SUPPLEMENTARY INFORMATION:

On May 9, 2025, the President issued Executive Order (“E.O.”) 14294, Fighting Overcriminalization in Federal Regulations. 90 FR 20363 (published May 14, 2025). Section 7 of E.O. 14294 provides that within 45 days of the order, and in consultation with the Attorney General, each agency should publish guidance in the Federal Register describing its plan to address criminally liable regulatory offenses.

Consistent with that requirement, the Department of Labor (“DOL”) advises the public that by May 9, 2026, the Department, in consultation with the Attorney General, will provide to the Director of the Office of Management and Budget (“OMB”) a report containing: (1) a list of all criminal regulatory offenses ^[1] enforceable by DOL or the Department of Justice (“DOJ”); and (2) for each such criminal regulatory offense, the range of potential criminal penalties for a violation and the applicable mens rea standard ^[2] for the criminal regulatory offense.

This notice also announces a general policy, subject to appropriate exceptions and to the extent consistent with law, that when DOL is deciding whether to refer alleged violations of criminal regulatory offenses to DOJ, officers and employees of DOL should consider, among other factors:

• whether an employee has died or was seriously injured as a result of a violation of one of the laws that DOL enforces;
• whether the putative defendant's conduct is particularly egregious, such as where the employer has a history of similar violations;
• whether the putative defendant has deliberately impeded Department of Labor investigative efforts;
• whether workers were physically or mentally coerced, such as in cases involving trafficking or extortion;
• 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; and
• 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.

This general policy 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.

90 FR 27057