[Federal Register Volume 70, Number 173 (Thursday, September 8, 2005)]
[Rules and Regulations]
[Pages 53296-53297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17856]


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FEDERAL TRADE COMMISSION

16 CFR Part 4


Quorums

AGENCY: Federal Trade Commission.

ACTION: Final rule.

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SUMMARY: The Federal Trade Commission is amending Sec.  4.14(b) of its 
Rules of Practice to provide that the number of Commissioners needed 
for a quorum will be a majority of those sitting and not recused in a 
matter.

DATES: Effective Date: This amendment is effective September 8, 2005.

FOR FURTHER INFORMATION CONTACT: Marc Winerman, Attorney, Office of the 
General Counsel, 202-326-2451.

SUPPLEMENTARY INFORMATION: The Commission is revising Rule 4.14(b) of 
its rules of practice. The former rule defined a quorum as ``a majority 
of the members of the Commission.'' The revised rule defines a quorum 
as ``[a] majority of the members of the Commission in office and not 
recused from participating in a matter (by virtue of 18 U.S.C. 208 or 
otherwise).'' \1\ The amendment will allow the Commission to act in 
more situations than did its former rule.
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    \1\ Rule 4.14(c) continues to require, for Commission action, 
``the affirmative concurrence of a majority of the participating 
Commissioners, except where a greater majority is required by 
statute or rule or where the action is taken pursuant to a valid 
delegation of authority.''
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    While the Commission's former rule reflected the ``almost 
universally accepted common-law rule'' respecting quorums, FTC v. 
Flotill Products, Inc., 389 U.S. 179, 183-84 (1967), that common-law 
rule (or, more precisely, the common-law rule that applies in the 
absence of an express statutory provision), does not prevent the 
adoption of a different quorum rule. Falcon Trading Group, Ltd. v. SEC, 
102 F.3d 579, 582 (D.C. Cir. 1996). The FTC's new rule, like its 
predecessor, protects against ``totally unrepresentative action in the 
name of the body by an unduly small number of persons.'' \2\ Further, 
in reducing quorum numbers by virtue of recusals as well as vacancies, 
the FTC is following the approach taken by the SEC in 1995.\3\
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    \2\ See Robert's Rules of Order (10th Ed.) Sec.  3, p. 20 (2001) 
(discussing purpose of a quorum rule); Assure Competitive 
Transportation v. United States, 629 F.2d 467 (7th Cir. 1980), cert. 
denied, 429 U.S. 1124 (1981) (quoting Robert's Rules). We understand 
this to mean that the rule protects against totally unrepresentative 
actions in the name of the Commissioners able to participate in a 
matter. This does not necessarily mean that the participating 
Commissioners would reach the same result that the full complement 
of sitting Commissioners would have reached if they were all able to 
participate. But, if that were the test, any quorum rule would fail 
unless it required that every member of the body participated in 
every action taken by the body. The FTC's revised rule, like its 
former rule, also enables Commissioners who oppose an agency action 
to try to change the minds of their colleagues who are inclined to 
support it.
    \3\ The SEC's rule, while it would not find a quorum in every 
situation where the FTC's new rule would, does provide for quorum 
size to be reduced by recusals. That rule provides,
    A quorum * * * shall consist of three members; provided, 
however, that if the number of Commissioners in office is less than 
three, a quorum shall consist of the number of members in office; 
and provided further that on any matter of business as to which the 
number of members in office, minus the number of members who either 
have disqualified themselves from consideration of such matter 
pursuant to Sec.  200.60 or are otherwise disqualified from such 
consideration, is two, two members shall constitute a quorum for 
purposes of such matter.
    17 CFR 200.41. See also Falcon Trading Group, supra (upholding 
rule, in a matter decided by two Commissioners when the SEC's other 
three seats were vacant, as an exercise of the SEC's general 
rulemaking authority). Cf. SEC v. Feminella, 947 F. Supp. 722, 725-
27 (S.D.N.Y. 1996) (also upholding the rule, but treating it as a 
delegation).

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[[Page 53297]]

    The Administrative Procedure Act does not require prior public 
notice and comment on this amendment because it relates solely to a 
rule of agency organization, procedure or practice. 5 U.S.C. 553(b)(A). 
For this reason, the Regulatory Flexibility Act also does not require 
an initial or final regulatory flexibility analysis. See 5 U.S.C. 603, 
604. The revision does not involve the collection of information 
subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

List of Subjects in 16 CFR Part 4

    Administrative practice and procedure, Freedom of Information Act, 
Privacy Act, Sunshine Act.


0
For the reasons set forth in the preamble, the Federal Trade Commission 
amends Title 16, Chapter 1, Subchapter A, of the Code of Federal 
Regulations, as follows:

PART 4--MISCELLANEOUS RULES

0
1. The authority citation for Part 4 continues to read as follows:

    Authority: 15 U.S.C. 46, unless otherwise noted.


0
2. Revise Sec.  4.14(b) to read as follows:


Sec.  4.14.  Conduct of business.

* * * * *
    (b) A majority of the members of the Commission in office and not 
recused from participating in a matter (by virtue of 18 U.S.C. 208 or 
otherwise) constitutes a quorum for the transaction of business in that 
matter.
* * * * *

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 05-17856 Filed 9-7-05; 8:45 am]
BILLING CODE 6750-01-P