OCC Issues New Policy on Criminal Enforcement for Regulatory Violations

As required by a recent Executive Order concerning "overcriminalization in federal regulations," the OCC issued a Notice of new "guidance on referrals for potential criminal enforcement."

In the Notice, published in the Federal Register, the OCC announced a "general policy," for deciding "whether to refer alleged violations of criminal regulatory offenses to DOJ." The OCC said the new policy requires consideration of: (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 defendant "held specialized knowledge, expertise, or was licensed in an industry related to the rule or regulation at issue;" and (iv) any evidence of the defendant’s "general awareness of the unlawfulness of his conduct as well as his knowledge or lack thereof of the regulation at issue."

The OCC also said it would deliver a Report to the Office of Management and Budget by May 9, 2026, containing: (1) a list of all criminal regulatory offenses enforceable by the OCC or the Department of Justice, and (2) the range of potential criminal penalties for offenses on the list (including "the applicable mens rea standard" for each.