Improving and Reforming Regulatory Enforcement and Adjudication, 5483-5484 [2020-01632]

Agencies

• Management and Budget Office

[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]
 BILLING CODE 3110-01-P