Fighting Overcriminalization in Federal Regulations

This executive order directs federal agencies to catalog all criminal regulatory offenses, establish default mental-state (mens rea) requirements for future criminal enforcement, and discourage prosecution of strict liability regulatory crimes where defendants lacked knowledge of the rule. It exempts immigration and national security enforcement from its scope.

Federal Register Open PDF 90 FR 20363

Impact dates

Jun 8, 2026
Agency mens rea assessment report to OMB
May 9, 2026
Agency report listing all criminal regulatory offenses with penalties and mens rea standards
Jun 23, 2025
Agency guidance on criminal referral factors published in Federal Register

Key directives

Within 365 days: agency heads submit report to OMB listing all criminal regulatory offenses with penalties and mens rea standards
Within 30 days of 4(a) report: agency heads submit mens rea assessment report to OMB
Within 45 days: agencies publish Federal Register guidance on criminal referral decision factors
Future NPRMs and final rules with criminal consequences must include mens rea requirements for each element
Strict liability criminal regulatory offenses treated as 'significant regulatory actions' under EO 12866
Criminal enforcement of unreported offenses 'strongly discouraged'
Attorney General must consider whether offense is in public report before initiating investigation or proceedings

Who is ordered

Timeline

Immediate

Policy statement disfavoring criminal enforcement of regulatory offenses without knowledge
Future rulemaking must include mens rea requirements and criminal-offense statements

Near term (90d)

Agency guidance on criminal referral factors due within 45 days
Agencies begin examining statutory authorities for background mens rea standards

Long term

Full agency reports on criminal regulatory offenses due within 365 days
Annual updates required thereafter
Potential adoption of default mens rea standards across agencies

Risks & tensions

Strong discouragement of enforcing unreported offenses may create compliance gaps during 365-day inventory period
Mens rea requirement for strict liability offenses conflicts with existing statutory frameworks that Congress may have intentionally designed without intent requirements
Exemption for immigration and national security creates boundary-line enforcement disputes
DOJ consultation requirement across all agencies may strain resources
Annual update obligation may become unfunded mandate