Notice2026-02753
Adoption of Recommendations
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Published
February 11, 2026
Issuing agencies
Administrative Conference of the United States
Abstract
The Assembly of the Administrative Conference of the United States adopted four recommendations at the fully virtual Eighty-fourth Plenary Session: Obtaining Government Records for Use in Agency Proceedings; Temporary Rules; Organization, Management, and Operation of Agency Adjudication Offices; and Federal Agency Collaboration with State, Tribal, Local, and Territorial Governments.
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[Federal Register Volume 91, Number 28 (Wednesday, February 11, 2026)]
[Notices]
[Pages 6171-6179]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-02753]
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Notices
Federal Register
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This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
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Federal Register / Vol. 91, No. 28 / Wednesday, February 11, 2026 /
Notices
[[Page 6171]]
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 four recommendations at the fully virtual Eighty-fourth
Plenary Session: Obtaining Government Records for Use in Agency
Proceedings; Temporary Rules; Organization, Management, and Operation
of Agency Adjudication Offices; and Federal Agency Collaboration with
State, Tribal, Local, and Territorial Governments.
FOR FURTHER INFORMATION CONTACT: For Recommendations 2026-1 and 2026-2,
Eyal Lurie-Pardes; Recommendation 2026-3, Lea Robbins; and
Recommendation 2026-4, Becaja Caldwell. 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-fourth Plenary
Session on January 21, 2026, to consider four proposed recommendations
and conduct other business. All four recommendations were adopted.
Recommendation 2026-1, Obtaining Government Records for Use in
Agency Proceedings, provides agencies with best practices for making
government records available for use in agency proceedings in order to
promote the fairness, accuracy, consistency, timeliness, and efficiency
of agency decision making. It provides guidance on procedures by which
private parties and agency decision makers may obtain federal records
for use in agency proceedings--both when the parties bear
responsibility for obtaining the records and when the agency decision
maker holds that responsibility.
Recommendation 2026-2, Temporary Rules, identifies best practices
for temporary rules. Temporary rules cease to be effective after a
specific calendar date or upon the occurrence of a future event unless
an agency takes action to extend the rule, make it permanent, or repeal
it. The proposed recommendation provides guidance to agencies on
determining whether to issue a temporary rule, drafting and publishing
temporary rules, conducting timely assessments of temporary rules and
taking appropriate action, and developing internal procedures for
temporary rules. It also recommends that Congress consider how specific
agencies might use temporary rules to respond efficiently and
effectively to emergencies.
Recommendation 2026-3, Organization, Management, and Operation of
Agency Adjudication Offices, provides agencies with best practices for
organizing, managing, and operating agency adjudication offices. It
encourages agencies to collect, analyze, and use data to identify and
adopt the organizational, management, and operational practices that
are best suited to each agency's particular circumstances and most
effective in promoting fairness, accuracy, consistency, efficiency, and
timeliness in the adjudications they conduct.
Recommendation 2026-4, Federal Agency Collaboration with State,
Tribal, Local, and Territorial Governments, provides agencies with a
framework that federal agencies should use to identify and collaborate
more effectively with relevant state, tribal, local, and territorial
governments (STLTGs). It provides guidance on practices agencies can
adopt when initiating, managing, and evaluating collaborations with
STLTGs that promote a culture of improved coordination and strengthen
working relationships between governments.
The Conference based its recommendations on research reports and
prior history that are posted at: <a href="https://www.acus.gov/event/84th-plenary-session">https://www.acus.gov/event/84th-plenary-session</a>.
Authority: 5 U.S.C. 595.
Dated: February 9, 2026.
Shawne C. McGibbon,
General Counsel.
Appendix--Recommendations of the Administrative Conference of the
United States
Administrative Conference Recommendation 2026-1
Obtaining Government Records for Use in Agency Proceedings
Adopted January 21, 2026
Federal agencies conduct a vast number of administrative
proceedings each year, including proceedings to decide applications
for benefits, services, licenses, and permits, as well as
enforcement actions against persons suspected of violating the
law.\1\ In order for agency officials and private parties to
participate meaningfully in a proceeding, they frequently need
access to government records \2\ made, collected, received, or
maintained by the federal agency conducting the proceeding or
another federal agency.
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\1\ This Recommendation addresses agency proceedings that meet
the definition of ``adjudication'' under the Administrative
Procedure Act (APA). See 5 U.S.C. 551(7). It does not address
proceedings that meet the APA's definition of ``rule making.'' See
id. Sec. 551(5).
\2\ Several statutes define what constitutes a ``record.'' See,
e.g., 5 U.S.C. 552(f)(2), 552a(a)(4); 44 U.S.C. 3301(a)(1)(A).
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Although agencies are responsible for maintaining government
records, agency decision makers and parties who participate in
agency proceedings often face challenges in obtaining them. A record
may not be collected or maintained by the same agency or
organizational unit that is responsible for conducting a proceeding
or in a format that is readily usable or disclosable in the
proceeding. Agencies may lack sufficient resources to collect or
provide the necessary records in a timely manner, especially in
complex or high-volume proceedings. When private parties are
responsible for obtaining records, they may face administrative
burdens in understanding what records they need and where to find
them, and in
[[Page 6172]]
navigating agency processes for requesting or obtaining them.\3\
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\3\ See Admin. Conf. of the U.S., Recommendation 2023-6,
Identifying and Reducing Burdens on the Public in Administrative
Proceedings, 89 FR 1511 (Jan. 10, 2024).
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When designed well and implemented effectively, certain
procedural and technological reforms for accessing government
records have the potential to reduce burdens on agencies and private
parties and to promote the fairness, accuracy, efficiency, and
timeliness of agency proceedings.
Some agencies have robust programs for efficiently collecting
records for use in their proceedings while minimizing burdens on
private parties to gather and provide that information themselves.
In some cases, agencies obtain records from within the agency. For
example, the U.S. Department of Veterans Affairs administers a
variety of benefits programs by, among other things, making records
from its Veterans Health Administration available to adjudicators in
the agency's Veterans Benefits Administration.\4\
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\4\ See Margaret B. Kwoka, Obtaining Government Records for Use
in Agency Proceedings 12-13 (Dec. 11, 2025) (report to the Admin.
Conf. of the U.S.).
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Agencies also frequently obtain records from other federal
agencies to reduce administrative burdens, particularly in
proceedings related to benefits or services.\5\ Many agencies have
information-sharing agreements under the Computer Matching and
Privacy Protection Act of 1988, which governs certain automated data
sharing between federal agencies and includes procedural
requirements to ensure that shared information is accurate and used
only for authorized purposes.\6\ For example, the Department of
Education allows applicants to prefill answers to some questions on
the Free Application for Federal Student Aid by automatically
transferring relevant federal tax return information using a
consent-based information-sharing process developed by the
Department and the Internal Revenue Service.\7\ Agencies may also
enter into memoranda of understanding or other agreements to share
information.\8\
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\5\ This Recommendation does not cover records of state and
local agencies, although federal agencies often obtain such records
for use in their proceedings. See 5 U.S.C. 552a(a)(10).
\6\ 5 U.S.C. 552a(a)(8); see also Natalie R. Ortiz, Cong. Rsch.
Serv., R47325, Computer Matching and Privacy Protection Act: Data
Integration and Individual Rights (2022).
\7\ 26 U.S.C. 6103(l); U.S. Dep't of Educ., Privacy Act of 1974;
Matching Program, 88 FR 42052 (June 29, 2023).
\8\ See Kwoka, supra note 4, at 7.
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In other circumstances, private parties to agency proceedings
may need to obtain records from agencies, whether for the purpose of
providing them to the agency conducting the proceeding (a process
sometimes called ``request and return'') or for their own use in a
proceeding.\9\ For example, consistent with Administrative
Conference recommendations,\10\ many agencies allow parties in
adjudications involving an evidentiary hearing to inspect non-
privileged materials in agency files or seek production of non-
privileged records through discovery. However, discovery is
circumscribed or unavailable in some contexts, and, even when it is
available, it may not provide all the records the parties need in
such proceedings.\11\ In proceedings in which discovery is
unavailable or does not provide the needed records, parties may need
to file individual requests under the Freedom of Information
Act,\12\ the Privacy Act,\13\ or agency-specific procedures to
obtain the records. Although such requests may be useful in some
circumstances or necessary in the absence of other available
methods, they may not be the most efficient option for parties or
agencies, especially when the agency conducting the proceeding
already maintains the records at issue.\14\
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\9\ See id. at 5.
\10\ See, e.g., Admin. Conf. of the U.S., Recommendation 2016-4,
Evidentiary Hearings Not Required by the Administrative Procedure
Act, ] 10, 81 FR 94314, 94315 (Dec. 23, 2016); Admin. Conf. of the
U.S., Recommendation 70-4, Discovery in Agency Adjudication, 38 FR
19786 (July 23, 1973); see also Michael Asimow, Admin. Conf. of the
U.S., Federal Administrative Adjudication Outside the Administrative
Procedure Act 75, 86-87 (2019).
\11\ See Kwoka, supra note 4, at 36-37.
\12\ 5 U.S.C. 552.
\13\ Id. at Sec. 552a.
\14\ See Kwoka, supra note 4, at 28-32, 47-48; see also 5 U.S.C.
Sec. 552, 552(a).
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To reduce burdens on parties and agencies associated with
accessing records, agencies have established other systems and
processes that parties can use to access records independently. Some
agencies use online self-help portals that allow parties to obtain
records about themselves or their past interactions with the agency
more quickly and efficiently.\15\ However, portals are costly to
establish and maintain and may not be worth the expense if parties
rarely seek to obtain records. Many agencies also proactively
disclose records, especially previous decisions that parties may
find useful in understanding agency policies and interpretations of
the law.\16\
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\15\ See Kwoka, supra note 4, at 44-45; cf. Admin. Conf. of the
U.S., Recommendation 2023-4, Online Processes in Agency
Adjudication, 88 FR 42681 (July 3, 2023).
\16\ See Admin. Conf. of the U.S., Recommendation 2022-4,
Precedential Decision Making in Agency Adjudication, ] 11-12, 15-16,
88 FR 2312 (Jan. 13, 2023); Admin. Conf. of the U.S., Recommendation
2017-1, Adjudication Materials on Agency websites, 82 FR 31039 (July
5, 2017). Such records my also include legal materials, which are
``documents that establish, interpret, apply, explain, or address
the enforcement of legal rights and obligations, along with
constraints imposed, implemented, or enforced by or upon an
agency.'' See Admin. Conf. of the U.S., Recommendation 2023-1,
Proactive Disclosure of Agency Legal Materials, 88 FR 42678 (July 3,
2023).
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This Recommendation identifies best practices for making
government records available for use in agency proceedings. It
addresses circumstances in which the agency has the responsibility
for obtaining records, when records are shared among different
agency components, when records are shared among different agencies
for use in determining an applicant's eligibility for benefits or
services, and when private parties bear the responsibility for
obtaining records. This Recommendation also offers best practices
for how agencies should make records available in agency proceedings
in order to promote the fairness, accuracy, consistency, timeliness,
and efficiency of agency decision making.
Recommendation
Making Records Available in General
1. Unless prohibited by law or permitted by an exception
established by law allowing withholding of records, an agency should
make relevant records that it maintains available to:
a. Relevant officials internally;
b. Relevant officials at other agencies when needed for
administrative proceedings to determine an applicant's eligibility
or ineligibility for benefits or services, or the level of such
benefits or services; and
c. Private parties participating in such proceedings or
preparing to initiate such proceedings.
With regard to the public generally, unless prohibited by law or
permitted by an exception established by law allowing withholding of
records, an agency should make agency legal materials available to
the extent practicable.
2. When private parties request records that pertain to them, an
agency should not withhold access to those records solely based on
the privacy interests of requesting parties.
3. When determining how to make records available for use in
administrative proceedings, an agency should consider, among other
things, the following factors:
a. Whether the agency is required by statute to make the record
available using a particular method;
b. Whether a particular method promotes fairer, more efficient,
more accurate, or timelier use of a record in a proceeding as
compared to other methods; and
c. Whether a particular method is less costly or burdensome to
the government or private parties compared to other methods.
Internal Agency Procedures for Making Records Available for Use by
Agency Officials
4. When a record is needed for use in a proceeding, an agency
should ensure that relevant agency officials can easily obtain it,
preferably in electronic format, unless it would be impracticable to
do so.
5. An agency should not require parties to request and return
records for the agency's use in proceedings if the agency already
maintains the records.
6. When parties submit information to an agency in connection
with a proceeding, the agency should supplement the party's
submission with relevant information from the agency's records when
feasible and appropriate, such as by prepopulating a party's
application form with information previously submitted by the party
or otherwise maintained by that agency or, with the consent of the
party, another federal agency with whom information sharing is
permissible under governing law.
Interagency Sharing of Records
7. When an agency regularly needs information created,
collected, or maintained by another agency for use in determining an
applicant's eligibility for benefits or services
[[Page 6173]]
it should consult with the other agency to determine whether the
records containing that information are fit for the purpose of
determining eligibility and how the records should be used. When
determining whether such records are fit for such purpose, the
agency should consider, among other things, their accuracy,
completeness, timeliness, and relevance. If the records are fit for
use in proceedings regularly conducted by the recipient agency, the
source agency and the recipient agency should enter into an
interagency agreement for the sharing of records.
8. Consistent with Recommendation 2012-5, Improving Coordination
of Related Agency Responsibilities, an agency should make
interagency agreements for sharing records publicly available and
regularly assess their effectiveness.
Procedures for Parties To Obtain Records in Agency Adjudications
Involving an Evidentiary Hearing
9. An agency should allow parties in adjudications involving an
evidentiary hearing to inspect non-privileged materials in agency
files or seek production of non-privileged records through
discovery, consistent with Recommendation 2016-4, Evidentiary
Hearings Not Required by the Administrative Procedure Act, and
Recommendation 70-4, Discovery in Agency Adjudication.
Procedures for Parties To Submit Individual Requests for Records
10. An agency should establish written procedures for parties to
submit individual requests for records that are regularly needed in
proceedings, including records the parties previously submitted,
unless other procedures for obtaining the records (such as those
established under the Freedom of Information Act (FOIA)) are
sufficient or otherwise warranted based on the factors described in
Paragraph 3.
11. An agency should publish the procedures described in
Paragraph 10 in the Federal Register and codify them in the Code of
Federal Regulations. The procedures should specify the records that
parties may request and how parties should request them, how the
agency will review and respond to requests (including, as
practicable, the agency's expected timeframe for responding), and
whether parties may request review of the agency's response by a
higher-level agency official.
12. When an agency has authority to withhold records pursuant to
an exemption established by law, but when the application of the
exemption is not mandatory and no other law prohibits disclosure,
the agency should consider making discretionary disclosures of the
records in response to individual requests when those records are
needed for use in administrative proceedings.
13. When a party submits an individual request for a record that
is needed for use in a proceeding, the agency should consider
staying the proceeding or extending deadlines in the proceeding to
allow the party sufficient time to obtain and review the records.
Online Self-Help Portals for Parties To Obtain Records About Themselves
14. An agency should consider establishing an online self-help
portal to allow parties to obtain records about themselves when
parties regularly request specific categories of records for which
little or no redaction is necessary.
15. When offering an online self-help portal, an agency should
include relevant records submitted by parties and relevant
decisional documents issued by the agency that were made available
to the parties during the proceeding. As applicable, agencies should
follow the best practices for organization, user guidance, and
cybersecurity described in Recommendation 2023-4, Online Processes
in Agency Adjudication.
Proactive Public Disclosure
16. An agency should consider making records publicly available
beyond what is required by law when such records would be useful to
parties in administrative proceedings, including decisions and
filings associated with prior adjudicative proceedings consistent
with Recommendation 2017-1, Adjudication Materials on Agency
websites.
17. When an agency proactively makes records publicly available,
it should organize and index such records to allow parties to locate
the information they need efficiently.
Other Considerations When Making Records Available in Proceeding
18. When not prohibited by law, an agency should consider using
informal or ad hoc methods for making records available if doing so
would avoid the use of more costly methods for obtaining the same
information. For example, preferred methods could include providing
an explanation for an agency decision by email rather than requiring
the party to file a FOIA request for the same information.
19. An agency should not charge fees for requesting and
obtaining records for use in administrative proceedings unless such
fees are required by law.
20. To the extent practicable, an agency should design its
records to enable faster disclosure, whether upon request, through a
portal, or on an online database, such as by allowing automatic
redaction of private information.
Administrative Conference Recommendation 2026-2
Temporary Rules
Adopted January 21, 2026
When an agency promulgates a rule,\1\ it typically intends that
the rule will remain in effect indefinitely until the agency amends
or repeals it. However, an agency may also promulgate a rule that
will cease to be effective after a specific calendar date or upon
the occurrence of a future event unless the agency takes action to
extend the rule, make it permanent, or repeal it. This
Recommendation refers to such rules as ``temporary rules.'' \2\
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\1\ This Recommendation applies to ``rules'' as defined in the
Administrative Procedure Act (APA) (5 U.S.C. 551(4)), except that it
does not address interpretive rules and general statements of policy
for which the agency has invoked the APA's exemption from notice-
and-comment procedures. See 5 U.S.C. 553(b). However, when invoking
the exemption for interpretive rules and general statements of
policy, agencies may take into account the provisions of this
Recommendation to the extent applicable.
\2\ The term ``temporary rule'' is used differently in some
contexts. For example, some courts and agencies use the term to
refer to interim final rules. See Eyal Lurie-Pardes, Temporary Rules
7 (Dec. 18, 2025) (report to the Admin. Conf. of the U.S.). Unlike
the rules that this Recommendation addresses, interim final rules do
not expire. See Admin. Conf. of the U.S., Recommendation 2024-6,
Public Participation in Agency Rulemaking Under the Good Cause
Exemption, 89 Fed. Reg. 106408 (Dec. 30, 2024). In addition, as
discussed below, the Office of the Federal Register (OFR) has a
special process for publishing ``temporary rules,'' which it defines
as rules that ``respond[ ] to a situation that requires a rule be
effective for a short, definable period of time.'' Nat'l Archives &
Records Admin., Off. of the Fed. Reg., Federal Register Document
Drafting Handbook 3-67 (Aug. 2018 Edition, Revision 2.2, June 2025),
<a href="https://www.archives.gov/files/federal-register/write/handbook/ddh.pdf">https://www.archives.gov/files/federal-register/write/handbook/ddh.pdf</a> [hereinafter Document Drafting Handbook]. An earlier
recommendation of the Administrative Conference similarly defines
``temporary rules'' as ``those that address a temporary emergency or
expire by their own terms within a relatively brief period.'' Admin.
Conf. of the U.S., Recommendation 95-4, Procedures for
Noncontroversial and Expedited Rulemaking, 60 Fed. Reg. 43110 (Aug.
18, 1995). This Recommendation uses the term ``temporary rules'' to
encompass a broader range of rules because it addresses any rule
that expires after a specific calendar date or upon the occurrence
of a future event absent agency action to extend the rule or make it
permanent.
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There may be several advantages to adopting a temporary rule.
For example, when an agency intends a rule to address a time-limited
issue, adopting a temporary rule enables the agency to promulgate
and repeal the rule efficiently in a single proceeding and can help
to avoid public confusion. A temporary rule may also give an agency
the flexibility to address emergency situations or deviate
temporarily from a regulatory framework while clarifying for the
public that the deviation is of limited duration. In addition, using
temporary rules enables an agency to commit to updating the rule or
reviewing its effectiveness after a specified period. This can
promote consideration of public feedback in rapidly evolving
circumstances.
At the same time, there may be disadvantages associated with
temporary rules. For example, an agency must commit to expending
limited resources to determine whether a temporary rule should be
extended, made permanent, or allowed to expire and, if warranted,
must take additional action to extend it or make it permanent. When
agencies do not monitor their temporary rules effectively or lack
anticipated resources to make updates, they may unintentionally
allow such rules to expire or may mistakenly allow expired rules to
remain in the Code of Federal Regulations (CFR). This could impede
agency program operations, create public confusion, and undermine
predictability and confidence. In addition, frequent changes to
regulatory
[[Page 6174]]
frameworks resulting from numerous temporary rules may undermine
regulatory certainty, making it difficult for regulated parties to
adjust their behavior or make long-term compliance decisions. Such
changes may also require the public to expend additional resources
to monitor, and provide the agency with input on, temporary rules.
More frequent changes could also lead to more frequent agency
expenditures for related public communication, record development,
impact analysis, or consultations (such as with state, local, and
tribal governments \3\).
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\3\ See Admin. Conf. of the U.S., Recommendation 2025-2,
Consultation with State, Local, and Tribal Governments in Regulatory
Policymaking, 90 Fed. Reg. 27517 (June 27, 2025).
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Agencies regularly use temporary rules in at least five
circumstances. First, agencies use temporary rules to establish or
amend a regulatory framework for a limited period. For example, the
Coast Guard uses temporary rules to establish temporary safety
zones, security zones, and special local regulations for marine
events, fireworks displays, bridge construction, and other
occurrences that might pose a safety concern.\4\
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\4\ See, e.g., 83 Fed. Reg. 2060 (Jan. 16, 2018).
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Second, agencies use temporary rules to respond to unforeseen
emergencies that necessitate immediate and often short-term
modifications to existing regulatory frameworks. For example, many
agencies adopted temporary rules during the COVID-19 pandemic that
altered preexisting regulatory frameworks for a defined period or
for the duration of the public health emergency as determined by the
Secretary of Health and Human Services.\5\
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\5\ See, e.g., 85 Fed. Reg. 19326 (Apr. 6, 2020); 85 Fed. Reg.
17285 (Mar. 27, 2020).
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Third, agencies use temporary rules to implement statutory
changes and judicial decisions in a timely manner. For example, the
National Marine Fisheries Service once promulgated a rule
temporarily reinstating an earlier rule to implement a district
court ruling invalidating the rule that replaced it.\6\
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\6\ 79 Fed. Reg. 36433 (June 27, 2014).
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Fourth, agencies use temporary rules to amend rules that they
must update on an annual, biennial, or other recurring basis, as
mandated by law.\7\ For example, the Environmental Protection Agency
uses temporary rules to set annual standards for ``nationally
applicable renewable fuel volume targets'' under the Clean Air
Act.\8\
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\7\ Lurie-Pardes, supra note 2, at 16-17.
\8\ See, e.g., 87 Fed. Reg. 39600 (July 1, 2022).
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Fifth, agencies use temporary rules as a vehicle for regulatory
learning. Rules establishing pilot programs, demonstration projects,
and other regulatory experiments, for example, often are effective
for limited periods.\9\ Agencies may also promulgate temporary rules
as a means of committing to retrospective review of those rules.\10\
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\9\ See, e.g., 89 Fed. Reg. 57353 (July 15, 2024); 85 Fed. Reg.
74875 (Nov. 24, 2020).
\10\ For example, since the 1980s, the Social Security
Administration has included calendar expiration dates in rules that
amend the Listing of Impairments that the agency uses to evaluate
disability claims. The agency includes expiration dates to ensure it
periodically reviews and updates listings to reflect advances in
medical knowledge. See, e.g., 88 Fed. Reg. 37704 (June 8, 2023); see
also 50 Fed. Reg. 50068, 50071 (Dec. 6, 1985). ACUS has issued
several recommendations encouraging agencies to create ``a culture
of retrospective review,'' identify regulations that are subject to
periodic retrospective review, establish a review plan for them, and
disclose whether and how they use algorithmic tools to support
retrospective review. See Admin. Conf. of the U.S., Recommendation
2023-3, Using Algorithmic Tools in Retrospective Review of Agency
Rules, 88 Fed. Reg. 42681 (July 3, 2023); Admin. Conf. of the U.S.,
Recommendation 2021-2, Periodic Retrospective Review, 86 Fed. Reg.
36080 (July 8, 2021); Admin. Conf. of the U.S., Recommendation 2017-
6, Learning from Regulatory Experience, 82 Fed. Reg. 61783 (Dec. 29,
2017); Admin. Conf. of the U.S., Recommendation 2014-5,
Retrospective Review of Agency Rules, 79 Fed. Reg. 75114 (Dec. 17,
2014); Admin. Conf. of the U.S., Recommendation 95-3, Review of
Existing Agency Regulations, 60 Fed. Reg. 43108 (Aug. 18, 1995).
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There are several considerations involved in developing,
promulgating, and managing temporary rules. First, when an agency
chooses to promulgate a temporary rule, it must determine when the
rule should expire. There is significant variation in the duration
of temporary rules, ranging from several hours to several years. In
some cases, the agency knows or can reasonably predict how long the
rule should be in effect. In other cases, agencies anticipate that
conditions will change but lack sufficient certainty regarding the
timing of the change.
Agencies must also consider how they will promulgate a temporary
rule and, if warranted, provide an opportunity for the public to
participate in the rulemaking. Agencies are generally subject to the
rulemaking requirements of 5 U.S.C. 553, including the requirements
for notice and comment, when they promulgate temporary rules.
However, because temporary rules are often used to address
emergencies or implement statutory changes or judicial decisions,
agencies frequently find good cause to forgo pre-promulgation notice
and comment.\11\ Some agencies also have specific statutory
authority to promulgate temporary rules without pre-promulgation
notice and comment, especially in emergency situations.\12\
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\11\ 5 U.S.C. 553(b)(B). The Conference has identified best
practices for rulemaking in such circumstances. See Recommendation
2024-6, supra note 2. Neither this Recommendation nor Recommendation
2024-6 addresses the circumstances under which agencies may lawfully
assert the good cause exemption.
\12\ See, e.g., 16 U.S.C. 1533(b)(7).
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Agencies must also consider how to publish temporary rules in
the Federal Register and the CFR. If an agency publishes a temporary
rule in the Federal Register using a standard final rule document,
the Office of the Federal Register (OFR) will codify the rule in the
CFR but will not remove it from the CFR when the rule expires. As a
result, the agency would need to publish a new rule in the Federal
Register to remove the rule from the CFR as of the date it is no
longer effective. An agency might use this approach to remove a
temporary rule from the CFR when it ceases to be effective based on
an event that occurs after the publication of the initial temporary
rule.
Alternatively, agencies may publish a specific type of temporary
rule document in the Federal Register if they want OFR to remove the
rule from the CFR when it is no longer effective. As explained in
OFR's Document Drafting Handbook, agencies can use this process when
the temporary rule ``responds to a situation that requires a rule be
effective for a short, definable period of time.'' \13\ Under this
process, the agency must specify the calendar date that the rule
becomes effective and the calendar date the rule expires in the
DATES caption of the rulemaking document published in the Federal
Register.\14\ OFR will then ensure that the temporary rule does not
appear in the CFR after it expires.\15\ With the approval of the
Director of the Federal Register, agencies may also designate
sections of the CFR with a ``T'' to identify them as temporary.\16\
This can be particularly helpful when an agency wishes to maintain a
specific section-numbering system after a regulatory transition
period or when the agency issues temporary rules on a recurring
basis.
---------------------------------------------------------------------------
\13\ Document Drafting Handbook, supra note 2, at 3-67. OFR
generally does not designate rules as temporary if their duration
exceeds three years.
\14\ Under OFR's process, agencies generally must specify the
calendar date after which the rule expires. Otherwise, OFR approval
would be necessary. For example, during the COVID-19 pandemic, OFR
allowed certain rules to be classified as temporary based on the
expiration of the ``public health emergency'' to be determined by
the Secretary of HHS after issuance of the rules. See Lurie-Pardes,
supra a note 2, at 8 n.55.
\15\ Document Drafting Handbook, supra note 2, at 3-67. OFR also
ensures that temporary rules are accurately reflected in the
Electronic Code of Federal Regulations (eCFR), which is a web
version of the CFR that is updated daily but is not an official
legal edition of the CFR. See eCFR, Nat'l Archives & Records Admin.,
<a href="https://www.ecfr.gov">https://www.ecfr.gov</a> (last visited Dec. 4, 2025). If the rule's
duration is at least several days but less than one year, it will
appear in the eCFR but may not necessarily appear in the annual
printed volumes of the CFR. See Lurie-Pardes, supra note 2, at 8.
\16\ Document Drafting Handbook, supra note 2, at 3-67.
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This Recommendation identifies best practices for temporary
rules, including guidelines for determining when to issue a
temporary rule, drafting and publishing temporary rules, conducting
timely assessments of temporary rules and taking appropriate action,
and developing internal procedures for temporary rules. It also
recommends that Congress consider how specific agencies might use
temporary rules to respond efficiently and effectively to
emergencies.
Recommendation
Determining Whether To Issue a Temporary Rule
1. If an agency determines or reasonably expects that a rule
will only be necessary for a limited time, it should consider
issuing a temporary rule--that is, a rule that will cease to be
effective after a specific calendar date or upon the occurrence of a
future event unless the agency takes action to extend the rule.
Circumstances in which it may be appropriate to issue a temporary
rule include:
[[Page 6175]]
a. When the rule responds to a condition of finite duration;
b. When the rule responds to an emergency, even if the exact
duration of the emergency is initially unknown;
c. When the rule responds to a statutory amendment, judicial
decision, or other situation temporarily while the agency develops a
more permanent approach; and
d. When a statute requires, or the rule requires or would
benefit from, updating on an annual or other periodic basis.
2. An agency should consider whether issuing a temporary rule
would help the agency learn from regulatory experience.
Circumstances in which it may be appropriate to issue a temporary
rule for this purpose include:
a. When the rule establishes a pilot program, demonstration
project, or other form of regulatory experimentation; and
b. When the agency seeks to commit to retrospective review of a
rule and has sufficient resources to conduct the retrospective
review and take appropriate follow-up rulemaking action, if any,
before the rule expires.
3. In deciding whether to designate a rule as temporary,
agencies should consider a variety of factors, including:
a. Whether doing so would increase efficiency by combining
issuance and repeal of the rule;
b. Whether the agency or regulated parties would benefit from
increased flexibility to deviate temporarily from a regulatory
framework;
c. Whether benefits are likely to ensue from committing to
review a rule in advance, such as with pilot or demonstration
projects;
d. The feasibility of reviewing the rule after a certain
specified period, including the burden on agency staff and
resources;
e. The risk that the agency may unintentionally allow the rule
to expire and the consequences of that expiration; and
f. Whether doing so would undermine the need for regulatory
certainty.
Drafting and Publishing a Temporary Rule
4. When an agency promulgates a temporary rule, it should:
a. Explain in the preamble to the rule (and to the proposed
rule, if applicable) why the rule is effective for a limited period
and how the agency determined that period;
b. If it contemplates further action, discuss in any preamble
what action the agency currently contemplates taking to extend the
rule, amend it, or make it permanent; and
c. Specify the effective period of the rule in the text of the
rule published in the Code of Federal Regulations (CFR).
5. If an agency intends for the Office of the Federal Register
(OFR) to automatically remove a temporary rule from the CFR when it
expires on a specific date, the agency should indicate in the
``ACTION'' caption of the document published in the Federal Register
that the rule is ``temporary'' and specify in the ``DATES'' caption
of the document the calendar date after which the rule expires.
6. Even if an agency does not intend for OFR to remove a
temporary rule from the CFR when it expires, the agency should still
consider referring to the rule as ``temporary'' (including in the
``ACTION'' caption of the document published in the Federal
Register) when doing so would promote clarity.
7. When an agency provides that a rule will expire upon the
occurrence of a future event rather than on a specific calendar
date, the agency should explain in the preamble to the rule how the
public can determine when the event has occurred. As soon as
practicable after determining the specific calendar date upon which
such a rule has expired or will expire, the agency should inform the
public of that date and, when necessary, repeal the rule by
publishing a new rule in the Federal Register.
8. An agency should consider requesting a numbering deviation
from the Director of the Federal Register pursuant to 1 CFR 21.14(b)
to include a ``T'' in the section number of any temporary rule when
doing so would promote clarity.
9. An agency that promulgates a high volume of temporary rules
should consult with OFR in developing a standardized template for
drafting such rules.
Conducting a Timely Assessment of a Temporary Rule and Taking
Appropriate Action
10. The extension of a temporary rule is a separate rulemaking
requiring an agency, absent an exception, to (a) publish a notice of
proposed rulemaking in the Federal Register to extend the rule, (b)
explain in the notice why the agency proposes to extend the rule,
and (c) invite public comment on the extension. If an agency for
good cause finds that pre-promulgation notice and public procedure
are impracticable, unnecessary, or contrary to the public interest,
it should follow the practices for obtaining public input on the
rule identified in Recommendation 2024-6, Public Engagement in
Agency Rulemaking Under the Good Cause Exemption, and Recommendation
2018-7, Public Engagement in Rulemaking.
11. If an agency anticipates that it may need to extend a
temporary rule or make the rule permanent, it should develop a
timeline for assessing the rule and taking any appropriate action
sufficiently before the rule expires to avoid uncertainty.
Developing An Internal Policy on Temporary Rules
12. An agency should develop an internal policy on temporary
rules. The policy, which should be made available to relevant agency
personnel and the public, should address:
a. Circumstances in which it may be appropriate for the agency
to issue a temporary rule;
b. Considerations for determining when a temporary rule should
expire;
c. Procedures for drafting a temporary rule;
d. Procedures for submitting a temporary rule to OFR for
publication in the Federal Register and the CFR;
e. Procedures for obtaining public input on a temporary rule,
including with respect to whether and when the rule should expire;
f. Procedures for assessing whether a temporary rule should be
extended, amended, made permanent, or allowed to expire; and
g. Procedures for extending a temporary rule, including public
notice and any opportunities for public participation.
Recommendation for Congress
13. When Congress specifically provides for an agency's
emergency rulemaking authority, it should consider whether it would
be beneficial specifically to authorize the agency to promulgate
rules that are effective for a limited period without pre-
promulgation notice and comment. In doing so, Congress should
specify how long such rules may remain in effect, identify any
required opportunities for post-promulgation public participation,
and set forth any procedure for extending such rules.
Administrative Conference Recommendation 2026-3
Organization, Management, and Operation of Agency Adjudication Offices
Adopted January 21, 2026
Most agencies that adjudicate cases have specific components,
below the agency-head level, that are responsible primarily for
conducting hearings or reviewing the decisions of lower-level
adjudicators.\1\ These components, referred to in this
Recommendation as ``adjudication offices,'' go by many names,
including ``Office of Hearings and Appeals,'' ``Office of
Administrative Law Judges,'' ``Appeals Council,'' and ``Board of
Appeals.''
---------------------------------------------------------------------------
\1\ This Recommendation does not address adjudications not
involving an evidentiary hearing, see Admin. Conf. of the U.S.,
Recommendation 2023-5, Best Practices for Adjudication Not Involving
an Evidentiary Hearing, 89 FR 1509 (Jan. 10, 2024), nor does it
address offices that issue decisions subject to de novo review by an
administrative law judge, administrative judge, or agency head
(e.g., initial determinations regarding applications for benefits).
Additionally, this Recommendation does not address adjudication by
Senate-confirmed officials, which was the subject of Recommendation
2024-3, Senate-Confirmed Officials and Administrative Adjudication,
89 FR 56276 (July 9, 2024).
---------------------------------------------------------------------------
There is considerable variation in the organization, management,
and operation of adjudication offices. For example, some
adjudication offices perform both hearing and appellate functions,
while some agencies assign those functions to separate offices. Some
adjudication offices are centralized, while others are distributed
across locations nationwide. Some adjudication offices are headed by
an adjudicator (often designated a ``chief judge'' or ``chair''),
while others are headed by an official who is not an adjudicator
(often designated a ``director''). Still other adjudication offices
incorporate aspects of both models, in which a chief judge or chair
oversees adjudication-related matters, and a director oversees
operational matters, such as technology, human resources, budget
planning, office space, and procurement. In some adjudication
offices, support personnel are assigned to specific adjudicators,
while in other offices, support personnel are managed centrally.
Some adjudication offices have dedicated resources for technology
and human resources, while others rely on separate agency components
for such services. Some adjudication offices
[[Page 6176]]
have devoted considerable resources to developing centralized
manuals and handbooks to guide adjudicative personnel, while others
have not systematically recorded their practices.
Important aspects of organization, management, and operation
include the assignment of duties to an adjudication office; the
placement of an adjudication office within an agency hierarchy; the
geographical distribution of adjudicators and support personnel; the
division of an adjudication office into smaller subunits, including
local offices, and the management of those subunits; the functions
and duties assigned to managers; the availability and use of
performance management tools, including performance metrics,
expectations, appraisal (when permitted), and feedback and training;
the development and implementation of caseload management practices;
and the allocation and use of technology, personnel, and other
resources.\2\
---------------------------------------------------------------------------
\2\ See Jennifer Lee Koh, Organization, Management, and
Operation of Agency Adjudication Offices (Dec. 4, 2025) (report to
the Admin. Conf. of the U.S.).
---------------------------------------------------------------------------
Statutes or governmentwide regulations may determine important
aspects of the organization, management, and operation of
adjudication offices. Some adjudication offices are established by
statute, for example, and the statutes that establish those offices
may specify requirements for organizing, managing, and operating
them. In cases of formal adjudication, the Administrative Procedure
Act requires, among other things, that agencies generally separate
adjudicative personnel from investigative and prosecutorial
personnel,\3\ prohibit ex parte communications between agency
decision makers and interested persons outside the agency,\4\ assign
administrative law judges (ALJs) to cases in rotation so far as
practicable,\5\ and abstain from assigning duties to ALJs that are
inconsistent with their duties and responsibilities.\6\ Agencies are
also prohibited from rating the job performance of ALJs or granting
them awards and incentives.\7\ Additionally, agencies are required
to publish descriptions of their central and field organization in
the Federal Register.\8\
---------------------------------------------------------------------------
\3\ 5 U.S.C. 554(d).
\4\ Id. Sec. Sec. 554(d)(1), 557(d).
\5\ Id. Sec. 3105.
\6\ Id.
\7\ 5 CFR 930.206; see also 5 U.S.C. 4301(2)(D).
\8\ 5 U.S.C. 552(a)(1)(A), (a)(2)(C).
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Nonetheless, agencies may retain significant discretion in how
they organize, manage, and operate their adjudication offices. As
the Administrative Conference has recognized, how agencies exercise
that discretion can have a significant impact on the fairness,
accuracy, consistency, efficiency, and timeliness of agency
adjudication. The Conference has recommended, for example, that
agencies establish organizational units, supervisory structures, and
central and field operations that enhance timely decision making.\9\
The Conference has also adopted recommendations regarding, among
other things, the separation of adjudicative personnel from
investigative and prosecutorial personnel; \10\ ex parte
communications; \11\ supervision of adjudicative personnel; \12\
provision of training for adjudicative personnel; \13\ development
and use of production measures and expectations; \14\ use of quality
assurance techniques; \15\ and access to technology, personnel, and
other resources.\16\ Additionally, the Conference has recommended
that agencies make certain organizational, management, and
operational materials available to the public, including policies
governing the appointment and supervision of agency
adjudicators,\17\ guidance documents and explanatory materials
relating to adjudicative procedures,\18\ and case processing data
and goals.\19\ Such transparency enhances the legitimacy and
accountability of agency decisions, promotes uniformity in agency
adjudications, and increases public support for and confidence in
agency actions. Building on these recommendations, this
Recommendation offers agencies a general framework for organizing,
managing, and operating adjudication offices.
---------------------------------------------------------------------------
\9\ Admin. Conf. of the U.S., Recommendation 2023-7, Improving
Timeliness in Agency Adjudication, ] 13, 89 FR 1513, 1515 (Jan. 10,
2024).
\10\ Admin. Conf. of the U.S., Recommendation 2016-4,
Evidentiary Hearings Not Required by the Administrative Procedure
Act, ] 3, 81 FR 94314, 94315 (Dec. 23, 2016).
\11\ Id. ] 2.
\12\ Admin. Conf. of the U.S., Recommendation 2019-9, Recruiting
and Hiring Agency Attorneys, 84 FR 71355 (Dec. 27, 2019).
\13\ Admin. Conf. of the U.S., Recommendation 2023-4, Online
Processes in Agency Adjudication, ] 23, 88 FR 42681, 42684 (July 3,
2023); Recommendation 2023-7, supra note 9, ] 21.
\14\ Under OFR's process, agencies generally must specify the
calendar date after which the rule expires. Otherwise, OFR approval
would be necessary. For example, during the COVID-19 pandemic, OFR
allowed certain rules to be classified as temporary based on the
expiration of the ``public health emergency'' to be determined by
the Secretary of HHS after issuance of the rules. See Lurie-Pardes,
supra note 2, at 8 n.55.
\15\ Admin. Conf. of the U.S., Recommendation 2021-10, Quality
Assurance Systems in Agency Adjudication, 87 FR 1722 (Jan. 12,
2022).
\16\ Admin. Conf. of the U.S., Recommendation 2018-3, Electronic
Case Management in Federal Administrative Adjudication, 83 FR 30686
(June 29, 2018); Recommendation 2023-7, supra note 9, ] 16.
\17\ Admin. Conf. of the U.S., Recommendation 2020-5,
Publication of Policies Governing Agency Adjudicators, ] 1, 86 FR
6622, 6623 (Jan. 22, 2021).
\18\ Admin. Conf. of the U.S., Recommendation 2018-5, Public
Availability of Adjudication Rules, ] 1, 84 FR 2142, 2142 (Feb. 6,
2019); Admin. Conf. of the U.S., Recommendation 2020-3, Agency
Appellate Systems, ] 21, 86 FR 6618, 6620 (Jan. 22, 2021);
Recommendation 2016-4, supra note 10, ] 29.
\19\ Recommendation 2023-7, supra note 9, ] 25.
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Of course, agencies and adjudication offices vary greatly in
terms of their mission; the legal requirements under which they
operate; the volume, complexity, and variation of their caseloads;
their workforce needs; the management challenges they face; and the
resources available to them. Because of these variations, the
Conference has encouraged agencies to collect, analyze, and use data
to evaluate and improve the timeliness, efficiency, and quality of
their adjudications.\20\ Such data also allow agencies to identify
the organizational, management, and operational practices that are
best suited to their particular circumstances and most effective in
promoting fairness, accuracy, consistency, efficiency, and
timeliness in the adjudications they conduct.
---------------------------------------------------------------------------
\20\ Recommendation 2023-7, supra note 9; Recommendation 2023-4,
supra note 13; Recommendation 2021-10, supra note 15; Recommendation
2018-3, supra note 16.
---------------------------------------------------------------------------
Recommendation
Information Collection and Use
1. Agencies, particularly those that adjudicate a high volume of
cases, should ensure that electronic case management or other
systems track, at a minimum, the following information necessary for
determining how to organize, manage, and operate their adjudication
offices:
a. Data for assessing the timeliness of decision making, as
described in Recommendation 2023-7, Improving Timeliness in Agency
Adjudication;
b. Data for assessing the quality of decision making, as
described in Recommendation 2021-10, Quality Assurance Systems in
Agency Adjudication;
c. Data regarding the allocation and use of technology, funding,
office space, and other resources; and
d. Data regarding the use and performance of adjudication office
personnel, including, as applicable:
i. The type and number of adjudicators and support personnel
within and across adjudication offices;
ii. The type and number of cases assigned to adjudicators and
support personnel during a standard reporting period (e.g., week,
month, quarter, year);
iii. The number of decisions written by adjudicators and support
personnel during a standard reporting period; and
iv. The amount of time, by case type, that adjudication offices
take to complete the decisional process, including the time it takes
for (1) support personnel to perform case management tasks such as
case intake, docketing, assignment, scheduling, and completion; (2)
adjudicators to commence and complete hearings; (3) adjudicators or
support personnel to review case files and issue legally sound and
policy-compliant decisions; and (4) appellate adjudicators to
complete their review of hearing-level decisions.
2. Agencies should seek assessments, including responses to
structured inquiries, as well as more general types of feedback on
the organization, management, and operation of adjudication offices.
Sources of feedback may include agency adjudicators and support
personnel, other government personnel both inside and outside the
agency, parties to adjudicative proceedings and their
representatives, and other non-government organizations and
interested persons.
3. Agencies should undertake more tailored inquiries when
necessary to help assess specific issues related to the
[[Page 6177]]
organization, operation, and management of their adjudication
offices.
4. Agencies should use the information described in Paragraphs
1-3 to help them determine, among other things:
a. The most suitable organizational placement of adjudication
offices within the broader agency hierarchy and the internal
hierarchy of each adjudication office;
b. Whether and how to subdivide the adjudication office (e.g.,
based on geography or subject matter);
c. The roles and responsibilities of adjudicators and support
personnel, including how to best utilize and assign support
personnel (e.g., assigning teams of support personnel to specific
adjudicators or pooling staff resources);
d. Reasonable performance metrics or expectations for
adjudicators and support personnel; and
e. Appropriate tools for managing adjudicators and support
personnel.
Management and Resources
5. Agencies should designate high-level officials within their
adjudication offices who are responsible for performing or
overseeing essential management duties or, when appropriate,
liaising with other agency components that perform such duties.
Essential management duties include:
a. Managing operations and resources, such as technology, human
resources, budget planning, office space, and procurement;
b. Managing case workloads, such as intake, docketing,
assignment, scheduling, and completion;
c. Performing quality assurance and reviewing work product;
d. Facilitating the appointment, supervision, and training of
adjudicators;
e. Hiring, supervising, and training support personnel,
including conducting performance appraisals;
f. Handling personnel matters;
g. Developing and implementing office procedures and policies;
h. Communicating with members of the public;
i. Reporting to the agency head and communicating with other
relevant components of the agency; and
j. Coordinating periodic evaluative and strategic planning
activities.
6. In determining which type of high-level official to assign
management duties (e.g., a head adjudicator such as a chief judge or
chair, or a head official who is not an adjudicator such as a
director), agencies should consider the size, caseload, resources,
and capacity of the adjudication office and the subject matter
expertise required to efficiently perform necessary management
tasks. Based on these factors, agencies should consider dividing
management tasks between high-level officials when appropriate.
7. The heads of adjudication offices should report directly to
the agency head or deputy agency head, as appropriate, unless a
statute provides otherwise or such a reporting structure would
adversely affect the integrity of agency adjudications.
8. Agencies should decide whether to assign cases to
adjudicators with management responsibilities and, if so, determine
the size of their caseload (e.g., full, partial, or minimal) by
balancing the adjudicator's management duties with the agency's
adjudicative needs.
9. Agencies should permit and encourage use of a broad range of
tools for managing adjudicators and support personnel, including:
a. Data-based timeliness and productivity measures or
expectations, as described in Recommendation 2023-7, Improving
Timeliness in Agency Adjudication;
b. Quality assurance techniques, as described in Recommendation
2021-10, Quality Assurance Systems in Agency Adjudication;
c. Training, both general and focused;
d. Peer feedback and collaboration;
e. Performance appraisals for non-ALJ adjudicators and
adjudication office support personnel; and
f. Handbooks, manuals, bench books, and similar materials that
supplement codified regulations by prescribing case management
practices.
10. Agencies should provide high-volume adjudication offices
with dedicated human, financial, technological, and other resources
to support operational needs and increase adjudicative capacity.
Adjudication offices that rely on shared or agency-wide resources
should have designated personnel with primary responsibility for
liaising with other components of the agency for specific resource
issues.
11. Agencies should modernize electronic systems, particularly
those that are necessary to (a) support adjudicative processes, such
as case management and technology, and (b) collect accurate and
quality data.
Strategic Planning
12. Agencies should engage periodically in evidence-based and
transparent evaluation of their organizational, management, and
operational practices to assess whether current practices are
meeting agency goals and adjudicative needs. In doing so, agencies
should use the information described in Paragraphs 1-3 to assess,
among other things:
a. Organizational structures and the placement of adjudication
offices within the broader agency hierarchy;
b. Internal reporting structures of adjudication offices;
c. Roles and responsibilities of management officials, including
the assignment of cases to adjudicators with management
responsibilities;
d. Resource allocation to and within an adjudication office,
including the use and assignment of adjudicators and support
personnel; and
e. Performance metrics or expectations for adjudicators and
support personnel.
Communication and Transparency
13. Agencies should publish, and update as necessary, the
following materials on their websites:
a. Organizational charts that include both (i) the internal
hierarchy of adjudication offices, and (ii) where each adjudication
office is located within the broader agency hierarchy;
b. Descriptions of the positions responsible for performing or
overseeing essential management duties or liaising with separate
agency components that perform such duties;
c. Policies and practices governing the appointment and
supervision of adjudicators, as described in Recommendation 2020-5,
Publication of Policies Governing Agency Adjudicators, and, as
appropriate, support personnel;
d. Brief explanations of an adjudication office's operation,
such as the processes for case intake, docketing, assignment,
scheduling, and completion; and
e. Any handbooks, manuals, bench books, or similar materials
that supplement codified regulations by prescribing case management
practices, as described in Recommendation 2018-5, Public
Availability of Adjudication Rules.
14. Agencies should publish in the Federal Register descriptions
of how their adjudication offices are organized and the functions of
those offices.
15. Agencies should make reasonable efforts to raise public
awareness of upcoming changes to their adjudication offices,
especially those that have the potential to affect significantly the
rights of parties or other interested persons.
16. When agencies use performance metrics in appraising the
performance of employees, as defined in 5 U.S.C. 4301, and members
of the Senior Executive Service, or in setting expectations for
ALJs, who are not subject to performance appraisals, they should
disclose publicly such metrics or expectations and explain how they
were developed. For adjudicators and support personnel who are
subject to performance appraisals, agencies should disclose publicly
(a) how they use such measures to appraise employee performance, and
(b) whether employees are eligible for incentive awards based on
such performance.
Administrative Conference Recommendation 2026-4
Federal Agency Collaboration With State, Tribal, Local, and Territorial
Governments
Adopted January 21, 2026
Many federal agencies regularly collaborate with state, tribal,
local, and territorial governments (STLTGs) to administer federal
programs. Some collaborations are required by law, while others are
initiated voluntarily by agencies themselves. Some collaborations
are relatively formal, while others are relatively informal. Some
collaborations are short in duration while others persist for
decades or longer. Federal agencies collaborate with STLTGs to carry
out many administrative functions, including permitting and
licensing,\1\ regulatory enforcement,\2\ benefits administration,\3\
and
[[Page 6178]]
resource management.\4\ The nature and type of collaboration can
also vary widely. For example, federal agencies may be required to
consult with STLTGs when they engage in regulatory policymaking, a
specific form of collaboration that the Administrative Conference
addressed in a recent recommendation.\5\ Across the federal
government, collaborations with STLTGs serve as critical conduits
for implementing many federal programs.\6\
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\1\ For example, the U.S. Army Corps of Engineers collaborates
with state and local environmental agencies when it reviews requests
from non-federal interests to construct navigation projects for
harbors. See 33 U.S.C. 2233.
\2\ For example, the Drug Enforcement Administration cooperates
with state, local, and tribal agencies concerning the traffic and
abuse of controlled substances. See, e.g., 21 U.S.C. 873.
\3\ For example, under the Patient Protection and Affordable
Care Act, the Department of Health and Human Services oversees
states' operation and enforcement of certain insurance exchanges.
See, e.g., 42 U.S.C. 18031; see also 42 U.S.C. 18041.
\4\ For example, the Federal Highway Administration works with
state, local, and tribal governments to facilitate transportation
planning. See, e.g., 23 U.S.C. 134-135, 201-202.
\5\ Admin. Conf. of the U.S., Recommendation 2025-2,
Consultation with State, Local, and Tribal Governments in Regulatory
Policymaking, 90 FR 27518 (June 27, 2025).
\6\ The Conference has identified several areas in which federal
agencies should consider collaborating with STLTGs, including to
improve notice of regulatory changes to interested persons; promote
timeliness in agency adjudication; publicize opportunities for
public participation in agency decision making; and reduce burdens
on the public in administrative processes. See, e.g., Admin. Conf.
of the U.S., Recommendation 2022-2, Improving Notice of Regulatory
Changes, 87 FR 39798 (July 5, 2022); Admin. Conf. of the U.S.,
Recommendation 2023-7, Improving Timeliness in Agency Adjudication,
89 FR 1513 (Jan. 10, 2024); Admin. Conf. of the U.S., Recommendation
2025-3, Public Participation in Agency Adjudication, 90 FR 27519
(June 27, 2025); and Admin. Conf. of the U.S., Recommendation 2023-
6, Identifying and Reducing Burdens on the Public in Administrative
Processes, 89 FR 1511 (Jan. 10, 2024).
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When used and managed successfully, collaborations with STLTGs
enable federal agencies to administer programs more effectively.
Successful collaborations can help federal agencies meet specific
local needs and foster innovation. They also allow federal agencies
and STLTGs to allocate scarce resources more efficiently, leverage
external capabilities, and promote greater participation in federal
administration.
At the same time, federal agencies frequently face challenges in
initiating and managing collaborations with the 50 states, 574
federally recognized tribes, five territories and the District of
Columbia, and more than 90,000 local governments with which they may
collaborate. For example, the complexity of the legal and policy
frameworks governing the actions of federal agencies and STLTGs can
make it difficult for all individuals involved in collaborations to
understand their roles and responsibilities.\7\ Federal agencies and
STLTGs may also lack sufficient human, financial, technological, or
other resources to collaborate effectively.\8\ Changes in personnel
within federal agencies and STLTGs may pose challenges for
maintaining working relationships over time. In addition, federal
agencies and STLTGs may lack the authority or practical means to
communicate and collaborate effectively on an ongoing basis toward
common goals.\9\ Successful collaboration requires an understanding
of the unique needs of each STLTG, rather than applying a uniform
approach.
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\7\ See Pamela J. Clouser McCann & Jennifer L. Selin, Federal
Agency Collaboration with State, Local, Tribal, and Territorial
Governments 39, 43-44 (Dec. 5, 2025) (report to the Admin. Conf. of
the U.S.).
\8\ See id. at 41-42.
\9\ See id. at 41-47.
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Federal agencies have adopted a range of practices to overcome
challenges, collaborate more effectively, and create enduring
working relationships with STLTGs. For example, federal agencies
have adopted practices to ensure they communicate with relevant
STLTGs at the outset of a collaboration and throughout its duration;
work with STLTGs to identify common objectives and plan
strategically; clarify leadership, points of contact, and processes;
adopt performance management techniques for collaborating; sustain
relationships and ensure continuity through major changes, including
changes in personnel or political leadership and changes in relevant
law; and obtain feedback on and evaluate and strengthen
collaborations. Federal agencies have also developed guidelines \10\
to assist personnel who work with STLTGs and entered into formal
written agreements with STLTGs when doing so helps establish shared
terminology, definitions, and standard operating procedures, and
promotes transparency and accountability in implementation. Federal
agencies have also benefited from convening advisory committees that
include STLTG representatives and from engaging with national
organizations that represent STLTGs.
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\10\ See, e.g., EPA Policy for the Administration of
Environmental Programs on Indian Reservations, Env't Prot. Agency,
<a href="https://www.epa.gov/tribal/epa-policy-administration-environmental-programs-indian-reservations-epa-indian-policy">https://www.epa.gov/tribal/epa-policy-administration-environmental-programs-indian-reservations-epa-indian-policy</a> (last visited Sept.
22, 2025).
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In Recommendation 2025-2, the Conference identified best
practices for consulting with state, local, and tribal governments
in regulatory policymaking. Building on Recommendation 2025-2, this
Recommendation provides a framework that federal agencies should use
to identify and collaborate more effectively with relevant STLTGs in
a broader range of contexts. It encourages agencies to adopt
practices for initiating, managing, and evaluating collaborations
with STLTGs that promote a culture of improved coordination and
strengthen working relationships between governments. In adopting
the practices that follow, agencies must be mindful of their unique
missions and demands on scarce resources.
Recommendation
Facilitating Collaboration Generally With State, Tribal, Local, and
Territorial Governments (STLTGs)
1. Federal agencies should establish organizational units,
supervisory structures, and central and field operations, as
appropriate, that establish or reinforce collaboration with STLTGs
and facilitate appropriate communication among agency personnel
involved in collaborations at all levels.
2. Federal agencies should develop or maintain general
guidelines to assist personnel in initiating, managing, and
evaluating collaborations with STLTGs. Among other things, the
guidelines should provide information about collaborating with
different types of STLTGs and highlight their differences and
commonalities.
3. Federal agencies should collaborate with STLTGs, even if not
required to do so by law, when doing so would help agencies meet
specific local needs and foster innovation; allow agencies to
allocate scarce resources more efficiently; allow agencies to
benefit from the expertise and resources of other entities; promote
greater participation in federal administration; or otherwise help
agencies administer federal programs more effectively.
4. For each program, federal agencies should designate one or
more officials in an appropriate office who will be primarily
responsible for initiating, coordinating, and evaluating
collaborations with STLTGs with an awareness of the different types
of STLTGs and their differences and commonalities.
5. Federal agencies should identify and reduce, as appropriate,
administrative burdens that STLTGs face when collaborating with
federal agencies, for example by:
a. Reducing regulatory burdens;
b. Simplifying application and reporting processes;
c. Enhancing the availability of technical assistance; or
d. Providing funding opportunities.
6. Federal agency personnel involved in intergovernmental
affairs, regional offices, and other agency personnel should meet
regularly with STLTGs to coordinate their relationships.
7. When federal agencies draft annual strategic and performance
plans pursuant to the Government Performance and Results Act (31
U.S.C. 1115b, 1120(b)), they should describe how they collaborate
with STLTGs to achieve performance goals.
8. Federal agencies should review and update as necessary their
Human Capital Operating Plans (5 CFR pt. 250) to ensure their hiring
and position management needs are aligned properly with their
operational goals for collaboration with STLTGs.
Initiating Specific Collaborations With STLTGs and Responding to Major
Changes
9. Early in the implementation of federal programs and following
major changes--such as changes in personnel or political leadership
or changes in relevant law--federal agencies should develop a list
of those STLTGs that are most relevant to their work and determine
whether, when, and how to collaborate with relevant STLTGs. In
reaching their determination, agencies should engage with:
a. Government personnel involved in intergovernmental affairs,
regional offices, and other relevant agency personnel;
b. STLTGs;
c. Relevant advisory committees and similar entities that
include STLTG representatives;
d. National organizations that represent STLTGs; and
e. Other persons interested in or affected by the collaboration.
10. When establishing a collaboration with an STLTG or
revisiting a collaboration in light of a major change, federal
agencies
[[Page 6179]]
should discuss the following topics with the STLTG and, as
appropriate, formalize agreements in writing:
a. The nature and type of the collaboration (e.g., provision of
financial assistance, consultation, technical support);
b. The legal and policy frameworks that govern the actions of
federal officials and the STLTG;
c. Objectives for the collaboration and metrics for determining
whether the collaboration is successful;
d. The leadership and points of contact for the federal agency
and the STLTG;
e. Procedures for managing the collaboration and communicating
with the STLTG, including mechanisms for obtaining feedback and
evaluating the collaboration;
f. The information the federal agency and the STLTG may and will
share with each other and the public, and the processes by which
such information will be shared; and
g. The human, financial, technological, and other resources
available to the federal agency and the STLTG.
Strengthening Specific Collaborations With STLTGs
11. Federal agencies should develop guidelines to assist
personnel involved in specific collaborations in coordinating and
managing them. Such guidelines should:
a. Identify the official responsible for making significant
decisions regarding the collaboration;
b. Establish mechanisms to ensure relevant personnel communicate
regularly;
c. Establish mechanisms to ensure relevant personnel coordinate
their communications with STLTGs;
d. Specify processes for documenting engagements with STLTGs;
e. Specify processes for sharing information with or receiving
information from the STLTG, including information that may be
sensitive or protected by law; and
f. Establish mechanisms for obtaining STLTG feedback and acting
on it as appropriate.
12. Federal agencies should ensure that personnel involved in a
collaboration with an STLTG receive training as needed on topics
including:
a. The laws and policies governing the actions of the STLTG;
b. Best practices for engaging with the STLTG;
c. Guidelines for sharing information with or receiving
information from the STLTG, including information that may be
sensitive or protected by law; and
d. Procedures for managing the collaboration and communicating
with the STLTG.
13. To understand on-the-ground conditions and available
resources and to foster stronger working relationships, federal
officials involved in collaborations with STLTGs, should:
a. Involve personnel in their regional and local offices in
collaborations with STLTGs, as appropriate;
b. Visit the states, localities, tribal nations, and territories
with which they collaborate; and
c. Attend conferences and meetings in which STLTGs participate
and otherwise take advantage of opportunities to interact with
STLTGs in person.
14. To facilitate coordination among agency personnel and ensure
continuity of operations, federal agencies should develop or
maintain repositories of records and information related to specific
collaborations with particular STLTGs. Such repositories may include
information such as:
a. Any written agreements between the federal agency and STLTGs
(see Paragraph 10);
b. Federal agency officials' substantive communication as part
of collaborations;
c. The guidelines to assist personnel involved in specific
collaborations (see Paragraph 11); and
d. The points of contact for the STLTG.
Evaluating Collaborations With STLTGs
15. Federal agencies should provide opportunities on an ongoing
or periodic basis for the following persons and entities to provide
feedback on their collaborations with STLTGs:
a. Agency personnel involved in collaborations with STLTGs;
b. STLTGs;
c. Relevant advisory committees and similar entities that
include STLTG representatives;
d. National organizations that represent STLTGs; and
e. Other persons interested in or affected by the collaboration.
16. Federal agencies should collect information about their
collaborations with STLTGs to evaluate performance in achieving the
objectives for their collaborations, implement improvements, and
engage in strategic planning. Such information should include:
a. How collaborations develop over time; and
b. Progress in achieving the performance metrics for
collaborations.
17. Federal agencies should have a community of practice to
share information about their experiences with and practices for
improving collaboration with STLTGs.
Public Availability of Information About Collaborations With STLTGs
18. Federal agencies should provide up-to-date information on
their websites describing:
a. Collaborations with STLTGs;
b. The leadership and points of contact for the federal agency
for specific collaborations (see Paragraph 10(d));
c. The federal agency official(s) with primary responsibility
for coordinating and evaluating collaborations with STLTGs (see
Paragraph 4);
d. A general point of contact for STLTG collaborations;
e. Written agreements regarding collaborations, as appropriate
(see Paragraph 10); and
f. Information about opportunities to provide feedback on
collaborations (see Paragraph 15).
[FR Doc. 2026-02753 Filed 2-10-26; 8:45 am]
BILLING CODE 6110-01-P
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</html>Indexed from Federal Register on February 11, 2026.
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.