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.
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.