Notice2021-14597
Adoption of Recommendations
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Published
July 8, 2021
Issuing agencies
Administrative Conference of the United States
Abstract
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.
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[Federal Register Volume 86, Number 128 (Thursday, July 8, 2021)]
[Notices]
[Pages 36075-36085]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-14597]
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Notices
Federal Register
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This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
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Federal Register / Vol. 86, No. 128 / Thursday, July 8, 2021 /
Notices
[[Page 36075]]
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Adoption of Recommendations
AGENCY: Administrative Conference of the United States.
ACTION: Notice.
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SUMMARY: The Administrative Conference of the United States adopted
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 <a href="http://www.acus.gov">www.acus.gov</a>. 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: <a href="https://www.acus.gov/meetings-and-events/plenary-meeting/74th-plenary-session-virtual">https://www.acus.gov/meetings-and-events/plenary-meeting/74th-plenary-session-virtual</a>. 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]
[[Page 36076]]
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\
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\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'').
\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).
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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.
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\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).
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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.
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\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 <a href="http://Regulations.gov">Regulations.gov</a>.
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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.
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\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).
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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.
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\10\ 5 U.S.C. 553.
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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.
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\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.
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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 <a href="http://Regulations.gov">Regulations.gov</a> platform that make
it easier for agencies to verify that a commenter is a human
being.\14\ GSA's <a href="http://Regulations.gov">Regulations.gov</a> 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.
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\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., <a href="https://www.Regulations.gov">https://www.Regulations.gov</a> (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 <a href="http://Regulations.gov">Regulations.gov</a> API, Gen. Servs. Admin., <a href="https://open.gsa.gov/api/regulationsgov/">https://open.gsa.gov/api/regulationsgov/</a> (last visited May 24, 2021).
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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
[[Page 36077]]
technology is rapidly changing, agencies will need to stay apprised
of new developments that could enhance public participation in
rulemaking.
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\16\ See Steve Balla, Reeve Bull, Bridget Dooling, Emily
Hammond, Michael Herz, Michael Livermore, & Beth Simone Noveck,
Mass, Computer-Generated, and Fraudulent Comments 43-48 (June 1,
2021) (report to the Admin. Conf. of the U.S.).
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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 <a href="http://Regulations.gov">Regulations.gov</a> 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
[[Page 36078]]
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:
<bullet> The importance of nearby accessible bathrooms to the
dignity of wheelchair users, at issue in a 2010 Americans with
Disabilities Act regulation.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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
[[Page 36079]]
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
[[Page 36080]]
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.
---------------------------------------------------------------------------
\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.
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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\
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\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).
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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.
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\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.
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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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
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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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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
[[Page 36081]]
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 <a href="http://Regulations.gov">Regulations.gov</a>. 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.
[[Page 36082]]
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\
---------------------------------------------------------------------------
\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, Sec. 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).
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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\
---------------------------------------------------------------------------
\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, Sec. 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'').
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\10\ 5 U.S.C. 609.
\11\ 10 CFR 430, subpart C, app. A.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\12\ See, e.g., Federal Advisory Committee Act, 5 U.S.C. app. 2
1-16.
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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
[[Page 36083]]
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\
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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.
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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\
---------------------------------------------------------------------------
\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).
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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\
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\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.).
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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.
---------------------------------------------------------------------------
\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.).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\10\ See id. at 3.
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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
[[Page 36084]]
of virtual hearings may also expand access to representation,
especially for individuals who live in areas far from legal aid
organizations.\11\
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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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\12\ See Lederer, supra note 9, at 8-12, 18.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\13\ See id. at 12, 16-17.
---------------------------------------------------------------------------
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\
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\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\16\ 5 U.S.C. 552.
\17\ Id. Sec. 552a.
\18\ 44 U.S.C. 3101 et seq.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\19\ This Recommendation does not take a position on when
parties should be entitled to, or may request, an in-person hearing.
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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;
[[Page 36085]]
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]
BILLING CODE 6110-01-P
</pre></body>
</html>Indexed from Federal Register on July 8, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.