91 FR 39584 – Adoption of Recommendations

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

Adoption of Recommendations

AGENCY:

Administrative Conference of the United States.

ACTION:

Notice.

SUMMARY:

The Assembly of the Administrative Conference of the United States adopted four recommendations at its hybrid (virtual and in-person) Eighty-fifth Plenary Session: Interagency Communication in Rulemaking; Best Practices for Drafting Regulatory Preambles in Light of Judicial Review; Agreements Between Agencies with Related Regulatory Responsibilities; and Effectuation of Awards of Recurring Monetary Benefits.

FOR FURTHER INFORMATION CONTACT:

For Recommendation 2026-5, Adam Cline; Recommendation 2026-6, Kazia Nowacki; Recommendation 2026-7, Becaja Caldwell; and Recommendation 2026-8, Lea Robbins. For each of these recommendations the address and telephone number are: Administrative Conference of the United States, Suite 706 South, 1120 20th Street NW, Washington, DC 20036; Telephone 202-480-2080.

SUPPLEMENTARY INFORMATION:

The Administrative Conference Act, 5 U.S.C. 591-596, established the Administrative Conference of the United States. The Conference studies the efficiency, adequacy, and fairness of the administrative procedures used by Federal agencies and makes recommendations to agencies, the President, Congress, and the Judicial Conference of the United States for procedural improvements (5 U.S.C. 594(1)). For further information about the Conference and its activities, see www.acus.gov.

The Assembly of the Conference met during its Eighty-fifth Plenary Session on June 11, 2026, to consider four proposed recommendations and conduct other business. All four recommendations were adopted.

Recommendation 2026-5, Interagency Communication in Rulemaking, addresses how agencies communicate with each other throughout the rulemaking process—especially outside the formal interagency review processes administered by the Office of Information and Regulatory Affairs—and offers a set of best practices for agencies that promote accuracy, efficiency, and transparency. Among other topics, the recommendation addresses when and on what matters agencies should proactively seek input from other agencies, how agencies should engage with other agencies, how agencies should consider and use input received from other agencies, and what communications agencies should make part of the public rulemaking docket and administrative record for judicial review.

Recommendation 2026-6, Best Practices for Drafting Regulatory Preambles in Light of Judicial Review, identifies best practices for drafting rulemaking preambles in light of recent developments in how courts review agency rules. To promote improved understanding of agency decision making by the public, courts, and Congress, this recommendation identifies best practices to help agencies explain, in the preambles to proposed and final rules, how they determined their legal authority, evaluated the rulemaking record, and reached policy decisions.

Recommendation 2026-7, Agreements Between Agencies with Related Regulatory Responsibilities, identifies best practices to assist agencies in using, developing, managing the implementation of, and disclosing agreements between agencies that have shared, overlapping, or closely related regulatory responsibilities in a manner that promotes accuracy, fairness, efficiency, transparency, and accountability. The recommendation considers the goals that agencies seek to achieve through agreements; processes for negotiating, drafting, and structuring agreements; practices for managing and monitoring the implementation of agreements; and standards for disclosing agreements that affect members of the public.

Recommendation 2026-8, Effectuation of Awards of Recurring Monetary Benefits, provides guidance to agencies that administer programs of recurring monetary benefits for effectuating payment following an award of benefits. It identifies best practices for determining benefits amounts; making payments; improving access to information; communicating effectively with claimants and representatives; promoting quality assurance practices; and using technology to promote accuracy, efficiency, timeliness, transparency, and fairness in the effectuation process.

The Conference based its recommendations on research reports and prior history that are posted at: https://www.acus.gov/event/85th-plenary-session.

Authority: 5 U.S.C. 595.

Dated: June 25, 2026.

Shawne C. McGibbon,

General Counsel.

Appendix—Recommendations of The Administrative Conference of The United States Administrative Conference Recommendation 2026-5 Interagency Communication in Rulemaking Adopted June 11, 2026 Agencies frequently communicate with each other in rulemakings. They regularly share information, experience, and expertise; provide input and feedback on draft rules; and coordinate related regulatory action, for example. ¹ Such interagency communication improves the quality of rules, enhances efficiency in rulemaking, and allows for effective coordination in policymaking across the executive branch. ² ¹ Christopher Carrigan, Interagency Communication in Rulemaking 8-10 (May 18, 2026) (report to the Admin. Conf. of the U.S.). ² See Admin. Conf. of the U.S., Recommendation 2012-5, Improving Coordination of Related Agency Responsibilities, 77 FR 47810 (Aug. 10, 2012). Agencies communicate with one another in rulemaking for several reasons. Sometimes, Congress expressly requires interagency consultation, information sharing, or collaboration in promulgating rules. ³ The President also sometimes requires interagency communication during rulemakings. ⁴ Executive Order 12866, Regulatory Planning and Review, requires most agencies to submit regulatory actions that are deemed “significant” to the Office of Information and Regulatory Affairs (OIRA) for formal interagency review, which includes a process for addressing conflicts between agencies. ⁵ Agencies also often seek advice, information, and expertise from other agencies on their own initiative, especially from agencies with related regulatory missions and activities. Interagency communication is essential when agencies have shared, overlapping, or closely related regulatory authority or priorities. ⁶ ³ See, e.g., 7 U.S.C. 136s (requiring the Administrator of the Environmental Protection Agency to “solicit the views of” the Secretary of Agriculture and the Secretary of Health and Human Services before publishing regulations under the Federal Insecticide, Fungicide, and Rodenticide Act). ⁴ See, e.g., Exec. Order No. 13984, 86 FR 6837 (Jan. 19, 2021) (requiring the Secretary of Commerce to consult with other specific federal agencies before proposing certain regulations related to malicious cyber activities). ⁵ See Exec. Order No. 12866, 58 FR 51735 (Sept. 30, 1993), amended by Exec. Order No. 14215, 90 FR 10447 (Feb. 24, 2025) (expanding this review and coordination process to include independent regulatory agencies). This Recommendation focuses on interagency communication outside of the OIRA interagency review process. ⁶ Carrigan, supra note 1, at 20, 24-28. Interagency communication occurs at all stages of rulemaking, from regulatory planning and the earliest discussions of a potential rule through notice and comment and the adoption of a final rule. Discussions between agencies can be particularly useful early in the rulemaking process—before a rule is drafted, for example—to gain additional subject-matter expertise, ascertain the effectiveness of a potential rule, evaluate regulatory alternatives, ⁷ and identify potential effects on other agencies. ⁷ See Admin. Conf. of the U.S., Recommendation 2021-3, Early Input on Regulatory Alternatives, 86 FR 36082 (July 8, 2021). What form these communications take depends on whether communication is required, the reason for communicating, and the stage of the rulemaking. Most interagency communication in rulemaking is informal, ad hoc, and based upon preexisting relationships between counterparts across agencies. For example, rule drafters at one agency might meet informally or share notes with colleagues at another agency to evaluate the effectiveness of a potential rule or to gain subject-matter expertise. Agencies use more formal methods of communication, including structured planning meetings and cross-agency working groups, particularly when they engage in joint rulemaking or when a rule involves an area over which multiple agencies have regulatory jurisdiction. ⁸ As discussed in a previous recommendation of the Administrative Conference, such formal methods may be especially useful for agencies that have shared, overlapping, or closely related regulatory authority and priorities. ⁹ Additionally, agencies sometimes enter into binding or nonbinding agreements that require or contemplate communication in rulemaking. ¹⁰ Agencies also occasionally submit comments in response to rules proposed by other agencies. ¹¹ ⁸ Carrigan, supra note 1, at 28-29. ⁹ Recommendation 2012-5, supra note 2. ¹⁰ Carrigan, supra note 1, at 11-13. Another Conference recommendation addresses agreements between agencies with related regulatory responsibilities. See Admin. Conf. of the U.S., Recommendation 2026-7, Agreements Between Agencies with Related Regulatory Responsibilities, 91 FR _ (2026). ¹¹ See, e.g., Nat'l Wildlife Fed'n v. Andrus, 440 F. Supp. 1245, 1253 (D.D.C. 1977); see also Daniel A. Farber & Anne Joseph O'Connell, Agencies as Adversaries, 105 Calif. L. Rev. 1375, 1457-60 (2017). When an agency communicates with another agency during a rulemaking, it must consider how to use the information provided by the other agency and how, if appropriate, to address the information in the proposed or final rule. The agency also decides whether to include such communications in the public rulemaking docket and, if the rule is challenged in court, in the administrative record for judicial review. ¹² In some cases, agencies may be required to disclose interagency communications. A statute or presidential directive may require the disclosure, for example, or the communication may include “critical factual material” that supports effective public participation or judicial review. ¹³ In other circumstances, agencies may disclose interagency communications on their own initiative. For example, although many interagency communications in rulemaking are exempt from disclosure under the Freedom of Information Act, ¹⁴ agencies sometimes disclose interagency communications to promote transparency, show that they followed required procedures, or support their position that they engaged in reasoned decision making. ¹² The “public rulemaking docket” is “the public version of the rulemaking record managed by the agency” and includes “all information that has been made available for public viewing” in connection with the rule. Admin. Conf. of the U.S., Recommendation 2013-4, Administrative Record in Informal Rulemaking, 78 FR 41358, 41359 (July 10, 2013). The “administrative record for judicial review” means “the materials tendered by the agency and certified to a court on review of the agency's regulatory action.” Id. ¹³ See, e.g., Ass'n of Data Processing Serv. Orgs v. Bd. of Governors, 745 F.2d 677, 684 (D.C. Cir. 1984); see also Admin. Conf. of the U.S., Recommendation 2013-4, supra note 12. ¹⁴ 5 U.S.C. 552(b)(5) (permitting agencies to withhold “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than agency in litigation with the agency”). In Recommendation 80-6, Intragovernmental Communications in Informal Rulemaking, the Conference concluded that agencies generally should “be free to receive written or oral policy advice and recommendations” from other agencies without having a duty to place them in the public rulemaking docket. The Conference recommended, however, that agencies should promptly place in the public rulemaking docket all intragovernmental communications that contain “material factual information” pertaining to or affecting a proposed rule. ¹⁵ ¹⁵ Admin. Conf. of the U.S., Recommendation 80-6, Intragovernmental Communications in Informal Rulemaking, 45 FR 86407 (Dec. 31, 1980). In this Recommendation, the Conference more broadly encourages agencies to communicate with one another throughout the rulemaking process, especially early in regulatory planning and rule drafting. It encourages agencies to promote informal communication with other agencies, consistent with common agency practice, while also contemplating situations where standardizing communications would be more beneficial. It provides best practices for determining when in the rulemaking process and on what matters agencies should proactively seek input from other agencies, how agencies should consider feedback received from other agencies, and when interagency communications should be made part of the public rulemaking docket and administrative record for judicial review. It also recommends that agencies develop internal policies to guide agency personnel on whether, when, and how to communicate with other agencies throughout the rulemaking process. Recommendation Proactively Engaging in Interagency Communication 1. Agencies should proactively solicit input on their draft or planned rules, as early as practicable, from other agencies that: a. Are statutorily required to communicate or coordinate on the relevant rulemaking; b. Are directed to communicate or coordinate on the relevant rulemaking by the President or an interagency agreement; c. Have shared, overlapping, or closely related, regulatory authority or priorities; d. Have regulatory schemes that could be significantly affected by a draft or planned rule; e. Have relevant expertise in, or resources relating to, the subject or structure of a draft or planned rule; or f. Are parties to a binding or nonbinding agreement that contemplates interagency communication or coordination in rulemaking. 2. Agencies should monitor entries in the Unified Agenda of Regulatory and Deregulatory Actions for planned rules that may significantly overlap with their own regulatory missions and activities and, when appropriate, should proactively offer pre-proposal feedback on these planned rules. Facilitating Interagency Communication 3. Officials involved in rulemaking should, when appropriate, communicate informally with colleagues from other agencies throughout the rulemaking process. Such informal communication may be especially beneficial when an agency is: a. Discussing upcoming regulatory activities or coordinating regulatory agendas; b. Determining the workability of a potential rule, potential regulatory alternatives, and potential effects that the rule may have on other agencies; or c. Seeking information or expertise from another agency that has relevant knowledge of the regulatory area at issue. 4. If agencies communicate frequently in rulemaking on an informal basis, they should consider compiling lists of agency contacts on particular topics or conducting periodic interagency meetings. 5. Agencies that communicate with other agencies during the drafting or development of a rule—particularly those that have shared, overlapping, or closely related regulatory authority or priorities—should consider reconvening after the comment period to clarify specific issues, review public comments, and discuss potential responses. Receiving Interagency Feedback 6. Agencies should evaluate all substantive feedback received from other agencies on a draft or proposed rule and should consider revising the rule, as appropriate, based on the feedback received. Agencies should give particular attention to feedback from another agency when that agency: a. Provides feedback pursuant to a statutory requirement, presidential directive, or interagency agreement; b. Has shared, overlapping, or closely related regulatory authority or priorities; c. Has significant expertise in the subject of the rulemaking; or d. Provides data or opinions relevant to the rulemaking that conflict with the drafting agency's findings. 7. When an agency receives substantive feedback from another agency or agencies on a draft or proposed rule but chooses not to revise the rule in response, it should inform the other agency or agencies why the feedback was not incorporated into the proposed or final rule. Managing Interagency Communication in the Public Rulemaking Docket and Administrative Record for Judicial Review 8. When determining whether to include specific interagency communications in the public rulemaking docket or administrative record for judicial review, agencies should consider the different legal standards that apply in those contexts. Factors that may be relevant include: a. Whether disclosure is either required or prohibited by law; b. Whether the other agency intended for its communication to be treated as a public comment or has otherwise consented to public disclosure of its communication; c. Whether the interagency communication informed the proposed or final rule; d. Whether an interagency communication was required by statute, directed by the President, or made under an interagency agreement; e. Whether the communication contained “material factual information” consistent with Recommendation 80-6, Intragovernmental Communication in Informal Rulemaking; f. Whether the interagency communication occurred before the notice of proposed rulemaking was published; g. Whether its inclusion would enhance transparency in the administrative process; h. Whether its inclusion would undercut the free-flowing exchange of feedback and information between agencies in rulemaking; and i. Whether the interagency communication merely repeats or instead supplements information that is available elsewhere in the public docket. 9. When deciding whether to disclose a particular interagency communication in the public rulemaking docket or administrative record, agency personnel should consult their legal counsel within their agency—and, as appropriate, the Department of Justice—to assess the potential legal risks and benefits associated with disclosure. 10. When agencies decide not to disclose interagency communications or identify the agencies with which they communicated, they should nonetheless explain in relevant rulemaking documents the key insights drawn from these communications as they relate to the rationale for a rule. Developing Policies for Interagency Communication 11. Agencies should develop, and keep up to date, internal written policies regarding whether, when, and how to communicate with other agencies in the rulemaking process. In developing such policies, agencies should consider the following: a. Any statutes, binding or nonbinding agreements, or presidential directives addressing interagency communication in rulemaking; b. Areas of shared, overlapping, or closely related regulatory authority or priorities that might require, or benefit from, engagement with other agencies; c. Whether an interagency communication should or must assume a specific form ( e.g., consultation, coordination, interagency commenting); d. Whether and when deviations from such policies might be appropriate; e. How the rulemaking agency determines whether an interagency communication should be disclosed in the public rulemaking docket or administrative record for judicial review; f. The stage of a rulemaking at which communications with other agencies would be most beneficial; g. Feasible alternatives to placing interagency communications in the docket, such as including a redacted version or creating a separate document that contains only the factual information extracted from the communication; h. Informing agencies that their communications may be included in the docket or administrative record; and i. How to facilitate disclosure without discouraging interagency communication in rulemaking. Administrative Conference Recommendation 2026-6 Best Practices for Drafting Regulatory Preambles in Light of Judicial Review Adopted June 11, 2026 There are two key documents associated with notice-and-comment rulemaking: the notice of proposed rulemaking (NPRM) and the final rule. ¹ In addition to the text of proposed and final rules, both types of documents typically include a section, commonly referred to as a preamble, ² that provides an explanation for the agency's proposal or decision. ¹ Although this Recommendation is limited to notices of proposed rulemaking and final rules, agencies may wish to take many of this Recommendation's provisions into account when drafting other materials, including advance notices of proposed rulemaking, requests for information, policy statements, interpretive rules, and orders and opinions made in the adjudication of cases. ² Under Office of the Federal Register rules, “[e]ach agency submitting a proposed or final rule document for publication shall prepare a preamble which will inform the reader, who is not an expert in the subject area, of the basis and purpose for the rule or proposal.” 1 CFR 18.12. The Administrative Procedure Act (APA) dictates what information agencies are required to include in these key documents, and agencies often include this required information in preambles. An NPRM must include: (1) a statement of the time, place, and nature of the proposed rulemaking proceedings; (2) a reference to the legal authority under which the rule is proposed; (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved; and (4) the internet address of a [brief, plain-language summary] of the proposed rule[.] ³ ³ 5 U.S.C. 553(b). A final rule must include a “concise general statement of [the rule's] basis and purpose.” ⁴ If the agency for “good cause” found that notice and public procedure was “impracticable, unnecessary, or contrary to the public interest,” the final rule must also include a brief statement of reasons as to why. ⁵ ⁴ Id. § 553(c). ⁵ Id. § 553(b)(4)(B); see also Admin. Conf. of the U.S., Recommendation 2024-6, Public Engagement in Agency Rulemaking Under the Good Cause Exemption, 89 FR 106508 (Dec. 30, 2024). Other statutes, ⁶ executive orders, ⁷ judicial decisions, ⁸ and rules governing publication in the Federal Register ⁹ also dictate what agencies must include in preambles. Contents range from simple and routine matters ( e.g., contact information, instructions for submitting written comments) to technical and complex matters ( e.g., analysis of expected benefits and costs, ¹⁰ analysis of regulatory alternatives, ¹¹ responses to significant public comments ¹² ). ⁶ See, e.g., 2 U.S.C. 1532(b) (requiring analysis of the impact of proposed and final rules on state, local, and tribal governments); 5 U.S.C. 603-604 (requiring analysis of the impact of proposed and final rules on small entities); 44 U.S.C. 3507(d) (requiring an explanation of how any collection of information responds to comments). ⁷ See generally Rulemaking Requirements from the Executive Office of the President, in Admin. Conf. of the U.S., Fed. Admin. Procedure Sourcebook, https://sourcebook.acus.gov/wiki/Rulemaking_Requirements_from_the_Executive_Office_of_the_President (last updated April 6, 2026). ⁸ See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983). ⁹ See, e.g., 1 CFR 18.12 (general requirements), 51.5 (incorporation by reference); see generally Nat'l Archives & Records Admin., Off. of the FR, Federal Register Document Drafting Handbook 2.4 (Aug. 2018 ed., rev. 2.2 2025), https://www.archives.gov/files/federal-register/write/handbook/ddh.pdf. ¹⁰ See, e.g., Exec. Order No. 12866 § 6(a)(3), 58 FR 51735, 51741-42 (Oct. 4, 1993). ¹¹ See State Farm, 463 U.S. at 48-51. ¹² See Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 96 (2015). Regulatory preambles serve several objectives and speak to several audiences. They promote transparency in agency decision making by offering agencies an opportunity to identify publicly the legal basis for and purpose of their rules and explain how rules will achieve policy objectives. Relatedly, preambles facilitate public participation in rulemakings by offering interested persons detailed explanations of the law and facts that agencies considered and the findings and conclusions they reached. Preambles also invite feedback from interested persons on particular issues raised by a proposed rule, such as the choice among alternative approaches. Preambles also provide guidance prospectively to officials charged with administering rules and persons affected by them. In addition, preambles support oversight and review by the Executive Office of the President and Congress. Preambles are also important for judicial review of agency rules. When courts review rules, they often must assess the agency's interpretation of relevant statutes and the agency's exercise of delegated discretionary authority. ¹³ Courts may also assess the reasonableness of the rule in light of how the agency considered public comments ¹⁴ and regulatory alternatives, ¹⁵ any justifications for changes in policy that the rule represents, ¹⁶ and the rule's consistency with longstanding agency practice. ¹⁷ ¹³ Cf. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394-95 (2024). ¹⁴ Cf. Ohio v. EPA, 603 U.S. 279, 292-94 (2024). ¹⁵ Cf. Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 30-33 (2020). ¹⁶ Cf. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-15 (2009). ¹⁷ Cf. West Virginia v. EPA, 597 U.S. 697, 726-28 (2022). In several recent decisions, the Supreme Court has explained how courts should consider these questions in three areas: the appropriate deference to an agency's statutory interpretation, the major questions doctrine, and the doctrine governing agency changes in position. In Loper Bright Enterprises v. Raimondo, the Court held that courts should “exercise independent judgment in determining the meaning of statutory provisions.” ¹⁸ The Court explained, citing Skidmore v. Swift & Co., that in exercising such judgment, courts may “seek aid from the interpretations of those responsible for implementing particular statutes.” ¹⁹ The Court noted further that “interpretations issued contemporaneously with the statute at issue, and which have remained consistent over time, may be especially useful in determining the statute's meaning.” ²⁰ The Court also stated that the best interpretation of a statute “may well be that the agency is authorized to exercise a degree of discretion,” such as when a statute “ `expressly delegate[s]' to an agency the authority to give meaning to a particular statutory term,” “empower[s] an agency to prescribe rules to `fill up the details' of a statutory scheme,” or “regulate subject to the limits imposed by a term or phrase that `leaves agencies with flexibility,' . . . such as `appropriate' or `reasonable.' ” ²¹ ¹⁸ Loper Bright, 603 U.S. at 394. ¹⁹ Id. (citing 323 U.S. 134, 140 (1944)). ²⁰ Id. ²¹ Id. at 394-95. The Supreme Court has defined the major questions doctrine across several cases, but the doctrine continues to evolve. Under some formulations of the doctrine, an agency must point to “clear congressional authorization” in “cases in which the `history and the breadth of the authority that [the agency] has asserted' and the `economic and political significance' of that assertion, provide a `reason to hesitate before concluding that Congress' meant to confer such authority.” ²² In determining whether a matter falls under the major questions doctrine, some courts look at past agency practices and regulatory antecedents, whether the agency's role has changed, and whether the agency has gone beyond the domain in which it exercises expertise. ²³ ²² West Virginia, 597 U.S. at 721, 723; see also Learning Resources, Inc. v. Trump, 607 U.S. __(2026); Biden v. Nebraska, 600 U.S. 477 (2023). ²³ See Daniel T. Deacon, Drafting Regulatory Preambles (May 11, 2026) (report to the Admin. Conf. of the U.S.). The Supreme Court has also held that when a reviewing court finds that an agency has changed its existing policy, it must determine whether the agency displayed “awareness that it [was] changing position” and offered “good reasons for the new policy.” ²⁴ In determining whether good reasons exist for the new policy, a reviewing court may consider whether facts have changed or the reasons why the agency has come to a different conclusion. ²⁵ A reviewing court may also assess whether the agency has considered reliance interests. ²⁶ ²⁴ FDA v. Wages & White Lion Invs., L.L.C., 604 U.S. 542, 570 (2025) (quoting FCC v. Fox Television Studios, Inc., 556 U.S. 502, 515 (2009)). ²⁵ See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41-42 (1983). ²⁶ See, e.g., id.; Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 30 (2020). Because a preamble is part of the whole record on judicial review ²⁷ and provides an authoritative, contemporaneous rationale for the rule, ²⁸ reviewing courts often consider preambles to resolve, among other questions, whether an agency had legal authority to adopt a rule and acted reasonably in adopting it. ²⁹ ²⁷ See 5 U.S.C. 706. ²⁸ Cf. SEC v. Chenery Corp., 318 U.S. 80, 87 (1943). ²⁹ See Deacon, supra note 23. Addressing the various objectives that preambles serve, the Conference has, in prior recommendations, encouraged agencies to consider discussing important matters in preambles such as frameworks for retrospective review and paperwork burdens associated with the collection of data to facilitate retrospective review; ³⁰ consideration of regulatory alternatives; ³¹ cost-benefit analysis; ³² severability; ³³ consultation with state, tribal, and local governments; ³⁴ evaluation of scientific information; ³⁵ ex parte communications; ³⁶ consideration of mass, computer-generated, and falsely attributed comments; ³⁷ the duration of temporary rules; ³⁸ the use of contractors to perform rulemaking-related functions; ³⁹ and the timing of significant “midnight rules.” ⁴⁰ The Conference has also recommended that agencies provide user-friendly summaries of complex preambles, ⁴¹ use plain-language best practices and writing techniques when drafting preambles, ⁴² and include section-by-section analyses of final rules. ⁴³ ³⁰ Admin. Conf. of the U.S., Recommendation 2014-5, Retrospective Review of Agency Rules, ¶¶ 2-3, 79 FR 75114, 75116 (Dec. 17, 2014). ³¹ Admin. Conf. of the U.S., Recommendation 2021-3, Early Input on Regulatory Alternatives, ¶ 7, 86 FR 36082, 36083 (July 8, 2021). ³² Admin. Conf. of the U.S., Recommendation 2013-2, Benefit-Cost Analysis at Independent Regulatory Agencies, ¶¶ 7-8, 78 FR 41355, 41356-57 (July 10, 2013). ³³ Admin. Conf. of the U.S., Recommendation 2018-2, Severability in Agency Rulemaking, 83 FR 30685 (June 29, 2018). ³⁴ Admin. Conf. of the U.S., Recommendation 2025-2, Consultation with State, Local, and Tribal Governments in Regulatory Policymaking, ¶ 11, 90 FR 27517, 27519 (June 27, 2025). ³⁵ Admin. Conf. of the U.S., Recommendation 2013-3, Science in the Administrative Process, ¶ 1, 78 FR 41357, 41358 (July 10, 2013). ³⁶ Admin. Conf. of the U.S., Recommendation 2014-4, “Ex Parte” Communications in Informal Rulemaking, ¶ 5(a), 79 FR 35993, 35995 (June 25, 2014). ³⁷ Admin. Conf. of the U.S., Recommendation 2021-1, Managing Mass, Computer-Generated, and Falsely Attributed Comments, 86 FR 36075 (July 8, 2021). ³⁸ Admin. Conf. of the U.S., Recommendation 2026-2, Temporary Rules, ¶ 4, 91 FR 6173, 6175 (Feb. 11, 2026). ³⁹ Admin. Conf. of the U.S., Recommendation 2022-1, Contractors in Rulemaking, ¶ 8, 87 FR 39798, 39799 (July 5, 2022). ⁴⁰ Admin. Conf. of the U.S., Recommendation 2012-2, Midnight Rules, ¶ 3, 77 FR 47802, 47803 (Aug. 10, 2012). ⁴¹ Admin. Conf. of the U.S., Recommendation 2013-5, Social Media in Rulemaking, ¶ 12, 78 FR 76269, 76271 (Dec. 17, 2013). ⁴² Admin. Conf. of the U.S., Recommendation 2017-3, Plain Language in Regulatory Drafting, ¶ 6, 82 FR 61728, 61730 (Dec. 29, 2017). ⁴³ Admin. Conf. of the U.S., Recommendation 2014-3, Guidance in the Rulemaking Process, ¶¶ 1-4, 79 FR 35992, 35993 (June 25, 2014). This Recommendation builds on these earlier recommendations by offering additional best practices for drafting regulatory preambles that take into account recent decisions by the Supreme Court governing the review of agency statutory interpretations and exercises of policymaking discretion. The Conference recognizes that because regulatory preambles serve many objectives beyond facilitating judicial review, agencies must balance different goals in drafting them. The Conference also recognizes that the best practices that follow may not be appropriate in all rulemakings. For example, in routine rulemakings in areas in which an agency has established legal authority, some of the best practices identified may be less relevant or be outweighed by other considerations. Agencies should account for their specific circumstances when implementing this Recommendation. Recommendation Explaining Agency Interpretations of Statutes 1. When an agency proposes or adopts a rule, the agency should identify in the preamble the statute under which the rule is proposed or adopted and explain why the proposed or final rule is consistent with the best interpretation of the statute, using the full range of relevant interpretive tools. In explaining its interpretation, the agency should address, when relevant, factors that may include: a. How the agency's interpretation of the statute coheres with the statutory text and structure, advances statutory purposes, is informed by legislative history, produces sound results, and otherwise makes sense when placed in the full statutory context; b. Whether the agency interprets the statute as delegating discretionary authority to the agency; c. How the agency interprets the boundaries of any delegated discretionary authority; d. How the agency resolved any factual or empirical questions to arrive at its interpretation of the statute; and e. How the agency's current interpretation of the statute is consistent with its past interpretation of the statute or, conversely, why the agency is departing from its prior interpretation of the statute. 2. When an agency relies on delegated discretionary authority when proposing or adopting a rule, it should identify in the preamble what statutory provisions are the source of that express or implied delegated discretionary authority and how the best readings of those provisions support the agency's exercise of that delegated discretionary authority. 3. When an agency explains in the preamble to a proposed or final rule how its current interpretation of a statute is consistent with its past interpretation of the statute, it should draw from relevant past agency actions. A broad range of past agency actions may be relevant, including guidance documents, orders and opinions made in the adjudication of cases, and agency positions in litigation. When there is no prior interpretation that matches the current interpretation, the agency should consider citing analogous interpretations or other evidence of past practice that reveals an interpretation of the statute that is consistent with the agency's current interpretation. 4. When an agency departs from its prior interpretation of a statute in proposing or adopting a rule, it should explain in the preamble why the revised interpretation represents the best interpretation of the statute (see Paragraph 1) and, when appropriate, explain the departure by discussing, for example, why the agency's prior interpretation: a. Did not accord with the best interpretation of the statute; b. Proved unworkable; c. Frustrated statutory purposes; or d. Caused unsound results. 5. If a major questions issue arises when an agency is developing a rule or is invoked by a comment received in response to a notice of proposed rulemaking, and if the agency determines it should address the issue, the agency should explain in the preamble to the proposed or final rule why the rule does or does not raise a major questions concern. In doing so, the agency should address as necessary the full range of factors that a reviewing court may consider in resolving a major questions challenge, including but not limited to: a. The text of the statute; b. Regulatory antecedents for the rule, explaining how closely such antecedents match the current rule; c. The scope of the rule; and d. The costs and burdens associated with the rule. Demonstrating the Reasonableness of Agency Rules 6. An agency should explain in the preamble to a proposed or final rule why it is proposing or adopting a rule. In doing so, the agency should explain, as appropriate: a. What criteria the agency considered in developing the rule and why those criteria are appropriate under the statute; b. How the rule comports with the statutory text; c. How the rule advances statutory objectives; d. Why the rule is preferable to the status quo; e. Why its choices would be justified under alternative decisional criteria ( e.g., if it was required to consider implementation costs and if it was not); and f. Whether the agency relies on predictive judgments formed on the basis of incomplete evidence, without claiming more certainty than is appropriate. 7. In the preamble to a final rule, an agency should respond to significant comments it received during the notice-and-comment process that might persuade a court to hold that the agency's action would be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. For example, significant comments to which the agency should respond include well-reasoned and factually supported comments that argue that the agency: a. Failed to consider statutorily relevant factors; b. Overlooked a significant issue; c. Failed to consider relevant evidence; or d. Failed to explain why it did not adopt a potentially viable alternative. The agency may also wish to incorporate suggestions in the comments that it believes will support the rule or the analysis supporting the rule. 8. An agency should explain in the preambles to a proposed and final rule whether and how it considered significant alternatives to its chosen course of action. 9. When proposing to rescind or rescinding a rule with multiple components, an agency should, as appropriate, explain in the preamble the justification for rescinding all or part of the rule. 10. When a proposed or final rule represents a change in policy, an agency should identify the policy change in the preamble to the proposed or final rule and explain why the new policy is justified. In doing so, the agency should explain, as appropriate: a. Why the facts underlying the previous policy have changed, why the agency was wrong about the facts it previously found, or why, even on the same facts, the agency is now coming to a different conclusion; b. Why the agency interprets the law differently; and c. How the agency considered significant reliance interests. Administrative Conference Recommendation 2026-7 Agreements Between Agencies With Related Regulatory Responsibilities Adopted June 11, 2026 There are many contexts, ranging from food safety to financial regulation, in which agencies have shared, overlapping, or closely related regulatory responsibilities. Effective interagency coordination is critical in such “shared regulatory space.” ¹ Greater coordination can avoid duplication of effort, provide opportunities for agencies to manage and reconcile differences, and improve the overall quality of agency decision making. As the Administrative Conference recognized in Recommendation 2012-5, Improving Coordination of Related Agency Responsibilities, agreements between agencies—often styled “memoranda of understanding”—provide an important tool for promoting and facilitating coordination. ² ¹ Jody Freeman and Jim Rossi, Improving Coordination of Related Agency Responsibilities 7-8 (May 30, 2012) (report to Admin Conf. of the U.S.). ² Admin. Conf. of the U.S., Recommendation 2012-5, Improving Coordination of Related Agency Responsibilities, 77 FR 47810 (Aug. 10, 2012). Hundreds of agreements exist between agencies that operate in shared regulatory space. These agreements serve many purposes, including formalizing shared objectives for implementing policies and programs, clarifying roles, allocating responsibilities, delineating jurisdictional lines, developing policies and standards, coordinating policymaking and enforcement activities, establishing processes for information sharing and responding to external requests for information, coordinating multiagency processes of approvals or reviews, sharing resources (when permitted), and resolving disputes. ³ ³ Blaine G. Saito, Agreements Between Agencies with Related Regulatory Responsibilities 4-8 (May 12, 2026) (report to the Admin. Conf. of the U.S.). While agreements between agencies are common, there is no uniform or coordinated framework for initiating and negotiating them, or for managing and monitoring their implementation. For the most part, agencies are afforded broad discretion as to whether they enter into agreements and, when they do, how they formalize them. Building on Recommendation 2012-5, this Recommendation provides best practices for developing agreements and managing their implementation between agencies that have shared, overlapping, or closely related regulatory responsibilities. It encourages agencies to adopt practices for initiating and structuring agreements, and for monitoring their implementation, that promote efficiency, effectiveness, and accountability. It also recommends that agencies disclose agreements that affect members of the public. ⁴ In doing so, the Recommendation recognizes that agencies must consider their own circumstances in adopting the best practices that follow. Agencies have different missions, authorities, needs, and resources available to them, and they enter into agreements for different reasons. Reflecting this variability, effective agreements can take many forms. ⁴ Cf. Admin. Conf. of the U.S., Recommendation 2023-1, Proactive Disclosure of Agency Legal Materials, 88 FR 42678, 42679 at 1(e) (recommending that Congress amend 5 U.S.C. 552(a)(2) accordingly). Recommendation Negotiating and Drafting Agreements 1. Agencies that have shared, overlapping, or closely related regulatory responsibilities should enter into written agreements when doing so would promote efficiency, effectiveness, and accountability. Agencies should consider entering into such agreements, especially when agencies would benefit from: a. Formalizing shared objectives for implementing policies and programs; b. Clarifying roles and allocating responsibilities; c. Delineating jurisdictional lines; d. Coordinating multiagency review or approval processes; e. Establishing procedures for sharing information between agencies or responding to external requests for information; f. Coordinating policymaking and enforcement activities; g. Sharing resources, when permitted; and h. Resolving disputes. 2. Before negotiating agreements, agencies should review available information and engage in initial discussions to understand other relevant agencies' regulatory responsibilities, priorities, processes, policies, and expectations for the relationship. 3. Agencies should ensure that the officials with the relevant decision-making authority and legal and subject-matter expertise with respect to the agreement are involved throughout the process of negotiating the agreement. As appropriate, agencies should also include their officials involved in information management and budget planning. 4. Agencies should address the following subjects in an agreement, as applicable: a. The relevant mission, authority, and capacity of each signatory agency; b. The purposes and objectives of the agreement; c. The allocation of responsibilities, particularly if the agreement involves more than two agencies (see Paragraph 6); d. Mechanisms for coordinating activities under the agreement; e. Resources to be shared between agencies ( e.g., personnel, funding, facilities) and other agreements related to resource sharing; f. Protocols for information sharing and records management; g. Procedures for resolving disputes that arise under the agreement; h. Progress metrics for assessing the effectiveness of the agreement; and i. A sunset or termination date, or another provision that commits signatory agencies to review the agreement regularly to determine whether it continues to be of value. Managing and Monitoring the Effectiveness of Agreements 5. Agencies should designate an official with primary responsibility for managing and monitoring the implementation of the agreement. 6. When three or more agencies are parties to an agreement, agencies should delineate clear roles and responsibilities to support the effective coordination, management, and monitoring of joint activities under the agreement throughout its implementation (see Paragraph 4 (c)). This delineation may include: a. Identifying a lead agency based on, for example, the circumstances of the agreement, such as when one agency is more affected by the activities; b. Appointing co-leads; or c. Establishing a coordinating group comprising officials from all signatory agencies. 7. Agencies periodically should review the effectiveness of agreements to which they are a party and adjust strategies, timelines, or responsibilities under the agreement, as appropriate. 8. To facilitate coordination among agency personnel and ensure continuity of operations, agencies should develop or maintain repositories of agreements with other agencies and related records and information. Making Agreements Publicly Available 9. Agencies should make agreements that affect members of the public, and any associated materials, publicly available unless disclosure, even after redaction, would adversely affect sensitive or legally protected interests involving, among other things, national security or law enforcement. Agencies should develop and maintain a centralized repository on their websites that provides easy access to such agreements and any associated materials. Administrative Conference Recommendation 2026-8 Effectuation of Awards of Recurring Monetary Benefits Adopted June 11, 2026 Federal agencies administer an array of programs that provide recurring (rather than lump-sum or one-time) payments to individuals who meet specific requirements for eligibility. Individuals may be eligible for monetary benefits, typically monthly, under these programs if, for example, they are unable to work due to an injury or illness, ¹ sustained an illness or injury in the line of duty, ² or have retired or reached age 65. ³ Benefits may be calculated using fixed rates, individual contributions, or means testing. ⁴ ¹ Such programs include Social Security Disability Insurance, administered by the Social Security Administration (SSA); the Railroad Retirement Program, administered by the Railroad Retirement Board; and the Federal Employees Compensation Program, the Longshore and Harbor Workers' Compensation Program, the Federal Black Lung Program, and the Energy Employees Occupational Illness Compensation Program, all administered by the Department of Labor. ² Such programs include Veterans Disability Compensation, administered by the Department of Veterans Affairs, and Special Compensation for Assistance with Activities of Daily Living, administered by the Department of War. ³ Such programs include federal retiree programs administered by the Office of Personnel Management and Social Security Retirement Insurance administered by SSA. ⁴ Lea Robbins, Effectuation of Awards of Monetary Benefits 3 (May 28, 2026) (report to the Admin. Conf. of the U.S.). Under most of these programs, a decision maker first determines whether the claimant meets the relevant eligibility requirements. Subsequently, the agency communicates the determination to the claimant. If the decision maker finds that the claimant is eligible to receive benefits, the agency then takes steps to process payment, which this Recommendation refers to as “effectuation.” Although agency processes for effectuating awards of monetary benefits vary across—and sometimes within—agencies, there are similarities in the actions agencies undertake. For example, once a decision maker has found a claimant eligible to receive benefits, the determination may need to be transferred from the decision maker to another employee or agency component responsible for effectuating the decision, referred to here as the “effectuator.” ⁵ ⁵ Id. at 7. In some cases, particularly if the claim is awarded after a hearing or on appeal, the decision-making and effectuation functions are conducted by separate employees or separate components. ⁶ In other cases, typically those involving claims awarded by frontline decision makers, the same employee who determined eligibility is also responsible for effectuating the decision. However, in these instances, agencies tend to require that another employee review and finalize the payment in order to complete the effectuation process. This additional review functions as a built-in quality review mechanism. ⁷ ⁶ See, e.g., Soc. Sec. Advisory Bd., Research Portfolio on Disability: Effectuation of Disability Benefits 9 (2024). ⁷ Robbins, supra note 4, at 3. Once a claim is with an effectuator, several determinations must be made to process payments accurately. Depending on the program, the effectuator may need to determine the persons eligible to receive payment ( e.g., the claimant, a representative payee, ⁸ a spouse or dependent(s), ⁹ or a representative ¹⁰ ); the amount each recipient should be paid; the date on which the claimant became eligible for benefits; and the appropriate method for making the payment ( e.g., via direct deposit into a bank account or a prepaid debit card). ¹¹ Although the claim file often contains some information needed to make these necessary determinations, the effectuator may need to coordinate with the claimant, another agency, or a third party to obtain additional information. ⁸ A representative payee is the person or entity selected to receive and manage benefits on behalf of a beneficiary who is unable to manage payments themselves. See Reeve T. Bull et al., Admin. Conf. of the U.S., Office of the Chairman, Social Security Administration's Representative Payee Program: Information Sharing with States (June 29, 2020); Shawne McGibbon et al., Admin. Conf. of the U.S., Office of the Chairman, SSA Representative Payee: Survey of State Guardianship Laws and Court Practices (Dec. 24, 2014); Admin Conf. of the U.S., Recommendation 91-3, The Social Security Representative Payee Program, 56 FR 33841 (July 24, 1991). ⁹ Under some benefits programs, certain family members are also eligible to receive benefits based on the claimant's award. See, e.g., 45 U.S.C. 231a(c) (Railroad Retirement Board). ¹⁰ Some agencies are responsible for processing and paying fees to lawyers and nonlawyer representatives who helped the claimant throughout the adjudicative process. See, e.g., 42 U.S.C. 406(a)(4), (b)(1), 1383(d)(2) (Social Security Administration). ¹¹ Robbins, supra note 4, at 4. After completing the necessary determinations, the effectuator initiates payment. This process involves coordinating with the Department of the Treasury, which issues payments on behalf of many agencies. Around the time of payment, an award notice is sent to the claimant. ¹² ¹² See, e.g., U.S. Dep't Veterans Affs., Veterans Benefits Admin., M21-1, Adjudication Procedures Manual (M21-1) § VI.i.1.A.2.c. (July 22, 2024). This Recommendation does not address post-effectuation issues, such as reporting requirements, overpayments, garnishments, or offsets that arise after the effectuation process is complete. Deficient effectuation practices can cause delayed or improper payments. ¹³ Delays in paying awarded benefits can result in significant financial and other hardships for claimants, especially those for whom such benefits provide their primary source of income. Resolving improper payments can be time-consuming and resource-intensive for both agencies and claimants and can harm claimants' financial stability. ¹³ An improper payment is “any payment that should not have been made or that was made in an incorrect amount, including an overpayment or underpayment, under a statutory, contractual, administrative, or other legally applicable requirement.” 31 U.S.C. 3351(4). Demands on agency resources in making timely and accurate payments are magnified when effectuators must use multiple disconnected systems, when claims are complex or require additional verification to effectuate, or when awards are subject to offset or reduction. ¹⁴ Means-tested programs, in which payment amounts depend on claimants' income and resources, pose additional challenges because payment amounts may fluctuate during the process of determining eligibility and effectuating benefits, ¹⁵ leading to a higher percentage of improper payments. ¹⁶ ¹⁴ Robbins, supra note 4, at 30-36. ¹⁵ See Soc. Sec. Advisory Bd., supra note 6, at 54. ¹⁶ Robbins, supra note 4, at 31. Agencies may adopt several strategies to improve effectuation processes. Agencies can improve their electronic case management systems to make managing claims and processing payments easier. ¹⁷ Some agencies automate, to varying degrees, the calculation of benefit amounts. ¹⁸ When technological modernization requires reliance on both new and legacy systems during a period of transition, agencies may provide effectuators with one interface for viewing information and completing tasks. ¹⁹ To improve communication, agencies can include explanations of the effectuation process and timeline in decisions regarding eligibility to prevent high volumes of inquiries and misunderstandings. Agencies may also enter into information-sharing agreements with other agencies, ²⁰ and they may develop processes so that claimants and representatives can submit information and documents electronically through online self-help portals. ²¹ ¹⁷ See Admin. Conf. of the U.S., Recommendation 2018-3, Electronic Case Management in Federal Administrative Adjudication, 83 FR 30686 (June 29, 2018). ¹⁸ See e.g., U.S. R.R. Ret. Bd., 2025 Annual Report 39 (Sep. 2025). ¹⁹ Agencies commonly use middleware software that acts as a bridge between the different systems. See, e.g., Veterans Affs. 2024 Addendum to the Department of Veterans Affairs 5-Year Benefits System Modernization Plan as Prescribed under Section 701(b) of the PACT Act 68-69 (2024); Soc. Sec. Admin., FY 2023 Congressional Justification 184-185 (2024). ²⁰ See Admin. Conf. of the U.S., Recommendation 2026-1, Obtaining Government Records for Use in Agency Proceedings, 91 FR 6171 (Feb. 11, 2026). ²¹ Admin. Conf. of the U.S., Recommendation 2023-4, Online Processes in Agency Adjudication, 88 FR 42,681 (July 3, 2023). Building on these and other successful strategies, this Recommendation provides best practices for promoting accuracy, efficiency, timeliness, transparency, and fairness in agency processes for effectuating awards of recurring monetary benefits. Specifically, it offers practices that agencies can use to improve access to information, modernize technology, promote quality, communicate effectively with claimants and representatives, and manage performance. Recommendation Improving Access to Information 1. Consistent with Recommendation 2023-4, Online Processes in Agency Adjudication, agencies should provide tools in online self-help portals associated with benefits programs that allow claimants and representatives, as applicable and when feasible, to: a. Submit information and documents relevant to the effectuation process; b. View case status information after an eligibility decision is made and view information about effectuation processing times, when agencies can reliably predict them; c. Receive notifications when additional information is needed to effectuate awards of benefits; d. Receive notifications about new documents, status changes, and other developments during the effectuation process; and e. Contact the effectuator or effectuating component with questions. 2. Agencies should consider supplementing online self-help portals described in Paragraph 1 by authorizing additional electronic options ( e.g., email) to enable claimants and their representatives to submit information and documents. 3. Consistent with Recommendation 2026-1, Obtaining Government Records for Use in Agency Proceedings, when agencies regularly need information created, collected, or maintained by another agency for use in effectuating awards of benefits, they should enter into an interagency agreement with the other agency, when permitted by law, for the secure, efficient, and continuous exchange of information, as relevant for the benefit program in question. Agencies should make these interagency agreements publicly available and regularly assess their effectiveness. Modernizing Technology 4. Agencies should automate high-volume, labor-intensive, and repetitive tasks that do not require a significant exercise of discretion when automation will not adversely affect decision-making quality or program integrity. 5. When developing new automated systems and tools, agencies should test and validate them comprehensively before implementing them broadly, maintain human quality review for complex calculations, and periodically audit automated systems and tools to, so far as reasonably possible, ensure they remain accurate, efficient, timely, and fair. 6. Agencies should enable effectuators to view information and complete tasks within one interface, when technological modernization requires reliance on both new and legacy systems during a transition period. Promoting Quality 7. When the same person is responsible for determining eligibility and effectuating the award, agencies should consider assigning another person to check calculations and review award details before finalizing payments of claims in categories that typically exhibit higher rates of improper payments. 8. Agencies should develop quality assurance systems, consistent with Recommendation 2021-10, Quality Assurance Systems in Agency Adjudication, to detect and address individual and systemic errors in effectuating awards of benefits. Communicating Effectively With Claimants and Representatives 9. Agencies should develop standard explanations of the effectuation process, written in plain language, that decision makers must include in eligibility decisions awarding benefits. This explanation should include, among other things, a description of the effectuation process, any applicable reporting requirements, an estimated timeframe for its completion, and how to find information about the status of the award. 10. Agencies should post a plain-language explanation of the effectuation process in a prominent location on their websites. The explanation should include contact information for effectuating components and any other offices, including ombuds, that can answer questions or help claimants resolve effectuation-related issues. Managing Performance 11. Agencies should develop, adopt, and make publicly available comprehensive performance goals and metrics for effectuation including: a. Average time from the date of the decision awarding benefits to the release of the initial payment; b. Accuracy rates of initial payments; and c. Average time for resolving identified payment errors during effectuation.

[FR Doc. 2026-13127 Filed 6-29-26; 8:45 am]

BILLING CODE 6110-01-P