Recommendations for Improving Informal Rulemaking
Since the Administrative Procedure Act
(APA) first authorized agencies to make law through a process known as informal rulemaking in 1946, this process has become an essential
part of modern government. Nevertheless, ambiguity in some of the APA’s provisions on recordkeeping in informal rulemaking has led agencies to apply the statute inconsistently.
The APA directs
courts to “review the whole record or those parts of it cited by a party” in order to determine the legality of an agency’s action. Initially, courts understood this statutory language to apply exclusively to formal proceedings, but later also interpreted
this provision to require an “administrative record” in informal proceedings as well. According to the Administrative Conference of the United States (ACUS), the administrative record “can be essential” to judicial review of agency decision-making.
Nonetheless, the application of an administrative record to informal rulemakings “has given rise to uncertainty and experimentation as agencies and courts have worked to implement” the concept, according to ACUS. In order to provide clarification and improve judicial review of informal rulemakings, ACUS’s Committee on Judicial Review commissioned Leland E. Beck
, a private practitioner, to examine the recordkeeping practices used by agencies.
Based on the practices that Beck identified as more effective than others, ACUS then synthesized recommendations for recordkeeping for all agencies. Among other things, the recommendations specify the contents that an agency’s record should include, how records should be compiled, who should compile the records, and how to preserve the records.
ACUS recommended that the administrative record should include the agency’s notice of rulemaking, the subsequent comments submitted to the agency, the transcripts of oral presentations, and any advisory committee’s recommendations. ACUS also recommended that agencies’ public rulemaking dockets should include “all materials in the rulemaking record” as often as possible in order “to achieve maximum public disclosure.” If information is too sensitive to include online, the information should nevertheless be publicly available for “physical review in a reading room,” according to ACUS.
In addition to specifying the contents that a record should include, ACUS also recommended that agencies begin compiling their records as soon as they publish a notice of proposed rulemaking in the Federal Register, if not earlier. Additionally, agencies should designate one or more custodians who have undergone an administrative record certification to compile the rulemaking record, according to ACUS.
Despite ACUS’s recommendation of designating a custodian to compile records as early as possible, Beck’s report, upon which ACUS predicated its recommendation, suggested otherwise. According to Beck, the custodian should assess the likelihood of litigation before beginning the compilation process. If the custodian does not believe that it is worth expending the cost and time to compile the record contemporaneously with the rulemaking, perhaps because litigation is unlikely and the record is very complex, then it may be more efficient to wait until litigation is commenced. Nonetheless, Beck cautioned that “post-hoc compilation might adversely affect expeditious judicial review” and a “balance” must be struck between litigation risk and efficiency.
ACUS also noted that the process for record preservation should be changed for many agencies. According to ACUS, agencies using electronic records management systems, such as the Federal Document Management System, should work with the National Archives and Records Administration
(NARA) to “ensure the adequacy of such systems for recordkeeping purposes” and to transfer the materials to the National Archives’ permanent records for safekeeping in paper form.
ACUS adopted its recommendations at its most recent Plenary Session held on June 14, 2013.