HANDBOOK ON COMPILING ADMINISTRATIVE
RECORDS FOR INFORMAL RULEMAKING

Prepared by the
Working Group on Compiling Administrative Records
Office of the Chairman
Administrative Conference of the United States

January 2022

Handbook on Compiling Administrative Records for Informal Rulemaking

ABOUT THE ADMINISTRATIVE CONFERENCE
OF THE UNITED STATES
The Administrative Conference of the United States (ACUS) is an
independent federal agency within the executive branch whose statutory mission is
to study the efficiency, adequacy, and fairness of federal administrative processes.
ACUS is charged with promoting effective public participation in the rulemaking
process and making improvements to the regulatory process by reducing
unnecessary litigation and improving the use of science and the effectiveness of
applicable laws.
ACUS has issued more than 200 recommendations to improve rulemaking,
adjudication, and other administrative processes since its inception in 1968. Many
have resulted in reforms by federal agencies, the President, Congress, and the
Judicial Conference of the United States. Recommendations are issued by the
Assembly, whose members include a Chairman appointed by the President and
confirmed by the Senate; ten presidential appointees who, together with the
Chairman, comprise the Council; 50 senior federal officials; and 40 academics,
practitioners, and other private-sector experts.
The work of ACUS is supported by a small, full-time staff in the Office of the
Chairman. In addition to supporting the consideration and adoption of
recommendations, the Office of the Chairman conducts and commissions research,
publishes reference guides, organizes public events and interagency roundtables,
provides nonpartisan advice to agencies and Congress, and undertakes other
activities to arrange for the interchange of information useful in improving
administrative procedure.

Handbook on Compiling Administrative Records for Informal Rulemaking

CONTENTS
Foreword

ii

Working Group on Compiling Administrative Records

iii

Preface

iv

Acronyms

vi

Chapter 1:

Drafting Guidelines for Personnel

1

Chapter 2:

Rulemaking Fundamentals

5

Chapter 3:

Internal Rulemaking Record

14

Chapter 4:

Public Rulemaking Docket

20

Chapter 5:

Administrative Record for Judicial Review

33

Appendix A:

Recommendation 2013-4
The Administrative Record in Informal Rulemaking

42

Appendix B:

Selected ACUS Recommendations

52

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Handbook on Compiling Administrative Records for Informal Rulemaking

FOREWORD
In Recommendation 2013-4, The Administrative Record in Informal
Rulemaking, 78 Fed. Reg. 41358 (July 10, 2013), the Administrative Conference of
the United States (ACUS) advised federal agencies to provide their employees with
practical guidance on compiling and preserving the administrative record in
informal (notice-and-comment) rulemakings. ACUS is pleased to offer agencies this
Handbook to assist them in preparing such guidance. Many of its best practices are
drawn from Recommendation 2013-4.
This Handbook was prepared by a working group of esteemed government
and private lawyers (some ACUS members) whose names are listed on page iii and
its reporter, Jeremy Graboyes of the ACUS staff, over many months. Their hard
work, formidable expertise, and good judgment are evident on every page. It is my
honor to thank them on behalf of ACUS.
Although this Handbook draws from Recommendation 2013-4 and other
ACUS recommendations, any views it expresses not reflected in those
recommendation are the working group’s alone. Only formal recommendations
adopted by the ACUS Assembly—that is, ACUS’s members sitting together in
plenary session—reflect ACUS’s official views. Numerous such recommendations
are cited throughout this Handbook. We encourage agencies to consult them.

January 25, 2022
MATTHEW LEE WIENER
Acting Chairman, Vice Chairman,
and Executive Director

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Handbook on Compiling Administrative Records for Informal Rulemaking

WORKING GROUP ON COMPILING ADMINISTRATIVE
RECORDS
James Barton
Senior Associate
WilmerHale

Allyson N. Ho
Partner
Gibson, Dunn & Crutcher

Reeve T. Bull
Research Director
Administrative Conference of the U.S.

Lane Nemirow
Attorney-Advisor
Department of the Interior

Daniel Cohen
Assistant General Counsel for Regulation
Department of Transportation

Connor Raso
Senior Counsel
Securities & Exchange Commission

Peter Constantine
Associate Solicitor
Department of Labor

Melissa Rifkin
Attorney
Pension Benefit Guaranty Corporation

Kelly P. Dunbar
Partner
WilmerHale

Peter Robbins
Attorney
Department of Commerce

Andrew Emery
President
The Regulatory Group

Adina Rosenbaum
Attorney
Public Citizen Litigation Group

Claire J. Evans
Partner
Wiley Rein

Adam J. White
Senior Fellow
Antonin Scalia Law School

Cynthia R. Farina
William G. McRoberts Researcher Professor in
Administration of the Law, Emerita
Cornell Law School

Matthew L. Wiener
Acting Chairman, Vice Chairman, and
Executive Director
Administrative Conference of the U.S.

Noelle Green
Attorney-Advisor
Environmental Protection Agency

Eric Womack
Assistant Director
Federal Programs Branch, Civil Division
Department of Justice

STAFF COUNSEL AND REPORTER
Jeremy S. Graboyes
Principal Deputy Research Director
Administrative Conference of the United States

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Handbook on Compiling Administrative Records for Informal Rulemaking

PREFACE
Jeremy S. Graboyes
Principal Deputy Research Director, ACUS
Working Group Staff Counsel & Reporter
In 2013, the Assembly of the Administrative Conference of the United States
(ACUS) issued Recommendation 2013-4, The Administrative Record in Informal
Rulemaking, 78 Fed. Reg. 41358 (July 10, 2013). That Recommendation offers
agencies best practices for compiling, preserving, and certifying records in informal
(often called notice-and-comment) rulemaking and generally supports the judicial
presumption of regularity for agency administrative records. Recommendation
2013-4 also encourages agencies that engage in informal rulemaking to issue
guidance to aid personnel in implementing these best practices and make that
guidance publicly available.
Several agencies have published such guidance over the years: the
Department of the Interior in 2006, the Environmental Protection Agency in 2011,
and the National Oceanic and Atmospheric Administration in 2012. But many
others have not. Recognizing a need for additional advice to help agencies develop
such guidance, in 2019, the ACUS Office of the Chairman convened a new Working
Group on Compiling Administrative Records to prepare materials that agencies
could use to develop the guidance called for in Recommendation 2013-4.
The ACUS Office of the Chairman invited representatives from the public
and private sectors to join the new Working Group. Its members—all experts in
administrative law and procedure—are listed on page iii. It was a true pleasure to
work with and learn from them, and I appreciate their engagement and willingness
to share their expertise.
The Working Group met on seven occasions between October 2019 and
November 2021. All meetings were open to the public, and several academics, nonmember agency officials, and others participated. Records of Working Group
meetings are available online at www.acus.gov/research-projects/working-groupcompiling-administrative-records.
Early in its deliberations, the Working Group determined that the most
useful resource for agencies would be a handbook on compiling administrative

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Handbook on Compiling Administrative Records for Informal Rulemaking

records for informal rulemaking. This Handbook is the result. It was developed
through a collaborative effort based on the Working Group’s discussions. Although
this Handbook represents the work product of the Working Group collectively, its
contents do not necessarily represent the views or opinions of individual members,
the organizations with which they are affiliated, the federal government, or ACUS.
This Handbook is not intended to serve as an authoritative compendium of
the many laws, judicial opinions, and executive-branch policies governing
administrative recordkeeping for informal rulemaking. It was not the Working
Group’s mission to relitigate administrative law principles, recommend best
practices, or provide substantive advice to agencies.
Instead, the Handbook provides practical advice that agencies can use to
draft guidelines that explain applicable legal requirements, policies, and best
practices to agency personnel. It will also help agencies explain these complicated
requirements, policies, and practices in a manner that is clear, accessible, and
directed toward the personnel charged with implementing them.
This Handbook is intended only to help agencies develop their own guidelines
on administrative recordkeeping for informal rulemaking. Readers should not rely
on it as a legal document. Agency personnel and members of the public who have
questions about administrative records generally or about particular rulemakings
should direct them to rulemaking agencies or the Department of Justice.

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Handbook on Compiling Administrative Records for Informal Rulemaking

ACRONYMS
ACUS
APA
ANPRM
AR
DOI
DOJ
EPA
FDMS
FOIA
NOAA
NPRM
OIRA
OFR
RFI

Administrative Conference of the United States
Administrative Procedure Act
Advance Notice of Proposed Rulemaking
Administrative Record
Department of the Interior
Department of Justice
Environmental Protection Agency
Federal Docket Management System
Freedom of Information Act
National Oceanic and Atmospheric Administration
Notice of Proposed Rulemaking
Office of Information and Regulatory Affairs
Office of the Federal Register
Request for Information

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Handbook on Compiling Administrative Records for Informal Rulemaking

CHAPTER 1

DRAFTING GUIDELINES
FOR AGENCY PERSONNEL
1.1
1.2
1.3
1.4
1.5
1.6
1.7

1.1

What guidelines should agencies develop on administrative recordkeeping
for informal rulemaking?
Who is the audience for the Guidelines?
What topics should the Guidelines address?
How should the Guidelines be organized?
How should the agency disseminate the Guidelines?
Whom should agency personnel contact when they have questions about
the Guidelines?
How should the agency maintain the Guidelines?

What guidelines should agencies develop on administrative
recordkeeping for informal rulemaking?

Agencies compile three main types of administrative records related to informal
rulemaking: (1) an internal rulemaking record, (2) a public rulemaking docket, and
(3) an administrative record for judicial review. Various federal laws, executivebranch policies, and agency practices govern how agency personnel manage these
records. ACUS Recommendation 2013-4, The Administrative Record in Informal
Rulemaking, also offers agencies best practices for their compilation, preservation,
and public disclosure.1
Policies and procedures for compiling administrative records are usually spread
across multiple sources, including statutes, executive-branch policies, and agency
regulations, guidance documents, manuals, memoranda. Some procedures may be a
matter of unwritten, agency custom. It can be difficult for agency personnel involved
in informal rulemaking to locate all relevant policies and procedures and
understand how they relate to each other.
An effective way to help personnel understand and implement applicable policies
and procedures is for agencies to develop and disseminate a single document—
1 ACUS Recommendation 2013-4, The Administrative Record in Informal Rulemaking.

Recommendation 2013-4 is reproduced in its entirety in Appendix A. Full citations for all ACUS
recommendations referenced in this Handbook are available in Appendix B.
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Handbook on Compiling Administrative Records for Informal Rulemaking

which this Handbook calls “the Guidelines”—that explains and synthesizes the
most important policies and procedures and answers frequently asked questions.
Several agencies have developed their own guidelines over the years, including the
Department of the Interior (DOI),2 Environmental Protection Agency (EPA),3 and
National Oceanic and Atmospheric Administration (NOAA).4 ACUS has encouraged
other agencies to develop their own publicly available guidelines.5
The ACUS Working Group on Compiling Administrative Records prepared this
Handbook to help agencies develop and disseminate guidelines that effectively
communicate their policies and practices for administrative recordkeeping to agency
personnel involved in informal rulemaking. The Handbook identifies the key
subjects that the Guidelines should address and offers tips for explaining them in
non-technical language that agency personnel with different needs, functions, and
levels of experience can easily understand and successfully implement.

1.2

Who is the audience for the Guidelines?

The primary audience for the Guidelines is agency personnel who are involved in
informal rulemaking. It is important to remember that many kinds of agency
personnel can work on rulemakings, including policy specialists, scientists,
economists, lawyers, rule-writers, communications and public affairs specialists,
administrative staff, and others. Some may be new to informal rulemaking; others
will have substantial experience. When drafting the Guidelines, agencies should be
mindful of the different needs, responsibilities, and levels of experience of agency
personnel involved in rulemaking. Agencies should use plain language and avoid
legal and technical jargon whenever possible.
The Guidelines can also be an important resource for Department of Justice (DOJ)
attorneys, courts, and the public. Well-written Guidelines can help them
understand how agencies make rules and document rulemaking proceedings.
2 Memorandum from David L. Bernhardt, Deputy Solicitor, Standardized Guidance on Compiling a

Decision File and an Administrative Record (June 27, 2006), https://www.nps.gov/ features/foia/
Standardized-Guidance-on-Compiling-and-Administrative-Record.pdf [hereinafter DOI Guidelines].
3 EPA, EPA’S ACTION DEVELOPMENT PROCESS: ADMINISTRATIVE RECORDS GUIDANCE (Sep. 2011),
https://www3.epa.gov/ogc/ adminrecordsguidance09-00-11.pdf [hereinafter EPA Guidelines].
4 Memorandum from Lois J. Schiffer, Gen. Counsel, NOAA, NOAA Guidelines for Compiling an
Agency Administrative Record (Dec. 21, 2012), https://www.gc.noaa.gov/documents/2012/
AR_Guidelines_122112-Final.pdf [hereinafter NOAA Guidelines].
5 ACUS Recommendation 2013-4, ¶ 11.
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Handbook on Compiling Administrative Records for Informal Rulemaking

1.3

What topics should the Guidelines address?

Agencies will need to tailor their Guidelines to account for their own policies,
practices, and unique circumstances. The level of detail and precise contents will
vary based on factors such as the size of typical rulemaking records, the level of
institutional experience with rulemaking and recordkeeping, the need for
consistency across components, and available resources. ACUS recommends,
however, that all agencies aim to answer seven basic questions in their Guidelines:
(1) What materials should agency personnel include in the internal rulemaking
record, public rulemaking docket, and administrative record for judicial
review?
(2) What materials should agency personnel exclude from the internal
rulemaking record, public rulemaking docket, and administrative record for
judicial review?
(3) When and how should agency personnel compile and index the internal
rulemaking record, public rulemaking docket, and administrative record for
judicial review?
(4) How should agency personnel manage and segregate sensitive, protected, and
privileged materials, including sensitive information submitted by public
commenters?
(5) How should agency personnel preserve the internal rulemaking record, public
rulemaking docket, and administrative record for judicial review?
(6) What process should agency personnel use to certify the administrative
record for judicial review?
(7) Are there any capabilities or limitations of recordkeeping tools and
technologies of which agency personnel should be aware?6

6 Id.

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Handbook on Compiling Administrative Records for Informal Rulemaking

1.4

How should the Guidelines be organized?

Agencies should consider dividing the Guidelines into four main sections:
(1) Introduction to Informal Rulemaking
(2) Compiling the Internal Rulemaking Record
(3) Compiling the Public Rulemaking Docket
(4) Compiling the Administrative Record for Judicial Review
These sections correspond to Chapters 2–5 of this Handbook.

1.5

How should the agency disseminate the Guidelines?

Agencies should ensure that agency personnel involved in rulemaking projects, as
well as outside audiences, have easy access to the agency’s Guidelines. It is a best
practice for agencies to post the Guidelines in appropriate locations on their public
websites and on their intranets or internal networks. Agencies should also use their
Guidelines to train new personnel and provide continuing education for all agency
personnel involved in rulemakings. Agencies should periodically remind agency
personnel that the Guidelines exist and are a helpful resource when they have
questions about administrative records related to informal rulemaking.

1.6

Whom should agency personnel contact when they have
questions about the Guidelines?

Although the Guidelines are a helpful way to communicate policies and key
concepts about administrative recordkeeping to agency personnel, questions will
undoubtedly arise. The Guidelines should specify an official or office that agency
personnel should contact when they have questions about the Guidelines or are
uncertain how to apply them in particular situations.

1.7

How should the agency maintain the Guidelines?

Policies and practices change over time, especially as agencies adopt new
technologies for administrative recordkeeping. Agencies should periodically review
the Guidelines to ensure that they continue to reflect current practices. Agencies
should distribute updated Guidelines to agency personnel who are involved in
informal rulemaking.

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Handbook on Compiling Administrative Records for Informal Rulemaking

CHAPTER TWO

RULEMAKING FUNDAMENTALS
The Guidelines should begin with a high-level overview of the informal
rulemaking process. This section should explain to agency personnel:
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9

2.1

What is informal rulemaking, and how does it work?
How do agency personnel develop a proposed rule?
How does the agency provide public notice of a proposed rule?
How does the agency obtain public input on a proposed rule?
How do agency personnel consider public input and develop a final rule?
How does the agency publish a final rule?
What is judicial review of informal rulemaking, and how does it work?
What types of materials do agency personnel handle during informal
rulemaking?
What types of administrative records do agency personnel compile related
to informal rulemaking?

What is informal rulemaking, and how does it work?

The Guidelines should begin by describing what rules are, when and why agencies
engage in informal rulemaking, and the steps involved in informal rulemaking. This
background information can be helpful for explaining what administrative records
agencies maintain during informal rulemaking, what purposes they serve, and how
they relate to each other.
SAMPLE LANGUAGE
[Agency] issues rules to implement and interpret statutes, explain how they will
exercise their discretion, and describe their procedures and organization. [Agency]
formulates, amends, or repeals rules through a process called “rulemaking.”
Federal law sets out the processes that [Agency] must follow when it makes rules.
One process for rulemaking is called “informal rulemaking” (also called “noticeand-comment rulemaking”). There are other rulemaking processes too, but these
Guidelines do not address them.
The requirements for informal rulemaking are set forth in a federal law called the
Administrative Procedure Act (APA) and in court decisions that interpret it.
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Handbook on Compiling Administrative Records for Informal Rulemaking

Additional requirements are set forth in White House directives (for example,
Executive Order 12866), procedural and substantive statutes (for example the
Regulatory Flexibility Act and Clean Air Act), and in agency regulations.
There are five key steps to making a rule through informal rulemaking:
(1) Develop the proposed rule.
(2) Provide public notice of the proposed rule.
(3) Obtain public input on the proposed rule.
(4) Consider public input and develop the final rule.
(5) Publish the final rule.

2.2

How do agency personnel develop a proposed rule?

The informal rulemaking process begins when the agency begins to take specific
action toward developing a proposed rule. It can be distinguished from less concrete
agency activities, such as general information gathering on a subject of interest.
The Guidelines should explain when the informal rulemaking process begins and
that the start of the rulemaking process can trigger special recordkeeping
requirements. The Guidelines should also explain how agency personnel work
together and, as relevant, with the Office of Information and Regulatory Affairs
(OIRA) and other people outside the agency to develop a proposed rule.1 Finally, the
Guidelines should describe the internal process for approving a proposed rule.
SAMPLE LANGUAGE
[Agency] engages in rulemaking for many reasons. Sometimes a statute directs us
to develop a new rule. Sometimes we identify a need for a new rule, or we need to
update, clarify, strengthen, or eliminate an existing rule. Members of the public
can also petition [Agency] to issue, modify, or repeal a rule.
The rulemaking process begins when [Agency] starts to consider a concrete
proposal for action and decides to move forward on a specific course of action. It
can be distinguished from other activities like general information gathering. The
start of a rulemaking can trigger special requirements for recordkeeping.
1 Agencies should consult the recommendations ACUS has issued on public engagement and early

input during the rule development process. ACUS Recommendation 2021-3, Early Input on
Regulatory Alternatives; ACUS Recommendation 2018-7, Public Engagement in Rulemaking.
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Handbook on Compiling Administrative Records for Informal Rulemaking

If you are involved in the early stages of a rulemaking project, you will work with
other agency employees to develop a proposed rule. Along with the proposed rule,
you will draft an introduction, called a “preamble,” that, among other things,
describes the proposed rule, the legal authority of the rule, and opportunities for
public participation in the rulemaking process.
Developing a proposed rule requires a lot of research, writing, deliberation, and
collaboration. You may need to work with employees who have very different
responsibilities from you, such as policy specialists, scientists, economists,
attorneys, regulatory specialists, and administrative staff. You may also need to
work with officials in the Office of Information and Regulatory Affairs (OIRA), a
part of the Executive Office of the President that serves as the government’s
central authority for the review of executive branch regulations.
[Agency] may also decide to seek input from the public before proposing a rule, for
example by meeting with stakeholders, convening public events, or publishing an
advance notice of proposed rulemaking (ANPRM) or request for information (RFI)
in the Federal Register. The Federal Register is the daily journal of the federal
government published by the National Archives and Records Administration
(NARA).
Agency work on a proposed rule is finished when the [agency official] signs it. Our
process for developing and approving a proposed rule is available at [source].

2.3

How does the agency provide public notice of a proposed
rule?

After developing a proposed rule, the agency must provide public notice of the
proposed rule and invite public comments unless an exception under the
Administrative Procedure Act (APA) applies. The Guidelines should explain that,
unless an exception applies, the agency must publish a notice of proposed
rulemaking (NPRM) in the Federal Register, which includes the text of the proposed
rule and the preamble discussed in the preceding section.
The Guidelines should address the internal process for preparing and working with
the Office of the Federal Register (OFR) to publish the NPRM. As relevant, the

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Handbook on Compiling Administrative Records for Informal Rulemaking

Guidelines should also explain how publication of the NPRM triggers recordkeeping
requirements for agency personnel and policies on ex parte communications. 2
SAMPLE LANGUAGE
To provide public notice that it is proposing the rule, [Agency] works with NARA’s
Office of the Federal Register (OFR) to publish a Notice of Proposed Rulemaking
(NPRM) in the Federal Register. The NPRM includes the text of the proposed rule
and the preamble. [Agency office] is responsible for finalizing the NPRM and
working with OFR to publish it.
The public part of the informal rulemaking process begins with the NPRM. After
this point, you may need to document the communications you have with people
outside the government about the rulemaking. These conversations are called “ex
parte” communications and are subject to special rules, which are available at
[source]. You should use [form] to document any ex parte communications you
have with people outside the government.
It may also be beneficial to let people know about the proposed rule on our
website or social media, in a press release, or through a mailing list or direct
outreach to stakeholders. You should work with [agency office] to coordinate
publicity related to a rulemaking.

2.4

How does the agency obtain public input on a proposed
rule?

After providing public notice of a proposed rule, the agency must, unless an APA
exception applies, provide interested persons an opportunity to comment on it. The
Guidelines should explain the importance of public participation and methods for
obtaining public input on proposed rules. The Guidelines should briefly address
statutory requirements for public participation under the APA and E-Government
Act, program- and agency-specific requirements, and requirements set forth in
relevant presidential and Office of Management and Budget (OMB) directives.3 The
Guidelines should also address other options for public engagement.4

2 See ACUS Recommendation 2014-4, “Ex Parte” Communications in Informal Rulemaking.
3 Several ACUS recommendations address public comments. See, e.g., ACUS Recommendation 2011-

2, Rulemaking Comments; ACUS Recommendation 2011-1, Legal Considerations in e-Rulemaking.
4 See ACUS Recommendation 2018-7, Public Engagement in Rulemaking.
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Handbook on Compiling Administrative Records for Informal Rulemaking

SAMPLE LANGUAGE
After publishing the NPRM, the APA requires [Agency] to give the public an
opportunity to submit written data, views, or arguments related to the proposed
rule. These submissions are called “comments.” The NPRM explains how
members of the public can submit comments and states the deadline for
submitting comments, which is usually at least 30 days after the NPRM is
published.
To ensure members of the public have a meaningful opportunity to comment on
the proposed rule, [Agency] must maintain a public rulemaking docket online [at
Regulations.gov] that includes the NPRM, public comments, and other important
materials discussed in these Guidelines.
It can also be beneficial to obtain public input in other ways, including public
meetings and other events. You should work with [agency office] to coordinate
public events related to a rulemaking. You may need to include records associated
with such events in the public rulemaking docket, as discussed below.
If you receive public input in other ways, for example during a phone call or
private meeting with a member of the public, you may need to document what you
talked about according to [Agency]’s rules on ex parte communications.

2.5

How do agency personnel consider public input and
develop a final rule?

After the public comment period closes, the agency can take steps to finalize the
proposed rule. In some cases, the agency may decide to abandon or postpone the
rulemaking or withdraw the NPRM. If the agency decides to issue a final rule,
agency personnel must consider all public input, draft the final rule, and draft a
preamble that explains the final rule and responds to any public comments that
raise a significant issue. For most agency personnel, the final decisionmaker’s
signature (or publication of the final rule, discussed in the next section) signals the
end of their involvement in the rulemaking process.
The Guidelines should explain internal processes for reviewing public comments,
preparing a final rule, coordinating with OIRA (as relevant), and securing the
approval of the final decisionmaker. The Guidelines should also explain why the
end of the rulemaking process is important for recordkeeping purposes.

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SAMPLE LANGUAGE
After the public comment period ends, agency personnel consider all of the public
input received in response to the proposed rule. In some cases, the agency may
decide that additional public input is required. The agency can also decide not to
finalize the proposed rule.
If the agency decides to issue a final rule, agency personnel work together to
develop the final text of the rule. They also draft a preamble that explains the
rule’s basis and purpose and responds to all significant issues raised in the
comments.
Developing a final rule requires a lot of research, writing, deliberation, and
collaboration. You may work with employees who have very different
responsibilities from you, such as policy specialists, scientists, economists,
attorneys, regulatory specialists, and administrative staff. You may also need to
work with officials in OIRA. Our process for developing and approving a final rule
is available at [source].
For most agency personnel, work on a rulemaking project is complete when the
[agency official] signs the final rule. As discussed below, you may need to take
steps to close administrative records and preserve them when a rulemaking
project is complete. Restrictions on ex parte communications also end at this
point.

2.6

How does the agency publish a final rule?

After the decisionmaker approves a final rule, the agency must provide public notice
of the final rule in the Federal Register. The notice includes the text of the final rule
and the preamble discussed in the preceding section. The Guidelines should address
the internal process for preparing and working with OFR to publish notice of the
final rule and explain when the final rule goes into effect. The Guidelines can also
address other forms of public notice about final rules (e.g., publicity on the agency’s
website or social media, in a press release, through a mailing list, or through direct
outreach to stakeholder groups).

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Handbook on Compiling Administrative Records for Informal Rulemaking

SAMPLE LANGUAGE
To notify the public that the [agency head] has signed a final rule, [Agency] again
works with OFR to publish a notice in the Federal Register. [Agency office] is
responsible for preparing the notice and working with OFR to publish it. The
notice includes the text of the final rule, the preamble, and the date on which the
rule will go into effect. Except in special circumstances, the effective date must be
at least 30 days after the agency publishes the final rule in the Federal Register.
It is often helpful to let the public know about the final rule in other ways, for
example by providing information on our website, on social media, in a press
release, through a mailing list, or through direct outreach to stakeholder groups.
You should work with [agency office] to coordinate publicity related to a final rule.

2.7

What is judicial review of informal rulemaking, and how
does it work?

After describing the steps of the informal rulemaking process, the Guidelines should
explain when and how members of the public can challenge a final rule in federal
court, how the reviewing court will decide the challenge, and what records the
reviewing court will consider to make its decision.5 The Guidelines should identify
the government officials who are involved in the judicial review process, including
agency attorneys and, for agencies without independent litigation authority, DOJ.
SAMPLE LANGUAGE
After a final rule goes into effect, people who are adversely affected by the rule
can usually challenge it in federal court. This process is called “judicial review.”
During judicial review, the court decides, among other things, whether the final
rule was reasonable and whether the agency followed procedures required by law,
such as the requirement to provide a public rulemaking docket online that gives
interested persons a meaningful opportunity to comment. To make its decision,
the court considers the “whole record” of the rulemaking, which consists of
information that the decisionmaker considered directly or indirectly in developing
the final rule. The agency provides most of these materials as part of the
“administrative record for judicial review.”

5 5 U.S.C. §§ 701–06.

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Agency attorneys work with attorneys from the Department of Justice to prepare
the administrative record for judicial review and defend the final rule in court.
After considering the whole record of the rulemaking and arguments made by the
government attorneys and the person challenging the rule, the court will decide
whether to uphold the final rule, remand it (send it back to the agency) for further
action, or vacate it.

2.8

What types of administrative records do agency personnel
compile related to informal rulemaking?

The Guidelines should provide a brief overview of the different kinds of
administrative records that agency personnel compile related to informal
rulemaking. ACUS Recommendation 2013-4 identifies three types of administrative
records related to informal rulemaking that the Guidelines should address:
(1) an internal rulemaking record maintained throughout the rulemaking (which
can go by other names such as the “decision file” or “legal file”),
(2) the public rulemaking docket, and
(3) the administrative record for judicial review.6
The Guidelines should explain what each of these records is, when agency personnel
compile them, and for what purpose.
SAMPLE LANGUAGE
There are several requirements and best practices for recordkeeping during the
informal rulemaking and judicial review processes. For example:
▪
▪
▪
▪
▪
▪

The agency needs to keep track of the important materials it considers in
developing the proposed rule and final rule;
The agency needs to document its decision-making process;
The agency needs to document ex parte communications;
The agency needs to have a public rulemaking docket that gives interested
persons a meaningful opportunity to comment on the proposed rule;
The agency needs to prepare an administrative record for judicial review if
someone challenges the final rule; and
The agency needs to follow federal laws and rules on records management.

6 ACUS Recommendation 2013-4, The Administrative Record in Informal Rulemaking.

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If you are involved in informal rulemaking or judicial review, you may be asked to
preserve certain materials or help compile them as part of one or more of the
following administrative records:
(1) Internal Rulemaking Record. The agency maintains an internal
rulemaking record throughout the entire informal rulemaking process. The
internal rulemaking record includes all materials that agency personnel
with substantive responsibilities for the rulemaking directly or indirectly
considered during the rulemaking. A good internal rulemaking record helps
the [agency official] make a final decision, documents the agency’s
decisionmaking process, allows the agency to comply with records
management requirements, and makes it easier for agency personnel to
prepare the public rulemaking docket and, if needed, the administrative
record for judicial review.
(2) Public Rulemaking Docket. The public rulemaking docket is the public
version of the internal rulemaking record managed by the agency. Federal
law requires the agency to post the public rulemaking docket online so that
interested persons have an opportunity to comment on the proposed rule.
(3) Administrative Record for Judicial Review. The administrative record
for judicial review is the version of the internal rulemaking record that the
agency provides to a court as the whole record of the agency’s final rule.
The agency only prepares an administrative record for judicial review if
someone challenges the final rule in federal court.

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CHAPTER THREE

INTERNAL RULEMAKING RECORD
The Guidelines should include a section that addresses policies and practices for
managing the internal rulemaking record in informal rulemaking. This section
should explain to agency personnel:
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9

3.1

What is the internal rulemaking record?
Why do agency personnel compile the internal rulemaking record?
Who establishes and manages the internal rulemaking record?
When is the internal rulemaking record established and managed?
What is the format of the internal rulemaking record?
How do agency personnel manage the internal rulemaking record?
What materials belong in the internal rulemaking record?
What materials do not belong in the internal rulemaking record?
When and how do agency personnel close and preserve the internal
rulemaking record?

What is the internal rulemaking record?

The Guidelines should explain that the internal rulemaking record is a compilation
containing the full record of materials before the agency in an informal rulemaking.
They should emphasize that the agency maintains the internal rulemaking record
as an internal, non-public record of a rulemaking project. This stands in contrast
with the public rulemaking docket and the administrative record for judicial review,
discussed in Chapters 4 and 5, both of which are disclosed publicly.

3.2

Why do agency personnel compile the internal rulemaking
record?

The Guidelines should explain that the agency compiles the internal rulemaking
record for several different reasons, including:
▪
▪
▪
▪

To keep track of important materials that the agency considered as it
developed the proposed rule and final rule,
To document the agency’s decisionmaking process for later reference,
To provide a record for decisionmaking,
To follow federal laws and rules on records management, and
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▪

To make compiling and managing the public rulemaking docket and the
administrative record for judicial review easier.

EXAMPLE (DOI)
[I]t is important that all Bureaus and Offices maintain organized, accurate, and
thorough Decision Files that document work on their decisions. A complete
Decision File ensures that the decision-maker, typically the individual signing the
decision document, has access to information sufficient to render a well-reasoned
decision. An agency must also protect the public’s interest in government
documents, and preserve its own interests, including compliance with the Federal
Records Act and related requirements. Finally, if an agency decision is challenged
in court, a thorough Decision File will enable the agency to compile an AR to
defend the decision.1

3.3

Who establishes and manages the internal rulemaking
record?

At many agencies, a designated custodian or other official has primary
responsibility for managing internal rulemaking records generally or the internal
rulemaking record for a specific rulemaking. The Guidelines should explain which
official or office has primary responsibility for establishing and managing the
internal rulemaking record throughout the course of a rulemaking. The Guidelines
should also explain what responsibilities other agency personnel have for managing
the internal rulemaking record.

3.4

When is the internal rulemaking record established and
managed?

The Guidelines should encourage agency personnel to maintain a comprehensive
internal rulemaking record throughout the course of a rulemaking project—from
development of the proposed rule through publication of the final rule.
Contemporaneous recordkeeping makes compiling and managing the public
rulemaking docket and the administrative record for judicial review easier.

1 DOI Guidelines at 2. DOI Guidelines use the term “Decision File” to refer to what this Handbook

calls the “rulemaking record.” The acronym “AR” means “administrative record for judicial review.”
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Handbook on Compiling Administrative Records for Informal Rulemaking

EXAMPLE (DOI)
Practically, the Decision File is a collection of documents maintained by a
designated employee, generally the employee, the program manager, the project
manager, or their staff who has access to relevant documents, that details the
development of an agency decision. A Decision File should be created once
consideration of a decision begins, which will vary based on the situation. The
[rulemaking record] should be compiled as documents are generated or received
during the decision-making process, making it a contemporaneous record of the
decision. This practice will also increase agency efficiency and performance should
it become necessary to create an AR.2

3.5

What is the format of the internal rulemaking record?

Most agencies now compile internal rulemaking records electronically. Agencies use
different software programs and electronic processes to manage internal
rulemaking records, including spreadsheets, shared folders, collaborative platforms,
and enterprise software. Agencies should explain in the Guidelines which software
programs and electronic processes agency personnel should use to compile internal
rulemaking records. As relevant, the Guidelines should also explain whether any
materials are maintained separately from the internal rulemaking record, such as
physical objects.

3.6

How do agency personnel manage the internal rulemaking
record?

Agencies have adopted different processes for managing internal rulemaking
records, depending on their needs, available resources, and organization, as well as
the software program or electronic process they use to compile internal rulemaking
records. Each agency, in the Guidelines, should explain its processes for managing
the internal rulemaking record. As relevant, the Guidelines should address:
▪
▪
▪
▪

Where to maintain the internal rulemaking record;
How to organize the internal rulemaking record (e.g., chronologically, by
topic);
How to add materials to the internal rulemaking record;
How to index the internal rulemaking record;

2 Id. at 3.

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▪
▪
▪
▪
▪
▪

▪

3.7

How to label, date, or otherwise annotate internal rulemaking record
materials;
How to preserve dynamic materials, such as webpages;
How to handle voluminous materials and materials that are readily available
elsewhere;
How to handle non-electronic materials and materials that cannot easily be
added to the internal rulemaking record;
How to document communications with people outside the agency (sometimes
called “ex parte communications”);
How to prepare contemporaneous memoranda that document other oral
communications, confusing emails, and other matters that demonstrate the
agency’s decisionmaking process and belong in the internal rulemaking
record; and
How to handle materials containing protected, privileged, or otherwise
sensitive information.

What materials belong in the internal rulemaking record?

The Guidelines should explain that agency personnel should ordinarily include in
the internal rulemaking record all materials “considered” by the agency during the
course of the rulemaking.
Whether the agency “considered” a material can be a highly fact-intensive inquiry.
As ACUS explained in Recommendation 2013-4:
“Considered” entails review by an individual with substantive
responsibilities in connection with the rulemaking. To say that
material was considered also entails some minimum degree of
attention to the contents of a document. Thus, the [internal]
rulemaking record need not encompass every document that
rulemaking personnel encountered while rummaging through a file
drawer, but it generally should include a document that an individual
with substantive responsibilities reviewed in order to evaluate its
possible significance for the rulemaking, unless the review disclosed
that the document was not germane to the subject matter of the
rulemaking.3

3 ACUS Recommendation 2013-4, The Administrative Record in Informal Rulemaking.

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The Guidelines should encourage agency personnel to interpret the concept broadly
so as to fulfill the primary purpose of the internal rulemaking record: to generate a
body of materials by which the rule can be evaluated and to which the agency can
refer in the future. It may be helpful to explain to agency personnel that the
rulemaking record should tell the “complete story” of the rulemaking process,
documenting what the agency considered, whether the agency complied with all
statutory and other required procedures, and how it arrived at its decision.
To that end, it is important for agency personnel to include all materials relied on or
considered by the agency in formulating its proposed or final rule, such as
important factual studies and reports. The Guidelines should emphasize that the
internal rulemaking record should include materials that the agency considered
whether or not they support the agency’s proposed or final rule. In the event of
judicial review, government attorneys may need to show that the agency adequately
considered contrary evidence, opposing viewpoints, and alternative courses of
action. Collecting contrary materials considered by the agency during the course of
the rulemaking will make it easier for the agency to defend the final rule in court.
The Guidelines should also advise agency personnel to include materials that
document the agency’s decisionmaking process, such as important drafts and
documentation of substantive meetings, regardless of whether they contain
protected, privileged, or other sensitive information.
Materials that ordinarily belong in the internal rulemaking record include:
▪
▪
▪
▪
▪

Notices associated with the rulemaking;
Comments and other materials submitted to the agency related to the
rulemaking;
Any transcripts or recordings of oral presentations made in the course of a
rulemaking;
Reports or recommendations of any relevant advisory committees; and
Other materials required by statute, executive order, or agency rule to be
considered or to be made public in connection with the rulemaking.4

4 ACUS Recommendation 2013-4, The Administrative Record in Informal Rulemaking, ¶ 1.

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3.8

What materials do not belong in the internal rulemaking
record?

It would often be a waste of time, with little practical benefit, for all individuals
involved in a rulemaking to take steps to add to the internal rulemaking record
every minimally relevant study, report, website, or other record that they encounter
in the work or have in their files. Similarly, it would be a waste of time in many
cases to include email communications, drafts, personal notes, and documentation
of oral communications that do not involve the agency decisionmaker or have little
meaningful bearing on the ultimate form of the proposed or final rule.
The Guidelines should explain how to agency personnel should distinguish between
materials that belong in the internal rulemaking record (i.e., those that reflect
consideration by the agency during the rulemaking) and those that do not.
EXAMPLE (DOI)
▪
▪
▪

3.9

Substantive meetings that are relevant to the decision-making process
should be sufficiently documented.
Drafts that help substantiate the agency’s decision-making process should
be included in the [rulemaking record].
Documentation of electronic information (such as that found on websites)
and communications (such as emails) should be maintained in the
[rulemaking record] only if relevant, substantive, and if they document the
decision-making process.5

When and how do agency personnel close and preserve the
rulemaking record?

The Guidelines should advise agency personnel to close and take steps to preserve
the internal rulemaking record at the end of the informal rulemaking process (i.e.,
when the rule becomes final or the agency decides not to continue with the
rulemaking). Processes for closing and preserving internal rulemaking records vary
from agency to agency. The Guidelines should explain when and how agency
personnel close the internal rulemaking record and what steps they should take to
preserve it, consistent with federal recordkeeping laws and other executive-branch
and agency policies.
5 DOI Guidelines at 4 (emphasis added).

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CHAPTER FOUR

PUBLIC RULEMAKING DOCKET
The Guidelines should include a section that addresses policies and practices for
managing the public rulemaking docket in informal rulemaking. This section
should explain to agency personnel:
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8

What is the public rulemaking docket?
Why do agency personnel compile the public rulemaking docket?
Who establishes and manages the public rulemaking docket?
When is the public rulemaking docket established and managed?
What is the format of the public rulemaking docket?
How do agency personnel manage the public rulemaking docket?
What materials belong in the public rulemaking docket?
What materials and information do not belong in the public rulemaking
docket?
4.9 What special processes should agency personnel use to handle public
submissions?
4.10 When and how do agency personnel close and preserve the public
rulemaking docket?

4.1

What is the public rulemaking docket?

The Guidelines should explain that the public rulemaking docket is the public
version of the internal rulemaking record managed by the agency and includes all
information that the agency makes available for public viewing during the
rulemaking process.

4.2

Why do agency personnel compile the public rulemaking
docket?

The Guidelines should explain that federal law requires that the agency provide a
public rulemaking docket for each rulemaking and that the failure to provide a wellmanaged public rulemaking docket can result in adverse legal consequences. The
Guidelines should also explain that a well-managed public rulemaking docket is
beneficial for the public, by ensuring that interested persons have adequate notice
of and a meaningful opportunity to comment on the rule, and for the agency.

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SAMPLE LANGUAGE
Public participation is an important part of notice-and-comment rulemaking.
[Agency] facilitates public participation by providing a public rulemaking docket
for each rulemaking. The public rulemaking docket contains important
information about the rulemaking and all records that the agency makes
available for public viewing.
A well-managed docket gives members of the public a meaningful opportunity to
review the agency’s proposed rule and submit their comments and other
important information. The agency relies on these submissions to make decisions
about its proposed rule. If the agency does not provide timely public access to a
complete rulemaking docket, a court can also require the agency to take
additional actions before a final rule can go into effect.

4.3

Who establishes and manages the public rulemaking
docket?

The Guidelines should specify which agency personnel manage the online and any
offline docket and when the docket(s) is established. Some agencies have a
centralized office that manages most public rulemaking dockets, whereas other
agencies delegate responsibility for managing the public docket to the program
office with responsibility for developing a specific rule. The Guidelines should reflect
whichever approach the agency has adopted.

4.4

When is the public rulemaking docket established and
managed?

The Guidelines should explain when the docket(s) is established (e.g., when the
agency submits the NPRM for publication in the Federal Register) and the period
during which agency personnel should continue to manage it (e.g., until the
rulemaking is complete).
SAMPLE LANGUAGE
[Agency] provides public access to the public rulemaking docket on a website
called Regulations.gov. Although the online docket contains most of the materials
that [Agency] makes available for public inspection, some materials cannot be
posted online. [Agency office] establishes the online docket for a rulemaking when

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[Agency] sends the NPRM to OFR for publication in the Federal Register. [Agency
office] manages the online docket until the rulemaking project is complete.
[Agency] also invites members of the public to inspect the public rulemaking
dockets in person in the [Agency Reading Room, 123 J Street NW, Washington,
DC 20001]. The docket available in the [Agency Reading Room] includes all
materials posted in the online docket and any other materials that the agency
decides not to post online (see below). [Agency office] establishes the offline docket
for a rulemaking when [Agency] sends the NPRM to OFR for publication in the
Federal Register. The [Agency office] manages the offline docket until the
rulemaking project is complete.

4.5

What is the format of the public rulemaking docket?

The Guidelines should explain that the agency maintains the public rulemaking
docket in an electronic format, as required by federal law,1 and identify where the
online docket is located (e.g., on Regulations.gov or the agency’s website). Agencies
that invite members of the public to inspect docket materials in a physical location,
such as a docket office or reading room, should specify where the offline docket is
located and explain whether and how that docket differs from the online docket.

4.6

How do agency personnel manage the public rulemaking
docket?

After agency personnel identify materials that belong in the public rulemaking
docket and follow any special policies for handling protected or other sensitive
information, they can add them to the public rulemaking docket.
The Guidelines should incorporate or direct agency personnel to consult instructions
for using the online docket management system that the agency uses, either
Regulations.gov (via FDMS) or its own system. Agencies that use Regulations.gov
and FDMS can use instructions provided by the eRulemaking Program
Management Office (PMO), which manages Regulations.gov and FDMS.
Agencies that maintain separate online and offline dockets should explain which
materials go in the online docket, which go in the offline docket, and which go in

1 E-Government Act of 2002, Pub. L. No. 107-342, § 206(d), 116 Stat. 2899, 2916 (Dec. 17, 2002).

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both. For example, some agencies only make copyrighted materials available for
public inspection in an agency facility. Agencies that maintain an offline docket
should include instructions in the Guidelines for managing the offline docket and
ensuring it is consistent with the online docket.
The Guidelines should explain whether and how agency personnel should annotate
the online docket to acknowledge any materials that were excluded.2 ACUS
recommends, for example, that agencies “should indicate in their e-dockets which, if
any, types of comments were not posted and whether these comments can be
accessed.”3 As another example, ACUS notes that agencies may wish to post “only a
single representative example of identical comments” in the online docket but
should explain that it has done so and “consider providing an opportunity for
interested members of the public to obtain or access all comments received. 4
The Guidelines should also address any special policies for handling non-electronic
materials or electronic materials that cannot be displayed in the online docket
management system. For example, federal law requires that the online docket
include all public submissions “whether or not submitted electronically.” 5 ACUS
recommends, and the Guidelines should state, that agency personnel should “scan
and post all comments submitted in paper format” to the online docket. 6 ACUS also
recommends that agencies “include in the electronic docket a descriptive entry or
photograph for all physical objects received during the comment period.” 7
The Guidelines should explain when agency personnel should make docket
materials available for public inspection, online or otherwise. ACUS recommends
that agencies “strive to ensure rulemaking comments are posted on Regulations.gov
as soon as feasible” 8 and “adopt stated policies of posting public comments to the
Internet within a specified period after submission.” 9

2 ACUS Recommendation 2013-4, The Administrative Record in Informal Rulemaking.
3 ACUS Recommendation 2018-6, Improving Access to Regulations.gov’s Rulemaking Dockets, ¶ 8.
4 ACUS Recommendation 2021-1, Mass, Computer-Generated, and Falsely Attributed Comments,

¶¶ 3–4.
5 E-Government Act of 2002, Pub. L. No. 107-342, § 206(d), 116 Stat. 2899, 2916 (Dec. 17, 2002).
6 ACUS Recommendation 2011-2, Rulemaking Comments, ¶ 3; see also OIRA, Memorandum for the
President’s Mgmt. Council on Increasing Openness in the Rulemaking Process—Improving
Electronic Dockets at 2 (May 28, 2010).
7 ACUS Recommendation 2011-1, Legal Considerations in e-Rulemaking, ¶ 5.
8 ACUS Recommendation 2018-6, Improving Access to Regulations.gov’s Rulemaking Dockets, ¶ 7.
9 ACUS Recommendation 2011-2, Rulemaking Comments, ¶ 3.
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The Guidelines should also explain whether and how agency personnel should index
public rulemaking dockets. ACUS recommends agencies index their public
rulemaking dockets “at an appropriate level of detail.” 10

4.7

What materials belong in the public rulemaking docket?

The public rulemaking docket includes all materials from the internal rulemaking
record that the agency decides to make public, either online or in an offline docket.
The Guidelines should describe those materials from the internal rulemaking record
that personnel should ordinarily include in the public rulemaking docket, such as:
▪

Federal Register Notices. The public rulemaking docket should include the
NPRM and the final rule. Other notices related to the rulemaking may also
belong in the public rulemaking docket, for example pre-NPRM notices,
notices of public events, supplemental NPRMs, and corrections.11

▪

Public Submissions. Federal law requires agencies to add public comments
and other submissions received in response to the NPRM to the public
rulemaking docket.12

▪

Other Materials Required by Law. Statutes, presidential and OMB
directives, and agency rules can require agencies to consider certain
materials or add them to the public rulemaking docket (e.g., economic,
environmental, and other regulatory assessments).13 Even when an NPRM
summarizes an assessment, OIRA urges agencies to add the full assessment
to the public rulemaking docket.14

▪

Important Studies and Reports. Courts have interpreted the APA to
require that agencies include in the public rulemaking docket background
materials that members of the public need in order to meaningfully comment

10 ACUS Recommendation 2013-4, The Administrative Record in Informal Rulemaking, ¶ 6.
11 See id., ¶¶ 1–2.
12 E-Government Act of 2002, Pub. L. No. 107-342, § 206(d), 116 Stat. 2899, 2916 (Dec. 17, 2002).
13 See generally ACUS Recommendation 2012-1, Regulatory Analysis Requirements. Sources for these

requirements include the Regulatory Flexibility Act, National Environmental Policy Act, Executive
Order 12866, Executive Order 13563, and agencies’ enabling statutes.
14 Memorandum from Cass R. Sunstein, Administrator, OIRA, to the President’s Management
Council (May 28, 2010), https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/inforeg/
edocket_final_5-28-2010.pdf.
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on a proposed rule. The D.C. Circuit calls these materials “critical factual
material.” Examples of critical factual materials include important technical
studies, staff reports, data, and methodologies that are not easily accessible
elsewhere for members of the public.15 ACUS recommends that agencies
disclose “all studies and reports on which the proposal for rulemaking
draws.”16 Identifying critical factual material is highly dependent on context,
and it can be difficult for agency personnel to consistently determine which
background materials belong in the public rulemaking docket. The
Guidelines should provide careful explanations of helpful factors to consider.
Such factors may include whether a report is cited in the NPRM, whether
public access to a report is essential for meaningful public comment, and
whether the agency would need to rely on the material to justify its rule
against a legal challenge. The Guidelines should also advise agency personnel
to contact a knowledgeable agency attorney when they have questions.
EXAMPLE (EPA)
The documents in the rulemaking docket may include . . . Relevant technical
documents and factual information (e.g., data files, studies and analyses, graphs,
charts; or technical resource documents). Guidance manuals and directives.
Contractors’ reports containing information relevant to the rulemaking; and/or
other reports containing relevant information, such as trip reports. . . . Your
docket is complete when every item cited in Federal Register documents
associated with the rulemaking is either included or generally accessible in such a
way that public notices and access are adequate (such as through widely available
publications).17
The Guidelines should also describe any other materials that agency personnel
should add to the public rulemaking docket, encouraging them to “manage their
rulemaking dockets to achieve maximum disclosure to the public.” 18 Although the
precise contents of public dockets will vary among agencies and rulemakings,
materials commonly added to public rulemaking dockets are:

15 See Am. Radio Relay League v. FCC, 524 F.3d 227 (D.C. Cir. 2008); Portland Cement Ass’n v.

Ruckelshaus, 485 F.2d 375 (D.C. Cir. 1973).
16 ACUS Recommendation 2011-1, Legal Considerations in e-Rulemaking, ¶ 4.
17 EPA, EPA’S ACTION DEVELOPMENT PROCESS: ADMINISTRATIVE RECORDS GUIDANCE 21 (Sep. 2011),
https://www3.epa.gov/ogc/ adminrecordsguidance09-00-11.pdf.
18 ACUS Recommendation 2013-4, The Administrative Record in Informal Rulemaking.
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▪

Public Meeting and Hearing Materials. Agencies regularly hold
meetings, hearings, listening sessions, and consultations to share information
about or gain public input on proposed rules. Besides notices announcing
these events, it may be advisable to add other materials to the public
rulemaking docket: agendas, registration and attendance lists, handouts,
slide decks, recordings, transcripts, summaries, minutes, speaker
biographies, materials that agency officials receive from interested persons
during events, and documentation of off-the-record oral communications
between agency officials and interested persons that occur during events. 19

▪

Communications With Persons Outside the Agency. Policies on what
are sometimes called “ex parte communications” typically require agency
personnel to document in the public rulemaking docket any informal written
or oral communications regarding the substance of rulemakings between
agency personnel and interested persons. For additional guidance, see ACUS
Recommendation 2014-4.20

▪

Interagency Communications. Some statutes, executive orders, and rules
require agency personnel to add specific interagency communications to the
public rulemaking docket. Agency personnel may also solicit or receive other
input on a proposed rule from White House officials, including OIRA officials,
or officials at other agencies. ACUS recommends that agencies docket
“communications received from the President, advisers to the President, the
Executive Office of the President, and other administrative bodies which
contain material factual information (as distinct from indications of
governmental policy) pertaining to or affecting a proposed rule.” 21

▪

Procedural Requests and Agency Responses. Members of the public
sometimes ask the agency to extend a public comment period or hold a public
event related to a rulemaking. These materials, and any agency responses,

19 Id. ¶ 1(c); see also ACUS Recommendation 2018-7, Public Engagement in Rulemaking, ¶ 9(d).
20 ACUS Recommendation 2014-4, “Ex Parte” Communications in Informal Rulemaking, ¶¶ 2, 5, 7.

This Handbook uses the term “ex parte communications” because it is commonly used and widely
understood in connection with informal rulemaking. However, the term “ex parte” does not entirely
fit in the rulemaking context. The APA does not restrict ex parte communications in informal
rulemaking. And, as ACUS has explained, informal communications between agency personnel and
individual members of the public can be an important and valuable aspect of informal rulemaking.
21 ACUS Recommendation 80-6, Intragovernmental Communications in Informal Rulemaking
Proceedings, ¶ 2.
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may belong in the public rulemaking docket.
▪

Rulemaking Petitions and Associated Materials. The APA requires
agencies to give interested persons “the right to petition for the issuance,
amendment, or repeal of a rule,”22 and some agencies establish dockets for
rulemaking petitions that include the petition and associated materials.
These materials may belong in the public docket for any rulemaking project
that results from a petition.

▪

Advisory Committee Materials. ACUS recommends that agencies include
relevant advisory committee reports and recommendations in the public
rulemaking docket.23

4.8

What materials and information do not belong in the
public rulemaking docket?

Although agencies should “manage their public rulemaking dockets to achieve
maximum disclosure to the public,” there can be good reasons for agencies not to
make certain materials available for public inspection. 24 Before making the
materials described in Section 4.5 available for public inspection, agency personnel
must determine whether it contains any information that is protected, privileged, or
otherwise inappropriate for inclusion in the docket. Materials or information that
agencies may need or prefer to exclude from public rulemaking dockets include:
▪

Protected Materials. Some information is protected from disclosure by
statute or executive-branch policy.25 Types of information that are commonly
protected are protected personal information, confidential business
information (CBI), classified or national security information, financial
institution information, and law enforcement information. The Guidelines
should explain how to identify, treat, and index protected materials in the
public rulemaking docket.

▪

Privileged Materials. Agencies can withhold materials covered by the
attorney-client privilege, attorney work product privilege, or pre-decisional

22 5 U.S.C. § 553(e); see also ACUS Recommendation 2014-6, Petitions for Rulemaking.
23 See ACUS Recommendation 2013-4, The Administrative Record in Informal Rulemaking, ¶ 1(d).
24 ACUS Recommendation 2020-2, Protected Materials in Public Rulemaking Dockets.
25 Sources for protections include FOIA, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a.

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deliberative process privilege. In some circumstances, it may be beneficial to
include such materials in the public rulemaking docket. Public disclosure not
only supports meaningful public participation but also can help government
lawyers defend final rules during the judicial review process. However, only
certain personnel are authorized to make the decision to disclose privileged
materials. Because many people will be unfamiliar with legal privileges, the
Guidelines should clearly explain, in plain language, the kinds of materials
they cover and how to identify covered materials. The Guidelines should
explain how agency personnel should handle materials that may be covered
by a valid claim of privilege, including consulting with an appropriate
attorney to determine whether a material is covered by a privilege and, if it
is, how to handle it in the public rulemaking docket. The Guidelines should
emphasize that only authorized personnel can decide whether or not a
privileged material belongs in the public rulemaking docket.
▪

Other Materials That Do Not Belong in the Docket. Agencies sometimes
exclude materials from the docket for pragmatic or procedural reasons, for
example: (1) comments that were submitted late or improperly; (2) irrelevant
comments; (3) comments that contain abusive, threatening, or profane
language; (4) computer-generated or falsely attributed comments;26 or (5)
published materials cited in the NPRM that are readily available elsewhere.
The Guidelines should explain how to identify, treat, and index materials
excluded for pragmatic or procedural reasons.

In addition to explaining how to identify materials that are protected, privileged, or
otherwise not appropriate for disclosure, the Guidelines should explain how to treat
them in the public rulemaking docket. Options include:
▪

Redacting information that is protected, privileged, or otherwise not
appropriate for disclosure from a record before adding the record to the public
rulemaking docket.

▪

Including a note in the online docket that the record containing information
that is protected, privileged, or otherwise not appropriate for disclosure is
available for public inspection in an agency facility such as a reading room or

26 See ACUS Recommendation 2021-1, Mass, Computer-Generated, and Falsely Attributed

Comments.
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docket office.
▪

Summarizing or aggregating for the public rulemaking docket information
that is protected, privileged, or otherwise not appropriate for disclosure.

▪

Excluding a record from the public rulemaking docket that contains
information that is protected, privileged, or otherwise not appropriate for
disclosure.

For additional guidance, see ACUS Recommendation 2020-2.27 The Guidelines
should advise personnel to contact an appropriate attorney when they have
questions about including materials described in this section in the public
rulemaking docket, or about excluding materials described in the preceding section.
EXAMPLE (EPA)
Materials whose disclosure is protected by statute generally should not be
included in the docket. You should consult your [Office of General Counsel] or
[Office of Regional Counsel] attorney before placing such materials in the docket.
Documents containing . . . materials whose disclosure is protected by statute
should be listed in the index to the docket, but the protected materials should not
be placed in the docket. . . . The docket generally should not include: internal
documents that capture pre-decisional internal discussions that were deliberative
in nature and consist of materials generated prior to the making of a decision
such as day-to-day staff notes; briefing papers, action memos and other staff
advice and recommendations; confidential attorney-client communications;
confidential attorney work-products; draft decision documents; and internal EPA
memos.28

4.9

What special processes should agency personnel use to
handle public submissions?

Public submissions usually form the bulk of the public rulemaking docket. The
Guidelines should explain any special policies for handling submissions with certain
attributes. For example, agencies have adopted policies for treating the following
types of public submissions:

27 See ACUS Recommendation 2020-2, Protected Materials in Public Rulemaking Dockets.
28 EPA Guidelines at 21.

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▪

Submissions Containing Protected or Sensitive Information. Agencies
have adopted different policies for handling public submissions that contain
protected or sensitive information. For example, some agencies do not accept
comments that include CBI. Others redact CBI or exclude comments
containing CBI but include a note in the online docket that these comments
have been excluded. Others have developed special processes for members of
the public to submit CBI or request that CBI be excluded from the docket.
ACUS Recommendation 2020-2 contains extensive recommendations for
managing protected materials in the public rulemaking docket.29

▪

Submissions Containing Copyrighted Materials. Agency officials have
adopted special policies for handling copyrighted materials submitted by
public commenters. Some agencies have also developed processes to allow
public commenters to indicate that they own the copyright to the materials
they submit.

▪

Identical Comments. Some rulemakings attract a high volume of public
comments, many of which may be identical. De-duplication tools can help
agency personnel identify and manage identical comments. ACUS
Recommendation 2021-1 offers best practices for managing large numbers of
identical comments in the public rulemaking docket.30

▪

Computer-Generated Comments. Some agencies are starting to receive
computer-generated comments as a result of technological advances. ACUS
Recommendation 2021-1 offers best practices for managing computergenerated comments.31

▪

Falsely Attributed Comments. Commenters sometimes falsely attribute
their submissions to other individuals or organizations. ACUS
Recommendation 2021-1 offers best practices for managing falsely attributed
comments.32

▪

Submissions Containing Abusive, Threatening, or Profane Language.
Some agencies have adopted (or been encouraged to adopt) special policies for

29 ACUS Recommendation 2020-2, Protected Materials in Public Rulemaking Dockets.
30 ACUS Recommendation 2021-1, Mass, Computer-Generated, and Falsely Attributed Comments.
31 Id.
32 Id.

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handling comments that contain abusive, threatening, or profane language.33
Agencies should be mindful of legal requirements, including those arising
under the First Amendment, when developing such policies.
▪

Anonymous Comments. Some agencies have adopted policies that
explicitly address whether they accept anonymous comments. 34

▪

Submissions That Are Not Relevant to the Rulemaking. Agencies
sometimes receive in response to an NPRM submissions, including spam,
that are not relevant to the rulemaking. Some agencies have adopted special
policies for handling these materials.

▪

Submissions Received After the Public Comment Period. ACUS
recommends that agencies “adopt and publish policies on late comments,”
including whether they will consider late comments and add them to the
public rulemaking docket.35

▪

Submissions Received Before the Public Comment Period. In some
cases, it may be beneficial to include in the public rulemaking docket any
submissions received during an earlier, related rulemaking; in response to a
rulemaking petition; or in response to agency information requests and public
engagement efforts that preceded the NPRM.

▪

Submissions Received Through Alternative Submission Methods. The
NPRM instructs members of the public how to submit comments to the
agency (e.g., through an online docket system, or by email, mail, fax, or hand
delivery to a specific person or office). However, agency personnel may receive
comments by other means, for example at public events, through ex parte
communications, or in response to social media posts. ACUS recommends
that “[w]hen an agency sponsors a social media discussion in connection with
notice-and-comment rulemaking, it should determine and prominently
indicate to the public how the discussion will be treated under the APA (for

33 See also ABUSES OF THE FEDERAL NOTICE-AND-COMMENT RULEMAKING PROCESS, S TAFF REPORT,

SENATE PERMANENT SUBCOMMITTEE ON INVESTIGATIONS 17 (Oct. 24, 2019).
34 ACUS Recommendation 2011-2, Rulemaking Comments, ¶ 4.
35 Id., ¶ 5.
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administrative record purposes).”36
▪

Materials Submitted With or Incorporated by Reference in
Comments. Public commenters sometimes submit attachments to a
comment letter, such as journal or newspaper articles, or incorporate them by
reference in the comment letter.

▪

Submissions That Are Physical Objects. ACUS recommends that
agencies “include in the electronic docket a descriptive entry or photograph
for all physical objects received during the comment period.”37

4.10 When and how do agency personnel close and preserve the
public rulemaking docket?
The Guidelines should include instructions for preserving public rulemaking
dockets for completed rulemaking projects to comply with federal records
management requirements,38 and to ensure they are available to government
attorneys in the event of judicial review. ACUS recommends that agencies “develop
systematic protocols to enable the online storage and retrieval of materials from
completed rulemakings.”39

36 ACUS Recommendation 2013-5, Social Media in Rulemaking, ¶ 11; see also ACUS

Recommendation 2011-8, Agency Innovations in E-Rulemaking, ¶ 3.
37 ACUS Recommendation 2011-1, Legal Considerations in e-Rulemaking, ¶ 5.
38 See id., ¶¶ 3, 7.
39 ACUS Recommendation 2011-8, Agency Innovations in E-Rulemaking, ¶ 7.
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CHAPTER FIVE

ADMINISTRATIVE RECORD
FOR JUDICIAL REVIEW
The Guidelines should include a section that addresses policies and practices for
managing the administrative record for judicial review of rules developed through
informal rulemaking. This section should explain to agency personnel:
5.1
5.2

5.9
5.10
5.11

What is the administrative record for judicial review?
Why do agency personnel compile the administrative record for judicial
review?
Who compiles the administrative record for judicial review?
When do agency personnel compile the administrative record for judicial
review?
What materials belong in the administrative record for judicial review?
How do agency personnel search for materials that belong in the
administrative record for judicial review?
What is the format of the administrative record for judicial review?
How do agency personnel organize the administrative record for judicial
review?
How does the agency certify the administrative record for judicial review?
How does the agency file the administrative record for judicial review?
How does the agency preserve the administrative record for judicial review?

5.1

What is the administrative record for judicial review?

5.3
5.4
5.5
5.6
5.7
5.8

The Guidelines should explain that the administrative record for judicial review is
the compilation of materials that a court uses to assess the legal adequacy of the
agency’s final rule during the judicial review process (described in Chapter 1).1 The
administrative record for judicial review consists of the “whole record” before the
agency during the rulemaking process. 2

1 Agencies may wish to clarify in the Guidelines that administrative records for judicial review are

not unique to informal rulemaking. Agencies also prepare such records when someone challenges
other agency actions such as adjudicative orders and rules developed through processes other than
informal rulemaking.
2 5 U.S.C. § 706.
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The Guidelines should explain that the agency is responsible for compiling the
administrative record for judicial review in the first instance and providing it to the
court as the record on review of the agency’s final rule.

5.2

Why do agency personnel compile the administrative
record for judicial review?

The Guidelines should explain that the agency compiles an administrative record
for judicial review to allow the court to assess the legal adequacy of a final rule
during the judicial review process (described in Chapter 1).
The Guidelines should emphasize that courts usually rely solely on the
administrative record for judicial review to judge the legal adequacy of the final
rule. Agencies may wish to highlight the adverse consequences, for the agency and
agency personnel, that can result from an inadequate administrative record for
judicial review.
EXAMPLE (EPA)
An inadequate record may mean that the Agency action is overturned by a
reviewing court or remanded for additional explanation. That in turn can require
additional staff time and resources. In addition, some courts faced with an
inadequate record will allow supplementation of the record by the opposing
parties or will allow discovery, which can also be very time- and resourceintensive. Compilation of a complete administrative record will help the Agency
avoid these adverse consequences in litigation.3

5.3

Who compiles the administrative record for judicial
review?

There are many tasks associated with preparing an administrative record for
judicial review, such as:
▪
▪
▪

Searching for materials that are related to the rulemaking,
Identifying which of those materials do or do not belong in the administrative
record for judicial review,
Compiling and organizing the record,

3 EPA Guidelines at 5.

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▪
▪
▪
▪

Indexing the record,
Reviewing the record for completeness,
Certifying that the record is complete, and
Filing the record with the court.

Agencies allocate these responsibilities depending on their unique circumstances.
Some tasks may be performed by agency personnel in the program office that
developed the final rule. Other tasks may be performed by attorneys in a general
counsel’s office or personnel in a records-management office. The Guidelines should
explain which tasks are performed by whom and how different personnel work
together to successfully provide an adequate administrative record to a reviewing
court.
One common practice is to assign to a single official primary responsibility for
coordinating and overseeing the preparation of an administrative record for judicial
review. This official may go by names such as “custodian” or “coordinator.”
Depending on an agency’s needs, it may be useful for the Guidelines to include
general principles for selecting an official who will be effective in this role.
EXAMPLE (NOAA)
To effectively assemble an Administrative Record, either once litigation is
anticipated or once NOAA is sued, the decision-maker must designate a
“Custodian” who is responsible for compiling and maintaining the documents and
materials that will comprise the Administrative Record.
The Custodian generally should be a program manager, project manager, or staff
person with significant drafting and analytical responsibility for the action, or a
person who was otherwise substantially involved in the merits of the matter. Line
Offices should consider providing specific guidance for identifying the agency
employee who is likely to be the most well-suited to serve as Custodian for any
given decision-making process.
Importantly, the Custodian must be able to identify which documents belong in
the Administrative Record and, in the event of litigation, be prepared to provide a
declaration about its preparation.

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As soon as the Custodian is identified, the person should get in touch with the
appropriate NOAA General Counsel’s Office attorney assigned to work on the
matter.4

5.4

When do agency personnel compile the administrative
record for judicial review?

The Guidelines should explain the agency’s policies for when it begins to compile
the administrative record for judicial review, for example when someone files a
lawsuit in federal court challenging a final rule or it is reasonably anticipated that
someone will file such a lawsuit. The Guidelines should emphasize that maintaining
an internal rulemaking record throughout the rulemaking process, as described in
Chapter 3, will help agency personnel accurately and efficiently compile an
administrative record for judicial review in the event of litigation.

5.5

What materials belong in the administrative record for
judicial review?

The Guidelines should explain that the administrative record for judicial review
should contain the complete story of the decisionmaking process, from the start of
the informal rulemaking process through publication of the final rule. As a general
principle, materials that the final decisionmaker directly or indirectly considered
during the course of the rulemaking belong in the administrative record for judicial
review. This will enable a reviewing court to assess whether the agency followed all
required procedures, adequately considered all information before the agency, and
issued a final rule that is supported by that information.
The Guidelines can highlight specific materials that typically belong in the
administrative record for judicial review, such as:
▪
▪
▪
▪

Notices related to the rulemaking;
Comments and other public submissions related to the rulemaking;
Transcripts or recordings of public hearings, meetings, and other oral
presentations made in the course of the rulemaking;
Documentation of substantive communications with people outside the
agency related to the rulemaking (“ex parte communications”);

4 NOAA Guidelines at 5.

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▪
▪
▪

Reports or recommendations of relevant advisory committees;
Scientific, technical, and other background materials that the agency relied
on or cited in notices related to the rulemaking; and
Other materials required by statute, executive order, or agency rule to be
considered or made public in connection with the rulemaking.

The Guidelines should emphasize that materials related to the rulemaking belong
in the administrative record for judicial review even if they do not support the final
rule. They agency may need to demonstrate to a court that it considered opposing
viewpoints, contrary facts, and regulatory alternatives that were not adopted.
Agency personnel may have questions about whether certain materials are related
to the rulemaking or belong in the administrative record for judicial review.
Questions can be especially common for certain kinds of materials, such as drafts,
internal emails and other communications, materials from a related rulemaking,
background materials that agency personnel reviewed but that the agency did not
cite in a public notice, and especially voluminous materials that are publicly
available elsewhere. The Guidelines should encourage agency personnel to consult
with an attorney or other qualified official when they have questions.
EXAMPLE (EPA)
The development of administrative records is a highly case-specific endeavor and
these recommendations do not address all questions concerning these
administrative records. However, this document should provide clarity and
assistance for the most often-asked questions pertaining to administrative
records. Questions that are not addressed in this document should be referred to
the Office of General Counsel (OGC) or Regional attorney working on a particular
matter.5
The Guidelines should explain that agency attorneys or DOJ attorneys may
ultimately decide not to include some materials related to the rulemaking in the
final version of the administrative record for judicial review that is filed with a
court. There are several reasons why an attorney may decide not to include a
document or other material in the final administrative record for judicial review.
Federal law may protect it from public disclosure, for example, or the material may
be classified, confidential, or privileged.

5 EPA Guidelines, at 3–4.

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The Guidelines should emphasize, however, that only a designated attorney or
other qualified person can decide that materials related to the rulemaking do not
belong in the final version of the administrative record for judicial review. Other
personnel should not make their own decisions about excluding materials that are
related to the rulemaking from the administrative record for judicial review.

5.6

How do agency personnel search for materials that belong
in the administrative record for judicial review?

In addition to explaining who coordinates the search for materials that belong in
the administrative record (see Section 5.3), the Guidelines should explain how
agency personnel should go about conducting that search. As described in Chapter
3, it is a best practice for agencies to maintain an internal rulemaking record
throughout the rulemaking process. If agency personnel maintain a good,
contemporaneous internal rulemaking record, most materials that belong in the
administrative record for judicial review should be easy to find. Still, agency
personnel may need to take steps to look for materials that are not maintained in
the internal rulemaking record or verify that there are no other materials that
belong in the administrative record for judicial review.
EXAMPLE (DOI)
During the initial search phase, a designated employee (the “AR Coordinator”)
should begin by examining the Decision File,6 if any, because most, if not all, of
the documents that go into the AR should be in a properly maintained Decision
File. The AR Coordinator should also direct an additional and thorough search in
order to collect other relevant documents, including all primary and supporting
documents, which may not be included in the Decision File. 7
In addition to conducting the search for materials that belong in the administrative
record for judicial review, it is often a best practice to document the search. The
agency may rely on this documentation to show that it conducted a thorough search
for relevant materials and compiled a complete record. The Guidelines should
provide instructions for how to document the search for materials that belong in the
administrative record for judicial review.

6 DOI Guidelines uses the term “Decision File” to refer to what this Handbook calls the “rulemaking

record.”
7 DOI Guidelines at 5.
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EXAMPLE (NOAA)
The Custodian should keep careful track of who has been asked to submit
materials, what materials the person has been asked to submit and has
submitted, where the person searched for documents, who was consulted in the
process and how the Administrative Record has been assembled.8

5.7

What is the format of the administrative record for judicial
review?

Agencies use different business processes, systems, and technologies to compile,
manage, and review administrative records for judicial review. Each agency should
describe in its Guidelines the specific processes, systems, and technologies that
agency personnel should use.
Federal court rules determine the format of the final version of the administrative
record for judicial review. The agency or DOJ will usually submit the final version
as a Portable Document Format (PDF) file through the court’s electronic filing
system. Special handling may be required for records that are especially large or
contain information that is protected from public disclosure (e.g., confidential
business information, copyrighted materials).

5.8

How do agency personnel organize the administrative
record for judicial review?

The Guidelines should describe any requirements or general principles for
organizing the administrative record for judicial review, for example:
▪
▪
▪
▪
▪

Omit duplicate materials;
Compile materials in a logical order (e.g., chronologically, topically);
Label materials with important metadata (e.g., date, sender, recipient,
identifying number);
Number pages within materials and across the administrative record for
judicial review;
Comply with any practices that court rules require or the agency agreed to
follow; and

8 NOAA Guidelines at 12.

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▪

Segregate materials that may require special handling (e.g., confidential
business information, copyrighted materials).

The Guidelines should also provide instructions for preparing an index of the
contents of the administrative record for judicial review as well as a privilege log, if
necessary or warranted, which describes materials related to the rulemaking that
agency or DOJ attorneys decide do not belong in the record (see Section 5.5). The
Guidelines can include a sample index and privilege log as appendices.9

5.9

How does the agency certify the administrative record for
judicial review?

The administrative record for judicial review will include an affidavit, made by an
agency official, attesting to the contents and accuracy of the record. The Guidelines
should explain who is responsible for certifying the record.
EXAMPLE (EPA)
Unless otherwise provided for in a particular Agency program, the person who
certifies the record for litigation should generally be the highest level career
manager with oversight responsibility for the action for which the record is
developed; at Headquarters, that would generally be the relevant office director.
For Regional offices, this would generally be the relevant division director. 10
The Guidelines should also explain the process for certifying the record. If there is a
standard form that agency personnel should use to certify administrative records
for judicial review, it can be included as an appendix to the Guidelines.11

5.10 How does the agency file the administrative record for
judicial review?
The Guidelines should note that the exact process for filing an administrative
record for judicial review depends on the rules of the court in which the litigation
takes place, and that an attorney will provide specific instructions in each case.

9 See DOI Guidelines at Appendix 1 and Appendix 2.
10 EPA Guidelines at 12.
11 See DOI Guidelines at Appendix 3.

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EXAMPLE (DOI)
Different courts have different rules for filing an AR. The Office of the Solicitor
will work with the Department of Justice, the court, and the opposing party and
will provide specific instructions to the AR Coordinator.12

5.11 How does the agency preserve the administrative record
for judicial review?
Like other agency records, administrative records for judicial review are subject to
federal laws and policies on records management. The Guidelines should include
instructions for preserving the administrative record for judicial review.

12 DOI Guidelines at 1313

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APPENDIX A
RECOMMENDATION 2013-4:

THE ADMINISTRATIVE RECORD
IN INFORMAL RULEMAKING
78 Fed. Reg. 41358 (July 10, 2013)
The administrative record in informal rulemaking plays an essential role in
informing the public of potential agency action and in improving the public’s ability
to understand and participate in agency decisionmaking. As well, the
administrative record can be essential to judicial review of agency decisionmaking
under the Administrative Procedure Act (APA), which directs courts to “review the
whole record or those parts of it cited by a party” to determine whether challenged
agency action is lawful.1 This statutory language was originally understood as
referring to formal proceedings. However, the Supreme Court has long interpreted
this APA provision as also encompassing the “administrative record” in informal
agency proceedings, whether reviewable by statute or as final agency actions under
5 U.S.C. § 704.2 This application to informal proceedings has given rise to
uncertainty and experimentation as agencies and courts have worked to implement
the administrative record concept—at times inconsistently. As a result, confusion
has arisen about the compilation and uses of agency rulemaking records maintained
internally, public rulemaking dockets, and administrative records for judicial
review. The differences among these three types of records can be seen from their
descriptions below.
The Administrative Conference therefore commissioned a study of federal
agencies’ current practices in the development of rulemaking records, public
rulemaking dockets, and administrative records for judicial review.3 This
recommendation and the supporting report address these concepts in the context of
informal agency rulemaking adopted pursuant to the notice-and-comment
1 5 U.S.C. § 706.
2 Camp v. Pitts, 411 U.S. 138, 142 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,

419 (1971).
3 Leland E. Beck, Agency Practices and Judicial Review of Administrative Records in Informal
Rulemaking (May 14, 2013) (report to the Administrative Conference of the United States)
[hereinafter Beck Report].
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procedures prescribed in 5 U.S.C. § 553.4 The recommendation does not address the
record for agency decisions made in other contexts, such as in adjudication, formal
rulemaking, or guidance documents.
This recommendation builds upon earlier Administrative Conference work in
the areas of rulemaking, recordkeeping, and technological developments in
managing records. Administrative Conference Recommendation 74-4,
Preenforcement Judicial Review of Rules of General Applicability, identified the
administrative materials that should be available to a court that was evaluating, on
preenforcement review, the factual basis for agency rules of general applicability.5
That recommendation was receptive to judicial development of the concept of a
“record” on review of informal agency rulemakings. In Recommendation 93-4,
Improving the Environment for Agency Rulemaking, the Administrative Conference
advised agencies to establish and manage rulemaking files “so that maximum
disclosure to the public is achieved during the comment period and so that a usable
and reliable file is available for purposes of judicial review.” 6 A number of
Administrative Conference recommendations also have examined the use of
technology in acquiring, releasing, and managing agency records.7 Most recently,
the Conference examined legal considerations associated with the use of digital
technologies in the development and implementation of informal rulemakings.8
This Recommendation synthesizes and updates the Conference’s prior
recommendations in these areas. It is grounded in empirical research, supported by
4 5 U.S.C. § 553(b)-(d).

It may also have application to “hybrid” rulemaking statutes that require
additional procedures beyond those in § 553 but less than those in formal rulemaking under 5 U.S.C.
§§ 556-57.
5 Administrative Conference of the United States, Recommendation 74-4, Preenforcement Judicial
Review of Rules of General Applicability, 39 Fed. Reg. 23,044 (June 26, 1974), based on consultant’s
report published as Paul R. Verkuil, Judicial Review of Informal Rulemaking, 60 VA. L. REV. 185
(1974).
6 Administrative Conference of the United States, Recommendation 93-4, Improving the
Environment for Agency Rulemaking, 59 Fed. Reg. 4670 (Feb. 1, 1994), correction published, 59 Fed.
Reg. 8507 (Feb. 22, 1994).
7 Administrative Conference of the United States, Recommendation 2011-2, Rulemaking Comments,
76 Fed. Reg. 48,791 (Aug. 9, 2011); Administrative Conference of the United States,
Recommendation 2011-1, Legal Considerations in e-Rulemaking, 76 Fed. Reg. 48,789 (Aug. 9, 2011);
Administrative Conference of the United States, Recommendation 90-5, Federal Agency Electronic
Records Management and Archives, 55 Fed. Reg. 53,270 (Dec. 28, 1990); Administrative Conference
of the United States, Recommendation 88-10, Federal Agency Use of Computers in Acquiring and
Releasing Information, 54 Fed. Reg. 5209 (Feb. 2, 1989).
8 Recommendation 2011-1, supra note 7.
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a survey questionnaire on present agency recordkeeping practices, as well as by a
review of existing agency guidance.9 The Conference has identified and recommends
best practices for all rulemaking agencies in the areas of record compilation,
preservation, and certification. The recommendation also advises agencies to
develop guidance to aid agency personnel as they compile rulemaking and
administrative records and public rulemaking dockets and to increase public
understanding of agency recordkeeping.
Agencies engage in informal rulemaking with differing frequencies,
resources, and technological capabilities. Many agencies are in a period of
transition, as they move from paper to electronic recordkeeping.10 Attention to the
design of information technology resources that is mindful of the principles and best
practices set forth below can aid agencies in recordkeeping, as well as facilitate
greater public understanding of agency decisionmaking and more effective judicial
review. For the purposes of this recommendation, the rulemaking record, public
rulemaking docket, and the administrative record for judicial review are defined as
follows:
“Rulemaking record” means the full record of materials before the agency in
an informal rulemaking. The Conference contemplates that, in addition to materials
required by law to be included in the rulemaking record, as well as all comments
and materials submitted to the agency during comment periods, any material that
the agency considered should be included as part of that record.
“Considered” entails review by an individual with substantive responsibilities
in connection with the rulemaking.11 To say that material was considered also
9 Beck Report, supra note 3, at Section III.
10 The Office of Management and Budget and the National Archives have directed federal agencies to

manage all permanent electronic records in an electronic format to the fullest extent possible by
December 31, 2019, and to develop plans to do so by December 31, 2013. Memorandum from Jeffrey
D. Zients, Acting Director, Office of Management and Budget, and David S. Ferriero, Archivist of the
United States, National Archives and Records Administration, to the Heads of Executive
Departments and Agencies and Independent Agencies concerning “Managing Government Records
Directive” M-12-18 (Aug. 24, 2012).
11 The Conference first recommended inclusion of materials “considered” by the agency in the
administrative record for judicial review in Recommendation 74-4, supra note 5. Courts have also
relied on the concept of consideration in defining the administrative record. Pac. Shores Subdiv., Cal.
Water Dist. v. U.S. Army Corps of Engineers, 448 F. Supp. 2d 1, 4 (D.D.C. 2006) (citations omitted);
see also Nat’l Ass’n of Chain Drug Stores v. U.S. Dep’t of Health & Human Servs., 631 F. Supp. 2d
23, 26 (D.D.C. 2009) (citing Recommendation 74-4 in defining the administrative record); cf. Sierra

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entails some minimum degree of attention to the contents of a document. Thus, the
rulemaking record need not encompass every document that rulemaking personnel
encountered while rummaging through a file drawer, but it generally should include
a document that an individual with substantive responsibilities reviewed in order to
evaluate its possible significance for the rulemaking, unless the review disclosed
that the document was not germane to the subject matter of the rulemaking. A
document should not be excluded from the rulemaking record on the basis that the
reviewer disagreed with the factual or other analysis in the document, or because
the agency did not or will not rely on it. Although the concept resists precise
definition, the term considered as used in this recommendation should be
interpreted so as to fulfill its purpose of generating a body of materials by which the
rule can be evaluated and to which the agency and others may refer in the future.
“Public rulemaking docket” means the public version of the rulemaking
record managed by the agency, regardless of location, such as online at
Regulations.gov or an agency website or available for physical review in a docket
room. The public rulemaking docket includes all information that the agency has
made available for public viewing. The Conference also urges agencies to manage
their public rulemaking dockets to achieve maximum disclosure to the public.
However, the Conference recognizes that prudential concerns may limit agencies
from displaying some information, such as certain copyrighted or indecent
materials, online. It is a best practice for agencies to describe and note online those
materials that are not displayed but are available for physical inspection. Another
agency best practice is to include in the public rulemaking docket materials
generated and considered by the agency after the close of the comment period but
prior to issuance of the final rule.12
“Administrative record for judicial review” means the materials tendered by
the agency and certified to a court as the record on review of the agency’s regulatory
action. The administrative record provided to the court will include an affidavit,
made by a certifying official, attesting to the contents and accuracy of the record
Club v. Costle, 657 F.2d 298, 394 n. 469 (D.C. Cir. 1981) (discussing Recommendation 74-4 as an
approach to defining the administrative record).
12 The present recommendation is not limited to disclosures that the APA, as construed in widely
followed case law, may require. See Ass’n of Data Processing Serv. Orgs. v. Bd. of Governors, 745
F.2d 677, 684 (D.C. Cir. 1984) (“[A]t least the most critical factual material that is used to support
the agency’s position on review must have been made public in the proceeding . . . .”). However, this
case law gives agencies an additional reason to provide public disclosure of factual material in some
circumstances.
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being certified.13 It should also include an index itemizing the contents.14 Parties
often rely on this index in designating portions of the administrative record for
judicial review, such as for inclusion in a joint appendix that will be presented to
the court. The designated portions of the administrative record then typically serve
as the basis for the court’s review, as provided in the Administrative Procedure Act
and as appropriate under the rules of the reviewing court.15
Some materials in an agency’s rulemaking record may be protected from
public disclosure by law or withheld from the public on the basis of agency privilege.
For example, protected materials might include classified information, confidential
supervisory or business information, or trade secrets. Other materials might be
withheld on the basis of privilege, including attorney-client privilege, the attorney
work product privilege, and the pre-decisional deliberative process privilege. Agency
practices regarding the identification or inclusion of protected or privileged
materials in administrative records and their accompanying indices vary.16 Some
agencies do not include or identify deliberative or privileged materials in
administrative records for judicial review.17 Other agencies identify non-disclosed
materials specifically in a privilege log provided with the index of the
administrative record for judicial review. Agencies have also noted redactions of
protected materials in the administrative record for judicial review and moved the
court to permit filing of protected materials, or a summary thereof, under seal.
Many agencies do not have a policy on inclusion of protected or privileged materials
in an administrative record for judicial review and manage such materials on a
case-by-case basis. Case-by-case consideration may occasionally be necessary, such
as when privileged materials are referenced as the basis of the agency’s decision.
Nonetheless, the Conference recommends that agencies develop a written policy for
treatment of protected or privileged materials, including indexing, in public

13 Beck Report, supra note 3, at Section IV.A.
14 Id.
15 5 U.S.C. § 706 (“. . . the court shall review the whole record or those parts of it cited by a

party. . . .”).
16 The variety of agency practices is described at length in the Beck Report, supra note 3, at Section
IV.A.
17 Absent a showing of bad faith or improper behavior, the agency practice of excluding pre-decisional
materials from the administrative record on judicial review enjoys substantial judicial support. See
In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 156 F.3d 1279 (D.C. Cir.
1998); San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm’n, 789 F.2d 26, 44-45 (D. C.
Cir. 1986) (en banc).
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rulemaking dockets and in certification of the administrative record for judicial
review, and that agencies make this policy publicly available.
Compilation and preparation of the administrative record for judicial review
is properly within the province of the agency and this process should be accorded a
presumption of regularity by the reviewing court.18 Completion or supplementation
of the administrative record for judicial review may be appropriate where a strong
showing has been made to overcome the presumption of regularity in compilation.
For example, courts have permitted limited discovery on the basis of a “strong
showing of bad faith or improper behavior” on the part of the agency
decisionmaker.19 Courts may also inquire into allegations that the agency omitted
information from the administrative record for judicial review that should have
been included.20
Completion or supplementation of the administrative record for judicial
review may also be appropriate in other circumstances not addressed in this
recommendation. In a previous recommendation, the Conference has recognized
that the reviewing court should not invariably be confined to the record on review in
evaluating the factual basis of a generally applicable rule on preenforcement
review.21 The Conference has also acknowledged that, on direct review by courts of
appeals, the record on review “can usually be supplemented, if necessary, by means
other than an evidentiary trial in a district court.”22

18 See Citizens for Alternatives to Radioactive Dumping v. U.S. Dep’t of Energy, 485 F.3d 1091, 1097

(10th Cir. 1985) (“. . . designation of the Administrative Record, like any established administrative
procedure, is entitled to a presumption of administrative regularity.”) (citation omitted); Amfac
Resorts, LLC v. U.S. Dep’t of Interior, 143 F. Supp. 2d 7, 12 (D.D.C. 2001); see also United States v.
Chem. Found., Inc., 272 U.S. 1, 14-15 (1926) (“The presumption of regularity supports the official
acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they
have properly discharged their official duties.”).
19 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971).
20 See, e.g., Cape Cod Hospital v. Sebelius, 630 F.3d 203, 211-12 (D.C. Cir. 2011); Ad Hoc Metals
Coalition v. Whitman, 227 F. Supp. 2d 134, 139-40 (D.D.C. 2002).
21 Recommendation 74-4, supra note 5.
22 Administrative Conference of the United States, Recommendation 75-3, The Choice of Forum for
Judicial Review of Administrative Action ¶ 5(a), 40 Fed. Reg. 27,926 (July 2, 1975).
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RECOMMENDATION
Record Contents
1.

The Rulemaking Record. In the absence of a specific statutory requirement to
the contrary, the agency rulemaking record in an informal rulemaking
proceeding should include:
(a)

notices pertaining to the rulemaking;

(b)

comments and other materials submitted to the agency related to the
rulemaking;

(c)

transcripts or recordings, if any, of oral presentations made in the
course of a rulemaking;

(d)

reports or recommendations of any relevant advisory committees;

(e)

other materials required by statute, executive order, or agency rule to
be considered or to be made public in connection with the rulemaking;
and

(f)

any other materials considered by the agency during the course of the
rulemaking.

2.

The Public Rulemaking Docket. Agencies should manage their public
rulemaking dockets to achieve maximum public disclosure. Insofar as
feasible, the public rulemaking docket should include all materials in the
rulemaking record, subject to legal limitations on disclosure, any claims of
privilege, or any exclusions allowed by law that the agency chooses to invoke.
In addition, it may be prudent not to include some sensitive information
online and to note instead that this material is available for physical review
in a reading room.

3.

The Administrative Record for Judicial Review. The administrative record
provided to the court on judicial review of informal rulemaking should
contain all of the materials in the rulemaking record as set forth in
paragraph 1, except that agencies need not include materials protected from
disclosure by law nor materials that the agency has determined are subject to
withholding based on appropriate legal standards, including privilege.
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Rulemaking Recordkeeping
4.

Agencies should begin compiling rulemaking records no later than the date
on which an agency publishes the notice of proposed rulemaking. Agencies
should include materials considered in preparation of the notice of proposed
rulemaking. For example, agencies should include materials received in
response to an advance notice of proposed rulemaking or a notice of inquiry, if
there is one, and considered in development of the proposed rule. The agency
should continue compiling the rulemaking record as long as the rule is
pending before the agency.

5.

Agencies should designate one or more custodians for rulemaking
recordkeeping, either on a rulemaking-by-rulemaking basis or generally.
Agencies should inform agency personnel of the custodian(s) and direct them
to deposit rulemaking record materials with the custodian(s), excepting if
necessary confidential information to which access is restricted. The
custodian(s) should document the record compilation process.
Public Rulemaking Dockets

6.

To the extent practicable, agencies should index public rulemaking dockets
for informal rulemaking, at an appropriate level of detail.
Record Preservation

7.

The National Archives and Records Administration (NARA) should amend its
agency guidance to address the official status and legal value of records
relating to informal rulemaking, particularly administrative records for
judicial review.

8.

Agencies using electronic records management systems to manage
rulemaking records, such as the Federal Document Management System or
agency specific systems, should work with NARA to ensure the adequacy of
such systems for recordkeeping purposes and the transfer to the National
Archives of permanent records. Agencies should review their records
schedules in light of developments in electronic records management.

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Certification of Administrative Records for Judicial Review
9.

Agencies should develop procedures for designating appropriate individuals,
who may or may not be record custodians, to certify administrative records to
the court in case of judicial review of agency action. Agency certifications
should include an index of contents of the administrative record for judicial
review.
Agency Record Policies and Guidance

10.

Agencies should develop a general policy regarding treatment of protected or
privileged materials, including indexing, in public rulemaking dockets and in
certification of the administrative record for judicial review. Agencies should
make this policy available to the public and should provide it to the
Department of Justice, if the Department represents the agency in litigation.

11.

Agencies that engage in informal rulemaking should issue guidance to aid
personnel in implementing the above best practices. Agencies should make
their guidance on informal rulemaking and administrative recordkeeping
available to the public and should provide it to the Department of Justice, if
the Department represents the agency in litigation. The level of detail and
contents of such guidance will vary based on factors such as: the size of
typical agency rulemaking records; institutional experience, or the lack
thereof, with record compilation and informal rulemaking litigation; the need
for consistency across agency components in the development and
maintenance of rulemaking records; and agency resources. However, agencies
should ensure that guidance addresses at least the following:
(a)

essential components of the rulemaking record, public rulemaking
docket, and the administrative record for judicial review;

(b)

appropriate exclusions from the rulemaking record, including guidance
on whether and when to exclude materials such as personal notes or
draft documents;

(c)

timing of compilation and indexing practices;

(d)

management and segregation of privileged materials, e.g., attorney
work product or pre-decisional deliberative materials;

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(e)

management and segregation of sensitive or protected materials, e.g.,
copyrighted, classified, protected personal, or confidential supervisory
or business information;

(f)

policies and procedures, if any, for the protection of sensitive
information submitted by the public during the process of rulemaking
or otherwise contained in the rulemaking record;

(g)

preservation of rulemaking and administrative records and public
rulemaking dockets;

(h)

certification of the administrative record for judicial review, including
the process for identifying the appropriate certifying official; and

(i)

relevant capabilities and limitations of recordkeeping tools and
technologies.

Judicial Review
12.

A reviewing court should afford the administrative record for judicial review
a presumption of regularity.

13.

In appropriate circumstances, a reviewing court should permit or require
supplementation or completion of the record on review. Supplementation or
completion may be appropriate when the presumption of regularity has been
rebutted, such as in cases where there is a strong showing that an agency has
acted improperly or in bad faith or there are credible allegations that the
administrative record for judicial review is incomplete.

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APPENDIX B

SELECTED ACUS RECOMMENDATIONS
Readers will find all ACUS recommendations cited in this Handbook in the Federal
Register at the citations listed below. All ACUS recommendations, along with the
research reports that informed them, are also available on ACUS’s website at
www.acus.gov/recommendations.
Recommendation 2021-3, Early Input on Regulatory Alternatives, 86 Fed. Reg.
36082 (July 8, 2021).
Recommendation 2021-1, Managing Mass, Computer-Generated, and Falsely
Attributed Comments, 86 Fed. Reg. 36075 (July 8, 2021).
Recommendation 2020-2, Protected Materials in Public Rulemaking Dockets, 86
Fed. Reg. 6614 (Jan. 22, 2021).
Recommendation 2018-7, Public Engagement in Rulemaking, 84 Fed. Reg. 2146
(Feb. 6, 2019).
Recommendation 2018-6, Improving Access to Regulations.gov’s Rulemaking
Dockets, 84 Fed. Reg. 2143 (Feb. 6, 2019).
Recommendation 2014-6, Petitions for Rulemaking, 79 Fed. Reg. 75117 (Dec. 17,
2014).
Recommendation 2014-4, “Ex Parte” Communications in Informal Rulemaking, 79
Fed. Reg. 35993 (July 10, 2013).
Recommendation 2013-5, Social Media in Rulemaking, 78 Fed. Reg. 76269 (Dec. 17,
2013).
Recommendation 2013-4, The Administrative Record in Informal Rulemaking, 78
Fed. Reg. 41358 (July 10, 2013).
Recommendation 2013-3, Science in the Administrative Process, 78 Fed. Reg. 41357
(July 10, 2013).
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Recommendation 2012-1, Regulatory Analysis Requirements, 77 Fed. Reg. 47801
(Aug. 10, 2012).
Recommendation 2011-8, Agency Innovations in E-Rulemaking, 77 Fed. Reg. 2264
(Jan. 17, 2012).
Recommendation 2011-2, Rulemaking Comments, 76 Fed. Reg. 48791 (Aug. 9,
2011).
Recommendation 2011-1, Legal Considerations in e-Rulemaking, 76 Fed. Reg. 48789
(Aug. 9, 2011).
Recommendation 80-6, Intragovernmental Communications in Informal
Rulemaking Proceedings, 45 Fed. Reg. 86407 (Dec. 31, 1980).

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