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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 As Part of the Notice-and-Comment Process - 3

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1|Supplement to convential process - 0


8. Social media may be used to supplement or improve, but not replace, the conventional commenting process.


2|Clear goals and realistic cost/benefit assessment - 0


9. The use of social media may not be appropriate and productive in all rulemakings. Before using social media in connection with a particular rulemaking, agencies should identify with specificity what they expect to achieve through the use of social media and carefully consider the potential costs and benefits.

Read the Consultant's Report: Realistic Expectations.


3|Picking appropriate and complementary tools - 0


10. An agency should use the social media tools that best fit its particular purposes and goals and should carefully consider how to effectively integrate those tools into the rulemaking process it would otherwise use.

Read the relevant part of the Consultant's Report: Realistic Expectations


4|Considering the nature of the proposed rule - 1


11. When deciding whether to use social media in a particular rulemaking, agencies should keep in mind the following principles:

a. Rulemakings that primarily involve questions of statutory interpretation, technical knowledge, or scientific expertise may be poorly suited to the kinds of responses usually produced by social media.

b. On the other hand, social media may be valuable when an agency seeks to ascertain the perceptions or reactions of regulated parties or the public to the proposed rule.

Read the relevant part of the Consultant's Report: Realistic Expectations


I would move the sentence about situated knowledge by lay stakeholders (now in Effective Approaches Rec. 4) to sub b. here. And we should define what situated knowledge means.

5|Dedicated blogs - 2


12. For each rulemaking, agencies should consider maintaining a blog dedicated to that rulemaking for purposes of providing information, updates, and clarifications regarding the scope and progress of the rulemaking. The blog should include a widget for submission of official comments to the rulemaking docket. In general, the blog should not, however, be used as a tool for extended discussion of substantive questions at issue in the rulemaking.

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


Other social media like Facebook and Twitter should push back to the blog.

A related consideration: what happens to the blog once the rulemaking is over? Is the site left up with a message that the process is done, or is the site (and public education and discussion) taken down?

The last sentence is problematic. If the blog is set up to allow people to post, then it's virtually impossible to prevent "extended discussion of substantive questions". For people inexperienced in rulemaking, a comment is a comment.

We should fish or cut bait here. A blog like this should be set up not to allow the public to post comments -- the only option for commenting should be via the widget to the rulemaking docket. A contact link (to email) could be provided for questions about the developments being blogged about.
If this is what the current draft intends, then the language needs revision.

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