Administrative Record in Informal Rulemaking

The proposed recommendation The Administrative Record in Informal Rulemaking addresses agency recordkeeping in the limited context of 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.  Based on an empirical study of agencies’ current practices, supported by a questionnaire and a review of existing agency guidance and policies, the Committee on Judicial Review has identified a number of agency best practices in the areas of recordkeeping, compilation, and preservation.  The recommendation urges agencies to develop policies for the treatment 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. 

Leland E. Beck, Esq. is the project consultant.