Protecting Americans From Overcriminalization Through Regulatory Reform

This executive order requires federal agencies to clearly disclose when regulations carry criminal penalties and specify the mental state (mens rea) required for criminal violations. It directs agencies to favor civil over criminal enforcement for strict liability regulatory offenses and to publish guidance within 45 days on how they will handle criminal referrals to the Department of Justice.

Federal Register Open PDF 86 FR 6817

Impact dates

Mar 4, 2021
Agencies publish Federal Register guidance on plans to administratively address regulatory offenses rather than refer for criminal enforcement

Key directives

All NPRMs and final rules must include statement on whether criminal penalties apply
Regulatory text must explicitly state mens rea requirement or identify strict liability offense with statutory citations
Agencies must submit justification for strict liability standards to OIRA Administrator before publication
OIRA Administrator shall provide implementation guidance, monitor compliance, and advise on inconsistencies
Agencies must publish Federal Register guidance on administrative handling of strict liability offenses within 45 days
Criminal referrals should consider harm, potential gain, defendant expertise, and knowledge of regulation

Who is ordered

Timeline

Immediate

EO takes effect upon signing
Agencies must begin including criminal penalty disclosure statements in new NPRMs and final rules

Near term (90d)

Agencies must publish Federal Register guidance on criminal enforcement referral plans by March 4, 2021
OIRA Administrator to provide implementation guidance to agencies

Long term

Ongoing requirement for mens rea specification in regulatory text
Potential shift from criminal to civil enforcement for strict liability offenses
Structural change in how agencies draft and justify regulations with criminal consequences

Risks & tensions

EO signed two days before presidential transition; implementation uncertain under new administration
OIRA Administrator role may be vacant or changing during transition period
Exemptions in Section 6(c) are extensive, covering national security, DOJ prosecutions, counterfeit goods, and agency employment actions
Strict liability 'generally disfavored' language is hortatory, not prohibitory
No enforcement mechanism for agency non-compliance with disclosure requirements
Potential tension between transparency goals and prosecutorial discretion needs