The Exemptions To American Notice And Comment Rulemaking

Most administrative rules go through a process known as notice and comment rulemaking in America.It requires that an agency publish a notice and provide an opportunity for public comment before adopting a rule.These requirements have important virtues,such as strengthening administrative legitimacy,improving the rationality of administrative legislation,and promoting the implement of rules.However,rulemaking procedures may stall the rulemaking process.The Administrative Procedure Act(APA)contains many exemptions in order to relieve the tension of administrative efficiency and democracy.The APA allows agencies to exempt rules which have no direct impact upon the public from the notice and comment process.The APA also allows agencies to skip rulemaking procedures when finding it unnecessary or in emergency situations.If an agency fails to validly invoke these exceptions to avoid rulemaking procedures,courts may undertake a harmless error analysis and ultimately find the agency’s error not to be harmless.That cannot deny the necessity of the notice and comment process.The stipulations on public comment procedures in Chinese administrative legislation are inattentive and the APA can enlighten our agencies most.In principle,agencies shall solicit public comments in the process of administrative legislation.However,there shall be some exceptions.Agencies may dispense with public comment procedures when the public will not be affected.In the view of avoiding a waste of administrative resources,it shall be allowed to skip such procedures when soliciting public comments is found unnecessary.Agencies may also avoid public comment procedures in special situations to improve administrative efficiency.