Get to Know a Federal Agency – Introducing the Administrative Conference of the United States  

Get to Know a Federal Agency – Introducing the Administrative Conference of the United States  

The Administrative Conference of the United States (ACUS) is an independent federal agency within the executive branch whose statutory mission is to identify ways to improve the procedures by which federal agencies protect the public interest and determine the rights, privileges, and obligations of private persons.[1] 

ACUS claims to have issued hundreds of recommendations since 1968 that improved the efficiency, adequacy, and fairness of rulemaking, adjudication, and other administrative processes within the tangled federal government. The ACUS contends that some of its recommendations have resulted in reforms by federal agencies, the President, Congress, and the Judicial Conference of the United States. 

These recommendations are issued by the Assembly, whose members include a Chairman appointed by the President and confirmed by the Senate; ten presidential appointees who, together with the Chairman, comprise the Council; 50 Government Members, who are senior federal officials designated by the heads of participating agencies; and 40 Public Members, who are academics, practitioners, and other private-sector experts appointed by the Chairman and approved by the Council. Except for the Chairman, all members are unpaid. However, with a FY 2024 budget request of $3,523,000, there are expenses!

A full-time staff in the Office of the Chairman supports the Assembly’s work and undertakes additional projects to study and improve federal administrative processes. For Fiscal Year 2023 ACUS had 18 full-time equivalent employees. Salaries and benefits for these employees totaled $2,547,240 in 2023.

The current Chairman of The Administrative Conference of the United States is Andrew Fois. He is an attorney with an almost forty-year legal career in public service, the non-profit sector and private practice. Fois came to ACUS from the Office of Legislative Affairs in the Administrative Office of U.S. Courts where he served as an Attorney Advisor.  According to his bio page, prior to that position, Andrew Fois was the Deputy Attorney General for Public Safety in the Office of the Attorney General for Washington, D.C. He has worked for the National Crime Prevention Council, as a solo practitioner and as a partner in the Venable law firm. He has served in the Department of Justice on three occasions in five positions including as the Assistant Attorney General for Legislative Affairs and as an Assistant United States Attorney for the District of Columbia. His experience on Capitol Hill includes service as the Chief Counsel of the House Judiciary Committee’s Subcommittee on Crime. In 2020, Mr. Fois was appointed by the Mayor to the D.C. Clemency Board.[2]  

Other than the staff, the Chairman of the ACUS is the only position that receives a salary. Fois was asked via email if he takes a salary from the Administrative Conference of the United States, and if so, how much is his annual salary. A response has yet to be received.

The total FY 2023 budget for the ACUS is $3,465,000. That’s nearly $3.5 million annually for a group of lawyers and political insiders to make recommendations to improve the processes within the federal government. This seems like a ridiculous waste of money and an unnecessary burden on the national debt. There is nothing coming out of the ACUS that couldn’t be brought forward from within other departments or agencies. When reading through some of the recent recommendations made by the ACUS, it’s clear that if the federal government was ever rightsized, none of the cumbersome “recommended” rulemaking from the ACUS would be necessary.

There are 630 federal departments, agencies, and commissions.  Approximately 400 have regulatory power. Half could be eliminated and most of the nation wouldn’t notice. The loss of liberty and freedom in the United States is proportional to the size and scope of the federal government. The larger the government gets; the fewer the rights the 50 states, and the people, retain.

~ Ed Haas

As is so often the case with anything coming out of the federal government, a one size fits all approach produces rules and laws which might serve some well while being an utter burden to others for no good reason. Recommendation 2023-2 is an example. Called the Virtual Public Engagement in Agency Rulemaking, this recommendation was adopted on June 15, 2023. The idea behind this recommendation is to create a uniform method for agencies to engage with the public when it’s decided that public input and feedback would be beneficial to a rulemaking process.

If put into practice, federal agencies would be tasked with creating another requirement to be followed that will take time, money, and human resources. According to the Executive Summary:[3]

RECOMMENDATION

Virtual Public Engagement Planning

Agencies that engage in rulemaking should, when feasible and appropriate, utilize internet-based videoconferencing software as a means of broadening engagement with interested persons in a cost-effective way, including through outreach that targets members of the public with relevant views who do not typically participate in rulemaking or may otherwise not be represented. As part of its overall policy for public engagement in rulemaking (described in Recommendation 2018-7, Public Engagement in Rulemaking), each agency should explain how it intends to use internet-based videoconferencing to engage with the public.

Each agency should ensure that its policies regarding informal communications between agency personnel and individual members of the public related to a rulemaking (described in Recommendation 2014-4, “Ex Parte” Communications in Informal Rulemaking) cover communications that take place virtually.

Each agency should prepare and post to a publicly available website guidance on the conduct of virtual public rulemaking engagements—that is, a meeting, hearing, listening session, or other live event that is rulemaking related and open to the general public—and ensure employees involved with such engagements are familiar with that guidance.

When an agency plans to hold a public rulemaking engagement, it should allow for interested persons to observe the engagement remotely and, when feasible, provide input and ask questions remotely.

When an agency decides to hold a public rulemaking engagement, rulemaking personnel should collaborate with personnel who oversee communications, public affairs, public engagement, and other relevant activities for the agency to ensure the engagement reaches the potentially interested members of the public and facilitates effective participation from those persons, including groups that are affected by the rulemaking and may otherwise have been underrepresented in the agency’s administrative process.

Notice

An agency should include, as applicable, the following information in the public notices for a public rulemaking engagement with a virtual or remote component:

• The date and time of the engagement, at the beginning of the notice;

• Options for remote attendance, including a direct link or instructions to obtain a direct link to the internet-based videoconference event and alternative remote attendance options for members of the public without access to broadband internet, at the beginning of the notice;

• A plain-language summary of the rulemaking and description of the engagement’s purpose and agenda and the nature of the public input, if any, the agency is seeking to obtain through the engagement;

• A link to the webpage described;

• Information about opportunities for members of the public to speak during the engagement, including any directions for requesting to speak and any moderation policies, such as limits on the time for speaking;

• The availability of services such as closed captioning, language interpretation, and telecommunications relay services and access instructions;

• The availability and location of a recording, a transcript, a summary, or minutes; and

• Contact information for a person who can answer questions about the engagement or arrange accommodations.

To encourage participation in a public rulemaking engagement, the agency should create a dedicated webpage for each such engagement.

The webpage should include, as applicable, a link to:

• The Federal Register notice;

• Any materials associated with the engagement, such as an agenda, a program, speakers’ biographies, a draft rule, the rulemaking docket, or questions for participants;

• A livestream of the engagement for the public to observe while it is occurring; and any recording, transcript, summary, or minutes after the engagement has ended.

The Office of the Federal Register (OFR) should update the Document Drafting Handbook to provide agencies guidance on drafting Federal Register notices for public rulemaking engagements with virtual or remote components that include the information described in Paragraph 6.

OFR and the eRulemaking Program should update the “Document Details” sidebar on FederalRegister.gov and Regulations.gov to include, for any rulemaking in which there is a public rulemaking engagement, a link to the agency webpage

Managing Virtual Public Engagements

• When feasible, each agency should allow interested persons to observe a livestream of the public rulemaking engagement remotely and should not require members of the public to register. Agencies may want to set a registration deadline for those wishing to speak or requiring accommodations.

• To manage participants’ expectations, an agency should communicate the following matters, among others, to participants at the beginning of the event:

• The purpose and goal of the engagement;

• The moderation policies, including those governing speaking time limits and whether or why the agency will or will not respond to oral statements made by participants;

• The management of the public speaking queue;

• Whether the chat function, if using an internet-based videoconferencing platform, will be disabled or monitored and, if monitored, whether the chat will be included in the record;

• How participants can access the rulemaking materials throughout the meeting; and

• Whether the event will be recorded or transcribed and where it will be made available.

• As agency resources allow, each agency should ensure it has adequate support to run public rulemaking engagements, including their virtual and other remote components. Adequate support might include technological or troubleshooting assistance, a third-party moderating service, or a sufficient number of available staff members.

Recordings and Transcripts

• When an agency holds a public rulemaking engagement, it should record, transcribe, summarize, or prepare meeting minutes of the engagement unless doing so would adversely affect the willingness of public participants to provide input or ask questions.

• Each agency should, in a timely manner, make any recording, transcript, summary, or minutes of a public rulemaking engagement available in any public docket associated with the rulemaking and on the webpage described in the Notices section.

Fees

• Agencies should not assess fees on the public for virtual public engagement.

Wow! Is any of this necessary? Probably not. Is it applicable to all agencies during a rule making process in which public input is gathered? Absolutely not! For some agencies “public engagements” will become procedural entanglements best to avoid.  

In many ways the ACUS is like a plan aimed at teaching the morbidly obese how to live a better, more productive life without offering any guidance or instruction regarding how to lose weight. Just keep on eating and walk this way!

Our national debt is $33.7 trillion. We must cut costs. Unpopular and difficult decisions must be made. (6 of 630 in this series)

~ Ed Haas

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[1] The Administrative Conference of the United States, About ACUS, https://www.acus.gov/about-acus , November 19, 2023

[2] The Administrative Conference of the United States, Andrew Fois, https://www.acus.gov/contacts/andrew-fois , November 20, 2023

[3] Virtual Public Engagement in Agency Rulemaking, Executive Summary, https://www.acus.gov/document/virtual-public-engagement-agency-rulemaking , November 21, 2023