Regulatory Fair Warning Act

Summary: Regulatory Fair Warning Act - Amends Federal government operations law and the Federal judicial code to prohibit agencies and courts from imposing civil or criminal fines or other penalties for rule violations:  (1) if the agency rule and policy statements published in the Federal Register, or as to which a person had actual notice, failed to give such person fair warning of the conduct that the rule prohibits or requires; or (2) committed in reasonable reliance upon a written statement by a Federal or State official, with real or apparent authority to interpret such rule, made after disclosure by the person of all material facts that the person was in compliance with, exempt from, or otherwise not subject to the rule requirements. 
Prohibits the agency or court, in an action brought to impose a fine or other penalty for an alleged rule violation, from giving deference to any interpretation of such rule relied upon by the agency that was not published in the Federal Register or was not available to the person before the alleged violation. 
Provides that a person shall be considered to have received fair warning of the conduct that a rule of an agency prohibits or requires:  (1) if the person, acting reasonably and in good faith, would be able to identify, with ascertainable certainty, the standards with which such agency expects such person's conduct to conform; or (2) when a person first received notice of the initiation of a proceeding against such person for violation of such rule by the agency which issued the rule. 
Denies the defenses established by this Act with respect to any violations of health or safety related rules issued on an emergency basis.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Regulatory Fair Warning Act''.

SEC. 2. AFFIRMATIVE DEFENSE AGAINST IMPOSITION OF FINES OR OTHER 
              PENALTIES BY AGENCIES.

    Section 558 of title 5, United States Code, is amended by adding at 
the end the following new subsection:
    ``(d)(1) No fine or other penalty shall be imposed on a person by 
an agency for a violation of a rule if the agency finds that--
            ``(A) the rule, other general statements of policy, and 
        related guidances, policies, and other public statements--
                    ``(i) published in the Federal Register by the 
                agency, or
                    ``(ii) as to which such person had actual notice,
        failed to give such person fair warning of the conduct that the 
        rule prohibits or requires; or
            ``(B) such person committed the violation in reasonable 
        reliance upon a written statement by a Federal or State 
        official, with real or apparent authority to interpret such 
        rule, made after disclosure by such person of all material 
        facts that such person was in compliance with, exempt from, or 
        otherwise not subject to, the requirements of the rule.
    ``(2) In an action brought to impose a fine or other penalty on a 
person for an alleged violation of a rule, an agency shall not give 
deference to any interpretation of such rule relied on by the agency 
that was not published in the Federal Register or was not otherwise 
available to such person prior to the alleged violation.
    ``(3) For purposes of this subsection, a person shall be considered 
to have received fair warning of the conduct that a rule of an agency 
prohibits or requires--
            ``(A) if a person, acting reasonably and in good faith, 
        would be able to identify, with ascertainable certainty, the 
        standards with which such agency expects such person's conduct 
        to conform, or
            ``(B) when a person first received notice of the initiation 
        of a proceeding against such person for violation of such rule 
        by the agency which issued such rule.
    ``(4) The defenses authorized by this subsection shall not apply 
with respect to a violation of a rule which is a health or safety 
related rule which has been issued on an emergency basis.''.

SEC. 3. AFFIRMATIVE DEFENSE AGAINST IMPOSITION OF FINES OR OTHER 
              PENALTIES BY COURTS.

    (a) In General.--Chapter 111 of title 28, United States Code, is 
amended by adding at the end the following new section:
``Sec. 1660. Affirmative defense against fines or other penalties for 
              violations of agency rules
    ``(a) No civil or criminal fine or other penalty shall be imposed 
on a person by a court for a violation of a rule and no fine or other 
penalty imposed by an agency for a violation of a rule shall be 
approved by a court if the court finds that--
            ``(1) the rule, other general statements of policy, and 
        related guidances, policies, and other public statements--
                    ``(A) published in the Federal Register by the 
                agency which promulgated such rule, or
                    ``(B) as to which such person had actual notice,
        failed to give such person fair warning of the conduct that the 
        rule prohibits or requires; or
            ``(2) such person committed the violation in reasonable 
        reliance upon a written statement by a Federal or State 
        official, with real or apparent authority to interpret such 
        rule, made after disclosure by such person of all material 
        facts, that such person was in compliance with, exempt from, or 
        otherwise not subject to, the requirements of the rule.
    ``(b) In an action brought to impose a civil or criminal fine or 
other penalty on a person for an alleged violation of a rule, the court 
shall not give deference to any interpretation of such rule relied on 
by the agency that promulgated the rule that was not published in the 
Federal Register or was not otherwise available to such person prior to 
the alleged violation.
    ``(c) For purposes of this section, a person shall be considered to 
have received fair warning of the conduct that a rule of an agency 
prohibits or requires--
            ``(1) if a person, acting reasonably and in good faith, 
        would be able to identify, with ascertainable certainty, the 
        standards with which such agency expects such person's conduct 
        to conform, or
            ``(2) when a person first received notice of the initiation 
        of a proceeding against such person for violation of such rule 
        by the agency which issued such rule.
    ``(d) The defenses authorized by this section shall not apply with 
respect to a violation of a rule which is a health or safety related 
rule which has been issued on an emergency basis.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 111 of title 28, United States Code, is amended by adding after 
the item relating to section 1659 the following new item:

``1660. Affirmative defense against fines or other penalties for 
                            violations of agency rules.''.
            Amend the title so as to read: ``A bill to amend title 5, 
        United States Code, to provide an affirmative defense against 
        fines or other penalties imposed by agencies and for other 
        purposes.''.