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®: CRE Regulatory Action of the Week

U.S. Chamber Supports CRE Petitions to OMB to Assert Control Over Federal Agency Abuse of Enforcement-Related "Information Demand" Letters

   EPA, the Labor Department's Office of Federal Contract Compliance Programs, the Equal Employment Opportunity Commission, and other Federal agencies have issued, or tried to issue, thousands of quasi-enforcement letters to regulated entities (and to non-regulated entities such as suppliers of equipment to EPA-regulated entities), demanding that those entities reply to numerous questions that concern compliance with legal requirements.

   CRE is concerned that agencies may be improperly invoking the Paperwork Reduction Act's statutory "enforcement exemption" to avoid prior OMB review and approval for those agency information demands. CRE believes OMB needs to clarify what evidence of a violation an agency must have before the agency properly may invoke the PRA "enforcement exemption".

   On October 16, 2000, CRE filed two petitions with the Office of Management and Budget:

1. CRE petitioned OMB to review approximately 400 Clean Air Act (CAA) 114 information demand letters, which EPA Region V sent to industrial facilities, asking questions concerning the facilities' compliance with the "Risk Management Plan" requirements of 112(r) of the CAA. CRE asked OMB to determine whether those 114 letters are properly within the "enforcement exemption" in the PRA and whether EPA must seek OMB's prior review and clearance. The CRE petition includes a legal memorandum by Multinational Legal Services, counsel to the CRE, suggesting a specific evidentiary standard that is derived from OMB's Guidance implementing the PRA.

2. CRE petitioned OMB to conduct a rulemaking pursuant to the Administrative Procedure Act and the PRA, to define the term "case file" as used in OMB's regulation implementing the PRA "enforcement exemption", to establish a specific evidentiary standard for when an agency may assert the PRA exemption and avoid prior OMB review and clearance.

   On December 5, 2000, the U.S. Chamber of Commerce wrote to OMB in support of both CRE petitions. The Chamber is the Nation's and the world's largest business federation and represents over 3 million businesses. 

  • Click to view the U.S. Chamber of Commerce's letter to OMB.
  • Click to view the CRE petitions.
  • Click to view the MLS legal memorandum.