Administrative
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A full administrative record (everything before the agency
at the time of its decision) consists of all documents considered,
including those contrary to the decision. Keeping an administrative
record will help:
- Future processes understand the decision and its rationale
- Aid the courts in determining whether a decision process
was rational, if the decision goes to court.
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Why Maintain an Administrative Record
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NEPA does not have a citizen
lawsuit provision. However, citizens can file a lawsuit over
a NEPA decision by using the Administrative Procedures Act (APA).
This law, passed in 1946, provides the basis to challenge decisions
or actions taken by Federal agencies. APA allows a person who
thinks they have been harmed by a Federal action to obtain judicial
review of the action. The judge would determine if the decision
was adequately in compliance with NEPA.
The court merely decides if the decision was rational or
arbitrary and capricious. If the court can see how the agency
came to its decision through a rational process, then the EIS
must be upheld.
What is arbitrary or capricious? The judge looks at whether
the agency acted within the legal scope of its authority. Was
the decision based on facts? Was there an error in judgment?
Were the correct factors (those required by Congress) considered?
What the court does and looks at is very narrow. The court does
not take evidence, does not decide if the decision is wise.
The judge looks at the administrative record of the agency
and, therefore, takes no evidence. The judge does not have to
resolve disputes between experts. The agency is entitled to
rely on their experts. BUT the judge must be able to follow
the paper trail and demonstrate the process it went through.
If the record supports the Record of
Decision (ROD) , the judge must affirm
the decision of the agency. The review is ONLY of the FINAL
agency action. Everything done up to that point is not subject
to review -- that is, a citizen or group cannot go to court
over a NEPA document before the ROD is issued.
An agency can run into problems if it does NOT consider
an impact, even though it was brought to their attention. If
there is missing data, the agency needs to show this. Furthermore,
the agency MUST provide reasons for their conclusions.
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Keeping an Administrative Record |
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To decide if record belongs in the administrative
record, keep the decision-making process in mind. If the document
is part of the process up the chain of command that culminated
in the preparing the
EIS or making the decision, the document belongs (unless
it is a personal record). Examples of records to keep:
- Draft and Final EISs (official drafts, but not the preliminary
draft)
- Administrative Draft could be part of the record (use
your judgement--did this change substantially?)
- Comment letters
- All scientific/technical reports, studies considered
- Computer modeling
- Contracts
Examples of personal reords:
- Correspondence between FWS and person developing model
is probably not to be kept
- Personal notes/memos to file; if never shared, were personal
record and NOT part of the official record. However, circulated
memos belong in the record.
Note that E-mail is part of the record; all relevant E-mail
correspondence should be copied and put in the file.
NEPA's public disclosure process is governed by FOIA. You
can withhold information pursuant to FOIA regs' Deliberative
Process Clause (re predecisional documents). However, invoking
predecisional information when still in the decision making
process is vastly different from when the decision has been
made. The deliberative process privilege should be used sparingly.
For example, you might withhold a draft with comments on it
on grounds of deliberative process privilege.
The Administrative Record should include a log/list of documents
being withheld under privilege; keep internal drafts that are
marked up. |
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When Does the Record Begin? |
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The record began when the agency started the
decision making process. The Administrative Record is done in
strict chronological order. A study done in the 1970s, for example,
would go first. The last document is the ROD.
If information is important to other agencies in making
their related decisions, then keep it. Include documents used
but NOT cited in the EIS. Standard texts and studies not particular
to the region need not go in the record. If the study or document
pertains to a specific area do put it in the record.
One copy of each record is all that is needed. |
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Assembling the Record
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Err on the side of too much, rather
than too little. |
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Assign one person as the official custodian for the administrative
record (e.g.,. the Project Manager).
The record should be put together with the idea of facilitating
review. Put the record in three ring volumes and separate
documents with tabs. Have a number on each tab. These numbers
should run
sequentially throughout all volumes. Use a stamp to
sequentially number pages in the lower right hand corner.
If you know undated notes/document all go together, reassemble
to the extent possible.
If you don't recall, don't try to reassemble. Index
each documen to shows the date, short description of the
document, the volume number, and the stamped page number
for each document. This master index goes with volume 1.
It is very helpful to summarize all the administrative
work that has gone on, (e.g., meetings, concerns, etc. An
action plan can serve as a framework
for the administrative record).
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Go On |
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