[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4049 Introduced in House (IH)]







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 
Pennsylvania, 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. Talent) 
 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 Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Regulatory Fair Warning Act of 
1998''.

SEC. 2. FINDINGS.

    The Congress finds the following:
            (1) Federal regulations advance many important 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 available 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 official 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 access to 
        regulations and the opportunity to learn their meanings and 
        accurate information about them before 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 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 amended 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 Regulations;
                    ``(ii) printed in the Federal Register;
                    ``(iii) known to the person; or
                    ``(iv) knowable to a person who has engaged in a 
                reasonable, good faith investigation of the rules 
                applicable to the conduct that allegedly violated the 
                rule;
            ``(B) that the rule failed to give the person fair warning 
        of the conduct that the rule prohibits or requires; 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 following new section:
``Sec. 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 Regulations;
                    ``(B) printed in the Federal Register;
                    ``(C) known to the person; or
                    ``(D) knowable to a person who has engaged in a 
                reasonable, good faith investigation of the rules 
                applicable to the conduct that allegedly violated the 
                rule;
            ``(2) that the rule failed to give the person fair warning 
        of the conduct that the rule prohibits or requires; 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 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 section 1659 the following new item:

``1660. Ban on sanctions for violations of agency rules in certain 
                            circumstances.''.
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