A new series of recommendations from ACUS will help agencies improve their use of virtual engagement in rulemakings.
Agency processes for rulemaking vary widely. But in general, whenever agencies seek to create or amend substantive rules, they are required by the Administrative Procedure Act to give interested persons an opportunity to participate. Traditionally, these opportunities to participate have included the submission of written comments or in-person participation at public meetings.
More recently, agencies have developed, especially in response to the COVID-19 pandemic, a variety of techniques for optimizing public engagement through virtual platforms, such as Zoom and Microsoft Teams. Virtual public engagement overcomes or lessens obstacles to public participation—which may include geographical constraints, resource limitations, and language barriers, especially for members of historically underserved communities. Virtual engagement can also broaden an agency’s ability to reach affected persons and increase the efficiency of resource allocation.
Nevertheless, there are times when agencies might find in-person or hybrid meetings are more effective. Each type of meeting has its own costs, benefits, or challenges that agencies must consider. The Administrative Conference of the United States (ACUS) recently adopted Recommendation 2023-2 on Virtual Public Engagement in Rulemaking, providing agencies with best practices to promote enhanced transparency, accessibility, and accountability when they decide to use virtual tools to engage the public in connection with agency rulemaking activities.
In the report that informed Recommendation 2023-2, I identified inconsistencies and challenges among agency practices with running, noticing, and informing the public about virtual engagements. Logistically, when agencies decide to use a virtual component for public engagement, they need to consider a variety of factors, including: whether a virtual meeting should be coordinated with other offices; the time of the meeting; the virtual platform used; and the platform’s ease of use—by both the agency and public participants.
Agencies should also clarify why they are offering an opportunity for virtual oral presentation: Is it to solicit input, provide educational material, or achieve something else? Identifying and communicating the virtual meeting’s purpose and the agency’s goals to participants both before and at the start of the meeting can go a long way to ensuring successful and meaningful virtual oral presentations. Virtual engagements also provide for easier participant and time management by creating an identifiable queue.
As an agency identifies stakeholders with whom it wishes to engage, it should consider which agency office will initiate the engagement. Public engagement related to a rulemaking would likely best come from a regulatory office, but agencies have also created offices for public engagement, participation, or public affairs that might be helpful. These offices are often siloed and they may operate independently from each other without sharing resources. Successful targeted outreach occurs when all the various outreach-related offices collaborate with the team overseeing the rulemaking to develop an outreach plan and use their collective knowledge.
Aside from logistics, there are other procedural and content considerations which agencies should undertake. When informing members of the public about opportunities for oral presentation in a virtual setting, agencies need to consider not just the requirements of notice and accessibility, but how those and other aspects can best be met by the agency. This might require agencies to expand their policies about matters such as: the publication of the virtual meeting; the accessibility of information prior to, during, and after the meeting; and the retention of records—a facet that might be more easily addressed when using a virtual component that easily allows for recording.
In reviewing the Federal Register, it was apparent that agencies provide public notice of virtual meetings in vastly different ways and share different information about accessing those meetings under different subheadings in their Federal Register notices. For consistency and accessibility, agencies should provide all virtual meeting-related information at the front of each notice, including the purpose of the meeting, its date and time, the platform being used, the registration link or meeting URL, information about phone participation, and links to the agency’s webpage about the event or current rulemakings.
Agency notices of these virtual engagements should also go beyond the Federal Register and be included on the agency’s social media sites and webpages and disseminated through email listservs or campaigns. Rulemaking and program offices should work closely with other agency offices responsible for communications, public affairs, website management, and public engagement to determine how best to organize, provide notice of, promote, facilitate, and follow up on these virtual meetings.
Agencies must also ensure that public engagement is accessible and complies with the requirements of the Rehabilitation Act. But how might accessibility differ for virtual public engagements? Accessibility might include providing closed captioning services, translator services or phone numbers for such relay services, and options for telephone dial-in to meetings—all of which are likely easier and more readily available to execute in a virtual setting.
Some accessibility concerns among members of the public include agencies’ lack of adequate notice of meetings and the failure to provide underlying information in different languages. These concerns also include the following: the failure to provide contemporaneous interpretation services; poor or inaccurate automated closed-captioning; inconvenient meeting times; and overuse of technocratic language. These issues may at least partly stem from agencies’ lack of updated technology and limited resources. But for the most part, these are minor changes that can have major impacts on participation.
Agencies can also facilitate public participation by including transcripts, recordings, summaries, or minutes of engagements in the online, public rulemaking docket and on the agency’s website. Even when not legally required to transcribe, record, or otherwise document instances of public engagement, agencies may wish to do so as a matter of practice.
But at a bare minimum, agencies should include high-level meeting minutes or summaries in the record after any such communications. Agencies should also consider recording and transcribing a virtual meeting for transparency purposes, even if they are not already required to do so, unless doing so might stifle candid discussion. Recording could chill candor when, for example, oral presentations include personal information or are centered on sensitive topics.
ACUS issued Recommendation 2023-2 in June 2023 to encourage agencies to continue to expand their methods of public engagement. Digital technologies have evolved over the past few years in ways that make it easier to connect members of the public with agency officials. Public engagement surrounding a rulemaking should allow for remote participation in any case.
Agencies should consider key logistical and procedural elements to foster effective virtual engagement. Agencies must undertake public outreach and education to overcome barriers to participation, which may include geographical constraints, resource limitations, and language or other barriers. They should do so by coordinating with their offices—each of which can offer unique insight, goals, and ways of communicating.
Virtual public engagement enables an agency to reach a broader audience, including those who have been traditionally underrepresented in the rulemaking process. It also allows for more diverse viewpoints to be included and increases transparency and accountability. ACUS Recommendation 2023-2 identifies the best practices that agencies should implement to meet these important goals.
To the extent any opinions are expressed in this piece, they are those of the author and do not necessarily represent the views of the Administrative Conference or the federal government.
This essay is one of a four-part series on Using Technology to Improve Administration.
