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Open Recommendation

Social Media in Rulemaking

Summary

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 1 Effective Approaches for Using Social Media in Rulemaking - 3

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Subtopics

1|Restructuring information to be user friendly - 1

Proposal

13. When soliciting input through a social media platform, agencies should provide a version of the NPRM that is “friendly” 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.

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

Comments1

This will raise concerns about multiple versions of the NPRM that the recommendation should acknowledge and address.
Two possibilities:
1. the agency includes the user-friendly version at the end of the "regular" version within the NPRM itself.
2. the other shorter, cheaper (given FedReg page charges) option is to include language in the NRPM (i) identifying the social media platform as an authoritative place for submitting comments, and (ii) incorporating by reference the user-friendly version presented there.

The goal is to make both versions "official" -- and then any questions of variance between them can be handled by the agency just as it now handles commenter claims of ambiguity or conflict within parts of a "regular" NPRM.

2|Providing expert moderation - 0

Proposal

14. 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

Comments0

3|When the interaction itself provides useful information - 0

Proposal

15. 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

Comments0

4|Actively soliciting response from the general public - 1

Proposal

16. 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

Comments1

The last sentence belongs in the 4th recommendation under As Part of the Notice-and-comment Process. This is something very different from general-public commenting of the crowdsourcing type.

5|Collaborative drafting - 1

Proposal

17. 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

Comments1

I would delete this recommendation entirely. There has not yet been enough experimentation done with public collaborative drafting to know when and how it might be effective. This may be where we ought to come out eventually, but right now there are not enough datapoints.

6|Wariness about voting and ranking tools - 0

Proposal

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

Comments0

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