Fighting Overcriminalization in Federal Regulations

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Published

May 14, 2025

Signed

May 9, 2025

Issuing agencies

Executive Office of the President

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<title>Federal Register, Volume 90 Issue 92 (Wednesday, May 14, 2025)</title>
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[Federal Register Volume 90, Number 92 (Wednesday, May 14, 2025)]
[Presidential Documents]
[Pages 20363-20365]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-08681]

Presidential Documents

Federal Register / Vol. 90, No. 92 / Wednesday, May 14, 2025 /
Presidential Documents

[[Page 20363]]

Executive Order 14294 of May 9, 2025

Fighting Overcriminalization in Federal
Regulations

By the authority vested in me as President by the
Constitution and the laws of the United States of
America, it is hereby ordered:

Section 1. Purpose. The United States is drastically
overregulated. The Code of Federal Regulations contains
over 48,000 sections, stretching over 175,000 pages--
far more than any citizen can possibly read, let alone
fully understand. Worse, many carry potential criminal
penalties for violations. The situation has become so
dire that no one--likely including those charged with
enforcing our criminal laws at the Department of
Justice--knows how many separate criminal offenses are
contained in the Code of Federal Regulations, with at
least one source estimating hundreds of thousands of
such crimes. Many of these regulatory crimes are
``strict liability'' offenses, meaning that citizens
need not have a guilty mental state to be convicted of
a crime.

This status quo is absurd and unjust. It allows the
executive branch to write the law, in addition to
executing it. That situation can lend itself to abuse
and weaponization by providing Government officials
tools to target unwitting individuals. It privileges
large corporations, which can afford to hire expensive
legal teams to navigate complex regulatory schemes and
fence out new market entrants, over average Americans.

The purpose of this order is to ease the regulatory
burden on everyday Americans and ensure no American is
transformed into a criminal for violating a regulation
they have no reason to know exists.

Sec. 2. Policy. It is the policy of the United States
that:

(a) Criminal enforcement of criminal regulatory
offenses is disfavored.
(b) Prosecution of criminal regulatory offenses is
most appropriate for persons who know or can be
presumed to know what is prohibited or required by the
regulation and willingly choose not to comply, thereby
causing or risking substantial public harm.
Prosecutions of criminal regulatory offenses should
focus on matters where a putative defendant is alleged
to have known his conduct was unlawful.
(c) Strict liability offenses are ``generally
disfavored.'' United States v. United States Gypsum,
Co., 438 U.S. 422, 438 (1978). Where enforcement is
appropriate, agencies should consider civil rather than
criminal enforcement of strict liability regulatory
offenses or, if appropriate and consistent with due
process and the right to jury trial, see Jarkesy v.
Securities and Exchange Commission, 603 U.S. 109
(2024), administrative enforcement.
(d) Agencies promulgating regulations potentially
subject to criminal enforcement should explicitly
describe the conduct subject to criminal enforcement,
the authorizing statutes, and the mens rea standard
applicable to those offenses.

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

(a) ``Agency'' has the meaning given to ``Executive
agency'' in section 105 of title 5, United States Code;
(b) ``Criminal regulatory offense'' means a Federal
regulation that is enforceable by a criminal penalty;
and
(c) ``Mens rea'' means the state of mind that by
law must be proven to convict a particular defendant of
a particular crime.

[[Page 20364]]

Sec. 4. Report on Criminal Regulatory Offenses. (a)
Within 365 days of the date of this order, the head of
each agency, in consultation with the Attorney General,
shall provide to the Director of the Office of
Management and Budget (OMB) a report containing:

(i) a list of all criminal regulatory offenses enforceable by the agency or
the Department of Justice; and

(ii) for each criminal regulatory offense identified in subsection (a)(i)
of this section, the range of potential criminal penalties for a violation
and the applicable mens rea standard for the criminal regulatory offense.

(b) At the same time the head of each agency
provides to the Director of OMB the report required by
subsection (a) of this section, the agency head shall
publicly post the report on its agency webpage.
(c) The head of each agency shall periodically, but
not less than once a year, update the report described
in subsection (a) of this section.
(d) Criminal enforcement of any criminal regulatory
offense not identified in the report described in
subsection (a) of this section is strongly discouraged.
The head of each agency shall consider whether a
criminal regulatory offense is included in an agency's
public report when considering whether to make a
criminal referral to the Department of Justice or,
where applicable, to the agency's Inspector General.
Further, the Attorney General shall consider whether a
criminal regulatory offense is included in an agency's
public report before initiating an investigation or
initiating criminal proceedings for violating
regulatory standards.

Sec. 5. Promoting Regulatory Transparency. (a)
Following issuance of this order, all future notices of
proposed rulemaking (NPRMs) and final rules published
in the Federal Register, the violation of which may
constitute criminal regulatory offenses, should include
a statement identifying that the rule or proposed rule
is a criminal regulatory offense and the authorizing
statute. Agencies should draft this statement in
consultation with the Department of Justice.

(b) The regulatory text of all NPRMs and final
rules with criminal consequences published in the
Federal Register after the date of this order should
explicitly state a mens rea requirement for each
element of a criminal regulatory offense, accompanied
by citations to the relevant provisions of the
authorizing statute.
(c) Strict liability criminal regulatory offenses
are disfavored. Any proposed or final criminal
regulatory offense that includes a strict liability
mens rea for the offense shall be treated as a
``significant regulatory action'' and submitted to the
Administrator of the Office of Information and
Regulatory Affairs for the review applicable to
significant regulatory actions under Executive Order
12866 of September 30, 1993 (Regulatory Planning and
Review), or any successor process.

Sec. 6. Default Mens Rea for Criminal Regulatory
Offenses. (a) The head of each agency, in consultation
with the Attorney General, shall examine the agency's
statutory authorities and determine whether there is
authority to adopt a background mens rea standard for
criminal regulatory offenses that applies unless a
specific regulation states an alternative mens rea.

(b) Within 30 days of the submission of the report
described in section 4(a) of this order, the head of
each agency, in consultation with the Attorney General,
shall submit a report to the Director of OMB
summarizing the information submitted under section
4(a) of this order and assessing whether the applicable
mens rea standards for criminal regulatory offenses
enforced by the agency are appropriate. If consistent
with the statutory authorities identified pursuant to
the review described in subsection (a) of this section,
the report should present a plan for changing the
applicable mens rea standards and adopting a generally
applicable background mens rea standard, and provide a
justification for each criminal regulatory offense for
which the agency proposes to deviate from its default
mens rea standard.

Sec. 7. Agency Referrals for Potential Criminal
Enforcement. Within 45 days of the date of this order,
and in consultation with the Attorney General,

[[Page 20365]]

each agency should publish guidance in the Federal
Register describing its plan to address criminally
liable regulatory offenses. Each agency's guidance
should make clear that when the agency is deciding
whether to refer alleged violations of criminal
regulatory offenses to the Department of Justice, the
agency should consider factors such as:

(a) the harm or risk of harm, pecuniary or
otherwise, caused by the alleged offense;
(b) the potential gain to the putative defendant
that could result from the offense;
(c) whether the putative defendant held specialized
knowledge, expertise, or was licensed in an industry
related to the rule or regulation at issue; and
(d) evidence, if any is available, of the putative
defendant's general awareness of the unlawfulness of
his conduct as well as his knowledge or lack thereof of
the regulation at issue.

Sec. 8. Effect on Immigration Enforcement and National
Security Functions. Nothing in this order shall apply
to the enforcement of the immigration laws or
regulations promulgated to implement such laws, nor
shall it apply to the enforcement of laws or
regulations related to national security or defense.

Sec. 9. 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) 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,

May 9, 2025.

[FR Doc. 2025-08681
Filed 5-13-25; 8:45 am]
Billing code 3395-F4-P

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