Adoption of Recommendations

CourtAdministrative Conference Of The United States
Citation86 FR 36075
Publication Date08 Jul 2021
Record Number2021-14597
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.
Notices Federal Register
36075
Vol. 86, No. 128
Thursday, July 8, 2021
1
5 U.S.C. 553. This requirement is subject to a
number of exceptions. See id.
2
See E-Government Act 206, 44 U.S.C. 3501 note
(establishing the eRulemaking Program to create an
online system for conducting the notice-and-
comment process); see also Admin. Conf. of the
U.S., Recommendation 2013–4, Administrative
Record in Informal Rulemaking, 78 FR 41358 (July
10, 2013) (distinguishing between ‘‘the
administrative record for judicial review,’’
‘‘rulemaking record,’’ and the ‘‘public rulemaking
docket’’).
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
four recommendations at its virtual
Seventy-fourth Plenary Session. The
appended recommendations are: (a)
Managing Mass, Computer-Generated,
and Falsely Attributed Comments; (b)
Periodic Retrospective Review; (c) Early
Input on Regulatory Alternatives; and
(d) Virtual Hearings in Agency
Adjudication. A fifth proposed
recommendation, Clarifying Access to
Judicial Review of Agency Action was
considered but was remanded to the
Committee on Judicial Review for
further consideration.
FOR FURTHER INFORMATION CONTACT
: For
Recommendation 2021–1, Danielle
Schulkin; for Recommendation 2021–2,
Gavin Young; for Recommendation
2021–3, Mark Thomson; and for
Recommendation 2021–4, Jeremy
Graboyes. For each 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 virtual Seventy-
fourth Plenary Session on June 17, 2021,
the Assembly of the Conference adopted
four recommendations.
Recommendation 2021–1, Managing
Mass, Computer-Generated, and Falsely
Attributed Comments. This
recommendation offers agencies best
practices for managing mass, computer-
generated, and falsely attributed
comments in agency rulemakings. It
provides guidance for agencies on using
technology to process such comments in
the most efficient way possible while
ensuring that the rulemaking process is
transparent to prospective commenters
and the public more broadly.
Recommendation 2021–2, Periodic
Retrospective Review. This
recommendation offers practical
suggestions to agencies about how to
establish periodic retrospective review
plans. It provides guidance for agencies
on identifying regulations for review,
determining the optimal frequency of
review, soliciting public feedback to
enhance their review efforts, identifying
staff to participate in review, and
coordinating review with other
agencies.
Recommendation 2021–3, Early Input
on Regulatory Alternatives.This
recommendation offers guidance about
whether, when, and how agencies
should solicit input on alternatives to
rules under consideration before issuing
notices of proposed rulemaking. It
identifies specific, targeted measures for
obtaining public input on regulatory
alternatives from knowledgeable
persons in ways that are cost-effective
and equitable and that maximize the
likelihood of obtaining diverse, useful
responses.
Recommendation 2021–4, Virtual
Hearings in Agency Adjudication. This
recommendation addresses the use of
virtual hearings—that is, proceedings in
which participants attend remotely
using a personal computer or mobile
device—in agency adjudications.
Drawing heavily on agencies’
experiences during the COVID–19
pandemic, the recommendation
identifies best practices for improving
existing virtual-hearing programs and
establishing new ones in accord with
principles of fairness and efficiency and
with due regard for participant
satisfaction.
The Appendix below sets forth the
full texts of these four
recommendations, as well as three
timely filed Separate Statements
associated with Recommendation 2021–
1, Managing Mass, Computer-
Generated, and Falsely Attributed
Comments. The Conference will
transmit the recommendations to
affected agencies, Congress, and the
Judicial Conference of the United States,
as appropriate. 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/meetings-and-events/
plenary-meeting/74th-plenary-session-
virtual. Committee-proposed drafts of
the recommendations, and public
comments received in advance of the
plenary session, are also available using
the same link.
Dated: July 2, 2021.
Shawne C. McGibbon,
General Counsel.
Appendix—Recommendations of the
Administrative Conference of the
United States
Administrative Conference Recommendation
2021–1
Managing Mass, Computer-Generated, and
Falsely Attributed Comments
Adopted June 17, 2021
Under the Administrative Procedure Act
(APA), agencies must give members of the
public notice of proposed rules and the
opportunity to offer their ‘‘data, views, or
arguments’’ for the agencies’ consideration.
1
For each proposed rule subject to these
notice-and-comment procedures, agencies
create and maintain an online public
rulemaking docket in which they collect and
publish the comments they receive along
with other publicly available information
about the proposed rule.
2
Agencies must then
process, read, and analyze the comments
received. The APA requires agencies to
consider the ‘‘relevant matter presented’’ in
the comments received and to provide a
‘‘concise general statement of [the rule’s]
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3
5 U.S.C. 553.
4
Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96
(2015) (‘‘An agency must consider and respond to
significant comments received during the period for
public comment.’’).
5
Azar v. Allina Health Services, 139 S. Ct. 1804,
1816 (2019).
6
See Admin. Conf. of the U.S., Recommendation
2018–7, Public Engagement in Rulemaking, 84 FR
2146 (Feb. 6, 2019); Admin. Conf. of the U.S.,
Recommendation 2013–5, Social Media in
Rulemaking, 78 FR 76269 (Dec. 17, 2013); Admin.
Conf. of the U.S., Recommendation 2011–8, Agency
Innovations in eRulemaking, 77 FR 2264 (Jan. 17,
2012); Admin. Conf. of the U.S., Recommendation
2011–2, Rulemaking Comments, 76 FR 48791 (Aug.
9, 2011).
7
The ability to automate the generation of
comment content may also remove human
interaction with the agency and facilitate the
submission of large volumes of comments in cases
in which software can repeatedly submit comments
via Regulations.gov.
8
See Permanent Subcommittee on Investigations,
U.S. Senate Comm. on Homeland Security and
Gov’t Affairs, Staff Report, Abuses of the Federal
Notice-and-Comment Rulemaking Process (2019);
U.S. Gov’t Accountability Off., GAO–20–413T,
Selected Agencies Should Clearly Communicate
How They Post Public Comments and Associated
Identity Information (2020); U.S. Gov’t
Accountability Off., GAO–19–483, Selected
Agencies Should Clearly Communicate Practices
Associated with Identity Information in the Public
Comment Process (2019).
9
N.Y. State Off. of the Att’y Gen., Fake
Comments: How U.S. Companies & Partisans Hack
Democracy to Undermine Your Voice (2021).
10
5 U.S.C. 553.
11
This Recommendation does not address what
role particular types of comments should play in
agency decision making or what consideration, if
any, agencies should give to the number of
comments in support of a particular position.
12
See Recommendation 2018–7, supra note 6;
Admin. Conf. of the U.S., Recommendation 2017–
3, Plain Language in Regulatory Drafting, 82 FR
61728 (Dec. 29, 2017); Admin. Conf. of the U.S.,
Recommendation 2017–2, Negotiated Rulemaking
and Other Options for Public Engagement, 82 FR
31040 (July 5, 2017); Admin. Conf. of the U.S.,
Recommendation 2014–6, Petitions for Rulemaking,
79 FR 75117 (Dec. 17, 2014); Recommendation
2013–5, supra note 6; Recommendation 2011–8,
supra note 6; Admin. Conf. of the U.S.,
Recommendation 2011–7, Federal Advisory
Committee Act: Issues and Proposed Reforms, 77
FR 2261 (Jan. 17, 2012); Recommendation 2011–2,
supra note 6.
13
For an example of educational information on
rulemaking participation, see the ‘‘Commenter’s
Checklist’’ that the eRulemaking Program currently
displays in a pop-up window for every rulemaking
web page that offers the public the opportunity to
comment. See Commenter’s Checklist, Gen. Servs.
Admin., https://www.Regulations.gov (last visited
May 24, 2021) (navigate to any rulemaking with an
open comment period; click comment button; then
click ‘‘Commenter’s Checklist’’). In addition, the
text of this checklist appears on the project page for
this Recommendation on the ACUS website.
14
This software is distinct from identity
validation technologies that force commenters to
prove their identities.
15
See Regulations.gov API, Gen. Servs. Admin.,
https://open.gsa.gov/api/regulationsgov/ (last
visited May 24, 2021).
16
See Steve Balla, Reeve Bull, Bridget Dooling,
Emily Hammond, Michael Herz, Michael
Livermore, & Beth Simone Noveck, Mass,
basis and purpose.’’
3
When a rule is
challenged on judicial review, courts have
required agencies to demonstrate that they
have considered and responded to any
comment that raises a significant issue.
4
The
notice-and-comment process is an important
opportunity for the public to provide input
on a proposed rule and the agency to ‘‘avoid
errors and make a more informed decision’’
on its rulemaking.
5
Technological advances have expanded the
public’s access to agencies’ online
rulemaking dockets and made it easier for the
public to comment on proposed rules in
ways that the Administrative Conference has
encouraged.
6
At the same time, in recent
high-profile rulemakings, members of the
public have submitted comments in new
ways or in numbers that can challenge
agencies’ current approaches to processing
these comments or managing their online
rulemaking dockets.
Agencies have confronted three types of
comments that present distinctive
management challenges: (1) Mass comments,
(2) computer-generated comments, and (3)
falsely attributed comments. For the
purposes of this Recommendation, mass
comments are comments submitted in large
volumes by members of the public, including
the organized submission of identical or
substantively identical comments. Computer-
generated comments are comments whose
substantive content has been generated by
computer software rather than by humans.
7
Falsely attributed comments are comments
attributed to people who did not submit
them.
These three types of comments, which
have been the subject of recent reports by
both federal
8
and state
9
authorities, can raise
challenges for agencies in processing,
reading, and analyzing the comments they
receive in some rulemakings. If not managed
well, the processing of these comments can
contribute to rulemaking delays or can raise
other practical or legal concerns for agencies
to consider.
In addressing the three types of comments
in a single recommendation, the Conference
does not mean to suggest that agencies
should treat these comments in the same
way. Rather, the Conference is addressing
these comments in the same
Recommendation because, despite their
differences, they can present similar or even
overlapping management concerns during
the rulemaking process. In some cases,
agencies may also confront all three types of
comments in the same rulemaking.
The challenges presented by these three
types of comments are by no means identical.
With mass comments, agencies may
encounter processing or cataloging
challenges simply as a result of the volume
as well as the identical or substantively
identical content of some comments they
receive. Without the requisite tools, agencies
may also find it difficult or time-consuming
to digest or analyze the overall content of all
comments they receive.
In contrast with mass comments,
computer-generated comments and falsely
attributed comments may mislead an agency
or raise issues under the APA and other
statutes. One particular problem that
agencies may encounter is distinguishing
computer-generated comments from
comments written by humans. Computer-
generated comments may also raise potential
issues for agencies as a result of the APA’s
provision for the submission of comments by
‘‘interested persons.’’
10
Falsely attributed
comments can harm people whose identities
are appropriated and may create the
possibility of prosecution under state or
federal criminal law. False attribution may
also deceive agencies or diminish the
informational value of a comment, especially
when the commenter claims to have
situational knowledge or the identity of the
commenter is otherwise relevant. The
informational value that both of these types
of comments provide to agencies is likely to
be limited or at least different from
comments that have been neither computer-
generated nor falsely attributed.
This Recommendation is limited to how
agencies can better manage the processing
challenges associated with mass, computer-
generated, and falsely attributed comments.
11
By addressing these processing challenges,
the Recommendation is not intended to
imply that widespread participation in the
rulemaking process, including via mass
comments, is problematic. Indeed, the
Conference has explicitly endorsed
widespread public participation on multiple
occasions,
12
and this Recommendation
should help agencies cast a wide net when
seeking input from all individuals and
groups affected by a rule. The
Recommendation aims to enhance agencies’
ability to process comments they receive in
the most efficient way possible and to ensure
that the rulemaking process is transparent to
prospective commenters and the public more
broadly.
Agencies can advance the goals of public
participation by being transparent about their
comment policies or practices and by
providing educational information about
public involvement in the rulemaking
process.
13
Agencies’ ability to process
comments can also be enhanced by digital
technologies. As part of its eRulemaking
Program, for example, the General Services
Administration (GSA) has implemented
technologies on the Regulations.gov platform
that make it easier for agencies to verify that
a commenter is a human being.
14
GSA’s
Regulations.gov platform also includes an
application programming interface (API)—a
feature of a computer system that enables
different systems to communicate with it—to
facilitate mass comment submission.
15
This
technology platform allows partner agencies
to better manage comments from identifiable
entities that submit large volumes of
comments. Some federal agencies also use a
tool, sometimes referred to as de-duplication
software, to identify and group identical or
substantively identical comments.
New software and technologies to manage
public comments will likely emerge in the
future, and agencies will need to keep
apprised of them. Agencies might also
consider adopting alternative methods for
encouraging public participation that
augment the notice-and-comment process,
particularly to the extent that doing so
ameliorates some of the management
challenges described above.
16
Because
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Computer-Generated, and Fraudulent Comments
43–48 (June 1, 2021) (report to the Admin. Conf. of
the U.S.).
technology is rapidly changing, agencies will
need to stay apprised of new developments
that could enhance public participation in
rulemaking.
Not all agencies will encounter mass,
computer-generated, or falsely attributed
comments. But some agencies have
confronted all three, sometimes in the same
rulemaking. In offering the best practices that
follow, the Conference recognizes that agency
needs and resources will vary. For this
reason, agencies should tailor the best
practices in this Recommendation to their
particular rulemaking programs and the types
of comments they receive or expect to
receive.
Recommendation
Managing Mass Comments
1. The General Services Administration’s
(GSA) eRulemaking Program should provide
a common de-duplication tool for agencies to
use, although GSA should allow agencies to
modify the de-duplication tool to fit their
needs or to use another tool, as appropriate.
When agencies find it helpful to use other
software tools to perform de-duplication or
extract information from a large number of
comments, they should use reliable and
appropriate software. Such software should
provide agencies with enhanced search
options to identify the unique content of
comments, such as the technologies used by
commercial legal databases like Westlaw or
LexisNexis.
2. To enable easier public navigation
through online rulemaking dockets, agencies
may welcome any person or entity organizing
mass comments to submit comments with
multiple signatures rather than separate
identical or substantively identical
comments.
3. Agencies may wish to consider
alternative approaches to managing the
display of comments online, such as by
posting only a single representative example
of identical comments in the online
rulemaking docket or by breaking out and
posting only non-identical content in the
docket, taking into consideration the
importance to members of the public to be
able to verify that their comments were
received and placed in the agency record.
When agencies decide not to display all
identical comments online, they should
provide publicly available explanations of
their actions and the criteria for verifying the
receipt of individual comments or locating
identical comments in the docket and for
deciding what comments to display.
4. When an agency decides not to include
all identical or substantively identical
comments in its online rulemaking docket to
improve the navigability of the docket, it
should ensure that any reported total number
of comments (such as in Regulations.gov or
in the preambles to final rules) includes the
number of identical or substantively identical
comments. If resources permit, agencies
should separately report the total number of
identical or substantively identical comments
they receive. Agencies should also consider
providing an opportunity for interested
members of the public to obtain or access all
comments received.
Managing Computer-Generated Comments
5. To the extent feasible, agencies should
flag any comments they have identified as
computer-generated or display or store them
separately from other comments. If an agency
flags a comment as computer-generated, or
displays or stores it separately from the
online rulemaking docket, the agency should
note its action in the docket. The agency may
also choose to notify the submitter directly if
doing so does not violate any relevant policy
prohibiting direct contact with senders of
‘‘spam’’ or similar communications.
6. Agencies that operate their own
commenting platforms should consider using
technology that verifies that a commenter is
a human being, such as reCAPTCHA or
another similar identity proofing tool. The
eRulemaking Program should continue to
retain this functionality.
7. When publishing a final rule, agencies
should note any comments on which they
rely that they know are computer-generated
and state whether they removed from the
docket any comments they identified as
computer-generated.
Managing Falsely Attributed Comments
8. Agencies should provide opportunities
(including after the comment deadline) for
individuals whose names or identifying
information have been attached to comments
they did not submit to identify such
comments and to request that the comment
be anonymized or removed from the online
rulemaking docket.
9. If an agency flags a comment as falsely
attributed or removes such a comment from
the online rulemaking docket, it should note
its action in the docket. Agencies may also
choose to notify the purported submitter
directly if doing so does not violate any
agency policy.
10. If an agency relies on a comment it
knows is falsely attributed, it should include
an anonymized version of that comment in
its online rulemaking docket. When
publishing a final rule, agencies should note
any comments on which they rely that are
falsely attributed and should state whether
they removed from the docket any falsely
attributed comments.
Enhancing Agency Transparency in the
Comment Process
11. Agencies should inform the public
about their policies concerning the posting
and use of mass, computer-generated, and
falsely attributed comments. These policies
should take into account the meaningfulness
of the public’s opportunity to participate in
the rulemaking process and should balance
goals such as user-friendliness, transparency,
and informational completeness. In their
policies, agencies may provide for exceptions
in appropriate circumstances.
12. Agencies and relevant coordinating
bodies (such as GSA’s eRulemaking Program,
the Office of Information and Regulatory
Affairs, and any other governmental bodies
that address common rulemaking issues)
should consider providing publicly available
materials that explain to prospective
commenters what types of responses they
anticipate would be most useful, while also
welcoming any other comments that
members of the public wish to submit and
remaining open to learning from them. These
materials could be presented in various
formats—such as videos or FAQs—to reach
different audiences. These materials may also
include statements within the notice of
proposed rulemaking for a given agency rule
or on agencies’ websites to explain the
purpose of the comment process and explain
that agencies seriously consider any relevant
public comment from a person or
organization.
13. To encourage the most relevant
submissions, agencies that have specific
questions or are aware of specific information
that may be useful should identify those
questions or such information in their notices
of proposed rulemaking.
Additional Opportunities for Public
Participation
14. Agencies and relevant coordinating
bodies should stay abreast of new
technologies for facilitating informative
public participation in rulemakings. These
technologies may help agencies to process
mass comments or identify and process
computer-generated and falsely attributed
comments. In addition, new technologies
may offer new opportunities to engage the
public, both as part of or as a supplement to
the notice-and-comment process. Such
opportunities may help ensure that agencies
receive input from communities that may not
otherwise have an opportunity to participate
in the conventional comment process.
Coordination and Training
15. Agencies should work closely with
relevant coordinating bodies to improve
existing technologies and develop new
technologies to address issues associated
with mass, computer-generated, and falsely
attributed comments. Agencies and relevant
coordinating bodies should share best
practices and relevant innovations for
addressing challenges related to these
comments.
16. Agencies should develop and offer
opportunities for ongoing training and staff
development to respond to the rapidly
evolving nature of technologies related to
mass, computer-generated, and falsely
attributed comments and to public
participation more generally.
17. As authorized by 5 U.S.C. 594(2), the
Conference’s Office of the Chairman should
provide for the ‘‘interchange among
administrative agencies of information
potentially useful in improving’’ agency
comment processing systems. The subjects of
interchange might include technological and
procedural innovations, common
management challenges, and legal concerns
under the Administrative Procedure Act and
other relevant statutes.
Separate Statement for Administrative
Conference Recommendation 2021–1 by
Senior Fellow Randolph J. May
Filed June 18, 2021
I attended several of the Committee
meetings that considered the preparation of
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this Recommendation. So, I have a good
sense of the hard work that went into the
preparation of the Recommendation by the
Consultants, the Rulemaking Committee
Chair Cary Coglianese, the Committee
members, and the ACUS staff, and I am
grateful for their dedication.
I support adoption of the Recommendation
in the context of the express limitation of the
scope of the project as stated: ‘‘This
Recommendation does not address what role
particular types of comments should play in
agency decision making or what
consideration, if any, agencies should give to
the number of comments in support of a
particular position.’’
I wish to associate myself generally with
the Comment of Senior Fellow Richard
Pierce, dated May 25, 2021, especially his
concern that the ACUS Recommendation not
be misconstrued to foster ‘‘the widespread
but mistaken public belief that notice and
comment rulemaking can and should be
considered a plebiscite in which the number
of comments filed for or against a proposed
rule is an accurate measure of public opinion
that should influence the agency’s decision
whether to adopt the proposed rule.’’
I have submitted comments and/or reply
comments in every ‘‘net neutrality’’
proceeding, however denominated, the
Federal Communications Commission has
conducted over the last fifteen years—and,
yes, the back-and-forth battle over various
‘‘net neutrality’’ proposals has been going on
that long and there have been at least a dozen
comment cycles. However, especially in the
last two ‘‘net neutrality’’ rulemaking cycles,
in 2014–2015 and 2017, there has been a
major escalation—you could call it exercising
the ‘‘nuclear option’’—in the effort, by both
opposing sides, to generate as many mass,
computer-generated form comments as
possible. By ‘‘form comments’’ I mean
comments that concededly contain little or
no information beyond cursorily stating a
‘‘pro’’ or ‘‘con’’ position.
The startling results of going nuclear, in
terms of generating the sheer number of
mass, computer-generated form comments in
the latest ‘‘net neutrality’’ round are now
well-known. The phenomenon has been the
subject of federal and state studies cited in
the Recommendation’s Preamble, with some
of the most significant details cited in
Professor Pierce’s separate statement. Aside
from any other concerns, I can personally
testify that the deluge of approximately 22
million mass, computer-generated form
comments often overwhelmed the FCC’s
ability to keep its electronic filing system
operating properly and often rendered the
ability to search for comments that might
possibly contain relevant data and
information well-nigh impossible.
And, of course, the huge costs expended by
private parties engaging in the effort that led
to the submission of approximately 22
million mass, computer-generated form
comments (including the 18 million ‘‘fake’’
comments) were enormous, not to mention
the direct and indirect costs imposed on the
government merely to compile, process, and
review the comments.
It is blinking reality not to recognize that
the pro- and con- net neutrality interests
responsible for generating 22 million
comments assumed, in some significant way,
that the outcome of the rulemaking would be
impacted by which side ‘‘won’’ the comment
battle. In other words, it must have been
assumed that, in some meaningful sense, the
rulemaking would be decided on the basis of
a plebiscite, ‘‘counting comments,’’ not on
the basis of the quality of the data, evidence,
and arguments submitted.
So, while I accept the constraints imposed
by the parameters of this Recommendation—
which, on its own terms, contains useful
guidance to assist agencies—I hope that,
going forward, ACUS will initiate a project
that considers the appropriateness of curbing
the submission of mass, computer-generated
form comments, and, if so, how best to
accomplish this. Certainly public education,
including by government officials, and
especially the pertinent agency officials,
regarding the objectives of the rulemaking
process in general, and specific rulemakings
in particular, can play an important role.
I wish to make clear that I recognize the
value of widespread participation by
‘‘interested persons,’’ as the Administrative
Procedure Act puts it, in the rulemaking
process, not only because of the value of the
evidence put on the record through such
participation, but because of the instrumental
value bestowed upon interested persons by
the opportunity to participate in government
decision-making processes that affect them.
With due deliberation, with recognition of
the need to exercise care in drawing relevant
distinctions among various types of
rulemaking proceedings and their objectives,
there ought to be a proper way to discourage
the type of ‘‘comment war’’ that occurred in
the two most recent FCC net neutrality
proceedings, while, at the same time,
encouraging the type of widespread public
participation that is most helpful to agencies
in promulgating sound public policies.
Separate Statement for Administrative
Conference Recommendation 2021–1 by
Senior Fellow Nina A. Mendelson
Filed June 27, 2021 (This Is an Abbreviated
Version of a Statement That Is Available on
the ACUS Website.)
This Recommendation, the product of
much hard work, will help guide agencies
managing mass comments and addressing
falsely attributed and computer-generated
comments. But these rulemaking-related
challenges raise very different concerns.
Comments from ordinary individuals,
whatever their volume, and whether they
supply situated knowledge or views, can be
relevant, useful, and even important to many
rulemakings. The Recommendation correctly
does not imply otherwise. The Conference
should address the proper agency response to
such comments separately, and soon.
First, public comment’s function
encompasses more than the purely
‘‘technical,’’ whether that is supplying data
or critiquing an agency’s economic analysis.
For some statutory issues, certainly, public
comments transmitting views are less
relevant. Under the Endangered Species Act,
for example, an agency determining whether
an animal is endangered must assess its
habitat and likelihood of continued
existence. Public affection for a species is not
directly relevant.
But agencies address numerous issues that,
by statute, extend far beyond technocratic
questions, encompassing value-laden issues.
An agency deciding what best serves public-
regarding statutory goals must balance all
such considerations.
Nonexclusive examples relevant to agency
statutory mandates include:
The importance of nearby accessible
bathrooms to the dignity of wheelchair users,
at issue in a 2010 Americans with Disabilities
Act regulation.
Weighing potential public resource uses.
For multiple-use public lands, the Bureau of
Land Management must, by regulation,
balance recreation and ‘‘scenic, scientific and
historical values’’ with resource extraction
uses, including timbering and mining.
Potential public resistance to an action,
such as the Coast Guard’s ultimately
abandoned decision creating live-fire zones
in the Great Lakes for weapons practice in
the early 2000s. Had the agency seriously
sought out public comment, it would have
detected substantial public resistance to this
action, which, without the benefit of
participation, the agency considered justified
and minimally risky.
Public resistance to a possible mandate
as unduly paternalistic, burdensome, or
exclusionary, whether ignition interlock or a
vaccine passport requirement. Justice
Rehnquist identified this issue in Motor
Vehicles Mfg. Ass’n v. State Farm Mutual
Auto Ins., 463 U.S. 29 (1983). Though Justice
Rehnquist’s dissent linked the issue to
presidential elections, he underscored its
relevance to rulemaking.
Environmental justice/quality of life
matters. In a 2020 rule implementing the
National Environmental Policy Act, the
Council on Environmental Quality decided
that an agency need no longer assess a
proposed action’s cumulative impacts in its
environmental impact analysis. This decision
will especially impact low-income
communities and communities of color,
including Southwest Detroit, where multiple
polluting sources adjoin residential
neighborhoods. Whether to require
cumulative impacts analysis is not a
technical issue. It is a policy decision
whether community environmental and
quality of life concerns are important enough
to justify lengthier environmental analyses.
The comment process enables communities
to express directly the importance of these
issues.
Rulemaking is certainly not a plebiscite.
Besides representativeness concerns, that is
mainly because statutes typically require
agencies to consider multiple factors, not
only public views. But ordinary people’s
views and preferences are nonetheless
relevant and thus appropriately
communicated to the agency. The text of 5
U.S.C. 553(c) is express here: ‘‘interested
persons’’ are entitled to submit ‘‘data, views,
or arguments.’’
Second, the identity of individual
commenters may provide critical context.
That a comment on a proposed ADA
regulation’s importance is from a wheelchair
user should matter. The same is true for
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religious group members describing potential
interference with their practices, residents
near a pipeline addressing safety or public
notice requirements, or Native American
tribal members speaking to spiritual values
and historical significance of public lands.
Third, a meaningfully open comment
process supports broader public engagement
by otherwise underrepresented individuals
and communities, whether because of race,
ethnicity, gender identity, or something else.
Studies consistently show that industry
groups and regulated entities, with
disproportionate resources, access to agency
meetings, and ability to exert political
pressure, punch above their weight in the
comment process. Suggesting that agencies
can appropriately ignore comments from
individuals would simply reinforce this
disparate influence. It would also undercut
the Conference’s position in
Recommendation 2018–7, Public
Engagement in Rulemaking, that agencies
should act to broaden and enhance public
participation.
Moreover, while groups can support
participation, agencies should not assume
that group action sufficiently conveys
individual views. Many individual
interests—even important ones—are
underrepresented. With respect to employees
such as truck drivers, for example, unions
represent only 10% of U.S. wage workers.
Where groups do support individual
comment submission, their involvement
should not be understood to taint
participation. Well-funded regulated entities
typically hire attorneys to draft their
comments. We nonetheless attribute those
views to the commenters. We should treat
individual comments similarly even if they
incorporate group-suggested language.
Fourth, although mass comments in certain
rulemakings may have encouraged computer-
generated and falsely attributed comments,
agencies should directly tackle these latter
problems. And while comments from
individuals vary in usefulness and
sophistication, that is true of all comments.
In short, agencies should respond to large
volumes of individual comments not by
attempting to deter them but instead,
following Recommendation paragraphs 11–
13, by providing clear, visible public
information on how to draft a valuable
comment.
Finally, the most difficult issue is how,
exactly, agencies should respond to
individual comments that convey views as
well as, or instead of, specific information
regarding a rule’s need or impacts. Large
comment volumes, most pragmatically, may
signal an agency regarding the rule’s political
context, including potential congressional
concern. Further, large comment quantities
can alert agencies to underappreciated or
undercommunicated issues or reveal
potential public resistance. Such comments
might constitute a yellow flag for an agency
to investigate, including by reaching out to
particular communities to assess the basis
and intensity of their views.
At a minimum, an agency should
acknowledge and answer such comments,
even briefly. The agency might judge that
particular public views are outweighed by
other considerations. But an answer will
communicate, importantly, that individuals
have been heard. The Federal
Communication Commission’s responses to
large comment volumes in recent net
neutrality proceedings are reasonable
examples.
I urge the Conference to consider these
issues soon and provide guidance to
rulemaking agencies.
Separate Statement for Administrative
Conference Recommendation 2021–1 by
Senior Fellow Richard J. Pierce, Jr.
Filed June 29, 2021 (This Is an Abbreviated
Version of a Statement That Is Available on
the ACUS Website.)
These three phenomena and the many
problems that they create have only one
source—the widespread but mistaken public
belief that notice and comment rulemaking
can and should be considered a plebiscite in
which the number of comments filed for or
against a proposed rule is an accurate
measure of public opinion that should
influence the agency’s decision whether to
adopt the proposed rule. I believe that ACUS
can and should assist agencies in explaining
to the public why the notice and comment
process is not, and cannot be, a plebiscite,
and why the number of comments filed in
support of, or in opposition to, a proposed
rule should not, and cannot, be a factor in an
agency’s decision making process.
The Notice and Comment Process Allows
Agencies To Issue Rules That Are Based on
Evidence
The notice and comment process is an
extraordinarily valuable tool that allows
agencies to issue rules that are based on
evidence. It begins with the issuance of a
notice of proposed rulemaking in which an
agency describes a problem and proposes one
or more ways in which the agency can
address the problem by issuing a rule.
The agency then solicits comments from
interested members of the public. The
comments that assist the agency in evaluating
its proposed rule are rich in data and
analysis. Some support the agency’s views
with additional evidence, while others
purport to undermine the evidentiary basis
for the proposed rule. The agency then makes
a decision whether to adopt the proposed
rule or some variant of the proposed rule in
light of its evaluation of all of the evidence
in the record, including both the studies that
the agency relied on in its notice and the data
and analysis in the comments submitted in
response to the notice. Courts require
agencies to address all of the issues that were
raised in all well-supported substantive
comments and to explain adequately why the
agency issued, or declined to issue, the rule
it proposed or some variation of that rule in
light of all of the evidence the agency had
before it. If the agency fails to fulfill that
duty, the court rejects the rule as arbitrary
and capricious.
ACUS has long supported efforts to assist
the intended beneficiaries of rules in their
efforts to overcome the obstacles to their
ability to participate effectively in
rulemakings. ACUS should continue to help
members of the public file comments that
assist an agency in crafting a rule that
addresses a problem effectively.
Mass Comments Are Not Helpful to Agency
Decision Making and Create Major Problems
Sometimes the companies and advocacy
organizations that support or oppose a
proposed rule organize campaigns in which
they induce members of the public to file
purely conclusory comments in which they
merely state their support for or opposition
to a proposed rule. The proponents or
opponents then argue that the large number
of such comments prove that there is strong
public support for the position taken in those
comments. Comments of that type have no
value in an agency’s decision-making
process. Every scholar who has studied the
issue has concluded that the number of
comments filed for or against a proposed rule
is not, and cannot be, a reliable measure of
the public’s views with respect to the
proposed rule.
Mass comment campaigns create major
problems in the notice and comment process.
Many of those problems were evident in the
2017 net neutrality rulemaking. The New
York Attorney General documented the
results of the well-orchestrated mass
comment campaign in that rulemaking in the
report that she issued on May 6, 2021. She
labeled as ‘‘fake’’ 18 million of the 22 million
comments that were filed in the docket. The
number of ‘‘fake’’ comments filed in support
of net neutrality were approximately equal to
the number of ‘‘fake’’ comments filed by the
opponents of net neutrality. One college
student filed 7.7 million comments in
support of net neutrality, while ISPs paid
consulting firms 8.2 million dollars to
generate comments against net neutrality.
Two things are easy to predict if the public
continues to believe that the number of
comments for or against a proposed rule is
an important factor in an agency’s decision-
making process. First, the next net neutrality
rulemaking will elicit even more millions of
comments as the warring parties on both
sides escalate their efforts to maximize the
‘‘vote’’ on each side of the issue. Second, the
firms that have a lot of money at stake in
other rulemakings will begin to replicate the
behavior of the firms that are on each side
of the net neutrality debate. The results will
be massive, unmanageable dockets in which
the ‘‘noise’’ created by the mass comments
will make it increasingly difficult for
agencies and reviewing courts to focus their
attention on the substantive comments that
provide the evidence that should be the basis
for the agency’s decision.
ACUS Should Initiate Another Project To
Address Mass Comments in Rulemakings
I think that ACUS should initiate a new
project in which it decides whether to
discourage mass comments, computer-
generated comments and fraudulent
comments and, if so, how best to accomplish
that. I believe that ACUS can and should
discourage these practices by, for instance,
encouraging agencies to assist in educating
the public about the types of comments that
can assist agencies in making evidence-based
decisions and the types of comments that are
not helpful to agencies and that instead
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1
See Exec. Order No. 12866, 58 FR 51735, 51739–
51740 (Sept. 30, 1993); see also Joseph E. Aldy,
Learning from Experience: An Assessment of the
Retrospective Reviews of Agency Rules and the
Evidence for Improving the Design and
Implementation of Regulatory Policy 27 (Nov. 17,
2014) (report to the Admin. Conf. of the U.S.) (‘‘The
systematic review of existing regulations across the
executive branch dates back, in one form or
another, to the Carter Administration.’’).
2
See Admin. Conf. of the U.S., Recommendation
2017–6, Learning from Regulatory Experience, 82
FR 61738 (Dec. 29, 2017); Admin. Conf. of the U.S.,
Recommendation 2014–5, Retrospective Review of
Agency Rules, 79 FR 75114 (Dec. 17, 2014); Admin.
Conf. of the U.S., Recommendation 95–3, Review of
Existing Agency Regulations, 60 FR 43108 (Aug. 18,
1995).
3
Recommendation 95–3, supra note 2.
4
42 U.S.C. 7309(d)(1).
5
49 U.S.C. 30166(m)(5).
6
See Lori S. Bennear & Jonathan B. Wiener,
Periodic Review of Agency Regulation 33–38 (June
7, 2021) (report to the Admin. Conf. of the U.S.)
(discussing periodic retrospective review plans
issued by several agencies, including the
Department of Transportation, the Securities and
Exchange Commission, and the Federal Emergency
Management Agency).
7
An ancillary impact is an ‘‘impact of the rule
that is typically unrelated or secondary to the
statutory purpose of the rulemaking . . . .’’ Off. of
Mgmt. & Budget, Exec. Off. of the President,
Circular A–4, Regulatory Analysis 26 (2003).
8
A distributional impact is an ‘‘impact of a
regulatory action across the population and
economy, divided up in various ways (e.g., by
income groups, race, sex, industrial sector,
geography).’’ Id. at 14.
9
Id. at 8.
10
See, e.g., Recommendation 2014–5, supra note
2, ¶5 (providing a list of factors for agencies to
consider when prioritizing some regulations as
important).
11
See, e.g., Admin. Conf. of the U.S.,
Recommendation 2018–7, Public Engagement in
Rulemaking, 84 FR 2146 (Feb. 6, 2019); Admin.
Conf. of the U.S., Recommendation 2017–2,
Negotiated Rulemaking and Other Options for
Public Engagement, 82 FR 31040 (July 5, 2017).
12
See supra note 2.
13
See Bennear & Wiener, supra note 6.
14
5 U.S.C. 312(a)–(b); Off. of Mgmt. & Budget,
Exec. Off. of the President, Memorandum M–19–23,
Phase 1 Implementation of the Foundations for
Evidence-Based Policymaking Act of 2018: Learning
Agendas, Personnel, and Planning Guidance (2019);
Off. of Mgmt. & Budget, Exec. Off. of the President,
Memorandum M–20–12, Phase 4 Implementation of
the Foundations for Evidence-Based Policymaking
Act of 2018: Program Evaluation Standards and
Practices (2020).
create a variety of problems in managing the
notice and comment process.
Administrative Conference Recommendation
2021–2
Periodic Retrospective Review
Adopted June 17, 2021
Retrospective review is the process by
which agencies assess existing regulations
and decide whether they need to be revisited.
Consistent with longstanding executive-
branch policy,
1
the Administrative
Conference has endorsed the practice of
retrospective review of agency regulations
2
and has urged agencies to consider
conducting retrospective review under a
specific timeframe, which is often known as
‘‘periodic retrospective review.’’
3
Agencies
may conduct periodic retrospective review in
different ways. One common way is for an
agency to undertake review of some or all of
its regulations on a pre-set schedule (e.g.,
every ten years). Another way is for the
agency to set a one-time date for reviewing
a regulation and, when that review is
performed, set a new date for the next
review, and so on. This latter method enables
the agency to adjust the frequency of a
regulation’s periodic retrospective review in
light of experience.
Periodic retrospective review may occur
because a statute requires it or because an
agency chooses to do it on its own initiative.
Statutes requiring periodic retrospective
review may specify a time interval over
which review should be conducted or leave
the frequency up to the agency. The Clean
Air Act, for example, requires the
Environmental Protection Agency to review
certain ambient air quality regulations every
five years.
4
On the other hand, the
Transportation Recall Enhancement,
Accountability, and Documentation (TREAD)
Act provides that the Department of
Transportation must ‘‘specify procedures for
the periodic review and update’’ of its rule
on early warning reporting requirements for
manufacturers of motor vehicles without
specifying how often that review must
occur.
5
Even when periodic retrospective
review is not mandated by statute, agencies
have sometimes voluntarily implemented
periodic retrospective review programs.
6
Periodic retrospective review can enhance
the quality of agencies’ regulations by
helping agencies determine whether
regulations continue to meet their statutory
objectives. Such review can also help
agencies evaluate regulatory performance
(e.g., the benefits, costs, ancillary impacts,
7
and distributional impacts
8
of regulations),
assess whether and how a regulation should
be revised in a new rulemaking, determine
the accuracy of the assessments they made
before issuing their regulations (including
assessments regarding forecasts of benefits,
costs, ancillary impacts, and distributional
impacts), and identify ways to improve the
accuracy of the underlying assessment
methodologies.
9
Agencies that have
incorporated standards by reference in their
regulations also can—and, indeed, should—
arrange to be notified by the adopting
standards organizations of relevant revisions
to those standards and consider adopting
those revisions, thus ensuring that
regulations remain current.
But there can also be drawbacks associated
with periodic retrospective review. Some
regulations may not be strong candidates for
such review because the need for the
regulations is unlikely to change and the
benefits associated with periodically
revisiting them are likely to be small. There
are also costs associated with collecting and
analyzing data, and time spent reviewing
existing regulations may come at the cost of
other important regulatory activities. For this
reason, agencies might reasonably decide to
limit periodic retrospective review to certain
types of regulations, such as important
regulations that affect large numbers of
people or that have particularly pronounced
effects on specific groups.
10
Periodic
retrospective review can also generate
uncertainty regarding whether a regulation
will be retained or modified. Agencies,
therefore, should tailor their periodic
retrospective review plans carefully to
account for these drawbacks.
Mindful of both the value of periodic
retrospective review and the tradeoffs
associated with it, this Recommendation
offers practical suggestions to agencies about
how to establish periodic retrospective
review plans. It does so by, among other
things, identifying the types of regulations
that lend themselves well to periodic
retrospective review, proposing factors for
agencies to consider in deciding the optimal
review frequency when they have such
discretion, and identifying different models
for staffing periodic retrospective review. In
doing so, it builds upon the Conference’s
longstanding endorsement of public
participation in all aspects of the rulemaking
process,
11
including retrospective review,
12
by encouraging agencies to seek public input
both to help identify the types of regulations
that lend themselves well to periodic
retrospective review and to inform that
review.
This Recommendation also recognizes the
important role that the Office of Management
and Budget (OMB) plays in agencies’
periodic retrospective review efforts as well
as the significance of the Foundations for
Evidence-Based Policymaking Act (the
Evidence Act) and associated OMB-issued
guidance.
13
It encourages agencies to work
with OMB to help facilitate data collection
relevant to reviewing regulations. It also calls
attention to the Evidence Act’s requirements
that certain agencies create Learning
Agendas, which identify questions for
agencies to address regarding their regulatory
missions, and Annual Evaluation Plans,
which lay out specific measures agencies will
take to answer those questions.
14
Consistent
with the Evidence Act, the Recommendation
provides that agencies can incorporate
periodic retrospective review in their
Learning Agendas and Annual Evaluation
Plans by undertaking and documenting
certain activities as they carry out their
review.
In issuing this Recommendation, the
Conference recognizes that agencies will
need to consider available resources in
deciding whether a periodic retrospective
review program should be implemented and,
if so, what form it should take. The
recommendations offered below are subject
to that qualification.
Recommendation
Selecting the Types of Regulations to Subject
to Periodic Retrospective Review and the
Frequency of Review
1. Agencies should identify any specific
regulations or categories of regulations that
are subject to statutory periodic retrospective
review requirements.
2. For regulations not subject to statutory
periodic retrospective review requirements,
agencies should establish a periodic
retrospective review plan. In deciding which
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regulations, if any, should be subject to such
a review plan, agencies should consider the
public benefits of periodic retrospective
review, including potential gains from
learning more about regulatory performance,
and the costs, including the administrative
burden associated with performing the
review and any disruptions to reliance
interests and investment-backed
expectations. When agencies adopt new
regulations for which plans regarding
periodic retrospective review have not been
established, agencies should, as part of the
process of developing such regulations,
decide whether those regulations should be
subject to periodic retrospective review.
3. When agencies plan for periodic
retrospective review, they should not limit
themselves to reviewing a specific final
regulation when a review of a larger
regulatory program would be more
constructive.
4. When agencies decide to subject
regulations to periodic retrospective review,
they should decide whether to subject some
or all of the regulations to a pre-set schedule
of review or whether, for some or all of the
regulations, it is preferable to set only an
initial date for review and decide, as part of
that review, when to undertake the next
review. In selecting the frequency of review
or setting the first or any subsequent date of
review, agencies should consider, among
others, the following factors:
a. The pace of change of the technology,
science, sector of the economy, or part of
society affected by the regulation. A higher
pace of change may warrant more frequent
review;
b. The degree of uncertainty about the
accuracy of the initial estimates of regulatory
benefits, costs, ancillary impacts, and
distributional impacts. Greater uncertainty
may warrant more frequent review;
c. Changes in the statutory framework
under which the regulation was issued. More
changes may warrant more frequent review;
d. Comments, complaints, requests for
waivers or exemptions, petitions for the
modification or repeal of existing rules, or
suggestions received from interested persons.
The level of public interest or amount of new
evidence regarding changing the regulation
may warrant more frequent review;
e. The difficulties arising from
implementation of the regulation, as
demonstrated by poor compliance rates,
requests for waivers or exemptions, the
amount of clarifying guidance issued,
remands from the courts, or other factors.
Greater difficulties may warrant more
frequent review;
f. The administrative burden in conducting
periodic retrospective review. Larger
burdens, such as greater staff time, involved
in reviewing the regulation may warrant less
frequent review; and
g. Reliance interests and investment-
backed expectations connected with the
regulation. Steps taken by persons in reliance
on a particular regulation or with the
expectation that it will remain unaltered may
favor less frequent review.
5. In making the decisions outlined in
Paragraphs 1 through 4, public input can
help agencies identify which regulations
should be subject to periodic retrospective
review and with what frequency. Agencies
should consider soliciting public input by
means such as convening meetings of
interested persons, engaging in targeted
outreach efforts to historically
underrepresented or under-resourced groups
that may be affected by the agencies’
regulations, and posting requests for
information.
6. Agencies should publicly disclose their
periodic retrospective review plans, which
should cover issues such as which
regulations are subject to periodic
retrospective review, how frequently those
regulations are reviewed, what the review
entails, and whether the review is conducted
pursuant to a legal requirement or the
agencies’ own initiative. Agencies should
include these notifications on their websites
and consider publishing them in the Federal
Register, even if the law does not require it.
7. With respect to regulations subject to a
pre-set schedule of periodic retrospective
review, agencies should periodically reassess
the regulations that should be subject to
periodic retrospective review and the optimal
frequency of review.
Publishing Results of Periodic Retrospective
Review and Soliciting Public Feedback on
Regulations Subject to Review
8. Agencies should publish in a prominent,
easy-to-find place on the portion of their
websites dealing with rulemaking matters, a
document or set of documents explaining
how they conducted a given periodic
retrospective review, what information they
considered, and what public outreach they
undertook. They should also include this
document or set of documents on
Regulations.gov. To the extent appropriate,
agencies should organize the data in the
document or set of documents in ways that
allow private parties to re-create the agencies’
work and run additional analyses concerning
existing regulations’ effectiveness. When
feasible, agencies should also explain in
plain language the significance of their data
and how they used the data to shape their
review.
9. Agencies should seek input from
relevant parties when conducting periodic
retrospective review. Possible outreach
methods include convening meetings of
interested persons; engaging in targeted
outreach efforts, such as proactively bringing
the regulation to the attention of historically
underrepresented or under-resourced groups;
and posting requests for information
regarding the regulation. Agencies should
integrate relevant information from the
public into their periodic retrospective
reviews.
10. Agencies should work with the Office
of Management and Budget (OMB) to
properly invoke any flexibilities within the
Paperwork Reduction Act that would enable
them to gather relevant data expeditiously.
Ensuring Adequate Resources and Staffing
11. Agencies should decide how best to
structure their staffing of periodic
retrospective reviews to foster a culture of
retrospective review and ongoing learning.
Below are examples of some staffing models,
which may be used in tandem or separately:
a. Assigning the same staff the same
regulation, or category of regulation, each
time it is reviewed. This approach allows
staff to gain expertise in a particular kind of
regulation, thereby potentially improving the
efficiency of the review;
b. Assigning different staff the same
regulation, or category of regulation, each
time it is reviewed. This approach promotes
objectivity by allowing differing viewpoints
to enter into the analysis;
c. Engaging or cooperating with agency or
non-agency subject matter experts to review
regulations; and
d. Pairing subject matter experts, such as
engineers, economists, sociologists, and
scientists, with other agency employees in
conducting the review. This approach
maximizes the likelihood that both
substantive considerations, such as the net
benefits and distributional and ancillary
impacts of the regulation, and procedural
considerations, such as whether the
regulation conflicts with other regulations or
complies with plain language requirements,
will enter into the review.
Using Evidence Act Processes
12. Consistent with the Evidence Act,
agencies should incorporate periodic
retrospective reviews in their Learning
Agendas and Annual Evaluation Plans. In
doing so, agencies should ensure that they
include:
a. The precise questions they intend to
answer using periodic retrospective review.
Those questions should include how
frequently particular regulations should be
reviewed and should otherwise be keyed to
the factors set forth in Section 5 of Executive
Order 12866 for periodic retrospective review
of existing significant regulations;
b. The information needed to adequately
review the regulations subject to the periodic
retrospective reviews. Agencies should state
whether they will undertake new information
collection requests or use existing
information to conduct the reviews;
c. The methods the agencies will use in
conducting their reviews, which should
comport with the federal program evaluation
standards set forth by OMB;
d. The anticipated challenges the agencies
anticipate encountering during the reviews, if
any, such as obstacles to collecting relevant
data; and
e. The ways the agencies will use the
results of the reviews to inform
policymaking.
Interagency Coordination
13. Agencies that are responsible for
coordinating activities among other agencies,
such as the Office of Information and
Regulatory Affairs, should, as feasible,
regularly convene agencies to identify and
share best practices on periodic retrospective
review. These agencies should address
questions such as how to improve timeliness
and analytic quality of review and the
optimal frequency of discretionary review.
14. To promote a coherent regulatory
scheme, agencies should coordinate their
periodic retrospective reviews with other
agencies that have issued related regulations.
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1
See Christopher Carrigan & Stuart Shapiro,
Developing Regulatory Alternatives Through Early
Input 8 (June 4, 2021) (report to the Admin. Conf.
of the U.S.).
2
42 U.S.C. 4332(C)(iii) (requiring agencies to
consider alternatives in environmental impact
statements under NEPA).
3
5 U.S.C. 603(c) (requiring agencies to consider
alternatives in regulatory flexibility analyses
conducted under the RFA, as amended by the Small
Business Regulatory Enforcement Fairness Act).
4
Exec. Order No. 12866, §1, 58 FR 51735, 51735–
36 (Sept. 30, 1993).
5
See Admin. Conf. of the U.S., Recommendation
2014–5, Retrospective Review of Agency Rules, ¶6,
79 FR 75114, 75116–17 (Dec. 17, 2014).
6
See Admin. Conf. of the U.S., Recommendation
2018–7, Public Engagement in Rulemaking, ¶5, 84
FR 2146, 2148 (Feb. 6, 2019); see also, e.g., Admin.
Conf. of the U.S., Recommendation 2017–6,
Learning from Regulatory Experience, 82 FR 61728
(Dec. 29, 2017); Admin. Conf. of the U.S.,
Recommendation 2017–2, Negotiated Rulemaking
and Other Options for Public Engagement, 82 FR
31040 (July 5, 2017); Admin. Conf. of the U.S.,
Recommendation 85–2, Agency Procedures for
Performing Regulatory Analysis of Rules, 50 FR
28364 (July 12, 1985); Michael Sant’Ambrogio &
Glen Staszewski, Public Engagement with Agency
Rulemaking 62–77 (Nov. 19, 2018) (report to the
Admin. Conf. of the U.S.).
7
See Exec. Order No. 12866, supra note 4, §4(c).
8
A distributional impact is an ‘‘impact of a
regulatory action across the population and
economy, divided up in various ways (e.g., income
groups, race, sex, industrial sector, geography).’’
9
See Exec. Order. No. 13985, 86 FR 7009 (Jan. 25,
2021) (directing the Office of Management and
Budget, in partnership with agencies, to ensure that
agency policies and actions are equitable with
respect to race, ethnicity, religion, income,
geography, gender identity, sexual orientation, and
disability); Memorandum on Modernizing
Regulatory Review, 86 FR 7223 (Jan. 26, 2021)
(requiring the Office of Management and Budget to
produce recommendations regarding improving
regulatory review that, among other things,
‘‘propose procedures that take into account the
distributional consequences of regulations . . . to
ensure that regulatory initiatives appropriately
benefit and do not inappropriately burden
disadvantaged, vulnerable, or marginalized
communities’’).
10
5 U.S.C. 609.
11
10 CFR 430, subpart C, app. A.
12
See, e.g., Federal Advisory Committee Act, 5
U.S.C. app. 2 1–16.
Administrative Conference Recommendation
2021–3
Early Input on Regulatory Alternatives
Adopted June 17, 2021
Agency development of and outreach
concerning regulatory alternatives prior to
issuing a notice of proposed rulemaking
(NPRM) on important issues often results in
a better-informed notice-and-comment
process, facilitates decision making, and
improves rules. In this context, the term
‘‘regulatory alternative’’ is used broadly and
could mean, among other things, a different
method of regulating, a different level of
stringency in the rule, or not regulating at
all.
1
Several statutes and executive orders,
including the National Environmental Policy
Act (NEPA),
2
the Regulatory Flexibility Act
(RFA),
3
and Executive Order 12866,
4
require
federal agencies to identify and consider
alternative regulatory approaches before
proposing certain new rules. This
Recommendation suggests best practices for
soliciting early input during the process of
developing regulatory alternatives, whether
or not it is required by law or executive
order, before publishing an NPRM. It also
provides best practices for publicizing the
alternatives considered when agencies are
promulgating important rules.
5
The Administrative Conference has
previously recommended that agencies
engage with the public throughout the
rulemaking process, including by seeking
input while agencies are still in the early
stages of shaping a rule.
6
Agencies might
conduct this outreach while developing their
regulatory priorities, including in the
proposed regulatory plans agencies are
required to prepare under Executive Order
12866.
7
Seeking early input before issuing a
notice of proposed rulemaking can help
agencies identify alternatives and learn more
about the benefits, costs, distributional
impacts,
8
and technical feasibility of
alternatives to the proposal they are
considering. Doing so is particularly
important, even if not required by law or
executive order, for a proposal likely to draw
significant attention for its economic impact
or other significance. It can also be especially
valuable for agencies seeking early input on
regulatory alternatives to reach out to a wide
range of interested persons, including
affected groups that often are
underrepresented in the administrative
process and may suffer disproportionate
harms from a proposed rule.
9
When seeking early input on regulatory
alternatives, agencies might consider
approaches modeled on practices that other
agencies already use. In so doing, they might
look at agency practices that are required by
statute (e.g., the Small Business Regulatory
Enforcement Fairness Act)
10
or agency rules
(e.g., the Department of Energy’s ‘‘Process
Rule’’),
11
or practices that agencies have
voluntarily undertaken in the absence of any
legal requirement.
Nevertheless, seeking early input on
alternatives may not be appropriate in all
cases and may trigger certain procedural
requirements.
12
In some instances, the
alternatives may be obvious. In others, the
subject matter may be so obscure that public
input is unlikely to prove useful. And in all
cases, agencies face resource constraints and
competing priorities, so agencies may wish to
limit early public input to a subclass of rules
such as those with substantial impact.
Agencies will need to consider whether the
benefits of early outreach outweigh the costs,
including the resources required to conduct
the outreach and any delays entailed. When
agencies do solicit early input, they will still
want to tailor their outreach to ensure that
they are soliciting input in a way that is cost-
effective, is equitable, and maximizes the
likelihood of obtaining diverse, useful
responses.
Recommendation
1. When determining whether to seek early
input from knowledgeable persons to identify
potential regulatory alternatives or respond
to alternatives an agency has already
identified, the agency should consider factors
such as:
a. The extent of the agency’s familiarity
with the policy issues and key alternatives;
b. The extent to which the conduct being
regulated or any of the alternatives suggested
are novel;
c. The degree to which potential
alternatives implicate specialized technical
or technological expertise;
d. The complexity of the underlying policy
question and the proposed alternatives;
e. The potential magnitude of the costs and
benefits of the alternatives proposed;
f. The likelihood that the selection of an
alternative will be controversial;
g. The time and resources that conducting
such outreach would require;
h. The extent of the agency’s discretion to
select among alternatives, given the statutory
language being implemented;
i. The deadlines the agency faces, if any,
and the harms that might occur from the
delay required to solicit and consider early
feedback;
j. The extent to which certain groups that
are affected by the proposed regulation and
have otherwise been underrepresented in the
agency’s administrative process may suffer
adverse distributional effects from generally
beneficial proposals; and
k. The extent to which experts in other
agencies may have valuable input on
alternatives.
2. In determining what outreach to
undertake concerning possible regulatory
alternatives, an agency should consider
using, consistent with available resources
and feasibility, methods of soliciting public
input including:
a. Meetings with interested persons held
episodically or as-needed based on
rulemaking activities;
b. Listening sessions;
c. Internet and social media forums;
d. Focus groups;
e. Advisory committees, including those
tasked with conducting negotiated
rulemaking;
f. Advance notices of proposed
rulemakings; and
g. Requests for information.
The agency should also consider how to
ensure that its interactions with outside
persons are transparent, to the maximum
extent permitted by law.
3. An agency should consider whether the
methods it uses to facilitate early outreach in
its rulemaking process will engage a wide
range of interested persons, including
individuals and groups that are affected by
the rule and are traditionally
underrepresented in the agency’s rulemaking
processes. The agency should consider which
methods would best facilitate such outreach,
including providing materials designed for
the target participants. For example, highly
technical language may be appropriate for
some, but not all, audiences. The agency
should endeavor to make participation by
interested persons who have less time and
fewer resources as easy as possible,
particularly when those potential
participants do not have experience in the
rulemaking process. The agency should
explain possible consequences of the
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1
Admin. Conf. of the U.S., Recommendation
2011–4, Agency Use of Video Hearings: Best
Practices and Possibilities for Expansion, 76 FR
48795, 48795–96 (Aug. 9, 2011).
2
Id.
3
Id.
4
Id. ¶2.
5
Admin. Conf. of the U.S., Recommendation
2014–7, Best Practices for Using Video
Teleconferencing for Hearings, 79 FR 75114 (Dec.
17, 2014); Recommendation 2011–4, supra note 1;
see also Martin E. Gruen & Christine R. Williams,
Admin. Conf. of the U.S., Handbook on Best
Practices for Using Video Teleconferencing in
Adjudicatory Hearings (2015).
6
For example, some tribunals around the world
are now exploring the use of telepresence systems,
which rely on high-quality video and audio
equipment to give participants at different,
specially equipped sites the experience of meeting
in the same physical space. See Fredric I. Lederer,
The Evolving Technology-Augmented Courtroom
Before, During, and After the Pandemic, 23 Vand.
J. Ent. & Tech. L. 301, 326 (2021).
7
See Jeremy Graboyes, Legal Considerations for
Remote Hearings in Agency Adjudications 3 (June
16, 2020) (report to the Admin. Conf. of the U.S.).
8
Id. at 1.
9
See Fredric I. Lederer & the Ctr. for Legal & Ct.
Tech., Analysis of Administrative Agency
Adjudicatory Hearing Use of Remote Appearances
and Virtual Hearings 7 (June 3, 2021) (report to the
Admin. Conf. of the U.S.).
10
See id. at 3.
potential rulemaking to help potential
participants understand the importance of
their input and to encourage their
participation in the outreach.
4. If an agency is unsure what methods of
soliciting public input will best meet its
needs and budget, it should consider testing
different methods to generate alternatives or
receive input on the regulatory alternatives it
is considering before issuing notices of
proposed rulemaking (NPRMs). As
appropriate, the agency should describe the
outcomes of using these different methods in
the NPRMs for rules in which they are used.
5. An agency should ensure that all of its
relevant officials, including economists,
scientists, and other experts, have an
opportunity to identify potential regulatory
alternatives during the early input process.
As appropriate, the agency should also reach
out to select experts in other agencies for
input on alternatives.
6. An agency should consider providing in
the NPRM a discussion of the reasonable
regulatory alternatives it has considered or
that have been suggested to it, including
alternatives it is not proposing to adopt,
together with the reasons it is not proposing
to adopt those alternatives. To the extent the
agency is concerned about revealing the
identity of the individuals or groups offering
proposed alternatives due to privacy or
confidentiality concerns, it should consider
characterizing the identity (e.g., industry
representative, environmental organization,
etc.) or listing the alternatives without
ascribing them to any particular person.
7. When an agency discusses regulatory
alternatives in the preamble of a proposed or
final rule, it should also consider including
a discussion of any reasonable alternatives
suggested or considered through early public
input, but which the agency believes are
precluded by statute. The discussion should
also include an explanation of the agency’s
views on the legality of those alternatives.
8. To help other agencies craft best
practices for early engagement with the
public, an agency should, when feasible,
share data and other information about the
effectiveness of its efforts to solicit early
input on regulatory alternatives.
Administrative Conference Recommendation
2021–4
Virtual Hearings in Agency Adjudication
Adopted June 17, 2021
The use of video teleconferencing (VTC) to
conduct administrative hearings and other
adjudicative proceedings has become
increasingly prevalent over the past few
decades due to rapid advances in technology
and telecommunications coupled with
reduced personnel, increased travel costs,
and the challenges of the COVID–19
pandemic. As the Administrative Conference
has recognized, ‘‘[s]ome applaud the use of
VTC by administrative agencies because it
offers potential efficiency benefits, such as
reducing the need for travel and the costs
associated with it, reducing caseload backlog,
and increasing scheduling flexibility for
agencies and attorneys as well as increasing
access for parties.’’
1
At the same time, as the
Conference has acknowledged, critics have
suggested that the use of VTC may ‘‘hamper
communication’’ among participants—
including parties, their representatives, and
the decision maker—or ‘‘hamper a decision-
maker’s ability to make credibility
determinations.’’
2
The Conference has encouraged agencies,
particularly those with high-volume
caseloads, to consider ‘‘whether the use of
VTC would be beneficial as a way to improve
efficiency and/or reduce costs while also
preserving the fairness and participant
satisfaction of proceedings.’’
3
Recognizing
that the use of VTC may not be appropriate
in all circumstances and must be legally
permissible, the Conference has identified
factors for agencies to consider when
determining whether to use VTC to conduct
hearings. They include whether the nature
and type of adjudicative hearings conducted
by an agency are conducive to the use of
VTC; whether VTC can be used without
adversely affecting case outcomes or
representation of parties; and whether the
use of VTC would affect costs, productivity,
wait times, or access to justice.
4
The
Conference has also set forth best practices
and practical guidelines for conducting video
hearings.
5
When the Conference issued these
recommendations, most video participants
appeared in formal hearing rooms equipped
with professional-grade video screens,
cameras, microphones, speakers, and
recording systems. Because these hearing
rooms were usually located in government
facilities, agencies could ensure that staff
were on site to maintain and operate VTC
equipment, assist participants, and
troubleshoot any technological issues. This
setup, which this Recommendation calls a
‘‘traditional video hearing,’’ gives agencies a
high degree of control over VTC equipment,
telecommunications connections, and
hearing rooms.
Videoconferencing technology continues to
evolve, with rapid developments in internet-
based videoconferencing software,
telecommunications infrastructure, and
personal devices.
6
Recently, many agencies
have also allowed, or in some cases required,
participants to appear remotely using
internet-based videoconferencing software.
Because individual participants can run
these software applications on personal
computers, tablets, or smartphones, they can
appear from a location of their choosing,
such as a home or office, rather than needing
to travel to a video-equipped hearing site.
This Recommendation uses the term ‘‘virtual
hearings’’ to refer to proceedings in which
individuals appear in this manner. This term
includes proceedings in which all
participants appear virtually, as well as
hybrid proceedings in which some
participants appear virtually while others
participate by alternative remote means or in
person.
7
Although some agencies used virtual
hearings before 2020, their use expanded
dramatically during the COVID–19
pandemic, when agencies maximized
telework, closed government facilities to the
public and employees, and required social
distancing.
8
Agencies gained considerable
experience conducting virtual hearings
during this period,
9
and this
Recommendation draws heavily on these
experiences.
Virtual hearings can offer several benefits
to agencies and parties compared with
traditional video hearings. Participants may
be able to appear from their home using their
own personal equipment, from an attorney’s
office, or from another location such as a
public library or other conveniently located
governmental facility, without the need to
travel to a video-equipped hearing site. As a
result, virtual hearings can simplify
scheduling for parties and representatives
and may facilitate the involvement of other
participants such as interpreters, court
reporters, witnesses, staff or contractors who
provide administrative or technical support,
and other interested persons. Given this
flexibility, virtual hearings may be especially
convenient for short and relatively informal
adjudicative proceedings, such as pre-hearing
and settlement conferences.
10
Because virtual hearings allow participants
to appear from a location of their choosing
without needing to travel to a facility suitable
for conducting an in-person or traditional
video hearing, they have the potential to
expand access to justice for individuals who
belong to certain underserved communities.
Virtual hearings may be especially beneficial
for individuals whose disabilities make it
difficult to travel to hearing facilities or
participate in public settings; individuals
who live in rural areas and may need to
travel great distances to hearing facilities;
and low-income individuals for whom it may
be difficult to secure transportation to
hearing facilities or take time off work or
arrange for childcare to participate in in-
person or traditional video hearings. The use
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11
See Alicia Bannon & Janna Adelstein, Brennan
Ctr. for Justice, The Impact of Video Proceedings on
Fairness and Access to Justice in Court 9–10 (2020);
Nat’l Ctr. for State Cts., Call to Action: Achieving
Civil Justice for All 37–38 (2016); Lederer, supra
note 6, at 338; Susan A. Bandes & Neal Feigenson,
Virtual Trials: Necessity, Invention, and the
Evolution of the Courtroom, 68 Buff. L. Rev. 1275,
1313–14 (2020).
12
See Lederer, supra note 9, at 8–12, 18.
13
See id. at 12, 16–17.
14
See id. at 12, 17.
15
For evidentiary hearings not required by the
Administrative Procedure Act (APA), the
Conference has recommended that agencies ‘‘adopt
the presumption that their hearings are open to the
public, while retaining the ability to close the
hearings in particular cases, including when the
public interest in open proceedings is outweighed
by the need to protect: (a) National security; (b) Law
enforcement; (c) Confidentiality of business
documents; and (d) Privacy of the parties to the
hearing.’’ Admin. Conf. of the U.S.,
Recommendation 2016–4, Evidentiary Hearings Not
Required by the Administrative Procedure Act, ¶18,
81 FR 94312, 94316 (Dec. 23, 2016). Similar
principles may also apply in other proceedings,
including those conducted under the APA’s formal-
hearing provisions. See Graboyes, supra note 7, at
22–23.
16
5 U.S.C. 552.
17
Id. §552a.
18
44 U.S.C. 3101 et seq.
19
This Recommendation does not take a position
on when parties should be entitled to, or may
request, an in-person hearing.
of virtual hearings may also expand access to
representation, especially for individuals
who live in areas far from legal aid
organizations.
11
But virtual hearings can pose significant
challenges as well. The effectiveness of
virtual hearings depends on individuals’
access to a suitable internet connection, a
personal device, and a space from which to
participate, as well as their ability to
effectively participate in an adjudicative
proceeding by remote means while operating
a personal device and videoconferencing
software. As a result, virtual hearings may
create a barrier to access for individuals who
belong to underserved communities, such as
low-income individuals for whom it may be
difficult to obtain access to high-quality
personal devices or private internet services,
individuals whose disabilities prevent
effective engagement in virtual hearings or
make it difficult to set up and manage the
necessary technology, and individuals with
limited English proficiency. Some
individuals may have difficulty, feel
uncomfortable, or lack experience using a
personal device or internet-based
videoconferencing software to participate in
an adjudicative proceeding. Some critics
have also raised concerns that virtual
participation can negatively affect parties’
satisfaction, engagement with the
adjudicative process, or perception of
justice.
12
Agencies have devised several methods to
address these concerns. The Board of
Veterans’ Appeals conducts virtual hearings
using the same videoconferencing
application that veterans use to access agency
telehealth services. To enhance the formality
of virtual hearings, many adjudicators use a
photographic backdrop that depicts a hearing
room, seal, or flag. Many agencies use pre-
hearing notices and online guides to explain
virtual hearings to participants. Several
agencies provide general or pre-hearing
training sessions at which agency staff, often
attorneys, can familiarize participants with
the procedures and standards of conduct for
virtual hearings. Though highly effective,
these sessions require staff time and
availability.
13
Virtual hearings can also pose practical
and logistical challenges. They can suffer
from technical glitches, often related to short-
term, internet bandwidth issues. Virtual
hearings may sometimes require agencies to
take special measures to ensure the integrity
of adjudicative proceedings. Such measures
may be necessary, for example, to safeguard
classified, legally protected, confidential, or
other sensitive information, or to monitor or
sequester witnesses to ensure third parties do
not interfere with their testimony.
14
Agencies
may also need to take special measures to
ensure that interested members of the public
can observe virtual hearings in appropriate
circumstances by, for example, streaming live
audio or video of a virtual hearing or
providing access to a recording afterward.
15
Recording virtual hearings may raise
additional legal, policy, and practical
concerns. To the extent that such recordings
become part of the administrative record or
serve as the official record of the proceeding,
agencies may need to consider whether and
for what purposes appellate reviewers may
consider and rely on them. Creating
recordings may trigger obligations under
federal information and record-keeping laws
and policies, including the Freedom of
Information Act,
16
Privacy Act,
17
and Federal
Records Act.
18
Agencies may need to review
contract terms when considering the use of
videoconferencing software applications to
determine whether any other entities own or
can access or use recordings made through
the applications, or whether an agency may
obtain ownership and possession of the
recording. Steps may be necessary to ensure
that agencies do not inadvertently disclose
classified, protected, or sensitive information
or make it easy for people to use publicly
available recordings for improper purposes.
Practically, unless agencies store recordings
on external servers, such as in the cloud,
agencies would need sufficient technological
capacity to store the volume of recordings
associated with virtual hearings. Agencies
would also need personnel qualified and
available to manage and, as appropriate,
prepare recordings for public access.
This Recommendation builds on
Recommendation 2011–4, Agency Use of
Video Hearings: Best Practices and
Possibilities for Expansion, and
Recommendation 2014–7, Best Practices for
Using Video Teleconferencing for Hearings,
by identifying factors for agencies to consider
as they determine when and how to conduct
virtual hearings. Specifically, this
Recommendation provides best practices for
conducting virtual hearings in appropriate
circumstances and encourages agencies to
monitor technological and procedural
developments that may facilitate remote
participation in appropriate circumstances.
As emphasized in Recommendation 2014–
7, the Conference is committed to the
principles of fairness, efficiency, and
participant satisfaction in the conduct of
adjudicative proceedings. When virtual
hearings are used, they should be used in a
manner that promotes these principles,
which form the cornerstones of adjudicative
legitimacy. The Conference recognizes that
the use of virtual hearings is not suitable for
every kind of adjudicative proceeding but
believes greater familiarity with existing
agency practices and awareness of the
improvements in technology will encourage
broader use of such technology in
appropriate circumstances. This
Recommendation aims to ensure that, when
agencies choose to offer virtual hearings, they
are able to provide a participant experience
that meets or even exceeds the in-person
hearing experience.
19
Recommendation
Procedural Practices
1. If legally permissible, agencies should
offer virtual hearings consistent with their
needs, in accord with principles of fairness
and efficiency, and with due regard for
participant satisfaction. In developing
policies regarding virtual hearings, agencies
should consider, at a minimum, the
following:
a. Whether the nature and type of
adjudicative proceedings are conducive to
the use of virtual hearings and whether
virtual hearings can be used without affecting
the procedural fairness or substantive
outcomes of cases;
b. Whether virtual hearings are likely to
result in significant benefits for agency and
non-agency participants, including improved
access to justice, more efficient use of time
for adjudicators and staff, reduced travel
costs and delays, and reduced wait times and
caseload backlogs;
c. Whether virtual hearings are likely to
result in significant costs for agency and non-
agency participants, including those
associated with purchasing, installing, and
maintaining equipment and software,
obtaining and using administrative and
technical support, and providing training;
d. Whether the use of virtual hearings
would affect the representation of parties;
e. Whether the use of virtual hearings
would affect communication between
hearing participants (including adjudicators,
parties, representatives, witnesses,
interpreters, agency staff, and others);
f. Whether the use of virtual hearings
would create a potential barrier to access for
individuals who belong to underserved
communities, such as low-income
individuals for whom it may be difficult to
obtain access to high-quality personal
devices or private internet services,
individuals whose disabilities prevent
effective engagement in virtual hearings or
make it difficult to set up and manage the
necessary technology, and individuals with
limited English proficiency, or for other
individuals who may have difficulty using a
personal device or internet-based
videoconferencing software to participate in
adjudicative proceedings;
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g. Whether the use of virtual hearings
would affect adjudicators’ ability to make
credibility determinations; and
h. Whether there is a reasonable concern
that the use of virtual hearings would enable
someone to improperly interfere with
participants’ testimony.
2. Agencies should revise any provisions of
their codified rules of practice that
unintentionally restrict adjudicators’
discretion to allow individuals to participate
virtually, when such participation would
otherwise satisfy the principles in Paragraph
1. 3. Agencies should adopt the presumption
that virtual hearings are open to the public,
while retaining the ability to close the
hearings in particular cases, including when
the public interest in open proceedings is
outweighed by the need to protect:
a. National security;
b. Law enforcement;
c. Confidentiality of business documents;
or
d. Privacy of hearing participants.
For virtual hearings that are open to the
public, agencies should provide a means for
interested persons to attend or view the
hearing.
4. If agencies record virtual hearings, they
should consider the legal, practical, and
technical implications of doing so and
establish guidelines to seek to ensure, at a
minimum, compliance with applicable
information and recordkeeping laws and
policies and guard against misuse of
recordings.
5. Agencies should work with information
technology and data security professionals to
develop protocols to properly safeguard
classified, legally protected, confidential, and
other sensitive information during virtual
hearings and also to ensure the integrity of
the hearing process.
6. Agencies that offer virtual hearings
should develop guidelines for conducting
them, make those guidelines publicly
available prominently on their websites, and
consider which of those guidelines to include
in their codified rules of practice. Such
guidelines should address, as applicable:
a. Any process by which parties,
representatives, and other participants can
request to participate virtually;
b. Circumstances in which an individual’s
virtual participation may be inappropriate;
c. Any process by which parties,
representatives, and other participants can,
as appropriate, object to or express concerns
about participating virtually;
d. Technological requirements for virtual
hearings, including those relating to access to
the internet-based videoconferencing
software used for virtual hearings and any
technical suggestions for participants who
appear virtually;
e. Standards of conduct for participants
during virtual hearings, such as those
requiring participants to disclose whether
they are joined or assisted by any silent, off-
camera individuals;
f. The availability of or requirement to
attend a general training session or pre-
hearing conference to discuss technological
requirements, procedural rules, and
standards of conduct for virtual hearings;
g. Any protocols or best practices for
participating in virtual hearings, such as
those addressing:
i. When and how to join virtual hearings
using either a personal device or equipment
available at another location, such as a public
library or other governmental facility;
ii. How to submit exhibits before or during
virtual hearings;
iii. Whether and how to use screen sharing
or annotation tools available in the
videoconferencing software;
iv. How to make motions, raise objections,
or otherwise indicate that a participant
would like to speak;
v. How to participate effectively in a
virtual setting (e.g., recommending that
participants not appear while operating a
moving vehicle and, to account for audio
delays, that they wait several seconds after
others finish talking before speaking);
vi. How to indicate that there is a technical
problem or request technical support;
vii. When adjudicators will stop or
postpone virtual hearings due to technical
problems and what actions will be taken to
attempt to remedy the problems while
preserving participants’ hearing rights;
viii. How to examine witnesses who
participate virtually and monitor or sequester
them, as necessary;
ix. How parties and their representatives
can consult privately with each other;
x. When participants should have their
microphones or cameras on or off;
xi. Whether participants may communicate
with each other using a videoconferencing
software’s chat feature or other channels of
communication, and, if so, how;
xii. How to properly safeguard classified,
legally protected, confidential, or other
sensitive information;
xiii. Whether participants or interested
persons may record proceedings;
xiv. Whether and how other interested
persons can attend or view streaming video;
and
xv. Whether and how participants or
interested persons may access recordings of
virtual hearings maintained by the agency.
7. Agencies should provide information on
virtual hearings in pre-hearing notices to
participants. Such notices should include or
direct participants to the guidelines
described in Paragraph 6.
Facilities and Equipment
8. When feasible, agencies should provide
adjudicators with spaces, such as offices or
hearing rooms, that are equipped and
maintained for the purpose of conducting
hearings that involve one or more remote
participants. When designing such a space,
agencies should provide for:
a. Dedicated cameras, lighting, and
microphones to capture and transmit audio
and video of the adjudicator to remote
participants;
b. Adjudicators’ access to a computer and
a minimum of two monitors—one for
viewing remote participants and another for
viewing the record—and potentially a third
for performing other tasks or accessing other
information during proceedings; and
c. High-quality bandwidth.
9. Agencies should provide adjudicators
who appear from a location other than a
space described in Paragraph 8 with a digital
or physical backdrop that simulates a
physical hearing room or other official space.
Training and Support
10. Agencies should provide training for
adjudicators on conducting virtual hearings.
11. Agencies should provide adjudicators
with adequate technical and administrative
support so that adjudicators are not
responsible for managing remote participants
(e.g., admitting or removing participants,
muting and unmuting participants, managing
breakout rooms) or troubleshooting technical
issues for themselves or other participants
before or during proceedings. Agencies
should provide advanced training for
administrative and technical support staff to
ensure they are equipped to manage virtual
hearings and troubleshoot technical problems
that may arise before or during proceedings.
12. Agencies should consider providing
general training sessions or pre-hearing
conferences at which staff can explain
expectations, technological requirements,
and procedural rules for virtual hearings to
parties and representatives.
Assessment and Continuing Development
13. Agencies should try to measure how
virtual hearings compare with proceedings
conducted using other formats, including
whether the use of virtual hearings affects
procedural fairness or produces different
substantive outcomes. Agencies should
recognize the methodological challenges in
measuring procedural fairness and
comparing substantive outcomes to
determine whether different hearing formats,
apart from other relevant factors and case-
specific circumstances, produce comparable
results.
14. Agencies should collect anonymous
feedback from participants (e.g., using post-
hearing surveys) to determine and assess
participants’ satisfaction with the virtual
format and identify any concerns. Agencies
should also maintain open lines of
communication with representatives in order
to receive feedback about the use of virtual
hearings. Agencies should collect feedback in
a manner that complies with the Paperwork
Reduction Act and review this feedback on
a regular basis to determine whether any
previously unrecognized deficiencies exist.
15. Agencies should monitor technological
and procedural developments to seek to
ensure that options for individuals to
participate remotely in adjudicative
proceedings remain current and that those
options reasonably comport with
participants’ expectations.
16. Agencies should share information
with each other to reduce costs, increase
efficiency, and provide a hearing experience
that seeks to ensure fairness and participant
satisfaction. To help carry out this
Recommendation, the Conference’s Office of
the Chairman should provide, as authorized
by 5 U.S.C. 594(2), for the ‘‘interchange
among administrative agencies of
information potentially useful in improving’’
virtual hearings and other forms of remote
participation in agency adjudicative
proceedings.
[FR Doc. 2021–14597 Filed 7–7–21; 8:45 am]
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