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 Key Legal Considerations
The APA does not restrain agency use of social media before an NPRM is issued or after a final rule has been promulgated.
Read the Consultant's Report: The Administrative Procedure Act
To provide clarity regarding the application of the Paperwork Reduction Act (PRA) to agency use of social media, the Office of Information and Regulatory Affairs (OIRA) should amend its “general solicitations” definition to eliminate or expand the reference to “the Federal Register or other publications.”[Fnn9]
Read the Consultant's Report: Paperwork Reduction Act.
Agencies should consider First Amendment principles when facilitating or hosting social media discussions. Agencies may define or restrict the topics of discussion, impose reasonable limitations to preserve decorum, decency, and mutual respect, or decide to terminate a social media discussion. Agencies may not, however, deny access to participants based on viewpoint.
Read the Consultant's Report: The First Amendment.
Agencies should develop appropriate ex parte contact policies that explicitly address the use of social media in informal rulemaking.
Read the Consultant's Report: Ex Parte Communication Policies