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Federal Register / Vol. 86, No. 128 / Thursday, July 8, 2021 / Notices
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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 11 See Alicia Bannon & Janna Adelstein, Brennan Ctr. for Justice, The Impact of Video Proceedings on Fairness and Access to Justice in Court 910 2020;
Natl Ctr. for State Cts., Call to Action: Achieving Civil Justice for All 3738 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, 131314 2020.
12 See Lederer, supra note 9, at 812, 18.
13 See id. at 12, 1617.
14 See id. at 12, 17.

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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 20114, Agency Use of Video Hearings: Best Practices and Possibilities for Expansion, and Recommendation 20147, 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 15 For evidentiary hearings not required by the Administrative Procedure Act APA, the Conference has recommended that agencies adopt the presumption that their hearings are open to the public, while retaining the ability to close the hearings in particular cases, including when the public interest in open proceedings is outweighed by the need to protect: a National security; b Law enforcement; c Confidentiality of business documents; and d Privacy of the parties to the hearing. Admin. Conf. of the U.S., Recommendation 20164, 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 APAs formalhearing provisions. See Graboyes, supra note 7, at 2223.
16 5 U.S.C. 552.
17 Id. 552a.
18 44 U.S.C. 3101 et seq.

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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;
19 This Recommendation does not take a position on when parties should be entitled to, or may request, an in-person hearing.

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