actions to which Section 3 might relate are themselves by law supposed to be procompetitive. The bill is the functional equivalent of requiring the

Environmental Protection Agency to file environmental impact statements when it takes regulatory action to protect the environment. Arguably, most activities of the Commission would not be subject to the bill. except under Section 5. and they should not be. because the interests sought to be protected by the bill are already accounted for in current law. There is some uncertainty, however. because the list of covered agency actions in Section 3(a) is, in attempting to be broad. extremely vague. For example. does the Commission "modify the monetary price charged for goods or services?" Do Section 337 cease and desist orders control pricing practices? The vagueness of Section 3(a) of S. 382 will likely lead to litigation.

The statutes administered by the Commission are an integral part of a system of trade relations between this country and its trading partners which includes international agreements and powers of the President and Congress relating to the foreign trade of the United States. Since the beginning of the trade agreements program in the 1930's, an objective of this country internationally has been to promote free trade, a concept not unlike the idea of free competition expressed in the antitrust laws of the United States. Of course, statutes relating to these international trading problems take into account the need to balance the interest of maintaining a vital domestic economy with the interest in free competition. At various times in the intervening years, that balance has obviously been directed in such a way


to protect domestic industry from imports which were considered in some sense dangerous to this country economically. Section 201 of the Trade Act of

1974 represents a process by which domestic industries are given relief from such imports. Any decision to include this system within the scope of the Competition Improvements Act would under amended Sections 3 and 4 have to take into account the adjustment of interests which the Congress has made in framing these statutes.

Nonetheless, the Commission's view is that it should

not be forced to do pursuant to Sections 3 and 4 a different form of what it already does under existing law.

Moreover, it would be anomalous to make the Commission subject to the requirements of Sections 3 and 4, since many of these requirements are already a matter of law. The Commission by law and regulation already now notifies the Attorney General and the Federal Trade Commission of proceedings under Section 337 (See section 4(a) of the bill). Notices of other proposed Commission actions are readily available in the Federal Register. Indeed, these agencies regularly appear before the Commission to argue the impact of possible Commission action upon competition. The Commission frequently solicits these comments.

It is possible that the purpose of placing agencies within the scope of Sections 3 and 4 would be to give the Department of Justice and the Federal Trade Commission access to the confidential information submitted by industry to those agencies. While this is not apparent from the face of the bill, we see no other reason for giving these agencies, who are regularly invited to appear and express their views on the interests protected by this bill, the status of parties of right.

This provision would allow the Department of Justice and FTC

unlimited access to confidential data in ITC proceedings. The Commission disagrees with this objective. 1/ For one thing, the Commission has enabled the Department and the Federal Trade Commission to have access to confidential industry data, but only after the Commission has had an opportunity to balance the impact of such access upon its ability to get information in the future against the need for expert advice. If access were entirely free in every Commission investigation, this might have a chilling effect upon parties' desire to proceed, because they might feel the Justice Department's access to these documents would be not only to aid the Commission in determining the competition impact of its possible action, but also to aid the Justice Department in investigating these complaints.

We think it is far better to

leave to the agency the decision of how much access will be granted other agencies to its confidential data. We should add that the sharing of information between government agencies is a matter often left by statute to the discretion of the President, who appears to have this power pursuant to a number of federal statutes. (See 19 U.S.C. 1334 and 15 U.S.C. 48).

In conclusion, the Commission objects to its being subject to the bill because doing so would be duplicative and illogical. It would increase costs and administrative burdens without any corresponding benefit, since the Commission already analyzes the effect of its actions on the public interest including competitiveness. (See, e.g., 19 U.S.C. 1337 (d).) In fact, making the Department of Justice a party of right will likely have the effect of making it more difficult for the Commission to obtain the information necessary for it to do the economic impact analyses already required of it by Congress.

17 Incidentally, Commission rules relating to proceedings under Section 337 (19 C.F.R. Part 210) provide for discovery. These rules can be used to discover "data relevant to competitive considerations."



ON S. 382,


April 19, 1979

Thank you for the opportunity to comment on S. 382, the "Competition Improvements Act." The purpose of this Act is to ensure that agencies determine the impact of their actions on Specifically, it requires them to regulate in a


manner least likely to affect competition adversely.

The economic regulation of surface freight transportation--the role of the ICC--is an area where consideration should be given to the impact of the Commission's decisions on competition. In particular, the growth of the trucking industry since the enactment of the Motor Carrier Act in 1935 suggests that a requirement to give full effect to the benefits of competition is appropriate. And while competition is less pervasive in the railroad industry than in the motor carrier industry, the increase in intermodal competition in the rail industry since World War II underscores the need to consider the issue of competition in making decisions in the rail area.

The passage of this bill would provide additional support for the Commission's actions taken to lessen regulation and to place greater reliance on competition, particularly in the trucking industry. A statement of some of those actions is attached as Appendix I to these comments. In addition, it would provide

us and future members of the Commission with a constant reminder of the importance of competition as an economic force in these industries.

The heart of the bill--section 3(a)--is similar to the standard which the Commission has developed for reviewing grants of antitrust immunity; see Tidewater Coal Demurrage Agreement, Section 5a Application No. 10, 356 ICC 66 (January 10, 1978). The test was adopted by the Commission as the standard for review of all outstanding rate bureau agreements in Ex Parte No. 297 (SubNo. 4), Reopening Of Section 5a Application Proceedings To Take Additional Evidence, where the Commission said,

"As the Commission interprets paragraph (2)
[of Section 5a], the question is not simply
whether the activities to be carried out under the
agreement will further the National Transportation
Policy, but assuming that they will, whether the
benefits of the agreement from the standpoint of
the National Transportation Policy outweigh its
disadvantages from the standpoint of national
antitrust policies. The benefits to be weighed
are the various National Transportation Policy
goals which the agreement will foster. The dis-
advantages to be weighed are the anti-competitive
effects which the agreement will have. The analy-
sis which the Commission must apply in reviewing

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