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Federal Register / Vol. 86, No. 128 / Thursday, July 8, 2021 / Notices 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 agencys 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.

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 makeror hamper a decisionmakers 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,
Administrative Conference Recommendation 20214

1 Admin. Conf. of the U.S., Recommendation 20114, Agency Use of Video Hearings: Best Practices and Possibilities for Expansion, 76 FR
48795, 4879596 Aug. 9, 2011.
2 Id.
3 Id.
4 Id. 2.
5 Admin. Conf. of the U.S., Recommendation 20147, Best Practices for Using Video Teleconferencing for Hearings, 79 FR 75114 Dec.
17, 2014; Recommendation 20114, supra note 1;
see also Martin E. Gruen & Christine R. Williams, Admin. Conf. of the U.S., Handbook on Best Practices for Using Video Teleconferencing in Adjudicatory Hearings 2015.
6 For example, some tribunals around the world are now exploring the use of telepresence systems, which rely on high-quality video and audio equipment to give participants at different, specially equipped sites the experience of meeting in the same physical space. See Fredric I. Lederer, The Evolving Technology-Augmented Courtroom Before, During, and After the Pandemic, 23 Vand.
J. Ent. & Tech. L. 301, 326 2021.

Virtual Hearings in Agency Adjudication
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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 COVID19
pandemic. As the Administrative Conference has recognized, some 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
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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 COVID19
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 attorneys 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 7 See Jeremy Graboyes, Legal Considerations for Remote Hearings in Agency Adjudications 3 June 16, 2020 report to the Admin. Conf. of the U.S..
8 Id. at 1.
9 See Fredric I. Lederer & the Ctr. for Legal & Ct.
Tech., Analysis of Administrative Agency Adjudicatory Hearing Use of Remote Appearances and Virtual Hearings 7 June 3, 2021 report to the Admin. Conf. of the U.S..
10 See id. at 3.

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