioners did not 
constitute a majority of the full six-member Commission. The 
``majority of a quorum'' rule of Bakelite was subsequently adopted 
by the Supreme Court in Federal Trade Commission v. Flotill 
Products, Inc., 389 U.S. 179 (1967).
    \9\Under 19 U.S.C. Sec. 1330(c)(6), ``[a] majority of the 
commissioners in office shall constitute a quorum. * * *''
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    The second possible interpretation of the APA provision is that an 
ID becomes the agency decision unless the agency takes affirmative 
action to render another decision in its place.
    Interested persons should also note that a tie-breaker rule would 
not necessarily succeed in resolving all questions arising from 
Commission tie votes in section 337 investigations. A tie vote 
resulting in adoption of an affirmative ID would not be sufficient for 
issuance of an agency remedial order; majority action would be 
required.<SUP>10 Consequently, a tie-breaker rule concerning IDs on 
violation of section 337 which provided that a tie-vote should 
constitute an affirmative determination would not solve a potential 
deadlock among the Commissioners as to whether a remedy should be 
issued on a tie-vote affirmative.

    \10\See Frischer & Co. v. Bakelite Corp., 39 F.2d at 254-55.
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    In order to aid the Commission in determining whether to proceed 
with the proposed rulemaking, the Commission would like to have all 
commenters address the following issues:
    1. Whether the Commission should revise final rule 210.43(d)(3) to 
provide that the Commission will review an ID on a matter other than 
temporary relief when at least one-half of the participating 
Commissioners vote in favor of a review.
    2. Whether the Commission should revise final rule 210.45(a) to 
provide that the Commission will grant a request for oral argument in 
connection with review of an ID on a matter other than temporary relief 
when at least one-half of the participating Commissioners vote in favor 
of such argument.
    3. Whether the Commission should revise final rule 210.45(c) to 
state what effect a tie-vote will have on the Commission's disposition 
of an ID on a matter other than temporary relief--e.g., that a tie-vote 
on the disposition of an ID after a review will constitute an 
affirmance of the ID. The Commission is especially interested in 
receiving comments on the question of whether this change could be 
effected without statutory changes.
    If the Commission decides to proceed with this rulemaking after 
reviewing the 

[[Page 3787]]
comments filed in response to this notice, the rule changes will be 
promulgated in accordance with the APA (see 5 U.S.C. Sec. 553), and 
will be codified in 19 CFR part 210.

    Dated: January 11, 1995.

    By Order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 95-1332 Filed 1-18-95; 8:45 am]
BILLING CODE 7020-02-P