Executive Summary
There are many contexts in which agencies have shared, overlapping, or closely related regulatory responsibilities. To promote and facilitate coordination in such shared regulatory spaces, agencies often enter into agreements with each other. This Recommendation provides best practices to assist agencies in using, developing, managing the implementation of, and disclosing agreements between agencies that operate in a shared regulatory space. Among other things, it recommends that agencies:
- Enter into written agreements when doing so would promote efficiency, effectiveness, and accountability, especially when agencies would benefit from, for example, delineating jurisdictional lines, clarifying roles, or allocating responsibilities.
- Designate an official with primary responsibility for managing and monitoring the implementation of an agreement.
- Periodically review the effectiveness of agreements to which they are a party.
- Develop or maintain repositories of agreements to facilitate coordination among agency personnel and ensure continuity of operations.
- Make agreements that affect members of the public publicly available.
This summary is prepared by the Office of the Chairman to help readers understand the Recommendation adopted by the Assembly, which appears in full below.
Recommendation of the ACUS Assembly
There are many contexts, ranging from food safety to financial regulation, in which agencies have shared, overlapping, or closely related regulatory responsibilities. Effective interagency coordination is critical in such “shared regulatory space.”[1] Greater coordination can avoid duplication of effort, provide opportunities for agencies to manage and reconcile differences, and improve the overall quality of agency decision making. As the Administrative Conference recognized in Recommendation 2012-5, Improving Coordination of Related Agency Responsibilities, agreements between agencies—often styled “memoranda of understanding”—provide an important tool for promoting and facilitating coordination. [2]
Hundreds of agreements exist between agencies that operate in shared regulatory space. These agreements serve many purposes, including formalizing shared objectives for implementing policies and programs, clarifying roles, allocating responsibilities, delineating jurisdictional lines, developing policies and standards, coordinating policymaking and enforcement activities, establishing processes for information sharing and responding to external requests for information, coordinating multiagency processes of approvals or reviews, sharing resources (when permitted), and resolving disputes. [3]
While agreements between agencies are common, there is no uniform or coordinated framework for initiating and negotiating them, or for managing and monitoring their implementation. For the most part, agencies are afforded broad discretion as to whether they enter into agreements and, when they do, how they formalize them.
Building on Recommendation 2012-5, this Recommendation provides best practices for developing agreements and managing their implementation between agencies that have shared, overlapping, or closely related regulatory responsibilities. It encourages agencies to adopt practices for initiating and structuring agreements, and for monitoring their implementation, that promote efficiency, effectiveness, and accountability. It also recommends that agencies disclose agreements that affect members of the public. [4] In doing so, the Recommendation recognizes that agencies must consider their own circumstances in adopting the best practices that follow. Agencies have different missions, authorities, needs, and resources available to them, and they enter into agreements for different reasons. Reflecting this variability, effective agreements can take many forms.
RECOMMENDATION
Negotiating and Drafting Agreements
1. Agencies that have shared, overlapping, or closely related regulatory responsibilities should enter into written agreements when doing so would promote efficiency, effectiveness, and accountability. Agencies should consider entering into such agreements, especially when agencies would benefit from:
a. Formalizing shared objectives for implementing policies and programs;
b. Clarifying roles and allocating responsibilities;
c. Delineating jurisdictional lines;
d. Coordinating multiagency review or approval processes;
e. Establishing procedures for sharing information between agencies or responding to external requests for information;
f. Coordinating policymaking and enforcement activities;
g. Sharing resources, when permitted; and
h. Resolving disputes.
2. Before negotiating agreements, agencies should review available information and engage in initial discussions to understand other relevant agencies’ regulatory responsibilities, priorities, processes, policies, and expectations for the relationship.
3. Agencies should ensure that the officials with the relevant decision-making authority and legal and subject-matter expertise with respect to the agreement are involved throughout the process of negotiating the agreement. As appropriate, agencies should also include their officials involved in information management and budget planning.
4. Agencies should address the following subjects in an agreement, as applicable:
a. The relevant mission, authority, and capacity of each signatory agency;
b.. The purposes and objectives of the agreement;
c. The allocation of responsibilities, particularly if the agreement involves more than two agencies (see Paragraph 6);
d. Mechanisms for coordinating activities under the agreement;
e. Resources to be shared between agencies (e.g., personnel, funding, facilities) and other agreements related to resource sharing;
f. Protocols for information sharing and records management;
g. Procedures for resolving disputes that arise under the agreement;
h. Progress metrics for assessing the effectiveness of the agreement; and
i. A sunset or termination date, or another provision that commits signatory agencies to review the agreement regularly to determine whether it continues to be of value.
Managing and Monitoring the Effectiveness of Agreements
5. Agencies should designate an official with primary responsibility for managing and monitoring the implementation of the agreement.
6. When three or more agencies are parties to an agreement, agencies should delineate clear roles and responsibilities to support the effective coordination, management, and monitoring of joint activities under the agreement throughout its implementation (see Paragraph 4 (c)). This delineation may include:
a. Identifying a lead agency based on, for example, the circumstances of the agreement, such as when one agency is more affected by the activities;
b. Appointing co-leads; or
c. Establishing a coordinating group comprising officials from all signatory agencies.
7. Agencies periodically should review the effectiveness of agreements to which they are a party and adjust strategies, timelines, or responsibilities under the agreement, as appropriate.
8. To facilitate coordination among agency personnel and ensure continuity of operations, agencies should develop or maintain repositories of agreements with other agencies and related records and information.
Making Agreements Publicly Available
9. Agencies should make agreements that affect members of the public, and any associated materials, publicly available unless disclosure, even after redaction, would adversely affect sensitive or legally protected interests involving, among other things, national security or law enforcement. Agencies should develop and maintain a centralized repository on their websites that provides easy access to such agreements and any associated materials.
[1] Jody Freeman and Jim Rossi, Improving Coordination of Related Agency Responsibilities 7–8 (May 30, 2012) (report to Admin Conf. of the U.S.).
[2] Admin. Conf. of the U.S., Recommendation 2012-5, Improving Coordination of Related Agency Responsibilities, 77 Fed. Reg. 47810 (Aug. 10, 2012).
[3] Blaine G. Saito, Agreements Between Agencies with Related Regulatory Responsibilities 4-8 (May 12, 2026) (report to the Admin. Conf. of the U.S.).
[4] Cf. Admin. Conf. of the U.S., Recommendation 2023-1, Proactive Disclosure of Agency Legal Materials, 88 Fed. Reg. 42678, 42679 at 1(e) (recommending that Congress amend 5 U.S.C. § 552(a)(2) accordingly).
