August 26, 2013

Recommendations for Improving Informal Rulemaking

From: RegBlog

Kara Cheever

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.

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