Federal Manager's Daily Report

OMB has issued guidance on carrying out a May executive order setting standards for agencies to follow in administrative enforcement and adjudication of laws and rules under their jurisdiction.

Memo M-20-31 provides what it calls a “list of best practices for your consideration” in carrying out the portion of that order calling on agencies to revise their procedures and practices.

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These include (in its words):

* 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.

* Administrative enforcement should be prompt and fair.

* Administrative adjudicators should operate independently of enforcement staff on matters within their areas of adjudication.

* Consistent with any executive branch confidentiality interests, the government should provide favorable relevant evidence in possession of the agency to the subject of an administrative enforcement action.

* All rules of evidence and procedure should be public, clear, and effective.

* Penalties should be proportionate, transparent, and imposed in adherence to consistent standards and only as authorized by law.

* Administrative enforcement should be free of improper government coercion.

* Liability should be imposed only for violations of statutes or duly issued regulations, after notice and an opportunity to respond.

* Administrative enforcement should be free of unfair surprise.

* Agencies must be accountable for their administrative enforcement decisions.

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