The Administrative Procedure Act places the Public Comment Procedure for Administrative Orders in Chapter VI, especially Articles 39 through 45. Article 39 requires advance publication of the draft order, related materials, submission destination, and Comment Submission Period; Article 43 requires publication of specified results when the order is established, when no order is established, or when an Article 39(4) exception is used. People checking a draft subordinate rule, preparing Submitted Comments, or reviewing a published result notice consult these provisions to identify the required publication items and the statutory exception, if any. This article covers the Chapter VI rulemaking procedure verified on e-Gov Law Search, and does not cover individual permit applications, Adverse Dispositions, or Administrative Appeals.
Administrative Orders Covered by Chapter VI
Article 2, item (viii) defines Administrative Orders as instruments established by the Cabinet or an administrative agency, including orders under an Act, Rules, Examination Standards, Disposition Standards, and Administrative Guidance Guidelines. Article 38 then addresses the body establishing an Administrative Order and requires that the order conform to the purpose of the laws and regulations on which it is based.
Article 38(1) states the conformity rule at the moment an Administrative Order is established. Article 38(2) adds an after-enactment duty of review by requiring the body establishing the order to consider implementation status, changes in social and economic conditions, and other circumstances as needed, and to make efforts to secure the appropriateness of the order. These two paragraphs give Chapter VI a wider scope than the act of receiving comments alone: the statutory text links the establishment of an Administrative Order to the parent legal basis and also refers to later review.
Article 3(2) and Article 4(4) identify categories of Administrative Orders to which Chapter VI does not apply. Article 3(2), for example, excludes Cabinet Orders setting the enforcement date of an Act, orders concerning amnesty, and certain unpublished standards. Article 4(4) excludes specified orders concerning organization of national or local government bodies, imperial genealogy records, civil servant ceremonial matters, budget, settlement of accounts, accounting, audit, intergovernmental relationships, and matters concerning certain public corporations, subject to the wording and exceptions in each item.
Draft Publication and the Comment Period
Article 39(1) provides the basic Public Comment Procedure. When the body establishing an Administrative Order intends to establish one, it must publicize the draft of the order and related materials in advance, set the destination for submitted comments, and set the period for submitting comments.
Article 39(2) specifies what the published draft must show. The draft must have concrete and clear content, and it must clearly indicate the title of the Administrative Order and the provisions of the laws and regulations that serve as the legal basis for establishing it. Article 39(3) sets the ordinary minimum length of the comment submission period: the period must be at least thirty days counted from the date of public notice.
Article 41 adds duties concerning public awareness and information provision. When establishing an Administrative Order after implementing the Public Comment Procedure, the body establishing the order must make efforts, as necessary, to publicize the implementation of the procedure and to provide information related to the implementation of that procedure. Article 45(1) states that public notices under Article 39(1), Article 43(1), Article 43(4), and Article 43(5), including cases where Article 44 applies those provisions with modifications, are to be made by a method using an electronic data processing system or other information and communications technology. Article 45(2) delegates necessary matters concerning those public notices to the Minister for Internal Affairs and Communications.
Exceptions and Shorter Procedures
Article 39(4) lists cases where Article 39(1) does not apply. The listed cases include urgent public interest necessity, certain orders needed for monetary amounts or rates following the enactment or amendment of an Act, orders needed for monetary benefit determinations under the budget, certain committee-deliberated orders, substantially identical orders following another administrative agency's Public Comment Procedure, technical replacement of statutory terms, repeal made necessary by deletion of the parent provision, and minor changes prescribed by Cabinet Order.
Article 40 creates two special rules. Article 40(1) allows a period shorter than thirty days if there is an unavoidable reason why the body establishing the Administrative Order cannot set a period of thirty days or more; the same paragraph requires the reason to be made clear when the draft is publicized. Article 40(2) provides that, when an Administrative Order is to be established after proceedings of a committee or similar body and that body has implemented a procedure equivalent to the Public Comment Procedure, the body establishing the order does not itself need to implement the Public Comment Procedure, except in the case covered by Article 39(4), item (iv).
Article 44 applies Article 42 and Article 43 with modifications to the Article 40(2) committee procedure. In that case, Article 44 replaces references so that comments submitted to the committee or similar body are considered, and so that the publication rules refer to the date on which that body implemented a procedure equivalent to draft publication.
Considering Comments and Publishing Results
Article 42 states the treatment of comments submitted during the comment submission period. When the body establishing the Administrative Order implements the Public Comment Procedure and establishes the order, it must fully consider the comments submitted to it within that period.
Article 43(1) sets the publication rule after the order is established. When an Administrative Order is established after the Public Comment Procedure, the body establishing it must publicize, at the same time as Promulgation or the act of making it public if there is no Promulgation, the title of the order, the date on which the draft was publicized, the submitted comments or the fact that no comments were submitted, and the result of considering the submitted comments, including differences between the draft used in the Public Comment Procedure and the order established, together with the reasons.
Article 43(2) allows publication of an organized or summarized version of the submitted comments instead of the comments themselves, if necessary. In that case, the submitted comments must be made public without delay after the publication by keeping them at the office of the body establishing the Administrative Order or by another appropriate method. Article 43(3) allows all or part of a submitted comment to be excluded if publication or making it public would risk harming a third party's interests or if another proper reason exists.
When No Order Is Established or No Comments Were Sought
Article 43 also covers two outcomes other than ordinary establishment after comments. Article 43(4) applies when the Public Comment Procedure was implemented but the body establishing the Administrative Order decides not to establish the order. In that case, it must promptly publicize that fact, including the fact that it intends to implement a new Public Comment Procedure for a different draft if applicable, together with the title of the order and the date on which the draft was publicized.
Article 43(5) applies when an Administrative Order is established without implementing the Public Comment Procedure because one of the Article 39(4) exceptions applies. In that case, the body establishing the order must publicize, at the same time as Promulgation, the title and purpose of the order, the fact that the Public Comment Procedure was not implemented, and the reason it was not implemented. The proviso to Article 43(5) limits when the purpose of the order must be publicized for cases falling under Article 39(4), items (i) through (iv).
Local Governments and Parallel Efforts
Article 46 addresses local governments separately from the national-government Public Comment Procedure in Articles 39 through 45. It applies to procedures concerning Dispositions, Administrative Guidance, Notifications, and the establishment of Administrative Orders that are excluded by Article 3(3).
Article 3(3) excludes from Chapters II through VI certain actions of local government bodies, including Dispositions made by local government bodies when the legal basis is in a Municipal Ordinance or Rules, Administrative Guidance by local government bodies, Notifications to local government bodies when the legal basis is in a Municipal Ordinance or Rules, and the establishment of Administrative Orders by local government bodies. Article 46 does not reinsert those excluded procedures into Chapter VI. Instead, it requires local governments to make efforts to take necessary measures in accordance with the purpose of the Act so that fairness and transparency in administrative operations are improved for those excluded local-government procedures.