Presidential Documents

Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Presidential Documents 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. 


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(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 


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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 nondefense 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. 


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(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. 

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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