By Jess McCluer, Vice President of Safety and Regulatory Affairs
The Trump administration recently issued an executive order and related guidance that sets forth best practices and recommendations for agencies to ensure fairness in administrative enforcement and adjudication.
The White House Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) issued an Aug. 31 memorandum implementing the “Executive Order on Regulatory Relief to Support Economic Recovery.”
The memorandum contains 10 recommendations, including the following:
- “The government should bear the burden of proving an alleged violation of law[.]” In this regard, the memo reminds agencies that “members of the regulated public are not required to prove a negative to prevent liability and enforcement consequences in the absence of statutory standards requiring otherwise.”
- “Administrative enforcement should be prompt and fair.” The memo states that “[a]gency regulations should apply limiting principles to the duration of investigations,” and that “regulations should require investigating staff to either recommend or bring an enforcement action, or instead cease the investigation within a defined time period after its commencement absent a showing of unusual circumstances.”
- “Penalties should be proportionate, transparent and imposed in adherence to consistent standards and only as authorized by law.” This best practice advises agencies, when imposing penalties, to consider regulated parties’ good-faith efforts to comply with the law and recommends the establishment of policies to encourage voluntary self-reporting of regulatory violations by regulated parties in exchange for reductions or waivers of civil penalties.