NFDA News

We’re proud to be an unwavering advocate for you, your business, and our profession. Your issues are our issues. That’s why NFDA filed comments with the Federal Trade Commission calling on the commission to make “modest changes” to its recusal process to ensure that potential conflicts of interest are fully considered. 

In a letter dated October 23 and addressed to Lina Chan, FTC chair, Lesley Witter, NFDA senior vice president of advocacy, wrote that the commission should revise its recusal rules to “formalize long-standing agency practices to promote accountability and transparency.” 

According to the letter, the U.S. Chamber of Commerce petitioned the FTC to initiate a rulemaking to establish enhanced procedures for disqualification of commissioners in response to a request for recusal. “We agree that the FTC’s recusal process suffers from a lack of clarity around recusal standards, lack of transparency about how commissioners reach recusal decisions and the lack of timing obligations,” wrote Witter. 

“Efforts to establish moderate revisions to the rules of practice will enhance transparency, bolster trust in agency decisions and foster public confidence in rulemaking efforts and administrative adjudications.” 

She noted that the FTC has recently embarked on a series of rulemakings and launched cases challenging established law through its internal administrative proceedings. 

“Because the agency occupies a powerful position in the federal government – often operating as a rule maker, prosecutor and judge – it is important that our members trust that the FTC’s decision-making process is free from bias,” Witter said. “The existence of bias, or even the mere appearance of it, leaves agency decisions vulnerable to judicial challenge. Therefore, recusal rules should be clear and comprehensive. 

“The FTC’s current recusal rules, however, leave much about the decision process in a black box,” the letter continued. “This lack of transparency raises concerns about the integrity of the FTC’s administrative process for our members. The FTC should have recusal standards that offer some criteria to guide commissioners and avoid conflicts of interest. We support revisions to the FTC’s rules of practice that would require commissioners to seek written legal guidance of agency ethics officials and disclose in writing the reasons for any recusal determinations. Rules should also include timing obligations and specify instances that require recusal, including financial interest, covered relationships, bias or appearance of bias. 

“The FTC long relied on informal procedures when addressing recusal motions,” Witter continued. “As the agency embarks on an ambitious rulemaking and enforcement agenda, our members support a more formal recusal process.”