Recently, the Executive Yuan of Taiwan issued a directive to extend the duration of the comment period in administrative rulemaking from 14 days to 60 days. This welcome move follows other Taiwanese efforts over the last two decades to strengthening the public comment process. In 2001, Article 154 of the Administrative Procedure Act first required government agencies to publicly announce regulations in the government gazette or newspaper, and circulate the legal order and text of the draft. The law also required the government to inform citizens of their right to provide feedback during a specified time period. Until 2015, the length of the comment period was only seven days from the date of publication. Last year Taiwan increased the minimum comment period to 14 days, and this latest action extends it further to 60 days.
While the longer comment period provides greater opportunity for public participation and may allow stakeholders to offer more in-depth comments based on technical analysis rather than rushing to meet the deadline, it may not be enough to encourage meaningful citizen participation. Other important aspects of public engagement in rulemaking include transparency in the engagement process and responsiveness of the government to comments received.
In practice, the Taiwan government publishes information on draft regulations in the Executive Yuan Gazette, including information about the relevant agency (sponsor), contact official, mailing address and an email address. The comments can be sent electronically to a designated officer or through postal mail to the department. However, the draft regulations are not published directly on the Executive Yuan Gazette website; instead, they are linked to the respective department’s website, often resulting in complex navigation through web pages. Further, comments submitted online or in print are not available publicly, which prevents the public from learning about the number or nature of these comments or evaluating whether the government took them into account in its final determination. Finally, though the government occasionally responds to public feedback, it is not obligated to do so under the law.
Taiwan is not alone in this challenge of operationalizing the notice and comment process. Though recognized as an essential tool for democracy, the public deliberation process is demanding. On the positive side, inviting public inputs on draft regulation fosters transparency. The government also benefits from the comments - interested parties can provide critical technical information that government agencies did not consider earlier. However, the World Bank’s Global Indicator of Regulatory Governance suggests that inclusive rulemaking is limited. One-third of the countries that solicit feedback from the public do not report on the outcome of the consultation process. Studies also reveal that participation in the rulemaking process is often low. The volume of comments depends on the length of the comment period, the quality of information provided, and the responsiveness of regulators. Research indicates government responsiveness increases citizens’ perception of meaningful participation.
The Internet has the potential to change the level of public feedback. In the United States, the introduction of regulations.gov, an online regulatory feedback platform, resulted in an unprecedented surge in public comments. The U.S. Department of Transportation received 62,944 comments on 119 rules published in 2000 compared to 3,102 comments on 155 rules in 1997.
In June 2016, responding to a Taiwan White Paper by the American Chamber of Commerce, the National Development Council stated “that the new government is a government that values public communication and attaches importance to opinions from all quarters, and it will strive to promote regulatory coherence based on international practices.” As Taiwan aims to reform its regulatory practices, it can learn from the experience of other countries. For example, the OECD provides a summary of best practices in notice and comment process in several countries. The World Bank's Global Indicators of Regulatory Governance highlights regulatory reforms that had a positive impact. For example, in 2015, Croatia introduced an e-consultation portal to engage with citizens. The government not only publishes the draft rule but also specifies the goals of each consultation and is required to respond to the comments.
As Taiwan continues to improve public consultation on rulemaking, it could consider bringing more transparency to the current feedback process. It should consider publishing all public comments online or in the gazette, and also explain in its final rule how it took those comments into consideration. It may also want to introduce an online portal to streamline the feedback process in rulemaking.