ความรู้เบื้องต้นเรื่องการทำ RIA: ดูแบบอย่างการจัดรับฟังความคิดเห็นจากอเมริกา

Regulatory Impact Analysis (RIA) is a process that is used to assess the impact of any new government policy and regulations. According to the Organisation for Economic Cooperation Development (OECD), it is used to measure the benefits, costs and effects of new government regulations. The purpose of this process is to ensure that the any prospective government regulation is thoroughly examined, that it is compared with alternative policies, and that the best possible policy is enacted. This has become more important due to the increasing complexity of the modern economy and the competing interest groups and sections of the populations that will be affected by government regulation. A key factor that will determine the success of the RIA process is how involved the public is at every step of the process. This is where public consultation becomes important. 

Given that government regulations often impact large sections of the populations, regulations should be developed in an open and transparent environment. The information and details for any new regulations should be disclosed to the public because citizens, political parties, union groups, the private sector, lobby groups, NGOs and wider interest groups can provide valuable input into the drafting process of new legislation. Each of these groups typically can contribute to lawmaking as they possess specific knowledge, expertise, perspectives and ideas about certain policies that affect the people and the interests they represent. By having a transparent environment to discuss government regulation, the government would be able to identify unintended effects of its policies and practical problems regarding implementation and enforcement of the law. This would result in higher quality legislation. 

Thus, the best type of method for assessing the impact of government policy is one in which the public is involved at every step of the process. Given the public’s sense of ownership over lawmaking process, public consultation also improves compliance with new regulations. 

According to the OECD, which has been a leading international organisation in setting the standards and drafting modern RIA techniques, a proper system of RIA and public consultation should have three important steps to shape the way a government should interact with the public regarding regulation:

This is the first step of the government-public interaction and it involves the communication of information about proposed regulations and law to the public. It is a one-way process of communication whereby the public is a passive consumer of government information. This step is a crucial part of the public consultation process. This allows stakeholders to have time to prepare themselves for the consultation process. 

This step involves actively gathering information from and the opinions of interested and affected stakeholders. The government should consider the data and information it has collected to draft a better quality law. This stage is different from the first step of ‘notification’ as while the first step is a one-way process, this second step of ‘consultation’ is a two-way process whereby the public plays a more active rule in providing input to government policy. 

This step involves the active role of stakeholders in the drafting of the text of the law or regulation. Governments can also offer key stakeholders a role in the implementation and enforcement of the law to increase the public’s sense of ‘ownership’ over the law. 

While there are many different types of public consultation processes such as ‘informal consultation’ (practiced in the UK, France and Japan) and ‘circulation of regulatory proposals for public comment’, this article focuses on the US system of ‘public notice-and-comment’ The reasons for selecting this method of public consultation is due to the open and inclusive nature of the process. The US system of public administration is well-known for its emphasis on its extremely open and accessible process of lawmaking, above and beyond that of European countries. This is, perhaps, best observed when US Presidents have emphasized the importance of public consultation through Executive Orders. 

The US system for public consultation has legal basis in the 1946 Administrative Procedure Act (APA), and the law is applied to all government agencies without discrimination. This law establishes the legal right for citizens to participate in the federal government’s process of drafting new laws.

The ‘public notice-and-comment’ policy is conducted online on the government website Regulations.gov, which has been the practice of the US government since 2003. This was based on the E-Government Act of 2002. For simplicity, I will explain the working mechanism of this system on a step-by-step basis. 

When government agencies intend to issue new regulation or revise existing law, the first step of the process is that agencies must publish a Notice of Proposed Rulemaking (NPRM) in the Federal Register and on the website Regulations.gov, which contains the draft text of the new regulation and information about the proposal. This information would have to include evidence on which the proposal is based on, complete references to underlying studies to which the draft law has used for research, and a non-legalistic explanation of the rationale of the proposed law. These documents are highly-specific so that the law is analysed by the public in a precise manner.

An important feature of the US system of public consultation is accessibility. All proposed regulations are easily and quickly accessed by stakeholders as the website Regulations.gov provides email alerts about proposed regulations. 

The second step is the actual consultation process, where interested parties can comment on the proposal on the comment portal of Regulations.gov. There are no requirements for stakeholders to register to participate in public participation. In addition, the time frames and the exact procedures for consultation are made explicit to stakeholders prior to the process. Generally, the period of public comment lasts between 30 to 60 days. However, the government agency has the discretion to set longer commenting periods. Given that not everyone has internet access, stakeholders are able to submit their comments through US mail, private courier and email. 

This commenting period truly reflects the democratic feature of this system of public consultation, as different types of engagement methods between the government and the public are held. For example, it is common practice for government agencies to hold public hearings during this period. Interested members of the public are able to submit critical statements and data. In addition to public hearings, government agencies, most notably the Environmental Protection Agency, usually conducts workshops and information sessions to provide more information to members of the public. 

After the consultation process, the final law is published in the Federal Register, typically 30 to 60 days before the law comes into effect. This final publication includes the final regulatory text and a summary of the issues raised by the public. Importantly, the preamble to the final text of the regulation includes an explanation regarding how the agency addressed expressed public concerns. This final publication should also include the relevant data and evidence to which the final law relied upon. 

There are many variations of this system being used around the world with positive impacts for public inclusion in the lawmaking process. A best practice example with a clear commitment to transparency is the system used in by the Queensland state government in Australia. Similar to the US, the Queensland government also has a centralised website Queensland Regulations: Have Your Say which notifies the public about drafting of new regulations by the government. Government agencies publish information regarding new draft laws in this website, that aim to assist businesses and the community to be included in the consultation process. Another similarity to the US is that interested stakeholders are able to comment about new draft laws on this website.