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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 1 Legal Considerations - 2

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1|Scope of APA - 0


20. 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


2|Social media discussion as "comments" in the rulemaking - 1


21. When an agency sponsors a social media discussion in connection with a notice-and-comment rulemaking, it has two options for determining how the discussion will be treated under the APA:

a. The agency may decide 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. The agency may decide that no part of the social media discussion will be included in the rulemaking docket, be considered in developing the rule, or be responded to in the final rule. An agency that selects this option should communicate the restriction clearly to the public, provide instructions on how to submit an official comment to the rulemaking docket, and provide a link to that rulemaking docket on or other agency rulemaking portal. 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.

Read the relevant part of the Consultant's Report: Legal Issues


b. is a good example of why speaking generically of social media may not be a good idea.
If the agency is using Twitter or Facebook, b makes sense, because those are information pushing and sharing tools. By contrast, what would be the justification for setting up a blog or discussion forum and allowing people to make substantive comments, but then taking position b?

Again, it's fish or cut bait time. Either the agency is using a social media tool to solicit substantive input, and it's going to do something with that input -- or it doesn't want to have to deal with that sort of substantive input and so it shouldn't be using the tool in the rulemaking.

3|Paperwork Reduction Act - 0


22. 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.”

Read the Consultant's Report: Paperwork Reduction Act.


4|Moderating and the First Amendment - 0


23. 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.


5|Social media and ex parte contact rules - 1


24. 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


Since we are not giving any guidance on what "appropriate"means, wouldn't it be better to frame the recommendation more like:
Agencies that have ex parte contact policies for information rulemaking should review those policies to ensure that they address contacts made through social media.

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