Administrative Record in Informal Rulemaking

At its Plenary Session on June 13-14, 2013, the Administrative Conference of the United States adopted Recommendation 2013-4, concerning the Administrative Record in Informal Rulemaking. The recommendation identifies the essential components of 1) agencies’ rulemaking records maintained internally, 2) their public rulemaking dockets, and 3) administrative records for judicial review.  It also recommends a number of agency best practices in the areas of recordkeeping, compilation, and preservation.  The recommendation urges agencies to develop policies for the treatment and indexing of privileged and protected materials in their public rulemaking dockets and administrative records for judicial review, as well as more general guidance to aid personnel in implementing these best practices.  It also addresses agency certification of administrative records for judicial review, supports the well-established presumption of regularity afforded by courts to agency administrative records, and identifies limited circumstances where supplementation or completion of the administrative record may be appropriate.