American Public Commentary Institution Of The Administrative Legislation Research

The public commentary is important for the legalization, scientific and democratization of administrative legislation. This article carried out a systematic investigation and analysis on the origin and development, theoretical basis, practical value, program features, and implementation effects of American public commentary institution of administrative legislation, and analyzed its strengths and weaknesses in order to supplied several operational suggestions for our current public commentary practice to improve. This article used literature, model evaluation, comparative analysis and case study research methods.For half a century, the American public commentary institution of administrative legislation transported valuable legality and democratic elements to a large number of regulations for the United States since formalized in1946. Under the premise of the traditional administrative law mode fail to control the discretion of the executive authorities, and the community generally accepted the collapse of the concept of determined public interest advocated by pluralism, administrative officer was considered making a lot of value choices for the citizens. Therefore, increasing the direct citizen participation in the administrative process, become an important way to solve the crisis of legitimacy of the administrative legislation. It is also an extension of the due process principle from justice to administrative legislation. As a manner of public participations, the public commentary of administrative legislation promotes by the participatory democracy political trends and new public management theory jointly.The public commentary of administrative legislation has multiple values. The direct participation of citizens can compensate the lack of representative democracy in a certain extent, and enhance the legitimacy of the administrative legislation. The characteristics and limitations of executive organization determined it must depend on external resources to carry out effective regulation. The public commentary can change the one-way flow of information from government to the public in the past and integrate public and government information and knowledge advantages, so as to enhance the rationality of rules. The education and psychological effects of direct participation will improve public recognition of the rules and win the trust and support of interest groups or the public, and it’s conducive to the implementation of the regulations. American public commentary of administrative legislation consists of three basic stages:the publication of the draft, public comment, modification and publication of regulations, the whole process standardized and protected by the "U.S. Federal Administrative Procedure Act"1946, and received the Court’s judicial review at the same time. All of the substantive rules must undergo the public commentary, except the matters excluded by law expressly. Rules would be classified according to importance and theme, that is a precondition to the procedure application. Written comment and30-day comment period is the legal minimum requirements, but in practice, regulatory departments usually continue to accept public comments within about six months time, both written comments and other way they choose. Public opinion does not necessarily have to be adopted, however, the government has accountability to reply the public comment. This process is sufficient to induce the government to deal with the public opinion seriously. As the most powerful supervision, judicial review of public commentary plays an important role, but also brings a certain negative impact.Public commentary provides wide-ranging and equal opportunities to participate in the form. Although actual participation rate is mainly affected by the regulations’ impact on the public interest, with little relevance to the program, public commentary is a workable mechanism that able to accommodate large public participation in rulemaking. Public opinion is more extensive and representative in the public commentary contrast with the participatory approach constrained by the number of people or selected participants randomly. The drawback that powerful interest groups are easy to control the executive decision-making still exists, but can be controlled by more strict and reasonable procedures. However, due to public commentary is difficult to concentrate the focus of controversy and can not provide repeated communication, its performance is not as well as conversational approach or consultation on supplying valuable information and promoting the coordination, especially in the occasions that need complex technology and the support of interest groups in regulations. With good control by the proceedings, public commentary had no significant negative impact on the efficiency of the regulatory, its cost is affected by the participation rate, as well as details of the procedure.The United States as a reference, there are many defects in our current public commentary of administrative legislation, as lacking of legal unified procedural norms, simple comment method, short comment period, lacking of classification on proposed regulations resulting lack of specificity in the proceeding application, lacking of feedback mechanism and legal remedies. These problems will reduce the effect of public commentary. Therefore, we should conduct the unified Norms of proceedings, speed up the legislative process of the Administrative Procedure Act or Administrative Legislation Public Commentary Act. The comment process should be more targeted, transparent and convenient with strong legal constraints on the government’s response. It should provide review channels for public commentary through establishing specialized review bodies and combine the public commentary with other modalities of participation.