understandably gets the uneasy feeling that the A major issue regarding judicial review of rulemaking is whether the record on review should consist only of materials that were before the agency when it made its final decision or whether the agency may augment the record with additional facts or arguments before the reviewing court. The Administrative Conference, in a 1974 recommendation that sought to dispel confusion about issues raised by preenforcement judicial review of informal rulemaking, recommended that the following administrative materials should be before the reviewing court: (1) the notice of proposed rulemaking and any (2) comments and other documents submitted (3) any transcripts of oral presentations made 35/ Wright, New Judicial Requisites for Informal Rulemaking: Implications for the Environmental Impact Statement Process, 29 Ad. L. Rev. 59, 61-62 (1977). Judge Wald of the D.C. Circuit also criticized agency failure to make records accessible to reviewing courts: ... It is only in recent years that many agencies have To be of greatest assistance, the record should Wald, supra note 32, at 80. in the course of the rulemaking; (4) factual information not included in the foregoing that was considered by the authority responsible for promulgation of the rule or that is proffered by the agency as pertinent to the rule; (5) reports of any advisory committees; and (6) the agency's concise general statement or therein. As indicated by item (4) above, the recommendation would not limit review to materials that were before the agency when it made its final rulemaking decision. The Conference did note that a court might limit its consideration to those materials that parties cite, thus recognizing the use of the "joint appendix" in judicial review proceedings. 37 Commentators have criticized Recommendation 74-4 for not confining judicial review to the rulemaking record or file that was before the agency when it made its final rulemaking decision. They argue that confining review to an "exclusive" rulemaking record would have a salutary disciplining effect on agencies and would aid courts in performing their review function. 38 Congress has taken both approaches in enacting statutes containing definitions of the "rulemaking record" for purposes of judicial review. In the Consumer Product Safety Act and the Federal Trade Commission Improvements Act, Congress adopted the "open-ended" definitional approach recommended by the Conference.39 In other instances, Congress has specified that the 36/ ACUS Recommendation 74-4, Preenforcement Judicial Review of Rules of General Applicability, 1 C.F.R. S 305.74-4 (1983). 37 Id., note 1. 38/ See Pedersen, Formal Records and Informal Rulemaking, 85 Yale L.J. 38, 73 (1975); see also 1 K. Davis, Administrative Law Treatise S 6:5 (2d ed. 1978) (in which Professor Davis expresses preference for confining review to the record that was before the agency when it made its decision). 39/ See provisions cited supra at note 18. record for review shall include only information that was before the agency when it made its final decision. Examples are the Toxic Substances Control Act and the Clean Air Act Amendments of 1977.40 Whether or not a statute requires that judicial review be limited to the administrative record which was before the agency when it made its decision, the rulemaking staff should anticipate 41 rejection of "post-hoc" rationalizations for rules and close judicial scrutiny of reliance on data obtained after the public stage of rulemaking. C. Practical Considerations Related to Building the Rulemaking Record. Building a record that will serve these various functions may be difficult given the institutional differences and practical needs 42 of the various actors in rulemaking. By careful planning, however, the agency rulemaker can make the task easier and, also, produce a record that better meets the needs of rulemaking participants. 1. Timing considerations. At least for complex or controversial rulemakings, the rulemaking staff should index and incorporate relevant information in the investigative file into the public rulemaking record as early as possible. Ideally, this should be done before the NPRM is published, because thereafter the staff will be busy analyzing and responding to public comments or inquiries, as well as handling the routine work associated with the conduct of the rulemaking proceeding. Early indexing and organization of information gathered in the investigation is especially important if the investigative file 40/ See note 18, supra. 41/ See authorities cited in Pedersen, Formal Records and Informal Rulemaking, supra note 38 at 65 n. 105; Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto Ins. Co., 51 U.S.L.W. 4953, 49 58 (U.S. June 24, 1983). 42/ For a good discussion of the institutional differences between agencies and courts, see W. Ross, Components of an Adequate Record, in Law and Science in Collaboration 29-33 (Nyhart & Carrow ed.) (Lexington, Mass.: D.C. Heath & Co. 1983). contains information falling within the Freedom of Information Act's exemptions from disclosure. Responding to FOIA requests that require the segregating of exempt from non-exempt records can consume valuable time and resources. This could be especially disruptive during the public stage of rulemaking. The rulemaking staff also must make sure a system exists to quickly place in the record any public comments and other documents received after the NPRM is published. In reacting to the regulatory reform bills pending in Congress in 1982, the Administrative Conference recommended that agencies be required to maintain a public rulemaking file beginning no later than the date on which the notice of proposed rulemaking is published. The Conference recommended that the file include, among other things, "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."43 2. Indexing, organizing and maintaining the record. A rulemaking record which is large and poorly indexed may be functionally unusable by interested persons during the rulemaking, as well as difficult for the agency to use in making its final rulemaking decisions. Inadequately organized records also may jeopardize rules on judicial review. 44 A rulemaking staff typically consists of people with legal or technical training who may lack an appreciation of information management problems, or knowledge of techniques available to avoid such problems. For this reason, the rulemaking staff should seek the advice of information management specialists (e.g., the agency's librarian or docket room personnel) prior to establishing the rulemaking record or docket. Such consultation is most 43/ Views of the Administrative Conference on Proposals Pending in Congress to Amend the Informal Rulemaking Provisions of the APA, supra note 23. 44/ See Wright, New Judicial Requisites for Informal Rulemaking: Implications for the Environmental Impact Statement Process, supra note 35. See also authorities cited in DeLong, Informal Rulemaking and the Integration of Law and Policy, supra note 12, at 269 n. 63. important for rulemakings involving complex subject matters and potentially large impact. However, early in the rulemaking the staff may not know how controversial or complex a proposal will be or what number or type of comments will be received. Therefore, the prudent rulemaking staff should consider carefully the capacity of the information management system to respond to the demands that may be placed on it during the rulemaking. Maintaining a current and reliable index of documents in the rulemaking record, together with the ability to retrieve and reproduce documents quickly, is extremely important if the rulemaking involves large numbers of documents and interested 45 persons. Agencies typically maintain a single record in a central location (usually in Washington, D. C.), and it is practically difficult or impossible to de-centralize recordkeeping so that interested 46 persons can use it throughout the country. Therefore, a current index to the rulemaking record is essential if interested persons, who cannot afford to travel to Washington, are to use the record in preparing comments on the rulemaking proposal. Many agencies now have automated data processing systems, and the rulemaking staff should consider placing the record index on such a system. As written submissions are received in the rulemaking, basic data can be entered on the index. Even such basic information as name of submitter, date of submission, submitter's organization or client, and length of submission can be very useful to persons trying to decide whether to request copies of documents or to travel to Washington to read the documents. A well-designed index to rulemaking record 45/ The Department of Education's proposed rule on assistance to states for education of handicapped children, 47 Fed. Reg. 33,837 (Aug. 4, 1982), is an example of this type of rulemaking. By April of 1983, the Department had received over 30,000 comments. Comments were coded for entry into a computer data base, using a system that included categories for geographical location of commenter, identity or type of commenter, and subject matter. 46/ However, the Clean Air Act's rulemaking section provides that "Whenever a rule applies only within a particular state, a second (identical) docket shall be simultaneously established in the appropriate regional office of the Environmental Protection Agency," 42 U.S.C. S 76 07(d)(2). |