Notice2025-11862
Adoption of Recommendations
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Published
June 27, 2025
Issuing agencies
Administrative Conference of the United States
Abstract
The Assembly of the Administrative Conference of the United States adopted three recommendations at its hybrid (virtual and in- person) Eighty-third Plenary Session: Agency Investigative Procedures; Consultation with State, Local, and Tribal Governments in Regulatory Policymaking; and Public Participation in Agency Adjudication.
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[Federal Register Volume 90, Number 122 (Friday, June 27, 2025)]
[Notices]
[Pages 27515-27521]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-11862]
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Notices
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Federal Register / Vol. 90, No. 122 / Friday, June 27, 2025 /
Notices
[[Page 27515]]
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Adoption of Recommendations
AGENCY: Administrative Conference of the United States.
ACTION: Notice.
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SUMMARY: The Assembly of the Administrative Conference of the United
States adopted three recommendations at its hybrid (virtual and in-
person) Eighty-third Plenary Session: Agency Investigative Procedures;
Consultation with State, Local, and Tribal Governments in Regulatory
Policymaking; and Public Participation in Agency Adjudication.
FOR FURTHER INFORMATION CONTACT: For Recommendation 2025-1, Adam Cline;
Recommendation 2025-2, Becaja Caldwell; and Recommendation 2025-3, 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 <a href="http://www.acus.gov">www.acus.gov</a>.
The Assembly of the Conference met during its Eighty-third Plenary
Session on June 12, 2025, to consider three proposed recommendations
and conduct other business. All three recommendations were adopted.
Recommendation 2025-1, Agency Investigative Procedures. This
recommendation provides best practices for agencies that promote
accuracy, efficiency, and fairness in investigations of specific
regulated entities. It provides guidance on initiating investigations;
exchanging and considering evidence and arguments; issuing subpoenas
and warrants; and deciding whether to terminate an investigation,
negotiate with the subject of an investigation, or pursue an action in
an administrative or judicial tribunal.
Recommendation 2025-2, Consultation with State, Local, and Tribal
Governments in Regulatory Policymaking. This recommendation provides
agencies with best practices regarding consultation with state, local,
and tribal governments in the development and implementation of
regulatory policies. It provides guidance on developing policies for
consultation; designating officials responsible for overseeing and
facilitating consultation; publicizing consultation opportunities; and
adopting procedures to promote effective consultation with state,
local, and tribal officials.
Recommendation 2025-3, Public Participation in Agency Adjudication.
This recommendation provides agencies with best practices regarding
public participation in administrative adjudications. It provides
guidance on circumstances in which public participation may be
appropriate; options for public participation; and methods for
facilitating public participation effectively.
The Conference based its recommendations on research reports and
prior history that are posted at: <a href="https://www.acus.gov/event/83rd-plenary-session">https://www.acus.gov/event/83rd-plenary-session</a>.
Authority: 5 U.S.C. 595.
Dated: June 24, 2025.
Shawne C. McGibbon,
General Counsel.
Appendix--Recommendations of the Administrative Conference of the
United States
Administrative Conference Recommendation 2025-1
Agency Investigative Procedures
Adopted June 12, 2025
Many federal agencies are responsible for detecting,
investigating, and prosecuting potential violations of the statutes
and regulations they administer.\1\ Administrative investigation
processes may involve a decision to initiate an investigation;
requests for information and the exchange of evidence between an
agency and the subject of an investigation; compulsory process, such
as the issuance of a subpoena or warrant, to gather information from
the subject of an investigation; consideration of evidence by the
agency; and a decision to negotiate with the subject, settle the
matter, initiate an action in an administrative or judicial
tribunal, or terminate the investigation.\2\ The Administrative
Conference previously has recommended best practices for compiling
and publishing enforcement manuals; \3\ making settlement agreements
publicly available; \4\ allocating resources efficiently; \5\ and
using algorithmic tools, including artificial intelligence, to
promote accuracy and efficiency in agency enforcement.\6\ The
Conference has specifically recommended that, subject to available
resources, agencies responsible for investigating and prosecuting
potential violations of the laws that they administer ``should
develop an enforcement manual if doing so would improve
communication of enforcement-related policies to agency personnel
and promote the fair and efficient performance of enforcement
functions consistent with established policies.'' \7\ Building on
those recommendations, this Recommendation identifies best practices
to improve transparency, fairness, and efficiency in agency
investigations and help agencies carry out their regulatory missions
effectively.
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\1\ This Recommendation does not address investigations
conducted for general factfinding or policymaking purposes, routine
inspections, accident or incident investigations when the agency
lacks authority to initiate an enforcement action, or criminal
investigations.
\2\ Aram A. Gavoor, Administrative Investigations Best Practices
1-2 (May 20, 2025) (report to the Admin. Conf. of the U.S.).
\3\ Admin. Conf. of the U.S., Recommendation 2022-5, Regulatory
Enforcement Manuals, 88 FR 2314 (Jan. 13, 2023).
\4\ Admin. Conf. of the U.S., Recommendation 2022-6, Public
Availability of Settlement Agreements in Agency Enforcement
Proceedings, 88 FR 2315 (Jan. 13, 2023); see also Admin. Conf. of
the U.S., Recommendation 2023-1, Proactive Disclosure of Agency
Legal Materials, ] 1(b), (d), 88 FR 42678, 42679 (July 3, 2023).
\5\ See, e.g., Admin. Conf. of the U.S., Recommendation 2012-7,
Agency Use of Third-Party Programs to Assess Regulatory Compliance,
78 FR 2941 (Jan. 15, 2013); Admin. Conf. of the U.S., Recommendation
79-3, Agency Assessment and Mitigation of Civil Money Penalties, 44
FR 38824 (July 3, 1979).
\6\ Admin. Conf. of the U.S., Recommendation 2024-5, Using
Algorithmic Tools in Regulatory Enforcement, 89 FR 106406 (Dec. 30,
2024).
\7\ Recommendation 2022-5, supra note 3, at 2314.
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Statutes and agency rules govern how agencies allocate
enforcement authority, including the authority to conduct
investigations and direct the activities of
[[Page 27516]]
enforcement personnel. But aside from the Administrative Procedure
Act's guarantee of the right to counsel for the subjects of
investigations,\8\ statutes typically leave many procedural aspects
of investigations to agencies' discretion.\9\ Many agencies with
enforcement authority have compiled enforcement manuals that provide
enforcement personnel with a ``comprehensive resource regarding
enforcement-related laws and policies'' and seek to ``improve
awareness of and compliance with relevant policies while promoting
[public] transparency.'' \10\
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\8\ See 5 U.S.C. 555(b); see also Admin. Conf. of the U.S.,
Statement #16, Right to Consult with Counsel in Agency
Investigations, 59 FR 4677 (Feb. 1, 1994).
\9\ See, e.g., 42 U.S.C. 9604 (Comprehensive Environmental
Response, Compensation, and Liability Act); 12 U.S.C. 5562 (Dodd-
Frank Act); 47 U.S.C. 401-16 (Communications Act of 1934).
\10\ Recommendation 2022-5, supra note 3.
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Agency investigative procedures vary depending on, among other
things, the statutes to which the agency is subject and the rules
the agency adopts to implement them, the severity and nature of
violations the agency investigates, the availability of agency
resources, the urgency of the need to respond to a particular
situation, and the public interest. The formality of an
investigation also can determine the methods used by an agency. For
example, some agencies collect informal information or review
information collected in the course of supervising regulated
entities before determining whether to initiate a formal
investigation. Other agencies, by contrast, conduct a more formal
investigation almost immediately after learning of a possible
violation, for example during a routine inspection.\11\
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\11\ Gavoor, supra note 2, at 4-6, 27-28.
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Agencies may also solicit information and evidence from the
subjects of investigations, using either voluntary or compulsory
processes. Voluntary processes offer a subject an opportunity to
present its position to the agency and present a holistic picture
for the enforcement personnel upon receiving notice and before the
agency moves forward with an action in an administrative or judicial
tribunal.\12\ Compulsory processes compel a person, in the course of
an investigation, to produce testimony, records, information, or
things or to submit to a search. These include subpoenas and
warrants.\13\
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\12\ Id. at 16-17.
\13\ Id. at 8-13.
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Agencies differ in the discretion delegated to enforcement
personnel in their investigative processes. For example, at some
agencies, the authority to initiate investigations and carry out
compulsory processes lies with agency heads or individual members of
the agency, or other senior officials; other agencies give wide
discretion to lower-level enforcement personnel for the same
processes. Agency practices also vary in whether and when notice is
provided to subjects of investigations, and in the agency's ability,
and personnel authorized, to engage in negotiations and settlements
or decide if an enforcement action is warranted. Some agencies
utilize expedited settlement procedures, also termed fast-track
settlement or pre-complaint settlement. Compared to traditional
settlements, these processes typically are for minor and easily
correctible violations, reduce penalties and minimize transaction
costs while allowing agencies to achieve their enforcement goals,
and save agency time and resources.\14\ In some cases, agencies are
required, under statutes and regulations, to work in tandem with the
Department of Justice and an assistant U.S. attorney to draft or
carry out certain compulsory processes.\15\
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\14\ See generally id. at 16-17, 55-57, 117-19.
\15\ See id. at 7-8, 11-19.
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To improve the efficiency, effectiveness, fairness, and
transparency of agency investigative procedures, this Recommendation
provides best practices to agencies to prepare and, when
appropriate, add to their publicly available enforcement manuals,
(1) standards and processes regarding the authority of personnel to
conduct investigations; (2) criteria used to determine whether to
initiate an investigation; (3) notice, communication, and
evidentiary procedures for the subjects of investigations, including
compulsory processes; (4) criteria to consider when weighing
evidence; and (5) criteria governing end-stage processes such as
negotiation, settlement, no-action decisions, or the initiation of
an action in an administrative or judicial tribunal.\16\ In offering
the best practices that follow, the Conference recognizes that
agencies conduct investigations at different stages, utilize
different investigative methodologies, and have varying goals and
statutory duties. Agencies should account for these differences when
implementing this Recommendation. In developing these procedures,
agencies should also account for concerns that settlements may be
inappropriate in some circumstances.
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\16\ Recommendation 2022-5, supra note 3, at 2314.
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Recommendation
Disclosure and Transparency
1. Agencies should include in their enforcement manuals
information about agency investigative procedures consistent with
Recommendation 2022-5, Regulatory Enforcement Manuals. Such
information should address the use of electronic submissions and,
consistent with Recommendation 2024-5, Using Algorithmic Tools in
Regulatory Enforcement, artificial intelligence.
2. Agencies should determine, before taking investigative
actions, such as using a compulsory process, whether and to what
extent they may be required by statute or otherwise, to coordinate
with another agency. Agencies should disclose in their enforcement
manuals the circumstances in which and the extent to which they must
coordinate with another agency when conducting an investigation.
Initiating Investigations
3. Agencies should establish, and include in their enforcement
manuals, procedures that clearly explain whether enforcement
personnel may initiate investigations independently or whether they
must first gain approval from a supervisor or other agency official.
4. Agencies should provide enforcement personnel with clear
criteria to determine whether to proceed with an investigation.
Investigative Methods
5. When agencies seek information, either formally or
informally, from the subjects of an initiated investigation, they
should communicate to the subjects:
a. The scope and general nature of the investigation;
b. The potential violations of statutes or regulations being
investigated;
c. The date by which the subject must submit the information or
otherwise respond to the request, including procedures for
requesting an extension of time;
d. Whether any challenge or appeal process exists regarding the
request;
e. Whether the information is being sought through a compulsory
or voluntary process; and
f. Whether refusal to provide the information sought may result
in a compulsory process.
6. Agencies should develop clear procedures, and include such
procedures in enforcement manuals, for facilitating the exchange of
information and evidence between the subject of an investigation and
the agency.
7. When agencies engage in compulsory processes, they should
clearly specify the basis in law for their action and whether any
conduct or forbearance of conduct by the subject gave rise to the
action. Agencies should provide adequate time for the subjects of
investigations to respond to compulsory processes before seeking
judicial intervention.
8. Agency officials initiating a compulsory process under their
delegated authority should notify the relevant agency head when they
use such a process.
9. As applicable, agencies should establish processes for
administrative review of decisions regarding compulsory processes.
When agencies issue an order through a compulsory process, they
should allow the subject of the compulsory process to seek higher
agency review on an interlocutory basis or at least allow for review
before the agency seeks judicial enforcement.
Determining the Appropriate Course of Action Following an
Investigation
10. Agencies should provide, and include in their enforcement
manuals, instructions to enforcement personnel on considering
evidence for purposes of determining whether to initiate or
recommend initiating an action in an administrative or judicial
tribunal, including the standard of proof an agency must meet in
administrative proceedings, whether that standard differs from the
preponderance of the evidence standard used by federal district
courts in civil cases, and where the burden of proof rests in
particular cases.
11. Agencies should provide, and include in enforcement manuals,
the relevant factors that enforcement personnel should consider,
[[Page 27517]]
including when preparing any supporting documentation such as
justification memoranda, in recommending that the agency offer or
enter into a settlement with the subject of an investigation,
terminate the investigation, or initiate an action in an
administrative or judicial tribunal.
12. Agencies should provide notice to the subjects of
investigations before initiating an action in an administrative or
judicial tribunal unless there are compelling reasons not to do so.
The notice should include:
a. A statement that the agency has found substantial grounds for
initiating an action against the subject based on alleged
misconduct;
b. A detailed factual description of the alleged misconduct;
c. The legal basis for the action;
d. An invitation to respond to the evidence against the subject,
as applicable;
e. Information about opportunities to submit additional evidence
or argument before the agency initiates the action, as applicable;
and
f. The forum and venue in which the action will take place.
13. When agencies terminate investigations, they should notify
the subjects of investigations that they have done so unless there
are compelling reasons not to do so.
Negotiation and Settlement Procedures
14. Agencies should develop procedures, and include such
procedures in enforcement manuals, for entering into negotiations
with the subjects of investigations. Such procedures should specify
considerations to assist enforcement personnel in determining
whether and to what extent agencies should negotiate with the
subject of an investigation, including:
a. Relevant agency policies or past practices;
b. The nature of the alleged misconduct;
c. Relevant past misconduct, if any, by the subject of the
investigation;
d. Whether the subject of the investigation would be more
likely, because of such negotiation, to come into compliance with
the agency's interpretation of the regulation or statute at issue;
e. Whether an expedited settlement would adequately achieve
agency goals within the scope of statutory authority while saving
agency time and resources; and
f. Whether the public interest would weigh in favor of
negotiating a settlement.
15. Agencies should provide, and include in enforcement manuals,
the relevant factors for enforcement personnel to consider when
determining whether settlement is appropriate and clearly state who
at the agency can propose, discuss, or enter into settlement
agreements.
Administrative Conference Recommendation 2025-2
Consultation With State, Local, and Tribal Governments in Regulatory
Policymaking
Adopted June 12, 2025
Many federal actions significantly affect state, local, and
tribal governments. When federal agencies engage in regulatory
policymaking or take actions implementing regulatory policy that may
affect state, local, or tribal governments, they should coordinate
and consult with such governments as well as those organizations
that represent those entities. For the purposes of this
Recommendation, ``regulatory policymaking'' refers to the
formulation and implementation of regulations, legislative comments
or proposed legislation, guidance, issuance of permits and licenses,
and other policy statements or actions that have substantial direct
effects on one or more states, local governments, or Indian tribes;
the relationship between the federal government and the states or
Indian tribes; or the distribution of power and responsibilities
between the federal government and the states or Indian tribes.
Regulatory policymaking may also include the rescission of
regulatory actions or policies. Although state, local, and tribal
governments may participate in regulatory policymaking through
notice-and-comment rulemaking and similar processes, those processes
are not a substitute for direct consultation between governments.
Further, while informal outreach can be a valuable source of
information, it is not a substitute for an agency's consultation
requirement.\1\ Moreover, consultation with state, local, and tribal
governments improves federal regulatory policymaking and reflects
the distinctive relationships that the federal government has with
state and local governments and with tribal governments.
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\1\ Seth Davis & Daniel B. Rodriguez, Consultation with State,
Local, and Tribal Governments in Regulatory Policymaking 53-54 (May
29, 2025) (report to the Admin. Conf. of the U.S.).
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Consultation with state and local governments promotes values of
cooperative federalism. The relationship between the federal
government and state and local governments is rooted in the nation's
traditions and reflected in the Constitution's creation of a federal
system. Within this scheme of constitutional federalism, there has
long been an expectation that the federal government engage with
state and local governments on regulatory policymaking and
implementation.
Consultation with tribal governments reflects the unique
government-to-government relationship between tribes and the United
States and the federal policy of promoting tribal self-
determination. Consultation may also reflect a tribal role in
implementing statutory responsibilities in a cooperative federalism
framework. Formal government-to-government consultation, which
requires direct engagement between tribal governments and the United
States, reflects a long history of intergovernmental relations that
stretches back to the Founding. Today, tribal consultation is
consistent with the ``unique trust responsibility of the United
States to protect and support Indian tribes and Indians'' \2\ and
the ``duty of the federal government to promote tribal self-
determination regarding governmental authority and economic
development.'' \3\
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\2\ Indian Trust Asset Reform Act, 25 U.S.C. 5601.
\3\ Id. Sec. 5602; see also Indian Self-Determination and
Education Assistance Act, 25 U.S.C. 5302(a) (recognizing ``the
obligation of the United States to respond to the strong expression
of the Indian people for self-determination''), (b) (recognizing the
federal government's responsibility to establish a ``meaningful
Indian self-determination policy'' allowing ``effective and
meaningful participation by the Indian people in the planning,
conduct, and administration of those programs and services''). For
the purposes of this Recommendation, the Conference refers to
``tribal governments'' as those that are ``federally recognized''
pursuant to applicable laws and statutes. See, e.g., 25 U.S.C. 479.
Federal appropriations laws call for consultation with Alaska Native
Corporations on the same basis as Indian tribes under Executive
Order 13175. See Consolidated Appropriations Act, 2004, Public Law
108-199, div. H, Sec. 161, 118 Stat. 3, 452 (2004), as amended by
Consolidated Appropriations Act, 2005, Public Law 108-447, div. H,
Sec. 518, 118 Stat. 2809, 3267 (2004). The Department of the
Interior maintains a publicly available list of federally recognized
tribes. See Tribal Leaders Directory Page, U.S. Dep't of Interior,
<a href="https://www.bia.gov/service/tribal-leaders-directory">https://www.bia.gov/service/tribal-leaders-directory</a> (last visited
Apr. 28, 2025).
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For these reasons, the Administrative Conference has repeatedly
emphasized the importance of effective consultation with state,
local, and tribal governments. It has, among other things,
encouraged agencies to develop internal policies and processes to
better ensure timely consultation with state and local officials;
\4\ follow certain best practices when consulting with state and
local officials on regulations that may preempt state laws; \5\
adopt rules for obtaining the views of state, local, and tribal
governments in notice-and-comment rulemaking; \6\ involve state,
local, and tribal governments in retrospective review of federal
agency rules; \7\ and work with state and local governments to
provide effective notice of regulatory developments to potentially
interested persons.\8\
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\4\ Admin. Conf. of the U.S., Recommendation 2010-1, Agency
Procedures for Considering Preemption of State Law, 76 FR 81 (Jan.
3, 2011).
\5\ Admin. Conf. of the U.S., Recommendation 84-5, Preemption of
State Regulation by Federal Agencies, 49 FR 49838 (Dec. 24, 1984).
\6\ Admin. Conf. of the U.S., Recommendation 2020-1, Rules on
Rulemakings, 86 FR 6613 (Jan. 22, 2021).
\7\ Admin. Conf. of the U.S., Recommendation 2014-5,
Retrospective Review of Agency Rules, 79 FR 75114 (Dec. 17, 2014).
\8\ Admin. Conf. of the U.S., Recommendation 2022-2, Improving
Notice of Regulatory Changes, 87 FR 39798 (July 5, 2022).
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Consultation takes place according to several statutes and
executive orders. The Unfunded Mandates Reform Act (UMRA) requires
agencies to ``develop an effective process to permit offices of
State, local, and tribal governments . . . to provide meaningful and
timely input in the development of regulatory proposals containing
significant Federal intergovernmental mandates.'' \9\ Executive
[[Page 27518]]
Order 13132, Federalism,\10\ and Executive Order 13175, Consultation
and Coordination with Indian Tribal Governments,\11\ require
agencies \12\ to consult with relevant state, local, and tribal
government officials when ``formulating and implementing''
regulatory policies that have federalism or tribal implications. The
executive orders require each agency to establish an ``accountable
process'' for ensuring ``meaningful and timely'' consultation,
designate officials with principal responsibility for implementing
the executive orders, and coordinate with the Office of Management
and Budget (OMB). And when an agency develops a proposed regulation
that imposes ``substantial direct compliance costs'' on state,
local, or tribal governments, preempts state or tribal law, or has
federalism or tribal implications, it must consult early in the
development process and explain its consultation efforts in the
preamble to the regulation.
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\9\ 2 U.S.C. 1534. Program-specific statutes, particularly in
the environmental context, also require consultation for certain
categories of federal regulatory actions. See, e.g., National
Historic Preservation Act of 1966, 54 U.S.C. 300101 et seq.; see
also Energy Policy Act, 43 U.S.C. 1337(p)(7). Consultation also
takes place against the backdrop of the Administrative Procedure
Act, including its prohibition on ex parte communications in formal
rulemaking and adjudication. See 5 U.S.C. 556, 557; see also Admin.
Conf. of the U.S., Recommendation 2014-4, ``Ex Parte''
Communications in Informal Rulemaking, 79 FR 35993 (June 25, 2014).
\10\ 64 Fed. Reg 43255 (Aug. 10, 1999).
\11\ 65 FR 67249 (Nov. 9, 2000).
\12\ Although the executive orders do not apply to independent
regulatory agencies, those agencies are ``encouraged'' to comply
with them.
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Despite the framework of UMRA and Executive Orders 13132 and
13175, there remains great variety among agencies' rules, policies,
and practices for consultation. For example, many agencies have
adopted a publicly accessible tribal consultation policy and
designated an official with principal responsibility for
consultation with tribal governments. On the other hand, few
agencies have adopted a publicly accessible state and local
consultation policy or designated an official with principal
responsibility for consultation with state and local governments.
Agencies appear to have widely varying understandings of the
purposes and goals of consultation generally and the potential
benefits and costs of consultation in particular circumstances. And
although there has been some convergence on common standards for
tribal consultation, significant variations remain in agency
policies and practices. This variety presents challenges to
effective consultation between federal agencies and state, local,
and tribal governments and can lead to misunderstandings and
inefficiencies.\13\
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\13\ Davis & Rodriguez, supra note 1, at 5-7.
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Recognizing the important benefits of consultation for federal
regulatory policymaking and implementation, this Recommendation
provides best practices to help agencies develop rules, policies,
and practices that promote effective consultation with state, local,
and tribal governments. It encourages agencies to be transparent
about their policies, adopt practices that foster meaningful
consultation, and establish mechanisms for assessing performance. In
adopting the practices that follow, agencies must be mindful of
their unique missions and demands on scarce resources. This
Recommendation also identifies potential actions for consideration
by OMB, consistent with its mission and resources, and by Congress,
that may improve consultation between federal agencies and state,
local, and tribal governments in regulatory policymaking and
implementation.
Recommendation
Consultation With State and Local Government Officials
1. Agencies that have regulatory policies or take actions that
may have implications for or otherwise be of interest to state and
local governments should designate a ``federalism consultation
official'' who will serve as a primary point of contact for state
and local governments seeking to consult or otherwise communicate
with an agency and will have primary responsibility for coordinating
consultations with state and local governments in regulatory
policymaking and implementation.
2. Agencies, in consultation with state and local officials and
organizations that represent them, should develop consultation
policies that encourage candid, thorough, and timely exchange of
views. Such policies should include:
a. The procedures for determining as a threshold matter whether
a regulatory policy or action has federalism implications;
b. The circumstances in which consultation should occur, such as
when:
i. There is a reasonable basis to find that a policy or action
may impose federal intergovernmental mandates, as defined in the
Unfunded Mandates Reform Act (2 U.S.C. 658(5)), or have federalism
implications, as defined in Executive Order 13132;
ii. A state or local government requests consultation; or
iii. A regulatory policy or action may affect or otherwise be of
interest to state or local officials;
c. Options for structuring consultation, including consultations
on individual matters and standing advisory committees;
d. The procedures for consultation, including the notice,
timing, and format of consultations (see Paragraphs 9 and 12), and
considerations for determining whether the agency should engage in
more than one consultation on a particular matter (see Paragraph
10), consistent with available resources and any need to act
expeditiously;
e. The practices for ensuring that key staff and personnel who
participate in and support a consultation understand the laws and
policies governing consultation with state and local governments,
the topics of the regulatory policy or action under consideration,
issues the policy or action may raise for state and local
communities, and the various positions of state and local government
attendees;
f. The procedures the agency will use to communicate to state
and local officials how the agency used their input; and
g. The procedures for keeping records of consultative
activities, including documenting the status or outcome of each
matter on which consultation occurred (see Paragraph 11).
3. Agencies should develop, make publicly available, and
periodically update consultation web pages that provide easy access
to:
a. The consultation policy described in Paragraph 2;
b. Contact information for the agency's designated federalism
consultation official; and
c. Upcoming, ongoing, and recent consultation activities.
Consultation With Tribal Government Officials
4. Agencies that have regulatory policies or take actions that
may have implications for or otherwise be of interest to tribal
governments should designate a ``tribal consultation official'' who
will serve as a primary point of contact for tribal governments
seeking to consult or otherwise communicate with the agency and will
have primary responsibility for coordinating consultation with
tribal governments in regulatory policymaking and implementation. In
determining whom to designate, agencies should consider individuals
with training on and experience with tribal sovereignty and
governance, the Indian trust responsibility, and tribal cultures and
histories.
5. Government-to-government consultation between tribal
governments and federal agencies should be an opportunity for a two-
way exchange of information and dialogue between high-level
officials of tribal nations and the United States (see Paragraph
6(b)). In conducting formal government-to-government consultations
with tribal governments, agencies should ensure that a high-level
agency official attends such consultations. Agencies should clearly
distinguish consultation from other forms of communication such as
listening sessions and informal communications between agency
officials and tribal officials, which also may be necessary and
appropriate.
6. Agencies, in consultation with tribal governments and
communication with authorized intertribal organizations, should
develop consultation policies that encourage candid, thorough, and
timely exchange of views. Such policies should include:
a. The procedures for determining as a threshold matter whether
a regulatory policy or action has tribal implications, recognizing
that tribes may have rights and interests beyond their current
territories or reservations;
b. A definition of consultation that acknowledges the
government-to-government relationship between tribal nations and the
United States and recognizes tribal consultation as a timely two-way
exchange of information and dialogue between official
representatives of tribal nations and the United States;
c. A commitment to respecting tribal sovereignty, treaty rights,
reserved rights, and other rights as well as the trust
responsibility and the unique legal relationship between tribal
nations and the United States and a commitment to considering tribal
laws, traditions, and practices;
d. The circumstances in which consultation should occur, such as
when:
i. There is a reasonable basis to find that a regulatory policy
or action may impose federal intergovernmental mandates, as defined
in the Unfunded Mandates Reform Act (2 U.S.C. 658(5)), or have
tribal implications, as defined in Executive Order 13175;
[[Page 27519]]
ii. A tribal government requests consultation; or
iii. A regulatory policy or action may affect or otherwise be of
interest to tribal nations;
e. Options for structuring consultation, including consultations
on individual matters and standing advisory committees;
f. The procedures for consultation, including the notice,
timing, and format of consultations (see Paragraphs 9 and 12);
considerations for determining whether the agency should engage in
more than one consultation on a particular matter (see Paragraph
10); and which federal agency personnel should attend consultations
(see Paragraph 5), consistent with available resources and any need
to act expeditiously;
g. The practices for ensuring that key staff and personnel who
participate in and support a consultation understand the laws and
policies governing consultation with tribal governments, the topics
of the regulatory policy or action under consideration, issues the
policy or action may raise for tribal communities, and the various
positions of tribal government attendees;
h. The procedures the agency will use to communicate to tribal
officials how the agency used their input; and
i. The procedures for keeping records of consultative
activities, including documenting the status or outcome of each
matter on which consultation occurred (see Paragraph 11) and
responding to tribal requests that sensitive information be kept
confidential.
7. Agencies should develop, make publicly available, and
periodically update consultation web pages that provide easy access
to:
a. The consultation policy described in Paragraph 6;
b. Contact information for the agency's designated tribal
consultation official; and
c. Upcoming, ongoing, and recent consultation activities.
Procedures for Consultation
8. Agencies should ensure that their designated federalism
consultation official and designated tribal consultation official
communicate regularly with each other, as appropriate.
9. When agencies develop regulatory policies or take actions
that may have federalism or tribal implications, they generally
should consult with state, local, and tribal officials as early as
feasible in the decision-making process, consistent with available
resources and any need to act expeditiously. In the context of
rulemaking, consultation normally should precede the issuance of a
notice of proposed rulemaking. In other contexts--including the
development of general policy statements, interpretive rules, other
forms of guidance, and issuance of permits or licenses--consultation
should occur early enough to ensure meaningful dialogue.
10. Consistent with Recommendation 2014-4, ``Ex Parte''
Communications in Informal Rulemaking, agencies should consult with
state, local, and tribal officials on an ongoing basis throughout
the development, issuance, or implementation of a regulatory policy
or action that has federalism or tribal implications. In determining
whether to have subsequent consultations following an initial
consultation, agencies should consider whether:
a. The circumstances have changed materially since the initial
consultation;
b. Significant issues or points of disagreement remain
unresolved;
c. The proposed regulatory policy or action is complex or likely
to be controversial;
d. A significant amount of time has elapsed such that the
information collected during the initial consultation may be
outdated;
e. Circumstances were such that prior consultations were not as
effective as they could have been;
f. The potential benefits of subsequent consultation merit the
commitment of scarce agency resources; and
g. Any need for the agency to act expeditiously, such as in the
case of an emergency or when Congress has imposed a statutory
deadline by which the agency must promulgate a rule or take other
action.
11. When agencies propose or adopt regulations that have
federalism or tribal implications, they should include the following
information in the preamble to such regulations, unless precluded by
laws governing confidentiality:
a. Which state, local, or tribal officials the agency contacted
to solicit input as to whether a given regulatory policy or action
may have federalism or tribal implications;
b. When such state, local, or tribal officials were contacted;
and
c. What questions the agency asked such state, local, or tribal
officials to ascertain whether a proposed regulatory policy or
action would have federalism or tribal implications--and, if so,
what implications--with respect to, among other things, budgetary
considerations, effectiveness, and implementation.
12. Agencies should conduct consultations in such a way that
they are accessible to the officials whom state, local, or tribal
governments select to participate. When feasible and appropriate,
agencies should utilize technology as a means to expand access to
consultations for state, local, and tribal officials.
Oversight of the Consultation Process
13. Agencies periodically should review consultations and assess
their effectiveness, efficiency, and compliance with applicable laws
and policies. Agencies should assign the responsibility for review
to the federalism consultation official or tribal consultation
official, as applicable, or to a dedicated agency working group.
14. In light of its past recognition of the need for a tribal
advisor, the Office of Management and Budget (OMB) should consider
establishing a tribal advisor, as well as a federalism advisor, to
advise the Director of OMB regarding agency consultation activities
and promote effective consultation practices.
15. OMB should issue guidance that encourages agencies to adopt
the best practices identified in this Recommendation for consulting
with state, local, and tribal governments in regulatory policymaking
and implementation. OMB should develop such guidance in consultation
with such governments.
Considerations for Congress
16. In order to facilitate efficiency among agencies and to
reduce potential costs, Congress should consider identifying the
appropriate agency or agencies that would develop and make publicly
available:
a. Lists of representative national organizations of state and
local and tribal governments that agencies should contact respecting
consultations;
b. Centralized websites where state, local, and tribal
governments can learn about opportunities to consult with federal
agencies.
17. Congress, in considering future amendments to the Freedom of
Information Act (5 U.S.C. 552(b)), should include protecting certain
information deemed sensitive by tribal governments and afford
agencies discretion to safeguard information shared during tribal
consultations.
Administrative Conference Recommendation 2025-3
Public Participation in Agency Adjudication
Adopted June 12, 2025
Public participation can improve the quality, legitimacy, and
accountability of agency decision making.\1\ The Administrative
Conference has issued many recommendations to improve public
participation in agency rulemaking, but agency adjudications
likewise present opportunities for public participation.\2\ For
purposes of this Recommendation, ``adjudication'' has the same broad
meaning as used in the Administrative Procedure Act (APA) \3\ and
thus includes frontline decisions about whether to grant or deny
applications and policy implementation decisions that do not resolve
disputes between the government and a private party or between two
private parties (e.g., agency determinations on public
infrastructure projects).\4\
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\1\ See Michael Sant'Ambrogio & Glen Staszewski, Public
Engagement with Agency Rulemaking 9-16 (Nov. 19, 2018) (report to
the Admin. Conf. of the U.S.); see also Admin. Conf. of the U.S.,
Recommendation 2023-2, Virtual Public Engagement in Agency
Rulemaking, 88 FR 42680 (July 3, 2023).
\2\ See Public Participation, Admin. Conf. of the U.S., <a href="https://acus.gov/public-participation">https://acus.gov/public-participation</a> (last visited Mar. 4, 2025).
\3\ ``Adjudication,'' as defined by the APA, means any agency
process for the formulation of an ``order''--that is, a ``final
disposition . . . of an agency in a matter other than rulemaking but
including licensing.'' 5 U.S.C. 551.
\4\ Cf. Michael Asimow, Admin. Conf. of the U.S., Federal
Administrative Adjudication Outside the Administrative Procedure Act
8-11 (2019).
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When agencies use adjudication to make policy, members of the
public may offer information or views that can help agencies make
more informed decisions. Public input can help improve the quality
of adjudicative decisions by identifying problems that an agency has
not anticipated, proposing solutions it has not considered, and
identifying unintended consequences of
[[Page 27520]]
certain actions.\5\ In addition, agency adjudicative decisions may
affect the interests of, or otherwise be of concern to, persons who
are not parties to the adjudication. By allowing the public
opportunities to participate in administrative adjudications,
agencies can gather more comprehensive information, enhance the
legitimacy and accountability of their decisions, and increase
public support for and confidence in their actions.
---------------------------------------------------------------------------
\5\ Michael Sant'Ambrogio & Glen Staszewski, Public
Participation in Agency Adjudication 6 (May 16, 2025) (report to the
Admin. Conf. of the U.S.).
---------------------------------------------------------------------------
Just as in rulemaking, the APA permits ``interested persons'' to
participate in agency adjudications ``[s]o far as the orderly
conduct of public business permits.'' \6\ Many agencies offer
opportunities for members of the public to participate in
adjudications. These opportunities often take the form of
intervention, amicus participation, and public notice and
comment.\7\ There may also be opportunities for broader and more
innovative forms of public engagement--such as listening sessions,
targeted outreach, and the use of advisory committees--particularly
during early stages or informal levels of adjudicative processes.
---------------------------------------------------------------------------
\6\ 5 U.S.C. 555(b).
\7\ Sant'Ambrogio & Staszewski, supra note 5, at 14-18.
---------------------------------------------------------------------------
Because agency adjudications vary significantly, agencies must
consider their own circumstances in determining whether to provide
opportunities for public participation in their adjudications. As a
general matter, agencies must consider whether public input would be
of value in deciding legal, policy, and factual questions that come
before them for adjudication. To ensure that relevant interests and
views are considered, public participation may be especially useful
in agency adjudications that are influenced significantly by
legislative facts (i.e., those of general relevance) and involve or
may substantially affect the broader public or persons beyond the
parties.\8\ This category of adjudication includes, for example,
grants or denials of permission, such as rulings on applications for
permits, licenses, or waivers, as well as discretionary policy
determinations regarding specific public projects, such as the
selection of the route for an interstate highway.\9\
---------------------------------------------------------------------------
\8\ Id. at 32-33.
\9\ See Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402
(1971); Asimow, supra note 4, at 9-10.
---------------------------------------------------------------------------
In contrast, public participation is generally unnecessary when
the parties themselves can provide all the relevant information and
views, because the agency will have what it needs to make an
accurate and informed decision.\10\ This is especially true in
adjudications that are significantly influenced by adjudicative
facts (i.e., those specific to the parties), which tend not to
affect the interests of nonparties and usually involve disputes
between only two parties.\11\ This category of adjudication includes
the resolution of routine claims or disputes, such as enforcement
actions and benefits determinations. Even in this category of
adjudication, however, public participation may be useful when an
adjudication may establish precedent or policy, or require complex
scientific or technical determinations.\12\
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\10\ Sant'Ambrogio & Staszewski, supra note 5, at 7-8.
\11\ See Admin. Conf. of the U.S., Recommendation 2020-3, Agency
Appellate Systems, 86 FR 6618 (Jan. 22, 2021).
\12\ See Admin. Conf. of the U.S., Recommendation 2024-3,
Senate-Confirmed Officials and Administrative Adjudication, 89 FR
56276 (July 9, 2024); Recommendation 2020-3, supra note 11.
---------------------------------------------------------------------------
Even when public input may be valuable, agencies must consider
when and how to provide opportunities for participation by
interested persons beyond the parties. Not all methods for public
participation will be appropriate in all circumstances. For example,
agency adjudications are often structured as multilevel proceedings
(e.g., initial level, hearing level, appellate review level), and
methods for public participation that may work well at one level may
not be appropriate at other levels. In addition, prohibitions on ex
parte contacts (common in hearing-level and appellate proceedings)
and limitations on the admission of new evidence (common in
appellate proceedings) may restrict the range of options for public
participation at particular levels of adjudication.
Agencies may also find it is necessary to restrict participation
to interested persons who have a direct stake in a particular
adjudication. Although it may be beneficial in some adjudications to
invite participation by the general public, in other adjudications,
allowing participation beyond a limited set of interested persons
may be repetitious, unduly complicate or delay the proceeding,
require the unnecessary expenditure of resources by the agency or
private parties, violate statutory confidentiality requirements, or
adversely affect the rights or interests of private parties.\13\ In
addition, there may be good reasons to restrict participation--not
to mention public access more broadly--in adjudications that involve
sensitive interests or information.\14\
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\13\ Admin. Conf. of the U.S., Recommendation 71-6, Public
Participation in Administrative Hearings, 38 FR 19789 (July 23,
1973).
\14\ Cf. Admin. Conf. of the U.S., Recommendation 2021-6, Public
Access to Agency Adjudicative Proceedings, 87 FR 1715 (Jan. 12,
2022).
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The Conference previously addressed public participation in
agency adjudication in Recommendation 71-6, Public Participation in
Administrative Hearings, and recommended that public participation,
specifically through intervention, be freely allowed in trial-type,
on-the-record adjudicative proceedings when agency action is likely
to affect the interests of persons who are not parties to the
proceedings.\15\ More recently, the Conference has recommended that
agencies consider soliciting amicus briefs or public comments when
``they expect to designate a decision as precedential, particularly
in cases of significance or high interest,'' \16\ and provide agency
heads with the discretion to solicit arguments from interested
members of the public when deciding a novel or important question of
law, policy, or discretion.\17\
---------------------------------------------------------------------------
\15\ Recommendation 71-6, supra note 13.
\16\ Admin. Conf. of the U.S., Recommendation 2022-4,
Precedential Decision Making in Agency Adjudication, 88 FR 2312
(Jan. 13, 2023).
\17\ Recommendation 2024-3, supra note 12.
---------------------------------------------------------------------------
This Recommendation expands on the Conference's previous
recommendations by identifying best practices for public
participation in agency adjudications in light of technological
advancements and evolving methods for participating in agency
decision making. In doing so, the Conference recognizes and
emphasizes that agency practices must give due regard to the rights
of the private parties in an adjudication--especially in regulatory
enforcement proceedings--under the Constitution, the APA and other
statutes, and basic principles of administrative fairness.
Recommendation
Opportunities for Public Participation in Agency Adjudication
1. When appropriate, considering the variations in purpose,
complexity, governing law, and degree of public interest in
administrative adjudications, agencies should provide opportunities
for public participation in their adjudications. This is
particularly true when doing so would allow members of the public to
protect affected interests or present information or views that are
relevant and not otherwise represented in the adjudication, unless
the agency reasonably determines that public participation would
unduly complicate or delay the adjudication.
2. Agencies generally should allow and encourage public
participation in agency adjudications that are significantly
influenced by legislative facts (i.e., those of general relevance)
as opposed to adjudicative facts (i.e., those specific to the
parties) and have the potential to substantially affect the broader
public or persons beyond the parties.
3. When agencies provide opportunities for public participation
in adjudications, they should do so early in the adjudicative
process, especially when adjudications involve grants or denials of
permission or other discretionary determinations involving large-
scale public projects, to streamline the decision-making process
while simultaneously ensuring that relevant interests and views are
considered.
Methods for Facilitating Public Participation in Agency
Adjudication
4. When adjudications may establish precedents or make important
policy decisions in the resolution of routine claims or disputes,
agencies should consider allowing interested persons to intervene as
parties or submit amicus briefs. In developing or revising rules
governing who may participate as an intervenor in a proceeding,
agencies should use the factors listed in Recommendation 71-6,
Public Participation in Administrative Hearings, such as the nature
of the contested issues, the precise interest of the nonparties and
their ability to present relevant information or views not otherwise
or adequately represented in the adjudication, and the effect of
public participation on the agency's operations.
[[Page 27521]]
5. When adjudications involve unusually complex or novel issues
of law, fact, or discretion, agencies should develop mechanisms for
intervention or amicus participation when doing so would be helpful
to resolve the individual case or set agency-wide policy.
6. When adjudicating questions involving grants or denials of
permission, such as permit applications, or nonadversarial
discretionary policy matters involving, among other things, specific
public projects, agencies should solicit public input by, for
example:
a. Hosting public forums available through different media;
b. Convening focus groups;
c. Issuing requests for information in the Federal Register;
d. Conducting targeted outreach to facilitate opportunities for
meeting with interested and potentially affected persons;
e. Using ombuds; and
f. Holding virtual or hybrid public meetings, hearings, and
listening sessions with interested members of the public.
7. Agencies should determine whether there are opportunities for
broader and more innovative forms of public engagement in their
adjudicative processes that involve interactive discussion and
ongoing dialogue between agencies and interested members of the
public. For example, in appropriate circumstances, agencies should
consider establishing procedures that provide opportunities for
public participation by interested or affected persons prior to the
filing of applications for grants or denials of permission, such as
permit applications. Such enhanced forms of public participation may
also be useful when adjudicating discretionary policy determinations
regarding important public projects.
Communication and Transparency
8. Agencies should publicize administrative adjudications that
may affect members of the public, alert potentially affected persons
that their interests may be at stake, and provide advance notice of
available opportunities to participate in adjudications to
interested members of the public through means that are likely to
reach them, including, for example:
a. Social media posts;
b. Email alerts;
c. Press releases;
d. Federal Register notices;
e. Direct mailings and advertisements in the area where the
affected public is located;
f. Targeted outreach to groups that are likely to be interested
in and able to represent otherwise unrepresented interests and
views; and
g. Coordination with other federal agencies; state, local, and
tribal governments; and community-based organizations and
businesses, trade and professional associations, advocacy groups,
and other nongovernmental organizations that can help distribute and
publicize information about administrative adjudications and
available opportunities to participate to interested or potentially
affected members of the public.
9. Agencies should establish and make available to the public
procedural rules and general policies for public participation that
address their practices for involving members of the public in their
adjudications.
10. Agencies should maintain dedicated web pages that include:
(a) explanatory materials that educate the public on how to
participate effectively in administrative adjudications, and (b)
information in plain language about opportunities for interested
members of the public to participate in specific adjudications.
11. As appropriate and subject to available resources, agencies
should provide the public with access to electronic dockets for
individual cases that contain comprehensive information about all
filings and decisions, as well as relevant public input, public
comments, and reports or recommendations from federal advisory
committees.
Data Collection and Retrospective Review
12. Agencies should solicit and collect feedback and suggestions
from members of the public who have participated in their
adjudications, as well as agency adjudicators and staff, about their
experiences. Subject to the Paperwork Reduction Act and any other
legal requirements, agencies should consider using surveys, focus
groups, listening sessions and other meetings, and online feedback
forms and complaint portals. Agencies also should consider
consulting with nongovernmental organizations, advocacy groups, and
other private sector representatives who assist members of the
public to obtain this information.
13. Agencies should periodically evaluate the effectiveness of
their rules and policies addressing public participation in their
adjudications, consider feedback from public participants and agency
adjudicators and staff, and revise their rules and policies as
appropriate.
[FR Doc. 2025-11862 Filed 6-26-25; 8:45 am]
BILLING CODE 6110-01-P
</pre></body>
</html>Indexed from Federal Register on June 27, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.