Waivers, Exemptions, and Prosecutorial Discretion: An Examination of Agency Nonenforcement Practices

Abstract

Agency nonenforcement is an increasingly important aspect of administrative law. Although nonenforcement is often beneficial (or, in any event, inevitable in light of resource restraints), like other forms of administrative discretion, it can be abused. Indeed, nonenforcement raises difficult questions about administrative regularity and fairness.

The Administrative Conference of the United States has commissioned this Report to examine agency nonenforcement of otherwise applicable legal provisions. In particular, this Report’s purpose is to investigate waivers and exemptions, as well as the related concept of prosecutorial discretion. The analysis is intended to be both conceptual and empirical, and to be driven by a very practical goal: identifying ways to improve the nonenforcement process. Accordingly, this Report develops a taxonomy of nonenforcement, presents novel empirical data about the nonenforcement practices of a number agencies, and offers recommended best practices.

Keywords: Administrative Law, What's New in Administrative Law, Regulatory Enforcement, Prosecutorial Discretion, Waivers, Exemptions

JEL Classification: K23