May 22, 2020
The President executed an Executive Order (“EO”) aimed at regulatory relief for economic recovery in light of the COVID-19 pandemic. The EO provides that it is the policy of the United States to battle “the economic consequences of COVID-19 with the same vigor and resourcefulness with which the fight against COVID-19 itself is being waged.” EO at Section 1. As a result, Agencies are instructed to address the current economic emergency by “rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery, consistent with applicable law and with protection of the public health and safety, with national and homeland security, and with budgetary priorities and operational feasibility.” Id. Agencies should assist businesses, especially small businesses, by giving them “the confidence they need to re-open by providing guidance on what the law requires; by recognizing the efforts of businesses to comply with often-complex regulations in complicated and swiftly changing circumstances; and by committing to fairness in administrative enforcement and adjudication.” Id.
Agencies, as defined at 44 U.S.C. Section 3502, are directed to use the fullest extent of applicable laws, and emergency authorities, or any other means available them to support the economic response to the COVID-19 pandemic. See EO at Section 3. These agency heads are also to promote economic recovery through “non-regulatory actions.” Id. Agency heads are required to “identify regulatory standards that may inhibit economic recovery and shall consider taking appropriate action, consistent with applicable law, including by issuing proposed rules as necessary, to temporarily or permanently rescind, modify, waive, or exempt persons or entities from those requirements, and to consider exercising appropriate temporary enforcement discretion or appropriate temporary extensions of time as provided for in enforceable agreements with respect to those requirements, for the purpose of promoting job creation and economic growth, insofar as doing so is consistent with the law and with the policy considerations identified in section 1 of this order.” EO at Section 4.
Agencies are further instructed to accelerate means by which entities may receive pre-enforcement rulings under EO 13892 on proposed conduct in response to COVID-19 and in determining whether such proposed conduct is consistent with statutory and regulatory requirements. Agencies are to consider making policies on enforcement discretion that, as allowed by law and consistent with the context of the particular program, decline enforcement against persons and entities that attempted in reasonable good faith to comply with applicable statutory and regulatory standards. In formulating enforcement discretion policies, Agencies are to consider reasonable attempts to comply with guidance or action suggested by the Department of Health and Human Services, including through the Centers for Disease Control and Prevention, to stem the transmission and spread of COVID-19 as a basis for declining to take enforcement action. However, the EO provides that the failure to adhere to such guidance should not, by itself, form the basis for an enforcement action by a Federal Agency. See EO at Section 5 (a)-(c).
Particular “principles of fairness” are identified for consideration in all administrative enforcement and adjudication, and Agencies are to revise their procedures and practices in light of these principles, consistent with applicable law and the context of particular statutory or regulatory programs as well as policies identified in Section 1 of the EO The principles of fairness include:
(a) The Government bearing the burden of proof.
(b) Administrative enforcement being prompt and fair.
(c) Administrative adjudicators being independent of enforcement staff.
(d) The government providing any favorable relevant evidence in possession of the agency to the subject of an administrative enforcement action, consistent with any executive branch confidentiality interests.
(e) All rules of evidence and procedure being public, clear, and effective.
(f) Penalties being proportionate, transparent, and imposed in adherence to consistent standards and only as authorized by law.
(g) Administrative enforcement being free of improper Government coercion.
(h) Liability being imposed only for violations of statutes or duly issued regulations, after notice and an opportunity to respond.
(i) Administrative enforcement being free of unfair surprise.
(j) Agencies being accountable for their administrative enforcement decisions.
EO at Section 6. Agencies are instructed to review any changes that have been made temporarily to support economic recovery and determine if those changes should be made permanent. The results of that review are to be reported to the Director of the Office of Management and Budget, the Assistant to the President for Domestic Policy, and the Assistant to the President for Economic Policy. EO at Section 7.
This EO instructs federal Agencies concerning how they should be reviewing, developing and implementing statutory and regulatory programs during the COVID-19 pandemic. This guidance has the potential to impact such things as how federal Agencies should be applying pre-enforcement compliance assistance, carrying out compliance inspections, pursuing enforcement actions and exercising enforcement discretion under federal statutory and regulatory programs during this period.
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