Agency Practices and Judicial Review
of Administrative Records
in Informal Rulemaking

Leland E. Beck, Esq.
May 14, 2013
This report was prepared for the consideration of the Administrative Conference of the United States. The views
expressed are those of the author and do not necessarily reflect those of the members of the Conference or its
committees.

ADMINISTRATIVE CONFERENCE
OF THE UNITED STATES

Agency Practices and Judicial Review of
Administrative Records in Informal Rulemaking
Leland E. Beck, Report to the Administrative Conference of the United States1
Executive Summary ......................................................................................................................... i
I. The “Administrative Record” in Context .................................................................................... 1
A. The Larger Context ................................................................................................................ 3
B. The Administrative Record in the Judicial Review Context .................................................. 6
C. Methodology........................................................................................................................... 7
D. Nomenclature ....................................................................................................................... 10
II. Inputs to the “Whole Record” .................................................................................................. 11
A. Rulemaking’s Public Docket ................................................................................................ 13
1. Notice and an Opportunity to Comment .......................................................................... 13
2. Significant Analyses Required by Law or Executive Order ............................................ 15
B. Variance Between Public Rulemaking Dockets, Rulemaking Records, and Administrative
Records. ............................................................................................................................... 16
C. Legal Modifications to the Administrative Record .............................................................. 20
1. Direct Modification .......................................................................................................... 20
2. Indirect Modification: Consideration and Decision Requirements ................................. 22
3. Regulatory Modification .................................................................................................. 24
III. Agency Practices .................................................................................................................... 26
A. Animating Policy Considerations........................................................................................ 26
B. Defining the Rulemaking and Administrative Record ........................................................ 28
1. Expansively Defining the Rulemaking and Administrative Record ................................ 28
2. Relevancy and Reliance in the Rulemaking or Administrative Record. .......................... 31
3. Including or Excluding Privileged Resources in the Administrative Record for Judicial
Review .............................................................................................................................. 32
4. Identifying and Segregating Privileged Materials ............................................................ 37

1

Leland E. Beck, Esq., Private Practitioner. B.A. 1973, M.A. 1975, Kent State University; J.D. 1977,
American University; L.L.M. 1981, Harvard University.
This report summarizes research performed for and was prepared for the consideration of the
Administrative Conference of the United States. The views expressed are those of the author and do not
necessarily reflect those of the members of the Conference, its committees, or staff.
This report reflects agency questionnaire responses through April 15, 2013, and was revised in response to
discussions of the Conference’s Committee on Judicial Review on March 19, April 3, and April 21, 2013.
Citation Note: This study utilizes a short-form citation for questionnaire responses from agencies. A list of
the responding agencies and short citation forms may be found in Appendix A.

May 14, 2013

C. Compiling the Administrative Record .................................................................................. 40
1. The Beginning of Compilation ......................................................................................... 40
2. Contemporaneous Compilation ........................................................................................ 41
3. Electronic Management of Record Compilation. ............................................................. 44
4. Indexing the Rulemaking Record ..................................................................................... 46
D. Electronic Material ............................................................................................................... 49
E. Protected Resources .............................................................................................................. 50
2. Personal Information ........................................................................................................ 52
3. Confidential Business Information................................................................................... 52
F. Closing and Retiring a Rulemaking Record. ........................................................................ 54
1. Closing the Record ........................................................................................................... 54
2. Presentation to the Decisionmaker ................................................................................... 55
3. Retiring the Rulemaking Record ...................................................................................... 56
IV. Judicial Review of Administrative Records ........................................................................... 57
A. Certification of the Administrative Record for Judicial Review .......................................... 58
1. Preparation of the Administrative Record for Judicial Review........................................ 58
2. The Certifying Official ..................................................................................................... 60
B. Filing and Transmittal Rules and Practices of the Courts. ................................................... 61
1. District Local Rules and Practice ..................................................................................... 61
2. Court of Appeals Rules and Practices .............................................................................. 63
3. Adaptation and Amendment ............................................................................................. 65
C. Presumption of Regularity and Piercing the Record. ........................................................... 66
D. Introduction of Additional Material into an Administrative Record for Judicial Review .... 67
1. Completion: Existing Material Held by the Agency but Not Included ........................... 68
2. Supplementation: Extra-Record Evidence Not Considered by the Agency .................... 69
E. Discovery Beyond Administrative Records ......................................................................... 73
F. Public Sources and Practicality of Judicial Notice ............................................................... 74
G. Judicial Remedies ................................................................................................................. 76
1. Stays ................................................................................................................................. 76
2. Remand ............................................................................................................................ 78
3. Setting Aside and Injunction ............................................................................................ 78
V. Recommendations ................................................................................................................... 80
Appendix A: Questionnaire Responses and Identifying Acronyms ............................................. 83
Appendix B: Transmittal and Agency Survey Questionnaire ...................................................... 85

May 14, 2013

Executive Summary
This study focuses on judicial review of final agency regulations under the Administrative
Procedure Act (APA) requirement that a court, if presented with a challenge to agency action
under the APA, “review the whole record or those parts of it cited by a party.” 5 U.S.C. § 706.
The Supreme Court has made clear that judicial review is to be based on the full administrative
record that was before the agency official at the time he or she made the decision to promulgate
the final rule. The Court has also held that the APA’s arbitrary and capricious standard of review
requires a narrow review and as long as the agency has examined the relevant data and articulated
a satisfactory explanation for its action, including a rational connection between the facts found
and the choice made, the courts should not disturb that decision. Section I.A.
The APA’s administrative record requirements must be read in the larger context of the
Federal Records Act requirements that agencies maintain and transfer their official records to the
National Archives and Records Administration. Additionally, administrative records and
rulemaking records should be considered in tandem with the Freedom of Information Act (FOIA)
requirements that agencies publish, make available for inspection and copying, and release upon
request a wide range of agency documents, whether in paper or electronic form. Sections I.B, D.
The concept of the “whole record” is deceptively simple and numerous questions are
embedded in that concept that require complex answers. The exponential growth of electronic
document management, electronic docket systems, and public comments has expanded the
volume of agencies’ rulemaking records over the past twenty years. Sections II.A.1, D. At the
same time, judicial interpretation of statutory requirements and additional analytical requirements
from general statutes and executive orders have expanded the factors and the substantive analyses
that agencies are expected to consider in formulating a final rule. Sections II.A.2 & II.B.
The expansion of the administrative record concept is uneven because Congress has specified
parameters directly for administrative records for judicial review in certain instances, and has
occasionally provided that agencies consider or not consider specific factors in making decisions.
Congressional specification of the parameters of the administrative record for judicial review may
abrogate interpretations of the APA requirement, while specification of factors that must or must
not be considered can effectively supplement or limit the interpretation. Some agencies have
suggested that regulatory limitations may also be applied. Section II.C.
To facilitate the study of agency practices for compiling a rulemaking records and certifying
an administrative record to a court for judicial review, this study surveyed a wide range of
agencies represented in ACUS with a questionnaire and by requesting related guidance or other
documentation. The responses to that questionnaire and the guidance or other documents
provided form the heart of this study. The responses are examples, not a statistical study. Section
I.C.
The agency responses and guidance illuminate the existence of a number of important recordrelated issues and the experience of some agencies may help other agencies. Among the key
impressions from this process:


A number of agencies have established guidance for the compilation of rulemaking records,
and administrative records for judicial review, although few agencies have pointed to a
discrete animating event for the development of that guidance. In many instances, agencies
developed guidance in response to cumulative experience and risks. Section III.A.



Consistent with the notion that an administrative record for judicial review must include all
information considered by the agency directly or indirectly, agencies have catalogued a wide
i

May 14, 2013

range of documentation for inclusion in their own internal files and in their rulemaking
records and administrative records for potential certification to a court. Sections III.A.1, F.2.


Some agencies have attempted to provide their staffs with assistive guidance on inclusion or
exclusion standards. Some of this guidance attempts to clarify the standards applied by
courts by suggesting that the administrative record should be composed of documents that are
“relevant” to the rulemaking, or on which the agency “relied” in reaching a decision.
Although well intended, these substantive interpretations could mislead agency staff to
exclude or limit documents in ways that were not intended and introduce a substantive
judgment that appears to fall more in the province of a reviewing court. Caution is
appropriate in using such qualitative modifiers in staff guidance. Section III.B.2.



Agency guidance and practice treats privileged documents considered by the agency in
different ways: some agencies exclude such documents from the administrative record for
judicial review on the basis that the documents reflect mental processes and are not relevant;
others identify the documents in the administrative record for judicial review and provided an
index of withheld documents to opposing parties, without providing the privileged material.
Both approaches appear to have some judicial acceptance; not all courts take the same
approach, however. Section III.B.3.



The segregation of documents into specific categories of information exempt from disclosure
under FOIA, as well as segregation of content as privileged, may be applied to administrative
records for judicial review. Section III.B.4.

Process issues in creating and compiling a rulemaking record for agency use and ultimately an
administrative record for judicial review provide an opportunity for best practices:


Agencies begin to compile some form of documentation of a rulemaking when they begin to
consider promulgating a regulation, but no uniform practice exists and the beginning point is
often unclear. Section III.C.1.



Some agencies compile the rulemaking, and possible administrative, record
contemporaneously with the development of the rule, while others suggest that they only
compile the administrative record after a final rule has been promulgated and only if required
to do so by the filing of a petition for review or a complaint. Contemporary compilation has
been notably simplified by agencies that have robust electronic document management
systems. Several agencies have pointed out that contemporaneous compilation provides
efficiencies, and that post-decision “need based” compilation may create problems (including
finding documents in the files of departed colleagues), but these are also agencies that appear
to have well-developed electronic document processing systems. Section III.C.2.



The public comment process in informal rulemaking is supported by Regulations.gov and the
Federal Docket Management System, which permits an agency to manage large volumes of
public comments, eliminate duplicates, and exemplify mass mailings, and download full
public rulemaking dockets. Some agencies not participating in Regulations.gov have
developed similar capacities on indigenous websites. Moreover, full electronic document
management systems permit a few agencies – notably multi-member boards and commissions
– to manage all documents related to a rulemaking and share them across the agency,
including with the decisionmakers. Additionally, some agencies seek to maximize the
amount of the rulemaking and administrative record materials included on their public
rulemaking dockets. Section III.C.3.

ii

May 14, 2013



Most agencies do not formally index rulemaking or administrative records until necessary,
although agencies with electronic document management systems point out that they retain
basic metadata for the management of that system. Section III.C.4.



The exponential increase in the availability of electronic resources, particularly the World
Wide Web, computer programs, and malleable data, poses some unique problems for agency
management of rulemaking and administrative records. Responding agencies do not appear
to have had significant experience with the inclusion of computer databases, programs, and
generated information in the rulemaking record or in administrative records for judicial
review. Whether this will become a problem in the future is not clear. Agencies have
developed some innovative approaches to limited experience – such as printing material from
the World Wide Web when first considered to document information subject to change – but
further development is needed. Section III.D.



Agencies generally warn the public that protected personal identifying information and
confidential business information submitted in public comments may be made public and
otherwise appear well versed in handling such personal information and confidential business
information. Several agencies raised the issue of handling copyrighted information in
rulemaking records and administrative records for judicial review. Some provided
indications of solutions that can be applied to holding and disposing of rulemaking records
and filing of administrative records, such as identifying copyright information together with
the limited inclusion of title pages on electronic forums. Section III.H. Protected documents,
like privileged documents, may be included in rulemaking record, but require additional
consideration before certification and filing of an administrative record on a public court
docket. Section III.E.



Agencies appear well versed in the closing of a rulemaking or administrative record at the
time of decision, although a few exceptions have been noted. Section III.F.1. Agencies often
present much less than a complete rulemaking record to the ultimate decisionmaker,
particularly single-official decisionmakers.
Multi-member boards and commission,
particularly those with advanced electronic document management systems, point out that
their members have full access to all documents in the rulemaking record. Single-official
decision-making agencies also point out that any document can be provided to the
decisionmaker. Section III.F.2.



Agencies are aware of the requirements of the Federal Records Act, but, because rulemaking
or administrative records may not be compiled unless necessary for certification to a court
those records may be less likely to be designated as a permanent record. Guidance on the
issue could be clarified. Agencies should consider whether records should be retained at the
agency until litigation is foreclosed by a statute of limitations. Section III.F.3.

Judicial review of a final agency regulatory action also creates opportunities for agencies to
improve the compilation of administrative records:


Certification of an administrative record to the court requires consideration of the
organization of the file to make it understandable, the court’s rules, practice requirements,
and the court’s electronic case management and filing system. Section IV.A.1



Agencies usually have a senior program official certify the administrative record for judicial
review, although some agencies utilize a high-ranking records officer for this purpose. This
difference does not appear to affect the content of the administrative record. Section IV.A.2.



Certification has taken a number of different forms, from the traditional paper copy, through
filing a series of portable document format (.pdf) files on the court’s docket, to certification
iii

May 14, 2013

of an electronic administrative record. Specific issues have been addressed by filing an
administrative record separately from the court’s docket on a hard drive or other medium.
One agency has even accomplished innovative certification of an index of a portion of the
agency’s website as the administrative record with opposing counsel’s and the court’s
approval. Negotiation between the agency and the petitioner or plaintiff’s counsel, with the
court’s approval, appears to be the hallmark for efficiency in certification and filing. Section
IV.B.10


Although the Federal Rules of Appellate Procedure require that the whole record be filed
with a reviewing court of appeals within 40 days after service of a petition for review, and
that rule might be applied by a district judge performing an appellate review of final agency
action in the district court, actual use of this requirement appears to be low. A more flexible
practice suggests a preference for the parties to cite those parts of the administrative record
that are relevant to the case being litigated. Section IV.B.2.



The presumption of regularity that an agency enjoys in filing an administrative record is well
engrained and exceptions to that presumption are narrow. Section IV.C.



To bring into a court’s consideration documents not included in an administrative record,
litigants must make a specific showing that an agency erroneously failed to include a
document that it considered, that an agency acted improperly, or that an agency’s final rule,
or propositions in an agency’s final rule, is so unsupported by the record that additional
documentation must be considered by the court to understand that record. Section IV.D.



A high standard is likewise imposed on discovery in judicial review of a final agency
rulemaking or decision. Section IV.E



Some documents, particularly sources of law and documents of which a court may take
judicial notice, may not need to be reproduced in an administrative record. Section IV.F.



When an agency does not compile the rulemaking record during the time that it is considering
a regulation, a court may have difficulty assessing whether preliminary relief from a rule
should be granted before the effective date of the rule. At the point when a final rule
becomes effective, the equities considered for a stay or preliminary injunction change, and
both the agency and the court may be faced with a difficult task in compiling and reviewing
an administrative record prior to the effective date of the rule and that change in status quo.
Section IV.G.1. If the administrative record is defective, a court may remand the record to
the agency, section IV.G.2, or, if sufficiently defective, a court may vacate the rule or enjoin
its enforcement. Section IV.G.3.

In sum, the report finds diverse agency practices based on experience or lack of experience
and evaluation of risks. Based on the research, recommendations suggest best practices for
agencies but recognize the fluid level of development of procedures and electronic document
management systems.

iv

May 14, 2013

I. The “Administrative Record” in Context
Judicial review of final agency regulations is now presumed to be based on the
Administrative Procedure Act (APA) requirement that a court “review the whole record or those
parts of it cited by a party”2 created by the agency whose decision is being reviewed. The
Supreme Court’s construction of this requirement, under Citizens to Preserve Overton Park v.
Volpe,3 and Camp v. Pitts,4 and their progeny, leaves open exceptions and less than a hard and
fast rule.
In Overton Park, the Court interpreted the APA as limiting the process of judicial review and
rejecting de novo review of administrative decisions. The Court’s remand set the stage for a long
debate on the use of administrative records,
for plenary review of the Secretary's decision. That review is to be based on the full
administrative record that was before the Secretary at the time he made his decision. But
since the bare record may not disclose the factors that were considered or the Secretary's
construction of the evidence it may be necessary for the District Court to require some
explanation in order to determine if the Secretary acted within the scope of his authority and
if the Secretary's action was justifiable under the applicable standard.5
Overton Park left open the possibility that a district court could require the testimony of agency
officials if the agency’s explanation of its adjudicatory decision was insufficient.6
In the Camp formulation, the Supreme Court has made clear that under the APA:
the focal point for judicial review should be the administrative record already in existence,
not some new record made initially in the reviewing court. …. If … there was such failure to
explain administrative action as to frustrate effective judicial review, the remedy was not to
hold a de novo hearing but, as contemplated by Overton Park, to obtain from the agency,
either through affidavits or testimony, such additional explanation of the reasons for the
agency decision as may prove necessary. …. The validity of the Comptroller's action must,
therefore, stand or fall on the propriety of that finding, judged, of course, by the appropriate
standard of review. If that finding is not sustainable on the administrative record made, then
the Comptroller's decision must be vacated and the matter remanded to him for further
consideration.7
As the Supreme Court has further explained,
If the record before the agency does not support the agency action, if the agency has not
considered all relevant factors, or if the reviewing court simply cannot evaluate the
challenged agency action on the basis of the record before it, the proper course, except in rare
2

5 U.S.C. § 706.

3

401 U.S. 402, 419 n. 30 (1971) (adjudication of whether a “feasible and prudent” alternative route to
routing through park existed under Federal-Aid Highway Act) (quoting 5 U.S.C. § 706), abrogated on
other grounds by Califano v. Sanders, 430 U.S. 99 (1977) (APA not an independent grant to district courts
of subject-matter jurisdiction). While the origins of the record reside in adjudications, current expectation
is that such a record will exist.
4

411 U.S. 138, 142-43 (1973) (adjudication of national bank charter).

5

Overton Park, 401 U.S. at 420.

6

Id.

7

411 U.S. at 142-43.

1

May 14, 2013

circumstances, is to remand to the agency for additional investigation or explanation. The
reviewing court is not generally empowered to conduct a de novo inquiry into the matter
being reviewed and to reach its own conclusions based on such an inquiry.8
The Court applied the same standards for administrative records to informal rulemaking in
Vermont Yankee.9 A court’s analysis now entails a “thorough, probing, in-depth review” of the
administrative record to determine “whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment.”10
The application of the “administrative record” concept to informal rulemaking is not,
however, so engrained over so long a period nor are administrative records certified to a court so
frequently that the concept has become second nature to agencies. An administrative record for
judicial review is often misunderstood and not infrequently misapplied. This study examines the
construction and compilation of rulemaking records for agency decisions and administrative
records for judicial review in informal agency regulatory proceedings to determine existing
procedures and recommend best practices.
The APA provides little guidance on the creation and compilation of the “whole record” or
“administrative record” as it has come to be known. The Attorney General’s Manual, as the
authoritative interpretation of the APA, points out that the APA did not define “administrative
record,” at the time of enactment.11 The administrative record concept has evolved over time
through judicial interpretation and agency practice.
To structure this study, several distinctions must be initially be made. Foremost, the
administrative record concept studied here is the documentation of agency decision-making that
is a necessary predicate for judicial review of final agency rulemaking, rather than simply the
general records of an agency. That predicate does not mean that the administrative record is
necessary for the resolution of every petition for review of a final rule or suit to set aside every
final rule. Quite to the contrary, many cases raising fundamental issues of whether the agency
has adopted a regulation in accordance with the APA and the underlying programmatic statute
raise no issues relating to the administrative record, and an administrative record is not necessary
for the court’s decision – the final rule alone is the focus of judicial decision. That distinction is
not clear in many cases, however, and the question of whether an administrative record is
necessary for judicial review may only be answerable when a certified administrative record is
actually made available for review.
Second, rulemaking tends not to be a categorical or discrete and insular action, but the
product of a process at one end of a spectrum of agency decision-making. Congress has created
specific decisions subject to judicial review and engrafted a number of procedural requirements
onto specific administrative decisions that make them “rule like” – policy decisions that affect
significant segments of future conduct and that do not, by law, fall distinctly within the rubric of a

8

Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985).

9

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 549 (1978).

10

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. at 415 – 16.

11

Tom C. Clark, ATTORNEY GENERAL’S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 24, 25
(1947) [hereinafter A.G.’S MANUAL]. The Attorney General’s Manual refers to the subject sparingly and in
reference to the then-pre-Freedom of Information Act approach to publication and release of government
documents. The limited legislative history suggests that the record concept should apply flexibly to the
situation. H.R. REP. No. 79-1980, at 259 (1946).

2

May 14, 2013

rule, but have that effect.12 Case law on administrative records has not developed along discrete
lines of “rulemaking” or “adjudication” or “hybrid” proceedings, but more generally, and
therefore cases that might appear to be technically applicable only under one statute are often
applied to more generally on judicial review of agency action under the statute is governed by the
APA.
Although the administrative record concept is well embedded in administrative law and
frequently implemented by diverse agencies, the practice of administrative recordkeeping is
changing rapidly with the dynamic development of electronic records. Scholarly research of
important related issues has been limited in recent years and the pace of change has outstripped
academic review.13
The study seeks to recommend the best agency practices based on agency experience and the
law, improvements in the process of compiling and presenting administrative records, and
changes that would make the process more efficient and effective for the agencies, the courts, and
private parties. Where practical, the recommended best practices reflect current agency practices
considered the most efficacious for specific issues.14
A. The Larger Context
Statutes and government program management do not exist in a vacuum and the concept of
an administrative record for purposes of judicial review under the APA is impacted by other
statutes and judicial precedent interpreting those other statutes. To understand the concept of an
administrative record for judicial review of a final agency rulemaking, the concept must be placed
in a larger context.
At the most fundamental level, agencies must maintain and preserve official records and do
so under a broad definition of records that includes papers, electronic files, and other media
pursuant to the Federal Records Act (FRA).15 The FRA encompasses all “official” records,
12

42 U.S.C. § 4321ff.

13

See, e.g., Steven Stark & Sarah Wald, Setting No Records: The Failed Attempts to Limit the Record in
Review of Administrative Action, 36 ADMIN. L. REV. 333 (1984); William Pedersen, Formal Records and
Informal Rulemaking, 85 YALE. L.J. 38 (1975-1976).
14

Agencies have illustrated the inherent conflict between a need for wide latitude to develop guidance and
practice to fit their individual requirements and structure and the need for coordination between agencies,
particularly in joint rulemaking. Compare FDIC*R with EPA*R. In the former, the FDIC specifically
noted that “in view of the diverse scope and variety of rulemakings by federal agencies — as well as
differences in the fundamental approach to the development of rulemaking records — each agency should
develop and manage a rulemaking record consistent with the Administrative Procedure Act and related
court decisions, and in a manner which best fits the agency’s resources and decision making process. Any
recommendations for ‘best practices’ relating to rulemaking administrative records should be limited to
general guidance rather than specific detailed procedures and practices that could be misconstrued by
agencies or courts as a new “standard” that an agency must follow in developing its rulemaking record.”
FDIC*R. In the latter, EPA suggested that “It is difficult to explain to opposing parties and a reviewing
Court why the same document (e.g., an internal email) would be treated differently by different federal
agencies (e.g., one agency excludes the document from the record, another includes the document in the
record, and a third puts the document in a “confidential” part of the record or privilege log).” EPA*R.
15

Federal Records Act, 44 U.S.C. §§ 3301, defines a “record” as all documentary materials in whatever
form made or received by an agency as evidence of the organization, functions, policies, decisions,
procedures, operations, or other activities of the agency or because of the informational value of data in
them. This overall framework contributes to the timing of records compilation as much as it does to the
substance of the records. As the Attorney General’s Manual points out in the original public disclosure

3

May 14, 2013

whether they lead directly to a specific final agency action or whether they ever become subject
to judicial review. The FRA requires agencies to separate and preserve permanent records16 and
schedule the deposit of those records with the National Archives and Records Administration
(NARA).17 Agency rulemaking records documenting the development, clearance, and processing
of proposed and final rules for publication in the Federal Register do not appear to be covered by
the General Records Schedules. These records may be, but are not necessarily, permanent;18 they
must be scheduled individually by each agency so NARA can conduct an analysis and appraisal
to determine their appropriate disposition.
The E-Government Act of 2002 facilitated the evolution from the historic paper-based
records to the more fluid and transparent electronic record.19 Most notable for the purpose of
administrative records for judicial review purposes, the E-Government Act directed the creation
of an online docket and public comment system for regulatory agencies, to the extent feasible, 20
and judicial electronic dockets.21 These two not unrelated requirements effected a paradigm shift
in the way agencies and the courts interact with the public, particularly in establishing agency and
court electronic filing systems, the APA’s public comment processes, and the availability of court
documents.
context of the APA, the term “official record” is “difficult of definition.” A.G.’S MANUAL, supra note 11,
at 24.
16

As ACUS has previously recognized, electronic records are becoming more prevalent if not
predominant, and “Agencies should examine their record schedules and maintain electronic records in lieu
of paper records as appropriate.” Administrative Conference of the United States, Recommendation 20111, Legal Considerations in e-Rulemaking (Adopted June 16, 2011), 76 Fed. Reg. 48,789, 48,791 (Aug. 9,
2011) (Recommendation 3). [hereinafter Recommendation 2011-1]. “In implementing their responsibilities
under the Federal Records Act, agencies should ensure their records schedules include records generated
during e-Rulemaking.” Id. (Recommendation 7). See also Administrative Conference of the United
States, Recommendation 90-5: Federal Agency Electronic Records Management and Archives (Adopted
December 17, 1990), 55 Fed. Reg. 53,270 (Dec. 28, 1990).
17

FRA records scheduling has not been well implemented in the past, to the point that the White House
has made the enforcement of the FRA the focal point of Presidential interest, complete with mandatory
training. See Memorandum on Managing Government Records, 76 Fed. Reg. 75,423, 75,423 (Dec. 1, 2011)
(“Improving records management will improve performance and promote openness and accountability by
better documenting agency actions and decisions.”).
18

National Archives and Records Administration, General Records Schedules, General Records Schedule
16, Administrative Management Records, Transmittal No. 22 (Apr. 2010), available at
http://www.archives.gov/records-mgmt/grs/grs16.html (last visited Apr. 5, 2013).
19

Pub. L. No. 107-347, 116 Stat. 2899 (2002) (codified as amended in scattered sections of 5, 10, 13, 31,
40, 41, and 44 U.S.C.) (e.g., increasing document availability and providing for redaction rules).
20

Id. at § 206; 44 U.S.C. § 3501 note. As NARA has pointed out, the development of Regulations.gov and
the Federal Docket Management System (FDMS) poses new challenges for federal recordkeeping:
Although this is a centralized Government-wide docket management system and records repository,
Federal agencies using FDMS are responsible for creating, maintaining and properly managing their
own records within the system.
National Archives and Records Administration, General Records Schedules, General Records Schedule 16,
Administrative Management Records, Transmittal No. 22 (Apr. 2010), available at
http://www.archives.gov/records-mgmt/grs/grs16.html (last visited Apr. 5, 2013).
21

Id. at § 205; 44 U.S.C. § 3501 note.

4

May 14, 2013

Administrative records for purposes of judicial review are informed, also, by other distinct
statutes, such as the disclosure of records under the APA subsidiary Freedom of Information Act
(FOIA).22 FOIA requires agencies to publish certain matters in the Federal Register,23 to make
available for inspection and copying a larger population of documents,24 and to release upon
request a still larger population of documents,25 which, once released become a part of the
population of documents that must be made available for inspection and copying. 26 The FOIA
public release upon request process and discretionary exemptions from release have been the
subject of litigation and concern in recent years, but its inspection and copying requirements also
play a large role in the management of administrative records.
Even before the agencies were required to provide public electronic input into regulatory
processes under the E-Government Act, agencies were required to provide information to the
public in electronic format under the Electronic Freedom of Information Act Amendments of
1996 (E-FOIA Amendments).27 The E-FOIA Amendments redefined records to include any
information that would be an agency record subject to the requirements of FOIA maintained by
an agency in any electronic format.28 For present purposes, the E-FOIA Act also expanded the
availability of documents by electronic means and in compatible formats.29
For certain types of agency decisions, Congress has at times imposed distinct requirements
and limitations on administrative records for final agency action and the scope of the agency
action itself, which, in limiting the decision limits the administrative record, or in mandating
consideration of specific factors in a decision, mandates the some aspect of the scope of the
administrative record.30

22

5 U.S.C. § 552. The Administrative Procedure Act’s Public Information section, originally section 3 of
the APA, and now 5 U.S.C. § 552, dates back to the original 1946 enactment. Pub. L. 79-404, 60 Stat. 237
(1946); A.G.’S MANUAL supra note 11, at 17-25. The APA’s public information section has undergone
considerable revision and expansion since it was first adopted, beginning with the Freedom of Information
Act of 1966 and more recently with the Electronic Freedom of Information Act of 1996 and the OPEN
Government Act of 2007. Pub. L. 89-487, 80 Stat. 250 (1966); Pub. L. No. 104-231, 110 Stat. 3048
(1996); Pub. L. No. 110-175, 121 Stat. 2524 (2007).
23

5 U.S.C. § 552(a)(1) (organization and function, procedural, and substantive regulations).

24

5 U.S.C. § 552(a)(2) (final opinions, orders, statements of policy and interpretations which have been
adopted by the agency and are not published in the Federal Register, administrative staff manuals and
instructions to staff that affect a member of the public).
25

5 U.S.C. § 552(a)(3) (“any request for records which (i) reasonably describes such records and (ii) is
made in accordance with published rules stating the time, place, fees (if any), and procedures to be
followed, shall make the records promptly available to any person”).
26

5 U.S.C. § 552(a)(2)(D).

27

Pub. L. No. 104-231, 110 Stat. 3048 (1996) (codified at 5 U.S.C. § 552) (e.g., expanding available
documents in electronic format).
28

Id. § 3, 5 U.S.C. § 552(f)(3).

29

Id. § 5, 5 U.S.C. § 552(a)(3)(B) – (D).

30

See infra Section II.C.

5

May 14, 2013

B. The Administrative Record in the Judicial Review Context
Federal courts generally, and by default if no other statute provides otherwise, review agency
final decisions under the APA.31 The APA “sets forth the full extent of judicial authority to
review executive agency action for procedural correctness.32 The APA establishes varied bases
for review, such that a court may or may not need to review the certified administrative record to
adjudicate a challenge to an agency decision. The APA provides that a court shall “(2) hold
unlawful and set aside agency action, findings, and conclusions found to be –
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title
or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the
reviewing court.
Under the APA, the scope of review of rulemaking is narrow and a court must not substitute its
judgment for that of the agency.33 These standards for judicial review involve judicial review of
an administrative record to different degrees. A challenge that a final agency action is in excess
of statutory jurisdiction, authority, or limitations, or short of statutory right may involve only a
comparison between the delegating statute and the promulgated regulation without resort to the
administrative record, while a challenge that a final agency action is arbitrary, capricious, an
abuse of discretion may depend entirely upon the content of the administrative record. In the
latter type of cases, as long as an agency has “examined the relevant data and articulated a
satisfactory explanation for its action including a rational connection between the facts found and
the choice made,” courts will not disturb the agency’s decision.34 The burden of showing that the
agency action violates the APA standards falls on the plaintiff or petitioner.35 While the burden,
and the deference owed to the agency decision, may vary, the premise is that the evidence has
been adduced by the agency and contained in its certified administrative record.
As a general proposition – one considered throughout this study – “a court reviewing an
agency decision is confined to the administrative record compiled by that agency when it made
the decision.”36 The rationale for this “record rule” is that the reviewing court, when considering
a rule that an administrative agency is authorized by law to promulgate, should have before it
nothing more than the materials that were before the agency when it made its decision, and
should not substitute its opinion for that of the agency.37 Put procedurally, when a court reviews
31

5 U.S.C. § 706

32

FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009).

33

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983).

34

E.g., MD Pharm., Inc. v. Drug Enforcement Admin., 133 F.3d 8, 16 (D.C. Cir. 1998).

35

E.g., Diplomat Lakewood Inc. v. Harris, 613 F.2d 1009, 1018 (D.C. Cir. 1979).

36

Nat’l Audubon Soc’y v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997) (citing Florida Power & Light Co. v.
Lorion, 470 U.S. 729, 743 – 44 (1985)).
37

SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).

6

May 14, 2013

an agency determination, the facts are provided to the court in the administrative record and there
are no disputed for the court to resolve.38 “[T]he function of the district court is to determine
whether or not as a matter of law the evidence in the administrative record permitted the agency
to make the decision it did.”39
C. Methodology
The Administrative Conference of the United States (ACUS)40 contracted for this study and
report in August 2012. Initial discussions between ACUS staff and the consultant suggested the
utility of seeking input from agencies through a questionnaire. An initial review of regulations
and agency public guidance on administrative record compilation and certified administrative
record filing and service simplified and contributed to the development of the more detailed
questionnaire and discussions with public officials on agency practice.
The consultant and ACUS staff met with staff of the Department of Justice Office of the
Associate Attorney General, Office of Legal Policy, Civil and Environmental and Natural
Resources Divisions on October 11, 2012, to solicit DOJ’s initial thoughts and comments on the
project and a draft agency questionnaire. The Committee on Judicial Review considered a
preliminary outline of the report, as well as a draft survey instrument, at its October 3 and
October 17, 2012, meetings and narrowed the focus of the survey to rulemaking records. After
receiving input from the Committee and interested parties, the consultant and ACUS staff refined
the agency questionnaire. Interpretation of the APA requirements for an administrative record in
rulemaking, however, borrows extensively from judicial interpretation of the APA in
adjudications, which is reflected throughout this report.
In November 2012, the eleven-question survey was sent to all Conference members from
government agencies. The survey on administrative records considered those records created,
compiled, and considered in reaching a decision to take final administrative action to promulgate
a regulation through informal rulemaking41 rather than to promulgate a formal “hearing on the
record” rule, or to adjudicate cases informally or formally. 42 The questionnaire requested
descriptions of agency practice and any guidance on a range of topics relating to the compilation
of administrative records for judicial review, focusing on regulations, but with latitude for agency
input that crosses over to adjudications. The questionnaire focused first on whether agencies had
developed regulations / guidance / policy / manuals / memoranda on how to develop and retain an
administrative record of final agency action, or that affect record compilation, and, if so, any
reason for the creation of that guidance. The questionnaire sought information on the process
used by agencies in compiling administrative records, including whether they compiled
administrative records contemporaneously with rulemaking development or after the fact;
whether rulemaking records were managed in paper or electronic form, and, if electronic, how
their electronic document system affected administrative recordkeeping; and whether they index
the record contemporaneously. The questionnaire asked agencies what they presented to the
signatory authority when requesting approval of a final rule and about which officials certified
administrative records to a court for judicial review.

38

Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985).

39

Id.

40

5 U.S.C. §§ 591 – 596. See generally http://www.acus.gov (last visited Feb. 27, 2013).

41

5 U.S.C. §§ 551(4), 553.

42

5 U.S.C. §§ 554, 556. 557.

7

May 14, 2013

Substantive questions in the survey asked whether agencies were governed by more specific
statutes than the APA in compiling an administrative record or material considered by the
decisionmaker. Additionally, agencies were asked to describe variance between the internal
rulemaking record and the public rulemaking docket and how they handled different types of
privileged and protected documents. Finally, the questionnaire invited open-ended responses to
problems agencies had experienced, issues that were not raised by the questionnaire, and
suggested improvements.
Over two dozen agency or sub-agency responses were received through January 2013. The
consultant and ACUS staff discussed the survey with a number of agency officials to respond to
questions and provide guidance on issues raised by the questionnaire. Additionally, the
consultant and ACUS staff met with staff of the Environmental Protection Agency (EPA) twice to
discuss their detailed response and their role as the program management office for the Federal
Docket Management System and Regulations.gov. These discussions focused on the experience
of EPA with judicial review of their rulemaking records, the structure of FDMS and
Regulations.gov, and agency use of those tools.43 Additionally, the consultant met with the
former career Deputy Assistant Attorney General for the Environment and Natural Resources
Division to discuss the history of environmental litigation after it became evident that
environmental statutes, regulations, and litigation significantly impacted the development of the
law governing administrative records in informal rulemaking. 44 Moreover, the consultant has
discussed the issues presented by this report with a number of agency officials in a less formal
manner.
The results of the questionnaire are reflected throughout this study.45 Respondents
represented or worked at diverse agencies and their views on the development of “guidance” on

43

Interview by author with Carol Ann Siciliano, Associate General Counsel, Cross-Cutting Issues Law
Office; Caroline (Carrie) Wehling, Team Leader for Legal Counsel on the Safe Drinking Water Act; and
Marilyn Kuray, Acting Assistant General Counsel, Office of the General Counsel, U.S. Environmental
Protection Agency in Wash., D.C. (Nov. 7, 2012) (hereinafter Siciliano Interview);
Interview by author with Carrie Wehling, Team Leader for Legal Counsel on the Safe Drinking Water Act;
and Marilyn Kuray, Acting Assistant General Counsel, Office of the General Counsel, U.S. Environmental
Protection Agency in Wash., D.C. (Jan. 9, 2012) (hereinafter Wehling Interview);
Interview by author with Eric Schultz, Program Officer, COTR -- EPA Docket Center; Patrick Grimm,
Branch Chief, Office of Environmental Information, Information Strategies Branch; Adam McWilliams,
Acting Program Director, eRulemaking Program Management Office, Acting Branch Chief, Project Officer
and Technical Lead, Office of Environmental Information, eRulemaking Branch; Kristin Tensuan,
FDMS.gov Project Manager, COTR; Valerie Brecher-Kovacevic (by telephone), Deputy Director,
Administration and Security/Legal Lead; and Carrie Wehling, SDWA team leader, Office of General
Counsel, Water Law Office, U.S. Environmental Protection Agency (Jan. 9, 2013) (hereinafter Schultz
Interview).
44

Interview by author with John C. Cruden, President, Environmental Law Institute, in Washington, D.C.,
Jan. 9, 2013 (hereinafter Cruden Interview).
45

The questionnaire was originally sent to all government members of ACUS whose agencies were
believed to undertake rulemakings; several follow-up emails were also sent and numerous telephone
discussions were held with Government Members and their staffs by the consultant and ACUS staff
counsel. All of the questionnaire responses and guidance documents are on file. The questionnaire
responses and acronym list is appended to this report. Additionally, the author has discussed this
questionnaire with the staff of several additional agencies, such as the Equal Employment Opportunity
Commission, the National Labor Relations Board, and the Postal Rate Commission, that had no experience

8

May 14, 2013

the development, compilation, and certification of an administrative record were similarly
diverse. Agency perspectives on administrative recordkeeping have been articulated in a variety
of formats, ranging from informal staff commentary on the author’s survey, not intended to bind
the agency, to provision of more formal agency-wide guidance documents, intended to be bind
agency components. The Department of Justice (DOJ) has appropriately noted that the
questionnaire results and the guidance provided are voluntary, discretionary, and informal.46 As a
potentially informal compilation of staff responses, the responses do not necessarily reflect the
formal position of any agency.47 The results of this questionnaire are experiential, not statistical,
and inclusion or exclusion in this study should be understood to reflect the information acquired
from the process, not whether the process resulted in some statistically valid and reliable sample
because that was not its purpose.
Agency practice in the development of administrative records for purposes of judicial review
of regulations varies widely. That variance has often been based on individual agency needs, and
multiple agency rulemakings may exacerbate some issues – such as when one agency publicly
releases a document that another agency considers exempt from release and would not have done
so. The survey questionnaire focused on agency rulemaking but allowed latitude for agencies to
consider some “determinations.” Agency practices are illustrative and reflect what the agency
believes to be best practices for it, and no single agency has developed guidance that reflects
practice applicable to the entire span of federal agencies.
Several factors may influence whether an agency has developed guidance on the compilation
of administrative records and certified administrative records, including:


complexity of the issues and decision-making process;



the volume or frequency of rulemaking;



the organizational level at which administrative record compilation occurs;



statutory requirements; and



the scope of future effect of the final agency action.

Agencies may consider each of these factors in evaluating its risks against the application of
limited resources.

with regulatory administrative records or administrative record issues, and determined with them that a
response with no relevant information would not be necessary.
46

DOJ*R. Several agencies have noted that they have developed legal memoranda or policies on
administrative records over the years, and that these have been largely superseded as the agency developed
electronic records and electronic discovery formats. CFTC*R; PTO*R.
47

DOJ*R. DOJ points out that its responses, “are not intended to, do not, and may not be relied upon to
create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the
United States, its agencies, its officers or employees, or any person.” Id. The author agrees with DOJ that
the ultimate efficacy of judicial enforcement of these guidance documents is not necessary to the subject of
this report, but also cautions that adoption of programmatic regulations or guidance under the standards for
programmatic regulations poses a separate issue applicable to all documents discussed in this report.
Further, the author agrees with DOJ that privileged documents were not requested for the purpose of this
report and that the documents discussed in this report have been released for public consumption; DOJ did
not provide internal documents.

9

May 14, 2013

D. Nomenclature
Finally, the questionnaire illustrated that agencies use different terminology, some
considering the rulemaking “docket” to mean only the public notice and comment docket, while
others suggest that their docket includes all documents (public or privileged) that relate to a
rulemaking. Some agencies maintain distinct types of rulemaking files, such as a “legal” file
separate from a “program” file. In some instances, one agency’s language might vary from
another agency’s terminology, creating confusion. Additionally, as discussed below, agencies
have injected into the discussion some additional distinctions by limiting their administrative
records, and what they subsequently submit to a court as a certified administrative record, based
on privilege or concepts such as “relevant” and “reliance.”48
These differences in definition and treatment suggest that uniform terminology may be
useful, and this study attempts to use consistently three distinct terms in the context of informal
rulemaking:49


“Rulemaking Record” means the full record of material before the agency in an informal
rulemaking.



“Administrative Record” means the rulemaking record certified to a court as the record
on review of the agency’s regulatory action. By judicial interpretation, the administrative
“whole” record contains all the material “considered”—directly or indirectly—by the
agency’s decisionmaker in reaching the final agency action.50 The materials contained in
the certified administrative record are typically a subset of the rulemaking record,
although agency withholdings may be challenged and withheld materials are potentially
subject to disclosure or judicial review through record completion or supplementation.51
On rare occasions, discovery may also be permitted.52 The administrative record will
also include an affidavit, made by a certifying official, attesting to the contents and
accuracy of the record being certified.53 Administrative records should also include an
index itemizing the contents of the record being certified.54



The “Public Rulemaking Docket” means the public rulemaking file managed by the
agency, regardless of format, such as online at Regulations.gov, or an agency website, or
physically in a docket room. The public rulemaking docket includes all information that
the agency has made available for public viewing. It is a subset of both the rulemaking
record and the administrative record in most cases because it may not include privileged
or other materials protected from disclosure or information such as post-notice and
comment response studies that the agency considers.

Consistent use of the terminology may assist in understanding the issues considered in this study,
although the study must also accurately reflect agencies’ perceptions of their practices.
48

See infra Section II.B.2-3.

49

Statutes may modify these definitions of the administrative record and certified administrative record,
and these statutory definitions control in specific instances. See infra Section II.C.
50

See infra Section III.F.2.

51

See infra Section IV.D.

52

See infra Section IV.E.

53

See infra Section IV.A.

54

Id.

10

May 14, 2013

The relationship between and the declining volume from a rulemaking record to an
administrative record to the public documents published by the agency in the public rulemaking
docket can be graphically presented:

Rulemaking
Record

Administrative
Record

Public Rulemaking
Docket

Federal Register
Publications

II. Inputs to the “Whole Record”
The concept of a regulatory administrative record containing all material “directly or
indirectly considered” by the agency poses an inclusiveness that makes an administrative record
fulsome. An administrative record, whether defined by requirements of the APA or a superseding
statute, routinely includes all the material on a public rulemaking docket. Moreover, statutory
requirements superseding the judicial interpretations of, for example, what material a
decisionmaker must consider implicate also the construction of an administrative record for
judicial review of that decision. Some regulations impact the administrative record for judicial
review as well. Less well known, however, are the materials that an agency may consider in a
rulemaking and which may become a part of the administrative record, but that may not be
publicly available.
The composition of a rulemaking or an administrative record, accordingly, rises to the level
of a “scope” issue.55 The administrative record is presumed to be completed by the agency, and
exceptions are rare because “[w]ere courts cavalierly to supplement the record, they would be
tempted to second-guess agency decisions in the belief that they were better informed than the
administrators empowered by Congress and appointed by the President.”56 Yet, there are
exceptions worthy of exploration.57
At the same time, a number of statutes, regulations, and Executive Orders have expanded the
concept of what an agency “considers.” Statues and Executive Orders generate the most obvious
increases in the size of rulemaking administrative records. Regulations by the Council on
55

E.g., Fund for Animals v. Williams, 245 F. Supp. 2d 49, 56 (D.D.C. 2003) (definition of record and
whether some 300 documents should be included or excluded).
56

San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm’n, 751 F.2d 1287, 1325-26 (D.C. Cir.
1984).
57

See infra Section II.C.

11

May 14, 2013

Environmental Quality (CEQ) have contributed not only to the expansion of administrative
records for purposes of Records of Decision under NEPA, but have also substantially guided both
the development of broader rulemaking and administrative record policies and judicial
interpretation.58 Before turning to these issues, it is important to present an overview of the types
of information that may be found in agencies’ public rulemaking dockets, rulemaking records
maintained internally, or that may be required to be included in an administrative record because
of statutes or regulations.
At a most fundamental level, the court’s review of a record or material “considered” by the
agency raises an initial and daunting scope issue. Dictionary definitions provide only so much
support. “Consider” has been defined as: “to think about carefully, as (a) to think of especially
with regard to taking some action … (b) to take into account,”59 or “to think carefully about,
especially in order to make a decision.”60 In application by an agency, what it “considers”
through its hierarchy of officials, attorneys, analysts, economists, and program officers, may be
quite substantial. The problem itself was considered within the Committee on Judicial Review,
which ultimately formulated a definition of considered sufficient to warrant inclusion of materials
in a rulemaking record:
“Considered” entails review by an individual with substantive responsibilities in connection
with the rulemaking. Considered also 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 was reviewed by an individual with substantive
responsibilities in order to evaluate its possible significance for the proceeding, unless the
review disclosed that the document was not germane to the subject matter of the proceeding.
For example, a list of potentially helpful articles compiled by a librarian at the request of an
agency official generally does not qualify for inclusion. 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, considered 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.
The critical operational scope will vary to some degree among and between agencies because of
composition of the agency staff and composition of the substance of the rulemaking. The course
suggested throughout the rulemaking record compilation process, however, is an expansive
understanding of what is “considered.”

58

See 40 C.F.R. § 1502. CEQ regulations are binding on all federal agencies, and CEQ’s interpretation of
NEPA is entitled to “substantial deference.” Sugarloaf Citizens Ass’n v. Fed. Energy Reg. Comm’n, 959
F.2d 508, 512 n.3 (4th Cir. 1992).
59

Merriam-Webster Online Dictionary, available at http://www.merriam-webster.com/dictionary/consider
(last visited Mar. 22, 2013) (first definition).
60

Dictionary.com, available at http://dictionary.reference.com/browse/consider (last visited Mar. 22,
2013).

12

May 14, 2013

A. Rulemaking’s Public Docket
The public rulemaking docket is the obvious immediate source of vast swaths of the
rulemaking and administrative record. The E-Government Act of 2002,61 to the extent
practicable, requires that agencies make available on a publicly available Federal Government
website all documents required to be made available to the public by the advance notice and
comment procedures of the APA.62 As a result, when notice and comment rulemaking is
undertaken, the public rulemaking docket (i.e., Regulations.gov, or agency specific dockets) may
begin with the publication of a proposed rule and nominally includes, according to the effects of
statutes and judicial decisions, a wide range of supporting analyses.63 In some cases, the public
rulemaking docket may open with a related discretionary action, such as an Advance Notice of
Proposed Rulemaking (ANPRM) or publication of a Petition for Rulemaking.
1. Notice and an Opportunity to Comment
Agencies are required by the APA to provide, for the most part, advance notice and an
opportunity for the public to comment on a proposed rule before adopting a final rule,64 including
“either the terms or substance of the proposed rule or description of the subjects and issues
involved.”65 Following notice, “the agency shall give interested persons an opportunity to
participate in the rulemaking through submission of written data, views, or arguments with or
without opportunity for oral presentation.”66 This requires that the rule be made public, together
with the substantial supporting documentation that the agency considered.
At the first formal stage of rulemaking, the proposed rule, an electronic public docket system
is generally required by both statute and Executive Order.67 As noted above, the critical
61

E-Government Act, Pub. L. No. 107-347, § 207(d)(1), 116 Stat. 2899, 2916 (2002) [hereinafter E-Gov’t
Act]. See Cal. Cmtys. Against Toxics v. EPA, 688 F.3d 989, 993 (9th Cir. 2012) (“EPA's failure to include
all documents in the electronic docket was not an error. The E-Government Act requires online disclosure
only ‘to the extent practicable, as determined by the agency in consultation with the Director’ of [OMB] ….
We defer to the EPA on what is practicable to post on its online docket.”). “Practical” is changing rapidly,
which is one reason animating this study and analysis.
62

5 U.S.C. § 553(c).

63

ACUS has recommended inclusive release of documents on a public rulemaking docket: “To facilitate
the comment process, agencies should include in a publicly available electronic docket of a rulemaking
proposal all studies and reports on which the proposal for rulemaking draws, as soon as practicable, except
to the extent that they would be protected from disclosure in response to an appropriate Freedom of
Information Act request.” Administrative Conference of the United States, Recommendation 2011-1, Legal
Considerations in e-Rulemaking (Adopted June 16, 2011), 76 Fed. Reg. 48,789 (Aug. 9, 2011)
(Recommendation 4); see, generally, Administrative Conference of the United States, Recommendation
2011-2, Rulemaking Comments (Adopted June 16, 2011), 76 Fed. Reg. at 48,791.
64

5 U.S.C. § 553(b), (c).

65

Id. at § 553(b).

66

Id. § 553(c).

67

E-Gov’t Act, Exec. Order No. 13,563, Improving Regulation and Regulatory Review, § 2(b), 76 Fed.
Reg. 3821-822 (Jan. 21, 2011) (“To the extent feasible and permitted by law, each agency shall also
provide, for both proposed and final rules, timely online access to the rulemaking docket on
regulations.gov, including relevant scientific and technical findings, in an open format that can be easily
searched and downloaded. For proposed rules, such access shall include, to the extent feasible and
permitted by law, an opportunity for public comment on all pertinent parts of the rulemaking docket,
including relevant scientific and technical findings.”).

13

May 14, 2013

documents that formed the basis for the agency’s preliminary judgment in a proposed rule must
be subjected to public comment and this requirement means that a wide range of material,
discussed below, is placed on a public rulemaking docket.68 Public posting of decision-related
materials results, naturally, in two critical issues being resolved: (1) privileges are waived, and (2)
inclusiveness within the administrative record is decided.
Public comments are frequently received in electronic form, through Regulations.gov or
through agency-specific electronic docket systems.69 Agencies continue, however, to maintain
mail, e-mail, facsimile, delivery, and other systems for the public to comment.70 Many agencies
scan and post these documents to their electronic docket format to the extent practicable. 71
Agencies may provide exemplification of a larger set of public comments in an administrative
record, rather than every copy of a boilerplate or “post card” comment filed with Regulations.gov
or the agency. Even if the agency should retain each comment as an official record,
exemplification online, along with a statement of numerosity, may be sufficient.72 Though social
media engagement in rulemaking is beyond the scope of this study, it is worth noting that
expanding the definition of public input to include feedback provided over social media results in
a concomitant expansion of the administrative record if the agency considers the social media
inputs.73
When an agency undertakes a rulemaking that does not involve a public comment process –
either exempt or excepted for good cause under 5 U.S.C. § 553 or an overriding statute – the
same general rules of administrative recordkeeping apply to that rulemaking, but there are no
68

A few agencies have established regulations that explicitly provide for posting of all documents on the
electronic public docket. E.g., 14 C.F.R. § 11.25(a) (2007) (Federal Aviation Administration general
rulemaking procedures).
69

It is possible that unless multiple regulations and dockets are contemporaneously coordinated,
commenters may need to review multiple sources to provide effective response comments. See Portland
Cement Ass'n v. EPA, 665 F.3d 177 (D.C. Cir. 2011) (coordination of two different regulations affecting
the same industrial process; required coordination of regulations).
70

The Federal Communications Commission (FCC), Securities and Exchange Commission (SEC), and
other agencies maintain separate electronic docket systems to fulfill their own needs, although in many
cases. For example, the FCC, while permitting both comments and reply comments, 47 C.F.R. §§ 1.415,
1.419, provides several portals: (1) The FCC’s Electronic Comment Filing System (ECFS), (2) the Federal
Government’s eRulemaking Portal, or (3) by filing paper copies. See Federal Communications
Commission, Electronic Filing of Documents in Rulemaking Proceedings, 63 Fed. Reg. 24,121 (1998). On
the other hand, MSPB noted, for example, that its limited regulatory requirements for public comments
make the use of Regulations.gov cost prohibitive. MSPR*R.
71

An issue may exist of whether agencies are required to make the public’s comments on a rulemaking
available to the public during the public comment period. The Administrative Conference of the United
States has previously recommended that agencies manage their rulemaking files to achieve maximum
disclosure to the public and advised agencies to include, insofar as feasible, all written comments submitted
to the agency in the rulemaking file. See Administrative Conference of the United States, Recommendation
93-4: Improving the Environment for Agency Rulemaking (adopted Dec. 9, 1993), 59 Fed. Reg. 4,670
(Feb. 1, 1994); correction 59 Fed. Reg. 8,507 (Feb. 22, 1994) (Recommendation V.E).
72

See S. Shulman, The Case Against Mass E-mails: Perverse Incentives and Low Quality Public
Participation in U.S. Federal Rulemaking, 1 POL’Y & INTERNET 23 (2009).
73

ACUS is currently considering issues relating to social media in regulations. See Administrative
Conference of the United States, Social Media in Rulemaking, http://www.acus.gov/researchprojects/social-media-rulemaking (last visited Mar. 10, 2012).

14

May 14, 2013

public comments. Some downstream requirements depending on the public comment process
also change. These alternatives may limit the substance of the record, but do not change the rules
applicable to record development, compilation, certification, and judicial review.
Discretionary agency actions may provide additional notice of potential agency decisionmaking, provide an opportunity for public input, and create additional administrative record
documents. “Advance notice of proposed rulemaking” is an example of an agency process that
may add appreciably to a rulemaking administrative record. An advance notice of proposed
rulemaking (ANPRM) is an informal tool, frequently undertaken discretionarily, that may provide
the public with less than formal “notice” of a potential agency action.74 This process of public
consultation can create a wealth of information that the agency “considers” if it proceeds with the
rulemaking process, and, therefore, would form a part of the “whole” record.
Similarly, even though informal rulemaking does not involve formal public hearings,
agencies often hold public meetings during a public comment period, resulting in hearing
transcripts or public meeting summaries that executive agencies, at the least, are instructed to
include in their public rulemaking docket.75 Some highly formalized public meetings, such as
meetings of Federal Advisory Committees, already require public disclosure and, to the extent
they form the premise of a rulemaking, should be included within the administrative record.
Given the purpose of a Federal Advisory Committee Act committee, it would appear awkward at
least for these materials not to be included – in some form – in the initial public consideration of a
proposed rule. This does not necessarily mean that they ought to be replicated on the public
rulemaking docket, i.e., on Regulations.gov, if they already are in the public domain in permanent
form at a site referenced by the proposed rule preamble.76 Electronic voting records of multimember commissions and boards may form another unique element of a public rulemaking
docket.77
2. Significant Analyses Required by Law or Executive Order
A number of statutes and executive orders impose specific duties on agencies that impact the
compilation and presentation of rulemaking administrative records and distinguish those records
from adjudicatory records. An exhaustive list of these requirements and their impacts is beyond
the scope of this study, but it is worth noting that these requirements can impact administrative
record compilation. 78 This is because, “[u]nder APA notice and comment requirements,
‘[a]mong the information that must be revealed for public evaluation are the ‘technical studies
74

Material considered in the formulation of an ANPRM may form the beginning of a rulemaking record.
If an ANPRM is followed by a proposed and final rule on the same subject, it would seem logical that the
material considered in formulating the ANPRM would constitute part of the rulemaking record. In some
cases, the government has argued that an ANPRM is a sufficient signal that the government intends to
promulgate a rule.
75

Exec. Order No. 13,563, 76 Fed. Reg. 3821 (Jan. 21, 2011).

76

See Administrative Conference of the United States, Recommendation 2011-7, The Federal Advisory
Committee Act – Issues and Proposed Reforms (adopted December 9, 2011), 77 Fed. Reg. 2,257, 2,261
(Jan. 17, 2012) (Recommendation 9).
77

See Chamber of Commerce v. NLRB, 879 F.Supp. 2d 18 (D.D.C. 2012) (violation of quorum
requirement), on motion to alter or amend judgment, 2012 U.S. Dist. LEXIS 104539; 162 Lab. Cas. (CCH)
P10,512 (D.D.C. July 27, 2012) (consideration of post decision affidavit explaining the NLRB’s electronic
voting system), appeal pending, U.S. Court of Appeals, D.C. Circuit No. 12-5250.
78

Curtis W. Copeland, Regulatory Analysis Requirements: A Review and Recommendations for Reform
(Apr. 23, 2011) (report to the Administrative Conference of the United States).

15

May 14, 2013

and data’ upon which the agency relies…’” in rulemaking. 79 “More particularly, ‘[d]isclosure of
staff reports allows the parties to focus on the information relied on by the agency and to point
out where that information is erroneous or where the agency may be drawing improper
conclusions from it.’”80
Particularly significant regulatory analysis requirements include:


Executive Order 12,866, which requires executive agencies to conduct an impact analysis
of a significant rule.81



The Paperwork Reduction Act, which requires that an agency seek approval on nearly all
collections of information from the public and retention of information by the public.82



The Regulatory Flexibility Act (RFA), which requires agencies to conduct and publish
analyses on the impact of a regulations on small businesses, governments, tribes, and
other entities. 83



The Privacy Act, which requires substantial subsidiary analysis relating to the use of
personal information collected by the U.S. government.84



The National Environmental Policy Act (NEPA)85 and related Council on Environmental
Quality regulations, which require environmental analysis of certain types of agency
decisions.86

Materials generated as a result of these analytical requirements may comprise an important
component of an administrative record or a certified administrative record.87
B.
Variance Between Public Rulemaking Dockets, Rulemaking Records, and
Administrative Records.
The rulemaking record, administrative record and the public rulemaking docket (particularly
Regulations.gov) differ in substantive ways.
A number of resources routinely factor into a final agency rulemaking decision and the record
of that decision that are not found on the public rulemaking docket. Numerous types of
79

Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 236 (D.C. Cir. 2008) (quoting Chamber of
Commerce v. SEC, 443 F.3d 890, 899 (D.C. Cir. 2006)) (alterations in original).
80

Id. (quoting Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC, 737 F.2d 1095, 1121 (D.C. Cir. 1984)
(alteration and emphasis in original).
81

Cf., R.J. Reynolds Tobacco Co. v. FDA, 2012 U.S. App. LEXIS 17925 (D.C. Cir. Aug. 24, 2012)
(evaluating RIA for substantial evidence).
82

44 U.S.C. §§ 3501 – 3521.

83

5 U.S.C. §§ 603, 604, 611 (Certification of No Significant Impact on a Substantial Number of Small
Entities analysis or Initial Regulatory Flexibility Analyses required).
84

5 U.S.C. § 552a(e)(4), (11), (f).

85

42 U.S.C. § 4321ff.

86

E.g., 40 C.F.R. § 1502 (Environmental Impact Statements). CEQ regulations are binding on all federal
agencies, and CEQ’s interpretation of NEPA is entitled to “substantial deference.” Sugarloaf Citizens
Ass’n v. Fed. Energy Reg. Comm’n, 959 F.2d 508, 512 n.3 (4th Cir. 1992).
87

The Department of Transportation (DOT) points out that recent litigation has focused on these
supporting analyses. DOT*R.

16

May 14, 2013

substantive material may not appear on the public rulemaking docket, including copyrighted
materials, confidential business information (CBI), large datasets, public submissions deemed to
be a duplicate of a document generated through a mass mail campaign, original signature
documents, physical objects, and some documents that are incorporated by reference.88 Nearly
every agency responding to the ACUS questionnaire cited privileged and protected documents
that are not generally available to the public, though their disposition of that material within or
without a rulemaking record or administrative record for judicial review differed.89
As the District of Columbia Circuit pointed out long ago, not all data – but at least the most
critical data – must be placed on the public docket for scrutiny at the proposed rule stage.90 An
administrative record may naturally include more than what is publicly evident:
[T]he administrative record might well include crucial material that was neither shown to nor
known by the private parties in the proceeding – as indeed appears to have been the situation
in Camp v. Pitts itself. It is true that, in informal rulemaking, at 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 and exposed to refutation. That requirement, however, does not extend to
all data.91
For a court “to review less than the full administrative record might allow a party to withhold
evidence unfavorable to its case,” and but “to review more than the information before the
[agency] at the time [of its] decision risks our requiring administrators to be prescient or allowing
them to take advantage of post hoc rationalizations.”92
An agency “may act on the basis for data contained in its own files or on its own views and
opinions.”93 An agency administrative record, particularly in rulemaking, consists of the
information “considered” and, therefore, may not include all material that someone else might
consider in reaching a decision; the courts will defer to an agency’s judgment as to what it
considered despite gaps and imperfections in the record.94
Judicial deference does not, however, permit an agency to include only that which supports
its decision – contrary evidence considered must also be included.95 Nor should an agency
assume that a court will sanction exclusion of information on the grounds that it did not “rely” on

88

EPA*R. See Section III.E.

89

See Section III.B.3.

90

Ass’n of Data Processing Serv. Orgs. v. Bd. of Governors, 745 F.2d 677 (D.C. Cir. 1984).

91

Id. at 684-85. The court has clarified that rulemaking records are governed by other, more stringent
requirements, including the requirement for notice and comment. Chamber of Commerce v. SEC, 443 F.3d
890 (D.C. Cir. 2006).
92

Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984) (emphasis added).

93

Chrysler Corp. v. Dep’t of Transp., 472 F.2d 659, 669 (6th Cir. 1972).

94

See Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1448 (9th Cir. 1996)
(deferring to agency judgment despite “gaps and imperfections” in the administrative record).
95

Envtl. Def. Fund v. Blum, 458 F. Supp. 650, 661 (D.D.C. 1978) (agency may not bias the record by
excluding pertinent but unfavorable information).

17

May 14, 2013

the excluded information in its final decision.96 An agency may exclude arguably relevant
information that it did not possess, but that was or is available from others.97

Regulations.gov and the Federal Docket Management System
The public rulemaking docket management structure for Regulations.gov, the Federal Docket
Management System (FDMS), provides agencies with the “back office” non-public mechanism
for managing documents that may or may not constitute part of the rulemaking and administrative
record. FDMS is a government-wide document management system operated by the EPA on a
service provided basis.98 This back office process also structures, for example, Regulations.gov’s
ability to support varied native file formats used by the public to submit comments.99 Thus,
FDMS should be understood as a management tool, not substantive material that is part of the
regulatory process. Substantive material made available to the public on Regulations.gov is
managed through FDMS.
FDMS is structured by dockets (i.e., file folders) and functionally operated through “roles”
assigned to specific personnel to permit them to manage or view the dockets and documents
“owned” by their respective agencies. Only the program management office (PMO) has full
access to all documents and structures within the FDMS. FDMS can support additional nonpublic administrative document management and a number of agencies have opened a separate
records module that permits recordkeeping beyond the public rulemaking docket, as well as
record archiving.
A primary distinction between documents available in Regulations.gov and FDMS is often
not more than temporal in nature – documents reside only in FDMS prior to their release onto
Regulations.gov public rulemaking dockets, or if the underlying proposed rule, for example, is
never released or is withdrawn.100 FDMS also contains managerial controls and document
96

Ad Hoc Metals Coal. v. Whitman, 227 F. Supp. 2d 134, 139 (D.D.C. 2002); Amfac Resorts, LLC v. U.S.
Dep’t of the Interior, 143 F. Supp. 2d 7, 12 (D.D.C. 2001).
97

Blum, 458 F. Supp. at 661 n. 4.

98

The Economy Act, 31 U.S.C. § 1535.

99

Regulations.gov supports bitmap image file (.bmp), Microsoft word (.doc, .docx), Microsoft Excel (.xls,
.xlsx), Adobe Portable Document Format (.pdf), Graphics Interchange Format (.gif), HyperText Markup
Language (.htm and html), Joint Photographic Experts Group lossy compressions (.jpg, .jpeg), Portable
Network Graphics raster graphics (.png), Microsoft PowerPoint (.ppt, .pptx), Rich Text Format (.rtf),
Simplified General Markup Language (.sgml), Tagged Information File Format (.tiff), text files (.txt),
Wordperfect (.wpd), and Expanded Markup Language (.xml). Email to author from Eric Schultz, Program
Officer, EPA Docket Center, U.S. Environmental Protection Agency (Jan. 22, 2013) (copy on file with
author). But see Section IV.B (CM/ECF supports only portable document format (.pdf)).
100

Schultz Interview, supra note 43. FDMS and Regulations.gov may not always be available, as is true
of any computer system. See Department of Homeland Security, Standards To Prevent, Detect, and
Respond to Sexual Abuse and Assault in Confinement Facilities; Extension of Comment Period, 78 Fed.
Reg. 8,987 (Feb. 7, 2013) (extension of comment period due to projected outages for maintenance at
Regulations.gov and FDMS). A variant on the availability issue is the actual timing issue: not all computer
clocks are set to the same time. The Department of Labor’s Employment and Training Division (ETA)
reported that it once needed to resolve whether an electronically submitted comment was timely and should
be included. “FDMS records showed that the commenter tried to access regulations.gov to submit a
comment after midnight on the closing date. However, the commenter provided a screenshot from his
computer that showed attempted access before midnight. Apparently, the clock on the submitter's

18

May 14, 2013

metadata (such as a filing sequence number or sub-URL address) that are not apparent on
Regulations.gov.
FDMS permits the agency to review materials submitted through
Regulations.gov before that material becomes publicly available on Regulations.gov to ensure, for
example, filing to the proper docket, or avoidance of republication of clearly copyrighted material
or obscene images.101 FDMS also provides “deduplication” of mass mailings into an exemplified
copy and receipt count.

Additional documentation accumulated during the rulemaking process may include, as one
agency has noted:


relevant agency administrative orders, policies, guidelines, directives and manuals (or
portions of such documents);



any FOIA request, with the agency’s response, concerning topics integral to the
rulemaking;



communication the agency received from other agencies and Congress and any responses
to those communications;



any memorializations of telephone conversations and meetings with members of the
public concerning the rule, including any materials received from the public and any
memoranda written by staff concerning the meeting with the public.102

Moreover, agencies are likely to consider separately published guidance that reflected the
agency’s position prior to the decision to undertake a rulemaking and prior precedent and nonprecedent adjudications of facts contemplated within the scope of a regulation (whether or not the
reason for a regulation). No full explication of the types of material that may be considered by an
agency and therefore found in a rulemaking record and an administrative record for judicial
review is possible if for no other reason that any information may be considered and find its way
into a rulemaking record and an administrative record.
The distinction between the public rulemaking docket (for comment purposes) and the
material “considered directly or indirectly” for a rulemaking or an administrative record in
reaching a final decision can be significant. As an agency accumulates information during the
regulatory process, a record may grow to include both studies (scientific, technical, empirical, and
otherwise) conducted by the government and private research and inputs cited in the public
comments. At times, the close of the public comment period may be said to begin a new round of
data accumulation into the administrative record as the agency considers its final decision.
Agency research and analysis in response to public comments is a natural example of information
in an administrative record and certified administrative record that may not appear in the public
rulemaking docket.103

computer was a few minutes behind the regulations.gov clock. We had to decide whether to accept the
comment.” ETA*R. This is a justified concern and perhaps the better part of discretion and the simplest
solution is to resolve such issue in favor of the commenter.
101

Id.

102

U.S. Patent and Trademark Office, USPTO Policy on Gathering the Administrative Record for
Potentially Contested Agency Rulemakings 2 – 3 (undated draft) (copy on file) [hereinafter PTO Policy].
103

Compare Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973), cert.
denied, 417 U.S. 921 (1974) (wholly new studies), with Community Nutrition Institute v. Block, 749 F. 2d

19

May 14, 2013

The post-public comment process of finalizing a rule and the interagency and executive
review process additionally may influence agency decision-making.104
C. Legal Modifications to the Administrative Record
Congress has modified administrative record requirements on a number of occasions, either
directly or through modification of those factors to be considered by the decisionmaker, and
either affirmatively requiring consideration or barring consideration. At times, Congress
specifies that agencies have discretion to define relevancy for the purpose of recordkeeping.
Additionally, a few agencies have sought to directly define the administrative record through
regulations. Many of these modifications impact the scope of the administrative record for
judicial review purposes, but some do not.
1. Direct Modification
Congress has modified requirements for the administrative record and consequently the
administrative record for judicial review in specific situations. Congress is presumed to
understand the state of the law at the time it makes these modifications.105
The Magnuson-Moss Warranty – Federal Trade Commission Improvement Act, for example,
modifies the whole record rule in the context of hybrid rulemaking (1) with several specifically
enumerated common elements and (2) specifically introducing into the Federal Trade
Commission’s (FTC) judgment and record “any other information which the Commission
considers relevant to such rule.”106 Similar enumeration and an expansive “relevancy” standard is
utilized in the Consumer Product Safety Act.107 The enumeration of specific elements may be

50 (D.C. Cir. 1984) (studies affecting only partially the issues presented). If material considered after the
close of the comment period reaches the threshold of “critical factual material that is used to support the
agency’s position on review” then it should be exposed to public refutation. Ass’n of Data Processing
Serv. Orgs v. Bd. of Governors, 745 F.2d 677, 684 (D.C. Cir. 1984).
104

See Section III.B.3.

105

See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184 – 85 (1988) (“We generally presume that
Congress is knowledgeable about existing law pertinent to the legislation it enacts”).
106

15 U.S.C. § 57a(e)(1)(B). In full, the paragraph provides “For purposes of this section, the term
‘rulemaking record’ means the rule, its statement of basis and purpose, the transcript required by subsection
(c)(5), any written submissions, and any other information which the Commission considers relevant to
such rule.” The Magnuson—Moss Act, as the District of Columbia Circuit described it, established a
highly complex “blended” process that has rarely been used and includes indirect modification of the
administrative record, requiring the FTC to consider the economic effect of any a rule and the effect on
small business and consumers. Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151, 1154 (D.C. Cir.
1979) (MacKinnon, J., dissenting in part and concurring in part). FTC*R.
107

15 U.S.C. § 2060(a) (“any other information which the Commission considers relevant to such rule”),
in consumer product safety standards under other detailed procedures and findings of 15 U.S.C. §§ 2056,
2057, or 2058. The addition of “any other information which the [agency] considers relevant” in this
statute, and a few others, appears to broaden the scope of the record that the agency may define. See also
Aqua Slide ‘N’ Dive Corp. v Consumer Prod. Safety Comm., 569 F.2d 831 (5th Cir. 1978) (agency not
required to conduct elaborate cost-benefit analysis in promulgating safety standard, but must examine
relevant factors and produce substantial evidence that standard actually promised to reduce risks, including
comparative risks); D. D. Bean & Sons Co. v Consumer Prod. Safety Comm., 574 F.2d 643 (1 st Cir. 1978)
(reasonably necessary within meaning of 15 U.S.C. § 2058(c)(2) only after existence of hazard and
likelihood of its reduction at reasonable cost have been established by Commission).

20

May 14, 2013

argued to exclude all others under traditional canons of construction.108 While the codification
may not make a substantial difference in most cases, it may affect how the courts consider the
agencies’ decisions by granting the FTC and the Consumer Product Safety Commission (CPSC)
more leeway in constructing the administrative record to be reviewed by the court.
The same is true of codifying factual situations. The Clean Air Act requires, for example,
that a notice of proposed rulemaking state “the docket number, the location or locations of the
docket, and the times it will be open to public inspection,” the later two elements becoming less
relevant and verging on obsolescence with the development of the electronic docket.109 Of
particular concern is a specification that a “record for judicial review shall consist exclusively of”
a distinct series of documents.110 Such a regime might freeze the administrative record for
judicial review into a rigid and inflexible mold.
Similarly, the Toxic Substances Control Act defines a “rulemaking record” to mean the rule
being reviewed, specific findings and statements depending on the nature of the specific rule, any
required transcript of oral presentations, any written submission of “interested parties” respecting
the promulgation of such rule; and any other information which the Administrator considers to be
“relevant to such rule and which the Administrator identified, on or before the date of the
promulgation of such rule, in a notice published in the Federal Register.”111 This detailed
specification risks the application of the pre-existing term “interested parties” to narrow the scope
of the record by excluding general public comments of those who are not adversely or directly
affected by the rule. Similarly, the section specifies a more specific form of “notice” of core
documents than typically envisioned under the APA at a specific post-comment, prepromulgation publication.112
A number of agencies are not affected by such specific statutes and cited the need only follow
the requirements of the APA as interpreted by the courts. Some agencies noted that the
development of the administrative record was informed by the APA notice and comment
requirements,113 and others noted that not only the APA, but also FOIA,114 and the Federal
Advisory Committee Act, Privacy Act, Paperwork Reduction Act, Unfunded Mandates Act, and
the Regulatory Flexibility Act inform what is contained in the administrative record.115

108

E.g., United States v. Giordano, 416 U.S. 505, 514 (1974).

109

42 U.S.C. § 7607(d)(3).

110

Id. at § 7607(d)(6)(A) (emphasis added).

111

15 U.S.C. § 2618(3)(A) – (E) (TSCA). EPA*R; EPA, Action Development Process: Administrative
Records Guidance (Sept. 2011) [hereinafter EPAADP]. See, infra, section III.B.2 agency use of “relevant”
as a criteria, which correlates with the broader TSCA provision, but may not correlate as well with other
statutes or the APA.
112

Compare 5 U.S.C. § 553(b), and Prometheus Radio Project v. FCC, 652 F.3d 431, 449-50 (3d Cir.
2011), with 15 U.S.C. § 2618(2)(E).
113

E.g., STB*R; OSHA*R.

114

E.g., CFTC*R.

115

E.g., EBSA*R; WHD*R;TREAS*R.

21

May 14, 2013

2. Indirect Modification: Consideration and Decision Requirements
Numerous statutes impose obligations on decisionmakers to consider certain matters and/or
bar consideration of other matters.116 Such obligations take various formats, including:


Affirmative showing of consideration. Consideration of a subject may be coupled with
an affirmative obligation on that subject. The National Highway Traffic Safety
Administration, for example, is required by statute to “ensure” in regulations on the use
of electronic monitoring devices in commercial vehicles that the devices are not used to
harass vehicle operators.117 This type of requirement requires at least an administrative
record documentation of evidence, and preambular discussion would appear necessary to
explain how the requirements of a regulation would accomplish that assurance.118



Affirmative showing of consideration and non-prohibited action. More complex
analyses may require both affirmative and negative showings by an agency. The
Securities Exchange Act119 and Investment Company Act of 1940120 require the
Securities and Exchange Commission to consider a rule’s effect upon economic
efficiency, competition, and capital formation.121 The SEC, when promulgating
regulations under the Exchange Act, must consider the impact a new rule would have on
competition and must not adopt any rule that would impose a burden on competition not
necessary or appropriate in furtherance of the purposes of the Exchange Act.122



Affirmative showing of anti-backsliding. Cumulative floors or “anti-backsliding”
provisions of a statute – such as in the Federal Mine Safety Act – may constrain an
agency decision and create a premise that must be addressed in a preamble and evidenced

116

Citizens to Preserve Overton Park itself involved a structured decision by the Secretary of
Transportation: “Both the Department of Transportation Act and the Federal-Aid Highway Act provide
that the Secretary ‘shall not approve any program or project’ that requires the use of any public parkland
‘unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program
includes all possible planning to minimize harm to such park ....’ 23 U. S. C. § 138 (1964 ed., Supp. V); 49
U. S. C. § 1653 (f) (1964 ed., Supp. V).” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 411
(1971).
117

49 U.S.C. § 31137(a).

118

Owner-Operator Indep. Drivers Ass’n. v. FMCSA, 656 F.3d 580 (7th Cir. 2011) (failure to consider
potential for driver harassment when promulgating rule about use of electronic monitoring devices in
commercial trucks was arbitrary and capricious).
119

15 U.S.C. § 78c(f). The SEC is required to perform a two-step analysis, (1) whenever it “ is required to
consider or determine whether an action is necessary or appropriate in the public interest,” (2) “the
Commission shall also consider, in addition to the protection of investors, whether the action will promote
efficiency, competition, and capital formation.” Id.
120

15 U.S.C. § 80a-2(c).

121

Bus. Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011) (finding rule arbitrary on its face for failure
to respond to issue raised by comments and mandatory issues; citing analysis in preamble to rule only with
no apparent reference to the administrative record to support evidence of consideration). The SEC also has
a “statutory obligation to determine as best it can the economic implications of the rule.” See also Am.
Equity Inv. Life Ins. Co. v. SEC, 613 F.3d 166, 167–68 (D.C. Cir. 2010) (rejecting asserted reasoning of
SEC’s analysis).
122

15 U.S.C. 78w(a).

22

May 14, 2013

in an administrative record.123 The Mine Safety Act’s prohibition of “reduction” of safety
standards results in any new regulation necessarily increasing safety standards. An antibacksliding statute may also create the potential for cumulative administrative records
where the initial administrative record is needed to understand the base upon which the
second rule builds.124


Affirmative showing of new consideration. Other statutes may impose exclusive
subject matter requirements that have cumulative, potentially progressive effect, such as
“best scientific and commercial data available.”125

Each of these different types of statutes may incrementally expand the scope of documents
noticed for public comment with a proposed rule (and thus the rulemaking record and any
administrative record for judicial review). The contrary may also be true:


Prohibition of consideration. Still other statutes prohibit an agency from considering a
particular subject in promulgating a rule, constricting the administrative record. The
Supreme Court has held, for example, that the text of § 109 of the Clean Air Act,
“interpreted in its statutory and historical context ... unambiguously bars cost
considerations” in setting air quality standards under that provision when cost
consideration is permitted by other sections of the statute.126 The Administrator of EPA,
accordingly, may not consider the costs, even if developed for other purposes, in reaching
a decision. The bar from consideration might logically lead to a bar from the
administrative record, but this leads to a legal fiction that what the staff might be required
to do is not “indirect” consideration. This prohibition would not bar the documentation
from the rulemaking record.

Each of these changes alters the default requirement from judicial precedent that the agency
consider the “relevant factors.” When Congress does not mention cost considerations, for
123

E.g., 30 U.S.C. § 811(a) (9) (Mine Safety Act: “No mandatory health or safety standard promulgated
under this title shall reduce the protection afforded miners by an existing mandatory health or safety
standard.”).
124

An example might be the judicial review of the EPA approval of a State implementation plan regulation
under EPA-promulgated NAAQS regulations. 42 U.S.C. § 7502(e) (National Ambient Air Quality
Standards (NAAQS) anti-backsliding provision); South Coast Air Quality Management Dist. v. EPA, 472
F. 3d 882 (D.C. Cir. 2006). Cf., Natural Resources Defense Council v. Jackson, 650 F. 3d 662 (7 th Cir.
2011). Memorandum from Lois J. Schiffer, General Counsel, National Oceanic and Atmospheric
Administration, to Administrators and Directors, National Oceanic and Atmospheric Administration, at 6-7
(December 21, 2012), available at http://www.gc.noaa.gov/documents/2012/AR_Guidelines_122112Final.pdf (last visited Feb. 5, 2013) [hereinafter NOAAG](recognizing possibility).
125

A rule-like example of specific limitation has been the source of extensive litigation. The Endangered
Species Act dictates that a decision to list a species must be based
solely on the basis of the best scientific and commercial data available to [the Secretary] after
conducting a review of the status of the species and after taking into account those efforts, if any, being
made by a State or foreign nation ... to protect such species, whether by predator control, protection of
habitat and food supply, or other conservation practices, within any area under its jurisdiction ....
16 U.S.C. § 1533(b)(1)(A).
126

Whitman v. Am. Trucking Ass’ns., Inc., 531 U.S. 457, 471 (2001) (prohibition by negative inference:
other provisions in the Clean Air Act expressly authorized consideration of costs, whereas § 109 did not; §
109 barred consideration of costs).

23

May 14, 2013

example, the Court has found that the lack of mention did not bar consideration of costs.127 Thus,
the Court, when faced with language that set a standard subject to interpretation, deferred to the
agency’s interpretation to permit it to reasonably consider factors that were neither required nor
precluded by the ambiguity.128 Where a statute precludes consideration of a factor, inclusion of
documentation regarding that factor within the administrative record may pose a problem for the
agency if a court thinks this signifies the agency’s consideration in decision-making. Thus, the
inclusion may raise questions of whether the agency violated the underlying statute or acted in
excess of authority under the APA.
3. Regulatory Modification
Agency regulations may adopt requirements for a rulemaking record, and this is consistent
with the agency’s authority to create a process supplementing the statutory process for
regulations, that may constrict issues presented on appeal and define a final agency decision.129
The most significant regulatory requirement – particularly in terms of impact – may be the
government-wide and mandatory CEQ regulations on agency decision-making under NEPA
because these regulations are specifically delegated by Congress and any major federal action,
including regulatory activity with significant environmental implications must follow the CEQ
process, as a supplement to the APA process, before reaching the final regulatory decision.130
NEPA and CEQ government-wide regulations serve the dual purpose of informing agency
decisionmakers of the environmental effects of proposed federal actions and ensuring that
relevant information is made available to members of the public so they “may also play a role in
both the decisionmaking process and the implementation of that decision.”131 NEPA does not
mandate particular results, but prescribes a necessary process; if the adverse environmental
effects of the proposed action are adequately identified and evaluated, the agency is not
constrained by NEPA from deciding that other values outweigh the environmental costs.”132
NEPA merely guards against “uninformed – rather than unwise – agency action.”133 NEPA,
however, has imposed an even greater role on the administrative record process because it

127

EPA has suggested that they prepare cost estimates pursuant to Executive Order 12,866 only for OMB
and public consumption but the analysis is not considered in making a final decision. Wehling Interview,
supra note 43.
128

American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490, 510 –12 (1981) (Court relied in part
on a statute’s failure to mention cost-benefit analysis in holding that the relevant agency was not required to
engage in cost-benefit analysis in setting certain health and safety standards).
129

See Darby v. Cisneros, 509 U.S. 137 (1993); Sims v. Apfel, 530 U.S. 103 (2000).

130

40 C.F.R. part 1500.

131

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).

132

Id. at 351. See also Comm. to Pres. Boomer Lake Park v. Dep’t of Transp., 4 F.3d 1543, 1554 (10th Cir.
1993) (“NEPA is essentially procedural in that it does not require major federal actions to have no
significant environmental impact, it only requires that the environmental impacts be considered in the
decision process.”).
133

Robertson, 490 U.S. at 351. “NEPA prescribes the necessary process by which federal agencies must
take a ‘hard look’ at the environmental consequences of the proposed courses of action. It imposes no
substantive limits on agency conduct. Rather, once environmental concerns are adequately identified and
evaluated by the agency, NEPA places no further constraint on agency actions.” Silverton Snowmobile
Club v. USFS, 433 F.3d 772, 780 (10th Cir. 2006) (internal quotations and citations omitted).

24

May 14, 2013

requires fundamentally more rigorous “consideration” in reaching a record of decision and in the
administrative record supporting that decision.134
If a rulemaking necessitates a NEPA analysis and record of decision, the NEPA record
categorically becomes part of the rulemaking administrative record. CEQ regulations specifically
require agencies to adopt procedures specifying that relevant environmental documents,
comments, and responses be part of the record in formal rulemaking or adjudicatory proceedings,
the relevant environmental documents, comments, and responses accompany the proposal
through existing agency review processes so that agency officials use the statement in making
decisions, and the alternatives considered by the decisionmaker must be encompassed by the
range of alternatives discussed in the relevant environmental documents.135 NEPA requirements
and case law, accordingly, may naturally affect consideration of rulemaking records to which
they apply.
Agency regulations dealing with the administrative record before the agency appear most
often to be rules of practice and procedure. Food and Drug Administration (FDA) rules, for
example, establish the contents of the rulemaking record for any promulgation of regulations, 136
and the rulemaking record is intended to be the sole basis for the FDA's decision.137 If the
definition in the regulation is the product of legislative rulemaking under a delegation from
Congress, it may constrict judicial review if it can supplant the more general requirements of the
APA. On the other hand, if the regulatory definition is not under delegated authority and does not
supplant the requirements of the APA, a regulation could theoretically create a difference
between the agency rulemaking record and the administrative record for judicial review. Such
regulations must be viewed with some caution because the APA is a general statute, not a specific
programmatic statute delegating authority to the agency to make legislative rules, and procedural
rules constrain the agency, not a court. If, however, the programmatic statute provides a basis for
rules limiting rulemaking records and administrative records, then these rules could fall into the
category of legislative rules.

134

As discussed infra, note 150 and accompanying text, this fundamental difference appears to be the
cause of much of the administrative record precedent and litigation to be focused in environmental cases.
135

40 C.F.R. § 1505.1(c) – (e).

136

21 C.F.R. § 10.40(g). See, e.g., NVE Inc. v. HHS, 436 F.3d 182, 195 (3d Cir. 2006); United States v.
Nova Scotia Food Products Corp., 568 F. 2d 240 (2nd Cir. 1977).
See also 21 C.F.R. § 10.3(a)
(enforcement actions; definitions, “Administrative record means the documents in the administrative file of
a particular administrative action on which the Commissioner relies to support the action.”). At least one
district judge has criticized this definition. See Ivy Sports Medicine LLC v. Sebelius, D.C. No. 11-cv-1006
(RLW), Dk. No. 52 (Oct. 24, 2012) (designated not for publication).
137

21 C.F.R. § 10.45(f). This particular rule requires that a party file a new petition with the FDA if
seeking court consideration of material not filed in a certified administrative record.

25

May 14, 2013

III. Agency Practices
The survey of agency recordkeeping practices revealed that a number of agencies have
developed rulemaking or administrative record guidance, of varying degrees of formality. Some
agencies have included rulemaking or administrative record directions within their regulations138
or otherwise published statements of policy in the Federal Register.139 More commonly, agencies
or agency components have publicly released more informal rulemaking or administrative record
guidance documents140 or staff-prepared manuals.141 Occasionally, agency documentation of
rulemaking or administrative record policies is available on the Internet, without indication of
intentional public release.142 More formal expressions of guidance, such as regulations, may
more clearly indicate an agency’s intention to be bound by its views on recordkeeping practices,
but the purpose here is merely to illustrate the degree of forethought given by an agency to the
treatment of rulemaking records and the potential for filing of an administrative record for
judicial review.143
A. Animating Policy Considerations
Whether an agency develops internal policy guidance on the compilation of rulemaking or
administrative records may depend on either a deliberate or a default risk evaluation:


Agencies may adopt guidance when they perceive a recurring issue; or



Agencies may adopt guidance when a specific incident creates a policy development
tipping point; or



Agencies may not adopt guidance if no institutional experience animates review of the
issue simply because the relevant officials have no experience with the issue; or



Agencies may not adopt guidance even if institutional experience has animated a review
of the issue, but that review has not concluded that the issue is of such recurrence or
seriousness as to warrant the commitment of scarce agencies resources to policy
development.

138

E.g., 49 C.F.R. § 1110 (Department of Transportation, Surface Transportation Board); 16 C.F.R. § 1.18
(defining the “rulemaking record” in the context of hybrid rulemakings by the Federal Trade Commission
(FTC) under section 18 of the Federal Trade Commission Act).
139

E.g., FDIC Statement of Policy on the Development and Review of Regulations,” 63 Fed. Reg. 25,157
(1998).
140

E.g., U.S. Dep’t of Transp., Rulemaking Requirements (Apr. 2011), available at
http://www.dot.gov/regulations/rulemaking-requirements (last visited Feb. 4, 2013); NOAAG, supra note
124; EPAADP, supra note 111.
141

E.g., I.R.S., Chief Counsel Regulation Handbook,
http://www.irs.gov/irm/part32/index.html (last visited Dec. 18, 2012).

IRM

Part

32,

available

at

142

Memorandum to Assistant Secretaries, Directors of Bureaus and Offices, from David L. Bernhardt,
Deputy Solicitor, Department of the Interior, Standardized Guidance on Compiling a Decision File and an
Administrative
Record
(June
27,
2006)
(cover
memorandum),
available
at
http://www.fws.gov/midwest/endangered/permits/hcp/pdf/DecFileAdminRecordGuidance.pdf (last visited
October 12, 2012) [hereinafter DOIS]. The DOIS guidance has been available on a number of component
websites, but there is no indication that the Solicitor intended public release of that memorandum.
143

See, supra, Section I.C.

26

May 14, 2013

The lack of agency policy guidance, therefore, should not necessarily be viewed negatively.144
A number of agencies have developed internal guidance for generalized reasons:


to provide clear procedures for building a rulemaking or administrative record in informal
rulemaking,145



to establish basic principles that guide promulgation and review of all regulations and
written statements of policy,146 or



to ensure consistency across components in the development and maintenance of the
docket and corresponding rulemaking record for regulatory initiatives.147

Some agencies developed rulemaking or administrative record guidance in response to specific
rulemakings, or to statutory commands that they develop a number of specific rulemakings. 148
Only a few agencies suggested that the development of administrative record guidance was the
result of specific litigation149 or repetitive litigation.150 EPA, for example, developed one of the
more refined policies for agency recordkeeping:
to help inform EPA personnel about basic principles for record compilation, provide
information to the public on how EPA compiles records, and to contribute to an orderly
process for judicial review based on a complete record. This document is consistent with the
US Department of Justice recommendation that agencies develop guidance on the
compilation and contents of the administrative record.151
144

Several discussions with government officials, questionnaire responses, and review of public
documentation of agency guidance illustrated that agencies may adopt policies on a range of regulatory
issues without touching on the scope or compilation of an administrative record for decisional or litigation
purposes. This reinforces a notion expressed several times, and consistent with the author’s own
government experience, that policy and procedure development and refinement tend to be the product of
repeated episodic need or a significant problem with a specific rulemaking or other event, but that agencies
generally do not adopt policies (or have the resources necessary to do so) without some animating event.
145

STB*R.

146

FDIC*R.

147

DOT*R; MSHA*R.

148

CFTC*R.

149

PTO*R; EPA*R.

150

Cruden Interview, supra note 44; EPA*R. See also EPAADP, supra note 111, at 3. The extensive
administrative record litigation in environmental (EPA) and natural resources (Department of the Interior
(DOI), Department of Agriculture (DOA)) cases may be the result of a shift in law under the NEPA, CEQ
regulations, and their progeny. NEPA and other statutes created a record-based decision process
magnifying the consideration of all factors in reaching a decision, independently of the substance of the
actual decision. Id. This scheme is fundamentally different than the judicial interpretation of APA’s
“arbitrary and capricious” standard because it places a premium on mere consideration; there does not
necessary need to be a rational relationship to the decision ultimately made or substantial evidence to
support that decision because a court is empowered to set aside a decision for mere failure to consider a
factor. As Mr. Cruden pointed out, the resulting Environmental Impact Statement process puts a premium
(and a high cost) on analyzing attenuated impacts because failure to consider one may be cause for judicial
voidance of an administrative decision. Cruden Interview, supra note 44.
151

EPAADP, supra note 111, at 3 (citing Memorandum from Ronald J. Tenpas, Assistant Attorney
General, to Selected Agency Counsel, (Dec. 23, 2008)).

27

May 14, 2013

EPA recognizes that an administrative record for judicial review may be the end product of
rulemaking recordkeeping and looks backward to establish policies to meet that goal, at the same
time it recognizes that administrative record development is ‘litigation risk’ sensitive.152
The lack of uniform animating events, as well as the diversity of agency organization and
procedure, leads, perhaps inexorably, to a wide diversity of agency guidance and practice, as well
as a wide diversity of sophistication in guidance and practices. An overriding observation arising
from the agency guidance and practice suggests that within and among agency personnel there
exist widely divergent views on the scope of rulemaking and administrative records, the process
for their development and compilation, the technical requirements of inclusion and certification,
and, ultimately, the management of disposition of records. Agency practice in compilation of
rulemaking and administrative records is as diverse as the agencies themselves.
B. Defining the Rulemaking and Administrative Record
Agency rulemaking record guidance documents may define, interpret, or qualify the
“rulemaking record” and “administrative record” concepts in varied ways. If an agency chooses
to use a guidance document to aid in recordkeeping and compilation, it is important for the
agency to clearly identify its definition of the rulemaking and administrative records and
materials included therein, as well as any permissible qualifications or exclusions from the
rulemaking or administrative record. While care should be taken to avoid reading more into
guidance document definitions that suggest legal requirements for rulemaking or administrative
records – because the APA, as a general statute, does not provide a substantive delegation to
agencies for rulemaking or otherwise – clear definitions offer several potential benefits:


provide direction to agency personnel involved in recordkeeping and compilation, which
may include non-attorneys or different individuals from those who later defend a
regulation subject to a legal challenge;



permit the preparer of the administrative record for judicial review, if different from the
preparer of the rulemaking record, to more easily identify resources that should be
included in the rulemaking administrative record;



can help agencies to identify and explain differences in recordkeeping and compilation
practices in cases of multi-agency decision-making;



can help the court and third parties to understand the materials provided as the
administrative record for judicial review, and how those materials might differ (if at all)
from the rulemaking record before the agency at the time of its decision.

1. Expansively Defining the Rulemaking and Administrative Record
Agencies have taken a variety of approaches to defining the rulemaking and administrative
record in agency guidance documents, informational articles, and internal memoranda. Some
agencies have followed guidance initially provided by DOJ’s Environment and Natural Resources
Division (ENRD), later published for a broader audience, and noteworthy because ENRD is the
principal litigator for a number of agencies, with the caution that this guidance reflects neither a
Department of Justice policy nor litigating position.153 In order to defend an agency decision152

EPAADP, supra note 111, at 3.

153

ENV’T & NATURAL RES. DIV., U.S. DEP’T OF JUSTICE, GUIDANCE TO FEDERAL AGENCIES IN COMPILING
ADMINISTRATIVE
RECORD
(Jan.
1999),
available
at
http://environment.transportation.org/pdf/programs/usdoj_guidance_re_admin_record_prep.pdf. A version
of this guidance with nonsubstantive edits was published. Joan Goldfrank, Guidance to Client Agencies on
THE

28

May 14, 2013

making on the basis of an administrative record to be certified to a court, however, litigators must
clearly understand the basis of the agency’s decision. Recent EPA and NOAA guidance continue
an expansive approach.154
At a basic level, the guidance supports the notion that the rulemaking and administrative
records consist of all agency documents, files, and materials directly or indirectly considered by
the agency decisionmaker or agency decisionmakers. 155 Agency control, possession, and
maintenance determine an agency rulemaking record.156 “Key” rulemaking or administrative
record documents include: the final decision document or memorandum, federal register notices
pertaining to the rulemaking, public comments, and required analyses that support the final
agency action, such as Environmental Impact Statements or Environmental Assessments under
NEPA157 or Regulatory Flexibility Analyses under the Regulatory Flexibility Act.158 The
administrative record is not limited to documents and materials relevant only to the merits of the
agency’s decision, but also includes documents and materials logically connected to the process
of making the decision or informing the decisionmaker.159 Documents and materials prepared,
reviewed, or received by agency personnel and used by or available to the decisionmaker should
be included, even though the final decisionmaker may not have actually reviewed or known about
the documents and materials.160 The rulemaking and administrative records should include
materials regardless of whether they support or oppose the agency’s decision.161

Compiling the Administrative Record, U.S. ATTY. BULL. 7 (Feb. 2000) [hereinafter U.S. ATTY. BULL.],
available at http://www.justice.gov/usao/eousa/foia_reading_room/usab4801.pdf. For present purposes,
this report uses the version published in the United States Attorneys’ Bulletin, although, as noted. The
memorandum and the article have been modified and limited by more recent guidance. Memorandum from
Ronald J. Tenpas, Assistant Attorney Gen., to Selected Agency Counsel, Envtl. & Natural Res.’s Div.
(Dec. 23, 2008) (copy on file) [hereinafter Tenpas Memorandum]. The Tenpas memorandum points out
that the original memorandum (and United States Attorney Bulletin) “does not represent a formal policy of
the Department of Justice, nor even an official directive of the Environment and Natural Resources
Division.” The Tenpas Memorandum goes on to point out that litigants have sought to use the original
memorandum and United States Attorneys Bulletin in litigation against the government, ignoring the
standard disclaimer that such documents do not create any rights, substantive or procedural which are
enforceable at law by any party.
Id.; GUIDANCE TO FEDERAL AGENCIES IN COMPILING THE
ADMINISTRATIVE RECORD, supra, at 9; U.S. ATTY. BULL., supra, at 7. The original memorandum and
Bulletin should only be read as illustrative, particularly in light of the fact that each agency and each
statutory authorization for judicial review may place litigation before a court that has otherwise interpreted
the APA’s record requirements.
The ENRD guidance has been subsequently tracked by some agencies for whom ENRD litigates, as well as
other agencies. See DOIS, supra note 142.
154

EPAADP, supra note 111; NOAAG, supra note 124.

155

NOAAG, supra note 124, at 6; U.S. ATTY. BULL., supra note 153, at 8.

156

U.S. ATTY. BULL., supra note 153, at 8.

157

42 U.S.C. § 4321ff.

158

NOAAG, supra note 124, at 7.

159

NOAAG, supra note 124, at 6-7; U.S. ATTY. BULL., supra note 153, at 8.

160

U.S. ATTY. BULL., supra note 153, at 8 – 9.

161

NOAAG, supra note 124, at 6; EPAADP, supra note 111, at 4 (footnote omitted); U.S. ATTY. BULL.,
supra note 153, at 8 – 9.

29

May 14, 2013

Considering these and other guidance documents and questionnaire responses, a complex
illustrative menu of subjects suggested for a rulemaking record, and subject to a number of
caveats discussed later in this report, an administrative record for judicial review would routinely
include:


Electronic records such as e-mail, computer drives, microfilm, etc.;162



Illustrations such as graphs, charts, recordings, photographs;163



Related policies, guidelines, directives, and manuals;164



Articles and books;165



Technical or scientific information or data, including assessments, modeling reports,
sampling results, survey information, engineering reports or studies, etc.;166



Memorializations of telephone conversations167 and meetings, such as transcripts,
minutes, memorandum, or handwritten notes (unless they are personal notes);168



Communications the agency received from other agencies and from the public, and any
responses to those communications;169



All draft documents that were circulated for comment either outside the initiating agency
or outside the author’s immediate office, if changes in these documents reflect significant
input into the decision-making process;170 and



An index of a preceding administrative record where decisions are cumulative and one
regulatory action builds upon prior decisions, with reproductions of none, some, or all of
the prior administrative record documents as appropriate.171

Several categories of agency records may require special attention, such as privileged documents
or protected resources,172 addressed in greater detail in later sections of the report.173
162

U.S. ATTY. BULL., supra note 153, at 8.

163

NOAAG, supra note 124, at 6-7; U.S. ATTY. BULL., supra note 153, at 8 – 9.

164

EPAADP, supra note 111, at 8; U.S. ATTY. BULL., supra note 153, at 8 – 9.

165

U.S. ATTY. BULL., supra note 153, at 8 – 9.

166

NOAAG, supra note 140, at 7; U.S. ATTY. BULL., supra note 153, at 8 – 9.

167

At times, telephone conversations can become substantively critical, although more so in adjudication
than in rulemaking. See, e.g., Watson Lab’s v. Sebelius, No. 12-1344 (ABJ) 2012 U.S. Dist. LEXIS 185685
(D.D.C., Oct. 22, 2012) (originally filed under seal).
168

NOAAG, supra note 124, at 7 (meetings with the public); EPAADP, supra note 111, at 8; U.S. ATTY.
BULL., supra note 153, at 8 – 9.
169

NOAAG, supra note 140, at 7 (public comments and responses); U.S. ATTY. BULL., supra note 153, at
8 – 9.
170

U.S. ATTY. BULL., supra note 153, at 8 – 9.

171

NOAAG, supra note 124, at 8. At the least, inclusion of the preceding administrative record index
gives notice that the prior administrative record was considered in the current decision.
172

NOAAG, supra note 124, at 8 – 11; EPAADP, supra note 111, at 9 (exclude from the administrative
record); U.S. ATTY. BULL., supra note 153, at 8 – 9.

30

May 14, 2013

Other agencies have similarly extensive menus, and also respond to specific issues in
guidance – such as the Patent and Trademark Office inclusion within its rulemaking record and
potential administrative record for judicial review of “[a]ny Freedom of Information Act (FOIA)
request and the Agency’s response concerning topics integral to the rulemaking.”174
A key to agency formulation of guidance that defines the rulemaking record, and ultimately
an administrative record for judicial review, and as they certify administrative records, is that a
court will ultimately judge the adequacy of the certified administrative record. As NOAA points
out, “different federal Circuits take widely divergent approaches to the proper composition of an
Administrative Record.”175 Agencies may take divergent approaches into account as they
compile rulemaking records, as NOAA does, but would be well advised to expansively define the
concept in guidance to agency personnel. Reducing a broader rulemaking record to meet a
specific court’s interpretation of the scope of the administrative record is much simpler than
expanding upon a minimal record for certification to a particular court once agency action is
challenged.
2. Relevancy and Reliance in the Rulemaking or Administrative Record.
Some agency guidance appears to limit these inclusive concepts of the rulemaking or
administrative record by testing whether to include materials in the administrative record using a
“relevancy” standard.176 This raises the question of whether application of such an intervening
test would narrow the administrative record beyond the “whole record” required for judicial
review. Terms such as “relevance” can be broadly or narrowly construed. For example,
relevance can be defined differently throughout the litigation process. Relevance is broadly
construed at the discovery stage, such that information is discoverable if there is any possibility it
might be relevant to subject matter of action; relevant information includes any matter that is or
may become issue in litigation.177 Relevant evidence, by comparison, is that which has a
tendency to make the existence of any fact that is of consequence to the determination of the
action more or less probable than it would be without the evidence.178 These varied constructions
173

See infra at Sections III.B.3, 4, E.

174

PTO Policy, supra note 102.

175

NOAAG, supra note 124, at 3 n. 3.

176

DOIS, supra note 142, at 3 (distinguishing a “decision file” from the administrative record: “the
Decision File will be used as the primary basis for compilation of the AR [(administrative record, meaning
the certified administrative record)], 6 (“The following documents are typically included in an AR when
they are relevant”); EPAADP, supra note 111, at 3 (e.g., “Enhance the defensibility of EPA decisions by
ensuring that the underlying administrative record includes all relevant information that EPA considered
and any necessary responses to that information.”), 5 (“… EPA is aware of that is relevant to the decision
and that was considered directly or indirectly by the decision-maker, including information that supports or
is contrary to the action taken by EPA…”), 4 n. 3 (“A number of different phrases with the same meaning
may be used interchangeably to describe the contents of the administrative record. For example, the
administrative record may be referred to as the set of documents that ‘provides the basis’ or ‘forms the
basis’ for an action; that the agency or decision-maker ‘considered’; that the decision-maker ‘considered
either directly or indirectly’; or that the agency or the agency decision-maker ‘relied on.’”). Even if EPA
believes that this interchange of terms is not significant, it may mislead non-attorneys to include less than
intended. Compare, however, the addition of “relevant” material to the record under certain instances,
supra, Section II.C.1.
177

FED R. CIV. P. 26.

178

FED. R. EVID. 401.

31

May 14, 2013

illustrate that failure to define terms such as “relevance” precisely in guidance may lead to varied,
and perhaps unintended, interpretations by individuals involved in compiling rulemaking records
that may lead to further unintended consequences in administrative records. NOAA defines
“relevance” broadly to include a document “if it relates (i.e., has a logical connection) to the
action under consideration and informs (or has the potential to inform), the decision-maker.”179
This notion appears to be the most consistent with judicial interpretations of the administrative
record the court reviews under the APA.
In a slightly different vein, a “reliance standard” could create similar issues. One agency
noted that it includes “supporting documents and material it relies upon during the rulemaking,”
while another suggests that it includes documents “on which the agency relies to take final
action,” and another includes “anything relied upon” in the administrative record.180 These
responses, informal as they are, should not be read as suggesting that the agencies restrict the
administrative record to the documents that support the position taken in the final rule.181 Rather,
they illustrate the confusion that could be created regarding whether to include documents that
agency personnel do not believe are sufficiently important to be “relied upon” in the
administrative record. The language suggests that an agency could inadvertently provide less
than the “whole record” required on judicial review of agency decision-making.
Agency guidance should avoid introducing subjective judgments regarding whether materials
have been “relied” upon or are “relevant” at the programmatic level. Agencies using such
qualifications should include consultation with counsel as part of the record preparation process
to ensure that the rulemaking record is complete and that the administrative record will conform
to the court’s expectations.182
3. Including or Excluding Privileged Resources in the Administrative Record for
Judicial Review
A significant issue for agencies revolves on whether material considered by the agency that
the agency determines would be privileged from disclosure in litigation (and presumably never
released to the public) should be included in an administrative record.
The ENRD guidance initially advised that:

179

NOAAG, supra note 124, at 6-7.

180

MSHA*R; EBSA*R; WHD*R. See also CMMS*R (noting that “Ensuring that information relied upon
by all CMS components with responsibility for a policy set out in the rulemaking are identified and added
timely to the official rulemaking record.”).
181

Guidance that incorporates some form of “reliance” to assist staff in compilation of a certified
administrative record could run afoul of the notion enunciated in some courts that an agency may not
exclude materials because it did not “rely” on the excluded information in its final decision. The guidance
should not be considered as a direct contradiction of that principle, and agencies should be cautious about
such an interpretation when judicial review might be brought into those courts, or any other that may adopt
the position. E.g., Ad Hoc Metals Coal. v. Whitman, 227 F. Supp. 2d 134, 139 (D.D.C. 2002) (rejecting
argument and supplementing record); Amfac Resorts, LLC v. U.S. Dep’t of Interior, 143 F. Supp. 2d 7, 12
(D.D.C. 2001) (“First and most basically, a complete administrative record should include all materials that
‘might have influenced the agency’s decision,’ and not merely those on which the agency relied in its final
decision. See Bethlehem Steel v. EPA, 638 F.2d 994, 1000 (7 th Cir. 1980) (citing National Courier
Association v. Board of Governors of the Fed. Reserve Sys., 516 F.2d 1229, 1241 (D.C. Cir. 1975)).”).
182

The Solicitor of the Interior provides just such an expansive listing. DOIS, supra note 142, at 7-8.

32

May 14, 2013

Generally, the administrative record includes documents and materials that are privileged and
contain protected information. However, once the record is compiled, privileged or protected
documents and materials are redacted or removed from the record… If documents and
materials are determined to be privileged or protected, the index of record must identify the
documents and materials, reflect that they are being withheld, and state on what basis they are
being withheld.183
In light of recurrent issues and discussions with agencies, however, the Assistant Attorney
General for ENRD clarified that:
The Department of Justice has defended in litigation the legal position that deliberative
documents are not generally required in an administrative record, and thus has also defended
the position that in such circumstances no privilege log reflecting such documents would
need to be prepared. The [prior memorandum and U.S. Attorneys Bulletin] should not be
read as casting doubt on this legal position. Obviously, specific statutory provisions and/or
case law in the jurisdiction will play a significant role in determine the appropriate approach
in a particular case. Agencies would likely benefit from having their own internal guidance
regarding the contents and compilation of the record. An agency’s guidance should, of
course, be informed by applicable case law and the agency’s experience and internal
procedures.184
Agencies have differed considerably in how they handle privileged documents and how they
develop and implement internal guidance.
A number of agencies do not include privileged documents in a certified administrative
record and disclose them only in the event of a FOIA request or litigation that requires a Vaughn
or discovery index.185 For example, EPA takes the view that privileged documents do not form a
part of the administrative record. EPA excludes deliberative materials (covering most privileges)
in the administrative record not on grounds of privilege but on the grounds of relevance
“[b]ecause the actual subjective motivation of Agency decisionmakers is immaterial as a matter
of law under Overton Park, documentation of the deliberations is also immaterial.”186 For
certified administrative record purposes, EPA considers a document “deliberative” and
immaterial even if it has been made public, through FOIA or other means.187 This approach
enjoys substantial judicial support.188 Under this approach, deliberative documents are excluded
183

U.S. ATTY. BULL., supra note 153, at 9.

184

Tenpas Memorandum, supra note 153.

185

DOT*R; FTC*R. See also PTO*R; EBSA*R; STB*R. Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.
Cir. 1973).
186

EPA*R; EPAADP, supra note 111, at 4 n. 4, 5 – 6.

187

EPA*R; EPAADP, supra note 111, 10.

188

EPAADP, supra note 111, 6, citing San Luis Obispo Mothers for Peace v. Nuclear Regulatory
Comm’n, 751 F.2d 1287, 1325-26 (D.C. Cir. 1984). Deliberative process in that case involved transcripts
of deliberations of a multi-member, which may be distinguishable as applicable only to transcripts of
deliberations between members of a multi-member board. See also New York v. Salazar, 701 F. Supp. 2d
224, 236 (N.D.N.Y 2010) (“While it may seem anomalous that a court must examine an agency decision
and apply the controlling APA test without the benefit of all of the information that was before the agency,
the weight of authority holds that ‘[a] complete administrative record ... does not include privileged
materials, such as documents that fall within the deliberative process privilege, attorney-client privilege,
and work product privilege.’” (citing cases)).

33

May 14, 2013

from the certified administrative record because, for example, when a party challenges agency
action as arbitrary and capricious, the reasonableness of the agency's action “is judged in
accordance with its stated reasons.”189
Discussions with EPA illuminated the ongoing problem of individuals or litigants requesting
all documents “related to” a rulemaking under FOIA and receiving more than the rulemaking
administrative record, leading to questions about completeness of the certified administrative
record.190 EPA points to another difficult situation where EPA and another agency are
codefendants or co-respondents, it may be difficult to explain to opposing parties and the
reviewing court why the same document (e.g., an internal email) would be treated differently by
different federal agencies, e.g.,


one agency excludes the document from the record,



another agency includes the document in the record, and



a third agency puts the document in a “confidential” part of the record or privilege log.

Some agencies participate in substantial and large multi-agency regulatory portfolios, such as
recent consumer finance regulations, that may create conflicting approaches or require substantial
coordination to avoid conflicting approaches.191
In another approach, NOAA advises that privileged and protected documents are a part of the
rulemaking record and “must be identified for the Administrative Record and listed on a Privilege
Log. The Privilege Log, but not the documents, is then included in the Administrative Record
prepared for the Court.”192 The documents are not provided to an opposing party “absent a court
order to do so.”193 NOAA specifically includes relevant internal communications as part of the
certified administrative record because they are directly or indirectly considered.194 NOAA
recognizes also that such documents may be deliberative “in whole or in part.”195 The CFTC has
taken a similar view, stating that “if documents are part of the administrative record, then they are
part of the administrative record, regardless of whether they are privileged.”196
189

In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 156 F.3d 1279 (D.C. Cir.
1998) (“[T]he actual subjective motivation of agency decisionmakers is immaterial as a matter of law –
unless there is a showing of bad faith or improper behavior.”). See Norfolk v. United States Army Corps of
Engineers, 968 F.2d 1438, 1457-58 (1st Cir. 1992) (complete administrative record does not include
privileged materials).
190

Wehling Interview, supra note 43. Similarly, as the Administrative Conference initially observed in its
Recommendation 83-4, The Use of the Freedom of Information Act for Discovery Purposes, there is also
the potential for litigants to use FOIA in the hopes of obtaining “additional agency records for use in
litigation.”190
191

As the FDIC has pointed out, these portfolios also require significant interagency coordination of public
comments. FDIC*R. See, e.g., Department of the Treasury, Federal Reserve System, National Credit
Union Administration, Consumer Finance Protection Bureau, Federal Housing Finance Agency, Appraisals
for Higher-Priced Mortgage Loans, 78 Fed. Reg. 10,368 (Feb. 13, 2013).
192

NOAAG, supra note 124, at 8.

193

Id. at 8.

194

Id. at 9.

195

NOAAG, supra note 124, at 9-11.

196

CFTC*R.

34

May 14, 2013

At least one agency manages privileged documents in a consolidated rulemaking docket and
record during the rulemaking, but limits public accessibility197 while another includes privileged
documents within its internal record and manages release of those documents on a case-by-case
basis.198 Some agencies with fewer broad-based rules appear to make only case-by-case
determinations.199 Other agencies simply follow litigation advice from the Department of Justice
in the event that a rule is challenged.200 DOJ stated that it includes privileged documents in an
administrative record for judicial review only as required by statute or court order though this
internal practice should be distinguished from DOJ’s role as a principal litigator and the ENRD
guidance.201
The choice between excluding privileged documents on relevance grounds and indexing but
not including privileged documents in a certified administrative record is complex and the
contours of the necessary analysis may not be evident until the agency is served with a complaint
or petition. While judicial interpretation typically permits exclusion of privileged documents
(whether on privilege or substantive definition), agencies also make decisions on exclusion or
procedural inclusion based on broader policy (e.g., favoring disclosure) and practicality (e.g., cost
of exclusion litigation against cost of inclusion) considerations.

Treatment of Deliberative Privileged Materials
The courts predominantly take a doctrinal position that deliberative privileged material does
not form a part of an administrative record for judicial review. The courts recognized a hard and
fast rule shortly after passage of the APA that “internal memoranda made during the decisional
process … are never included in a [certified administrative] record.”202 A more nuanced view has
emerged over time, that “[agency] deliberations not part of the record are … immaterial as a
matter of law.”203 The purpose of the deliberative privilege is to preserve the ability of agencies –
and particularly multi-member commissions – to candidly discuss and decide, and to address
concerns that requiring full public disclosure of privileged deliberative material would render
“agency proceedings … useless both to the agency and to the courts.”204 Accordingly,
“deliberative intra-agency memoranda and other such records are ordinarily privileged, and need

197

ITC*R.

198

FDIC*R.

199

See, e.g., VA*R.

200

DHS*R.

201

DOJ*R.

202

Norris & Hirshberg v. SEC, 163 F.2d 689, 693 (D.C. Cir. 1947); Tafas v. Dudas, 530 F. Supp. 2d 789,
794 (E.D. Va. 2008) (“‘internal memoranda made during the decisional process . . . are never included in a
record’”) (quoting Norris & Hirshberg v. SEC).
203

In re Subpoena Duces Tecum Service on Office of Comptroller of Currency, 156 F.3d 1279 (D.C. Cir.
1998).
204

San Luis Obispo Mothers for Peace v. Nuclear Reg. Comm’n, 789 F.2d 26, 44 – 45 (D.C. Cir. 1986)
(en banc); see also NLRB v. Sears Roebuck & Co. 421 U.S. 132, 150 – 52 (1975) (excluding deliberative
materials from the certified administrative record “prevent[s] injury to the quality of agency decisions” by
encouraging uninhibited and frank discussion of legal and policy matters).

35

May 14, 2013

not be included in the record.”205 Absent a showing of bad faith or improper behavior, the agency
practice of excluding pre-decisional materials from the administrative record enjoys substantial
judicial support.206
Assertion of privilege is a choice that the agency may make. While privileged material is
doctrinally excludable from an administrative record, that doctrine must be squared with the
practical realities of privilege litigation. Determination of privilege is an inherently judicial
function, not an agency function and an agency decision to exclude privileged material from an
administrative record is not determinative: “The common law – interpreted by United States
courts in the light of reason and experience – governs a claim of privilege” unless superseded by
the Constitution, statute, or rule promulgated under the Rules Enabling Act.207 Rather, it is the
agency’s view of the general law of privilege applied to the documents that it possesses. Such a
claim of presumptive privilege should receive no greater deference than any other claim of
interpretation of the general law by an agency – its persuasive power.208 It is emphatically the
“province and duty of [the] Court ‘to say what the law is’ with respect to the claim of privilege
presented” in a particular case.209 Thus, judicial review of privilege “logs” – and the not
infrequent in camera review of documents claims to be privileged – is a determination of whether
the specific document is, in fact, privileged.210
205

See, e.g., Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534, 1549 (9th Cir. 1993)
("neither the internal deliberative process of the agency nor the mental processes of individual agency
members" are proper components of the administrative record); Amfac Resorts, LLC v. Dept. or the
Interior, 143 F. Supp. 2d 7, 13 (D. D.C. 2001) (“deliberative intra-agency memorand[a] are ordinarily
privileged and need not be included in the record”); see also Tafas v. Dudas, 530 F. Supp. 2d 786, 794
(E.D. Va. 2008); Comprehensive Cmty. Dev. Corp. v. Sebelius, 890 F. Supp. 2d 305 (S.D.N.Y. 2012). But
see NRDC v. Train, 519 F.2d 287 (D.C. Cir. 1975) (possible improper exclusion of Administrator’s
briefing book; remanded to agency).
206

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).
207

Fed. R. Evid. 501. This statutory rule was enacted in rejection of prior proposed amendments to the
Federal Rules that would have established non-constitutional privileges under the Rules Enabling Act.
P.L. 93-595, § 1, 88 Stat. 1933 (1975), as amended. The APA is not such a statute and an agency bears the
burden of establishing that a specific statute alters this rule.
208

Deference may be proportional to the “‘thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power
to persuade.’” United States v. Mead Corp., 533 U. S. 218, 228 (2001) (quoting Skidmore v. Swift & Co.,
323 U. S. 134, 140 (1944)).
209

United States v. Nixon, 418 U.S. 683, 705 (1974) (The generalized assertion of Executive privilege
must yield to the demonstrated, specific need for evidence in a pending criminal trial); Marbury v.
Madison, 1 Cranch 137, 177 (1803) (“[it] is emphatically the province and duty of the judicial department
to say what the law is.”). Admittedly, Nixon was an extreme case, but it illustrates the point that privilege
is a judicial determination and the most extreme documentary privilege is not absolute. The deliberative
process privilege is a qualified privilege. E.g., Landry v. Fed. Deposit Ins. Corp., 204 F.3d 1125, 1135
(D.C. Cir. 2000); Cobell v. Norton, 213 F.R.D. 1, 7 (D.D.C. 2003); Northwest Envt’l. Advocates v. United
States EPA, 2009 U.S. Dist. LEXIS 10456 (D. Or. 2009) (on privilege only; citing F.T.C. v. Warner
Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984)).
210

E.g., Earthworks v. U.S. Dept. of the Interior, 279 F.R.D. 180 (D. D.C. 2012); 2013 U.S. Dist. LEXIS
49873 (D.D.C. No. 1:09-cv-01972, Dk. Nos. 88-1, 88-2 (HHK/JMF), Apr. 2, 2013) (review of Department
of the Interior mining royalty regulations). As Magistrate Judge Facciola pointed out:

36

May 14, 2013

4. Identifying and Segregating Privileged Materials
The most common privileges for an agency revolve around litigation as many rulemaking
proceedings both consider potential litigation (generally) and are the product of litigation. Much
of the defining case law for litigation privileges arises in the context of Freedom of Information
Act cases where FOIA Exemption (5) “incorporates the traditional privileges that the Government
could assert in civil litigation against a private litigant.”211 The Supreme Court has construed
Exemption 5 “to exempt those documents, and only those documents, normally privileged in the
civil discovery context.”212 Exemption 5 allows agencies to withhold “inter-agency or intraagency memorandums or letters which would not be available by law to a party other than an
agency in litigation with the agency.”213 The most significant of such privileges are: the
deliberative process privilege, the attorney-client privilege, the attorney work product privilege,
and the presidential communications privilege.


Deliberative Process Privilege. The administrative record contains the documentary
record for judicial review, but courts will not intrude upon the deliberation of the agency.
Treating administrative deliberation as somewhat analogous to judicial deliberation, one
court has noted that “Judicial examination of []transcripts [of agency deliberations]
would represent an extraordinary intrusion into the realm of the agency.”214 The
deliberative-process privilege shields internal agency “advisory opinions,
recommendations and deliberations” in order to “protect[ ] the decision making processes
of government agencies.”215 It protects from disclosure material that is predecisional –
i.e., “antecedent to the adoption of an agency policy,”216 and deliberative – i.e., “a direct
part of the deliberative process in that it makes recommendations or expresses opinions
on legal or policy matters.”217 If an agency adopted a staff memorandum as the basis for

Review of privilege logs often discloses that the person doing the log may not understand the
intricacies of the privileges being claimed. Perhaps the greatest deficiency is the failure to appreciate
that the attorney-client privilege does not operate to insulate from disclosure every possible
communication between an attorney and client. It should be obvious that communications from the
attorney to client are not ipso facto protected. To the contrary, the privilege operates to shield
communications from an attorney to a client “only if that communication is based on confidential
information provided by the client.” Mead Data Cent. v. U.S. Dep't of the Air Force, 566 F.2d 242,
255 (D.C. Cir. 1977).
D.D.C. No. 1:09-cv-01972, Dk. No. 88-1, at 2 – 3. See also Conservation Force v. Salazar, 851 F. Supp. 2d
39 (D. D.C. 2012) (Endangered Species Act permits; privilege asserted as to attorneys emails; review of
privilege log; claims against privilege waived).
211

Baker & Hostetler LLP v. Dep’t of Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006).

212

NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).

213

5 U.S.C. § 552(b)(5).

214

San Luis Obispo Mothers for Peace v. U.S. Nuclear Reg. Comm’n, 789 F.2d 26, 44, 45 (D.C. Cir.
1986) (en banc) (“We think the analogy to the deliberative processes of a court is an apt one. Without the
assurance of secrecy, the court would not fully perform its functions.”).
215

Sears, Roebuck & Co., 421 U.S. at 150 (internal quotation marks omitted).

216

Jordan v. Dep’t of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc) (emphasis omitted), overruled
on other grounds by Crooker v. ATF, 670 F.2d 1051 (D.C. Cir. 1981) (en banc), overruled by Milner v.
Dep’t of the Navy, 131 S. Ct. 1259 (2011).
217

Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973).

37

May 14, 2013

its ruling, that memorandum would necessarily be included, as might factual material in a
privileged document.218


Presidential communications privilege. The presidential communications privilege is a
recognized privilege based on the necessity of candor from presidential advisers and to
provide “[a] President and those who assist him . . . [with] freedom to explore alternatives
in the process of shaping policies and making decisions and to do so in a way many
would be unwilling to express except privately.”219 This privilege extends to
communications authored or received in response to a solicitation by members of a
presidential adviser’s staff, since in many instances advisers must rely on their staff to
investigate an issue and formulate the advice to be given to the President.220



Attorney-client privilege. “The attorney-client privilege protects confidential
communications from clients to their attorneys made for the purpose of securing legal
advice or services. The privilege also protects communications from attorneys to their
clients if the communications rest on confidential information obtained from the
client.”221 Within the United States Government, “the ‘client’ may be the agency and the
attorney may be an agency lawyer.”222



Attorney work-product privilege. The attorney work-product privilege protects
“documents and tangible things that are prepared in anticipation of litigation or for trial”
by an attorney.223 A document is prepared in anticipation of litigation when litigation is
“foreseeable,” “even if no specific claim is contemplated,”224 but the “mere possibility”
of litigation is not enough.225 The District of Columbia Circuit has distinguished between
“neutral, objective analyses of agency regulations” and “more pointed documents” that
“advise the agency of the types of legal challenges likely to be mounted against a
proposed program, potential defenses available to the agency, and the likely outcome.” 226
As is common with other privileges, where the factual and opinion work product are so
intertwined in a document that it is impossible to segregate, the entire document retains
the mental impression of an attorney and cannot be disclosed.227

All of these privileges may implicate either an entire document or portions of a document. The
inclusion or exclusion of privilege is not normally accomplished at the document level, but rather
218

Nat’l Courier Ass’n v. Bd. of Governors, 516 F.2d 1229, 1241-43 (D.C. Cir. 1975).

219

United States v. Nixon, 418 U.S. 683, 708 (1974).

220

See In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997).

221

Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997) (citation and internal quotation marks
omitted).
222

Id. Some have challenged the notion that attorney-client privilege may apply to the government, but the
overwhelming majority of court cases have applied the privilege and its application for present purposes is
not doubted for present purposes.
223

FED. R. CIV. P. 26(b)(3); see also Tax Analysts, 117 F.3d at 620.

224

Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C. Cir. 1992).

225

Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 865 (D.C. Cir. 1980).

226

Delaney, Migdail & Young, Chartered v. IRS, 826 F.2d 124, 127 (D.C. Cir. 1987) (citing Coastal
States, 617 F.2d 854).
227

See, e.g., In re Vitamins Antitrust Litig., 211 F.R.D. 1, 5 (D.D.C. 2002).

38

May 14, 2013

is parsed and segregated based on the information within the document. For example, “if internal
agency documents themselves introduce ‘factual information not otherwise in the record’ [only]
[] those portions of the documents [must] be included in the administrative record.”228 Notably,
agencies may waive both segregation and privilege.
Segregation and release of privileged materials can raise unique practical problems,
particularly where there are substantial volumes of materials. As one example, “draft” documents
can pose a cumbersome problem. NOAA defines balanced benchmarks to require inclusion of
“significant” drafts within the administrative record – “if ideas in the draft reflect significant input
into the decision-making process. Significant input may exist, for example, if the document
reflects alternative approaches, grounded in fact, science, or law, to resolve a particular issue or
alternative interpretations of factual, scientific, or legal inputs.”229 NOAA excludes “[w]orking
drafts (preliminary, interim, rough)” and “any drafts that contain only stylistic, typographical or
grammatical edits, or other purely editorial suggestions in comment bubbles.”230 “Final draft
documents with independent legal significance, such as final draft environmental impact
statements, are to be included in the Administrative Record and will not be flagged for potential
listing on the agency’s Privilege Log.”231 If agencies prepare administrative record guidance,
clearly defining such benchmarks in areas where materials are likely to be voluminous can ease
record compilation.

Unsettled Privilege: Executive Review
Two examples of information that may initially be privileged but that presumably are
considered in agency decision-making are (1) drafts and interagency and executive comments in
review completed by Office of Management and Budget (OMB), Office of Information and
Regulatory Affairs (OIRA) and (2) ex parte contacts with outside interests through OMB the
under Executive Order 12,866.
Executive Order 12,866 specifically advises executive agencies that they must make available
to the public a variety of specific information, including: OMB-prompted or suggested changes
between the draft submitted to OIRA for review and the final rule subsequently promulgated.232
These internal documents, by temporal limitation in the Executive Order, do not constitute part of
228

Tafas, 530 F. Supp. 2d at 794 (quoting Nat’l Courier Ass’n v. Bd. Of Governors, 516 F.2d at 1242).
While the administrative record is presumptively correct, the government bears the burden of establishing
that specific documents or segregatable portions are privileged, it remains within the court’s authority to
determine how to proceed, including whether to review the documents in camera or require filing and
service under a protective order. E.g., Jifry v. FAA, 370 F.3d 1174, 1181 (challenge by non-resident alien
pilots of aviation regulations and revocation of airman’s certification; court reviewed whole record,
including ex parte in camera review of the classified intelligence reports). For example, a court may enter
an order requiring that specific documents or portions be served upon opposing counsel and filed under seal
that limits the further distribution of the materials and restricts their use to the instant litigation, including
provisions that preserve the confidentiality and privilege asserted over those documents.
229

NOAAG, supra note 124, at 10 (emphasis in original). NOAA also excludes personal notes for the
individual’s own use, working documents (such as cover sheets, meeting agendas) are generally excluded.
Id. at 9.
230

Id. at 10.

231

Id. at 10.

232

Exec. Order No. 12,866, § 6(a)(3)(E).

39

May 14, 2013

the public regulatory docket of consideration, but are made public after a final rule is published.
It would be anomalous to suggest that they would be excluded from the administrative record on
the ground that they were not considered directly or indirectly by the agency. Several agencies
responded that they ultimately include the record of changes on the public rulemaking docket,
which presumably leads to inclusion of these documents in the administrative record for judicial
review.233
Executive Order 12,866 provides also for OMB to conduct meetings at the request of private
parties, more likely during consideration of a final rule, for the purpose of “listening” to the
private party’s input.234 Agency staff nearly always attend such meetings; Presidential advisors
occasionally attend; and OMB routinely accepts information and material from the private party,
and passes that information to the agency. At least one agency considers staff notes taken at such
meetings and any documentation received at such meetings to be part of the rulemaking record,
but it is unclear if the agency considers such materials to be privileged or whether they are
released to the public.235
The history of such contacts – and more generally ex parte communications in rulemaking –
is fraught with debate over the balancing of the public need to know and the agency’s need to
acquire expert advice. Ex parte communications do not appear to be required to be memorialized
in a rulemaking administrative record.236 The relative values and complexity of the issues
relating to ex parte communications can be the subject of a fuller debate, although an agency may
be well served to memorialize such contacts, at least for its own purposes and as a buttress against
claims of bias or impropriety.237

C. Compiling the Administrative Record
1. The Beginning of Compilation
Defining the scope of the rulemaking record and a possible administrative record raises
important temporal questions, such as when a rulemaking record begins and what event sets in
motion the compilation of a rulemaking record. This date at which the record begins may be
difficult to establish – and may be established in hindsight – because the agency’s “consideration”
of the substance of an issue may well begin prior to its determination to begin a rulemaking, the
latter decision crossing the regulatory Rubicon triggering the imposition of APA procedural
requirements for rulemaking and the assessment of rulemaking risks.

233

DOT*R; DHS*R (regarding the Federal Emergency Management Agency); EPA*R; EPAADP, supra
note 111, at 11 – 12; PTO*R.
234

Exec. Order No. 12,866, § 6(b)(4)(D).

235

PTO*R.

236

Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981) (unless expressly forbidden by Congress, intraexecutive contacts may take place, both during and after the public comment period), citing its own
reluctance to expand the ex parte rule to rulemaking in United Steelworkers of America v. Marshall, 647
F.2d 1189, 1237 – 1238 (D.C .Cir. 1980); Action for Children's Television v. FCC, 564 F.2d 458, 474 – 77
(D.C. Cir. 1977) (both distinguishing informal rulemaking from "valuable privilege" adjudications for
purposes of ex parte limitations).
237

See infra Section IV.D.

40

May 14, 2013

NOAA suggests starting the rulemaking record when the agency “begins to consider a
concrete proposal for action” or “begins to move forward on a specific course of action.”238
Similarly, the Solicitor of Interior once suggested that a “Decision File should be created once
consideration of a decision begins, which will vary based on the situation.239 Each of these
starting points suggests that some retrospective examination of documents leading to that event
may be needed to document the considerations leading to that event. The beginning point, at a
minimum, likely precedes publication of an advance notice of proposed rulemaking or
publication of an entry in the Current Regulatory Plan and the Unified Agenda of Regulatory and
Deregulatory Actions,240 both of which are indicators that the agency has begun considering a
rulemaking.241
The receipt of a petition for rulemaking,242 on the other hand, clearly establishes an animating
event for consideration of that petition and potential rulemaking in light of that petition. Receipt
thus may animate the creation of a rulemaking record, and potentially an administrative record.
Outside such a discrete animating event, agencies may have little external indication of an
animating event.
2. Contemporaneous Compilation
Numerous agency responses indicate that agency officials are well advised to compile some
rulemaking records contemporaneously with the development of the regulation, including EPA,
DOI, and IRS.243 Foresight – particularly when a dedicated rulemaking record or decision file is
created – simplifies future administrative record compilation, but requires advance planning,
resources, and discipline.
Nearly every agency recognizes that it needs to compile some documents as the regulatory
process progresses, and some define those contemporaneous files differently as “working files”
from which the administrative record is later compiled (or, in reality, apparently “extracted”).
Nonetheless, agencies do recognize that some “after the fact” compilation of an administrative
record may be necessary and courts do not appear particularly concerned by post-decision
compilation.244 Perhaps the more relevant question, from a practical perspective, is whether
contemporaneous compilation benefits agencies.

238

NOAAG, supra note 124, at 11.

239

DOIS, supra note 142, at 4.

240

Office of Information and Regulatory Affairs, Office of Management and Budget, Current Regulatory
Plan
and
the
Unified
Agenda
of
Regulatory
and
Deregulatory
Actions,
http://www.reginfo.gov/public/do/eAgendaMain (last visited Mar. 8, 2013).
241

See Section II.A.1.

242

5 U.S.C. § 553(e),

243

EPAADP, supra note 111, at 11; EPA*R; DOIS, supra note 142, at 2 (“Decision Files should be
created contemporaneously with development of agency decisions, while administrative records evidence
of the Department’s basis for defending agency decisions.”); IRS*R.
244

FDA, pointing out that even when it has compiled an administrative record contemporaneously, it must
also seek additions after the fact to ensure completeness. FDA*R. See, e.g., Estate of Landers v. Leavitt,
545 F.3d 98, 113 (2d Cir. 2008) (“That the agency compiled the record in this case after this litigation
commenced does not alter the presumption that the agency has properly discharged this function” referring
to the “presumption of honesty and integrity in those serving as agency adjudicators'” (alterations omitted)
(quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).

41

May 14, 2013

NOAA makes clear that potential litigation can be a motivation for early compilation of the
rulemaking and administrative record:
For any decision likely to be controversial or the subject of litigation, as a ‘best practice’ the
[record] Custodian should strive to compile and organize documents contemporaneously with
the agency decisionmaking process, rather than wait until litigation is initiated to begin
compiling the Administrative Record. On the other hand, there may be circumstances – for
example, where the agency expects to advance a jurisdictional defense – where it may be
appropriate to defer assembly of the Administrative Record.245
Many economically, policy or legally significant rulemakings will tend toward the former – a
rational risk analysis may suggest the likelihood of litigation and the advantage of
contemporaneous compilation. Potential jurisdictional defenses may forestall certification of an
administrative record for judicial review, but may not ultimately obviate the need for the agency
to provide the administrative record if a jurisdictional defense is unsuccessful or other legal
challenges are based on the merits of an agency-decision.
In its informal suggestions on recordkeeping, DOJ’s ENRD placed a priority on compilation
contemporaneous with the development of the rulemaking:
Optimally, an agency will compile the administrative record as documents and generation or
receipt of materials occurs during the agency decision-making process. The record may be a
contemporaneous record of the action. However, the agency may compile the administrative
record after litigation has been initiated.246
The Solicitor of Interior has also suggested that contemporaneous rulemaking record compilation
will benefit agencies through increased efficiency and performance if a certified administrative
record is later required.247
EPA suggests that its administrative records are not “officially compiled” until a court
“orders” the EPA to file the record in litigation.248 EPA nonetheless believes that it is “important
to focus on the [rulemaking] record through the entire decisionmaking process and suggests, as a
matter of efficiency, that some offices may choose to compile the record at the time of decision
rather than waiting for litigation.249
ENRD’s guidance suggested detailed steps for after-the-fact compilation, which could be
modified to apply as well to contemporaneous compilation:


245

Contact all agency people, including program personnel and attorneys, involved in the
final agency action and ask them to search their files and agency files for documents and
materials related to the final agency action and include agency people in field offices;
where personnel involved in the final agency action are no longer employed by the
agency, search the archives for documents and materials related to the final agency
action. A former employee may be contacted for guidance about where to search.

NOAGG, supra note 140, at 12 n. 23.

246

U.S. ATTY. BULL., supra note 153, at 7. The Solicitor of the Interior suggests that the administrative
record be “compiled as documents are generated or received during the decision-making process, making it
a contemporaneous record of the decision.” DOIS, supra note 142, at 2.
247

Id.

248

EPAADP, supra note 111, at 11.

249

Id. at 11 n. 8.

42

May 14, 2013



Contact agency units other than program personnel, such as congressional and
correspondence components.



Determine whether there are agency files relating to the final agency action. If there are
such files, search them.



If more than one agency was involved in the decision-making process, the lead agency
should contact the other agencies to be sure the record contains all the documents and
materials considered or relied on by the lead agency.



Search a public docket room to determine whether there are relevant documents or
materials.250

Non-contemporaneous compilation – or compilation only where necessary – may lead to
difficulty in compiling a complete administrative record for a rulemaking. As the Department of
Commerce’s Patent and Trademark Office pointed out, if personnel involved in the rulemaking
are no longer employed by the agency the custodian may need to contact former employees (to
the extent practicable) for guidance on where to search for documents, including email and
document archives related to the rulemaking created by the former employee before his or her
departure from the agency.251 Personnel departures could effectively thwart an agency’s effort to
compile an effective administrative record for judicial review by denying the agency access to
past employee recollection of consideration.
Additionally, documents that are not contemporaneously controlled as part of a rulemaking
record or decision file may be lost and not retrievable, a point that becomes even more
challenging when multiple agencies contribute to consideration of the rulemaking by a principal
agency.252 Over time, these challenges may increase. This is of concern because there may
continue to be legal challenges to rulemakings long past the general six year statute of limitations
for actions against the United States (subject to a more specific statute),253 and an administrative
record may be necessary to defend an agency decision dependent on a rule, such as an
enforcement action, years beyond a limitation on direct review.254
One point made numerous times in guidance and agency responses, and that every agency
should consider whether compiling rulemaking records contemporaneously or only compiling an
administrative record upon demand: a specific custodian responsible for the process should be

250

U.S. ATTY. BULL., supra note 153, at 8.

251

PTO Policy, supra note 102, at 2.

252

Id. at 3.

253

28 U.S.C. § 2401(a).

254

See, e.g., Nazareth Hospital v. Sebelius, No. 10-3513, 2012 U.S. Dis. LEXIS 148745 (E.D. Pa., Oct. 16,
2012) (Department of Health and Human Services ordered to produce administrative record for interim
final rule and final rule adopted in 2000 that underlay adjudication of hospital disproportionate share of
low-income patients during 2002; court rejected argument that production of record would be
“burdensome” without explanation of burden). See also Long Island Care at Home v. Coke, 551 U.S. 158
(2007) (efficacy of Department of Labor 1975 regulations reviewed in 2007 in third party litigation;
Solicitor General as amicus for the United States; multiple agency considerations of revisions over more
than 15 years).

43

May 14, 2013

designated, and that person should document the compilation process.255 Courts infrequently
consider issues of whether the agency contemporaneously compiles a formal rulemaking record
or compiles that record only post-hoc when needed as an administrative record for judicial review
under the APA. In certain instances, however, post-hoc compilation might adversely affect
expeditious judicial review.256
An agency must expend considerable effort and scare resources to compile a full rulemaking
record for every rulemaking that it undertakes. That expenditure must be balanced against the
actual risk of litigation and subsequent requirement that it file an administrative record. The risk
analysis is not easy to quantify and many agencies may find that litigation risks do not justify the
compilation of voluminous records in each and every instance. An agency may have a limited
litigation risk and very large and complex records. At the same time, some agencies compile a
rulemaking record as a matter of routine because of the rulemaking frequency and to better
manage internal processes. Accordingly, the balance that must be struck is best analyzed by the
agency and its litigators, but the best practice remains for agencies to compile rulemaking records
contemporaneously.257
3. Electronic Management of Record Compilation.
Administrative records historically were compilations of various papers – colloquially a “box
with a bow.”258 Numerous changes over the past twenty years – such as implementation of the EGovernment Act and E-FOIA Act and the development of electronic document management
systems – have radically changed the nature of administrative recordkeeping. Agencies’ practices
now vary widely, reflecting divergent needs and capacities for electronic recordkeeping and
document management. EPA typifies the changing nature of the process:
EPA has maintained the official rulemaking administrative records in paper form, but with
the increased use of electronic document management for both rulemaking and litigation,
EPA is moving towards the retention of all rulemaking administrative records through its
electronic docket management system (the Federal Docket Management System or
FDMS).”259
Some agencies retain rulemaking records in paper form, even as most of their daily operations are
managed electronically, illustrating that the regulatory and recordkeeping processes are not
inherently linked.260 Most agencies maintain elements of rulemaking records in paper and in
electronic form.261
255

U.S. ATTY. BULL., supra note 153, at 7; NOAAG, supra note 124, at 5; DOIS, supra note 142, at 3;
NOAA*R. This process becomes more consolidated in electronic document systems where agency staff
can directly designate documents to the record.
256

See Section IV.G.1.

257

Cf., Florida Wildlife Federation v. Jackson, 853 F. Supp. 2d 1138 (N.D. Fla. 2012) (extensive record;
87,000 pages with multiple cross claims; known expectation of litigation).
258

Siciliano Interview, supra note 43.

259

EPA*R.

260

E.g., IRS*R. This notion is distinctly different from the electronic filing of most tax returns and
conversion of paper-filed returns to electronic form for use.
261

E.g., FDIC*R; DHS*R; VA*R; FERC*R; PRO&*R; MSPB*R; NOAA*R (noting that its
administrative records are predominantly in paper form); MSHA*R; EBSA*R; WHD*R; ETA*R;
TREAS*R; DOJ*R; FTC*R.

44

May 14, 2013

FDA offered several well-considered recommendation, such as that all records be maintained
in portable document format (.pdf) as the rulemaking progresses. FDA also specifically
suggested that a document with attachments be filed with the attachments as a primary document
because it may become difficult to locate the attachments if they have been separated, and that the
accession date on the document should reflect the actual date of the document not the date it was
scanned or entered into the electronic system.262 At a minimum, agencies can simplify
management of a rulemaking record (and ultimately generation of an administrative record for
judicial review if needed) by simply saving documents to a designated regulatory folder.263 That
does not resolve all issues, however, as the diversity of material illustrates. The Department of
Veterans Affairs (VA) suggested that a significant problem may exist with converting solely to a
single electronic file format those working materials that are compiled through diverse
information query (IQ) systems, such as VA’s VAIQ document management system. 264
Some agencies have transitioned to complete electronic rulemaking recordkeeping.265 Even
completely electronic document management and rulemaking recordkeeping systems, however,
may not obviate the need to retain physical or non-digitizable exhibits.266
Electronic file management can take a number of forms, from simple file saving on a shared
drive to a dedicated electronic records management system. The Commodity Futures Trading
Commission (CFTC), for example, utilizes a document management system, in which records are
maintained in a searchable database.267 The ITC uses a complete electronic filing system for
collecting and storing all of its adjudicatory filings and documents or, for its limited amount of
rulemaking, rulemaking record compilation and indexing.268 Both the CFTC and ITC systems
appear to have been designed for more general recordkeeping purposes and adapted for
rulemaking record use.

262

FDA*R.

263

See Section IV.B.

264

VA*R. Most agencies are likely to have an IQ system in place to manage executive document flow;
whether that system was designed to generate .pdf documents may depend on the source and individual
specifications of the system (including contractual limitations).
265

E.g., ITC*R (EDIS system; login required for access to publicly available records); CFTC*R.

266

E.g., CFTC*R; OSHA*R. OSHA notes that it receives and must consider particular safety products –
e.g., respirators – that remain in their physical form and are part of the administrative record, but that it will
insert a description of the exhibit in the administrative record. The Administrative Conference has
previously recommended that agencies “include in the electronic docket a descriptive entry or photograph
for all physical objects received during the comment period.” Recommendation 2011-1, supra note 16
(Recommendation 5).
267

CFTC*R. The CFTC also notes that, throughout the rulemaking, records are categorized by record
types for ease of use, including Federal Register publications, comments, studies, open meeting transcripts,
etc. Id. These categories may also assist in finding material more quickly rather than pure chronologic
filing and indexing. The CFTC further notes that its rulemaking staff interface with its database, typically
through a Sharepoint graphic user interface (GUI). The database is currently run in Concordance, but
CFTC notes that it plans to switch to a more robust database software that includes endless facility for
sorting and designating records by fields.
268

ITC*R. The ITC notes that documents entered into its Electronic Document Information System, such
as those related to rulemaking, are indexed upon entry. See ITC, Electronic Document Information System,
https://edis.usitc.gov/edis3-external/app (last visited Jan 13, 2013).

45

May 14, 2013

FDMS and Regulations.gov were developed to address the different and specific needs for
public notice and the aggregation of public comments, but might be expanded for more general
agency recordkeeping.269 FDMS, however, is only a medium-level security system and FDMS
does not presently, at the time of this writing, plan to attempt to move FDMS to a high level of
security; agencies must balance their use of FDMS with high security needs for specific data.270
This means that agencies must have their own systems for handling information that requires a
higher level of security than available on FDMS. In another example, accessing FDMS and
Regulations.gov illustrates a lower level of search capacity and functionality than is available in
robust document management systems, such as word, context, and Boolean searches in forms like
those commonly used in Westlaw and Lexis. The application of eDiscovery technologies and
techniques – such as predictive coding – to administrative records is foreseeable as agencies, like
private litigants, grapple with those litigation intricacies. These differences are development
issues offered only as illustrative, and in no way critical, issues that agencies may need to
consider as they respond to various pressures of litigation, funding, and substantive program
management needs.
Questionnaire responses indicate wide variance in adoption of electronic document
management systems and equally wide variance in application of electronic document
management to rulemaking records and administrative records for judicial review. Rulemaking
record compilation, administrative record filing with a court, and administrative record service on
litigants do not appear to be the driving forces behind electronic document management systems,
but may be the beneficiaries.
4. Indexing the Rulemaking Record
Only a few agencies appear to index a rulemaking record as it is developed, primarily for
internal purposes.271 Most agencies develop a formal index only when necessary for internal or
judicial purposes.272 Indexing of internal documents can be highly labor intensive, even if a full
electronic document management system is in place, because important characteristics of each
document must be identified and documented.
In complete electronic document management systems, metadata ascribed to each document,
carefully planned and selected, may create a real-time functional equivalent of such indices at the

269

FDMS and Regulations.gov grew out of the public docket requirements of the E-Government Act, Pub.
L. No. 107-347, § 207(d)(1). EPA, in Mar. 2012, “turned-on” the FDMS Records Module, allowing FDMS
to serve as a NARA-recognized system of records. Since then, FDMS has begun updating records
schedules and internal business practices that will allow EPA to utilize this system in a robust fashion. A
number of other agencies have turned on the records module, including the Architectural and
Transportation Barriers Compliance Board (ATBCB), Bureau of Ocean Energy Management (BOEM;
Interior), Bureau of Safety and Environmental Enforcement (BSEE; Interior) Corporation for National and
Community Service (CNCS), Consumer Product Safety Commission (CPSC), Department of the Interior,
Federal Highway Administration (FHWA; Transportation), National Archives and Records Administration,
and Office of Natural Resource Revenue (ONRR; DOI). Email to author from Eric Schultz, Program
Officer, EPA Docket Center, US Environmental Protection Agency (Jan. 22, 2013) (copy on file).
270

Id.

271

See, e.g., IRS*R (“Legal file is indexed as it is developed. Administrative record is indexed during
development and in consultation with DOJ”); FERC*R. MSHA*R. See also STB*R.
272

EPA*R; FDIC*R; DOT*R; VA*R; PTO*R; NOAA*R; WHD*R; ETA*R; EPAADP, supra note 111,
at 11.

46

May 14, 2013

time of document creation. 273 Regulations.gov, as the repository for most public comments on
proposed rules, provides a simplified example. Upon creating a public rulemaking docket in
FDMS, later to be released to Regulations.gov, agency managers must ascertain a docket number,
and associate that docket number with the Regulatory Identification Number (RIN), any internal
docket number, the name of the rulemaking, the deadline for submitting comments, and other
specific information. The agency attributes, as metadata, this information to a proposed rule and
each of the supporting documents submitted for public review and comment. Such data elements
can form the basis for finding, organizing, and indexing the information contained in the
electronic docket.
Certain indices, particularly chronological indices, are a natural outgrowth of the compilation
process, particularly in electronic recordkeeping where saving a file automatically imbues the file
with attributes such as the date (and often time) saved. In general, however, agencies do not
appear to have standardized their indexing processes and the capture of related information about
records. A notable exception is the IRS, which has taken a step in that direction by formalizing at
least a framework for a standard index for its legal file.274 The CFTC and IRS (for its legal file)
use different typologies of documents,275 while the Federal Energy Regulatory Commission
(FERC) utilizes standardized indexing fields for defined document classes and types, and FTC
and Mine Safety and Health Administration (MSHA) characterize document types by phase of
the rulemaking process.276
The public availability of agency rulemaking record indices, prior to publication of the index
of the administrative record for judicial review on PACER, is variable. Some agencies simply do
not make decision or rulemaking record indices available except as filed in court in the event of
litigation,277 but others make at least some portion of rulemaking record indexes available
specifically upon request278 or only through FOIA,279 or on the agency’s website, either
generally280 or in specific instances,281 or only through public inspection.282 Notably, public
indexes may not signal the existence of non-public or non-docket information that is also a part of
the rulemaking record.
273

“Metadata” is underlying source and characterization data of the material in the system, and may
include the origins and recipients, creation date, title, access, revision, privilege data, and complete audit
trails, among other matters, for each document. With some practical adjustment, electronic record
management systems could (theoretically) automatically generate certified administrative records and
privilege logs (whether for FOIA or certified administrative record purposes) for agency review.
274

IRS*R. IRS Form 9506 provides the standard index for its legal file. IRS, Published Guidance and
Other Guidance to Taxpayers, http://www.irs.gov/irm/part32/index.html (last visited Dec. 14, 2012)
(Exhibit 32.1.9-3 to Chief Counsel Regulation Handbook).
275

Compare CFTC*R with IRS*R.

276

FTC*R; See 2003 Telemarketing Sales Rule Amendments, 16 C.F.R. part 310 (available at
http://www.ftc.gov/bcp/rulemaking/tsr/tsrrulemaking/index.shtm (last visited Feb. 1, 2013) (index).
MSHA*R.
277

DOT*R; NOAA*R.

278

STB*R (available on request for a nominal fee). This appears to be a FOIA-related process.

279

EPA*R.

280

FDIC*R; FERC*R; ITC*R (through EDIS).

281

FTC*R; 2003 Telemarketing Sales Rule Amendments, supra note 276.

282

MSHA*R; EBSA*R.

47

May 14, 2013

Whether privileged documents are included in an administrative record raises additional
issues. If, by definition, privileged documents are included in an administrative record, then the
index of the record should theoretically include a privilege index; if, on the other hand, privileged
documents, by definition, are excluded from the administrative record, it might be “unfair” to
expect an agency to provide a privilege log of documents that are not in the record.283
The issue arises, however, because of the crossover from FOIA litigation of the “Vaughn”
index. A Vaughn index briefly describes each withheld record and explains why the record was
withheld.284 The purpose of the Vaughn index is to permit adequate adversarial testing of an
agency’s claimed right to an exemption from disclosure. The index reflects a partial disclosure of
information to permit such an informed challenge, because those who contest denials of FOIA
requests are necessarily at a disadvantage as they have not seen the withheld documents. This is
likewise true in administrative record litigation – a party cannot challenge the exclusion of
documents possessed by an agency if the party does not normally know that the agency possesses
them.
Some agencies have developed policies that affirmatively provide for the creation of privilege
logs for administrative records.285 DOJ’s initial ENRD guidance was quite clear in its guidance
to agencies that:
If documents and materials are determined to be privileged or protected, the index of record
must identify the documents and materials, reflect that they are being withheld, and state on
what basis they are being withheld.286
As noted above, however, the Assistant Attorney General for ENRD has clarified that ENRD
would defend the contrary position in litigation.287
A request for rulemaking record documents under FOIA, denied as to privileged documents
and given a legal challenge, requires the creation of a Vaughn privilege index.288 An agency may
acquire the greatest efficiencies by considering adoption of an index style that fits the needs of the
administrative record for judicial review, the privilege index, and prospective Vaughn indices that
might be prepared in response to FOIA litigation. Such a log might identify the documents,

283

Tafas v. Dudas, 530 F. Supp. 2d 786, 801 (E.D. Va. 2008), citing Blue Ocean Institute v. Gutierrez, 503
F. Supp. 2d 366, 372 n. 4 (D.D.C., 2007). Courts have declined to require an agency to produce a privilege
log without a substantial showing similar to that required to supplement the record or adduce discovery.
See Nat. Ass’n of Chain Drug Stores v. Department of Health and Human Services, 631 F. Supp. 2d 23
(D.D.C. 2009). See sections IV.D, IV.E.
284

Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973).

285

DOIS, supra note 142, at 12–13.

286

See U.S. ATTY. BULL., supra note 153, at 9; NOAA*R (To the extent that such documents were
considered by the agency in reaching the decision, they are considered part of the Administrative Record,
but may be indexed on a “Privilege Log.” The Privilege Log, but not the documents, are then included in
the Administrative Record prepared for the Court.); NOAAG, supra note 124, 9 – 11).
287

Tenpas Memorandum, supra note 153.

288

Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973). Vaughn indexes are now a fully embedded
FOIA process.

48

May 14, 2013

reflect withholding, and state the basis for withholding in sufficient detail for each document
withheld to substantiate the claim of privilege or protection.289
Few agencies commit resources to advance indexing of privileged documents. The CFTC
and ITC are worth noting as exceptions, both index privileged documents on full electronic
document management systems in the routine management of all documents.290 While FDMS
provides indexing capacity across the government, the mid-level security for FDMS poses a
substantial concern that must be addressed by agencies considering use of the FDMS system for
managing privileged or other sensitive documents.291
D. Electronic Material
Electronic material – from the World Wide Web, computer programs and models, databases,
electronic documents, and in other forms – form a growing component of federal rulemaking that
may create easily overlooked issues for an agency’s rulemaking record. A simple example is the
increasing use of the Internet as a source of information. NOAA suggests retaining a hard copy
of any material accessed from the World Wide Web:
[T]he Administrative Record must contain a hard copy of the information presented on the
relevant web pages, including the internet uniform resource locator (URL) and the date that it
was downloaded, to ensure that the information relied on is preserved in the event that the
web site content changes.292
As NOAA points out, the date of download is necessary to ensure that the information considered
is the information captured during the time of consideration. Timely preservation is necessary
because web pages and specific content may be evanescent and post-decision capture may be
impossible.
Electronic resources can take forms that are substantially more complex. Computer models,
accounting software, off-the-shelf computer programs used to analyze data (e.g., IBM’s SPSS
18), spreadsheets, etc., might be made available to the public during a public comment period on
at least some limited basis, agencies must also be concerned with presentation of this material in
an administrative record for judicial review if the rule is challenged. While the source of data
used in such resources, and perhaps the data itself, may be made publicly available, agencies need
also to be concerned with whether the computer programs themselves must somehow be included
in the rulemaking record for decision-making, in the administrative record for judicial review, or
otherwise be made available to the public. Many agencies do not have standard practices for

289

NOAAG, supra note 124, at14. See Memorandum from President Barack Obama, to the Heads of
Executive Departments and Agencies, The Freedom of Information Act (FOIA), 74 Fed. Reg. 4683 (Jan.
26, 2009); Memorandum from Eric Holder, US Attorney Gen., to the Heads of Executive Dep’ts &
Agencies, The Freedom of Information Act (FOIA) (Mar. 19, 2009), available at
http://www.justice.gov/ag/foia-memo-march2009.pdf.
290

ITC*R; CFTC*R.

291

Schultz E-mail, supra note 240.

292

NOAAG, supra note 124, at 8. By way of illustration, some World Wide Web hyperlinked references
(searching using Google, Bing, and Yahoo search engines) to Federal agency policies on the development
of administrative records that no longer exist on the web generate a “Page Not Found” response when
accessed.

49

May 14, 2013

handling such resources, but rather consult internally on this type of issue on a case-by-case
basis.293
Agencies have devised a variety of ways to manage malleable electronic resources that permit
varying levels of public access. Some agencies may not provide direct access to electronic
resources, but might, for example, include a printout from a computer model in the electronic
record to facilitate public access to the underlying data.294 Another approach is to store malleable
electronic resources on, for example, a flash drive and to provide physical access to the drive in
the docket room295 and such an electronic device might be an exhibit for purposes of the
rulemaking record or administrative record for judicial review. More robust electronic
information management systems may be able to store models, for example, as a digital file, with
a record of data used by the model at a particular point in time and a system to track changes in
model data.296 One agency has noted that its rulemaking records have contained malleable data in
the past: when placed on an agency’s website, the data is “locked down” in two senses: (1) no
unauthorized person can modify data on the agency website due to the agency’s general security
and firewalls, and (2) any further modification would trigger electronic monitoring and would be
known to the agency.297 These practices show that agencies can and should consider the
malleable nature of electronic resources used in agency decision-making to ensure that the
rulemaking record accurately reflects the information that was before the agency at the time of its
decision. Certifying that type of information to a court poses greater challenges that might only
be resolved by negotiation.
E. Protected Resources
Some material may present unique recordkeeping issues because, unlike with privileged
documents, agencies may not waive requirements to protect information contained therein. Some
obvious examples revolve on highly protected governmental information, but the vast majority of
protected information issues arising in rulemaking revolve around copyright, personal
information, and confidential business information. Each agency must consider also whether
information must be managed to permit or restrict access to specific personnel, potentially
including a record custodian.
1. Copyright
Agency analysis in the development of proposed and final rules, with increasing frequency,
involves consideration of material that is protected by the complex law of copyright. 298 In
addition, agencies may incorporate by reference standards that have been promulgated by private
293

E.g., NOAA*R; FDA*R.

294

OSHA*R. OSHA explains that when it submits such exhibits to the record, it also submits electronic
reports from those databases to facilitate public access to the underlying data. The electronic files forming
those exhibits are not currently available through FDMS.gov or regulations.gov, because the files are from
legacy exhibits, and must be obtained by contacting the Docket Office. OSHA replied that it should be
possible going forward to enable public access to such files.
295

DOT*R; EPA*R. Both DOT and EPA note that they store these materials on portable hard drives or
flash drives for public access in their docket rooms. EPA further notes that as it moves to cloud storage
space, these materials may be more accessible.
296

CFTC*R. The timestamp provides an element of an audit trail, recording all accessions to a file or
subfile, including changes to the file or subfile.
297

Id. The agency’s knowledge of any attempted manipulation of data is critical to data integrity.

298

See generally 17 U.S.C. § 101 ff; D. NIMMER, NIMMER ON COPYRIGHT (2012).

50

May 14, 2013

standard developing organizations that are copyrighted by those organizations. 299 In either
instance, the agency may be prohibited from “publishing” the material absent consent from the
copyright owner.300 In short, copyrighted works may not be reproduced without consent of the
copyright holder or payment of royalties and there is no exception to this rule for government
agencies.301
Agencies must decide how to include copyrighted background material in the rulemaking
record, in an administrative record for judicial review, and in the public rulemaking docket.
While the rulemaking record is internal to the agency, the administrative record filed with the
court, or reproducing copyrighted work on an electronic docket pose different issues. Submission
of copyrighted information by the public for consideration by the agency is a subset of this issue.
Several agencies noted that they can manage copyrighted material in comments on FDMS,
restricting public availability of such materials on Regulations.gov.302
NOAA generally includes all documents cited in its rulemaking within the rulemaking record,
but cautions that this does not extend to all documents cited by someone else (e.g., in public
comments).303 When the public rulemaking docket contains copyrighted material, OSHA inserts
a Regulations.gov entry that includes a banner page indicating that the user must contact the
docket office to view the copyrighted material.304 The Department of Transportation (DOT)
follows a similar practice.305 The FDA includes indicators of copyrighted material in the public
rulemaking docket, such as a reproduction of the title page and cover page of a copyrighted book
in portable document format, but retains the entire work in hard copy form.306 Each of these
methods appears to present a reasonable means for inclusion of copyrighted material in a record
without infringing upon the copyright holders rights to royalties.
The inclusion of copyrighted materials in an administrative record for judicial review may
also require agency attention. As discussed later in this report, normal filing of documents with a
court is now done through electronic means and most documents become available for public
299

See generally Administrative Conference of the United States, Recommendation 2011-5, Incorporation
by Reference (Adopted Dec. 8, 2011), 77 Fed. Reg. 2257 (Jan. 17, 2012).
300

FDA particularly noted that use of copyrighted material posed continuing problems. FDA*R. NOAA
also points out that scientific literature – e.g., journals or texts – and other material must often be cited.
NOAA*R.
301

See generally, Memorandum from Randolph D. Moss, Acting Assistant Attorney Gen., Office of Legal
Counsel, Dep’t of Justice, to the Gen. Counsel, Dep’t of Commerce, Whether and under What
Circumstances Government Reproduction of Copyrighted Materials is a Noninfringing “Fair Use” under
Section
107
of
the
Copyright
Act
of
1976
(Apr.
30,
1999)
available
at
http://www.justice.gov/olc/pincusfinal430.htm.
302

EPA*R; MSHA*R.

303

NOAAG, supra note 124 at 8.

304

OSHA*R. See also EBSA*R (does not post, but refers to reading room).

305

DOT*R.

306

FDA*R. FDA also suggested that best practices should include defining a federal agency-wide practice
with respect to copyrighted materials and a determination of what is considered “fair use” to publish in a
rulemaking. FDA*R. FDA provides a list of references on its docket for a proposed rule and direct access
to non-copyrighted material, and with the notation of availability of access to hard copy of copyrighted
material in its reading room only. See, e.g., Current Good Manufacturing Practice and Hazard Analysis and
Risk-Based Preventive Controls For Human Food, 78 Fed. Reg. 3,646 (Jan. 16, 2013).

51

May 14, 2013

inspection on the Public Access to Court Electronic Records (PACER) system. Inclusion of an
entire copyrighted work (or even a substantial part beyond fair use) in an electronic filling would
permit the public to view and secondarily copy the material by only paying PACER fees, if any.
A technique that seems to have gained some favor in litigation has the agency moving to file the
documents separately from PACER, providing a full (purchased or licensed) copy to the court by
manual submission, and serving a copy on opposing counsel. This technique limits both the
agency’s exposure and expense.
2. Personal Information
Protections for personal privacy information, whether under the Privacy Act 307 or other
statutes or voluntarily adopted by an agency,308 must be considered in rulemaking and
administrative recordkeeping.309 Agency responses indicated not only an awareness of privacy
issues, but also a firm commitment to ensuring that personal identifiable information is not
released to the public without authorization.
A number of agencies specifically advise potential commenters that information provided in
response to a notice of proposed rulemaking will be made public.310 While most agencies post
public comments directly, or permit automatic posting, on Regulations.gov or their own
electronic dockets, some agencies, particularly those agencies predominantly engaged in
transactions with individuals, first affirmatively strip comments of any personally identifiable
information.”311 Agencies otherwise will redact information that would violate the Privacy Act or
other privacy statutes to comply with those laws.
3. Confidential Business Information
Confidential business information (CBI) or trade secrets312 provided to the agency during
rulemaking proceedings, or gathered during ordinary enforcement actions or agency activities but

307

5 U.S.C. § 552a. See 16 C.F.R. § 4.10 (FTC rules of practice).

308

OMB has suggested that agencies have discretion to implement more stringent protections for Personal
Identifiable Information than the Privacy Act specifically requires. See OMB Memorandum M-07-16,
Safeguarding Against and Responding to the Breach of Personally Identifiable Information (May 22, 2007).
309

E.g., Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. §§ 1320d – 1320d-8. See
generally, Modifications to the HIPAA Privacy, Security, Enforcement, and Breach Notification Rules
under the Health Information Technology for Economic and Clinical Health Act and the Genetic
Information Nondiscrimination Act, 78 Fed. Reg. 5,566 (Jan. 25, 2013).
310

E.g., EPA*R; DHS*R; FTC*R. The Regulations.gov comment submission portal contains the specific
warning: “Any information (e.g., personal or contact) you provide on this comment form or in an
attachment may be publicly disclosed and searchable on the Internet and in a paper docket and will be
provided to the Department or Agency issuing the notice. To view any additional information for
submitting comments, such as anonymous or sensitive submissions, refer to the Privacy and Use Notice,
the Federal Register notice on which you are commenting, and the Web site of the Department or Agency.”
REGULATIONS.GOV, Privacy Notice, www.regulations.gov/#!privacyNotice (last visited Feb. 4, 2013).
311

REGULATIONS.GOV, FAQ, available at: http://www.regulations.gov/#!faqs (last visited Mar. 10, 2013).
E.g., SSA*R; EBSA*R. EBSA also removes profanity. Some agencies have experienced insertion of
obscene material and both profanity and obscenity may raise other issues.
312

See 18 U.S.C. § 1905. Parenthetically, it is worth noting that interagency disclosure of certain trade
secrets is “authorized by law.” See Memorandum for the General Counsel, Office of Federal Housing
Enterprise Oversight, Applicability of the Trade Secrets Act to Intragovernmental Exchange of Regulatory
Information, from Randolph D. Moss, Acting Assistant, Attorney General, Office of Legal Counsel,

52

May 14, 2013

considered in a rulemaking on a similar or related subject, may pose a more significant problem
for agencies. As a general proposition, executive agencies are instructed to establish a framework
for designating, marking, safeguarding, and disseminating information designated as Controlled
Unclassified Information (CUI), which includes confidential business information. 313
Historically, agencies have been more concerned with FOIA disclosures of CBI, though the use
of CBI in rulemaking deserves attention.314
Several agencies that regulate financial markets, trade and other technical areas in which CBI
issues commonly arise have developed rules or guidance specifically for handling CBI. 315 These
agencies may have introduced protections for CBI to assist in the acquisition of information
necessary for developing regulations. Some agencies, such as the FTC, have specific statutory
mandates to protect trade secret and commercial or financial information that is privileged or
confidential.316 Agency enforcement data is another example of information that may require
agency protection from public disclosure.
Agencies do specifically caution the public that submission of confidential business
information should not be included with public comments, some by regulation, 317 including
specific procedures for requesting a protective order before the agency,318 and some by notice
with the proposed rule.319 Treatment of CBI within the public rulemaking docket may vary. For
example, DOT stated that they would notice the receipt of confidential business information on
the public rulemaking docket, but maintain that information separately.320
Experience, at least by the author, has shown that submission of CBI may arise at any time
and in contexts that may not be expected. Accordingly, agencies would be well advised to
consider this possibility in advance of an actual submission.

Department of Justice (April 5, 1999), available at http://www.justice.gov/olc/ofheoopfinsent.htm (last
visited Jan. 28, 2013).
313

DHS*R; Exec, Order No. 13,556, 75 Fed. Reg. 216 (Nov. 4, 2010 ); Memorandum to the Heads of
Executive Departments and Agencies, Designation and Sharing of Controlled Unclassified Information
(CUI), 75 Fed. Reg. 68,675 (Nov. 4, 2010).
314

See H. E. Kilgore, Signed, Sealed, Protected: Solutions to Agency Handling of Confidential Business
Information in Informal Rulemaking, 56 ADMIN. L. REV. 519 (2004) [hereinafter Kilgore].
315

CFTC*R; FTC*R; ITC*R; FERC*R. See also 18 C.F.R. §§ 388.107, 388.112 (FERC rules). EPA’s
implementing regulations and other statutes impose stringent procedures for the use and availability of
information claimed to be CBI. See, e.g., 33 U.S.C. § 1318(b); 40 C.F.R. §§ 2.204, 2.205, 2.302(g).
316

FTC*R (citing 15 U.S.C. § 46(f), and 16 C.F.R. §§ 4.9 - 4.10 (establishing procedures for seeking
confidential treatment of privileged or confidential commercial or financial information submitted to the
FTC). Kilgore, supra note 314, provides a more thorough exposition
317

EPA*R (citing 40 C.F.R. § part 2, subpart B); FTC*R (citing FTC rule 4.9 – 4/10).

318

STB*R (citing 49 C.F.R. § 1104.14, and noting that filers may provide a redacted version of the
submission for public docketing). Additionally, DOT noted 14 C.F.R. § 11.35(b) (Federal Aviation
Administration practice). DOT*R.
319

EPA*R; PTO*R.

320

DOT*R. DOT further notes that the information is kept in a separate file, and if a copy of the material is
requested, the request is treated as any other request under the Freedom of Information Act, 5 U.S.C. § 552.

53

May 14, 2013

F. Closing and Retiring a Rulemaking Record.
1. Closing the Record
As a general proposition, the record closes at the time a final rule is signed or published.321
Judicial decisions generally appear to impose a “stopping” rule that the administrative record
“contains the materials compiled by agency that were before agency at the time the decision was
made.”322 This temporal limitation is important for two reasons – it ends the compilation
(generally) of the record and it presumes that there is a specific decision event. Assessing
whether information was “before” an agency decisionmaker may also include a cognitive
element, not just a temporal one.
The rulemaking record should remain open so long as the rule is pending before the agency.
Nonetheless, some agencies recognize that closing the record is not as simple as closing a file
folder when a rule is signed.323 For example, an agency may choose to include in the
administrative record for judicial review post-promulgation material that “bears directly upon the
plausibility of certain predictions made by the administrator in promulgating the Regulations.”324
This is not to say, however, that a deficient record can be “cured by creating new supporting
documents after the decision-maker has signed the decision.”325
321

A major purpose of record cut-off provisions of 42 U.S.C. § 7607, for example, was to ensure that
rulemaking process would be reviewed on basis of data and reasoning that were available to EPA at time
decision was being made; date of promulgation of rule, is the date upon which rule is signed and released to
public, not the date of publication in Federal Register. American Petroleum Institute v Costle 609 F2d 20
(D.C. Cir. 1979). See also EPA*R; EPAADP, supra note 111, at 10, 7n.7; 21 C.F.R. § 10.3(a) (FDA);
FDA*R; CFTC*R; VA*R; MSHA*R.
322

James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) (citing Citizens to Pres. Overton
Park, Inc. v. Volpe, 401 U.S. 402, 419 (1971), and Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 284
(D.C. Cir. 1981)); Pers. Watercraft Indus. Ass’n v. Dep’t of Commerce, 48 F.3d 540, 546 n. 4 (D.C. Cir.
1995) (noting with approval that the “whole record” contained all materials “pertaining to the [challenged]
regulation”). Another court’s view was similarly restricted “to the administrative record as it existed at the
time of the agency’s decision.” Eugene Burger Mgmt. Corp. v. U.S. Dep’t. of Hous. & Urban Dev., 192
F.R.D. 1, 4 (D.D.C. 1999).
323

The Solicitor of the Interior memorializes this point in policy. DOIS, supra note 142, at 4. See also
EPAADP, supra note 111, at 10; EPA*R. EPA notes that some changes occur after signature: “clerical
errors that do not affect the substance of the rule can be corrected without review and approval by the
Administrator but substantive changes must be approved by the Administrator.” EPAADP, supra note 111,
at 10 n.7. The author’s experience with several agencies illustrates slightly more expansive post-signature
amendments. Historically, post signature changes have included planned removal of paginated tables of
contents provided for the signatory and other reviewers’ convenience, planned updating of tabular
information that does not substantive affect the decision, and correction of any found clerical errors. Also
notable here is the long-standing and fully accepted practice that the editors at the Office of the Federal
Register (OFR) may suggest, and subordinate agency officials may accept, technical corrections relating to
OFR policies and printing procedures.
324

Amoco Oil Co. v. EPA, 501 F.2d 722, 729, n. 10 (D.C. Cir. 1974). See also Am. Petroleum Inst. v.
EPA, 540 F.2d 1023, 1034 (10th Cir. 1976) (“After promulgation, events indicating the truth or falsity of
agency predictions should not be ignored.”). Some courts have allowed “extra-record evidence” in “cases
where evidence arising after the agency action shows whether the decision was correct or not.” Esch v.
Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989) (dicta). This line of cases bears on whether the agency’s
decision was a reasonable one in light of its ability to predict future events and thus should be limited to
those rules that are predictive in nature.
325

NOAAG, supra note 124, at 11.

54

May 14, 2013

When the agency has made its decision, NOAA recommends appointment of a record
custodian, who is to issue a memorandum alerting the appropriate agency personnel requesting
that they compile and submit all documents associated with the agency decision.326 This
compilation process should necessarily include a record of the compilation process, personnel,
searches, etc.327
2. Presentation to the Decisionmaker
Invariably, the agencies suggest that they provide the regulatory text and preamble to the
signatory, but beyond this minimum presentation practices vary widely. Some agencies may, in
certain circumstances, present the entire record to the decisionmaker(s). Other agencies (or the
previously noted agencies in other circumstances) include public comments and / or specific
analyses, such as the Regulatory Impact Analysis under Executive Order 12,866, an Initial or
Final Regulatory Impact Analysis under the Regulatory Flexibility Act, or privacy impact
assessments under the Privacy Act. Nearly all agencies suggested that some form of
memorandum, executive summary, briefing or other form of presentation summary is provided to
the decisionmaker. A few may provide the decisionmaker with as little as the rule and preamble,
together with an explanatory memorandum. A common, though often unstated, reality is that the
decisionmaker may call upon his or her subordinates for any part of the rulemaking record at any
time.328 No pattern appeared from the agency questionnaire responses, but the response indicates
that the agencies do not present the entire rulemaking record to a decisionmaker, except in rare
instances.

Time to Sign
The author’s experience suggests that the amount of information reviewed is inversely
proportional to the level at which the decision is made, i.e., the higher the decision is made in the
organizational pyramid, the more succinct the presentation; lower decisionmakers (often the
record creator in adjudications) review more information. Thus, some organizations that are
decentralized may present more information to an Assistant Secretary if that is the delegated
signatory than to the Secretary if the Secretary has not delegated signatory authority, but this is
not always the case. What is commonly called a “signature package” may include different
documents depending on not only the structure and delegations of the agency, but also the
preferences of the signatory.
All agencies probably use some system to track the movement of a signature package through
whatever structure an agency utilizes (e.g., an IQ system) that does not add substantive
information to the presentation; some IQ systems may track notations of agreement by
326

Id. at 12.

327

Id. at 12.

328

As DOJ pointed out:
The response to this question varies depending on the specific facts and circumstances of the informal
rulemaking proceeding at issue. The decisionmaker is provided any and all materials necessary to
support the decisionmaker’s informed, final decision. In some circumstances, the entire administrative
record may be provided at the outset, while in other circumstances, the decisionmaker may initially be
provided a portion of the record along with summary memorandum describing other portions that are
then provided as requested or as appropriate under the circumstances.

DOJ*R.

55

May 14, 2013

subordinate officials while other systems may not. The author is aware of both types, but not
aware of any animating distinction. Some “cover sheets” are highly detailed; others highly
summary.

Questionnaire responses from several multi-member regulatory commissions suggest that
more information is provided to the commission members, or is made available to
commissioners, than in most executive agencies. Information is typically available to these
decisionmakers through a document management / rulemaking record system (including the
public rulemaking docket).329 As the CFTC pointed out:
One of the benefits of a web-based [rulemaking] record is that, throughout the rulemaking,
our Commissioners and their legal assistants are able to access, read, and monitor the
rulemaking record. By the time of the vote, the complete [rulemaking] record is available to
them.330
The availability of the rulemaking record to the decisionmaker at any given moment thus may
depend on the sophistication and capabilities of the agency’s document management system.
3. Retiring the Rulemaking Record
The final agency decision is not the end of a rulemaking record’s life cycle. Even the “nonjudicial review” disposition of rulemaking records is important because agency, judicial, and
public interest in the record of administrative decision-making continue to exist. Appropriate
disposal of agency documents has historically not met these interests.331
Agency records managers prepare schedules proposing retention periods for records and
submit these schedules for NARA approval to control the accumulation of all agency records, not
just rulemaking records of final agency rulemaking discussed here. These schedules provide for
the timely transfer into the National Archives System of historically valuable records and
authorize eventual disposal of all other records after the agency no longer needs them to conduct
its business. Federal records may not be destroyed without the approval of the Archivist of the
United States. This approval is granted only after a thorough consideration of their administrative
use by the agency of origin, the rights of the Government and of private persons directly affected
by the Government’s activities, and whether or not such records have historical or other value.332
NARA guidance specifically suggests that a wide range of core agency documents –
including legal opinions, legislative proposals, and precedent decisions – should be maintained as
329

E.g., STB*R; ITC*R; FTC*R; CFTC*R; FERC*R. Some suggested slightly less, such as the FDIC,
whose staff submits written recommendations to the Board of Directors and makes presentations in person
at open meetings of the Board of Directors.
330

CFTC*R.

331

See Barack Obama, Memorandum for the Heads of Executive Departments and Agencies, Managing
Government Records, 76 Fed. Reg. 75,423 (Dec. 1, 2011); Memorandum for the Heads of Executive
Departments and Agencies and Independent Agencies, Managing Government Records Directive, 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 (Aug. 24, 2012), available at
http://www.whitehouse.gov/sites/default/files/omb/memoranda/2012/m-12-18.pdf (last visited Feb. 5,
2013).
332

See generally National Archives and Records Administration, Records Managers, available at
http://www.archives.gov/records-mgmt/laws/ (last visited Feb. 5, 2013).

56

May 14, 2013

permanent records.333 The records of consideration of promulgation of a regulation – as law –
would seem to deserve the same consideration. Many federal records disposition schedules
intimate that the permanent records should be transferred to NARA five years after the conclusion
of proceedings. The statute of limitation for direct review of most rulemakings, however, is six
years.334 The potential for the need to recall a previously transferred rulemaking record file from
NARA for certification to a court may be small but may adversely affect timely disposition of
litigation. Agencies may wish to consider a longer retention cycle for rulemaking records before
transfer to NARA.

IV. Judicial Review of Administrative Records
Judicial review of a final federal agency rules may be had in either the court of appeals or the
district court depending on jurisdictional and procedural issues. Review in the district court,
however, is much more like an appellate function because the “facts” normally tried are generally
established in the certified administrative record and largely focused through the motions practice
lens of summary judgment.335 A plaintiff in a district court or petitioner for review in a court of
appeals effectively seeks a judgment invalidating the agency’s final rule based on the certified

333

NARA, DISPOSITION OF FEDERAL RECORDS: A RECORDS MANAGEMENT HANDBOOK, DISPOSITION OF
FEDERAL RECORDS, 70 – 71, AND APPENDIX C. 161 – 167, available at http://www.archives.gov/recordsmgmt/pdf/dfr-2000.pdf (last visited Oct. 20, 2012). NARA advises that an agency is responsible for
assessing legal value of documents, and provides:
Examples of records with legal value include formal decisions and legal opinions; documents
containing evidence of actions in particular cases, such as claims papers and legal dockets; and
documents involving legal agreements, such as leases, titles, and contracts. They also include records
relating to criminal investigations, workers' compensation, exposure to hazardous material, and the
issuance of licenses and permits. Still other examples include records relating to loans, subsidies, and
grants; entitlement programs such as food stamps and social security; and survivor benefits in
Government pension and other programs.
Id. at 71. The guidance does not reference records relating to the promulgation of legislative rules.
334

28 U.S.C. § 2401(a).

335

Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (“[W]hen a party seeks
review of agency action under the APA, the district judge sits as an appellate tribunal. The entire ease on
review is a question of law.”). One anomaly deserves attention: The summary judgment rule, FED. R. CIV.
P. 56, serves as the common mechanism for deciding, as a matter of law, whether the agency action is
supported by the administrative record and otherwise consistent with the APA standard of review. D.C.
CIR. RULE 7(m) (motions). The certified administrative record normally establishes the “material facts”
insofar as a party seeks a determination that a rule is in violation of law under any APA standard; “[t]he
entire case is a question of law” and the “complaint, properly read, actually presents no factual allegations,
but rather only arguments about the legal conclusion[s] to be drawn about the agency action.” Marshall
Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993). Some judges have pointed out
the anomaly of styling a motion for “summary judgment” when the pleadings more accurately seek the
court’s review of an administrative decision and the proper denomination is a “motion for judgment on the
record” because “the function of the district court is to determine whether or not as a matter of law the
evidence in the administrative record permitted the agency to make the decision it did.” University
Medical Center, Inc. v. Sebelius, 856 F. Supp. 2d 66, 76 (D.D.C. 2012) (Judge Bates) (citing Occidental
Eng’g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985)). The rules of the United States Court of Federal
Claims make this much clearer. See RCFC 52.1(c).

57

May 14, 2013

administrative record.336 The courts limit the review “to the record actually before the agency . . .
to guard against courts using new evidence to ‘convert the ‘arbitrary and capricious’ standard into
effectively de novo review.’”337
The process of certification, how the administrative record for judicial review is actually
handled, the judicial presumption of the administrative record’s regularity with challenges to that
presumption, and the application of remedies in “record” cases pose significant issues for
agencies, litigants and the courts. Many of the issues discussed here reflect the adaptation of the
existing rules of procedure to the rapidly changing electronic environments of agency and court
practice.
A. Certification of the Administrative Record for Judicial Review
1. Preparation of the Administrative Record for Judicial Review
Whether historically in paper form or contemporaneously in electronic form, certification of
the administrative record for judicial review has necessarily included a judgment on the
organization of the record for filing, conforming an index to that organization, the ministerial step
of sequentially paginating the documents for simplified citation, and conforming the index to that
pagination.338 These functions are common but not universal and local requirements and
negotiated stipulations may alter the common preparation. Documents are routinely filed with the
court in portable document format (.pdf) through the court systems electronic case management
and filing system. Courts not infrequently accommodate filing of large administrative records on
separate media.339

336

The certified administrative record serves functions that go beyond the presentation of evidence
considered by the agency. The D.C. Circuit has specifically pointed to the certified administrative record
as a facial basis for structuring whether a petitioner or appellant has constitutional standing to challenge the
agency action. D.C. CIR. R. 28(A)(7). See Ams. for Safe Access v. Drug Enforcement Admin., No. 111265, 2013 U.S. App. LEXIS 1407 (D.C. Cir., Jan. 22, 2013).
337

Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009) (quoting Murakami v.
United States, 46 Fed. Cl. 731, 735 (2000)).
338

The historical “Bates stamp” applied to paginate paper records has a similar function in portable
document format (.pdf). The now universal case management / electronic case filing system (CM/ECF)
utilized by the United States courts requires filing of documents in .pdf format. Size limitations on
document size may vary. See, e.g., CM/ECF-DC V5.1.1 (10mb maximum merge document size). The
concept of certification was introduced to the Administrative Conference of the United States in its project
on Legal Considerations in e-Rulemaking. See Administrative Conference of the United States, Legal
Considerations in e-Rulemaking, http://www.acus.gov/research-projects/legal-considerations-e-rulemaking
(last visited Mar. 26, 2012).
339

See, e.g., Defenders of Wildlife v. Bureau of Ocean Energy Mgmt., Regulation, & Enforcement, 871 F.
Supp. 2d 1312, 1315 n.1 (S.D. Ala. 2012) (“The summary judgment briefing is accompanied by an
administrative record spanning more than 10,000 pages. That administrative record was not electronically
filed, but was instead conventionally filed in the form of a DVD, which also included an index in an Excel
spreadsheet containing hyperlinks to specific documents and segments of the record.”); Chamber of
Commerce v. NLRB, No. 1”11-cv-2262, Doc. 28 (D. D.C. filed Feb. 28, 2012) (notice of filing by agency
counsel; no separate certification; “notice of the filing in electronic copy on DVD-ROM of the certified
rulemaking record concerning the promulgation of the Final Rule at issue in the above-captioned matter.
The Board’s certification of the rulemaking record and an index of the rulemaking record are included in
the electronic copy on the DVD-ROM of the Administrative Record.”); Grunewald v. Jarvis, No. 1:12-cv1738, Doc. 11 (D. D.C. filed Nov. 30, 2012) (counsel for the United States notice of filing: Department of
the Interior, National Park Service record; “… due to the volume of documents comprising the

58

May 14, 2013

Administrative records may be organized chronologically, or by subject, or a combination of
both, such as by subject with a chronological sub-organization. The critical point is that the
purpose of organizing an administrative record is to ease access to the material by individuals
who are not familiar with the substance or content of that administrative record.340
Certification of an administrative record to a court by an executive agency represented by
DOJ may involve significant communication between the agency and DOJ regarding the contours
of the administrative record that it possesses and the requirements of a court’s local rules and
scheduling order341 or standing order, as many agencies acknowledge.342 Agencies with
independent litigating authority (particularly independent agencies) are likely to file a certified
administrative record through their individual General Counsel Offices, which may create a wider
variety of practice in the preparation of administrative records for judicial review.343
The Federal Rules of Appellate Procedure provide that certified administrative records in
review of certain final agency action may be amended by stipulation or the court may order a
supplemental record.344 Amendment of a certified administrative record, however, poses a
conceptual problem: once an agency official has certified to the best of his or her knowledge that
the certified administrative record filed is the administrative record considered, other than to
correct errors, a second such filing calls into question the validity of the first certification. The
agencies and the courts do not appear to be troubled by this theoretical or conceptual problem, but
administrative record, and pursuant to LCvR 5.4(c), Federal Defendant is, …, manually lodging with this
Court a certified copy of the Administrative Record for the captioned case on DVD. The certification of …
is attached to this Notice as Exhibit 1. A PDF file of the record index is attached to this Notice as Exhibit
2. An additional index of documents excluded from the administrative record under privilege is attached as
Exhibit 3. In addition, a copy of the DVD, which includes the record index, has on this date been
transmitted to counsel for Plaintiffs by next business day delivery.”).
340

Numerous courts have been critical of certified administrative record organization and this criticism is
not confined to rulemaking records. E.g., Mercy Catholic Med. Ctr. v. Thompson, 380 F.3d 142, 158 (3d
Cir. 2004) (“We recognize the able District Court was presented with a confusing administrative record.”);
Doe v. Rumsfeld, 341 F. Supp. 2d 1, 13 (D.D.C. 2004) (“Let me just say at the outset that the
administrative record in this case is one of the most confusing, jumbled records this Court has ever seen.
Indeed, the only thing that is clear is that confusion abounds.”); Nat. Res. Def. Council v. SEC, 606 F.2d
1031, 1052 (D.C. Cir. 1979); Sierra Club v. Costle, 657 F.2d 298, 410 & n.540 (D.C. Cir. 1981) (“We
reach our decision after interminable record searching (and considerable soul searching). We have read the
record with as hard a look as mortal judges can probably give its thousands of pages.”). See also
McDonnell Douglas Corp. v. Widnall, 57 F.3d 1162, 1167 (D.C. Cir. 1995) (“Given the confusing
administrative record – perhaps caused by the intersection of the FOIA actions and the contract
announcements – and the interrelationship between the two legal questions, we think the preferable course
is to remand so that we can have one considered and complete statement of the Air Force's position on
McDonnell Douglas’ claim.”).
341

FED. R. CIV. P. 16(b).

342

E.g., EPA*R; IRS*R; DOT*R; DHS*R; VA*R.

343

Whether an agency has independent litigating authority and its attorneys file the certified administrative
record directly may naturally create wider variance within the certification process because of the more
diverse practices of agencies without the nominal oversight (and repetitive filings) by DOJ. Whether this
diversity of litigating authority creates a burden on the courts or other issues is beyond the scope of this
study.
344

FED. R. APP. P. 16(b). Although the rules technically apply to review of specific agency orders, 28
U.S.C. § 2112, the process is adaptable to petitions for review of rulemaking.

59

May 14, 2013

it raises questions regarding the presumption of regularity and may foster disagreements over
supplementation. Careful agency planning can avoid converting this theoretical or potential
problem into a litigation issue.
Moreover, agencies and litigants utilize a combination of rules to provide the court with the
most convenient form of the administrative record for review.
2. The Certifying Official
Certification of the administrative record requires the certifying official to submit to the court
an affidavit of completeness and correctness, and this function may be performed by a variety of
individuals at a variety of levels. The certification affidavit may, depending on policy and court,
include a description of the limitations on documents placed in the record.345 Certification is
largely a ministerial function. The key to certification is that the certifying individual can swear
to the compilation, completeness and correctness of the administrative record being certified,
which may rely on the performance of subordinate officials.346
In some instances, appointees that manage the substantive program make the certification,
while in other agencies career officials, such as the records management officer or the designated
record custodian, perform certification. EPA, for example, assigns certification authority
organizationally, recommending that the record be certified by the highest-level career manager
with oversight responsibility for the action for which the record is developed.347 STB, on the
other hand, delegates certification of the administrative record to their records management

345

See, e.g., Blue Ocean Inst. v. Gutierrez, 503 F. Supp. 2d 366, 372 n.4 (D.D.C. 2007) (certified record
eschews internal documents).
346

DOJ*R; The certification itself may clarify the content of the administrative record being certified. A
recent SEC certification provided that, “[p]ursuant to Section 25(a)(2) of the Securities Exchange Act and
Rule 17(b) of the Federal Rules of Appellate Procedure, the Securities and Exchange Commission
(“Commission”) certifies that the record listed below includes all information considered by the
Commission in formulating its Final Rule, Conflict Minerals, Release No. 34-67716 (Aug. 22, 2012),
published at 77 Fed. Reg. 56,274 (Sept. 12, 2012), with the exception of materials readily available such as
books, treatises, statutes, rules, cases, orders, Commission releases, no-action letters, and certain historical
materials.” Nat’l Ass’n of Mfr.s v. SEC, D.C. Cir. No. 12-1422, Doc. No. 1408603 (Filed Dec. 6, 2012).
Multiple certifications might be needed in joint agency actions. E.g., Nat. Mining Assoc. v. Jackson, No.
1:10-cv-1220, Doc. 54 (D.D.C. filed Apr. 1, 2011) (counsel for the United States notice of filing multiple
administrative records); Doc. 54-1 (EPA certification of index; “the documents identified in the attached
index constitute the administrative record that the [EPA] and the U.S. Army Corps of Engineers considered
when they issued the ‘EPA/Corps of Engineers Enhanced Coordination Process for Pending Clean Water
Act Permits Involving Appalachian Surface Coal Mining.’”); 54-3 (EPA certification of index; “the
documents identified in the attached index constitute the administrative record that the [EPA] considered in
connection with the application of the Multi-criteria Integrated Resource Assessment tool to its analysis of
applications for … permits … associated with seventy-nine surface coal mining projects identified in a …
letter …”).
347

EPA*R; EPAADP, supra note 111, at 12. See also DHS*R (FEMA Division Head with responsibility
for the program); DOT*R (dual certification by function: “In addition to the certificate of authenticity
provided by the U.S. DOT’s public docket office, the agency official in the office of primary interest
assigned to compile the record will also certify it.”); NOAA*R (headquarters office certifications are
signed at the office “Director” level; regional offices by the “Regional Administrator” generally). In all of
the agencies responding, the certifying officer is a career appointee.

60

May 14, 2013

officer.348 Some agencies ensure certification of an administrative record at a higher level, such
as by the agency’s official record keeper for all purposes (e.g., Executive Secretary).349
At the staff level, regulatory program directors also certify administrative records. 350 This
process may contribute to consistency and institutional understanding if the agency must certify
multiple administrative records over time. Attorney certification, practiced by some agencies,
may improve agency review of the administrative record because the responsible attorney is also
an officer of the court and may understand more clearly the responsibility of certification.351
Attorney certification, however, poses some risks that conflict of interest issues may arise if the
scope of the certified administrative record is challenged.352
The variance in designation of the certifying official is not as significant as it might appear –
for all but one agency respondent to the questionnaire; the certifying official appears to be a
career appointee with either functional or organizational oversight of the development and
compilation of the administrative record.353 Some combination of program, management, and
legal participants in the regulatory process should naturally be consulted in the development and
compilation of the administrative record and, given requisite knowledge or supervisory
responsibility, variance within that team of who actually certifies does not appear to pose
significantly problems. Potential attorney conflicts of interest present a notable exception.
B. Filing and Transmittal Rules and Practices of the Courts.
The transfer of an administrative record from the agency to a court in litigation depends, in
large part, on the rules and practices of the court. The processes in the courts of appeals and
district courts do not differ as much in judicial review of final agency action as the processes
differ in routine litigation because both are acting in an appellate function. Manner of filing must
serve two goals: (1) convenience of the court and the parties and (2) public availability. Notably,
the courts’ electronic filing system accommodates portable document format (.pdf) files, while
Regulations.gov and other government electronic docket management systems may be able to
accommodate varied original – or “native” – file formats.
1. District Local Rules and Practice
Plaintiffs not infrequently seek pre-enforcement judicial review of final rules in the United
States District Courts, but few district courts hear significant numbers of such cases or have
promulgated local rules to manage such cases. The United States District Court for the District of
Columbia, where many such cases are filed, exempts administrative records from electronic
filing, both generically354 and particularly in relation to portions that are difficult to reduce to an
348

STB*R.

349

FDIC*R; ITC*R; CFTC*R; FTC*R; FERC*R; MSPB*R.

350

VA*R (Director for Office of Regulation Policy and Management, in coordination with responsible
staff attorney); OSHA*R (Deputy Director of OSHA Technical Data Center); MSHA*R (Director of the
Office of Standards, Regulations, and Variances); WHD*R (Director, Division of Regulations, Legislation,
and Interpretation).
351

IRS*R; PTO*R.

352

See U.S. ATTY. BULL. supra note 153.

353

The Department of Labor, Employment and Training Administration, notes records are certified by its
Assistant Secretary, a political appointee. ETA*R.
354

D. D.C. LCVR 5.4(e)(1): “(A) exceed 500 pages (including administrative records and records of state
court proceedings); or (B) are not in a format that readily permits electronic filing, such as large maps,

61

May 14, 2013

EM/ECF image for filing.355 For the most part, however, other district court rules and practices
are silent on filing of a certified administrative record. Perhaps this is for the same reason that
many agencies have not developed guidance on the compilation of administrative records – lack
of need.356
Most independent agencies may certify records in a traditional manner,357 but at least two
agencies have undertaken unique certification and filing systems that deserve note. The CFTC
innovatively advocated for an internet-based administrative record by moving the United States
District Court to permit it to designate the record held and organized on the CFTC website, with
electronic links, as the certified administrative record.358 A second attempt to certify the index of
its online administrative record was not successful.359 The district court declined and required the
CFTC to file the full record, noting:
charts, video tapes, and similar materials; or (C) are illegible when scanned into electronic format; or (D)
are filed under seal, may be filed in paper form.” (emphasis added). A Notice of Filing accompanies large
documents which are filed in paper format. D. D.C. LCVR 5.4. The court routinely advises on EM/ECF
limitations: individual .pdf files should not exceed 10MB in size (approximately 60 – 70 pages per scanned
document scanned at 250-300 dpi (dots per inch)), which leads to separating records into parts as separate
documents.
355

D. D.C. LCVR 5.4(e)(1)(B), (C). The concept of a joint appendix is also utilized in the district court.
E.g., Nat’l Restaurant Assoc. v. Solis, No. 1:11-cv-1116, Doc. 29 (D.D.C. filed Jan. 20, 2012) (Department
of Labor index of joint appendix; “Pursuant to LCvR 7(n), Plaintiffs, in conjunction with Defendants,
hereby submit to the Court the following Joint Appendix of ‘those portions of the administrative record that
are cited or otherwise relied upon in any memorandum in support of or in opposition to’ Defendants’
Motion … and/or Plaintiffs’ Cross-Motion ….”).
356

Exceptions, however, can be found. The local rules of the United States District Court for the Northern
District of California provide:
In actions for District Court review on an administrative record, the defendant must serve and file an
answer, together with a certified copy of the transcript of the administrative record, within 90 days of
receipt of service of the summons and complaint. Within 28 days of receipt of defendant’s answer,
plaintiff must file a motion for summary judgment pursuant to Civil L.R. 7-2 and Fed. R. Civ. P. 56.
Defendant must serve and file any opposition or counter-motion within 28 days of service of plaintiff’s
motion. Plaintiff may serve and file a reply within 14 days after service of defendant’s opposition or
counter-motion. Unless the Court orders otherwise, upon the conclusion of this briefing schedule, the
matter will be deemed submitted for decision by the District Court without oral argument.
N.D. Cal. Civil L.R. 16-5.
357

E.g., FERC*R (record compiled from eLibrary docket sheets, certified by the Secretary of the
Commission, and sent to the court).
358

Consent Motion Leave to File Index of Rulemaking Record in Lieu of the Record Itself , No. 11-cv02146 (RLW), Dk. No. 28 (D.D.C. Feb. 29, 2012); Minute Order Granting Consent Motion, No. 11-cv02146 (RLW) (D.D.C. Mar. 1, 2012). For convenience, the website referred by the CFTC is: CFTC, Index
of Record for the Rule Regarding Position Limits for Futures and Swaps, available at:
http://www.cftc.gov/LawRegulation/RulemakingRecords/rmf_111811 (last visited Mar. 10, 2013). See
also Int’l Swaps & Derivatives Ass’n. v. CFTC, 2012 U.S. Dist. LEXIS 139788 (D.D.C. Sept. 28, 2012).
359

In Investment Co. Institute v. Commodity Futures Trading Commission, No. 1-12-cv-00612, the CFTC
filed a consent motion to “file a Certified Index of the CFTC’s rulemaking record in lieu of the record
itself” noting that “In addition, an advantage of this approach is that there is a public, web-based version of
the CFTC’s full administrative record, not just the certified list, that is available to both the parties and to
this Court, with descriptions of documents and hyperlinks to each document.” The CFTC also argued that
this procedure was being utilized in Int’l Swaps & Derivatives Ass’n. v. CFTC, No. 11-cv-2146 (RLW),

62

May 14, 2013

Since the web-based version of the CFTC's full administrative record resides on the CFTC
website and is subject to modification or change without the knowledge or consent of the
parties or the Court, the Court orders the CFTC to file the Administrative Record in full on
ECF to ensure the integrity of the Administrative Record.360
The CFTC points out that the website record must be “locked down” and cannot change without
notice to, and perhaps approval of, the court.361 The CFTC submitted that an important advantage
of this approach is that it uses hyperlinks to actual record documents and is seamless.362
In both cases, counsel for the plaintiffs consented to the motion and the certified
administrative record was not extensive.363 Neither case, moreover, focused on the content of the
administrative record or whether the CFTC considered the relevant evidence or premised its
decision on sufficient evidence. While this innovative approach may be replicable, it requires
careful scrutiny. One note of caution is appropriate: the CFTC developed this system on a
relatively small scale, and while the capability may be scalable, the government-wide FDMS and
Regulations.gov, however, do not yet have this capability and the program office has indicated
that this capability is not in its current planning.364 The FTC has noted a similar process of
certifying a complete index to the documents contained on its rulemaking docket on its
website.365
2. Court of Appeals Rules and Practices
Generally, the process of filing of a certified administrative record may be managed under
Federal Rules of Appellate Procedure Rules 16 and 17, or Rule 30.366 Rule 16 reiterates the
2012 U.S. Dist. LEXIS 139788. Consent Motion for Leave to File Index of Rulemaking Record in Lieu of
Record Itself,
No. 1-12-cv-00612, Dk. No. 14 (D.D.C.
June 18, 2012).
See
http://www.cftc.gov/LawRegulation/RulemakingRecords/CPOCTARecords/index.htm (Index of Record
for the Rule Regarding Commodity Pool Operators and Commodity Trading Advisors: Amendments to
Compliance Obligations). See also Inv. Co. Inst. v. Commodity Futures Trading Comm’n, 2012 U.S. Dist.
LEXIS 175941 (Dec. 12, 2012).
360

Minute Order, No. 1-12-cv-00612 (D.D.C. June 19, 2012). The CFTC filed the full certified
administrative record. Notice of Filing of Administrative Record, No. 1-12-cv-00612, Dk. No. 30 (D.D.C.
July 20, 2012).
361

CFTC*R.

362

CFTC*R.

363

While the CFTC may have believed that the administrative record under consideration were large, both
are comparatively small. Some certified administrative records can run multiple hundreds of thousands of
pages. In both of these cases, it would appear that the administrative records, reduced to nominal page
formats, would only be a few thousand pages in length. Courts rarely note the volume. Courts rarely note
the volume. See, e.g., Coal. for a Sustainable 520 v. U.S. Dep’t of Transp., 881 F. Supp. 2d 1243, 1247 n. 1
(W.D. Wash. 2012) (NEPA challenge, record provided on portable hard drive; paper copy of the index
comprises 4,153 pages; four key documents provided in 14 file boxes of binders; final EIS totaled 34 3inch binders of 500 to nearly 800 pages each).
364

Schultz Interview, supra note 43.

365

FTC*R. The FTC refers to its Telemarketing Sales Rule, 68 Fed. Reg. 4,580 (Jan. 29, 2003).

366

28 U.S.C. § 2112 specifically governs judicial review of agency orders and delegates, specifically,
authority for the courts to adopt rules of practice and procedure under 28 U.S.C. § 2072. Rules 16 and 17
were derived under this authority and thus speak to agency orders. Exceptions, such as FED. R. APP. P. 15
(governing orders of the National Labor Relations Board), do not materially affect the general rule.

63

May 14, 2013

general notion that a record contains the decision to be reviewed, any findings or report on which
it is based, and the pleadings, evidence, and other parts of the proceedings before the agency. 367
Rule 17 manages the filing of a “certified copy of the entire record or parts designated by the
parties”368 or “a certified list adequately describing all documents, transcripts of testimony,
exhibits, and other material constituting the record, or describing those parts designated by the
parties.”369 The agency is required to file that record with the clerk within 40 days after service
with a petition for review.370 Rule 30, on the other hand, provides for the parties to file a joint
appendix of those portions of the record cited by the parties.371 Both of these approaches are
adaptable to the review of a certified administrative record of a rulemaking, although the former
was historically geared toward review of agency adjudications and the latter is generally geared
toward review of decisions of the district court.
The Courts of Appeals have taken somewhat different approaches to filling in the gaps of
filing in local rules and these approaches guide the actual use of certified administrative records
in litigation. For example, the District of Columbia Circuit, where a preponderance of petitions
for review of rulemakings are filed, requires agencies to transmit a certified list of the contents of
the administrative record within 40 days of service of the petition for review and no other portion
of the record unless the court so requests.372 In most cases transmission of the actual record will
367

FED. R. APP. P. 16(a).

368

FED. R. APP. P. 17(b)(1)(A). See 5 U.S.C. § 706.

369

FED. R. APP. P. 17(b)(1)(B), (2). The advisory committee notes on the original adoption in 1967 reflect
the point of the diversity of issues presented and the limited or no role played by an administrative record,
permitting parties to stipulate that neither the record nor a certified list of its contents be filed. The 1998
revisions go further to reflect that less the whole record may be filed when the parties disagree on which
parts are relevant, in which case the agency must file all parts listed by all parties. See, e.g., Nat’l Ass’n of
Mfr.s v. SEC, No. 12-1422, Doc. No. 1408603 (D.C. Cir. filed Dec. 6, 2012) (“Certificate Listing and
Describing the Record before the Securities and Exchange Commission; “Pursuant to Section 25(a)(2) of
the Securities Exchange Act and Rule 17(b) of the Federal Rules of Appellate Procedure, the [SEC]
certifies that the record listed below includes all information considered by the [SEC] in formulating its
Final Rule, Conflict Minerals, Release No. 34-67716 (August 22, 2012), published at 77 Fed. Reg. 56,274
(September 12, 2012), with the exception of materials readily available such as books, treatises, statutes,
rules, cases, orders, Commission releases, no-action letters, and certain historical materials.”).
370

FED. R. APP. P. 17(a). The rule recognizes the fait accompli of statutes that may change this
requirement, but these are few and the time frame itself is an issue only in limited circumstances. See infra,
Section IV.G.1 (stays).
371

FED. R. APP. P. 30(b) encourages the parties to agree on the contents of the joint appendix but imposes
designation requirements on an appellant within 14 days after filing of the record.
372

D.C. CIR. R. 17. This limitation initially simplifies the process for all parties and the court. The D.C.
Circuit handbook provides a rationale, albeit outmoded:
Because of a lack of storage space, the record before the administrative agency is not transmitted to
this Court at the time of docketing; only a certified index to the record is submitted by the agency.
Any party to the proceeding may, by motion, subsequently request that part or all of the record be
transmitted to the Court, or the Court on its own may require transmission of the record. It is the duty
of the agency to maintain the record so that it can be transmitted to the Court with a minimum of delay.
United States Court of Appeals for the District of Columbia Circuit, HANDBOOK OF PRACTICE AND
INTERNAL PROCEDURES (As amended through Dec. 1, 2011) at 22 – 23. The handbook, however, is also
inconsistent with the Appellate Rules and the Local Rule by providing that agency submits the certified
index to the record within 45 days of the filing of the petition for review or application for enforcement.”
Id. The Fifth Circuit requires any agency failing to file the record within 40 days, must request an

64

May 14, 2013

be unnecessary because the parties must file an appendix to their prime or opening brief
containing those documents necessary for the court’s review. Notably, however, the agency must
still serve the other parties with the full record.373 The D. C. Circuit has also utilized a deferred
appendix.374
The Federal Circuit requires the agency to retain the record and file a certified list or index
unless the court orders otherwise.375 The Federal Circuit recognizes also the commercially
delicate information that is filed with agencies such as the Patent Office or the Court of Federal
Claims and, by rule, continues protective orders previously entered as well as provides for motion
practice to manage protective orders.376
The Tenth Circuit permits either a complete record filing or a two-stage process of filing a
certified list and later filing the complete record within 21 days of the agency filing a responsive
brief.377 The Ninth Circuit has the most complex local rules and standing orders, but is silent on
filing the certified administrative record – rather, the Ninth Circuit local rules provide highly
specific direction on the excerpts from the record to be filed with opening briefs.378
3. Adaptation and Amendment
The rules of procedure have been adapted from adjudications (agency and district court) to
meet the needs of review of agency rules, just as the rules have begun to adapt to electronic filing.
extension of time and provide specific reasons justifying the delay and that the court clerk may grant an
extension for no more than 30 days. After an extension expires, the court may order production of the
record. 5TH CIR. R. 17. This should rarely be a problem unless the agency compiles the record only after
service and the record is voluminous.
373

Service of a complete record would necessarily include service of material that has been incorporated
by reference into the text of regulations, which may require the agency to purchase sufficient copies to
serve all parties. See generally Administrative Conference Recommendation 2011-5, Incorporation by
Reference, supra note 299 and accompanying text. Filing of a standard poses a different problem in that
filing of material on the public rulemaking docket amounts to republication that may violate the copyright
holder’s statutory rights to license use, which agencies have recognized. See supra Section III.E.1 and
accompanying text. Reference and bibliography of generally available works in the preambular
explanation of a rule poses substantially less difficult issues.
374

See, e.g., Nat’l Ass’n of Mfr.s v. SEC, No. 12-1422, D.C. Cir. No. 12-1422, Doc. No. 1406287 (D.C.
Cir. filed Nov. 21, 2012) (“Pursuant to Fed. R. App. P. 30(c), this Court's Local Rule 30(c), and the Clerk's
Order of October 22, 2012, Petitioners … state that they have agreed with the [SEC] to utilize a deferred
joint appendix. As explained in Petitioners’ Consent Motion to Expedite, Petitioners have proposed, with
Respondent's consent, that the joint appendix will be filed on Mar. 27, 2013, two days after the filing of
Petitioners' Reply Brief.”), Doc. No. 1427358 (joint appendix, filed Mar. 26, 2013).
375

FED. CIR. R. 17(A). The Federal Circuit, with its patent docket, requires the Director of the Patent
Office to file the certified list and a copy of the decision or order under appeal no later than 40 days after
receiving the notice of appeal, and the court deems this to comply with the requirements of 35 U.S.C. § 143
and 15 U.S.C. § 1071(a)(3) for sending a certified record to the court. FED. CIRC. R. 17(B)(1).
376

FED. CIR. R. 11 (d)–(g).

377

10TH CIR. R. 17.1. The Tenth Circuit also requires that if a hard copy of the record is filed, it must be
assembled as required by Tenth Circuit Rule 11.3 and electronic copies forwarded under Tenth Circuit
Rule 11.4 unless other arrangements are made with the clerk of court. 10th Cir. R. 17.2. See also United
States Court of Appeals for the Tenth Circuit, PRACTITIONER’S GUIDE TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT, at 32 (emphasis added).
378

9TH CIR. R. 17-1.1 – 17-1.9.

65

May 14, 2013

This is not surprising, as several courts admit, because the courts found themselves overwhelmed
with paper filing that had little to do with the substance of the cases under review. Like the
courts’ divorce from “legal length” paper thirty years ago, efficiency has some immediate
benefits in cost reduction – in this case, the non-judicial function of electronic warehousing.
The Judicial Conference Standing Committee on Rules of Practice and Procedure has begun
considering the effects of its Case Management/Electronic Case Filing (CM/ECF) operations on
the rules of practice and procedure.379 The Standing Committee may wish to consider whether
the number of cases challenging regulations, and the more complex and voluminous regulatory
certified administrative records, warrant some adjustment in the rules of procedure to formally
ensure early service of a complete certified administrative record on the parties and a designation
process that will avoid burdening the courts. Consideration may be particularly apt with the
universal availability of Electronic Management / Electronic Case Filing (EM/ECF).
C. Presumption of Regularity and Piercing the Record
The courts routinely “presume” the regularity of a record and that is the embarkation point for
review. An agency enjoys a presumption that it properly designated the administrative record
absent clear evidence to the contrary, but the agency does not unilaterally determine what
constitutes the administrative record.380 This presumption has been more broadly established by
the Supreme Court: “[i]n the absence of clear evidence to the contrary, courts presume that
[public officers] have properly discharged their official duties.”381
To rebut the presumption of regularity in the agency’s administrative record, even at the most
fundamental level of innocent negligence, a party seeking to supplement the record must, for
example, “put forth concrete evidence that the documents it seeks to ‘add’ to the record were
actually before the decisionmakers.”382 Conclusory statements will not suffice; rather, the
plaintiff “must identify reasonable, non-speculative grounds for its belief that the documents were
considered by the agency and not included in the record.”383 As discussed below, cases in which
a party rebuts the presumption and the certified administrative record is pierced are limited.
379

See, e.g., Report of the Judicial Conference Committee on Rules of Practice and Procedure, Agenda E19,
Rules
at
2
(March
2012),
available
at
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/ST03-2012.pdf (last visited Feb. 10,
2013); Memorandum from Judge Jeffrey S. Sutton, Chair, Advisory Comm. on Appellate Rules, to Judge
Mark R. Kravitz, Chair, Standing Comm. on Rules of Practice & Procedure, Report of Advisory
Committee on Appellate Rules1, 5, 32(16) – 34(18) (Dec. 7, 2011), available at
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/AP12-2011.pdf. (last visited Feb. 10,
2013).
380

Bar MK Ranches, 994 F.2d at 739-40 (stating that the administrative record enjoys the same
presumption of regularity afforded to other established administrative procedures); San Luis Obispo
Mothers for Peace v. Nuclear Regulatory Comm’n, 751 F.2d 1287, 1324 (D.C. Cir. 1984) (noting that “[i]n
discharging their obligation to monitor agency action, courts review a record compiled by the agency”).
381

United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting United States v. Chemical Found., 272
U.S. 1, 14-15 (1926)); Withrow v. Larkin, 421 U.S. 35, 55 (1975) (citing United States v. Morgan, 313
U.S. 409, 421 (1941)); accord United States Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001).
382

E.g., Marcum v. Salazar, 751 F. Supp. 2d 74, 78 (D.D.C. 2010) (denying motions to complete and
supplement certified administrative record).
383

Id. (quoting Pac. Shores Subdivision Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1,
6 (D.D.C. 2006)) (internal quotation marks and emphasis omitted). “If an agency did not include materials
that were part of its record, whether by design or accident, then supplementation is appropriate.”

66

May 14, 2013

D. Introduction of Additional Material into an Administrative Record for Judicial
Review
Against the presumption that the agency has properly designated the certified administrative
record, litigants may seek to introduce additional material into the court’s review of the agency
rule. For example, a litigant might justify its argument for inclusion of supplemental materials
based on the standard of review, such as by arguing that the agency decision is not rational given
all of the evidence given that the agency failed to consider relevant evidence. Supplementation of
the record designated by the agency is a highly limited. Introduction of new material into an
administrative record for judicial review is generally divisible into two categories:
(1) Completion of the certified administrative record with material possessed and considered
by the agency but not included in the certified administrative record, and
(2) Supplementation of the certified administrative record with material that was not
considered by the agency.
Courts appear to apply somewhat variable standards for the “strong showing” Overton Park
indicates is needed to overcome the presumption of regularity,384 although decisions tend to focus
on a short list of common fact-specific instances:
(1) the agency (a) deliberately or negligently excluded documents that may have been adverse
to its decision, or (b) relied on documents not in the record,
(2) if background information was needed to determine (a) whether the agency considered all
the relevant factors, and (b) explained its decision;
(3) if the agency failed to (a) explain administrative action so as to frustrate judicial review,
or (b) explain technical terms or complex subjects; or
(4) plaintiffs or petitioners have shown bad faith or improper behavior on the part of the
agency.385

384

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).

385

For example, the United States Court of Appeals for the District of Columbia Circuit has formally
recognized factors (1)(a), (2)(a), and (3)(a). City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir.
2010) (citing American Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008)) (internal quotation
marks omitted) (citing James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996). See
also Medina Cty Env. Action Ass’n v. Surface Transp. Bd., 602 F.3d 687 (5th Cir. 2010) (following
American Wildlands). The Ninth Circuit has recognized “four narrowly construed circumstances” (1)(b),
(2)(a), (b), and (4). Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010). See
also Center for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir. 2006). The
Second Circuit recognizes a variation of factors (3)(a) and (4). See also Nat’l Audubon Soc’y v. Hoffman,
132 F.3d 7, 14 (2nd Cir. 1997) (strong showing in support of a claim of bad faith or improper behavior on
the part of the agency decisionmaker or where the absence of formal administrative findings makes such
investigation necessary in order to determine the reasons for the agency's choice).
An argument can be made for a much longer list of eight exceptions E.g., Fund for Animals v. Williams,
391 F. Supp. 2d 191, 197 – 98 (D.D.C. 2005) and Pac. Shores Subdivision v. U.S. Army Corps of Eng’rs,
448 F. Supp. 2d 1 (D.D.C. 2006), (citing Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989)). In Esch, the
court of appeals did not adopt the eight factors, but merely noted that they had been catalogued, citing Stark
& Wald, Setting No Records: The Failed Attempts to Limit the Record in Review of Administrative Action,
36 ADMIN. L. REV. 333, 345 (1984). Esch, 876 F.2d at 991 n.166. Extra record review is different from
extra record supplementation of the administrative record. For example, two of the eight categories are
pervasive to the judicial review of the administrative decision, not merely issues of piercing or

67

May 14, 2013

1. Completion: Existing Material Held by the Agency but Not Included
Rebutting the presumption of administrative regularity to “complete” the certified
administrative record, some courts have noted, requires that the prospective new materials were
before the agency decisionmaker: it is not enough to show that these materials existed somewhere
within the agency,386 because interpreting the word “before” so broadly as to encompass any
potentially relevant document existing within the agency files could render judicial review
meaningless.387 These conceptions of how specifically a record must be “before” the agency
decisionmaker may reflect the realities of many adjudications, but fail to reflect the realities of a
senior (often Cabinet) official responsible for executive management of massive government
programs retaining responsibility for the final decision on significant and major regulatory
activities. It is not enough to show that these materials were somewhere within the agency, 388
because “interpreting the word ‘before’ so broadly as to encompass any potentially relevant
document existing within the agency ... would render judicial review meaningless.”389
Materials “before” the agency must be “considered” in conjunction with the judicial
interpretation of “directly or indirectly” as that phrase has been appended to the concept of the
agency’s consideration. Courts of appeals and district courts seem to have modified the concept
supplementing the certified record: when agency action is not adequately explained in the record before
the court, and when the agency failed to consider factors which are relevant to its final decision. One factor
reaches the issue of completeness: when an agency considered evidence that it failed to include in the
record. Two factors reach discrete issues already stated as exceptions: when a case is so complex that a
court needs more evidence to enable it to understand the issues clearly, and in cases where evidence arising
after the agency action shows whether the decision was correct or not. Another factor is not an
administrative record issue at all because there is no final agency action upon which an administrative
record is based: cases where agencies are sued for a failure to take action. One factor is entirely subject
matter oriented and the subject of much result-oriented debate: cases arising under the National
Environmental Policy Act. See also Susannah T. French, Judicial Review of the Administrative Record in
NEPA Litigation, 81 CALIF. L. REV. 929 (1993) (arguing that courts should treat the record rule less
deferentially in NEPA cases). Part of this issue, as noted above, is driven by the consideration-driven
nature of NEPA decisions themselves. Finally, the last Esch factor deals with “mixed” cases – those where
the plaintiff seeks interim or non-APA relief in conjunction with APA relief: cases where relief is at issue,
especially at the preliminary injunction stage. Thus, the extended Esch factors do not add substance within
the context of certified administrative record review and the D.C. Circuit itself has thrice narrowed its
exceptions. See Dania Beach, American Wildlands, and James Madison Ltd, supra. Despite this rejection,
however, Esch continues to be cited in opinions in the D.C. Circuit. E.g., Hill Dermaceuticals, Inc. v. FDA,
709 F.3d 44 (D.C. Cir. 2013).
386

See Pac. Shores Subdivision Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 6
(D.D.C. 2006); see also New York v. Shalala, 1996 U.S. Dist. LEXIS 2261, 1996 WL 87240.
387

Fund for Animals v. Williams, 245 F. Supp. 2d 49, 57 n.7 (D.D.C. 2003), summary judgment granted,
in part, denied in part, 246 F. Supp. 2d 27 (D.D.C. 2003), vacated Fund for Animals, Inc. v. Hogan, 2005
U.S. App. LEXIS 23827 (D.C. Cir. Nov. 4, 2005).
388

See James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) (citing Overton Park v. Volpe,
401 U.S. 402, 419 (1971), and Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C. Cir. 1981)); Pers.
Watercraft Indus. Ass’n v. Dep’t of Commerce, 48 F.3d 540, 546 n. 4 (D.C. Cir. 1995) (noting with
approval that the “whole record” contained all materials “pertaining to the [challenged] regulation”).
Another court’s view was similarly restricted “to the administrative record as it existed at the time of the
agency’s decision.” Eugene Burger Mgmt. Corp. v. U.S. Dep’t. of Hous. & Urban Dev., 192 F.R.D. 1, 4
(D.D.C. 1999). See also Pac. Shores Subd. v. Army Corp of Eng’rs, 448 F. Supp. 2d 1, 5-6.
389

Fund for Animals v. Williams, supra.

68

May 14, 2013

of consideration to encompass indirect consideration, in part at least, in light of the reality that
agency heads act through subordinates and subordinate decisionmakers prior to the agency head
making a final decision.390 For regulatory purposes, the notion that the entire administrative
record must be physically present “before” the deciding official is simply impractical: Secretaries
of departments of the Executive Branch, to use the extreme example, work through information
summarized by subordinates.391
Completion of a certified administrative record against negligence may depend on the nature
of the document and the circumstances. A public comment, for example, that was in the
possession of the agency and held by the agency but not placed in the record because the
commenter failed to comply with a technical requirement in the request for comments, may be
added to the record.392 On the other hand, documents cited to the agency from parallel litigation
against the agency (and in the agency’s possession) over the same substance before a parallel
regional office within the agency may be considered by the court, even if not in the certified
administrative record.393 These cases represent two different remedies – completion and
supplementation, respectively – both requiring defense and judicial decision.
As noted above, completeness in a certified administrative record is subject to substantial
agency interpretation and the risk of incompleteness may rise with delayed compilation of an
administrative record. At the same time, completeness of a certified administrative record may be
better defended with a recitation of the means by which the administrative record was compiled
and certified.
2. Supplementation: Extra-Record Evidence Not Considered by the Agency
Evidence that was not held, and therefore not considered, by the agency poses a different type
of issue, particularly in the context of rulemaking because of the expansive nature of the facts and
policy issues that must be considered in implementing a legislative delegation. As a general
390

E.g., Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993) (“The complete administrative
record consists of all documents and materials directly or indirectly considered by the agency”, citing
district court cases); Thompson v. United States Dep't of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (stating
the administrative record includes all documents and materials directly or indirectly considered by agency
decisionmakers);
391

The practice of providing the decisionmaker with a final rule and some summary is prevalent. See
supra Section III.F.2.
392

Cape Cod Hosp. v. Sebelius, 630 F.3d 203, 211-12 (D.C. Cir. 2011) (consultant hand delivered
comment to the designated agency employee but failed to make the required advance call for security
purposes considered hypertechnical and the comment admitted to the record by the court: “[W]e have little
doubt that the CMS employee to whom the hospital consultant tendered his comment letter could have
refused to accept it based on the consultant’s failure to call the prescribed telephone number. But since the
CMS employee accepted the letter without objection, the agency may not now complain about the
consultant’s failure to call the number listed in the NPRM. The district court thus did not abuse its
discretion in supplementing the 2007 rulemaking record with the consultant’s letter.” The comment
(required to be submitted to maintain standing), the agency failed to consider it, and, therefore, the court
vacated the district court judgment, and remand with instructions to vacate challenged portions of the 2007
and 2008 rules and remand to the Secretary.).
393

See Am. Wild Horse Pres. Campaign v. Salazar, 859 F. Supp. 2d 33 (D.D.C. 2012) (order denying
motion to strike expert declarations and any reference to them in the plaintiffs' motion for summary
judgment; declarations had been filed in previous litigation on similar agency action; court could consider
on summary judgment). The effect of the ruling makes irrelevant whether the documents are technically
made part of the certified administrative record.

69

May 14, 2013

proposition, of course, courts should not consider evidence that the agency never had a chance to
review,394 particularly because the rulemaking process is open-ended and public participation is a
key element of the process, as contrasted with the more narrowly focused, party-oriented
adjudications. However, there are several potential justifications that might permit the court to
consider evidence that was not before the agency.
Technical or background information necessary for effective judicial review.
Occasionally, a court may need more information to determine whether the agency considered all
of the relevant factors and the record is complete.395 Sometimes, courts need additional
background information simply to understand the final rule and its administrative record.396
Courts have allowed agencies to submit declarations that “illuminate[]” or “explain” the
administrative record, as opposed to declarations that “advance new rationalizations for the
agency’s action.”397 Explanation is limited to the four corners of the decision – any new material
may not provide a new rationale for the decision;398 it must be limited to explaining the
background facts that “clarif[y]” the certified administrative record.399
If, on the other hand, an affidavit is needed to clarify “the decisionmakers’ action at the time
it occurred,”400 a more significant problem has been broached. If the agency’s decision is not
clear from the text of a regulation, its preamble, and its record – even if no new rational is
provided – then the court must consider whether fair notice has been given or whether there is a
rational or logical connection between the facts and the choices made. If new rationales are
394

Edwards v. United States Dep't of Justice, 43 F.3d 312, 314 (7th Cir. 1995).

395

The Ninth Circuit appears to take a somewhat liberal approach to this problem, noting that a court may
consider “substantive evidence going to the merits of the agency’s action where such evidence is necessary
as background to determine the sufficiency of the agency’s consideration.” Love v. Thomas, 858 F.2d
1347, 1356 (9th Cir. 1988). This may be because “it will often be impossible, especially when highly
technical matters are involved, for the court to determine whether the agency took into consideration all
relevant factors unless it looks outside the record to determine what matters the agency should have
considered but did not.” ASARCO, Inc. v. U.S. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980).
396

A highly technical rule may utilize language (and acronyms and initializations, for example) that is not
self-explanatory and never explained in the certified administrative record for the simple reason that those
writing the rule and those affected by the rule have no need to explain what for them is daily usage, but a
generalist judge or practitioner may be tempted to question that rule simply because of its technical
denseness. Briefs, like rules, can be dense. See Honeywell International v. EPA, D.C. Cir. Nos. 10-1347,
10-1348, 10-1349, 10-1350 (Jan. 22, 2013) (“We frown on excessive use of acronyms, but in a case
involving a 24-letter word, we think it appropriate to use HCFCs for hydrochlorofluorocarbons.”); Nat’l
Ass’n. of Regulatory Util. v. Dept. of Energy, 680 F. 3d 819, 820n.1 (D.C. Cir, 2012) (“We also remind the
parties that our Handbook of Practice and Internal Procedures states that ‘parties are strongly urged to limit
the use of acronyms’ and ‘should avoid using acronyms that are not widely known.’”).
397

Yale-New Haven Hosp. v. Leavitt, 470 F.3d 71, 82 (2d Cir. 2006).

398

See Envtl. Def. Fund v. Costle, 657 F.2d 275, 285 (D.C. Cir. 1981) (“The new material should be
merely explanatory of the original record and should contain no new rationalizations.”). See also Sierra
Club v. Marsh, 976 F.2d 763, 772-72 (1st Cir. 1992) (same); Sierra Club v. United States Army Corps of
Eng’rs, 771 F.2d 409, 413 (8th Cir. 1985) (“Any new materials submitted should . . . be merely explanatory
of the original record and should contain no new rationalizations for the agency’s deci-sion.”); Bunker Hill
Co. v. EPA, 572 F.2d 1286, 1292 (9th Cir. 1977) (finding that the “augmenting materials were merely
explanatory of the original record” and “[n]o new rationalization . . . was offered.”).
399

Bunker Hill, 572 F.2d at 1292.

400

Sierra Club v. Marsh, 976 F.2d 763, 772-73 (1st Cir. 1992) (citing cases).

70

May 14, 2013

included, they should be disregarded. “If the agency action, once explained by the proper agency
official, is not sustainable on the record itself, the proper judicial approach has been to vacate the
action and to remand ... to the agency for further consideration.”401 Ultimately, the decision
returns to whether the final rule is sustainable on the basis of the certified administrative record.
A decision may also rarely be accompanied by an administrative record that so inadequately
explains or supports the decision as to frustrate judicial review of the decision.402 Some courts
have taken the position that an administrative record “should be supplemented only if the existing
record is insufficient to permit meaningful review.”403 In each case, the agency runs the
significant risk that the rule will be vacated and remanded.
Information supporting predictive judgments. On occasion, perhaps with increasing
frequency as regulatory actions become more predictive,404 evidence may come into existence
after the agency acted that demonstrates that the agency’s actions were right or wrong. This
potential category of information probably does not reach the use of “post-decision information
as a new rationalization either for sustaining or attacking the Agency's decision,”405 particularly
when predictive judgments form part of the basis for the agency’s ultimate decision. Postdecision information that indicates whether the agency’s predictions were accurate might
therefore constitute a substantive exception to the limitation of the court’s consideration to the
administrative record.406 Additionally, a few cases suggest that the post-promulgation
enforcement history of a rule may supplement a certified administrative record of the rule to give
it meaning.407

401

Id. at 773, citing Costle, 657 F.2d at 285; accord Camp, 411 U.S. at 143; and Asarco, Inc., 616 F.2d at
1159.
402

Even rarer is a record obviously deficient and the agency recalcitrant. But see, e.g., Exxon Corp. v.
Dep’t of Energy, 91 F.R.D. 26 (N.D. Tex. 1981) (126-page record that was incomplete on its face).
403

Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009); see Levine v. United
States, 453 F.3d 1348, 1350 (Fed. Cir. 2006); Impresa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d 1324, 1338 (Fed. Cir. 2001). The Administrative Conference has recognized, however,
that the record on direct review by courts of appeals “can usually be supplemented, if necessary, by means
other than an evidentiary trial in a district court.” 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).
404

Courts are more deferential to predictive judgment based on agency expertise. Nat’l Tel. Coop. Ass’n
v. FCC, 563 F.3d 536, 541 (D.C. Cir. 2009) “[That review is narrow] is particularly true with regard to an
agency's predictive judgments about the likely economic effects of a rule.”).
405

Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir. 2006), citing
Ass’n of Pac. Fisheries v. EPA, 615 F.2d 794, 811-12 (9th Cir. 1980).
406

See Verizon Communications, Inc. v. FCC, 535 U.S. 467, 516 – 17 (2002) (decision notes postdecisional facts in analysis of effects on competition). See, e.g., American Mining Congress v. Thomas,
772 F.2d 617, 626 (10th Cir. 1985), citing Stark & Wall, Setting No Records: The Failed Attempts to Limit
the Record in Review of Administrative Action, 36 Ad. L. Rev. 333, 343-4 (1984), cataloguing that
evidence coming into existence after the agency acted demonstrates that the actions were right or wrong,
the court is forced as a practical matter to examine the material, whether or not motions to supplement the
record are granted. See also American Petroleum Institute v. EPA, 540 F.2d 1023, 1034 (10th Cir. 1976),
cert. denied, 430 U.S. 922, (1977).
407

E.g., Edison Electric Institute v. OSHA, 849 F.2d 611, 618 (D.C. Cir. 1988) (agency submission of
citations showing application).

71

May 14, 2013

Information demonstrating bad faith on the part of the decisionmaker. Finally, an
assertion of bad faith or impropriety may call into question the entirety of a proceeding. The
standard for disqualification of an administrative decisionmaker in rulemaking – not merely that
an official has taken a public position, expressed strong views, or holds an underlying philosophy,
but “an unalterably closed mind on matters critical to the disposition of the proceeding”408 –
differs substantially from the standard for recusal in adjudication. As the Attorney General’s
Manual originally pointed out:
The object of the rule making proceeding is the implementation or prescription of law or
policy for the future, rather than the evaluation of a respondent's past conduct. Typically, the
issues relate not to the evidentiary facts, as to which the veracity and demeanor of witnesses
would often be important, but rather to the policy-making conclusions to be drawn from the
facts.... Conversely, adjudication is concerned with the determination of past and present
rights and liabilities. Normally, there is involved a decision as to whether past conduct was
unlawful, so that the proceeding is characterized by an accusatory flavor and may result in
disciplinary action.409
Beyond the administrative record and on the cusp of supplementation the record by documents or
discovery by deposition or interrogatory – or testimony.410 “Bias,” like prejudgment, is
substantively different in rulemaking from “bias” in adjudication: the former are legislative in
nature, where some bias is given as a policy requisite, while the latter involves a much higher
standard of independence from bias.411
Courts may consider impropriety or supplementation as separate questions.
The first
question is whether the complainant or petitioner has provided a sufficient showing of
impropriety to warrant consideration of supplementation. As one jurist has pointed out in
collecting cases, “What constitutes a strong preliminary showing of bad faith or improper
behavior, however, is a matter that the courts have been reluctant to define, preferring in the main
simply to declare that on the facts of a given case, the showing has not, or occasionally has, been
made.”412 The second question is whether the information provided by the petitioner or
408

United Steelworkers of America v. Marshall, 647 F.2d 1189, 1209 (D.C. Cir. 1980); Ass’n of Nat’l
Advertisers, Inc. v. FTC, 627 F.2d 1151, 1170 (D.C. Cir. 1979), cert. denied, 447 U.S. 921 (1980). Mere
allegations that it appeared that the agency had a hostile attitude, or unwillingness to correct errors, or
severity of action, or had a predetermined agenda, simply do not meet this standard. See James Madison
Ltd., 82 F.3d at 1095.
409

A.G.’S MANUAL, supra note 11, at 14. See United States v. Florida E. Coast Ry., 410 U.S. 224, 244-46
(1973).
410

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). (“And where there are
administrative findings that were made at the same time as the decision, as was the case in Morgan, there
must be a strong showing of bad faith or improper behavior before such inquiry may be made. But here
there are no such formal findings and it may be that the only way there can be effective judicial review is
by examining the decisionmakers themselves.” (citing Shaughnessy v. Accardi, 349 U.S. 280 (1955)).
411

See Ass’n of Nat. Advertisers, Inc. v. FTC, 627 F. 2d 1151 (D.C. Cir. 1979), cert. denied 447 U.S. 921
(1980) (comparing recusal standards applicable to rulemaking versus adjudication).
412

Tummino v. Von Eschenbach, 427 F. Supp. 2d 212, 230-231 (E.D.N.Y. 2006) (citing Latecoere Intern.,
Inc. v. U.S. Dep't of Navy, 19 F.3d 1342, 1357 (11th Cir. 1994) (bad faith shown); TOMAC v. Norton, 193
F. Supp. 2d 182, 195 (D.D.C. 2002) (bad faith not shown), aff'd, 369 U.S. App. D.C. 85, 433 F.3d 852
(D.C. Cir. 2006); Amfac Resorts, LLC v. United States DOI, 143 F. Supp. 2d 7, 13-14 (D.D.C. 2001) (bad
faith not shown), aff'd in part, rev'd in part on other grounds, 350 U.S. App. D.C. 191, 282 F.3d 818 (D.C.
Cir. 2002), vacated on other grounds sub nom., Nat'l Park Hospitality Ass'n v. DOI, 538 U.S. 803, 123 S.

72

May 14, 2013

complainant that was not considered by the agency is sufficient to justify supplementation of the
record, or remand to the agency, or vacatur.
E. Discovery Beyond Administrative Records
In Overton Park, the Supreme Court suggested that when further explanation is necessary to
determine if the agency acted arbitrarily and capriciously, a reviewing court “may require the
administrative officials who participated in the decision to give testimony explaining their
action.”413 The Court subsequently backed away from routinely compelling testimony of the
agency decisionmakers,414 making clear that remand to the agency is the preferred course, and
that testimony will be ordered only in “rare circumstances.”415
The “no discovery” concept has long been embedded in the procedural rules for exemptions
from initial disclosures.416 It is also embedded in the local rules of some courts where judicial
review of administrative records is relatively common; for example, the United States District
Court for the District of Columbia exempts actions for review on administrative records from the
parties’ duty to confer on pretrial management and scheduling417 and initial discovery
disclosures.418 The rules otherwise appear to leave open this possibility, but it remains highly
limited by the very nature of the review as the courts have noted.
Courts have carved out limited exceptions to the ‘no discovery’ rule. The most significant
exceptions come into play when a plaintiff or petitioner can make a “strong showing of bad faith
or improper behavior” or when the record is so bare that it prevents effective judicial review. 419
A claim of “bad faith” must be based on more than hearsay in a single affidavit.420 For example,
colorable allegations of ethical violations may precipitate discovery to determine the validity of
the allegations.421 This discovery reaches propriety of the action rather than APA review of the
rule itself.
Ct. 2026, 155 L. Ed. 2d 1017 (2003); Sokaogon Chippewa Cmty. v. Babbitt, 961 F. Supp. 1276, 1282-84
(W.D. Wis. 1997) (distinct possibility of improper political influence shown)).
413

Overton Park, 401 U.S. at 420. The Court remanded the case for review “to be based on the full
administrative record that was before the Secretary at the time he made his decision, Id. at 419-420, but
indicated that some discovery might be required if “additional explanation” of the Secretary’s decision was
necessary. Id. at 420-421. See also Appalachian Power Co. v. EPA, 477 F.2d 495, 507 (4th Cir. 1973).
414

See Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 654 (1990); Florida Power & Light
Co. v. Lorion, 470 U.S. 729, 744 (1985).
415

Florida Power & Light, 470 U.S. at 744.

416

FED. R. CIV. P. 26(a)(1)(B) (exempts “an action for review on an administrative record”).

417

D. D.C. LCvR. RULE 16.3(b) (exemption from pretrial conference for action for review on an
administrative record).
418

D. D.C. LCvR. RULE 26.2(a)(1) (exemption from initial disclosure requirements for action for review
on an administrative record).
419

See Cmty. for Creative Non-Violence v. Lujan, 908 F.2d 992, 997-98 (D.C. Cir. 1990).

420

E.g., Commercial Drapery Contractors, Inc., v. United States, 133 F.3d 1, 7 (D.C. Cir. 1998).

421

E.g., Citizens Against Casino Gambling in Erie Cnty. v. Stevens, 2012 U.S. Dist. LEXIS 87144 at *18
– *27 (W.D. N.Y. June 23, 2012) (discovery considered but denied on basis of record regarding conflict of
interest and participation of official in interpretation of statute for the purpose of adjudication of permit;
allegation that Associate Solicitor of Interior had a personal relationship (later married) counsel for permit
party; allegation sufficient to raise, but not necessarily resolve issue).

73

May 14, 2013

In some direct cases, a court may order discovery to determine whether an agency submitted
the full administrative record.422 Some discovery may also be appropriate when a plaintiff makes
a sufficient showing that the certified administrative record is not complete and that the decision
was inadequately explained.423 The remedy for a finding that the record is not complete or the
decision was inadequately explained is remand, rather than deposition of the agency
decisionmaker.424
F. Public Sources and Practicality of Judicial Notice
Numerous public sources are considered by agencies in the promulgation of rules, including
authorizing programmatic statutes, congressional committee reports and hearings, and the
Congressional Record; extant regulations in the Code of Federal Regulations, rules and notices in
the Federal Register; judicial decisions; administrative decisions; Government Accountability
Office and Inspector General reports; and a host of other government documents. The question of
whether these documents must be included within an administrative record may arise.
As the purpose of the certified administrative record is to define for the court the material
considered by the agency and to permit judicial review of the lawfulness of a rule, direct
inclusion of readily available materials in the certified administrative record may not be
necessary. The most obvious alternative is that a court may take judicial notice of legislative and
adjudicative facts – a fact “not subject to reasonable dispute in that it is either (1) generally
known within the [district or circuit] or (2) capable or accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned.”425
Acts of Congress in slightly different forms constitute prima facie evidence and evidence of
the law.
Rarely are Acts of Congress or excerpts of United States Code included in an
administrative record or certified administrative record. Additionally, Congress has stipulated
that the contents of the Federal Register shall be judicially noticed.426 Moreover, regulations are
law, not facts, and thus citation (particularly in rule preambles) may be all that is required.427
Legislative histories, including committee reports and the Congressional Record, are public
records capable of accurate and ready determination by resort to sources whose accuracy cannot
be reasonably questioned, the court may properly take judicial notice of the undisputable facts
contained therein.”428 Testimony before Congress might be judicially noticed “to determine what
422

See Dopico v. Goldschmidt, 687 F.2d 644, 654- (2d Cir. 1982) (“Determining what constitutes an
agency's informational base is vital, for review must be based on the whole administrative record,…. We
think that the District Court could not properly grant summary judgment when such a basic factual issue
was in dispute, without at least permitting plaintiffs some limited discovery to explore whether some
portions of the full record were not supplied to the Court.”).
423

Tenneco Oil Co. v. Dept. of Energy, 475 F. Supp. 299, at 317 (1979).

424

Cmty. for Creative Non-Violence v. Lujan, 908 F.2d 992, 998 (D.C. Cir. 1990).

425

FED. R. EVID. 201. The contours between legislative and adjudicative facts, and the precise edges of
judicial notice, do not appear to affect notice of government documents.
426

44 U.S.C. § 1507.

427

See also A&E Coal Co. v. Adams, 694 F.3d 798, 802 (6th Cir. 2012) (regulatory preamble “explained
the medical and scientific premises for the changes” to the regulations; no need to include copy of
preamble in administrative record because the APA does not require public documents to be made part of
the record; formal adjudication).
428

Bolton v. United States Nursing Corp., No. C 12-04466 LB, 2012 U.S. Dist. LEXIS 152387, at *6 n. 4
(N.D. Cal. Oct. 21, 2012).

74

May 14, 2013

statements were contained,” (i.e., considered) but “not for the truth of the matters asserted” (the
determination vested in the agency).429 Legislative history is frequently cited in regulatory
preambles and often included in administrative records for judicial review, but it is not clear that
this is more than a convenience.
Judicial precedent itself is frequently cited and not reproduced in a rulemaking record or
administrative record for judicial review because citation constitutes legal argument, not facts.430
Judgments, and many litigation documents filed with a court (and some not filed with the court),
may be judicially noticed, but agency inclusion of a full copy of these documents in the
administrative record for judicial review may prove the most accessible for the court, the parties,
and the public.
The D.C. Circuit has explained that policy documents and reports from the General
Accountability Office “are judicially cognizable apart from the record as authorities marshaled in
support of a legal argument.”431 These materials may all be readily available, but should official
permanent legal documents be reproduced and filed with the court in a certified administrative
record? On the one hand, these materials may be important for understanding an agency’s
decision. On the other hand, it may not be necessary or wise for agencies to regularly reproduce
public documents that are readily available. A proper balance might be to cite readily available
the law in preambles or published bibliographies and, for the convenience of the court, provide
the appropriate references in the certified index.
Other official documents might be judicially noticed, but judicial notice under Evidence Rule
201 is less satisfactory with respect to investigative documents, such as GAO and IG reports.432
Factual reports developed for the purpose of fact may be judicially noticed, but a simpler
429

Transcripts of Congressional hearing testimony are public records, which courts have found to be
subject to judicial notice. See In re Moody's Corp. Sec. Litig., 599 F. Supp. 2d 493, 504 (S.D.N.Y. 2009);
see also Johnson & Johnson v. Am. Nat. Red Cross, 528 F. Supp. 2d 462, 464 n. 1 (S.D.N.Y. 2008); but see
Whiting v. AARP, 637 F.3d 355, 364 (D.C. Cir. 2011) (district court did not abuse its discretion in
denying a motion to take judicial notice of congressional materials relating to the Senate Finance
Committee investigation of AARP's health insurance practices).
430

“The employer associations ask us to consider documents not appearing in the administrative record,
including expert declarations, a deposition transcript, a wage calculation, House and Senate bills, a public
law, government documents, and a judicial opinion. Some of the documents submitted by the employer
associations — i.e., the judicial opinion, the bills and public law, and the government documents—
constitute legal authority or present facts that are judicially noticeable. FED. R. EVID. 201(b); e.g., Kos
Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 705 n. 5 (3d Cir. 2004) (judicial notice of documents from
agency’s website). Those documents have been considered to the extent that they are relevant to the issues
before us.” La. Forestry Ass’n v. Solis, 2012 U.S. Dist. LEXIS 117061, at *19 – 20 (E.D. Pa. Aug. 20,
2012).
431

Military Toxics Project v. EPA, 146 F.3d 948, 954 (D.C. Cir. 1998).

432

While a court might take judicial notice of the existence of a GAO or IG report and that the GAO or IG
reached certain conclusions as “not subject to reasonable dispute … the authenticity of which is
undisputed” that does not establish the veracity and accuracy of the facts contained within the report, i.e.,
that the facts that the GAO or IG believed to be true, and upon which they reached conclusions, are not
subject to reasonable dispute. See County of San Miguel v. Kempthorne, 587 F. Supp. 2d 64, 78 (D.D.C.
2008) (declining to take judicial notice of Inspector General's report where the “Court knows nothing about
the investigative process which led to the report's conclusions, and it cannot access the report's
validity”). Crucially, judicial notice would not establish that the agency considered those facts as such in
the rulemaking. To establish the agency’s consideration of such reports, the agency should include GAO
and IG reports within a certified administrative record.

75

May 14, 2013

mechanism that would appear to satisfy administrative record requirements, and may be
acceptable to the court and litigants, would be to cite such documents in preambles or published
bibliographies and provide appropriate references in the certified record index. In that way, an
agency could limit their record reproductions to those materials that are not readily accessible,
with the consent of the court and agreement of opposing litigants.
G. Judicial Remedies
Judicial remedies when an administrative record for judicial review does not meet the
standards of the APA are limited by the scope of the courts review Preenforcement review of a
rule deserves specific consideration433 because it may be necessary to resolve issues quickly, such
as staying the effect of the rule. Beyond consideration of a stay, a court may permit the agency to
supplement the record for its review, remand the rule to the agency, and vacate the rule. The
remedies imposed depend on the quality of the agency’s certified administrative record.
1. Stays
If litigation is commenced immediately upon publication of a final rule, litigants may ask a
court to maintain the status quo during the litigation. The APA provides specifically for this
interim relief:
When an agency finds that justice so requires, it may postpone the effective date of action
taken by it, pending judicial review. On such conditions as may be required and to the extent
necessary to prevent irreparable injury, the reviewing court, including the court to which a
case may be taken on appeal from or on application for certiorari or other writ to a reviewing
court, may issue all necessary and appropriate process to postpone the effective date of an
agency action or to preserve status or rights pending conclusion of the review proceedings.434
In the courts of appeals, the process for requesting a stay is clearly delineated: a petitioner
must first seek a stay from the agency, and if the agency denies the request, the petitioner must
move the court for relief (including the “relevant parts of the record”).435 Litigants may use the
same process for requesting a stay before a district judge, and many litigants style a motion as one
for a preliminary injunction.436 Although not required by the APA, and if time permits, litigants
may find it useful to follow the appellate procedure of making the request first to the agency,
thereby giving the district court a more detailed record of proceeding.
The default minimum effective date period for a final rule is only 30 days, although agencies
may set a longer time before a rule becomes effective, and may set “compliance” dates that are
much later to accommodate the nature of the regulations being implemented and the needs for
433

ACUS has previously considered preenforcement review issues. See Administrative Conference of the
United States, Recommendation 93-4: Improving the Environment for Agency Rulemaking (adopted Dec.
9, 1993), 59 Fed. Reg. 4,670 (Feb. 1, 1994); correction 59 Fed. Reg. 8,507 (Feb. 22, 1994); see also
Administrative Conference of the United States, Recommendation 74-4: Preenforcement Judicial Review
of Rules of General Applicability (Adopted May 30-31, 1974), 39 Fed. Reg. 23,044 (June 26, 1974).
434

5 U.S.C. § 705. The general stay statute may be overridden by specific statutes. See Clean Air Act
(requiring petition for reconsideration as predicate for judicial review). E.g., Sierra Club v. Jackson, 813 F.
Supp. 2d 149, 152-55 (D.D.C. 2011) (stays under the APA, 5 U.S.C. § 705, and Clean Air Act, 42 U.S.C. §
7607(d)(7)(B); denying motion to dismiss), 833 F. Supp. 2d 11 (D.D.C. 2012) (same; cross motions for
summary judgment).
435

FED. R. APP. P. 18(a).

436

FED. R. CIV. P. 65. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008).

76

May 14, 2013

regulated parties to take actions prior to the regulations actually being applied.437 Preenforcement review of regulations may necessitate rapid certification of the administrative record
to the court. The theoretical maximum for filing at least an index of the certified administrative
record, on the other hand, in the court of appeals, is 40 days.438 This potential temporal discord
can significantly affect litigation.439
Although a stay of a rule serves different functions from an injunction from enforcing a rule,
both preserve the status quo pending resolution of the pre-enforcement litigation and apply the
familiar four-part test:


petitioner is likely to succeed on the merits,



petitioner is likely to suffer irreparable harm in the absence of preliminary relief,



the balance of equities tips in petitioner’s favor, and



an injunction or stay is in the public interest.440

When, however, a rule becomes effective, the status quo changes, the balance of equities may
shift somewhat toward the government, and the public interest in an injunction or stay may
decline. If the agency does not make the administrative record available to the litigants and court
in those cases where claims are based on the content of the administrative record (such as
consideration of relevant facts), a plaintiff may not have the opportunity to make some recordbased claims for preliminary relief. Courts have fashioned interim relief to preserve the status
quo until an agency submits an administrative record for judicial review.441 The real issue is the
accessibility of the record for review by the parties and the court when necessary, and a court may
specifically request that an extensive record be provided in particular formats.442
If an agency cannot provide its administrative record for judicial review in a timely fashion, it
runs the risk that its rule will be delayed. The potential for a judicial stay of a rule effective date
provides another incentive for agencies to maintain rulemaking records as the rulemaking
proceeds.

437

5 U.S.C. § 553(d).

438

FED. R. APP. P. 17(a).

439

See, e.g., Charter Operators of Alaska v. Blank, 844 F. Supp. 2d 122, 126 (D.D.C. 2012) (administrative
record had not been assembled and the court felt it was premature to rule on the merits).
440

Winter, supra note 436; Alliance for the Wild Rockies v. Cottrell, 632 F. 3d 1127 (9th Cir. 2011)
(affirming sliding scale post-Winter); Davis v. Pension Ben. Guar. Corp., 571 F. 3d 1288 (D.C. Cir. 2009)
(standards for injunction); Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C. Cir.
1985); Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir.
1977) (standards for stay); D.C. CIR. R. 18; D.C. Circuit Handbook of Practice and Internal Procedures 32
(2010). Cf. Nken v. Holder, 556 U.S. 418 (2009) (specific provision in Immigration and Nationality Act).
441

E.g., Cardinal Health, Inc. v. Holder, 846 F. Supp. 2d 203 (D.D.C. 2012) (example of court granting
temporary restraining order pending remand without vacatur while agency compiles administrative record
of agency summary adjudication and suspension; denying preliminary injunction).
442

E.g., Latin Americans for Social and Economic Development v. Federal Highway Administration, 2012
U.S. Dist. Lexis 48452 *7 n.5 (E.D. MI 2012) (timing not an issue; 130,000 page Detroit, Michigan, U.S. /
Windsor, Ontario, Canada international crossing NEPA administrative record furnished on an external hard
drive containing the administrative record in an electronic form with a searchable index at the courts
request).

77

May 14, 2013

2. Remand
As noted previously, a court may permit an agency to supplement its administrative record
for judicial review, and rarely may permit a plaintiff or petitioner to do so.443 This process is not
so much a remedy as an interim procedure for assuring the completeness and correctness of the
administrative record, but, in doing moving to supplement its own record, the agency also may
raise questions about completeness.444 ENRD guidance has cautioned that failure to adequately
prepare and present an administrative record for judicial review has direct consequences: “[i]f the
court decides the record is not complete, it should remand the matter to the agency. It may,
however, allow extra-record discovery, including depositions of agency personnel, and may allow
court testimony of agency personnel.”445 Remand for record building purposes does not
ultimately determine the effectiveness of the rule, but it may postpone effectiveness and does
prolong doubt about the efficacy of the rule. That uncertainty should caution agencies to ensure
that an administrative record for judicial review is complete and accurate upon filing.
3. Setting Aside and Injunction
Ultimately, if a court finds that an administrative record is so incomplete or defective that it
affects the ultimate legality of the rule itself, the court must fashion a final remedy. Some
confusion exists again on terminology and a permanent injunction is not infrequently entered
when a district court finds that an agency rule has been unlawfully promulgated. Rather, the
district court should “hold unlawful and set aside agency action”446 as the D.C. Circuit has
recently noted.447 A permanent injunction may reach the application of a rule to a specific party
without setting aside the rule, but the APA authorizes the court to set aside the rule.
Setting aside a rule on the basis of an incomplete or defective record may appear harsh, and
has historically been mitigated by permitting a rule to remain in effect despite remand of the rule
to the agency for further consideration. The D.C. Circuit has applied an additional two part
standard in the past: traditionally, the decision whether to vacate or just to remand without
vacatur has been based on a balancing of “the seriousness of the [rule’s] deficiencies (and thus the
extent of doubt whether the agency chose correctly) and the disruptive consequences of an
interim change that may itself be changed.”448 “Disruptive consequences” appears well related to
443

See Section IV.D.

444

U.S. ATTY. BULL., supra note 153, at 10.

445

Id.

446

5 U.S.C. § 706(2).

447

See R.J. Reynolds Tobacco Co. v. Food & Drug Admin., 696 F.3d 1205, 1222 (D.C. Cir. 2012) (“We
therefore vacate the graphic warning requirements and remand to the agency. In so doing, we also vacate
the permanent injunction issued by the district court, in furtherance of our obligation to ‘set aside’ the
unlawful regulation. See, e.g., N. Air Cargo v. United States Postal Serv., 674 F.3d 852, 861 (D.C. Cir.
2012) (‘It was quite anomalous [for the district court] to issue an injunction. When a district court reverses
agency action and determines that the agency acted unlawfully, ordinarily the appropriate course is to
identify a legal error and then remand to the agency, because the role of the district court in such situations
is to act as an appellate tribunal.’).”).
448

Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150 – 51 (internal quotation
marks omitted) (D.C. Cir. 1993). See EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir.
2012); N. Air Cargo v. United States Postal Serv., 674 F.3d 852 (D.C. Cir. 2012); Elec. Privacy Info. Ctr. v.
United States Dep’t of Homeland Sec., 653 F.3d 1 (D.C. Cir. 2011); Apache Corp. v. FERC, 627 F.3d 1220
(D.C. Cir. 2010); Int'l Union v. MSHA, 626 F.3d 84 (D.C. Cir. 2010); NetCoalition v. SEC, 615 F.3d 525
((D.C. Cir. 2010); CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076 (D.C. Cir. 2009).

78

May 14, 2013

the balancing of the harm factors in a stay or injunctive relief setting. Where a rule has been
allowed to become effective, the harm of vacatur to the agency is greater, while vacatur of a rule
that has not become effective will not impose as great a harm. 449 Adoption of this equitable
approach, however, is not uniform or unanimous, with several judges expressing a view that the
APA permits the court to “set aside” a rule unlawfully promulgated and not less.450
In the final analysis, the agency bears the responsibility for the development, compilation,
and certification of the administrative record to the court. When the agency fails to meet the
standards set by judicial interpretation of the APA, the agency runs a decided risk that a court will
set aside the final rule and return it to the agency. Depending on the depth of the administrative
record deficiencies, the agency may lose an extended period of time in implementing its policy
choices and expend considerably more effort repromulgating its preferred policy rule.
Throughout that period, the affected parties will have no certain course to which to conform their
conduct.

449

Compare Sugar Cane Growers Co-op. of Florida v. Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002)
(vacatur would be “an invitation to chaos” because “[t]he egg has been scrambled and there is no apparent
way to restore the status quo ante”), with Bus. Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011) (SEC
stayed rule pending litigation; rule vacated).
450

E.g., Comcast Corp. v. FCC, 579 F.3d 1, 10 (D.C. Cir. 2009) (Randolph, J., concurring): Checkosky v.
SEC, 23 F.3d 452, 491 (D.C. Cir. 1994) (separate opinion of Randolph, J.) (explaining his view that courts
holding an administrative rule or order unlawful must vacate the agency action in light of APA § 706(2)).

79

May 14, 2013

V. Recommendations
As discussed in the Report, judicial review of final agency regulations is now presumed to be
based on the Administrative Procedure Act (APA) requirement that a court “review the whole
record or those parts of it cited by a party”451 created by the agency whose decision is being
reviewed. The record on judicial review – an administrative record – is to be composed of all
material, not more nor less, than the agency considered in promulgating a rule. Over the past two
decades, the scope of materials “considered” has exploded with the creation of new analytical
requirements, electronic public comment processes, and information contained in electronic
systems, including the World Wide Web. Agencies and courts have also considered definitional
and functional exceptions to a general rule of inclusiveness. Based on the report and the agency
practices surveyed, the following best practices are commended for consideration:
Rulemaking Record:
1. In the absence of a specific statutory requirement to the contrary, the agency rulemaking
record in informal rulemaking should contain:
a. all notices pertaining to the rulemaking and any documents referred to therein;
b. comments and other documents submitted to the agency;
c. any transcripts of oral presentations made in the course of a rulemaking;
d. reports of any advisory committees;
e. copies or an index of all factual material, studies, and reports not included in the forgoing
and considered by agency personnel in formulating the proposed or final rule; and other
material required by statute, executive order, or agency rule to be made public or
considered in connection with the rulemaking; and
f.

any other materials related to the rule.

2. Agencies should manage their rulemaking records to achieve maximum disclosure to the
public.
Process:
3. An agency should, subject to resource limitations and based on a risk assessment, compile a
rulemaking record as the rulemaking proceeding progresses, not after a decision is made or
after a complaint is filed in a United States District Court or a petition for review is filed in a
United States Court of Appeals. As the Department of Justice’s Environment and Natural
Resources Division suggested to its clients over a decade ago, “Optimally, an agency will
compile the administrative record as documents and generation or receipt of materials occurs
during the agency decision-making process. The record may be a contemporaneous record of
the action.” A number of agencies have extolled the virtues of this approach.
4. Agencies should designate a program official as the record keeper or custodian of a
rulemaking record as soon the agency determines that an informal rulemaking proceeding
will be undertaken.
5. Agencies should include in the agency-held rulemaking record all documents considered
directly or indirectly without judgment as to the “relevance” or “reliance”, or whether the
documents are privileged, protected, or otherwise restricted, on those documents to create a
“whole” record. The definitions used by agencies in existing guidance may lead to the
451

5 U.S.C. § 706.

80

May 14, 2013

exclusion of documents from a rulemaking record before such exclusion from an
administrative record may be appropriate.
6. Agencies should maximize the utilization of Regulations.gov (or an agency-specific public
rulemaking docket) to publish all documents considered in the decision file, consistent with
ACUS Recommendations 2011-2, Rulemaking Comments; 2011-1, Legal Considerations in
e-Rulemaking; 90-5, Federal Agency Electronic Records Management and Archives.
Non-Public Documents & Rulemaking Record for Decision:
7. Agencies should maintain in a separate rulemaking record all documents and communications
not published on Regulations.gov (or an agency-specific docket), including all privileged,
protected, or otherwise restricted material, and any other material considered by the agency or
its staff in formulating the rule, to permit further analysis to determine whether the documents
or analysis are to be included in an administrative record for judicial review.
8. Agencies should consider the sum of the public rulemaking docket and the segregated
rulemaking record file as the administrative record for the purpose of decision under the
Administrative Procedure Act, unless otherwise required by statute, or explicitly provided for
in regulations.
Indexing:
9. Agencies should, to the extent feasible, index the documents in an agency-held rulemaking
record prior to the decision of the signatory authority for that final rule. Some agencies
provide the index to the signatory.
10. Agencies should consider contemporaneously indexing administrative records, consistent
with the consolidated requirements for FOIA, privilege, and FRA purposes, to the extent
feasible.
a. If the agency uses, or develops, an electronic document management system, the
system’s document metadata should be configured to include all of the elements of a
privilege index, and FOIA Vaughn index, and to permit extraction of documents and
indices for FOIA, privilege, and Federal Records Act purposes. Some independent
agencies, such as the CFTC and ITC, appear to have developed the basis for this
capability and agencies should be mindful of its potential.
b. Agencies that have not developed an electronic document management system might, as
FDA suggests, use the simple solution of maintaining documents in portable document
format (.pdf). A simple electronic folder may suffice.
Guidance:
11. Agencies should provide guidance to staff on the scope of the rulemaking record and the
means for compiling the rulemaking record consistent with these best practices. Agencies
may find examples of useful guidance in the guidance and practices of other agencies.
Passim.
Certification of Administrative Record to a Court:
12. The administrative record certified to the court on judicial review of informal rulemaking
should contain all of the materials in the rulemaking record as set forth above, except:
a. materials for which disclosure is prohibited by law or that are otherwise protected from
disclosure; and

81

May 14, 2013

b. materials that the agency has determined are subject to withholding on the basis of legal
privilege in the forum for review, and that it sees fit to withhold.
13. Agencies should specify in the certification affidavit accompanying the transmittal of a
certified administrative record to a court:
a. Whether the agency has applied a definition of “relevance” or “reliance” to the
parameters of the content of the administrative record being certified;
b. Whether the administrative record contains privileged or protected material; and
c. Whether any other limitation is placed on the administrative record.
14. Agencies should be prepared to file and serve on opposing parties at least an index of the
administrative record promptly after the filing of petition for review or complaint, subject to
the agency’s evaluation of the risk of litigation, to permit opposing parties and the court to
assess the administrative record within a reasonable time.
Publication:
15. Agencies may wish to consider publishing at least the index to the administrative record and
the certification affidavit on their websites at the time of or after the administrative record is
served on opposing parties or filed with a court. Agencies may wish to publish the index to a
rulemaking record.
Permanent Records:
16. The National Archives and Records Administration (NARA) should consider clarifying
whether rulemaking records in informal rulemaking, and administrative records, if any,
qualify as permanent records to be transferred to NARA as a unified record pursuant to the
agency’s disposition schedule.

82

May 14, 2013

Appendix A: Questionnaire Responses and Identifying Acronyms
Set out below are the sources of the response, organized alphabetically by Department and
agency, the date received by the consultant from ACUS or otherwise, and the acronym used
throughout the report for that response.
Department of Commerce, ACUS Questionnaire Response (Jan. 13, 2013) (DOC*R),
Patent and Trademark Office, ACUS Questionnaire Response (Jan. 13, 2013) (PTO*R),
National Oceanic and Atmospheric Administration, ACUS Questionnaire Response (Jan. 13,
2013) (NOAA*R);
Department of Health and Human Services,
Centers for Disease Control and Prevention (CDC), ACUS Questionnaire Response (Jan. 27,
2013) (CDC*R),
Centers for Medicare and Medicaid Services, ACUS Questionnaire Response (Jan. 27, 2013)
(CMMS*R),
National Institutes of Health, ACUS Questionnaire Response (Jan. 27, 2013) (NIH*R),
Food and Drug Administration, ACUS Questionnaire Response (Jan. 27, 2013) (FDA*R),
Substance Abuse and Mental Health Services Administration, ACUS Questionnaire Response
(Jan. 27, 2013) (SAMHSA*R);
Department of Homeland Security, ACUS Questionnaire Response (Dec. 3, 2012) (DHS*R);
Department of Justice, ACUS Questionnaire Response (Jan. 19, 2013) (DOJ*R);
Department of Labor, ACUS Questionnaire Response (Jan. 17, 2013) (DOL*R);
Occupational Health and Safety Administration, ACUS Questionnaire Response (Dec. 5,
2012) (OSHA*R);
Mine Safety and Health Administration, ACUS Questionnaire Response (Jan. 17, 2013)
(MSHA*R);
Employment Benefits Safety Administration, ACUS Questionnaire Response (Jan. 17, 2013)
(EBSA*R);
Wage and Hour Division, ACUS Questionnaire Response (Jan. 17, 2013) (WHD*R);
Employment and Training Administration, ACUS Questionnaire Response (Jan. 17, 2013)
(ETA*R);
Department of Transportation (DOT), ACUS Questionnaire Response (Nov. 30, 2012, amended
Dec. 12, 2012) (DOT*R),
Surface Transportation Board, ACUS Questionnaire Response (Nov. 30, 2012) (STB*R);
Department of the Treasury, ACUS Questionnaire Response (Jan. 18, 2013) (DOT*R);
Internal Revenue Service, ACUS Questionnaire Response (Nov. 26, 2012) (IRS*R);
83

May 14, 2013

Department of Veterans Affairs, ACUS Questionnaire Response (Dec. 5, 2012) (DVA*R);
Environmental Protection Agency, ACUS Questionnaire Response (Nov. 30, 2012) (EPA*R);
Commodity Futures Trading Commission, ACUS Questionnaire Response (Dec. 3, 2012)
(CFTC*R);
Federal Deposit Insurance Corporation, ACUS Questionnaire Response (Nov. 29, 2012)
(FDIC*R);
Federal Energy Regulatory Commission, ACUS Questionnaire Response (Jan. 7, 2013)
(FERC*R);
Federal Trade Commission, ACUS Questionnaire Response (Dec. 12, 2012) (FTC*R);
International Trade Commission, ACUS Questionnaire Response (Nov. 28, 2012) (ITC*R);
Merit Systems Protection Board, ACUS Questionnaire Response (Jan. 11, 2013) (MSPB*R);
Social Security Administration, ACUS Questionnaire Response (Jan. 28, 2013) (SSA*R).

84

May 14, 2013

Appendix B: Transmittal and Agency Survey Questionnaire
November 1, 2012
Dear Conference Member:
The Administrative Conference’s Committee on Judicial Review has recently started a project on
administrative records in informal rulemaking. It is of great importance that the often disparate
record gathering practices be evaluated and best practices circulated. A critical aspect of this
project is surveying federal agencies to find out when and how agencies (or their components)
compile rulemaking-related administrative records for use internally and for judicial review.
As a member of the Conference, I ask for your assistance on this important research
project. Attached please find a brief survey to circulate to relevant officials within your
agency. We recognize that agency record practices may differ and that multiple components or
offices may have rulemaking authority or otherwise are involved in informal rulemaking. We
would appreciate responses from all officials who have regulatory responsibilities. Responses to
the attached survey—together with any related written materials—should be completed by
November 30, 2012. Please return your survey by email to Stephanie Tatham,
statham@acus.gov, Staff Counsel to the Committee on Judicial Review. If mailing hard copies,
use the ACUS mailing address, 1120 20th Street NW, Suite 706 South, Washington, DC 20036.
If you have any questions about the survey or the Administrative Record project, please feel free
to contact Stephanie at (202)480-2089 or our consultant, Mr. Leland E. (Lee) Beck, at
lebeck365@gmail.com or his personal cell phone: (240)674-6839. Lee may be in touch to follow
up on this request or with questions relating to the survey responses.
Our success in this and all Conference projects depends on our members. Thank you in advance
for your help on this project. Your feedback and suggestions are welcome.
Sincerely,

Paul R. Verkuil
Chairman

85

May 14, 2013

Survey of Agency Administrative Records Practices
The Administrative Conference of the United States (ACUS) is an independent federal agency dedicated to
improving the administrative process through consensus-driven applied research, providing nonpartisan
expert advice and recommendations for improvement of federal agency procedures. ACUS is currently
studying administrative records in informal rulemaking. A critical aspect of this project is surveying federal
agencies to find out when and how various agencies (or their components) compile rulemaking-related
administrative records for use internally and for judicial review. The final report will include analysis of the
key issues and a set of recommendations to highlight innovative methods and best practices, as well as
suggestions of potential improvements across the federal government.
Background Information: In the Administrative Procedure Act (APA), Congress directed courts to “review the
whole record or those parts of it cited by a party” to determine the lawfulness of agency action. 5 U.S.C. §
706. Informal agency proceedings where reviewable by statute or that are final agency actions under 5
U.S.C. § 704 are also subject to “on the record” review. Because the phrase “the whole record” is not
defined in the APA, this survey examines how agencies have worked to implement the concept in informal
decision-making, and more specifically informal rulemaking.
A rule is defined in the APA as “the whole or a part of an agency statement of general or particular
applicability and future effect designed to implement, interpret, or prescribe law or policy….” 5 U.S.C. §
551(4). We are interested in records for agency rules adopted where Congress delegated regulatory
authority to an agency head without requiring “formal” proceedings including a “hearing on the record”
under the procedures of 5 U.S.C. §§ 556-57, and where instead agencies act through the “informal” notice
and comment proceedings set forth in 5 U.S.C. § 553.
Agencies, and components within agencies, manage the development of administrative records in a wide
variety of ways. ACUS’s goal is to survey and compare agency practices and make suggestions for future
best practices. ACUS intends to showcase the diversity of agencies practices and to credit the best practices
of individual agencies, as well as to offer a more general assessment of lessons learned. Please note that
ACUS records are subject to disclosure requirements in the Freedom of Information Act. 5 U.S.C. § 552.
ACUS requests your assistance in completing the attached survey by November 30, 2012.


Please direct this survey to the components or offices within your agency that engage in informal
rulemaking.



Please copy and distribute this survey as necessary to help develop a complete picture of your
agency’s practices and policies. If applicable, an explanation of the relationship between policies in
multiple components and headquarters would be helpful.



Please provide copies of any related management directives (in hard copy or electronic format) such
as regulations, guidance documents, policies, manuals, and memoranda, with your responses.



Please return your response to Stephanie J. Tatham, ACUS Staff Counsel, at statham@acus.gov. If
mailing hard copies of documents, ACUS’s mailing address is: 1120 20th Street, N.W., Suite 706
South, Washington, DC 20036.

We are providing this survey in Microsoft Word format so that you may expand your responses as needed.
Please feel free to contact us with questions, concerns, or comments that do not fit neatly into your response.
Contacts:
Stephanie J. Tatham, ACUS Staff Counsel, at statham@acus.gov or (202) 480-2089
Leland E. Beck, ACUS Consultant, at LEBeck365@gmail.com or (240) 674-6839

Survey of Agency Informal Rulemaking Administrative Records Practices
Respondent Name:
Agency:
Respondent Component (if applicable):

Date:
ACUS USE

Email:
Phone:
1. Administrative Record Development Policies:
A. Does your agency or component have established regulations / guidance / policy / manuals /
memoranda* on how to develop and retain an administrative record of final agency action, or that
affect record compilation?
B. Why did your agency or component develop this regulations / guidance / policy / manual /
memoranda (if known)?

2. Compilation of Administrative Records:
A. Do you compile administrative records as the agency rulemaking proceeding advances, at the
conclusion of proceedings (either for the decision-maker or otherwise), or only if necessary for
certification to a court in litigation? If so, please explain.
B. Does your agency have a “stopping rule” or regulations / guidance / policy / manuals /
memoranda* for when to close the administrative record? If so, please explain.

*Please provide any related documentation and indicate the date of last revision.
1

Survey of Agency Informal Rulemaking Administrative Records Practices
Respondent Name:

Date:

Agency:
3. Contents of an Administrative Record: A variety of documents historically have been included in
Respondent
applicable):
administrativeComponent
records for(ifinformal
rulemaking. Does your agency have established regulations / guidance /
policy
/
manuals
/
memoranda
or
use
a checklist* for rulemaking administrative record contents?
Email:
Phone:
4. Statutory Requirements: A number of statutes define the requirements for an administrative record in
informal rulemaking, or either require or prohibit a decision-maker from considering specific matters in
reaching a final administrative decision.1
A. What, if any, statutes inform your agency’s definition of the administrative record?
B. What, if any, statutes constrain your decisionmaker’s final agency action?2

5. Record Keeping:
A. Does your agency or component develop and retain rulemaking administrative records in paper form,
electronic form, or a combination of both formats?
B. If electronically, how does your agency or component compile the electronic file(s)? Please describe
this system. For example, does it have an electronic document management system, segregated
folder, and/or individual who serves as the designated electronic docket manager?
C. Does the rulemaking record used by the agency internally, whether electronic or paper, vary from the
record accessible to the public through Regulations.gov? If so, how?

1 For example, several statutes define the concept of the administrative record in specified agency proceedings.

See, e.g., Magnuson-Moss Warranty–Federal Trade Commission Improvement Act, 15 U.S.C. § 57a(e)(1)(B);
Consumer Product Safety Act, 15 U.S.C. § 2060(a); Clean Air Act, 42 U.S.C. § 7607(d)(7)(A).
For example, the Securities Exchange Act and Investment Company Act of 1940, 15 U.S.C. §§ 78c(f), 80a-2(c),
respectively (agency required to consider the rule’s effect upon efficiency, competition, and capital formation); 49
U.S.C. § 31137(a) (agency required to ensure in regulations on use of monitoring devices in commercial vehicles that
the devices are not used to harass vehicle operators).
2

*Please provide any related documentation and indicate the date of last revision.
2

Survey of Agency Informal Rulemaking Administrative Records Practices
Respondent Name:

Date:

Agency:
6. Administrative Indexing:
Respondent Component (if applicable):
A. When does your agency or component index the rulemaking administrative record? For example, do
Email: you index the record as it is developed or only at the end of the rulemaking process, if necessary?
Phone:
B. Is there a standardized index that you use?
C. Are administrative record indices available to the public and, if so, how are they accessed by the
public?

7. Privileged Documents:
A. Does your agency or component (as applicable) index privileged documents considered in the
development of the decision in its administrative record in informal rulemaking and, if so, how?
B. Does your agency or component have a policy on inclusion of privileged documents in a rulemaking
administrative record, or are privileged documents only included or disclosed if a Freedom of
Information Act request or litigation requires a Vaughn or discovery index?

8. Specific Types of Information: Does your agency or component have procedures for handling specific
types of documents in administrative records for informal rulemaking, such as:
A. Copyrighted material?
B. Computer programs, models, and malleable data?
C. Personal privacy information (e.g. Privacy Act, HIPPA) in agency files?
D. Personal privacy information (e.g. Privacy Act, HIPPA) provided to the agency during proceedings?
E. Confidential business information or trade secrets provided to the agency during proceedings?
F. Other?

*Please provide any related documentation and indicate the date of last revision.
3

Survey of Agency Informal Rulemaking Administrative Records Practices
Respondent Name:

Date:

Agency:
9. Presentation to Agency Deciding Official(s): ACUS recognizes diversity in the portions of rulemaking
Respondent
(if applicable):
administrativeComponent
records provided
to the decisionmaker ultimately responsible for the final agency action. Please
describe
how
your
agency
/
component
provides the administrative record to the official(s) making the
Email:
decision (e.g., record in its entirety, portion of the record, summary memorandum, index, etc.).
Phone:
10. Presentation of Certified Administrative Record to Court:
A. When a rulemaking is challenged in court, how does your agency compile or stipulate the rulemaking
administrative record for certification to the court?
B. Does your agency have established regulations / guidance / policy / manuals / memoranda* on
record certification? If so, please explain.
C. Who is the appropriate official (by name and title) in your agency or component to certify
administrative records for purposes of judicial review?
D. Are there particular materials or types of materials (e.g., computer models, copyrighted work, etc.)
that are difficult or unwieldy to provide to courts or litigation parties? If so, how are such materials
included in the certified administrative record?

11. Other Issues:
A. What issues has your agency or component found most problematic in relation to rulemaking
administrative records for agency decisionmaking or judicial review?

B. Do you have suggestions or recommendations for best practices relating to rulemaking administrative
records for judicial review?

Thank you!

*Please provide any related documentation and indicate the date of last revision.
4