On June 11, 2026, the Administrative Conference of the United States (ACUS) convened its Eighty-fifth Plenary Session, a hybrid event gathering legal professionals, policymakers, and academics. During this session, ACUS adopted four new recommendations designed to enhance the efficiency, adequacy, and fairness of administrative procedures across federal agencies. These recommendations, which will inform agencies, the President, Congress, and the Judicial Conference of the United States, target critical areas of federal governance. This development underscores ACUS's ongoing commitment to improving the machinery of government through well-researched, practical guidance.
ACUS's Mandate and Recent Actions
The Administrative Conference Act, 5 U.S.C. 591-596, empowers ACUS to study and recommend improvements to administrative procedures. This includes a broad range of activities from regulatory development to agency decision-making processes. The recommendations adopted at the 85th Plenary Session reflect this mandate, seeking to provide clear, actionable best practices for federal entities. The four adopted recommendations are 2026-5 on Interagency Communication in Rulemaking, 2026-6 on Best Practices for Drafting Regulatory Preambles in Light of Judicial Review, 2026-7 on Agreements Between Agencies with Related Regulatory Responsibilities, and 2026-8 on Effectuation of Awards of Recurring Monetary Benefits.
Deep Dive into Interagency Communication in Rulemaking
Recommendation 2026-5, titled "Interagency Communication in Rulemaking," is particularly noteworthy for its detailed guidance on how federal agencies should interact with one another throughout the rulemaking process. This recommendation emphasizes practices that foster accuracy, efficiency, and transparency, especially for communications outside the formal interagency review mechanisms administered by the Office of Information and Regulatory Affairs (OIRA). The core of this recommendation is to improve the quality of rules, enhance rulemaking efficiency, and ensure effective coordination across the executive branch.
Agencies communicate for various reasons in rulemaking. Sometimes, Congress explicitly mandates consultation, information sharing, or collaboration, as seen in 7 U.S.C. 136s, which requires the Environmental Protection Agency Administrator to solicit views from the Secretaries of Agriculture and Health and Human Services for certain regulations. Presidential directives also frequently require such communication. For instance, Executive Order 13984 by President Trump mandated the Secretary of Commerce to consult with other federal agencies before proposing regulations on malicious cyber activities. Executive Order 12866, as amended by Executive Order 14215, further expands OIRA's review and coordination process to include independent regulatory agencies, creating a structured environment for interagency engagement.
However, much interagency communication is informal, driven by agencies seeking advice, information, or expertise on their own initiative. This is particularly true for agencies with shared, overlapping, or closely related regulatory authority or priorities. Recommendation 2026-5 encourages these informal exchanges while also advocating for standardized communications when beneficial.
The recommendation outlines best practices for when and on what matters agencies should proactively seek input from other agencies. This includes situations where agencies are statutorily required to communicate, are directed by the President or an interagency agreement, or possess shared regulatory authority or priorities. It also addresses how agencies should engage with other agencies, how input should be considered and utilized, and what communications should be made part of the public rulemaking docket and administrative record for judicial review.
Disclosure and Transparency Considerations
A critical aspect of interagency communication involves disclosure. Agencies must consider whether to include communications in the public rulemaking docket and administrative record for judicial review. While many interagency communications are exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552(b)(5)), statutes or presidential directives can mandate disclosure. Furthermore, agencies may be required to disclose communications that contain "critical factual material" necessary for effective public participation or judicial review, as highlighted in cases like Ass'n of Data Processing Serv. Orgs v. Bd. of Governors. Agencies may also voluntarily disclose communications to promote transparency or demonstrate reasoned decision-making.
Recommendation 2026-5 builds upon ACUS's prior guidance, specifically Recommendation 80-6, which generally allowed agencies to receive policy advice without a duty to docket it, but required docketing of "material factual information." The new recommendation encourages agencies to develop internal policies guiding personnel on when and how to communicate with other agencies, ensuring a more consistent and transparent approach.
Other Key Recommendations Adopted
Beyond interagency communication, ACUS also adopted three other significant recommendations:
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Recommendation 2026-6: Best Practices for Drafting Regulatory Preambles in Light of Judicial Review This recommendation provides guidance on explaining agency decision-making in preambles to proposed and final rules. It aims to improve public, judicial, and congressional understanding of how agencies determined legal authority, evaluated the rulemaking record, and reached policy decisions, responding to recent judicial review developments.
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Recommendation 2026-7: Agreements Between Agencies with Related Regulatory Responsibilities This guidance focuses on best practices for using, developing, implementing, and disclosing agreements between agencies with shared or overlapping regulatory responsibilities. It seeks to promote accuracy, fairness, efficiency, transparency, and accountability in these interagency collaborations.
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Recommendation 2026-8: Effectuation of Awards of Recurring Monetary Benefits This recommendation offers guidance to agencies administering programs that provide recurring monetary benefits. It identifies best practices for determining benefit amounts, making payments, improving access to information, effective communication with claimants, quality assurance, and leveraging technology to ensure accuracy, efficiency, timeliness, transparency, and fairness in the payment process.
These four recommendations collectively represent a comprehensive effort by ACUS to refine and strengthen federal administrative processes, ensuring that government functions more effectively and transparently for all stakeholders.
