SUPPLEMENTARY INFORMATION:

On May 9, 2025, the President issued E.O. 14294, Fighting Overcriminalization in Federal Regulations.^[1] The E.O. sets forth a number of requirements related to enforcement of criminal regulatory offenses. One such requirement is that each agency must publish guidance describing the agency's plan to address enforcement of criminally liable regulatory offenses by June 23, 2025.^[2]

The E.O. does not apply to the enforcement of 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.^[3] To the extent that DHS takes any ( printed page 26063) criminal enforcement actions not within one of those exemptions, DHS will apply the policy in this notice to such actions.

This notice announces a general criminal enforcement policy. When DHS is deciding whether to refer alleged violations of criminal regulatory offenses of DHS regulations to the Department of Justice (DOJ), officers and employees of the Department will consider, to the extent consistent with law, the following factors:

• The harm or risk of harm, pecuniary or otherwise, caused by the alleged offense;
• The potential gain to the putative defendant that could result from the offense;
• Whether the putative defendant held specialized knowledge, expertise, or was licensed in an industry related to the rule or regulation at issue;
• 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; ^[4] and

• Other factors as appropriate.

This general policy was developed following consultation with the Attorney General. This guidance 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.

This notice also announces DHS's plan for its forthcoming report required by section 4 of E.O. 14294. Section 4 requires that DHS post on its agency's public website and submit a report, created in consultation with the Attorney General, to the Director of the Office of Management and Budget (OMB) containing: (1) a list of all criminal regulatory offenses ^[5] enforceable by DHS or DOJ; and (2) for each such criminal regulatory offense, the range of potential criminal penalties for a violation and the applicable mens rea standard ^[6] for the criminal regulatory offense. DHS is reviewing its regulations to compile a list of the criminal regulatory offenses covered by the reporting requirement and will submit the report to OMB by the May 9, 2026, deadline.

90 FR 26062