[Federal Register Volume 85, Number 20 (Thursday, January 30, 2020)]
[Notices]
[Pages 5483-5484]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01632]
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OFFICE OF MANAGEMENT AND BUDGET
Improving and Reforming Regulatory Enforcement and Adjudication
AGENCY: Office of Management and Budget (OMB), Executive Office of the
President.
ACTION: Request for information: Improving and/or reforming regulatory
enforcement and adjudication.
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SUMMARY: In furtherance of the policy on Promoting the Rule of Law
Through Transparency and Fairness in Civil Administrative Enforcement
and Adjudication, the Office of Management and Budget invites the
public to identify additional reforms that will ensure adequate due
process in regulatory enforcement and adjudication.
DATES: Comments are due on or before March 16, 2020.
ADDRESSES: Interested parties should submit comments, identified by
docket number OMB-2019-0006, before the comment closing date to
www.regulations.gov.
SUPPLEMENTARY INFORMATION: Protecting Americans against the unjust or
arbitrary exercise of government power forms a cornerstone of the
United States' constitutional structure. The presumption of innocence,
adjudication by a neutral arbiter, fair and speedy proceedings, and the
prohibition of double jeopardy, are some of the time-honored
protections that constitute the rule of law in America.
The growth of administrative enforcement and adjudication over the
last several decades has not always been accompanied by commensurate
growth of protections to ensure just and reasonable process. Because
many citizens' sole or principal interaction with the federal
government is with a federal agency, it is of the utmost importance
that administrative enforcement and adjudication operate subject to
requirements that ensure they are fair, speedy, accurate, transparent,
and respectful of the rights of Americans.
This Administration continues to evaluate a full range of options
to make significant reforms in the context of administrative
enforcement and adjudication. OMB invites public comment to promote an
informed consideration of additional reforms. In particular, OMB
solicits input on regulatory reforms that will better safeguard due
process in the regulatory enforcement and adjudication settings (i.e.,
non- Article III adjudications).
The Administration recognizes that procedural protections vary
considerably by Department and/or agency, sub-agency, etc.
Adjudications pursuant to the Administrative Procedure Act's section
554 (i.e., ``formal'' adjudications) require more robust procedural
protections. See 5 U.S.C 554, 556, and 557. Other adjudications (i.e.,
``informal'' adjudications) tend to enjoy more procedural flexibility.
No matter the diversity of protections and/or types of proceedings, the
Administration maintains an interest in overarching procedural reform.
Put differently, the Administration requests public input on procedural
reforms to both formal and informal adjudications and pre-adjudication
enforcement protection(s). This request for information seeks ideas
that will ensure each and every American enjoys adequate protections in
regulatory enforcements and adjudications.
[[Page 5484]]
Among the topics of interest, OMB invites feedback on the following
queries:
Prior to the initiation of an adjudication, what would
ensure a speedy and/or fair investigation? What reform(s) would avoid a
prolonged investigation? Should investigated parties have an
opportunity to require an agency to ``show cause'' to continue an
investigation?
When do multiple agencies investigate the same (or
related) conduct and then force Americans to contest liability in
different proceedings across multiple agencies? What reforms would
encourage agencies to adjudicate related conduct in a single proceeding
before a single adjudicator?
Would applying the principle of res judicata in the
regulatory context reduce duplicative proceedings? How would agencies
effectively apply res judicata?
In the regulatory/civil context, when does an American
have to prove an absence of legal liability? Put differently, need an
American prove innocence in regulatory proceeding(s)? What reform(s)
would ensure an American never has to prove the absence of liability?
To the extent permissible, should the Administration address burdens of
persuasion and/or production in regulatory proceedings? Or should the
scope of this reform focus strictly on an initial presumption of
innocence?
What evidentiary rules apply in regulatory proceedings to
guard against hearsay and/or weigh reliability and relevance? Would the
application of some of the Federal Rules of Evidence create a fairer
evidentiary framework, and if so, which Rules?
Should agencies be required to produce all evidence
favorable to the respondent? What rules and/or procedures would ensure
the expedient production of all exculpatory evidence?
Do adjudicators sometimes lack independence from the
enforcement arm of the agency? What reform(s) would adequately separate
functions and guarantee an adjudicator's independence?
Do agencies provide enough transparency regarding
penalties and fines? Are penalties generally fair and proportionate to
the infractions for which they are assessed? What reform(s) would
ensure consistency and transparency regarding regulatory penalties for
a particular agency or the federal government as a whole?
When do regulatory investigations and/or adjudications
coerce Americans into resolutions/settlements? What safeguards would
systemically prevent unfair and/or coercive resolutions?
Are agencies and agency staff accountable to the public in
the context of enforcement and adjudications? If not, how can agencies
create greater accountability?
Are there certain types of proceedings that, due to
exigency or other causes, warrant fewer procedural protections than
others?
For each of the above queries, OMB requests specific, concrete
examples of current due process shortfalls and concrete reform
proposals to ensure adequate due process. Abstract, general principles
will do little to advance actionable reform.
Instructions for Written Responses
Interested parties should provide written responses to the
questions outlined in the supplementary information section of this
Federal Register document. Submissions are due 45 days from publication
of this document through www.regulations.gov and should be identified
by docket number OMB-2019-0006.
Please include the below in your response, limiting this portion of
your response to one page:
The name of the individual(s) and/or organization
responding. Anonymous responses will also be accepted.
A brief description of the responding individual(s) or
organization's mission and/or areas of expertise, if the responder
feels appropriate.
A contact for questions or other follow-up on your
response if desired.
Comments submitted in response to this document are subject to
FOIA. OMB may also make all comments available to the public. For this
reason, please do not include in your comments information of a
confidential nature, such as sensitive personal information or
proprietary information. If you send an email comment, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
internet. Please note that responses to this public comment request
containing any routine notice about the confidentiality of the
communication will be treated as public comments that may be made
available to the public notwithstanding the inclusion of the routine
notice.
Russell T. Vought,
Acting Director, OMB.
[FR Doc. 2020-01632 Filed 1-29-20; 8:45 am]
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