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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.
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