81 FR 40259 - Adoption of Recommendations
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES Federal Register Volume 81, Issue 119 (June 21, 2016)
Federal Register Volume 81, Issue 119 (June 21, 2016)
| Page Range | 40259-40261 | |
| FR Document | 2016-14636 |
[Federal Register Volume 81, Number 119 (Tuesday, June 21, 2016)] [Notices] [Pages 40259-40261] From the Federal Register Online [www.thefederalregister.org] [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
![Federal Register / Vol. 81, No. 119 / Tuesday, June 21, 2016 / Notices 40261
Structuring the Aggregate Proceeding DEPARTMENT OF AGRICULTURE reservation contractor. In the future the
6. Agencies that use aggregation should reservation permit fee will be continued
ensure that the parties’ and other Forest Service in conjunction with the application of
stakeholders’ interests are adequately this proposed boater-use permit fee for
protected and that the process is understood Notice of Proposed New Special private boaters.
to be transparent and legitimate by Recreation Permit Fee At this time the listed boater-use
considering the use of mechanisms such as: permit fee is only a proposal and further
AGENCY: Wallowa-Whitman National
a. Permitting interested stakeholders to file analysis and public comment will occur
amicus briefs or their equivalent; Forest, USDA Forest Service.
before a decision is made. Funds from
b. Conducting ‘‘fairness hearings,’’ in ACTION: Notice of proposed new special
the proposed fee would be used for
which all interested stakeholders may recreation permit fee.
administrative and operational needs in
express their concerns with the proposed
relief to adjudicators in person or in writing; SUMMARY: The Wallowa-Whitman the recreation area to enhance user
c. Ensuring that separate interests are National Forest is proposing to experience and safety, sustain natural
adequately represented in order to avoid implement a Special Recreation Permit and cultural resources, and facility
conflicts of interest; Fee on the Wild and Scenic Snake River maintenance and improvements.
d. Permitting parties to opt out in which flows between Oregon and Idaho. DATES: New fees would begin after, and
appropriate circumstances; Implementing a Special Recreation contingent upon a review and
e. Permitting parties to challenge the Permit Fee would allow the Forest recommendation by the John Day-Snake
decision to aggregate in the appeals process, Service to manage the specialized River Resource Advisory Council and
including an interlocutory appeal to the recreation use associated with float and approval by the Regional Forester for
agency; and
power boating on the Wild and Scenic the Pacific Northwest Region. All
f. Allowing oral arguments for amici or
amicus briefs in agency appeals.
Snake River, and result in improved comments should be received no later
7. Agencies that use aggregation should services and experiences. Fees are than 60 days from publication of this
develop written and publicly available assessed based on the level of amenities notice in the Federal Register. The
policies explaining how they initiate, and services provided, cost of operation publication date of this Notice in the
conduct, and terminate aggregation and maintenance of river-related Federal Register is the exclusive means
proceedings. The policies should also set facilities, market assessment, and public for calculating the comment period for
forth the factors used to determine whether comments received. this proposal. Those wishing to
aggregation is appropriate. Boaters using the Wild and Scenic comment should not rely upon dates or
8. Where feasible, agencies should consider Snake River would be subject to a timeframe information provided by any
assigning a specialized corps of experienced Special Recreation Permit Fee (boater- other source.
adjudicators who would be trained to handle use permit fee) of $5.00 to $10.00 per Public Open House: A series of public
aggregate proceedings, consistent with APA person that would be collected from all open houses are scheduled to answer
requirements where administrative law questions brought forth by the public.
private and commercial boaters and
judges are assigned. Agencies should also
their occupants. The implementation of The open house dates are:
consider using a panel of adjudicators from
the fee on the Wild and Scenic Snake 1. July 5, 2016, 6 p.m. to 8 p.m., Boise,
the specialized corps to address concerns
with having a single adjudicator decide cases River is comparable to other federal day- ID.
that could have a significant impact. use fees within the current Four Rivers 2. July 6, 2016, 6 p.m. to 8 p.m.,
Agencies that have few adjudicators may reservation system for the Selway, Riggins, ID.
need to ‘‘borrow’’ adjudicators from other Middle Fork Salmon, Main Salmon and 3. July 7, 2016, 6 p.m. to 8 p.m.,
agencies for this purpose. other sections of the Snake Rivers. The Clarkston, WA.
area subject to the fee is the Snake River 4. July 8, 2016, 6 p.m. to 8 p.m.,
Using Aggregation To Enhance Control of
beginning at Hells Canyon Dam to Joseph, OR.
Policymaking
Cache Creek Ranch (approximately 70 ADDRESSES: Send written comments to:
9. Agencies should make all decisions in
miles). Jacob Lubera, Deputy District Ranger,
aggregate proceedings publicly available. In
order to obtain the maximum benefit from The exceptions to this boater-use Wallowa-Whitman National Forest, 201
aggregate proceedings, agencies should also permit fee are: East Second Street, P.O. Box 905,
consider designating final agency decisions • Travel by private, noncommercial Joseph, Oregon 97846. Comments may
as precedential if doing so will: boat to any land in which the person also be faxed to 541–426–4978.
a. Help other adjudicators handle has property rights. Comments may be hand-delivered to the
subsequent cases involving similar issues • Any person who has right of access above address Monday through Friday,
more expeditiously; for hunting or fishing privileges under from 8 a.m. till 4:30 p.m., excluding
b. Provide guidance to future parties; specific provisions of treaty or law. legal holidays.
c. Avoid inconsistent outcomes; or • Individual outfitter/guides and their Electronic Comments: Electronic
d. Increase transparency and openness. associated employees, while acting in comments must be submitted in a
10. Agencies should ensure the outcomes
an official capacity under the terms of format such as an email message, plain
of aggregate adjudication are communicated
to policymakers or personnel involved in
their permit. text (.txt), rich text format (.rtf), or Word
rulemaking so that they can determine At this time there is no boater-use (.docx) to comments-pacificnorthwest-
whether a notice-and-comment rulemaking permit fee on the Wild and Scenic wallowa-whitman@fs.fed.us. Emails
Snake River for float or power boats. submitted to email addresses other than
asabaliauskas on DSK3SPTVN1PROD with NOTICES
proceeding codifying the outcome might be
worthwhile. If agencies are uncertain they Boater-use for private float and power the one listed above, in other formats
want to proceed with a rule, they might issue boats is currently managed though a than those listed, or containing viruses
a notice of inquiry to invite interested parties national reservation system, which will be rejected. Comments can also be
to comment on whether the agencies should limits the amount of boats during the submitted at http://www.fs.usda.gov/
codify the adjudicatory decision (in whole or primary use season to meet management detail/wallowa-whitman/specialplaces/
in part) in a new regulation. plan direction. A $6.00 transaction cost ?cid=fseprd481691. It is the
[FR Doc. 2016–14636 Filed 6–20–16; 8:45 am] is associated with this reservation responsibility of persons providing
BILLING CODE 6110–01–P permit and is completely retained by the comments to submit them by the close
VerDate Sep<11>2014 18:37 Jun 20, 2016 Jkt 238001 PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 E:\FR\FM\21JNN1.SGM 21JNN1](https://thefederalregister.org/doc/81_FR_40378/page/3.svg)
Document Created: 2016-06-21 01:30:31
Document Modified: 2016-06-21 01:30:31
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice. | |
| Contact | For Recommendation 2016-1, Gisselle Bourns; for Recommendation 2016-2, Amber Williams. For both of these | |
| FR Citation | 81 FR 40259 |
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