In light of COVID-19, on May 19, 2020, the Trump Administration issued a new Executive Order (EO) entitled, “Regulatory Relief to Support Economic Recovery” directing all federal agencies to promote economic recovery through non-regulatory action. Importers, exporters, and other businesses under the jurisdiction of one of the 42 plus federal agencies that have pending federal enforcement actions should consider the regulatory reform mandated by the EO.
The EO directs on the federal agencies to continue to assist States with not only “taking administrative actions to provide flexibility regarding burdensome requirements that stood in the way of implementing the most effective strategies to stop the virus’s spread”; but to continue to “remove barriers to the greatest engine of economic prosperity the world has ever known: the innovation, initiative, and drive of the American people.”
The EO pushes businesses, especially small businesses, to the forefront of recovery by directing federal agencies to act in manner that will instill confidence during the re-opening phase. To meet this directive, federal agencies are charged to provide clear guidance on discretionary policies and laws, acknowledge businesses (such as importers and exporter) regulatory compliance efforts during the rapid change of environment, and apply principles of fairness in administrative enforcement and adjudication to individual cases.
Broadly the EO orders the federal agencies, to address our current economic emergency by “rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery.”
The EO mandates the federal agencies to execute the following directives (this is not an exhaustive list):
Rescission and waiver of regulatory standards:
- Identify regulatory standards that may inhibit economic recovery.
- Consider taking appropriate action to temporarily or permanently rescind, modify, waive, or exempt persons or entities from those inhibiting requirements.
- Consider exercising appropriate temporary enforcement discretion or appropriate temporary extensions of time for the purpose of promoting job creation and economic growth.
Compliance assistance for regulated entities:
- Consider policies of enforcement discretion that decline enforcement against persons and entities that have attempted in reasonably good faith to comply with applicable statutory and regulatory standards.
- Consider a situation in which a person or entity makes a reasonable attempt to comply with and discretion guidance to be a rationale for declining enforcement described above.
- Non-adherence to guidance shall not by itself form the basis for an enforcement action by a Federal agency.
Fairness in Administrative Enforcement and Adjudication
- Consider the principles of fairness in administrative enforcement and adjudication, which include in part,
- Administrative enforcement should be prompt and fair.
- The Government should provide favorable relevant evidence to the subject of an administrative enforcement action.
- Penalties should be proportionate, transparent, and imposed based on consistent lawful standards.
- Administrative enforcement should be free of coercion.
- Liability should be imposed only after notice and an opportunity to respond.
- Administrative enforcement should be free of unfair surprise.
- Agencies must be accountable for their administrative enforcement decisions.
Contact our Customs and International Law attorneys at email@example.com or 305-456-3830, to discuss this new Executive Order and how it applies to you.