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Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations encrypted digital signatures, or electronic signatures, whether filing electronically or on paper..

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K. Transition Period Comment: One commenter stated that EOIR should implement a transition period before making electronic filing mandatory for attorneys and accredited representatives in order for representatives to ensure they have the necessary staffing, training, and file storage.
Response: After consideration, the Department declines to implement an explicit transition period for attorneys and accredited representatives. The Department believes that electronic filing is standard practice in most court systems and that most, if not all, users should already be familiar with uploading documents electronically.
EOIR has devoted resources to developing the EOIR Case Portal, an updated electronic filing portal that features an intuitive user interface for electronically filing documents at the immigration courts and the BIA and will be providing training materials and technical support to filers as necessary.
For example, users can currently view training materials, including infographics and videos on how to upload and download documents, on EOIRs website. See EOIR, Resources Attorneys and Accredited Representatives, available at https
www.justice.gov/eoir/ecas/attorney-andar-resources last updated Aug. 25, 2021. This rule also includes a 60-day waiting period before it becomes effective, which provides additional time for filers to familiarize themselves with ECAS. Moreover, ECAS has been in production at many pilot courts for more than two years without issue, evincing a stable electronic filing system. See EOIR Electronic Filing Pilot Program, 83 FR 29575 June 25, 2018.
In addition, this rule only applies to cases initiated after the ECAS release in a specific court or the BIA. See 8 CFR
1001.1cc defining case eligible for electronic filing. Therefore, attorneys and accredited representatives will only be required to electronically file documents in newly initiated cases, which will act as a de facto transition period.
L. Interaction with Other EOIR Proposed Rules Comment: One commenter raised concerns about the rules interaction with the September 30, 2020 NPRM
entitled, Professional Conduct for PractitionersRules and Procedures, and Representation and Appearances, 85 FR 61640 Sept. 30, 2020

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September NPRM. The commenter requested clarification on the interaction between electronic filing under this rule and the September NPRM and recommended that the comment period be reopened to allow commenters additional time to explore potential interactions between the two rules.
Response: The Department finds it unnecessary to extend the comment period as requested because this rule and the September NPRM address two different, though admittedly related, topics. In the September NPRM, the Department proposed a new manner of appearance before the immigration courts and the BIA: Document assistance that would not trigger the full range of responsibilities and obligations required for full representation. See 85
FR at 61645. This rule establishes electronic filing requirements for attorneys and accredited representatives who have filed a Form EOIR27 or EOIR28 and are the representative of record, and creates a system that allows for voluntary and permissible electronic filing in the future by the respondent, applicant, or petitioner; reputable individuals and accredited officials; and any other authorized individuals. As discussed below in Section III, this final rule provides further clarification regarding when the electronic filing requirements apply so that it is clear that only attorneys or representatives who are the representative of record have a mandatory filing requirement. As the Department works to finalize the September NPRM, the Department will include any further clarity or provisions as needed in that final rule.
In addition, the Department notes that, as a general matter under the current system requirements, only representatives with a valid EOIR27 or EOIR28 entry of appearance on file for a specific case may view and file documents electronically for that case through ECAS.
M. Electronic Filing System Comment: One commenter stated that EOIR should study other courts electronic filing systems to serve as a model, including CM/ECF and those of other agencies and state courts.
Response: EOIR considered many existing court electronic filing systems in designing ECAS and will continue to solicit feedback from users in an effort to continually improve the system. See EOIR, ContactAttorneys and Accredited Representatives, available at https www.justice.gov/eoir/ecas/
attorney-and-ar-contact last updated Jan. 25, 2021 providing an email inbox to submit ECAS-related suggestions.

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N. Comment Period Comment: Commenters raised concerns with the rules 30-day comment period, stating that the comment period was too short in light of the holiday season, the COVID19
pandemic, and EOIRs other pending proposed rules. Commenters requested that EOIR reopen the comment period for further comment.
Response: The Department believes the 30-day comment period on the NPRM was sufficient to allow for meaningful public input. See, e.g., Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2385 2020 The object of notice and comment, in short, is one of fair notice. citation omitted; alteration in the original.
The Administrative Procedure Act APA does not require a specific comment period length. See generally 5
U.S.C. 553bc. Although Executive Orders 12866 and 13563 recommend a comment period of at least 60 days, no specific length is required by executive order or statute. See Vt. Yank. Nucl.
Power Corp. v. NRDC, 435 U.S. 519, 524
1978 explaining that, aside from extremely rare circumstances, the APA established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures.
Federal courts have found 30 days to be a reasonable comment period length.
For example, the D.C. Circuit has stated that when substantial rule changes are proposed, a 30-day comment period is generally the shortest time period sufficient for interested persons to meaningfully review a proposed rule and provide informed comment. Natl Lifeline Assn v. FCC, 921 F.3d 1102, 1117 D.C. Cir. 2019 citing Petry v.
Block, 737 F.2d 1193, 1201 D.C. Cir.
1984. Further, litigation has mainly focused on the reasonableness of comment periods shorter than 30 days, often in the face of exigent circumstances. See, e.g., North Carolina Growers Assn. v. United Farm Workers, 702 F.3d 755, 770 4th Cir.
2012 analyzing the sufficiency of a 10day comment period; Omnipoint Corp.
v. FCC, 78 F.3d 620, 62930 D.C. Cir.
1996 15-day comment period;
Northwest Airlines, Inc. v. Goldschmidt, 645 F.2d 1309, 1321 8th Cir. 1981 7day comment period.
Here, the Department decided that this rule, which codifies straightforward standards for electronic filing, was not overly complex or so substantial such that it necessitated a lengthy comment period. Natl Lifeline Assn, 921 F.3d at
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