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.
Plenary Draft Preamble
In the last decade, the notice-and-comment rulemaking process has changed from a paper process to an electronic one. Many anticipated that this transition to “e-Rulemaking" [Fn1] would precipitate a “revolution,” making rulemaking not just more efficient, but also more broadly participatory, democratic, and dialogic. But these grand hopes have not yet been realized. Although notice-and-comment rulemaking is now conducted electronically, the process remains otherwise recognizable and has undergone no fundamental transformation.
At the same time, the Internet has continued to evolve, moving from static, text-based websites to dynamic multi-media platforms that facilitate more participatory, dialogic activities and support large amounts of user-generated content. These “social media” broadly include any online tool that facilitates two-way communication, collaboration, interaction, or sharing between agencies and the public. Examples of social media tools currently in widespread use include Facebook, Twitter, Ideascale, blogs, and various crowdsourcing [Fn2] platforms. But technology evolves quickly, continuously, and unpredictably. It is a near certainty that the tools so familiar to us today will grow or fade into obsolescence, while new tools emerge. [Fn3]
The accessible, dynamic, and dialogic character of social media makes it a promising set of tools to fulfill the promise of e-Rulemaking. Thus, for example, the e-Rulemaking Program Management Office, which operates the federal government’s primary online rulemaking portal, Regulations.gov has urged agencies to “[e]xplore the use of the latest technologies, to the extent feasible and permitted by law, to engage the public in improving federal decision-making and help illustrate the impact of emerging Internet technologies on the federal regulatory process.” [Fn4] The Conference has similarly, albeit more modestly, recommended that “[a]gencies should consider, in appropriate rulemakings, using social media tools to raise the visibility of rulemakings.” [Fn5]
Federal agencies have embraced social media to serve a variety of non-rulemaking purposes [Fn6], but few have experimented with such tools in the rulemaking context. One explanation for this reluctance is uncertainty about how the Administrative Procedure Act (APA) and other requirements of administrative law apply to the use of social media, particularly during the process governed by the APA’s informal rulemaking requirements, beginning when the Notice of Proposed Rulemaking (NPRM) has been issued, through the comment period, and until the agency issues a final rule [Fn7] In particular, agencies are uncertain whether public contributions to a blog or Facebook discussion are “comments” for purposes of the APA, thus triggering the agencies’ obligations to review and respond to the contributions and include them in the rulemaking record. Other concerns include how the Paperwork Reduction Act applies to agency inquiries through social media, [Fn8] whether the First Amendment might limit an agency from moderating a social media discussion, and how individual agencies’ "ex parte communications" policies might apply to the use of social media.
Apart from legal concerns are doubts as to whether, when, and how social media will benefit rulemaking. These doubts arise with respect to two distinct issues that often overlap. First, can social media be used to generate more useful public input in rulemaking? Second, is increased lay participation in rulemaking likely to be valuable? Experience suggests that both the quality of comments and the level of participation in social media discussions are often much lower than one might hope. A third-party facilitator may be able to help an agency address these issues by encouraging public participation, helping participants understand the rulemaking process and the agency’s proposal, asking follow-up questions to produce more substantive input, and actively facilitating engagement among participants. Regardless of whether a third-party facilitator is used, however, creating the conditions necessary to foster a meaningful, productive dialogue among participants requires commitment, time, and thoughtful design. Since this kind of innovation can be costly, agencies are understandably reluctant to expend scarce resources in pursuit of uncertain benefits. Agencies also face a variety of practical questions. One such asquestion is whether to require citizen-usersparticipants to identify themselves in agency-sponsored social media discussions. Another concern is that the use of ranking or voting tools may mislead some to believe that rulemaking is a plebiscite or allow some participants to improperly manipulate the discussion.
Social media can be valuable during the notice-and-comment phase of rulemaking, but on a selected basis. For example, if an agency needs to reach an elusive audience or determine public preferences or reactions in order to develop an effective regulation, social media may enable the collection of information and data that are rarely reflected in traditional rulemaking comments. Success requires an agency to thoughtfully identify the purpose(s) of using social media, carefully select the appropriate social media tool(s), and integrate those tools into the traditional notice-and-comment process. In addition, agencies must clearly communicate to the public how the social media discussion will be used in the rulemaking. Although the APA allows agencies the flexibility to be innovative, attention should be given to how the APA or other legal requirements will apply in the circumstances of a particular rulemaking.
Agencies may find, however, that it is both easier and more often valuable to use social media in connection with rulemaking activities, but outside the notice-and-comment process. For example, social media can be effective for public outreach, helping to increase public awareness of agency activities, including opportunities to contribute to policy setting, rule development, or the evaluation of existing regulatory regimes. The use of social media may also be particularly appropriate during the pre-rulemaking or policy-development phase. Here, the APA and other legal restrictions do not apply, and agencies are often seeking dispersed knowledge or answers to more open-ended questions that lend themselves to productive discussion through social media. For the same reasons, social media may be an effective way for agencies to seek input on retrospective review of existing regulations. It also may be helpful in connection with a negotiated rulemaking[Fn9], where these tools may make it easier for the diverse interests to collaborate during and between meetings on a solution to the problem being addressed.
This recommendation provides guidance to agencies on whether, how, and when social media might be used both lawfully and effectively to support rulemaking activities. It seeks to identify broad principles susceptible of application to any social media tool that is now available or may be developed in the future. It is intended to encourage innovation and facilitate the experimentation necessary to develop the most effective techniques for leveraging the strengths of social media to achieve the promises of e-Rulemaking.