[Federal Register Volume 81, Number 119 (Tuesday, June 21, 2016)]
[Notices]
[Pages 40259-40261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14636]


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 Notices
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  Federal Register / Vol. 81, No. 119 / Tuesday, June 21, 2016 / 
Notices  

[[Page 40259]]



ADMINISTRATIVE CONFERENCE OF THE UNITED STATES


Adoption of Recommendations

AGENCY: Administrative Conference of the United States.

ACTION: Notice.

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SUMMARY: The Administrative Conference of the United States adopted two 
recommendations at its Sixty-fifth Plenary Session. The appended 
recommendations address: Consumer Complaint Databases and Aggregation 
of Similar Claims in Agency Adjudication.

FOR FURTHER INFORMATION CONTACT: For Recommendation 2016-1, Gisselle 
Bourns; for Recommendation 2016-2, Amber Williams. For both of these 
actions the address and telephone number are: Administrative Conference 
of the United States, Suite 706 South, 1120 20th Street NW., 
Washington, DC 20036; Telephone 202-480-2080.

SUPPLEMENTARY INFORMATION: The Administrative Conference Act, 5 U.S.C. 
591-596, established the Administrative Conference of the United 
States. The Conference studies the efficiency, adequacy, and fairness 
of the administrative procedures used by Federal agencies and makes 
recommendations to agencies, the President, Congress, and the Judicial 
Conference of the United States for procedural improvements (5 U.S.C. 
594(1)). For further information about the Conference and its 
activities, see www.acus.gov. At its Sixty-fifth Plenary Session, held 
June 10, 2016, the Assembly of the Conference adopted two 
recommendations.
    Recommendation 2016-1, Consumer Complaint Databases. This 
recommendation encourages agencies that make consumer complaints 
publicly available through online databases or downloadable data sets 
to adopt and publish written policies governing the dissemination of 
such information to the public. These policies should inform the public 
of the source and limitations of the information and permit entities 
publicly identified to respond or request corrections or retractions.
    Recommendation 2016-2, Aggregation of Similar Claims in Agency 
Adjudication. This recommendation provides guidance to agencies on the 
use of aggregation techniques to resolve similar claims in 
adjudications. It sets forth procedures for determining whether 
aggregation is appropriate. It also considers what kinds of aggregation 
techniques should be used in certain cases and offers guidance on how 
to structure the aggregation proceedings to promote both efficiency and 
fairness.
    The Appendix below sets forth the full texts of these two 
recommendations. The Conference will transmit them to affected 
agencies, Congress, and the Judicial Conference of the United States. 
The recommendations are not binding, so the entities to which they are 
addressed will make decisions on their implementation.
    The Conference based these recommendations on research reports that 
are posted at: https://www.acus.gov/65th. A video of the Plenary 
Session is available at: new.livestream.com/ACUS/65thPlenary, and a 
transcript of the Plenary Session will be posted when it is available.

    Dated: June 16, 2016.
Shawne C. McGibbon,
General Counsel.

APPENDIX--RECOMMENDATIONS OF THE ADMINISTRATIVE CONFERENCE OF THE 
UNITED STATES

Administrative Conference Recommendation 2016-1

Consumer Complaint Databases

Adopted June 10, 2016

    Some federal agencies maintain records of consumer complaints 
and feedback on products and services offered by private entities. 
Taking advantage of recent technological developments, several 
agencies have recently begun to make such information available to 
the public through online searchable databases and downloadable data 
sets that contain complaint narratives or provide aggregate data 
about complaints. Examples of such online searchable databases 
include: the Consumer Product Safety Commission's database of 
consumer product incident reports (``Saferproducts.gov''); the 
National Highway Traffic Safety Administration's database of 
recalls, investigations, and complaints (``Safercar.gov''); and the 
Consumer Financial Protection Bureau's database of financial 
products and services complaints (``Consumer Complaint 
Database'').\1\
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    \1\ Other examples located by the Administrative Conference 
include: the Department of Transportation's monthly data sets on the 
number and types of complaints against airlines (``Air Travel 
Consumer Report'') (only aggregated data about complaints is made 
public, with the exception of animal incident reports, for which a 
narrative description is provided); the Federal Trade Commission's 
consumer complaints database (``Consumer Sentinel'') (only 
aggregated data about complaints is made public); and the Federal 
Communications Commission's database of unwanted calls and consumer 
complaints (``Consumer Complaints at the FCC'') (complaint 
narratives are not provided). Some databases and data sets include 
reports from both consumers and manufacturers, such as the Food and 
Drug Administration's database of reports of suspected device-
associated deaths, serious injuries, and malfunctions (``MAUDE''), 
as well as its downloadable data sets of adverse events and 
medication errors (``FAERS'').
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    As documented by the Executive Office of the President's 
National Science and Technology Council, agencies are constantly 
improving databases that publish consumer complaints and 
information, and are gradually developing best practices for such 
disclosures.\2\ Two policy considerations are significant in this 
process. Agencies must have the flexibility to provide information 
to the public to facilitate informed decisionmaking. At the same 
time, agencies should inform the public of the limitations of the 
information they disseminate.\3\ The following recommendations aim 
to promote the widespread availability of such information and to 
identify best practices to ensure the integrity of complaints 
databases and data sets.
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    \2\ See Executive Office of the President, National Science and 
Technology Council, Smart Disclosure and Consumer Decision Making: 
Report of the Task Force on Smart Disclosure 15 (May 30, 2013).
    \3\ See generally id; see also Nathan Cortez, Agency Publicity 
in the Internet Era 44-45 (Sept. 25, 2015) (report to the 
Administrative Conference of the United States), https://www.acus.gov/report/agency-publicity-internet-era-report (discussing 
disclaimers provided by Food and Drug Administration on the accuracy 
and reliability of data in MAUDE and FAERS databases).
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Recommendation

    To the extent permitted by law, agencies that make consumer 
complaints publicly available (whether in narrative or aggregated 
form) through online databases or downloadable data sets should 
adopt and publish online written policies governing the public 
dissemination of consumer complaints through databases or 
downloadable data sets. These policies should:
    1. Inform the public of the source(s) and limitations of the 
information, including whether the information is verified or

[[Page 40260]]

authenticated by the agency, and any procedures used to do so;
    2. permit entities publicly identified in consumer complaints 
databases or downloadable data sets to respond, as practicable, or 
request corrections or retractions, as appropriate; and
    3. give appropriate consideration to privacy interests.

Administrative Conference Recommendation 2016-2

Aggregation of Similar Claims in Agency Adjudication

Adopted June 10, 2016

    Federal agencies in the United States adjudicate hundreds of 
thousands of cases each year--more than the federal courts. Unlike 
federal and state courts, federal agencies have generally avoided 
aggregation tools that could resolve large groups of claims more 
efficiently. Consequently, in a wide variety of cases, agencies risk 
wasting resources in repetitive adjudication, reaching inconsistent 
outcomes for the same kinds of claims, and denying individuals 
access to the affordable representation that aggregate procedures 
promise. Now more than ever, adjudication programs, especially high 
volume adjudications, could benefit from innovative solutions, like 
aggregation.\1\
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    \1\ Other related techniques that can help resolve recurring 
legal issues in agencies include the use of precedential decisions, 
declaratory orders as provided in 5 U.S.C. 554(e), and rulemaking. 
With respect to declaratory orders, see Recommendation 2015-3, 
Declaratory Orders, 80 FR 78,163 (Dec. 16, 2015), available at 
https://www.acus.gov/recommendation/declaratory-orders. The Supreme 
Court has recognized agency authority to use rulemaking to resolve 
issues that otherwise might recur and require hearings in 
adjudications. See Heckler v. Campbell, 461 U.S. 458 (1983).
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    The Administrative Procedure Act (APA) \2\ does not provide 
specifically for aggregation in the context of adjudication, though 
it also does not foreclose the use of aggregation procedures. 
Federal agencies often enjoy broad discretion, pursuant to their 
organic statutes, to craft procedures they deem ``necessary and 
appropriate'' to adjudicate the cases and claims that come before 
them.\3\ This broad discretion includes the ability to aggregate 
common cases, both formally and informally. Formal aggregation 
involves permitting one party to represent many others in a single 
proceeding.\4\ In informal aggregation, different claimants with 
very similar claims pursue a separate case with separate counsel, 
but the agency assigns them to the same adjudicator or to the same 
docket, in an effort to expedite the cases, conserve resources, and 
ensure consistent outcomes.\5\
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    \2\ See Administrative Procedure Act, Public Law 79-404, 60 
Stat. 237 (1946) (codified as amended at 5 U.S.C. 551-559, 701-706 
and scattered sections in Title 5).
    \3\ Broad discretion exists both in ``formal adjudication,'' 
where the agency's statute requires a ``hearing on the record,'' 
triggering the APA's trial-type procedures, and in ``informal 
adjudication,'' where the procedures set forth in APA Sec. Sec.  
554, 556 & 557 are not required, thus allowing less formal 
procedures (although some ``informal adjudications'' are 
nevertheless quite formal).
    \4\ This recommendation does not address formal aggregation of 
respondents or defendants in proceedings before agencies.
    \5\ The American Law Institute's Principles of the Law of 
Aggregation defines proceedings that coordinate separate lawsuits in 
this way as ``administrative aggregations,'' which are distinct from 
joinder actions (in which multiple parties are joined in the same 
proceeding) or representative actions (in which a party represents a 
class in the same proceeding). See American Law Institute, 
Principles of the Law of Aggregate Litigation Sec.  1.02 (2010) 
(describing different types of aggregate proceedings).
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    Yet, even as some agencies face large backlogs, few have 
employed such innovative tools. There are several possible 
explanations for this phenomenon. The sheer number of claims in 
aggregate agency adjudications may raise concerns of feasibility, 
legitimacy, and accuracy because aggregation could (1) create 
diseconomies of scale by inviting even more claims that further 
stretch the agency's capacity to adjudicate; (2) negatively affect 
the perceived legitimacy of the process; and (3) increase the 
consequence of error.
    Notwithstanding these risks, several agencies have identified 
contexts in which the benefits of aggregation, including producing a 
pool of information about recurring problems, achieving greater 
equality in outcomes, and securing the kind of expert assistance 
high volume adjudication attracts, outweigh the costs.\6\ Agencies 
have also responded to the challenges of aggregation by (1) 
carefully piloting aggregation procedures to improve output while 
avoiding creation of new inefficiencies; (2) reducing potential 
allegations of bias or illegitimacy by relying on panels, rather 
than single adjudicators, and providing additional opportunities for 
parties to voluntarily participate in the process; and (3) allowing 
cases raising scientific or novel factual questions to ``mature'' 
\7\--that is, putting off aggregation until the agency has the 
benefit of several opinions and conclusions from different 
adjudicators about how a case may be handled expeditiously.
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    \6\ See Michael Sant'Ambrogio & Adam Zimmerman, Aggregate Agency 
Adjudication 27-65 (June 9, 2016), available at https://www.acus.gov/report/aggregate-agency-adjudication-final-report 
(describing three examples of aggregation in adjudication).
    \7\ Cf. Francis E. McGovern, An Analysis of Mass Torts for 
Judges, 73 Tex. L. Rev. 1821 (1995) (defining ``maturity'' in which 
both sides' litigation strategies are clear, expected outcomes reach 
an ``equilibrium,'' and global resolutions or settlements may be 
sought).
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    The Administrative Conference recognizes aggregation as a useful 
tool to be employed in appropriate circumstances. This 
recommendation provides guidance and best practices to agencies as 
they consider whether or how to use or improve their use of 
aggregation.\8\
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    \8\ This recommendation covers both adjudications conducted by 
administrative law judges and adjudications conducted by non-
administrative law judges.
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Recommendation

    1. Aggregate adjudication where used should be governed by 
formal or informal aggregation rules of procedure consistent with 
the APA and due process.

Using Alternative Decisionmaking Techniques

    2. Agencies should consider using a variety of techniques to 
resolve claims with common issues of fact or law, especially in high 
volume adjudication programs. In addition to the aggregate 
adjudication procedures discussed in paragraphs 3-10, these 
techniques might include the designation of individual decisions as 
``precedential,'' the use of rulemaking to resolve issues that are 
appropriate for generalized resolution and would otherwise recur in 
multiple adjudications, and the use of declaratory orders in 
individual cases.

Determining Whether To Use Aggregation Procedures

    3. Agencies should take steps to identify whether their cases 
have common claims and issues that might justify adopting rules 
governing aggregation. Such steps could include:
    a. Developing the information infrastructure, such as public 
centralized docketing, needed for agencies and parties to identify 
and track cases with common issues of fact or law;
    b. Encouraging adjudicators and parties to identify specific 
cases or types of cases that are likely to involve common issues of 
fact or law and therefore prove to be attractive candidates for 
aggregation; and
    c. Piloting programs to test the reliability of an approach to 
aggregation before implementing the program broadly.
    4. Agencies should develop procedures and protocols to assign 
similar cases to the same adjudicator or panel of adjudicators using 
a number of factors, including:
    a. Whether coordination would avoid duplication in discovery;
    b. Whether it would prevent inconsistent evidentiary or other 
pre-hearing rulings;
    c. Whether it would conserve the resources of the parties, their 
representatives, and the agencies; and
    d. Where appropriate, whether the agencies can accomplish 
similar goals by using other tools as set forth in paragraph 2.
    5. Agencies should develop procedures and protocols for 
adjudicators to determine whether to formally aggregate similar 
claims in a single proceeding with consideration of the principles 
and procedures in Rule 23 of the Federal Rules of Civil Procedure, 
including:
    a. Whether the number of cases or claims are sufficiently 
numerous and similar to justify aggregation;
    b. Whether an aggregate proceeding would be manageable and 
materially advance the resolution of the cases;
    c. Whether the benefits of collective control outweigh the 
benefits of individual control, including whether adequate counsel 
is available to represent the parties in an aggregate proceeding;
    d. Whether (or the extent to which) any existing individual 
adjudication has (or related adjudications have) progressed; and
    e. Whether the novelty or complexity of the issues being 
adjudicated would benefit from the input of different adjudicators.

[[Page 40261]]

Structuring the Aggregate Proceeding

    6. Agencies that use aggregation should ensure that the parties' 
and other stakeholders' interests are adequately protected and that 
the process is understood to be transparent and legitimate by 
considering the use of mechanisms such as:
    a. Permitting interested stakeholders to file amicus briefs or 
their equivalent;
    b. Conducting ``fairness hearings,'' in which all interested 
stakeholders may express their concerns with the proposed relief to 
adjudicators in person or in writing;
    c. Ensuring that separate interests are adequately represented 
in order to avoid conflicts of interest;
    d. Permitting parties to opt out in appropriate circumstances;
    e. Permitting parties to challenge the decision to aggregate in 
the appeals process, including an interlocutory appeal to the 
agency; and
    f. Allowing oral arguments for amici or amicus briefs in agency 
appeals.
    7. Agencies that use aggregation should develop written and 
publicly available policies explaining how they initiate, conduct, 
and terminate aggregation proceedings. The policies should also set 
forth the factors used to determine whether aggregation is 
appropriate.
    8. Where feasible, agencies should consider assigning a 
specialized corps of experienced adjudicators who would be trained 
to handle aggregate proceedings, consistent with APA requirements 
where administrative law judges are assigned. Agencies should also 
consider using a panel of adjudicators from the specialized corps to 
address concerns with having a single adjudicator decide cases that 
could have a significant impact. Agencies that have few adjudicators 
may need to ``borrow'' adjudicators from other agencies for this 
purpose.

Using Aggregation To Enhance Control of Policymaking

    9. Agencies should make all decisions in aggregate proceedings 
publicly available. In order to obtain the maximum benefit from 
aggregate proceedings, agencies should also consider designating 
final agency decisions as precedential if doing so will:
    a. Help other adjudicators handle subsequent cases involving 
similar issues more expeditiously;
    b. Provide guidance to future parties;
    c. Avoid inconsistent outcomes; or
    d. Increase transparency and openness.
    10. Agencies should ensure the outcomes of aggregate 
adjudication are communicated to policymakers or personnel involved 
in rulemaking so that they can determine whether a notice-and-
comment rulemaking proceeding codifying the outcome might be 
worthwhile. If agencies are uncertain they want to proceed with a 
rule, they might issue a notice of inquiry to invite interested 
parties to comment on whether the agencies should codify the 
adjudicatory decision (in whole or in part) in a new regulation.

[FR Doc. 2016-14636 Filed 6-20-16; 8:45 am]
BILLING CODE 6110-01-P