“The government should bear the burden of proving an alleged violation of law; the subject of enforcement should not bear the burden of proving compliance,” memo says.
The Trump administration is giving agencies until November 26 to update policies for enforcing federal health and safety regulations. The deadline is the latest move in the administration’s ongoing effort to roll back the regulatory burden on companies and boost the economy now reeling from a recession brought on by the pandemic.
In an Aug. 31 memo to agency executives, Administrator of the Office of Information and Regulatory Affairs Paul Ray outlined a long list of “best practices” agencies should follow in making revisions, and asks agencies to coordinate those revisions with OIRA, a division of the White House Office of Management and Budget. The memo advanced a May 19 executive order by Trump and subsequent guidance from OMB in June on reducing regulations and offering more leniency to businesses on enforcement if they show a “good faith” effort to comply with statutory requirements.
“The government should bear the burden of proving an alleged violation of law; the subject of enforcement should not bear the burden of proving compliance,” the memo says. The memo urges “prompt and fair” enforcement “free of unfair surprise”; proportionate and transparent penalties for violators; and holding regulators accountable to the public for their actions.
“This memo is designed to codify the Trump administration’s failure to enforce the law against corporate violators of health, safety, and environmental regulations, as evidenced by the historic drop in enforcement actions and penalties across agencies,” said Amit Narang, regulatory policy advocate for the nonprofit group Public Citizen, told Government Executive. “One of the troubling aspects of this memo [is] that it appears to give more control over civil enforcement decisions to political appointees rather than career staff.”
Among the best practices, agency regulators are instructed to “seek approval” from political appointees before taking key actions. The memo also imposes standards for sharing information obtained during administrative investigations or enforcement actions with criminal investigators, making it “harder for agency enforcement staff to hold bad actors accountable,” Narang said.
Bridget Dooling, research professor at The George Washington University’s Regulatory Studies Center and a former OIRA analyst, said “it’s unusual for an OIRA administrator to issue guidance on enforcement and adjudication policy.”
She also doesn’t recall OMB previously suggesting that agencies bypass a public notice and comment period, as Ray’s memo does. “They do limit it to ‘where possible’ [in the memo] but in my experience, OIRA has stood for robust public consultation on rules, whether it was technically required or not,” Dooling said.
Dooling noted that the “best practices” appear to be non-binding guidance for agencies to consider as they review their policies, “so it's not clear to me from this memo that agencies must implement the actions described in the list.”
Matt Kent, regulatory policy associate at Public Citizen, said that while the memo may not be legally binding, it is nonetheless coercive. “Much like the EO it’s drawing on, it doesn’t technically force agency heads to implement agency-specific final rules regarding adjudication procedures.”
“But of course there’s a difference between what’s legally required and what a presidential appointee feels they need to do. It would be like if a manager sent his employees a memo saying ‘I’m asking all employees to inform me of your summer vacation plans with an explanation and send a memo to your direct reports asking their plans with an explanation … by next Friday.’ The employees may not be legally required to tell their boss where/why details of their vacation plans but they also don’t want the boss to be mad. So in that sense, this memo is a form of coercion,” Kent said.
“The irony is that Ray is using this coercive tactic to require agency policy premised on eliminating supposed coercion of independent adjudicators,” Kent said.