This section of the FEDERAL REGISTER

contains documents other than rules or

proposed rules that are applicable to the

public. Notices of hearings and investigations,

committee meetings, agency decisions and

rulings, delegations of authority, filing of

petitions and applications and agency

statements of organization and functions are

examples of documents appearing in this

section.

Notices Federal Register

36075 

Vol. 86, No. 128 

Thursday, July 8, 2021 

1 5 U.S.C. 553. This requirement is subject to a 

number of exceptions. See id. 

2See E-Government Act 206, 44 U.S.C. 3501 note 

(establishing the eRulemaking Program to create an 

online system for conducting the notice-andcomment process); see also Admin. Conf. of the 

U.S., Recommendation 2013–4, Administrative 

Record in Informal Rulemaking, 78 FR 41358 (July 

10, 2013) (distinguishing between ‘‘the 

administrative record for judicial review,’’ 

‘‘rulemaking record,’’ and the ‘‘public rulemaking 

docket’’). 

ADMINISTRATIVE CONFERENCE OF 

THE UNITED STATES 

Adoption of Recommendations 

AGENCY: Administrative Conference of 

the United States. 

ACTION: Notice. 

SUMMARY: The Administrative 

Conference of the United States adopted 

four recommendations at its virtual 

Seventy-fourth Plenary Session. The 

appended recommendations are: (a) 

Managing Mass, Computer-Generated, 

and Falsely Attributed Comments; (b) 

Periodic Retrospective Review; (c) Early 

Input on Regulatory Alternatives; and 

(d) Virtual Hearings in Agency 

Adjudication. A fifth proposed 

recommendation, Clarifying Access to 

Judicial Review of Agency Action was 

considered but was remanded to the 

Committee on Judicial Review for 

further consideration. 

FOR FURTHER INFORMATION CONTACT: For 

Recommendation 2021–1, Danielle 

Schulkin; for Recommendation 2021–2, 

Gavin Young; for Recommendation 

2021–3, Mark Thomson; and for 

Recommendation 2021–4, Jeremy 

Graboyes. For each of these actions the 

address and telephone number are: 

Administrative Conference of the 

United States, Suite 706 South, 1120 

20th Street NW, Washington, DC 20036; 

Telephone 202–480–2080. 

SUPPLEMENTARY INFORMATION: The 

Administrative Conference Act, 5 U.S.C. 

591–596, established the Administrative 

Conference of the United States. The 

Conference studies the efficiency, 

adequacy, and fairness of the 

administrative procedures used by 

Federal agencies and makes 

recommendations to agencies, the 

President, Congress, and the Judicial 

Conference of the United States for 

procedural improvements (5 U.S.C. 

594(1)). For further information about 

the Conference and its activities, see 

www.acus.gov. At its virtual Seventyfourth 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, computergenerated, 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, ComputerGenerated, 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-sessionvirtual. Committee-proposed drafts of 

the recommendations, and public 

comments received in advance of the 

plenary session, are also available using 

the same link. 

Dated: July 2, 2021. 

Shawne C. McGibbon, 

General Counsel. 

Appendix—Recommendations of the 

Administrative Conference of the 

United States 

Administrative Conference Recommendation 

2021–1 

Managing Mass, Computer-Generated, and 

Falsely Attributed Comments 

Adopted June 17, 2021 

Under the Administrative Procedure Act 

(APA), agencies must give members of the 

public notice of proposed rules and the 

opportunity to offer their ‘‘data, views, or 

arguments’’ for the agencies’ consideration.1

For each proposed rule subject to these 

notice-and-comment procedures, agencies 

create and maintain an online public 

rulemaking docket in which they collect and 

publish the comments they receive along 

with other publicly available information 

about the proposed rule.2 Agencies must then 

process, read, and analyze the comments 

received. The APA requires agencies to 

consider the ‘‘relevant matter presented’’ in 

the comments received and to provide a 

‘‘concise general statement of [the rule’s] 


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3 5 U.S.C. 553. 

4Perez 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.’’). 

5Azar v. Allina Health Services, 139 S. Ct. 1804, 

1816 (2019). 

6See 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). 

7The 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. 

8See 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). 

9N.Y. State Off. of the Att’y Gen., Fake 

Comments: How U.S. Companies & Partisans Hack 

Democracy to Undermine Your Voice (2021). 

10 5 U.S.C. 553. 

11This 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. 

12See 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. 

13For 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. 

14This software is distinct from identity 

validation technologies that force commenters to 

prove their identities. 

15See Regulations.gov API, Gen. Servs. Admin., 

https://open.gsa.gov/api/regulationsgov/ (last 

visited May 24, 2021). 

16See Steve Balla, Reeve Bull, Bridget Dooling, 

Emily Hammond, Michael Herz, Michael 

Livermore, & Beth Simone Noveck, Mass, 

basis and purpose.’’ 3 When a rule is 

challenged on judicial review, courts have 

required agencies to demonstrate that they 

have considered and responded to any 

comment that raises a significant issue.4 The 

notice-and-comment process is an important 

opportunity for the public to provide input 

on a proposed rule and the agency to ‘‘avoid 

errors and make a more informed decision’’ 

on its rulemaking.5

Technological advances have expanded the 

public’s access to agencies’ online 

rulemaking dockets and made it easier for the 

public to comment on proposed rules in 

ways that the Administrative Conference has 

encouraged.6 At the same time, in recent 

high-profile rulemakings, members of the 

public have submitted comments in new 

ways or in numbers that can challenge 

agencies’ current approaches to processing 

these comments or managing their online 

rulemaking dockets. 

Agencies have confronted three types of 

comments that present distinctive 

management challenges: (1) Mass comments, 

(2) computer-generated comments, and (3) 

falsely attributed comments. For the 

purposes of this Recommendation, mass 

comments are comments submitted in large 

volumes by members of the public, including 

the organized submission of identical or 

substantively identical comments. Computergenerated comments are comments whose 

substantive content has been generated by 

computer software rather than by humans.7

Falsely attributed comments are comments 

attributed to people who did not submit 

them. 

These three types of comments, which 

have been the subject of recent reports by 

both federal 8 and state 9 authorities, can raise 

challenges for agencies in processing, 

reading, and analyzing the comments they 

receive in some rulemakings. If not managed 

well, the processing of these comments can 

contribute to rulemaking delays or can raise 

other practical or legal concerns for agencies 

to consider. 

In addressing the three types of comments 

in a single recommendation, the Conference 

does not mean to suggest that agencies 

should treat these comments in the same 

way. Rather, the Conference is addressing 

these comments in the same 

Recommendation because, despite their 

differences, they can present similar or even 

overlapping management concerns during 

the rulemaking process. In some cases, 

agencies may also confront all three types of 

comments in the same rulemaking. 

The challenges presented by these three 

types of comments are by no means identical. 

With mass comments, agencies may 

encounter processing or cataloging 

challenges simply as a result of the volume 

as well as the identical or substantively 

identical content of some comments they 

receive. Without the requisite tools, agencies 

may also find it difficult or time-consuming 

to digest or analyze the overall content of all 

comments they receive. 

In contrast with mass comments, 

computer-generated comments and falsely 

attributed comments may mislead an agency 

or raise issues under the APA and other 

statutes. One particular problem that 

agencies may encounter is distinguishing 

computer-generated comments from 

comments written by humans. Computergenerated 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 computergenerated nor falsely attributed. 

This Recommendation is limited to how 

agencies can better manage the processing 

challenges associated with mass, computergenerated, and falsely attributed comments.11

By addressing these processing challenges, 

the Recommendation is not intended to 

imply that widespread participation in the 

rulemaking process, including via mass 

comments, is problematic. Indeed, the 

Conference has explicitly endorsed 

widespread public participation on multiple 

occasions,12 and this Recommendation 

should help agencies cast a wide net when 

seeking input from all individuals and 

groups affected by a rule. The 

Recommendation aims to enhance agencies’ 

ability to process comments they receive in 

the most efficient way possible and to ensure 

that the rulemaking process is transparent to 

prospective commenters and the public more 

broadly. 

Agencies can advance the goals of public 

participation by being transparent about their 

comment policies or practices and by 

providing educational information about 

public involvement in the rulemaking 

process.13 Agencies’ ability to process 

comments can also be enhanced by digital 

technologies. As part of its eRulemaking 

Program, for example, the General Services 

Administration (GSA) has implemented 

technologies on the Regulations.gov platform 

that make it easier for agencies to verify that 

a commenter is a human being.14 GSA’s 

Regulations.gov platform also includes an 

application programming interface (API)—a 

feature of a computer system that enables 

different systems to communicate with it—to 

facilitate mass comment submission.15 This 

technology platform allows partner agencies 

to better manage comments from identifiable 

entities that submit large volumes of 

comments. Some federal agencies also use a 

tool, sometimes referred to as de-duplication 

software, to identify and group identical or 

substantively identical comments. 

New software and technologies to manage 

public comments will likely emerge in the 

future, and agencies will need to keep 

apprised of them. Agencies might also 

consider adopting alternative methods for 

encouraging public participation that 

augment the notice-and-comment process, 

particularly to the extent that doing so 

ameliorates some of the management 

challenges described above.16 Because 


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Computer-Generated, and Fraudulent Comments 

43–48 (June 1, 2021) (report to the Admin. Conf. of 

the U.S.). 

technology is rapidly changing, agencies will 

need to stay apprised of new developments 

that could enhance public participation in 

rulemaking. 

Not all agencies will encounter mass, 

computer-generated, or falsely attributed 

comments. But some agencies have 

confronted all three, sometimes in the same 

rulemaking. In offering the best practices that 

follow, the Conference recognizes that agency 

needs and resources will vary. For this 

reason, agencies should tailor the best 

practices in this Recommendation to their 

particular rulemaking programs and the types 

of comments they receive or expect to 

receive. 

Recommendation 

Managing Mass Comments 

1. The General Services Administration’s 

(GSA) eRulemaking Program should provide 

a common de-duplication tool for agencies to 

use, although GSA should allow agencies to 

modify the de-duplication tool to fit their 

needs or to use another tool, as appropriate. 

When agencies find it helpful to use other 

software tools to perform de-duplication or 

extract information from a large number of 

comments, they should use reliable and 

appropriate software. Such software should 

provide agencies with enhanced search 

options to identify the unique content of 

comments, such as the technologies used by 

commercial legal databases like Westlaw or 

LexisNexis. 

2. To enable easier public navigation 

through online rulemaking dockets, agencies 

may welcome any person or entity organizing 

mass comments to submit comments with 

multiple signatures rather than separate 

identical or substantively identical 

comments. 

3. Agencies may wish to consider 

alternative approaches to managing the 

display of comments online, such as by 

posting only a single representative example 

of identical comments in the online 

rulemaking docket or by breaking out and 

posting only non-identical content in the 

docket, taking into consideration the 

importance to members of the public to be 

able to verify that their comments were 

received and placed in the agency record. 

When agencies decide not to display all 

identical comments online, they should 

provide publicly available explanations of 

their actions and the criteria for verifying the 

receipt of individual comments or locating 

identical comments in the docket and for 

deciding what comments to display. 

4. When an agency decides not to include 

all identical or substantively identical 

comments in its online rulemaking docket to 

improve the navigability of the docket, it 

should ensure that any reported total number 

of comments (such as in Regulations.gov or 

in the preambles to final rules) includes the 

number of identical or substantively identical 

comments. If resources permit, agencies 

should separately report the total number of 

identical or substantively identical comments 

they receive. Agencies should also consider 

providing an opportunity for interested 

members of the public to obtain or access all 

comments received. 

Managing Computer-Generated Comments 

5. To the extent feasible, agencies should 

flag any comments they have identified as 

computer-generated or display or store them 

separately from other comments. If an agency 

flags a comment as computer-generated, or 

displays or stores it separately from the 

online rulemaking docket, the agency should 

note its action in the docket. The agency may 

also choose to notify the submitter directly if 

doing so does not violate any relevant policy 

prohibiting direct contact with senders of 

‘‘spam’’ or similar communications. 

6. Agencies that operate their own 

commenting platforms should consider using 

technology that verifies that a commenter is 

a human being, such as reCAPTCHA or 

another similar identity proofing tool. The 

eRulemaking Program should continue to 

retain this functionality. 

7. When publishing a final rule, agencies 

should note any comments on which they 

rely that they know are computer-generated 

and state whether they removed from the 

docket any comments they identified as 

computer-generated. 

Managing Falsely Attributed Comments 

8. Agencies should provide opportunities 

(including after the comment deadline) for 

individuals whose names or identifying 

information have been attached to comments 

they did not submit to identify such 

comments and to request that the comment 

be anonymized or removed from the online 

rulemaking docket. 

9. If an agency flags a comment as falsely 

attributed or removes such a comment from 

the online rulemaking docket, it should note 

its action in the docket. Agencies may also 

choose to notify the purported submitter 

directly if doing so does not violate any 

agency policy. 

10. If an agency relies on a comment it 

knows is falsely attributed, it should include 

an anonymized version of that comment in 

its online rulemaking docket. When 

publishing a final rule, agencies should note 

any comments on which they rely that are 

falsely attributed and should state whether 

they removed from the docket any falsely 

attributed comments. 

Enhancing Agency Transparency in the 

Comment Process 

11. Agencies should inform the public 

about their policies concerning the posting 

and use of mass, computer-generated, and 

falsely attributed comments. These policies 

should take into account the meaningfulness 

of the public’s opportunity to participate in 

the rulemaking process and should balance 

goals such as user-friendliness, transparency, 

and informational completeness. In their 

policies, agencies may provide for exceptions 

in appropriate circumstances. 

12. Agencies and relevant coordinating 

bodies (such as GSA’s eRulemaking Program, 

the Office of Information and Regulatory 

Affairs, and any other governmental bodies 

that address common rulemaking issues) 

should consider providing publicly available 

materials that explain to prospective 

commenters what types of responses they 

anticipate would be most useful, while also 

welcoming any other comments that 

members of the public wish to submit and 

remaining open to learning from them. These 

materials could be presented in various 

formats—such as videos or FAQs—to reach 

different audiences. These materials may also 

include statements within the notice of 

proposed rulemaking for a given agency rule 

or on agencies’ websites to explain the 

purpose of the comment process and explain 

that agencies seriously consider any relevant 

public comment from a person or 

organization. 

13. To encourage the most relevant 

submissions, agencies that have specific 

questions or are aware of specific information 

that may be useful should identify those 

questions or such information in their notices 

of proposed rulemaking. 

Additional Opportunities for Public 

Participation 

14. Agencies and relevant coordinating 

bodies should stay abreast of new 

technologies for facilitating informative 

public participation in rulemakings. These 

technologies may help agencies to process 

mass comments or identify and process 

computer-generated and falsely attributed 

comments. In addition, new technologies 

may offer new opportunities to engage the 

public, both as part of or as a supplement to 

the notice-and-comment process. Such 

opportunities may help ensure that agencies 

receive input from communities that may not 

otherwise have an opportunity to participate 

in the conventional comment process. 

Coordination and Training 

15. Agencies should work closely with 

relevant coordinating bodies to improve 

existing technologies and develop new 

technologies to address issues associated 

with mass, computer-generated, and falsely 

attributed comments. Agencies and relevant 

coordinating bodies should share best 

practices and relevant innovations for 

addressing challenges related to these 

comments. 

16. Agencies should develop and offer 

opportunities for ongoing training and staff 

development to respond to the rapidly 

evolving nature of technologies related to 

mass, computer-generated, and falsely 

attributed comments and to public 

participation more generally. 

17. As authorized by 5 U.S.C. 594(2), the 

Conference’s Office of the Chairman should 

provide for the ‘‘interchange among 

administrative agencies of information 

potentially useful in improving’’ agency 

comment processing systems. The subjects of 

interchange might include technological and 

procedural innovations, common 

management challenges, and legal concerns 

under the Administrative Procedure Act and 

other relevant statutes. 

Separate Statement for Administrative 

Conference Recommendation 2021–1 by 

Senior Fellow Randolph J. May 

Filed June 18, 2021 

I attended several of the Committee 

meetings that considered the preparation of 


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this Recommendation. So, I have a good 

sense of the hard work that went into the 

preparation of the Recommendation by the 

Consultants, the Rulemaking Committee 

Chair Cary Coglianese, the Committee 

members, and the ACUS staff, and I am 

grateful for their dedication. 

I support adoption of the Recommendation 

in the context of the express limitation of the 

scope of the project as stated: ‘‘This 

Recommendation does not address what role 

particular types of comments should play in 

agency decision making or what 

consideration, if any, agencies should give to 

the number of comments in support of a 

particular position.’’ 

I wish to associate myself generally with 

the Comment of Senior Fellow Richard 

Pierce, dated May 25, 2021, especially his 

concern that the ACUS Recommendation not 

be misconstrued to foster ‘‘the widespread 

but mistaken public belief that notice and 

comment rulemaking can and should be 

considered a plebiscite in which the number 

of comments filed for or against a proposed 

rule is an accurate measure of public opinion 

that should influence the agency’s decision 

whether to adopt the proposed rule.’’ 

I have submitted comments and/or reply 

comments in every ‘‘net neutrality’’ 

proceeding, however denominated, the 

Federal Communications Commission has 

conducted over the last fifteen years—and, 

yes, the back-and-forth battle over various 

‘‘net neutrality’’ proposals has been going on 

that long and there have been at least a dozen 

comment cycles. However, especially in the 

last two ‘‘net neutrality’’ rulemaking cycles, 

in 2014–2015 and 2017, there has been a 

major escalation—you could call it exercising 

the ‘‘nuclear option’’—in the effort, by both 

opposing sides, to generate as many mass, 

computer-generated form comments as 

possible. By ‘‘form comments’’ I mean 

comments that concededly contain little or 

no information beyond cursorily stating a 

‘‘pro’’ or ‘‘con’’ position. 

The startling results of going nuclear, in 

terms of generating the sheer number of 

mass, computer-generated form comments in 

the latest ‘‘net neutrality’’ round are now 

well-known. The phenomenon has been the 

subject of federal and state studies cited in 

the Recommendation’s Preamble, with some 

of the most significant details cited in 

Professor Pierce’s separate statement. Aside 

from any other concerns, I can personally 

testify that the deluge of approximately 22 

million mass, computer-generated form 

comments often overwhelmed the FCC’s 

ability to keep its electronic filing system 

operating properly and often rendered the 

ability to search for comments that might 

possibly contain relevant data and 

information well-nigh impossible. 

And, of course, the huge costs expended by 

private parties engaging in the effort that led 

to the submission of approximately 22 

million mass, computer-generated form 

comments (including the 18 million ‘‘fake’’ 

comments) were enormous, not to mention 

the direct and indirect costs imposed on the 

government merely to compile, process, and 

review the comments. 

It is blinking reality not to recognize that 

the pro- and con- net neutrality interests 

responsible for generating 22 million 

comments assumed, in some significant way, 

that the outcome of the rulemaking would be 

impacted by which side ‘‘won’’ the comment 

battle. In other words, it must have been 

assumed that, in some meaningful sense, the 

rulemaking would be decided on the basis of 

a plebiscite, ‘‘counting comments,’’ not on 

the basis of the quality of the data, evidence, 

and arguments submitted. 

So, while I accept the constraints imposed 

by the parameters of this Recommendation— 

which, on its own terms, contains useful 

guidance to assist agencies—I hope that, 

going forward, ACUS will initiate a project 

that considers the appropriateness of curbing 

the submission of mass, computer-generated 

form comments, and, if so, how best to 

accomplish this. Certainly public education, 

including by government officials, and 

especially the pertinent agency officials, 

regarding the objectives of the rulemaking 

process in general, and specific rulemakings 

in particular, can play an important role. 

I wish to make clear that I recognize the 

value of widespread participation by 

‘‘interested persons,’’ as the Administrative 

Procedure Act puts it, in the rulemaking 

process, not only because of the value of the 

evidence put on the record through such 

participation, but because of the instrumental 

value bestowed upon interested persons by 

the opportunity to participate in government 

decision-making processes that affect them. 

With due deliberation, with recognition of 

the need to exercise care in drawing relevant 

distinctions among various types of 

rulemaking proceedings and their objectives, 

there ought to be a proper way to discourage 

the type of ‘‘comment war’’ that occurred in 

the two most recent FCC net neutrality 

proceedings, while, at the same time, 

encouraging the type of widespread public 

participation that is most helpful to agencies 

in promulgating sound public policies. 

Separate Statement for Administrative 

Conference Recommendation 2021–1 by 

Senior Fellow Nina A. Mendelson 

Filed June 27, 2021 (This Is an Abbreviated 

Version of a Statement That Is Available on 

the ACUS Website.) 

This Recommendation, the product of 

much hard work, will help guide agencies 

managing mass comments and addressing 

falsely attributed and computer-generated 

comments. But these rulemaking-related 

challenges raise very different concerns. 

Comments from ordinary individuals, 

whatever their volume, and whether they 

supply situated knowledge or views, can be 

relevant, useful, and even important to many 

rulemakings. The Recommendation correctly 

does not imply otherwise. The Conference 

should address the proper agency response to 

such comments separately, and soon. 

First, public comment’s function 

encompasses more than the purely 

‘‘technical,’’ whether that is supplying data 

or critiquing an agency’s economic analysis. 

For some statutory issues, certainly, public 

comments transmitting views are less 

relevant. Under the Endangered Species Act, 

for example, an agency determining whether 

an animal is endangered must assess its 

habitat and likelihood of continued 

existence. Public affection for a species is not 

directly relevant. 

But agencies address numerous issues that, 

by statute, extend far beyond technocratic 

questions, encompassing value-laden issues. 

An agency deciding what best serves publicregarding statutory goals must balance all 

such considerations. 

Nonexclusive examples relevant to agency 

statutory mandates include: 

• The importance of nearby accessible 

bathrooms to the dignity of wheelchair users, 

at issue in a 2010 Americans with Disabilities 

Act regulation. 

• Weighing potential public resource uses. 

For multiple-use public lands, the Bureau of 

Land Management must, by regulation, 

balance recreation and ‘‘scenic, scientific and 

historical values’’ with resource extraction 

uses, including timbering and mining. 

• Potential public resistance to an action, 

such as the Coast Guard’s ultimately 

abandoned decision creating live-fire zones 

in the Great Lakes for weapons practice in 

the early 2000s. Had the agency seriously 

sought out public comment, it would have 

detected substantial public resistance to this 

action, which, without the benefit of 

participation, the agency considered justified 

and minimally risky. 

• Public resistance to a possible mandate 

as unduly paternalistic, burdensome, or 

exclusionary, whether ignition interlock or a 

vaccine passport requirement. Justice 

Rehnquist identified this issue in Motor 

Vehicles Mfg. Ass’n v. State Farm Mutual 

Auto Ins., 463 U.S. 29 (1983). Though Justice 

Rehnquist’s dissent linked the issue to 

presidential elections, he underscored its 

relevance to rulemaking. 

• Environmental justice/quality of life 

matters. In a 2020 rule implementing the 

National Environmental Policy Act, the 

Council on Environmental Quality decided 

that an agency need no longer assess a 

proposed action’s cumulative impacts in its 

environmental impact analysis. This decision 

will especially impact low-income 

communities and communities of color, 

including Southwest Detroit, where multiple 

polluting sources adjoin residential 

neighborhoods. Whether to require 

cumulative impacts analysis is not a 

technical issue. It is a policy decision 

whether community environmental and 

quality of life concerns are important enough 

to justify lengthier environmental analyses. 

The comment process enables communities 

to express directly the importance of these 

issues. 

Rulemaking is certainly not a plebiscite. 

Besides representativeness concerns, that is 

mainly because statutes typically require 

agencies to consider multiple factors, not 

only public views. But ordinary people’s 

views and preferences are nonetheless 

relevant and thus appropriately 

communicated to the agency. The text of 5 

U.S.C. 553(c) is express here: ‘‘interested 

persons’’ are entitled to submit ‘‘data, views, 

or arguments.’’ 

Second, the identity of individual 

commenters may provide critical context. 

That a comment on a proposed ADA 

regulation’s importance is from a wheelchair 

user should matter. The same is true for 


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religious group members describing potential 

interference with their practices, residents 

near a pipeline addressing safety or public 

notice requirements, or Native American 

tribal members speaking to spiritual values 

and historical significance of public lands. 

Third, a meaningfully open comment 

process supports broader public engagement 

by otherwise underrepresented individuals 

and communities, whether because of race, 

ethnicity, gender identity, or something else. 

Studies consistently show that industry 

groups and regulated entities, with 

disproportionate resources, access to agency 

meetings, and ability to exert political 

pressure, punch above their weight in the 

comment process. Suggesting that agencies 

can appropriately ignore comments from 

individuals would simply reinforce this 

disparate influence. It would also undercut 

the Conference’s position in 

Recommendation 2018–7, Public 

Engagement in Rulemaking, that agencies 

should act to broaden and enhance public 

participation. 

Moreover, while groups can support 

participation, agencies should not assume 

that group action sufficiently conveys 

individual views. Many individual 

interests—even important ones—are 

underrepresented. With respect to employees 

such as truck drivers, for example, unions 

represent only 10% of U.S. wage workers. 

Where groups do support individual 

comment submission, their involvement 

should not be understood to taint 

participation. Well-funded regulated entities 

typically hire attorneys to draft their 

comments. We nonetheless attribute those 

views to the commenters. We should treat 

individual comments similarly even if they 

incorporate group-suggested language. 

Fourth, although mass comments in certain 

rulemakings may have encouraged computergenerated 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 decisionmaking 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, computergenerated comments and fraudulent 

comments and, if so, how best to accomplish 

that. I believe that ACUS can and should 

discourage these practices by, for instance, 

encouraging agencies to assist in educating 

the public about the types of comments that 

can assist agencies in making evidence-based 

decisions and the types of comments that are 

not helpful to agencies and that instead 


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1See 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.’’). 

2See 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). 

3Recommendation 95–3, supra note 2. 

4 42 U.S.C. 7309(d)(1). 

5 49 U.S.C. 30166(m)(5). 

6See 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). 

7An 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). 

8A 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. 

10See, e.g., Recommendation 2014–5, supra note 

2, ¶ 5 (providing a list of factors for agencies to 

consider when prioritizing some regulations as 

important). 

11See, 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). 

12See supra note 2. 

13See Bennear & Wiener, supra note 6. 

14 5 U.S.C. 312(a)–(b); Off. of Mgmt. & Budget, 

Exec. Off. of the President, Memorandum M–19–23, 

Phase 1 Implementation of the Foundations for 

Evidence-Based Policymaking Act of 2018: Learning 

Agendas, Personnel, and Planning Guidance (2019); 

Off. of Mgmt. & Budget, Exec. Off. of the President, 

Memorandum M–20–12, Phase 4 Implementation of 

the Foundations for Evidence-Based Policymaking 

Act of 2018: Program Evaluation Standards and 

Practices (2020). 

create a variety of problems in managing the 

notice and comment process. 

Administrative Conference Recommendation 

2021–2 

Periodic Retrospective Review 

Adopted June 17, 2021 

Retrospective review is the process by 

which agencies assess existing regulations 

and decide whether they need to be revisited. 

Consistent with longstanding executivebranch policy,1 the Administrative 

Conference has endorsed the practice of 

retrospective review of agency regulations 2

and has urged agencies to consider 

conducting retrospective review under a 

specific timeframe, which is often known as 

‘‘periodic retrospective review.’’ 3 Agencies 

may conduct periodic retrospective review in 

different ways. One common way is for an 

agency to undertake review of some or all of 

its regulations on a pre-set schedule (e.g., 

every ten years). Another way is for the 

agency to set a one-time date for reviewing 

a regulation and, when that review is 

performed, set a new date for the next 

review, and so on. This latter method enables 

the agency to adjust the frequency of a 

regulation’s periodic retrospective review in 

light of experience. 

Periodic retrospective review may occur 

because a statute requires it or because an 

agency chooses to do it on its own initiative. 

Statutes requiring periodic retrospective 

review may specify a time interval over 

which review should be conducted or leave 

the frequency up to the agency. The Clean 

Air Act, for example, requires the 

Environmental Protection Agency to review 

certain ambient air quality regulations every 

five years.4 On the other hand, the 

Transportation Recall Enhancement, 

Accountability, and Documentation (TREAD) 

Act provides that the Department of 

Transportation must ‘‘specify procedures for 

the periodic review and update’’ of its rule 

on early warning reporting requirements for 

manufacturers of motor vehicles without 

specifying how often that review must 

occur.5 Even when periodic retrospective 

review is not mandated by statute, agencies 

have sometimes voluntarily implemented 

periodic retrospective review programs.6

Periodic retrospective review can enhance 

the quality of agencies’ regulations by 

helping agencies determine whether 

regulations continue to meet their statutory 

objectives. Such review can also help 

agencies evaluate regulatory performance 

(e.g., the benefits, costs, ancillary impacts,7

and distributional impacts 8 of regulations), 

assess whether and how a regulation should 

be revised in a new rulemaking, determine 

the accuracy of the assessments they made 

before issuing their regulations (including 

assessments regarding forecasts of benefits, 

costs, ancillary impacts, and distributional 

impacts), and identify ways to improve the 

accuracy of the underlying assessment 

methodologies.9 Agencies that have 

incorporated standards by reference in their 

regulations also can—and, indeed, should— 

arrange to be notified by the adopting 

standards organizations of relevant revisions 

to those standards and consider adopting 

those revisions, thus ensuring that 

regulations remain current. 

But there can also be drawbacks associated 

with periodic retrospective review. Some 

regulations may not be strong candidates for 

such review because the need for the 

regulations is unlikely to change and the 

benefits associated with periodically 

revisiting them are likely to be small. There 

are also costs associated with collecting and 

analyzing data, and time spent reviewing 

existing regulations may come at the cost of 

other important regulatory activities. For this 

reason, agencies might reasonably decide to 

limit periodic retrospective review to certain 

types of regulations, such as important 

regulations that affect large numbers of 

people or that have particularly pronounced 

effects on specific groups.10 Periodic 

retrospective review can also generate 

uncertainty regarding whether a regulation 

will be retained or modified. Agencies, 

therefore, should tailor their periodic 

retrospective review plans carefully to 

account for these drawbacks. 

Mindful of both the value of periodic 

retrospective review and the tradeoffs 

associated with it, this Recommendation 

offers practical suggestions to agencies about 

how to establish periodic retrospective 

review plans. It does so by, among other 

things, identifying the types of regulations 

that lend themselves well to periodic 

retrospective review, proposing factors for 

agencies to consider in deciding the optimal 

review frequency when they have such 

discretion, and identifying different models 

for staffing periodic retrospective review. In 

doing so, it builds upon the Conference’s 

longstanding endorsement of public 

participation in all aspects of the rulemaking 

process,11 including retrospective review,12

by encouraging agencies to seek public input 

both to help identify the types of regulations 

that lend themselves well to periodic 

retrospective review and to inform that 

review. 

This Recommendation also recognizes the 

important role that the Office of Management 

and Budget (OMB) plays in agencies’ 

periodic retrospective review efforts as well 

as the significance of the Foundations for 

Evidence-Based Policymaking Act (the 

Evidence Act) and associated OMB-issued 

guidance.13 It encourages agencies to work 

with OMB to help facilitate data collection 

relevant to reviewing regulations. It also calls 

attention to the Evidence Act’s requirements 

that certain agencies create Learning 

Agendas, which identify questions for 

agencies to address regarding their regulatory 

missions, and Annual Evaluation Plans, 

which lay out specific measures agencies will 

take to answer those questions.14 Consistent 

with the Evidence Act, the Recommendation 

provides that agencies can incorporate 

periodic retrospective review in their 

Learning Agendas and Annual Evaluation 

Plans by undertaking and documenting 

certain activities as they carry out their 

review. 

In issuing this Recommendation, the 

Conference recognizes that agencies will 

need to consider available resources in 

deciding whether a periodic retrospective 

review program should be implemented and, 

if so, what form it should take. The 

recommendations offered below are subject 

to that qualification. 

Recommendation 

Selecting the Types of Regulations to Subject 

to Periodic Retrospective Review and the 

Frequency of Review 

1. Agencies should identify any specific 

regulations or categories of regulations that 

are subject to statutory periodic retrospective 

review requirements. 

2. For regulations not subject to statutory 

periodic retrospective review requirements, 

agencies should establish a periodic 

retrospective review plan. In deciding which 


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regulations, if any, should be subject to such 

a review plan, agencies should consider the 

public benefits of periodic retrospective 

review, including potential gains from 

learning more about regulatory performance, 

and the costs, including the administrative 

burden associated with performing the 

review and any disruptions to reliance 

interests and investment-backed 

expectations. When agencies adopt new 

regulations for which plans regarding 

periodic retrospective review have not been 

established, agencies should, as part of the 

process of developing such regulations, 

decide whether those regulations should be 

subject to periodic retrospective review. 

3. When agencies plan for periodic 

retrospective review, they should not limit 

themselves to reviewing a specific final 

regulation when a review of a larger 

regulatory program would be more 

constructive. 

4. When agencies decide to subject 

regulations to periodic retrospective review, 

they should decide whether to subject some 

or all of the regulations to a pre-set schedule 

of review or whether, for some or all of the 

regulations, it is preferable to set only an 

initial date for review and decide, as part of 

that review, when to undertake the next 

review. In selecting the frequency of review 

or setting the first or any subsequent date of 

review, agencies should consider, among 

others, the following factors: 

a. The pace of change of the technology, 

science, sector of the economy, or part of 

society affected by the regulation. A higher 

pace of change may warrant more frequent 

review; 

b. The degree of uncertainty about the 

accuracy of the initial estimates of regulatory 

benefits, costs, ancillary impacts, and 

distributional impacts. Greater uncertainty 

may warrant more frequent review; 

c. Changes in the statutory framework 

under which the regulation was issued. More 

changes may warrant more frequent review; 

d. Comments, complaints, requests for 

waivers or exemptions, petitions for the 

modification or repeal of existing rules, or 

suggestions received from interested persons. 

The level of public interest or amount of new 

evidence regarding changing the regulation 

may warrant more frequent review; 

e. The difficulties arising from 

implementation of the regulation, as 

demonstrated by poor compliance rates, 

requests for waivers or exemptions, the 

amount of clarifying guidance issued, 

remands from the courts, or other factors. 

Greater difficulties may warrant more 

frequent review; 

f. The administrative burden in conducting 

periodic retrospective review. Larger 

burdens, such as greater staff time, involved 

in reviewing the regulation may warrant less 

frequent review; and 

g. Reliance interests and investmentbacked expectations connected with the 

regulation. Steps taken by persons in reliance 

on a particular regulation or with the 

expectation that it will remain unaltered may 

favor less frequent review. 

5. In making the decisions outlined in 

Paragraphs 1 through 4, public input can 

help agencies identify which regulations 

should be subject to periodic retrospective 

review and with what frequency. Agencies 

should consider soliciting public input by 

means such as convening meetings of 

interested persons, engaging in targeted 

outreach efforts to historically 

underrepresented or under-resourced groups 

that may be affected by the agencies’ 

regulations, and posting requests for 

information. 

6. Agencies should publicly disclose their 

periodic retrospective review plans, which 

should cover issues such as which 

regulations are subject to periodic 

retrospective review, how frequently those 

regulations are reviewed, what the review 

entails, and whether the review is conducted 

pursuant to a legal requirement or the 

agencies’ own initiative. Agencies should 

include these notifications on their websites 

and consider publishing them in the Federal 

Register, even if the law does not require it. 

7. With respect to regulations subject to a 

pre-set schedule of periodic retrospective 

review, agencies should periodically reassess 

the regulations that should be subject to 

periodic retrospective review and the optimal 

frequency of review. 

Publishing Results of Periodic Retrospective 

Review and Soliciting Public Feedback on 

Regulations Subject to Review 

8. Agencies should publish in a prominent, 

easy-to-find place on the portion of their 

websites dealing with rulemaking matters, a 

document or set of documents explaining 

how they conducted a given periodic 

retrospective review, what information they 

considered, and what public outreach they 

undertook. They should also include this 

document or set of documents on 

Regulations.gov. To the extent appropriate, 

agencies should organize the data in the 

document or set of documents in ways that 

allow private parties to re-create the agencies’ 

work and run additional analyses concerning 

existing regulations’ effectiveness. When 

feasible, agencies should also explain in 

plain language the significance of their data 

and how they used the data to shape their 

review. 

9. Agencies should seek input from 

relevant parties when conducting periodic 

retrospective review. Possible outreach 

methods include convening meetings of 

interested persons; engaging in targeted 

outreach efforts, such as proactively bringing 

the regulation to the attention of historically 

underrepresented or under-resourced groups; 

and posting requests for information 

regarding the regulation. Agencies should 

integrate relevant information from the 

public into their periodic retrospective 

reviews. 

10. Agencies should work with the Office 

of Management and Budget (OMB) to 

properly invoke any flexibilities within the 

Paperwork Reduction Act that would enable 

them to gather relevant data expeditiously. 

Ensuring Adequate Resources and Staffing 

11. Agencies should decide how best to 

structure their staffing of periodic 

retrospective reviews to foster a culture of 

retrospective review and ongoing learning. 

Below are examples of some staffing models, 

which may be used in tandem or separately: 

a. Assigning the same staff the same 

regulation, or category of regulation, each 

time it is reviewed. This approach allows 

staff to gain expertise in a particular kind of 

regulation, thereby potentially improving the 

efficiency of the review; 

b. Assigning different staff the same 

regulation, or category of regulation, each 

time it is reviewed. This approach promotes 

objectivity by allowing differing viewpoints 

to enter into the analysis; 

c. Engaging or cooperating with agency or 

non-agency subject matter experts to review 

regulations; and 

d. Pairing subject matter experts, such as 

engineers, economists, sociologists, and 

scientists, with other agency employees in 

conducting the review. This approach 

maximizes the likelihood that both 

substantive considerations, such as the net 

benefits and distributional and ancillary 

impacts of the regulation, and procedural 

considerations, such as whether the 

regulation conflicts with other regulations or 

complies with plain language requirements, 

will enter into the review. 

Using Evidence Act Processes 

12. Consistent with the Evidence Act, 

agencies should incorporate periodic 

retrospective reviews in their Learning 

Agendas and Annual Evaluation Plans. In 

doing so, agencies should ensure that they 

include: 

a. The precise questions they intend to 

answer using periodic retrospective review. 

Those questions should include how 

frequently particular regulations should be 

reviewed and should otherwise be keyed to 

the factors set forth in Section 5 of Executive 

Order 12866 for periodic retrospective review 

of existing significant regulations; 

b. The information needed to adequately 

review the regulations subject to the periodic 

retrospective reviews. Agencies should state 

whether they will undertake new information 

collection requests or use existing 

information to conduct the reviews; 

c. The methods the agencies will use in 

conducting their reviews, which should 

comport with the federal program evaluation 

standards set forth by OMB; 

d. The anticipated challenges the agencies 

anticipate encountering during the reviews, if 

any, such as obstacles to collecting relevant 

data; and 

e. The ways the agencies will use the 

results of the reviews to inform 

policymaking. 

Interagency Coordination 

13. Agencies that are responsible for 

coordinating activities among other agencies, 

such as the Office of Information and 

Regulatory Affairs, should, as feasible, 

regularly convene agencies to identify and 

share best practices on periodic retrospective 

review. These agencies should address 

questions such as how to improve timeliness 

and analytic quality of review and the 

optimal frequency of discretionary review. 

14. To promote a coherent regulatory 

scheme, agencies should coordinate their 

periodic retrospective reviews with other 

agencies that have issued related regulations. 


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1See 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). 

4Exec. Order No. 12866, § 1, 58 FR 51735, 51735– 

36 (Sept. 30, 1993). 

5See Admin. Conf. of the U.S., Recommendation 

2014–5, Retrospective Review of Agency Rules, ¶ 6, 

79 FR 75114, 75116–17 (Dec. 17, 2014). 

6See 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.). 

7See Exec. Order No. 12866, supra note 4, § 4(c). 

8A 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).’’ 

9See Exec. Order. No. 13985, 86 FR 7009 (Jan. 25, 

2021) (directing the Office of Management and 

Budget, in partnership with agencies, to ensure that 

agency policies and actions are equitable with 

respect to race, ethnicity, religion, income, 

geography, gender identity, sexual orientation, and 

disability); Memorandum on Modernizing 

Regulatory Review, 86 FR 7223 (Jan. 26, 2021) 

(requiring the Office of Management and Budget to 

produce recommendations regarding improving 

regulatory review that, among other things, 

‘‘propose procedures that take into account the 

distributional consequences of regulations . . . to 

ensure that regulatory initiatives appropriately 

benefit and do not inappropriately burden 

disadvantaged, vulnerable, or marginalized 

communities’’). 

10 5 U.S.C. 609. 

11 10 CFR 430, subpart C, app. A. 

12See, e.g., Federal Advisory Committee Act, 5 

U.S.C. app. 2 1–16. 

Administrative Conference Recommendation 

2021–3 

Early Input on Regulatory Alternatives 

Adopted June 17, 2021 

Agency development of and outreach 

concerning regulatory alternatives prior to 

issuing a notice of proposed rulemaking 

(NPRM) on important issues often results in 

a better-informed notice-and-comment 

process, facilitates decision making, and 

improves rules. In this context, the term 

‘‘regulatory alternative’’ is used broadly and 

could mean, among other things, a different 

method of regulating, a different level of 

stringency in the rule, or not regulating at 

all.1 Several statutes and executive orders, 

including the National Environmental Policy 

Act (NEPA),2 the Regulatory Flexibility Act 

(RFA),3 and Executive Order 12866,4 require 

federal agencies to identify and consider 

alternative regulatory approaches before 

proposing certain new rules. This 

Recommendation suggests best practices for 

soliciting early input during the process of 

developing regulatory alternatives, whether 

or not it is required by law or executive 

order, before publishing an NPRM. It also 

provides best practices for publicizing the 

alternatives considered when agencies are 

promulgating important rules.5

The Administrative Conference has 

previously recommended that agencies 

engage with the public throughout the 

rulemaking process, including by seeking 

input while agencies are still in the early 

stages of shaping a rule.6 Agencies might 

conduct this outreach while developing their 

regulatory priorities, including in the 

proposed regulatory plans agencies are 

required to prepare under Executive Order 

12866.7 Seeking early input before issuing a 

notice of proposed rulemaking can help 

agencies identify alternatives and learn more 

about the benefits, costs, distributional 

impacts,8 and technical feasibility of 

alternatives to the proposal they are 

considering. Doing so is particularly 

important, even if not required by law or 

executive order, for a proposal likely to draw 

significant attention for its economic impact 

or other significance. It can also be especially 

valuable for agencies seeking early input on 

regulatory alternatives to reach out to a wide 

range of interested persons, including 

affected groups that often are 

underrepresented in the administrative 

process and may suffer disproportionate 

harms from a proposed rule.9

When seeking early input on regulatory 

alternatives, agencies might consider 

approaches modeled on practices that other 

agencies already use. In so doing, they might 

look at agency practices that are required by 

statute (e.g., the Small Business Regulatory 

Enforcement Fairness Act) 10 or agency rules 

(e.g., the Department of Energy’s ‘‘Process 

Rule’’),11 or practices that agencies have 

voluntarily undertaken in the absence of any 

legal requirement. 

Nevertheless, seeking early input on 

alternatives may not be appropriate in all 

cases and may trigger certain procedural 

requirements.12 In some instances, the 

alternatives may be obvious. In others, the 

subject matter may be so obscure that public 

input is unlikely to prove useful. And in all 

cases, agencies face resource constraints and 

competing priorities, so agencies may wish to 

limit early public input to a subclass of rules 

such as those with substantial impact. 

Agencies will need to consider whether the 

benefits of early outreach outweigh the costs, 

including the resources required to conduct 

the outreach and any delays entailed. When 

agencies do solicit early input, they will still 

want to tailor their outreach to ensure that 

they are soliciting input in a way that is costeffective, is equitable, and maximizes the 

likelihood of obtaining diverse, useful 

responses. 

Recommendation 

1. When determining whether to seek early 

input from knowledgeable persons to identify 

potential regulatory alternatives or respond 

to alternatives an agency has already 

identified, the agency should consider factors 

such as: 

a. The extent of the agency’s familiarity 

with the policy issues and key alternatives; 

b. The extent to which the conduct being 

regulated or any of the alternatives suggested 

are novel; 

c. The degree to which potential 

alternatives implicate specialized technical 

or technological expertise; 

d. The complexity of the underlying policy 

question and the proposed alternatives; 

e. The potential magnitude of the costs and 

benefits of the alternatives proposed; 

f. The likelihood that the selection of an 

alternative will be controversial; 

g. The time and resources that conducting 

such outreach would require; 

h. The extent of the agency’s discretion to 

select among alternatives, given the statutory 

language being implemented; 

i. The deadlines the agency faces, if any, 

and the harms that might occur from the 

delay required to solicit and consider early 

feedback; 

j. The extent to which certain groups that 

are affected by the proposed regulation and 

have otherwise been underrepresented in the 

agency’s administrative process may suffer 

adverse distributional effects from generally 

beneficial proposals; and 

k. The extent to which experts in other 

agencies may have valuable input on 

alternatives. 

2. In determining what outreach to 

undertake concerning possible regulatory 

alternatives, an agency should consider 

using, consistent with available resources 

and feasibility, methods of soliciting public 

input including: 

a. Meetings with interested persons held 

episodically or as-needed based on 

rulemaking activities; 

b. Listening sessions; 

c. Internet and social media forums; 

d. Focus groups; 

e. Advisory committees, including those 

tasked with conducting negotiated 

rulemaking; 

f. Advance notices of proposed 

rulemakings; and 

g. Requests for information. 

The agency should also consider how to 

ensure that its interactions with outside 

persons are transparent, to the maximum 

extent permitted by law. 

3. An agency should consider whether the 

methods it uses to facilitate early outreach in 

its rulemaking process will engage a wide 

range of interested persons, including 

individuals and groups that are affected by 

the rule and are traditionally 

underrepresented in the agency’s rulemaking 

processes. The agency should consider which 

methods would best facilitate such outreach, 

including providing materials designed for 

the target participants. For example, highly 

technical language may be appropriate for 

some, but not all, audiences. The agency 

should endeavor to make participation by 

interested persons who have less time and 

fewer resources as easy as possible, 

particularly when those potential 

participants do not have experience in the 

rulemaking process. The agency should 

explain possible consequences of the 


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1Admin. Conf. of the U.S., Recommendation 

2011–4, Agency Use of Video Hearings: Best 

Practices and Possibilities for Expansion, 76 FR 

48795, 48795–96 (Aug. 9, 2011). 

2 Id. 

3 Id. 

4 Id. ¶ 2. 

5Admin. 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). 

6For 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). 

7See Jeremy Graboyes, Legal Considerations for 

Remote Hearings in Agency Adjudications 3 (June 

16, 2020) (report to the Admin. Conf. of the U.S.). 

8 Id. at 1. 

9See 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.). 

10See id. at 3. 

potential rulemaking to help potential 

participants understand the importance of 

their input and to encourage their 

participation in the outreach. 

4. If an agency is unsure what methods of 

soliciting public input will best meet its 

needs and budget, it should consider testing 

different methods to generate alternatives or 

receive input on the regulatory alternatives it 

is considering before issuing notices of 

proposed rulemaking (NPRMs). As 

appropriate, the agency should describe the 

outcomes of using these different methods in 

the NPRMs for rules in which they are used. 

5. An agency should ensure that all of its 

relevant officials, including economists, 

scientists, and other experts, have an 

opportunity to identify potential regulatory 

alternatives during the early input process. 

As appropriate, the agency should also reach 

out to select experts in other agencies for 

input on alternatives. 

6. An agency should consider providing in 

the NPRM a discussion of the reasonable 

regulatory alternatives it has considered or 

that have been suggested to it, including 

alternatives it is not proposing to adopt, 

together with the reasons it is not proposing 

to adopt those alternatives. To the extent the 

agency is concerned about revealing the 

identity of the individuals or groups offering 

proposed alternatives due to privacy or 

confidentiality concerns, it should consider 

characterizing the identity (e.g., industry 

representative, environmental organization, 

etc.) or listing the alternatives without 

ascribing them to any particular person. 

7. When an agency discusses regulatory 

alternatives in the preamble of a proposed or 

final rule, it should also consider including 

a discussion of any reasonable alternatives 

suggested or considered through early public 

input, but which the agency believes are 

precluded by statute. The discussion should 

also include an explanation of the agency’s 

views on the legality of those alternatives. 

8. To help other agencies craft best 

practices for early engagement with the 

public, an agency should, when feasible, 

share data and other information about the 

effectiveness of its efforts to solicit early 

input on regulatory alternatives. 

Administrative Conference Recommendation 

2021–4 

Virtual Hearings in Agency Adjudication 

Adopted June 17, 2021 

The use of video teleconferencing (VTC) to 

conduct administrative hearings and other 

adjudicative proceedings has become 

increasingly prevalent over the past few 

decades due to rapid advances in technology 

and telecommunications coupled with 

reduced personnel, increased travel costs, 

and the challenges of the COVID–19 

pandemic. As the Administrative Conference 

has recognized, ‘‘[s]ome applaud the use of 

VTC by administrative agencies because it 

offers potential efficiency benefits, such as 

reducing the need for travel and the costs 

associated with it, reducing caseload backlog, 

and increasing scheduling flexibility for 

agencies and attorneys as well as increasing 

access for parties.’’ 1 At the same time, as the 

Conference has acknowledged, critics have 

suggested that the use of VTC may ‘‘hamper 

communication’’ among participants— 

including parties, their representatives, and 

the decision maker—or ‘‘hamper a decisionmaker’s ability to make credibility 

determinations.’’ 2

The Conference has encouraged agencies, 

particularly those with high-volume 

caseloads, to consider ‘‘whether the use of 

VTC would be beneficial as a way to improve 

efficiency and/or reduce costs while also 

preserving the fairness and participant 

satisfaction of proceedings.’’ 3 Recognizing 

that the use of VTC may not be appropriate 

in all circumstances and must be legally 

permissible, the Conference has identified 

factors for agencies to consider when 

determining whether to use VTC to conduct 

hearings. They include whether the nature 

and type of adjudicative hearings conducted 

by an agency are conducive to the use of 

VTC; whether VTC can be used without 

adversely affecting case outcomes or 

representation of parties; and whether the 

use of VTC would affect costs, productivity, 

wait times, or access to justice.4 The 

Conference has also set forth best practices 

and practical guidelines for conducting video 

hearings.5

When the Conference issued these 

recommendations, most video participants 

appeared in formal hearing rooms equipped 

with professional-grade video screens, 

cameras, microphones, speakers, and 

recording systems. Because these hearing 

rooms were usually located in government 

facilities, agencies could ensure that staff 

were on site to maintain and operate VTC 

equipment, assist participants, and 

troubleshoot any technological issues. This 

setup, which this Recommendation calls a 

‘‘traditional video hearing,’’ gives agencies a 

high degree of control over VTC equipment, 

telecommunications connections, and 

hearing rooms. 

Videoconferencing technology continues to 

evolve, with rapid developments in internetbased videoconferencing software, 

telecommunications infrastructure, and 

personal devices.6 Recently, many agencies 

have also allowed, or in some cases required, 

participants to appear remotely using 

internet-based videoconferencing software. 

Because individual participants can run 

these software applications on personal 

computers, tablets, or smartphones, they can 

appear from a location of their choosing, 

such as a home or office, rather than needing 

to travel to a video-equipped hearing site. 

This Recommendation uses the term ‘‘virtual 

hearings’’ to refer to proceedings in which 

individuals appear in this manner. This term 

includes proceedings in which all 

participants appear virtually, as well as 

hybrid proceedings in which some 

participants appear virtually while others 

participate by alternative remote means or in 

person.7

Although some agencies used virtual 

hearings before 2020, their use expanded 

dramatically during the COVID–19 

pandemic, when agencies maximized 

telework, closed government facilities to the 

public and employees, and required social 

distancing.8 Agencies gained considerable 

experience conducting virtual hearings 

during this period,9 and this 

Recommendation draws heavily on these 

experiences. 

Virtual hearings can offer several benefits 

to agencies and parties compared with 

traditional video hearings. Participants may 

be able to appear from their home using their 

own personal equipment, from an attorney’s 

office, or from another location such as a 

public library or other conveniently located 

governmental facility, without the need to 

travel to a video-equipped hearing site. As a 

result, virtual hearings can simplify 

scheduling for parties and representatives 

and may facilitate the involvement of other 

participants such as interpreters, court 

reporters, witnesses, staff or contractors who 

provide administrative or technical support, 

and other interested persons. Given this 

flexibility, virtual hearings may be especially 

convenient for short and relatively informal 

adjudicative proceedings, such as pre-hearing 

and settlement conferences.10

Because virtual hearings allow participants 

to appear from a location of their choosing 

without needing to travel to a facility suitable 

for conducting an in-person or traditional 

video hearing, they have the potential to 

expand access to justice for individuals who 

belong to certain underserved communities. 

Virtual hearings may be especially beneficial 

for individuals whose disabilities make it 

difficult to travel to hearing facilities or 

participate in public settings; individuals 

who live in rural areas and may need to 

travel great distances to hearing facilities; 

and low-income individuals for whom it may 

be difficult to secure transportation to 

hearing facilities or take time off work or 

arrange for childcare to participate in inperson or traditional video hearings. The use 


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11See 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). 

12See Lederer, supra note 9, at 8–12, 18. 

13See id. at 12, 16–17. 

14See id. at 12, 17. 

15For 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 formalhearing provisions. See Graboyes, supra note 7, at 

22–23. 

16 5 U.S.C. 552. 

17 Id. § 552a. 

18 44 U.S.C. 3101 et seq. 

19This Recommendation does not take a position 

on when parties should be entitled to, or may 

request, an in-person hearing. 

of virtual hearings may also expand access to 

representation, especially for individuals 

who live in areas far from legal aid 

organizations.11

But virtual hearings can pose significant 

challenges as well. The effectiveness of 

virtual hearings depends on individuals’ 

access to a suitable internet connection, a 

personal device, and a space from which to 

participate, as well as their ability to 

effectively participate in an adjudicative 

proceeding by remote means while operating 

a personal device and videoconferencing 

software. As a result, virtual hearings may 

create a barrier to access for individuals who 

belong to underserved communities, such as 

low-income individuals for whom it may be 

difficult to obtain access to high-quality 

personal devices or private internet services, 

individuals whose disabilities prevent 

effective engagement in virtual hearings or 

make it difficult to set up and manage the 

necessary technology, and individuals with 

limited English proficiency. Some 

individuals may have difficulty, feel 

uncomfortable, or lack experience using a 

personal device or internet-based 

videoconferencing software to participate in 

an adjudicative proceeding. Some critics 

have also raised concerns that virtual 

participation can negatively affect parties’ 

satisfaction, engagement with the 

adjudicative process, or perception of 

justice.12

Agencies have devised several methods to 

address these concerns. The Board of 

Veterans’ Appeals conducts virtual hearings 

using the same videoconferencing 

application that veterans use to access agency 

telehealth services. To enhance the formality 

of virtual hearings, many adjudicators use a 

photographic backdrop that depicts a hearing 

room, seal, or flag. Many agencies use prehearing notices and online guides to explain 

virtual hearings to participants. Several 

agencies provide general or pre-hearing 

training sessions at which agency staff, often 

attorneys, can familiarize participants with 

the procedures and standards of conduct for 

virtual hearings. Though highly effective, 

these sessions require staff time and 

availability.13

Virtual hearings can also pose practical 

and logistical challenges. They can suffer 

from technical glitches, often related to shortterm, internet bandwidth issues. Virtual 

hearings may sometimes require agencies to 

take special measures to ensure the integrity 

of adjudicative proceedings. Such measures 

may be necessary, for example, to safeguard 

classified, legally protected, confidential, or 

other sensitive information, or to monitor or 

sequester witnesses to ensure third parties do 

not interfere with their testimony.14 Agencies 

may also need to take special measures to 

ensure that interested members of the public 

can observe virtual hearings in appropriate 

circumstances by, for example, streaming live 

audio or video of a virtual hearing or 

providing access to a recording afterward.15

Recording virtual hearings may raise 

additional legal, policy, and practical 

concerns. To the extent that such recordings 

become part of the administrative record or 

serve as the official record of the proceeding, 

agencies may need to consider whether and 

for what purposes appellate reviewers may 

consider and rely on them. Creating 

recordings may trigger obligations under 

federal information and record-keeping laws 

and policies, including the Freedom of 

Information Act,16 Privacy Act,17 and Federal 

Records Act.18 Agencies may need to review 

contract terms when considering the use of 

videoconferencing software applications to 

determine whether any other entities own or 

can access or use recordings made through 

the applications, or whether an agency may 

obtain ownership and possession of the 

recording. Steps may be necessary to ensure 

that agencies do not inadvertently disclose 

classified, protected, or sensitive information 

or make it easy for people to use publicly 

available recordings for improper purposes. 

Practically, unless agencies store recordings 

on external servers, such as in the cloud, 

agencies would need sufficient technological 

capacity to store the volume of recordings 

associated with virtual hearings. Agencies 

would also need personnel qualified and 

available to manage and, as appropriate, 

prepare recordings for public access. 

This Recommendation builds on 

Recommendation 2011–4, Agency Use of 

Video Hearings: Best Practices and 

Possibilities for Expansion, and 

Recommendation 2014–7, Best Practices for 

Using Video Teleconferencing for Hearings, 

by identifying factors for agencies to consider 

as they determine when and how to conduct 

virtual hearings. Specifically, this 

Recommendation provides best practices for 

conducting virtual hearings in appropriate 

circumstances and encourages agencies to 

monitor technological and procedural 

developments that may facilitate remote 

participation in appropriate circumstances. 

As emphasized in Recommendation 2014– 

7, the Conference is committed to the 

principles of fairness, efficiency, and 

participant satisfaction in the conduct of 

adjudicative proceedings. When virtual 

hearings are used, they should be used in a 

manner that promotes these principles, 

which form the cornerstones of adjudicative 

legitimacy. The Conference recognizes that 

the use of virtual hearings is not suitable for 

every kind of adjudicative proceeding but 

believes greater familiarity with existing 

agency practices and awareness of the 

improvements in technology will encourage 

broader use of such technology in 

appropriate circumstances. This 

Recommendation aims to ensure that, when 

agencies choose to offer virtual hearings, they 

are able to provide a participant experience 

that meets or even exceeds the in-person 

hearing experience.19

Recommendation 

Procedural Practices 

1. If legally permissible, agencies should 

offer virtual hearings consistent with their 

needs, in accord with principles of fairness 

and efficiency, and with due regard for 

participant satisfaction. In developing 

policies regarding virtual hearings, agencies 

should consider, at a minimum, the 

following: 

a. Whether the nature and type of 

adjudicative proceedings are conducive to 

the use of virtual hearings and whether 

virtual hearings can be used without affecting 

the procedural fairness or substantive 

outcomes of cases; 

b. Whether virtual hearings are likely to 

result in significant benefits for agency and 

non-agency participants, including improved 

access to justice, more efficient use of time 

for adjudicators and staff, reduced travel 

costs and delays, and reduced wait times and 

caseload backlogs; 

c. Whether virtual hearings are likely to 

result in significant costs for agency and nonagency participants, including those 

associated with purchasing, installing, and 

maintaining equipment and software, 

obtaining and using administrative and 

technical support, and providing training; 

d. Whether the use of virtual hearings 

would affect the representation of parties; 

e. Whether the use of virtual hearings 

would affect communication between 

hearing participants (including adjudicators, 

parties, representatives, witnesses, 

interpreters, agency staff, and others); 

f. Whether the use of virtual hearings 

would create a potential barrier to access for 

individuals who belong to underserved 

communities, such as low-income 

individuals for whom it may be difficult to 

obtain access to high-quality personal 

devices or private internet services, 

individuals whose disabilities prevent 

effective engagement in virtual hearings or 

make it difficult to set up and manage the 

necessary technology, and individuals with 

limited English proficiency, or for other 

individuals who may have difficulty using a 

personal device or internet-based 

videoconferencing software to participate in 

adjudicative proceedings; 


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g. Whether the use of virtual hearings 

would affect adjudicators’ ability to make 

credibility determinations; and 

h. Whether there is a reasonable concern 

that the use of virtual hearings would enable 

someone to improperly interfere with 

participants’ testimony. 

2. Agencies should revise any provisions of 

their codified rules of practice that 

unintentionally restrict adjudicators’ 

discretion to allow individuals to participate 

virtually, when such participation would 

otherwise satisfy the principles in Paragraph 

1. 

3. Agencies should adopt the presumption 

that virtual hearings are open to the public, 

while retaining the ability to close the 

hearings in particular cases, including when 

the public interest in open proceedings is 

outweighed by the need to protect: 

a. National security; 

b. Law enforcement; 

c. Confidentiality of business documents; 

or 

d. Privacy of hearing participants. 

For virtual hearings that are open to the 

public, agencies should provide a means for 

interested persons to attend or view the 

hearing. 

4. If agencies record virtual hearings, they 

should consider the legal, practical, and 

technical implications of doing so and 

establish guidelines to seek to ensure, at a 

minimum, compliance with applicable 

information and recordkeeping laws and 

policies and guard against misuse of 

recordings. 

5. Agencies should work with information 

technology and data security professionals to 

develop protocols to properly safeguard 

classified, legally protected, confidential, and 

other sensitive information during virtual 

hearings and also to ensure the integrity of 

the hearing process. 

6. Agencies that offer virtual hearings 

should develop guidelines for conducting 

them, make those guidelines publicly 

available prominently on their websites, and 

consider which of those guidelines to include 

in their codified rules of practice. Such 

guidelines should address, as applicable: 

a. Any process by which parties, 

representatives, and other participants can 

request to participate virtually; 

b. Circumstances in which an individual’s 

virtual participation may be inappropriate; 

c. Any process by which parties, 

representatives, and other participants can, 

as appropriate, object to or express concerns 

about participating virtually; 

d. Technological requirements for virtual 

hearings, including those relating to access to 

the internet-based videoconferencing 

software used for virtual hearings and any 

technical suggestions for participants who 

appear virtually; 

e. Standards of conduct for participants 

during virtual hearings, such as those 

requiring participants to disclose whether 

they are joined or assisted by any silent, offcamera individuals; 

f. The availability of or requirement to 

attend a general training session or prehearing 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 casespecific circumstances, produce comparable 

results. 

14. Agencies should collect anonymous 

feedback from participants (e.g., using posthearing 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 


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