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Sunday, December 22, 2013

Law - Administrative Conference of the United States (ACUS) adopts policy re use of social media in rulemaking

First, what is the Administrative Conference of the United States (ACUS)? Per its website, it is:

an independent federal agency dedicated to improving the administrative process through consensus-driven applied research, providing nonpartisan expert advice and recommendations for improvement of federal agency procedures. Its membership is composed of innovative federal officials and experts with diverse views and backgrounds from both the private sector and academia.

The Administrative Conference is committed to promoting improved government procedures including fair and effective dispute resolution and wide public participation and efficiency in the rulemaking process by leveraging interactive technologies and encouraging open communication with the public. In addition the Administrative Conference’s mandate includes fostering improvements to the regulatory process by reducing unnecessary litigation, and improving the use of science and the effectiveness of applicable laws.

Here, from the Dec. 17, 2013 Federal Register [ILB emphasis], are the new recommendations. Some quotes:
The appended recommendations address the use of social media to support agency rulemaking activities, provide guidance to courts and agencies in connection with the judicial remedy of remanding an agency action without vacating that action, and offer best practices to facilitate cross-agency collaboration under the Government Performance and Results Act (GPRA) Modernization Act of 2010. * * *

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’’ 1 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, textbased Web sites 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 platforms. But technology evolves quickly, continuously, and unpredictably. It is a near certainty that the tools so familiar to us today will evolve or fade into obsolescence, while new tools emerge.

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.’’ 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.’’ * * *

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. * * *

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. * * *

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.The lengthy, multi-part recommendation follows the intorduction, beginning at the bottom of p. 76270.

Posted by Marcia Oddi on December 22, 2013 08:56 AM
Posted to General Law Related