[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]
========================================================================
Notices
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
and investigations, committee meetings, agency decisions and rulings,
delegations of authority, filing of petitions and applications and agency
statements of organization and functions are examples of documents
appearing in this section.
========================================================================
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.
-----------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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'').
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\8\ This recommendation covers both adjudications conducted by
administrative law judges and adjudications conducted by non-
administrative law judges.
---------------------------------------------------------------------------
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