[Federal Register Volume 86, Number 128 (Thursday, July 8, 2021)]
[Notices]
[Pages 36075-36085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14597]


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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 www.acus.gov. At its virtual Seventy-fourth Plenary 
Session on June 17, 2021, the Assembly of the Conference adopted four 
recommendations.
    Recommendation 2021-1, Managing Mass, Computer-Generated, and 
Falsely Attributed Comments. This recommendation offers agencies best 
practices for managing mass, computer-generated, and falsely attributed 
comments in agency rulemakings. It provides guidance for agencies on 
using technology to process such comments in the most efficient way 
possible while ensuring that the rulemaking process is transparent to 
prospective commenters and the public more broadly.
    Recommendation 2021-2, Periodic Retrospective Review. This 
recommendation offers practical suggestions to agencies about how to 
establish periodic retrospective review plans. It provides guidance for 
agencies on identifying regulations for review, determining the optimal 
frequency of review, soliciting public feedback to enhance their review 
efforts, identifying staff to participate in review, and coordinating 
review with other agencies.
    Recommendation 2021-3, Early Input on Regulatory Alternatives.This 
recommendation offers guidance about whether, when, and how agencies 
should solicit input on alternatives to rules under consideration 
before issuing notices of proposed rulemaking. It identifies specific, 
targeted measures for obtaining public input on regulatory alternatives 
from knowledgeable persons in ways that are cost-effective and 
equitable and that maximize the likelihood of obtaining diverse, useful 
responses.
    Recommendation 2021-4, Virtual Hearings in Agency Adjudication. 
This recommendation addresses the use of virtual hearings--that is, 
proceedings in which participants attend remotely using a personal 
computer or mobile device--in agency adjudications. Drawing heavily on 
agencies' experiences during the COVID-19 pandemic, the recommendation 
identifies best practices for improving existing virtual-hearing 
programs and establishing new ones in accord with principles of 
fairness and efficiency and with due regard for participant 
satisfaction.
    The Appendix below sets forth the full texts of these four 
recommendations, as well as three timely filed Separate Statements 
associated with Recommendation 2021-1, Managing Mass, Computer-
Generated, and Falsely Attributed Comments. The Conference will 
transmit the recommendations to affected agencies, Congress, and the 
Judicial Conference of the United States, as appropriate. The 
recommendations are not binding, so the entities to which they are 
addressed will make decisions on their implementation.
    The Conference based these recommendations on research reports that 
are posted at: https://www.acus.gov/meetings-and-events/plenary-meeting/74th-plenary-session-virtual. Committee-proposed drafts of the 
recommendations, and public comments received in advance of the plenary 
session, are also available using the same link.

    Dated: July 2, 2021.
Shawne C. McGibbon,
General Counsel.

Appendix--Recommendations of the Administrative Conference of the 
United States

Administrative Conference Recommendation 2021-1

Managing Mass, Computer-Generated, and Falsely Attributed Comments

Adopted June 17, 2021

    Under the Administrative Procedure Act (APA), agencies must give 
members of the public notice of proposed rules and the opportunity 
to offer their ``data, views, or arguments'' for the agencies' 
consideration.\1\ For each proposed rule subject to these notice-
and-comment procedures, agencies create and maintain an online 
public rulemaking docket in which they collect and publish the 
comments they receive along with other publicly available 
information about the proposed rule.\2\ Agencies must then process, 
read, and analyze the comments received. The APA requires agencies 
to consider the ``relevant matter presented'' in the comments 
received and to provide a ``concise general statement of [the 
rule's]

[[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 Regulations.gov.
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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 Regulations.gov platform that make 
it easier for agencies to verify that a commenter is a human 
being.\14\ GSA's Regulations.gov platform also includes an 
application programming interface (API)--a feature of a computer 
system that enables different systems to communicate with it--to 
facilitate mass comment submission.\15\ This technology platform 
allows partner agencies to better manage comments from identifiable 
entities that submit large volumes of comments. Some federal 
agencies also use a tool, sometimes referred to as de-duplication 
software, to identify and group identical or substantively identical 
comments.
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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., https://www.Regulations.gov (last visited May 24, 2021) (navigate to any 
rulemaking with an open comment period; click comment button; then 
click ``Commenter's Checklist''). In addition, the text of this 
checklist appears on the project page for this Recommendation on the 
ACUS website.
    \14\ This software is distinct from identity validation 
technologies that force commenters to prove their identities.
    \15\ See Regulations.gov API, Gen. Servs. Admin., https://open.gsa.gov/api/regulationsgov/ (last visited May 24, 2021).
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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 Regulations.gov or in 
the preambles to final rules) includes the number of identical or 
substantively identical comments. If resources permit, agencies 
should separately report the total number of identical or 
substantively identical comments they receive. Agencies should also 
consider providing an opportunity for interested members of the 
public to obtain or access all comments received.

Managing Computer-Generated Comments

    5. To the extent feasible, agencies should flag any comments 
they have identified as computer-generated or display or store them 
separately from other comments. If an agency flags a comment as 
computer-generated, or displays or stores it separately from the 
online rulemaking docket, the agency should note its action in the 
docket. The agency may also choose to notify the submitter directly 
if doing so does not violate any relevant policy prohibiting direct 
contact with senders of ``spam'' or similar communications.
    6. Agencies that operate their own commenting platforms should 
consider using technology that verifies that a commenter is a human 
being, such as reCAPTCHA or another similar identity proofing tool. 
The eRulemaking Program should continue to retain this 
functionality.
    7. When publishing a final rule, agencies should note any 
comments on which they rely that they know are computer-generated 
and state whether they removed from the docket any comments they 
identified as computer-generated.

Managing Falsely Attributed Comments

    8. Agencies should provide opportunities (including after the 
comment deadline) for individuals whose names or identifying 
information have been attached to comments they did not submit to 
identify such comments and to request that the comment be anonymized 
or removed from the online rulemaking docket.
    9. If an agency flags a comment as falsely attributed or removes 
such a comment from the online rulemaking docket, it should note its 
action in the docket. Agencies may also choose to notify the 
purported submitter directly if doing so does not violate any agency 
policy.
    10. If an agency relies on a comment it knows is falsely 
attributed, it should include an anonymized version of that comment 
in its online rulemaking docket. When publishing a final rule, 
agencies should note any comments on which they rely that are 
falsely attributed and should state whether they removed from the 
docket any falsely attributed comments.

Enhancing Agency Transparency in the Comment Process

    11. Agencies should inform the public about their policies 
concerning the posting and use of mass, computer-generated, and 
falsely attributed comments. These policies should take into account 
the meaningfulness of the public's opportunity to participate in the 
rulemaking process and should balance goals such as user-
friendliness, transparency, and informational completeness. In their 
policies, agencies may provide for exceptions in appropriate 
circumstances.
    12. Agencies and relevant coordinating bodies (such as GSA's 
eRulemaking Program, the Office of Information and Regulatory 
Affairs, and any other governmental bodies that address common 
rulemaking issues) should consider providing publicly available 
materials that explain to prospective commenters what types of 
responses they anticipate would be most useful, while also welcoming 
any other comments that members of the public wish to submit and 
remaining open to learning from them. These materials could be 
presented in various formats--such as videos or FAQs--to reach 
different audiences. These materials may also include statements 
within the notice of proposed rulemaking for a given agency rule or 
on agencies' websites to explain the purpose of the comment process 
and explain that agencies seriously consider any relevant public 
comment from a person or organization.
    13. To encourage the most relevant submissions, agencies that 
have specific questions or are aware of specific information that 
may be useful should identify those questions or such information in 
their notices of proposed rulemaking.

Additional Opportunities for Public Participation

    14. Agencies and relevant coordinating bodies should stay 
abreast of new technologies for facilitating informative public 
participation in rulemakings. These technologies may help agencies 
to process mass comments or identify and process computer-generated 
and falsely attributed comments. In addition, new technologies may 
offer new opportunities to engage the public, both as part of or as 
a supplement to the notice-and-comment process. Such opportunities 
may help ensure that agencies receive input from communities that 
may not otherwise have an opportunity to participate in the 
conventional comment process.

Coordination and Training

    15. Agencies should work closely with relevant coordinating 
bodies to improve existing technologies and develop new technologies 
to address issues associated with mass, computer-generated, and 
falsely attributed comments. Agencies and relevant coordinating 
bodies should share best practices and relevant innovations for 
addressing challenges related to these comments.
    16. Agencies should develop and offer opportunities for ongoing 
training and staff development to respond to the rapidly evolving 
nature of technologies related to mass, computer-generated, and 
falsely attributed comments and to public participation more 
generally.
    17. As authorized by 5 U.S.C. 594(2), the Conference's Office of 
the Chairman should provide for the ``interchange among 
administrative agencies of information potentially useful in 
improving'' agency comment processing systems. The subjects of 
interchange might include technological and procedural innovations, 
common management challenges, and legal concerns under the 
Administrative Procedure Act and other relevant statutes.

Separate Statement for Administrative Conference Recommendation 2021-1 
by Senior Fellow Randolph J. May

Filed June 18, 2021

    I attended several of the Committee meetings that considered the 
preparation of

[[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:
     The importance of nearby accessible bathrooms to the 
dignity of wheelchair users, at issue in a 2010 Americans with 
Disabilities Act regulation.
     Weighing potential public resource uses. For multiple-
use public lands, the Bureau of Land Management must, by regulation, 
balance recreation and ``scenic, scientific and historical values'' 
with resource extraction uses, including timbering and mining.
     Potential public resistance to an action, such as the 
Coast Guard's ultimately abandoned decision creating live-fire zones 
in the Great Lakes for weapons practice in the early 2000s. Had the 
agency seriously sought out public comment, it would have detected 
substantial public resistance to this action, which, without the 
benefit of participation, the agency considered justified and 
minimally risky.
     Public resistance to a possible mandate as unduly 
paternalistic, burdensome, or exclusionary, whether ignition 
interlock or a vaccine passport requirement. Justice Rehnquist 
identified this issue in Motor Vehicles Mfg. Ass'n v. State Farm 
Mutual Auto Ins., 463 U.S. 29 (1983). Though Justice Rehnquist's 
dissent linked the issue to presidential elections, he underscored 
its relevance to rulemaking.
     Environmental justice/quality of life matters. In a 
2020 rule implementing the National Environmental Policy Act, the 
Council on Environmental Quality decided that an agency need no 
longer assess a proposed action's cumulative impacts in its 
environmental impact analysis. This decision will especially impact 
low-income communities and communities of color, including Southwest 
Detroit, where multiple polluting sources adjoin residential 
neighborhoods. Whether to require cumulative impacts analysis is not 
a technical issue. It is a policy decision whether community 
environmental and quality of life concerns are important enough to 
justify lengthier environmental analyses. The comment process 
enables communities to express directly the importance of these 
issues.
    Rulemaking is certainly not a plebiscite. Besides 
representativeness concerns, that is mainly because statutes 
typically require agencies to consider multiple factors, not only 
public views. But ordinary people's views and preferences are 
nonetheless relevant and thus appropriately communicated to the 
agency. The text of 5 U.S.C. 553(c) is express here: ``interested 
persons'' are entitled to submit ``data, views, or arguments.''
    Second, the identity of individual commenters may provide 
critical context. That a comment on a proposed ADA regulation's 
importance is from a wheelchair user should matter. The same is true 
for

[[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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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 Regulations.gov. To the extent 
appropriate, agencies should organize the data in the document or 
set of documents in ways that allow private parties to re-create the 
agencies' work and run additional analyses concerning existing 
regulations' effectiveness. When feasible, agencies should also 
explain in plain language the significance of their data and how 
they used the data to shape their review.
    9. Agencies should seek input from relevant parties when 
conducting periodic retrospective review. Possible outreach methods 
include convening meetings of interested persons; engaging in 
targeted outreach efforts, such as proactively bringing the 
regulation to the attention of historically underrepresented or 
under-resourced groups; and posting requests for information 
regarding the regulation. Agencies should integrate relevant 
information from the public into their periodic retrospective 
reviews.
    10. Agencies should work with the Office of Management and 
Budget (OMB) to properly invoke any flexibilities within the 
Paperwork Reduction Act that would enable them to gather relevant 
data expeditiously.

Ensuring Adequate Resources and Staffing

    11. Agencies should decide how best to structure their staffing 
of periodic retrospective reviews to foster a culture of 
retrospective review and ongoing learning. Below are examples of 
some staffing models, which may be used in tandem or separately:
    a. Assigning the same staff the same regulation, or category of 
regulation, each time it is reviewed. This approach allows staff to 
gain expertise in a particular kind of regulation, thereby 
potentially improving the efficiency of the review;
    b. Assigning different staff the same regulation, or category of 
regulation, each time it is reviewed. This approach promotes 
objectivity by allowing differing viewpoints to enter into the 
analysis;
    c. Engaging or cooperating with agency or non-agency subject 
matter experts to review regulations; and
    d. Pairing subject matter experts, such as engineers, 
economists, sociologists, and scientists, with other agency 
employees in conducting the review. This approach maximizes the 
likelihood that both substantive considerations, such as the net 
benefits and distributional and ancillary impacts of the regulation, 
and procedural considerations, such as whether the regulation 
conflicts with other regulations or complies with plain language 
requirements, will enter into the review.

Using Evidence Act Processes

    12. Consistent with the Evidence Act, agencies should 
incorporate periodic retrospective reviews in their Learning Agendas 
and Annual Evaluation Plans. In doing so, agencies should ensure 
that they include:
    a. The precise questions they intend to answer using periodic 
retrospective review. Those questions should include how frequently 
particular regulations should be reviewed and should otherwise be 
keyed to the factors set forth in Section 5 of Executive Order 12866 
for periodic retrospective review of existing significant 
regulations;
    b. The information needed to adequately review the regulations 
subject to the periodic retrospective reviews. Agencies should state 
whether they will undertake new information collection requests or 
use existing information to conduct the reviews;
    c. The methods the agencies will use in conducting their 
reviews, which should comport with the federal program evaluation 
standards set forth by OMB;
    d. The anticipated challenges the agencies anticipate 
encountering during the reviews, if any, such as obstacles to 
collecting relevant data; and
    e. The ways the agencies will use the results of the reviews to 
inform policymaking.

Interagency Coordination

    13. Agencies that are responsible for coordinating activities 
among other agencies, such as the Office of Information and 
Regulatory Affairs, should, as feasible, regularly convene agencies 
to identify and share best practices on periodic retrospective 
review. These agencies should address questions such as how to 
improve timeliness and analytic quality of review and the optimal 
frequency of discretionary review.
    14. To promote a coherent regulatory scheme, agencies should 
coordinate their periodic retrospective reviews with other agencies 
that have issued related regulations.

[[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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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