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ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Administrative Conference Recommendation 2013-4
The Administrative Record in Informal Rulemaking
Adopted June 14, 2013
The administrative record in informal rulemaking plays an essential role in informing the
public of potential agency action and in improving the public's ability to understand and
participate in agency decisionmaking. As well, the administrative record can be essential to
judicial review of agency decisionmaking under the Administrative Procedure Act (APA), which
directs courts to review the whole record or those parts of it cited by a party to determine
whether challenged agency action is lawful.1 This statutory language was originally understood
as referring to formal proceedings. However, the Supreme Court has long interpreted this APA
provision as also encompassing the administrative record in informal agency proceedings,
2
whether reviewable by statute or as final agency actions under 5 U.S.C. § 704. This application
to informal proceedings has given rise to uncertainty and experimentation as agencies and
courts have worked to implement the administrative record concept-at times inconsistently.
As a result, confusion has arisen about the compilation and uses of agency rulemaking records
maintained internally, public rulemaking dockets, and administrative records for judicial review.
The differences among these three types of records can be seen from their descriptions below.
The Administrative Conference therefore commissioned a study of federal agencies'
current practices in the development of rulemaking records, public rulemaking dockets, and
administrative records for judicial review.3 This recommendation and the supporting report
1 5 U.S.C. § 706.
2 Camp v. Pitts, 411 U.S. 138, 142 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419 (1971).
3 LELAND E. BECK, AGENCY PRACTICES AND JUDICIAL REVIEW OF ADMINISTRATIVE RECORDS IN INFORMAL RULEMAKING (May 14,
2013) (report to the Administrative Conference of the United States) [hereinafter Beck Report].](ViewImageLocal?handle=hein.usfed/admrcif0001&div=1&collection=&method=preview&ext=.png&size=3)