Notice & Comment

The October 9 Executive Orders and Government Acquisition of Information

As Aaron Nielson has noted, two new Executive Orders were issued yesterday.  He has described some of the major provisions.  But, in addition, there are provisions in the “Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication” regarding government inspections and information collection.

With respect to civil administrative inspections, each agency that conducts such inspections must publish rules of procedure governing such inspections, unless such rules already exists.  The agency must then comply with the rule in conducting future inspections. Exec. Order §7.

With regard to information collection, each agency that requires regulated entities to report their compliance with legal requirements must comply with the Paperwork Reduction Act, 44 U.S.C. §3512 and with 5 C.F.R. §1320.6(a).  And, “[a]ny collection of information during the conduct of an investigation” must either: “(i)   display a valid control number assigned by the Director of the Office of Management and Budget; or (ii)  inform the recipient through prominently displayed plain language that no response is legally required.” Id., §8.

There are also provisions regarding voluntary reporting of regulatory violations and voluntary compliance with regulatory requirements.  Within 270 days of the issuance of the order, agencies must take three steps in this regard.  First, the agency must propose procedures to encourage voluntary self-reporting of regulatory violations by regulated parties in exchange for reductions or waivers of civil penaltiesSecond and more generally, the agency must propose rules “to encourage voluntary information sharing by regulated parties.”  Third, the agency must establish procedures “to provide pre-enforcement rulings to regulated parties.”  Any agency need not propose such procedures if it considers them to be impractical.    Such a conclusion could be based, for example, on the agency’s judgement that its existing procedures are adequate or that it lacks the resources to institute additional procedures.  However, if the agency decides not to promulgate the required procedures, in must provide a justification for its decision to the President.  Id., §9.

These provisions, and the other provisions of the Executive Order, do not apply to five categories of actions. Id., §11(d).  First, actions pertaining to foreign or military affairs, or to a national security or homeland security function are exempted.  Second, the order encompasses neither criminal investigations or prosecutions nor any civil enforcement action or related investigation by the Department of Justice.  The Order notes specifically that this exemption includes the conduct of undercover operations and the issuance of civil investigative demands.  Third, the order does not limit “any action related to detention, seizure, or destruction of counterfeit goods, pirated goods, or other goods that infringe intellectual property rights.”  Fourth, the order does not apply to internal investigations, i.e., investigations of agency employee misconduct.  Fifth, the order does not apply when “in the judgment” of the applicable agency head, applying the order would undermine the national security.

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