I
105TH CONGRESS
2D SESSION
H. R. 4049
To amend titles 5 and 28, United States Code, to provide for a limitation
on sanctions imposed by agencies and courts in certain circumstances.
IN THE HOUSE OF REPRESENTATIVES
JUNE 11, 1998
Mr. GEKAS (for himself, Mrs. BONO, Mr. BUYER, Mr. ENGLISH of Pennsyl-
vania, Mr. GRAHAM, Mr. HALL of Texas, Mr. HUTCHINSON, Mr. INGLIS
of South Carolina, Mr. PICKETT, Mr. SENSENBRENNER, Mr. SISISKY,
Mr. SMITH of Texas, Mr. STENHOLM, Mr. STRICKLAND, and Mr. TAL-
ENT) introduced the following bill; which was referred to the Committee
on the Judiciary
A BILL
To amend titles 5 and 28, United States Code, to provide
for a limitation on sanctions imposed by agencies and
courts in certain circumstances.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Regulatory Fair Warn-
ing Act of 1998’’.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Federal regulations advance many impor-
tant goals, including protecting the environment and
the health and safety of all Americans.
(2) For regulations to effectively protect the
public and promote the public interest, the fact of
their existence and what they mean must be avail-
able to the persons and entities willing to investigate
what the law and regulations require.
(3) Fairness also requires that a person should
be able to learn of regulations and of their meanings
before they can be sanctioned for violating them.
(4) Fairness also should prevent a person from
being sanctioned for violating a regulation if an offi-
cial has mislead the person as to what the regulation
prohibits or requires and the person has reasonably
relied upon such misleading information.
(5) The Due Process Clause of the Fifth
Amendment gives Americans a right to have access
to regulations and the opportunity to learn their
meanings before such regulations can be the basis
for depriving them of life, liberty, or property.
(6) Effective procedures for protecting this
right can improve the effectiveness of regulation,
foster the sense that regulations are fairly enforced,
and ensure that the right to due process actually
benefits Americans.
(7) Ensuring that agencies give Americans ac-
cess to regulations and the opportunity to learn their
meanings and accurate information about them be-
fore any sanction can be imposed will encourage
agencies to make regulatory requirements clearly
known, will encourage people and entities to learn
what regulations require of them, and will foster le-
gality, fairness, and justice in the enforcement of
Federal regulations.
SEC. 3. BAN ON IMPOSITION OF SANCTIONS BY AGENCIES
IN CERTAIN CIRCUMSTANCES.
Section 558 of title 5, United States Code, is amend-
ed by adding at the end the following new subsection:
‘‘(d)(1) No sanction shall be imposed on a person by
an agency for a violation of a rule if the agency finds—
‘‘(A) that the rule was not—
‘‘(i) printed in the Code of Federal Regula-
tions;
‘‘(ii) printed in the Federal Register;
‘‘(iii) known to the person; or
‘‘(iv) knowable to a person who has en-
gaged in a reasonable, good faith investigation
of the rules applicable to the conduct that alleg-
edly violated the rule;
‘‘(B) that the rule failed to give the person fair
warning of the conduct that the rule prohibits or re-
quires; or
‘‘(C) that, with respect only to a retrospective
sanction, official representations to the person about
what the rule prohibits or requires were misleading
and were reasonably relied upon by the person.
‘‘(2) For purposes of this subsection, an agency shall
find that a rule gives fair warning of the conduct that the
rule prohibits or requires if a reasonable person, acting
in good faith, would be able to identify, with ascertainable
certainty, the standards with which the rule requires the
person’s conduct to conform.’’.
SEC. 4. BAN ON IMPOSITION OF SANCTIONS BY COURTS IN
CERTAIN CIRCUMSTANCES.
(a) IN GENERAL.—Chapter 111 of title 28, United
States Code, is amended by adding at the end the follow-
ing new section:
‘‘§ 1660. Ban on sanctions for violations of agency
rules in certain circumstances
‘‘(a) No civil or criminal sanction may be imposed
by a court for a violation of a rule if the court finds—
‘‘(1) that the rule was not—
‘‘(A) printed in the Code of Federal Regu-
lations;
‘‘(B) printed in the Federal Register;
‘‘(C) known to the person; or
‘‘(D) knowable to a person who has en-
gaged in a reasonable, good faith investigation
of the rules applicable to the conduct that alleg-
edly violated the rule;
‘‘(2) that the rule failed to give the person fair
warning of the conduct that the rule prohibits or re-
quires; or
‘‘(3) that, with respect only to a retrospective
sanction, official representations to the person about
what the rule prohibits or requires were misleading
and were reasonably relied upon by the person.
‘‘(b) For purposes of this section, a court shall find
that a rule gives fair warning of the conduct that the rule
prohibits or requires if a reasonable person, acting in good
faith, would be able to identify, with ascertainable cer-
tainty, the standards with which the rule requires the per-
son’s conduct to conform.
‘‘(c) For purposes of this section, the term ‘rule’ shall
have the meaning given that term by section 551 of title
5.’’.
(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 sec-
tion 1659 the following new item:
‘‘1660. Ban on sanctions for violations of agency rules in certain cir-
cumstances.’’.
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