I

106TH CONGRESS

1ST SESSION H. R. 881

To provide that under certain conditions no sanction shall be imposed on

a person by an agency for a violation of a rule and no civil or criminal

sanction may be imposed by a court for a violation of a rule.

IN THE HOUSE OF REPRESENTATIVES

MARCH 1, 1999

Mr. GEKAS (for himself, Mrs. BONO, Mr. BRYANT, Mr. BUYER, Mr. COMBEST, Mr. ENGLISH, Mr. GOODLATTE, Mr. GRAHAM, Mr. MCINTOSH,

Mr. GARY MILLER of California, Mr. PICKETT, Mr. SESSIONS, Mr. SISISKY, and Mr. TALENT) introduced the following bill; which was referred

to the Committee on the Judiciary

A BILL

To provide that under certain conditions no sanction shall

be imposed on a person by an agency for a violation

of a rule and no civil or criminal sanction may be imposed by a court for a violation of a rule.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Regulatory Fair Warn5 ing Act of 1999’’.

6 SEC. 2. FINDINGS.

7 The Congress finds the following:
2

•HR 881 IH

1 (1) Federal regulations advance many impor2 tant goals, including protecting the environment and

3 the health and safety of all Americans.

4 (2) For regulations to effectively protect the

5 public and promote the public interest, the fact of

6 their existence and what they mean must be avail7 able to the persons and entities willing to investigate

8 what the law and regulations require.

9 (3) Fairness also requires that a person should

10 be able to learn of regulations and of their meanings

11 before they can be sanctioned for violating them.

12 (4) Fairness also should prevent a person from

13 being sanctioned for violating a regulation if an offi14 cial has misled the person as to what the regulation

15 prohibits or requires and the person has reasonably

16 relied upon such misleading information.

17 (5) The Due Process Clause of the Fifth

18 Amendment gives Americans a right to have access

19 to regulations and the opportunity to learn their

20 meanings before such regulations can be the basis

21 for depriving them of liberty or property.

22 (6) Effective procedures for protecting this

23 right can improve the effectiveness of regulation,

24 foster the sense that regulations are fairly enforced,
3

•HR 881 IH

1 and ensure that the right to due process actually

2 benefits Americans.

3 (7) Ensuring that agencies give Americans ac4 cess to regulations, the opportunity to learn their

5 meanings, and access to accurate information about

6 them before any sanction can be imposed will en7 courage agencies to make regulatory requirements

8 clearly known, will encourage people and entities to

9 learn what regulations require of them, and will fos10 ter legality, fairness, and justice in the enforcement

11 of Federal regulations.

12 SEC. 3. BAN ON IMPOSITION OF SANCTIONS BY AGENCIES

13 IN CERTAIN CIRCUMSTANCES.

14 Section 558 of title 5, United States Code, is amend15 ed by adding at the end the following new subsection:

16 ‘‘(d)(1) No sanction shall be imposed on a person by

17 an agency for a violation of a rule if the agency finds any

18 one of the following:

19 ‘‘(A) The rule was not—

20 ‘‘(i) printed in the Code of Federal Regula21 tions;

22 ‘‘(ii) printed in the Federal Register;

23 ‘‘(iii) known to the person; or

24 ‘‘(iv) knowable to a person who has en25 gaged in a reasonable, good faith investigation
4

•HR 881 IH

1 of the rules applicable to the conduct that alleg2 edly violated the rule.

3 ‘‘(B) The rule failed to give the person fair

4 warning of the conduct that the rule prohibits or re5 quires.

6 ‘‘(C) With respect only to a retrospective sanc7 tion, the person acted in reasonable reliance upon

8 written representations about what the rule prohibits

9 or requires which were issued by the agency or an

10 official with actual or apparent authority to inter11 pret, administer, or enforce the rule.

12 ‘‘(2) For purposes of this subsection, an agency shall

13 find that a rule gives fair warning of the conduct that the

14 rule prohibits or requires if a reasonable person, acting

15 in good faith, would be able to identify, with reasonable

16 certainty, the standards with which the rule requires the

17 person’s conduct to conform.’’.

18 SEC. 4. BAN ON IMPOSITION OF SANCTIONS BY COURTS IN

19 CERTAIN CIRCUMSTANCES.

20 (a) IN GENERAL.—Chapter 111 of title 28, United

21 States Code, is amended by adding at the end the follow22 ing new section:
5

•HR 881 IH

1 ‘‘§ 1660. Ban on sanctions for violations of agency

2 rules in certain circumstances

3 ‘‘(a) No civil or criminal sanction may be imposed

4 by a court for a violation of a rule if the court finds any

5 one of the following:

6 ‘‘(1) The rule was not—

7 ‘‘(A) printed in the Code of Federal Regu8 lations;

9 ‘‘(B) printed in the Federal Register;

10 ‘‘(C) known to the person; or

11 ‘‘(D) knowable to a person who has en12 gaged in a reasonable, good faith investigation

13 of the rules applicable to the conduct that alleg14 edly violated the rule.

15 ‘‘(2) The rule failed to give the person fair

16 warning of the conduct that the rule prohibits or re17 quires.

18 ‘‘(3) With respect only to a retrospective sanc19 tion, the person acted in reasonable reliance upon

20 written representations about what the rule prohibits

21 or requires which were issued by the agency or an

22 official with actual or apparent authority to inter23 pret, administer, or enforce the rule.

24 ‘‘(b) For purposes of this section, a court shall find

25 that a rule gives fair warning of the conduct that the rule

26 prohibits or requires if a reasonable person, acting in good
6

•HR 881 IH

1 faith, would be able to identify, with reasonable certainty,

2 the standards with which the rule requires the person’s

3 conduct to conform.

4 ‘‘(c) For purposes of this section, the term ‘rule’ shall

5 have the meaning given that term by section 551 of title

6 5.’’.

7 (b) CLERICAL AMENDMENT.—The table of sections

8 at the beginning of chapter 111 of title 28, United States

9 Code, is amended by adding after the item relating to sec10 tion 1659 the following new item:

‘‘1660. Ban on sanctions for violations of agency rules in certain circumstances.’’.

Æ