Protecting Americans From Overcriminalization Through Regulatory Reform
The order requires federal agencies to clearly disclose when their regulations carry criminal penalties and to specify what mental state a person must have to be prosecuted, aiming to protect Americans from unknowing violations of complex regulatory law.
It also directs agencies to develop plans for handling certain regulatory offenses administratively rather than automatically referring them to the Justice Department for criminal prosecution.
What this order does
What it orders
The order directs all federal executive agencies to include explicit statements in proposed and final rules about whether violations may lead to criminal penalties, and to specify the mental-state standard (mens rea) required for prosecution — or to identify a provision as a strict liability offense. Before publishing any rule that imposes criminal liability without requiring proof of intent, an agency must submit a written justification to the OIRA Administrator, who will then provide guidance, monitor compliance, and flag inconsistencies. A statement of justification must also be published in the Federal Register alongside the rule.
Separately, the order directs each agency to publish guidance — within 45 days — describing when it will handle regulatory offenses internally rather than refer them to the Justice Department for criminal prosecution. The order carves out broad exceptions: it does not apply to foreign or military affairs, national security functions, DOJ criminal investigations, intellectual property or counterfeit goods cases, misdemeanor strict-liability plea agreements, or employee misconduct proceedings.
Who it affects
All federal executive agencies that promulgate regulations with criminal penalties, the Office of Information and Regulatory Affairs, and the Department of Justice. Indirectly, individuals and businesses subject to federal regulatory requirements who could face criminal prosecution for regulatory violations.
Why it matters
People and businesses navigating dense federal regulations will have clearer notice of which rules carry criminal consequences and what intent is required for prosecution. Agencies must now justify strict liability criminal offenses and prioritize administrative enforcement over criminal referrals for unknowing violations.
What must happen and when
How the order is supposed to work
Agencies must embed criminal-penalty disclosures and mens rea statements in every future proposed and final rule. Strict liability criminal rules require a pre-publication justification to OIRA before moving forward; OIRA then monitors and advises agencies. In parallel, each agency must publish a Federal Register guidance document within 45 days describing its referral framework for criminal enforcement. The OIRA Administrator coordinates across agencies to ensure consistent application but has no independent enforcement power over non-compliant agencies beyond advisory guidance.
Actions and deadlines
- Publish Federal Register guidance describing plan to handle regulatory offenses administratively rather than refer to DOJ
- Include criminal-penalty disclosure statements in all new NPRMs and final rules, drafted in consultation with DOJ
- Explicitly state mens rea requirement or identify strict liability in regulatory text of new rules with criminal consequences
- Submit written justification to OIRA Administrator before publishing strict liability criminal rules not specified in authorizing statute
- OIRA Administrator to provide implementation guidance, monitor agency actions, and advise on inconsistencies