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OMB Provides Guidance on Enforcement Section of COVID-19 Related Executive Order

The Office of Management and Budget outlined best practices for the implementation of Section 6 (Fairness in Administrative Enforcement and Adjudication) of Executive Order 13924 providing regulatory relief for entities economically impacted by COVID-19.

Executive Order 13924 authorizes the Director of the Office of Management and Budget ("OMB"), in collaboration with the Assistant to the President for Domestic Policy and the Assistant to the President for Economic Policy, to issue memoranda to guide the implementation of the Order.

In a memorandum, OMB recommended best practices that agencies should consider as they review existing procedures and prepare revisions to implement Section 6. These include, among others:

  • ensuring that the government bears the burden of proving a violation and that the party being investigated is not required to "prove a negative";

  • considering applying the "rule of lenity" in investigations where there are statutory ambiguities related to administrative violations;

  • applying "limiting principles" to the length of an investigation;

  • eliminating multiple enforcement actions based on the same set of facts;

  • ensuring that liability be imposed only after a party has been given notice and an opportunity to respond;

  • providing parties with a reasonable timeframe for responding to charges; and

  • making publicly available the outcomes of enforcement decisions.

The OMB requested that agencies coordinate with it by November 26, 2020.

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