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

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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 softwares 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 monitorsone for viewing remote participants and another for viewing the recordand 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
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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 Conferences Office of the Chairman should provide, as authorized by 5 U.S.C. 5942, 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. 202114597 Filed 7721; 8:45 am BILLING CODE 611001P

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