U.S. Comments on Administrative Procedures to Japan Ministry

Comments of the Government of the United States to the Ministry of Public Management, Home Affairs, Post and Telecommunications on the Issues with Regard to Administrative Rule-making Procedures

August 23, 2004

The Government of the United States welcomes the opportunity provided by the Ministry of Public Management, Home Affairs, Post and Telecommunications (MPHPT) to comment on its Draft Issues with Regard to Administrative Rule-making Procedures, which was released on July 23, 2004. The United States commends MPHPT for seriously considering improvement of the Public Comment Procedures (PCP) and commends the Study Group on Administrative Procedure Law for its work to explore ways to improve this important component of Japanfs rule-making process.

The United States has welcomed the Government of Japan's use of the PCP since its establishment in 1999. There have been problems, however, with implementation of the PCP that have worked to chip away at its worthwhile objectives of promoting transparency and a fairer and more open rule-making system. These problems include inadequate public comment periods and insufficient incorporation of seemingly appropriate comments into final regulations.

The United States provides the following specific comments on the Draft Issues with Regard to Administrative Rule-making Procedures:

1. Philosophy and Purpose of Establishing the System:

The United States welcomes the Government of Japan's plan to improve transparency and ensure greater fairness in the decision-making process in the establishment, revision, and abolition of regulations by improving the PCP in FY2004. Ensuring that both the public and private sectors are able to provide input into the rule-making process helps promote good governance, remove bureaucratic impediments, and boost economic efficiency. Furthermore, effective public comment procedures can expand the range of stakeholders that participate in the rule-making process, strengthening and legitimizing the societal consensus on regulatory changes. It is therefore essential that the PCP be used in ways that allow meaningful public input, and that mechanisms are put in place to ensure the PCP is not used simply to create the appearance of meaningful input.

2. Scope of Application:

Regarding the Scope of Application, the United States recommends an inclusive approach that incorporates the full range of rule-making institutions and rule-making procedures, including but not limited to the development of draft legislation and voluntary guidelines. Specifically regarding Scope of Application (4), the United States urges Japan to revise the PCP in ways that result in processes that are consistently applied across Ministries and Agencies. This will help to ensure transparency and predictability in the regulatory environment.

3. Public Comment Procedures:

The United States has made many recommendations to Japan over the years to improve the PCP. In its October 24, 2003 U.S.-Japan Regulatory Reform Initiative recommendations, the United States suggested that vigorous efforts be made to gather a broader range of opinions and information through the PCP when formulating, amending, or repealing a regulation by:

  • Standardizing a 60-day comment period, or at a minimum, requiring the use of a minimum 30-day comment period, except in urgent cases;
  • Requiring that all comments received be reflected in final regulations, to the extent appropriate;
  • Eliminating the practice of placing overly rigid parameters on the public comment submissions, such as substantially limiting page length, requiring an 80-character summary, and other impediments that undermine the spirit of the PCP;
  • Establishing a centralized system that would allow the public to easily find solicitations of public comments (whether or not they are covered by the PCP) including those by shingikai, kenkyukai, benkyokai and other study groups; and
  • Requiring that all proposed rule-making by government-established or authorized self-regulatory organizations be made available for public comment, and comments received should be seriously considered as appropriate in the final draft.

Specifically regarding PCP (2):

Announcement of the Drafts, the United States urges Japan to publicize draft regulations at the earliest possible time. By publicizing proposed drafts at early stages, all parties will have the opportunity to review and analyze proposed rules in a timely manner. Such early publication of outlines, drafts and proposed drafts will allow interested parties sufficient time to analyze complex issues and prepare a meaningful public comment submission. In addition, the United States commends Japan's use of government websites to announce public comment periods and the results.

Specifically regarding PCP (3):

Public Comment Period, roughly half of Japan's public comment periods over the last few years have been shorter than the 30-day guideline - many have been considerably shorter than this as shown in MPHPTfs annual surveys of the PCP. Such short comment periods do not afford the public sufficient time to provide substantive comments on what are often extremely complicated issues. This is why the United States is proposing that Japan provide, as standard practice, a 60-day public comment period. Furthermore, while the United States recognizes there can be urgent circumstances requiring an expedited rule-making process, it is essential that procedures be established to compel Ministries and Agencies to program-in a sufficient comment period when developing regulatory changes. The United States therefore supports the recommendation that Ministries and Agencies should publicly state the reasons behind a shortened public comment period when urgent circumstances require this.

Specifically regarding PCP (5):

Scope of Submitters, the United States urges Japan to demonstrate its commitment to ensuring that interested parties have an opportunity to share their views and concerns by soliciting comments from all interested parties, including foreign public and private sectors.

Specifically regarding PCP (7):

Handling of the Submitted Opinions and (8): Announcement of the Results of PCP, the United States urges Japan to give serious consideration to public comments submitted under the PCP, and to reflect those comments in final regulations where appropriate. Submitted opinions and official counter-comments should be publicized, as well as how the comments were incorporated, or if not incorporated, the reasons why. It is particularly important that the public has access to the entire text of comments submitted. Making the submitted public comments available in their entirety on the Internet, for example, is a relatively simple task, which promotes transparency.

Specifically regarding PCP (9):

Others, in cases where dramatic modifications are required after soliciting comments under the PCP, the United States recommends that a revised proposal be re-released for additional public comment.

Furthermore, in order to properly and fully take into consideration all public comments, an appropriate time between the close of the public comment period and finalization of a regulation in question is required. As a recent example of a regrettably inadequate public comment process, on June 15, 2004, the Ministry of Health, Labour, and Welfare (MHLW) released for public comment draft privacy guidelines regarding how businesses handle personal information relating to employment management. Not only was the comment period a short two weeks, but also MHLW issued its final guidelines less than 24 hours after the close of the comment period, without any substantive changes. Such misuse of the PCP undermines its objectives, and suggests indifference on the part of the Ministries and Agencies in addressing the public's concerns.

4. Indication of Reasons:

The United States notes that certain Ministries and Agencies (for example, MPHPTfs Telecommunications Bureau, the Ministry of Economy, Trade and Industry, and the Cabinet Office) have made good efforts to provide counter-comments to public comments received, which can be useful in understanding the rule-making process. The United States recommends that when the Ministries and Agencies offer counter-comments, they cite the name of the individual or entity making the original comment. This is important for context. For example, in the telecommunications sector, opinions from the dominant carrier NTT would be viewed in a different light than those of the competing carriers; likewise, a wireline carrier may take a different approach to policy issues than a wireless operator.

8. Delivery Procedures and Others:

All effective delivery options should be accepted, including personal delivery, in writing, mail, fax, and electronically (i.e., email or Internet).