by Anand S. Raman, Austin K. Brown, and Darren M. Welch
In late August 2020, to little notice, the Office of Management and Budget issued a memorandum (the OMB Memorandum) that is likely to have significant implications for administrative enforcement, extending well into the Biden administration and beyond.
The OMB Memorandum implemented Executive Order 13924, titled “Executive Order on Regulatory Relief To Support Economic Recovery,” which was issued on May 19, 2020, to address a number of topics designed to support the nation’s recovery from the COVID-19 pandemic. Section 6 of the executive order set forth several principles for “Fairness in Administrative Enforcement and Adjudication” and directed the heads of agencies to “revise their procedures and practices in light of them.” The OMB Memorandum, in turn, provided detailed guidance, covering a wide range of topics, including the conditions under which liability should be imposed, penalties, transparency and discovery, tolling agreements, and consent order duration.