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1 Regulatory Waivers and Exemptions 1 (2017)

handle is hein.usfed/regwec0001 and id is 1 raw text is: Administrative Conference Recommendation 2017-7 Regulatory W aivers and Exemptions Adopted December 15, 2017 Individuals and entities regulated by federal agencies must adhere to program-specific requirements prescribed by statute or regulation. Sometimes, however, agencies prospectively excuse individuals or entities from statutory or regulatory requirements through waivers or exemptions.' The authority to waive or exempt regulated parties from specific legal requirements affords agencies much-needed flexibility to respond to situations in which generally applicable laws are a poor fit for a given situation.2 Emergencies or other unforeseen circumstances may also render compliance with statutory or regulatory requirements impossible or impracticable.' In such instances, requiring strict adherence to legal requirements may not be desirable.4 This is particularly true when the recipient of a waiver or exemption demonstrates that it intends to engage i n conduct that wi II otherwise further the agency -s I egi ti mate goal s. 1 Agencies may also retrospectively decline to bring an enforcement action once a legal violation has already occurred. This recommendation, however, is confined to the agency practice of prospectively waiving or exempting regulated parties from legal requirements. 2 T he terms 'waiver_ and 'exemption_ carry various meanings in agency practice. For the purposes of this recommendation, when Congress has expressly authorized an agency to excuse a regulated party from a legal requirement the term 'waiver_ is used. If an agency is implicitly authorized by Congress to excuse a regulated party from a legal requirement, 'exemption_ is used. These definitions stem from the report underlying this recommendation. SeeAaron L. Nielson, Waivers, Exemptions, and Prosecutorial Discretion: An Examination of Agency Nonenforcement Practices (Nov. 1, 2017) (report to theAdmin. Conf. of the U.S.), https://acus.gov/report/regulatory-waivers-and-exemptions-final-report. Some agencies may also derive authority to grant waivers or exemptions from presidential delegations underArticle II of the Constitution. That category of waivers and exemptions is outside the scope of this recommendation. I See, for example, the Stafford Act 42 U.S.C. f 5141, authorizing any federal agency charged with the administration of a federal assistance program in a presidentially declared major disaster to modify or waive administrative conditions for assistance if requested to do so by state or local authorities. 4 Of course, agencies cannot issue waivers or exemptions unless authorized by law, and even when authorized by law, agencies must not issue them in an arbitrary fashion.

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