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. COM-
BEST, Mr. ENGLISH, Mr. GOODLATTE, Mr. GRAHAM, Mr. MCINTOSH,
Mr. GARY MILLER of California, Mr. PICKETT, Mr. SESSIONS, Mr. SISI-
SKY, 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 im-
posed by a court for a violation of a rule.
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 1999’’.
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 misled 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 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, the opportunity to learn their
meanings, and access to accurate information about
them before any sanction can be imposed will en-
courage agencies to make regulatory requirements
clearly known, will encourage people and entities to
learn what regulations require of them, and will fos-
ter legality, 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 any
one of the following:
‘‘(A) 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) The rule failed to give the person fair
warning of the conduct that the rule prohibits or re-
quires.
‘‘(C) With respect only to a retrospective sanc-
tion, the person acted in reasonable reliance upon
written representations about what the rule prohibits
or requires which were issued by the agency or an
official with actual or apparent authority to inter-
pret, administer, or enforce the rule.
‘‘(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 reasonable
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 any
one of the following:
‘‘(1) 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) The rule failed to give the person fair
warning of the conduct that the rule prohibits or re-
quires.
‘‘(3) With respect only to a retrospective sanc-
tion, the person acted in reasonable reliance upon
written representations about what the rule prohibits
or requires which were issued by the agency or an
official with actual or apparent authority to inter-
pret, administer, or enforce the rule.
‘‘(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 reasonable certainty,
the standards with which the rule requires the person’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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