[Congressional Record Volume 142, Number 55 (Thursday, April 25, 1996)]
[Extensions of Remarks]
[Page E635]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      REGULATORY FAIR WARNING ACT

                                 ______


                          HON. GEORGE W. GEKAS

                            of pennsylvania

                    in the house of representatives

                       Wednesday, April 24, 1996

  Mr. GEKAS. Mr. Speaker, today I am introducing the Regulatory Fair 
Warning Act along with 12 cosponsors. This legislation codifies the 
principles of due process, fair warning and common sense that were 
always intended to be required by the Administrative Procedure Act 
[APA]. The bill requires that an agency give the regulated community 
adequate notice of its interpretation of a rule. Agencies will be 
deterred from pursuing penalties based on rules or policies which were 
either unclear or unavailable to the regulated community.
  Specifically, the Regulatory Fair Warning Act would prohibit a civil 
or criminal sanction from being imposed by an agency or court if the 
agency or court finds that the rule or related policies published in 
the Federal Register failed to give the defendant fair warning of the 
required conduct; or the agency or court finds that the defendant, 
prior to the alleged violation, reasonably and in good faith 
determined, based upon information publish in the Federal Register or 
written statements made by an appropriate agency official, that the 
defendant was in compliance.
  In reaching its conclusion regarding this matter, a court could not 
give deference to an agency's interpretation of a rule which was not 
timely published in the Federal Register, or otherwise made available 
to the defendant.
  I am pleased to introduce this simple yet necessary measure. Without 
this fundamental protection, businesses must often operate in an 
atmosphere of uncertainty as to whether they are in compliance with an 
agency's most recent interpretation or reinterpretation of its 
regulations. If and when the day arrives when an agency chooses to 
enforce its latest interpretation against a regulated business, the 
business owner has two alternatives: First, roll the dice and hire a 
Washington lawyer to fight an unknown wrong; or Second, pay the 
penalty, regardless of culpability.
  Adoption of this legislation will encourage agencies to keep the 
regulated public aware of what their regulations require of them. 
Before pursuing an enforcement action, an agency will need to consider 
whether the defendant has acted in good faith and whether the agency is 
acting within the confines of due process established by the APA. 
Nothing in this measure is intended to weaken the enforcement powers of 
the executive branch. This is a moderate measure, meant to provide a 
minimum of security and predictability to the regulated community and 
to improve the relationship between agencies and private citizens.

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