The Mouse That Roared

Submitted by on Thu, 12/21/2017 - 13:45
Friday, June 11, 2010
Congress recently breathed life into the old Administrative Conference of the U.S., an obscure agency with a lot of impact in how agencies did their administrative work. The new chair, Paul Verkuil, has big plans for what it might do.
The Administrative Conference of the U.S. (ACUS) has come back to life after a 15-year slumber, with the appointment of Paul Verkuil as its new chairman and with an appropriation of $1.5 million in operating funds.
 
The agency was de-funded in 1995 after the Republicans took control of Congress, in a budget cutting effort that eliminated hundreds of small programs.
 
Paul Verkuil, Chair, Administrative Conference of the U.S.
 
                      Paul Verkuil, Chair, Administrative Conference of the U.S.
 
What Is ACUS? Though small, the agency historically had a significant, outsized impact on the mundane internal operations of the federal government. The agency began operations in 1968 to “promote improvements in the efficiency, adequacy, and fairness of the procedures by which federal agencies conduct regulatory programs, administer grants and benefits, and perform related governmental functions.”
 
By statute, the Conference has no fewer than 75 and no more than 101 members, a majority of whom are federal government officials. The Chairman is appointed by the President, with the advice and consent of the Senate, for a 5-year term. The other ten members of the Council, which acts as an executive board, are appointed by the President for 3-year terms. Federal officials named to the Council may constitute no more than one-half of the total Council membership. Members of the Conference representing the private sector are appointed by the Chairman, with the approval of the Council, for 2-year terms.
 
Its Past Glories. In the past, the Conference was the impetus behind laws such as the Freedom of Information Act, the Alternative Disputes Resolution Act, and conducted scores of studies of the operations of the administrative processes of the federal government. But these studies were all pre-Internet and administrative processes have changed (or in many cases, need to be changed!).
 
A New Agenda. What is interesting is the ambitious scope of studies to be considered by the revived agency. According to a recent letter submitted to the House Judiciary Committee by the American Bar Association, the revived Conference should consider a wide range of issues such as:
 
  • The legal issues surrounding the use of e-rulemaking, such as scanning paper submissions, how to handle attachments, how to handle copyrighted materials submitted by someone who has attached a copyrighted work without permission, whether comments should be posted immediately so others can comment on the comments, etc.
  • The application of the Paperwork Reduction Act in a Web 2.0 world, and whether voluntary collections of information should be exempted from the review requirements in the Act (especially since noncompliance with the Act could result in agency rules being made unenforceable by the courts).
  • Reviews of the structures of multi-member boards or commissions such as the Federal Elections Commission or the International Trade Commission. . . and whether “holding company” models of agencies such as Commerce or Homeland Security make sense. . . and hybrid agencies such administrative quasi-courts (like the National Transportation Safety Board) or government-sponsored enterprises.
  • The evolution and impact of independent power centers in agencies, such as presidentially-appointed general counsels, inspectors general, chief financial officers, etc.
  •  The role of public participation in the “harmonization” of U.S. rules and administrative decisions with international institutions’ directives and decisions.
  • The determination of the award of attorneys fees when litigating administrative adjudications, such as what is meant by the term ‘prevailing party?”
  • Determining the implications of administrative law issues in the implementation of the new agencies, advisory boards and various quasi-public bodies being created under the recently-passed health reform legislation.
So even though ACUS looks small – typically no more than a dozen staff -- it takes on big, complex, and sometimes controversial issues that have no real “home” in the bureaucracy.
 
What’s First? Its chairman, Paul Verkuil, says he’ll start with a focus on two straightforward elements: first, serve as a forum for best administrative practices, and second, catch up on the last 15 years of administrative happenings! But first, he’ll find some office space and staff!