right to copy documents in the docket, and it requires the EPA to provide copying facilities for that purpose. 21 The comprehensive regulatory reform bills considered by Congress in 1982 each would have required agencies to maintain a 22 rulemaking file and to include certain material in the file. The Administrative Conference reacted to these proposals by supporting a rulemaking file requirement in the APA, although the Conference's recommended language differed somewhat from the bill provisions. 23 The development of the concept of a "rulemaking record" for informal rulemaking is also reflected in President Reagan's Executive Order on Federal Regulation, which states that before approving any final major rule, each agency shall: [M]ake a determination that the factual 20/ 42 U.S. C. S 76 07(d)(2)-(3). 21/ Id., S (dX4)(A). 22/ See S. 1080, The Regulatory Reform Act, S 3 (passed by the Senate on Mar. 24, 1982); H.R. 746, the Regulatory Procedure Act of 1982, S 201 (reported by the House Judiciary Committee on Feb. 25, 1982). 23/ The Conference recommended that: Congress amend the APA the APA to provide that, in rulemaking under section 553, an agency shall maintain a public rulemaking file beginning no later than the date on which the notice of proposed rulemaking is published. At a minimum, the agency should be required to place in the public rulemaking file, promptly upon receipt or production, the following materials: (1) all notices pertaining to the rulemaking, (2) copies, or where impractical a reference to or index of, all factual material upon which the agency substantially relied in formulating the proposed or final rule, unless the material is by law exempt from disclosure, (3) all written comments submitted by interested persons during the rulemaking, and (4) any other material required by statute or agency rule to be made public in connection with the rulemaking. Views of the Administrative Conference on Proposals Pending in Congress to Amend the Informal Rulemaking Provisions of the APA, 14, 1 C.F.R. S 310.7 (1983). Record. substantial support in the agency record, viewed B. General Considerations for Building the Rulemaking Deciding what to include in the rulemaking record, and when, requires an understanding of the functions to be served by the record. Generally, a rulemaking record should (1) aid public participation in the rulemaking; (2) provide the factual support needed by the agency decisionmaker to decide whether to adopt a rule and, if so, what specific rule; and (3) provide a basis for, or assist, judicial review of the final rulemaking decision. Though an agency conceivably could maintain separate rulemaking files to serve these different functions, the functions themselves are so closely related that it probably would be impractical, if not unwise, to attempt such a task. 1. The rulemaking record as an aid to public participation. The comments of interested persons are likely to be more focused and useful if the commenters have access to the agency's basis for the rulemaking proposal and the comments of others. Most information in the agency's files pertinent to a rulemaking will be obtainable by interested persons under the Freedom of Information Act. 25 However, that Act does not assure interested persons access to information before the end of the comment period established for the rulemaking. Furthermore, the fact that information is in a file somewhere in an agency does not mean the agency considers it relevant to the rulemaking. More significant are the judicial decisions described in the preceding chapter26 that held that procedural error occurred when agencies failed to make information or data available for comment by interested persons in rulemaking. These decisions rest on differing rationales and often involve unique fact situations. 24/ Exec. Order No. 12,291, S 4, 3 C.F.R. 127 (1981). 25/ 5 U.S.C. S 552 (1976). 26/ See Chapter Five at pp. 125-127. Therefore, they cannot be read to constitute a "hard-and-fast" rule or gloss on the APA. Several hybrid rulemaking statutes, 27 however, do require agencies to receive rebuttal comments." Some agencies, like the Federal Communications Commission, voluntarily give interested persons the opportunity to submit "reply 28 comments" in rulemaking. Regardless of the legal requirements governing public access to information relevant to a proposed rule, the rulemaking staff should bear in mind the importance of the rulemaking record or file to persons wishing to submit comment on the rule. 2. The rulemaking record as the basis for the agency decisionmaker's rulemaking decision. A second and related function of the rulemaking record is to provide the agency decisionmaker with enough information to decide if a final rule is warranted, and, if so, what provisions it should contain. Public comments will seldom supply all of the information needed to make these final decisions. Structuring the record or file to serve both the needs of interested persons and the agency decisionmaker may be difficult in complex rulemaking proceedings. If the rulemaking staff waits until completion of the public stage of the proceeding before beginning to organize and analyze the record, a long delay may occur between the deadline for submission of public comments and deliberation on a final rule by the agency. Therefore, the rulemaking staff should attempt at the outset to index and organize the record in a way which facilitates the writing of the decision documents the agency will need to decide the rulemaking." 27/ 29 See Magnuson-Moss FTC Improvements Act, 15 U.S.C. S 57a(cXIXB) (1976); Securities Acts Amendments, 15 U.S.C. S 78f(eX4XAX(1976); Toxic Substances Control Act, 15 U.S.C S 2605(c)3XA) (1976). The Clean Air Act requires the EPA Administrator to keep the rulemaking record open for 30 days after completion of the proceeding to allow submission of rebuttal comments, 42 U.S.C. § 7607(d)(5) (Supp. V 1981). 28/ See FCC Rules of Practice, 47 C.F.R. § 1.415(c) (1982) ("A reasonable time will be provided for filing comments in reply to the original comments...."). (Continued) 3. The rulemaking record as the basis for judicial review. Judges have been somewhat perplexed and unhappy about some of the rulemaking records they have been called upon to review. One court described the record as "a sump in which the parties have deposited a sundry mass of materials that have neither passed through the filter of rules of evidence nor undergone the 1130 refining fire of adversarial presentation." And at the close of a 100-plus page rulemaking review decision, a weary D. C. Circuit panel concluded: "We reach our decision after interminable record search (and considerable soul searching). We have read the record with as hard a look as mortal judges can probably give its thousands of pages."31 The author of that decision, Judge Wald, has stated in another forum that At times it is hard not to feel that no one without benefit of a guide, recommended for amateurs. In part, these complaints stem from the lack of generally accepted standards for agency creation and maintenance of rulemaking records. Probably more important, however, is the fact that rules are typically based on both factual conclusions and assumptions, as well as value or policy judgments, and the fact versus policy elements are of varying importance in different 29/ See discussion infra, at 151 regarding indexing, organizing and maintaining the record. 30/ Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031, 1052 (D.C. Cir. 1979). 31/ Sierra Club v. Costle, 657 F.2d 298, 410 (D.C. Cir. 1981) footnote omitted). See also Ethyl Corp. v. EPA, 541 F.2d 1, 49 n. 102 (D.C. Cir. 1976), cert. denied, 426 U.S. 941 (1976). 32/ Wald, Judicial Review of Complex Administrative Agency Decisions, The Annals of the American Academy of Political and Social Science 72 (1982). rulemakings. Furthermore, the "facts" on which an agency relies are frequently its accumulated experience or "expertise," which is difficult, if not impossible, to package in the record of the proceeding. 33 For these reasons, it has been difficult for people who make or review rules to agree on the type and amount of 34 information agencies need to produce to support a final rule. The burden on judges reviewing rulemaking has increased along with the increase in the volume, importance, and complexity of rulemaking. The agency rulemaking staff cannot do much to relieve this burden in many instances. However, the rulemaking staff can take measures to facilitate judicial review of rulemaking records and avoid complaints like the following by Judge J. Skelly Wright of the Court of Appeals for the D. C. Circuit: Today's informal rulemaking proceedings do not 33/ The U.S. Supreme Court has recognized that some issues arising in rulemaking are "primarily of a judgmental or predictive nature" which do not require proof through factual support in a record. See FCC v. WNCN Listeners Guild, 450 U.S. 582, 594-95 (1981); National Citizens Comm. for Broadcasting, 436 U.S. 775, 813-14 (1978). 34/ Sometimes the agency's enabling statute establishes clear and specific standards that leave little room for disagreement on what is required to support rules. The Delaney Clause of the Federal Food, Drug, and Cosmetic Act, 21 U.S. C. S 348(c)(3)(A), is often cited as an example of this kind of statute. More often, however, the enabling statute either leaves the agency discretion to make such judgments or contains standards that are subject to varying interpretations. See, e.g., Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980) (interpreting statutory provisions dealing with toxic substances in the work place). |