Protecting Americans From Overcriminalization Through Regulatory Reform

[Federal Register Volume 86, Number 13 (Friday, January 22, 2021)]

[Presidential Documents]

[Pages 6817-6820]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 2021-01645]

Presidential Documents

Federal Register / Vol. 86 , No. 13 / Friday, January 22, 2021 /

Presidential Documents

[[Page 6817]]

Executive Order 13980 of January 18, 2021

Protecting Americans From Overcriminalization

Through Regulatory Reform

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, and to improve transparency with respect to

the consequences of violating certain regulations and

to protect Americans from facing unwarranted criminal

punishment for unintentional violations of regulations,

it is hereby ordered as follows:

Section 1. Purpose. In the interest of fairness,

Federal criminal law should be clearly written so that

all Americans can understand what is prohibited and act

accordingly. Some statutes have authorized executive

branch agencies to promulgate thousands of regulations,

creating a thicket of requirements that can be

difficult to navigate, and many of these regulations

are enforceable through criminal processes and

penalties. The purpose of this order is to alleviate

regulatory burdens on Americans by ensuring that they

have notice of potential criminal liability for

violations of regulations and by focusing criminal

enforcement of regulatory offenses on the most culpable

individuals.

Sec. 2. Policy. It is the policy of the Federal

Government that:

regulatory burdens on Americans by ensuring that they

have notice of potential criminal liability for

violations of regulations and by focusing criminal

enforcement of regulatory offenses on the most culpable

individuals.

Sec. 2. Policy. It is the policy of the Federal

Government that:

(a) Agencies promulgating regulations that may

subject a violator to criminal penalties should be

explicit about what conduct is subject to criminal

penalties and the mens rea standard applicable to those

offenses;

(b) Strict liability offenses are ``generally

disfavored.'' United States v. United States Gypsum,

Co., 438 U.S. 422, 438 (1978). Where appropriate,

agencies should consider administrative or civil

enforcement of strict liability regulatory offenses,

rather than criminal enforcement of such offenses; and

(c) Criminal prosecution based on regulatory

offenses is most appropriate for those persons who know

what is prohibited or required by the regulation and

choose not to comply, thereby causing or risking

substantial public harm. Criminal prosecutions based on

regulatory offenses should focus on matters where a

putative defendant had actual or constructive knowledge

that conduct was prohibited.

Sec. 3. Definitions. For the purposes of this order:

(a) ``Agency'' has the meaning given to ``Executive

agency'' in section 105 of title 5, United States Code.

regulatory offenses should focus on matters where a

putative defendant had actual or constructive knowledge

that conduct was prohibited.

Sec. 3. Definitions. For the purposes of this order:

(a) ``Agency'' has the meaning given to ``Executive

agency'' in section 105 of title 5, United States Code.

(b) ``Mens rea'' means the state of mind that by

law must be proven to convict a particular defendant of

a particular crime. There are several such mental

states in the law applied by Federal courts. Two common

mental states are ``knowingly'' and ``willfully.'' A

defendant acts ``knowingly'' with respect to an element

of the offense if he or she has knowledge of the

essential facts comprising that element. In addition, a

defendant ``willfully'' violates a statute if he or she

acts with a ``bad purpose'' that is with ``knowledge

that his [or her] conduct is unlawful.'' Model Criminal

Jury Instructions (3d Cir. 2018), ch. 5, sec. 5.02 cmt.

(quotation marks omitted). By contrast, strict

liability offenses do not require the government to

prove mens rea. For instance, the jury instructions for

the United States Court of Appeals for the Third

Circuit note that ``[s]ome federal crimes are also

strict or absolute liability offenses, without any

mental state requirement.'' Id. at ch. 5, General

Introduction to Mental State Instructions.

(c) ``Person'' has the meaning given it in section

1 of title 1, United States Code.

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Circuit note that ``[s]ome federal crimes are also

strict or absolute liability offenses, without any

mental state requirement.'' Id. at ch. 5, General

Introduction to Mental State Instructions.

(c) ``Person'' has the meaning given it in section

1 of title 1, United States Code.

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(d) ``Regulatory offense'' means any violation of a

regulation promulgated by an agency.

Sec. 4. Promoting Regulatory Transparency. (a) All

notices of proposed rulemaking (NPRMs) and final rules

published in the Federal Register after issuance of

this order should include a statement that describes

whether individuals who violate any of the

prohibitions--or fail to comply with any requirements--

imposed by the regulation or rule may be subject to

criminal penalties. Agencies should draft this

statement in consultation with the Department of

Justice. For purposes of this order, a regulation is

treated as subjecting individuals to criminal penalties

when violation of the regulation is itself a basis for

criminal liability under Federal law.

(b) The regulatory text of all NPRMs and final

rules with criminal consequences published in the

Federal Register after issuance of this order should,

consistent with applicable law, explicitly state a mens

rea requirement for each such provision or identify the

provision as a strict liability offense, accompanied by

citations to the relevant provisions of the authorizing

statute.

shed in the

Federal Register after issuance of this order should,

consistent with applicable law, explicitly state a mens

rea requirement for each such provision or identify the

provision as a strict liability offense, accompanied by

citations to the relevant provisions of the authorizing

statute.

(c) Prior to publishing in the Federal Register an

NPRM or final rule that contains a regulatory offense

not specifically articulated in the authorizing statute

that may subject a violator to potential criminal

liability with no mens rea requirement or a regulatory

offense that includes an element that does not require

proof of mens rea (excluding jurisdictional and venue

elements), the applicable agency should submit a brief

justification for use of a strict liability standard as

well as the source of legal authority for the

imposition of such a standard, to the Administrator of

the Office of Information and Regulatory Affairs in the

Office of Management and Budget (Administrator). In

response to these agency submissions, the Administrator

shall provide implementation guidance to agencies on

this order, monitor agency regulatory actions pursuant

to this order, and advise agencies if their actions are

inconsistent with the principles set forth in this

order and or otherwise conflict with the policies or

actions of another agency. After such consultation, a

statement of justification should be published in the

Federal Register with the NPRM and the final rule.

this order, and advise agencies if their actions are

inconsistent with the principles set forth in this

order and or otherwise conflict with the policies or

actions of another agency. After such consultation, a

statement of justification should be published in the

Federal Register with the NPRM and the final rule.

Sec. 5. Agency Referrals for Potential Criminal

Enforcement. (a) Within 45 days of the date of this

order, and in consultation with the Department of

Justice, each agency should publish guidance in the

Federal Register describing its plan to

administratively address regulatory offenses subject to

potential criminal liability rather than refer those

offenses to the Department of Justice for criminal

enforcement. Such guidance should make clear that when

agencies are enforcing regulations related to statutory

criminal violations subject to strict liability, and

deciding whether to refer the matter to the Department

of Justice, agencies should consider factors such as:

(i) the harm or risk of harm, pecuniary or otherwise, caused by the alleged

offense;

(ii) the potential gain to the putative defendant that could result from

the offense;

(iii) whether the putative defendant held specialized knowledge, expertise,

or was licensed in an industry related to the rule or regulation at issue;

and

(iv) evidence, if any is available, of the putative defendant's knowledge

or lack thereof of the regulation at issue.

e, caused by the alleged

offense;

(ii) the potential gain to the putative defendant that could result from

the offense;

(iii) whether the putative defendant held specialized knowledge, expertise,

or was licensed in an industry related to the rule or regulation at issue;

and

(iv) evidence, if any is available, of the putative defendant's knowledge

or lack thereof of the regulation at issue.

(b) Notwithstanding these considerations, the

guidance should not deter, limit, or delay agency

referrals to the Department of Justice where either the

putative defendant's state of mind is unknown because

further investigation is required, or there exists a

reasonable indication that a crime has been committed

based on the evidence available.

(c) When required by internal agency policies or

practice, an agency may refer alleged regulatory

offenses carrying potential criminal consequences to

its designated investigation and law enforcement

offices for

[[Page 6819]]

investigation of the viability of the charge, subject

to the guidance described in 5(a) of this order

governing referral of regulatory offenses subject to

strict liability.

Sec. 6. General Provisions. (a) Nothing in this order

shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or

the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget

relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with

applicable law and subject to the availability of

appropriations.

uthority granted by law to an executive department or agency, or

the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget

relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with

applicable law and subject to the availability of

appropriations.

(c) Notwithstanding any other provision in this

order, nothing in this order shall apply:

(i) to any action that pertains to foreign or military affairs, or to a

national security or homeland security function of the United States (other

than procurement actions and actions involving the import or export of non-

defense articles and services);

(ii) to any action that the Department of Justice takes related to a

criminal investigation or prosecution, including undercover operations, or

any civil enforcement action or related investigation by the Department of

Justice, in addition to any action related to a civil investigative demand

under 18 U.S.C. 1968;

(iii) to any action related to counterfeit goods, pirated goods, or other

goods that infringe intellectual property rights, or goods that are

adulterated or misbranded, or goods for which regulatory approval was

required prior to distribution but not obtained;

(iv) to strict liability misdemeanor prosecutions concluded via plea

agreement;

(v) to any investigation of misconduct by an agency employee or any

disciplinary, corrective, or employment action taken against an agency

employee; or

(vi) in any other circumstance or proceeding to which application of this

order, or any part of this order, would, in the judgment of the head of the

agency, undermine the national security.

[[Page 6820]]

tions concluded via plea

agreement;

(v) to any investigation of misconduct by an agency employee or any

disciplinary, corrective, or employment action taken against an agency

employee; or

(vi) in any other circumstance or proceeding to which application of this

order, or any part of this order, would, in the judgment of the head of the

agency, undermine the national security.

[[Page 6820]]

(d) This order is not intended to, and does not,

create any right or benefit, substantive or procedural,

enforceable at law or in equity by any party against

the United States, its departments, agencies, or

entities, its officers, employees, or agents, or any

other person.

(Presidential Sig.)

THE WHITE HOUSE,

January 18, 2021.

[FR Doc. 2021-01645

Filed 1-21-21; 11:15 am]

Billing code 3295-F1-P