Sometimes an agency depends upon sources in addition to the hearing record. An agency can go beyond the particular hearing record in rule making proceeding if the agency feels that it is unable to draw upon its expertise.
Therefore, a person designated to make a decision in a rule making proceeding can confer with staff experts, agency expertise, views, or opinions. The designated person can also act on the basis of data contained in the agency’s files or on information gained informally. Moreover, a presiding officer can ask the assistance of staff experts in interpreting technical data in the record.
The Federal Administrative Procedure Act generally obliges an agency to publish for comment the technical studies and data on which it relies.[i] It was observed in Chamber of Commerce of the United States v. SEC, 443 F.3d 890 (D.C. Cir. 2006), that, if the court does not require additional fact gathering on remand, the agency is authorized to determine whether such fact gathering is required. If the agency determines that additional fact gathering is necessary, then notice and comment are required. However, further notice and comment are not required when additional fact gathering only supplements information in the rulemaking record.
An agency can use ‘supplementary’ data, unavailable during the notice and comment period, which expands and confirms information contained in the proposed rulemaking and addresses alleged deficiencies in the pre existing data so long as no prejudice is shown.[ii]
[i] Bldg. Indus. Ass’n v. Norton, 247 F.3d 1241 (D.C. Cir. 2001)
[ii] Chamber of Commerce of the United States v. SEC, 443 F.3d 890 (D.C. Cir. 2006),