Presidential DocumentExecutive Order 139802021-01645
Protecting Americans From Overcriminalization Through Regulatory Reform
Primary source
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Published
January 22, 2021
Signed
January 18, 2021
Issuing agencies
Executive Office of the President
Full Text
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<title>Federal Register, Volume 86 Issue 13 (Friday, January 22, 2021)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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:
(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.
(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.
[[Page 6818]]
(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.
(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.
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.
(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.
(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]]
(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.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
(Presidential Sig.)
THE WHITE HOUSE,
January 18, 2021.
[FR Doc. 2021-01645
Filed 1-21-21; 11:15 am]
Billing code 3295-F1-P
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</html>Indexed from Federal Register on January 22, 2021.
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