Protecting Americans From Overcriminalization Through Regulatory Reform, 6817-6820 [2021-01645]

Agencies

• Executive Office of the President

[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:

                    (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.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    January 18, 2021.

[FR Doc. 2021-01645
Filed 1-21-21; 11:15 am]
Billing code 3295-F1-P