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Open Recommendation

Social Media in Rulemaking


Social media offers new opportunities for engaging the public. ACUS is working on recommendations about social media in rulemaking, based on a Consultant's Report by Professor Michael Herz of Cardozo School of Law. You can follow, and be part of, this process here.

An initial draft of the recommendations was open for public discussion until November 6, when the Committee on Rulemaking considered possible changes. This meeting produced a revised draft. You'll able to review and discuss Committee Draft 2 here until the Committee's next meeting on November 13. All the Committee's changes will be in the Plenary Draft, to be debated at the 59th ACUS Plenary Session on December 5. You'll be able to review and discuss the Plenary Draft here until November 27 . Comments and discussion on RecommendationRoom will be part of what ACUS considers when deciding to adopt final recommendations, along with comments submitted to ACUS on their project page.

Committee Draft 2 Effective Approaches for Using Social Media in Rulemaking - 6

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1|Recommendation 11 (Rulemaking-specific information) - 0


For each rulemaking, agencies should consider maintaining a blog or other appropriate social media site dedicated to that rulemaking for purposes of providing information, updates, and clarifications regarding the scope and progress of the rulemaking. Agencies may also wish to explore using such a site to generate a dialogue.

Read the relevant part of the Consultant's Report: Blogs


2|Recommendation 12 (Status of comments) - 0


When an agency sponsors a social media discussion in connection with a notice-and-comment rulemaking, it should determine how the discussion will be treated under the APA (for administrative record purposes). The agency may decide, for example:

a. To include all comments submitted via an agency-administered social media discussion in the rulemaking record. Agencies should consider using an application programming interface (API) or other appropriate technological tool to efficiently transfer content from social media to the rulemaking record.

b. That no part of the social media discussion will be included in the rulemaking docket, that the agency will not consider the discussion in developing the rule, and that the agency will not respond to the discussion. An agency that selects this option should communicate the restriction clearly to the public through conspicuous disclaimers on the social media site itself, provide instructions on how to submit an official comment to the rulemaking docket, and provide a convenient mechanism for doing so. It is especially important in these circumstances that the agency clearly explain the purpose of its use of social media discussion if it does not intend to consider it in the rulemaking.


3|Recommendation 13 (Alternate, user-friendly NPRM) - 0


When soliciting input through a social media platform, agencies should provide a version of the NPRM that is “friendly” and clear to lay users. This involves, for example, breaking preambles into smaller components by subject, summarizing those components in plain language, layering more complete versions of the preamble below the summaries, and providing hyperlinked definitions of key terms. The agency should either:

a. Publish both versions of the NPRM in the Federal Register; or

b. Cross-reference the user-friendly version of the NPRM in the published NPRM and cross-reference the published NPRM in the user-friendly version of the NPRM.


4|Recommendation 14 (Moderation) - 2


Agencies should consider, in appropriate rulemakings, retaining facilitator services to manage rulemaking discussions conducted through social media. Appropriate rulemakings may include those in which:

a. Targeted users are inexperienced commenters who may need help to formulate an effective comment (e.g., a comment that gives reasons rather than just reactions); or

b. The issues will predictably produce sharply divided or highly emotional reactions.

Read the relevant part of the Consultant's Report: Discussions


I would suggest making the language in "a" more neutral. Specifically, replace "to formulate an effective comment (e.g., a comment that gives reasons rather than just reactions)" with "in utlizing the comment process (e.g., providing comments that give reasons rather than just reactions)".

I disagree with this change. The value a trained facilitator adds is in helping people make the kind of comments the agency can use.
Once people actually get to the participation site, the problem is rarely that they can't figure out how to comment -- it's that they don't have (or don't spontaneously use) effective participation skills such as reason-giving. Eliciting those skills is what trained facilitators are good at -- and why it's worth the investment of resources to have them involved.

5|Recommendation 15 (Indirect information) - 2


The information provided through citizen use of social media may be indirect or amount to metadata. Agencies should consider whether the information they need can also be learned not from what is directly communicated by the public, but from what is indirectly revealed by how members of the public interact with the agency online.

Read the relevant part of the Consultant's Report: Direct Outreach


Metadata may have helped CFPB in developing its web form and search capability, as noted in the Consultant's Report. Knowing what users click on, how long they stay at a particular spot, and other analytics are useful to web developers. I'm not sure I understand how metadata or other indirect information help in the rulemaking process, including notice and comment. In fact, this sounds like an unnecessary intrusion. I would like to hear an argument for this recommendation. Short of a compelling argument, I propose eliminating this recommendation on tracking people.

I also am not sure what the goal of this recommendation is. If it is directed to data that helps with site design, it's out of place in this set of recommendations. If it's directed to something else, an example might help to clarify what.

6|Recommendation 16 (Adding value) - 0


Agencies should realize that not all rulemakings will be enhanced by a crowdsourcing approach. However, where the public or user response is the question to be determined (e.g., where the agency seeks to determine the best format for a consumer notice), direct submission to the public at large may provide useful information. In addition, agencies should seek to encourage, and be receptive to, comments from lay stakeholders with “situated knowledge” arising out of their real world experience.

Read the relevant part of the Consultant's Report: Situated Knowledge


7|Recommmendation 17 (Collaborative drafting) - 0


Agencies should experiment with collaborative drafting platforms internally within the agency for purposes of producing regulatory documents. Public collaborative drafting sites are unlikely, however, to be effective for the production of regulatory or preamble text or for the production of comments.

Read the relevant part of the Consultant's Report: Collaborative Drafting


8|Recommendation 18 (Voting/ranking tools) - 2


18. Agencies generally should not employ tools through which users can vote on or rank comments submitted in response to an NPRM, in order to avoid suggesting to inexperienced commenters that rulemaking is a plebiscite.

Read the relevant part of the Consultant's Report: Ideation Sites and Ideation Platforms


I have doubts about this proposal as ranking tools provide an alternative to active moderation by the agency. An alternative might be a clear disclaimer as to purposes for which ranking tool is being used and not used. Joel Kaufman (in my personaly capacity only)

These tools are so common in social media applications that I think it's a good idea to call the agency's attention to the problem they can pose. Agencies shouldn't be encouraging people to participate in ways that the agency isn't going to use. Note that the language refers to voting or ranking "comments," not ideas or proposed forms, or anything else that the agency itself is generating.

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