[Congressional Record Volume 144, Number 75 (Thursday, June 11, 1998)]
[Extensions of Remarks]
[Page E1123]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page E1123]]
                    THE REGULATORY FAIR WARNING ACT

                                 ______
                                 

                          HON. GEORGE W. GEKAS

                            of pennsylvania

                    in the house of representatives

                        Thursday, June 11, 1998

  Mr. GEKAS. Mr. Speaker, today I am introducing the Regulatory Fair 
Warning Act along with fourteen cosponsors. This legislation codifies 
principles of due process, fair warning, and common sense that were 
always intended to be required by the Administrative Procedure Act 
(APA). The bill would require that an agency give the regulated 
community adequate notice of its interpretation of an ambiguous rule. 
Agencies and courts would be barred from imposing penalties based on 
rules or policies that are not clearly known to the regulated 
community. They would consequently be encouraged to make known what is 
required or prohibited by their rules.
  Specifically, the Regulatory Fair Warning Act would prohibit a civil 
or criminal sanction from being imposed by an agency or court if: a 
rule or regulation is not available to the public or known to the 
regulated community; a rule or regulation does not give fair warning of 
what is prohibited or required; or officials have been misleading about 
what a rule prohibits or requires.
  I am pleased to introduce this simple, yet necessary measure. Without 
its fundamental protections, individuals and businesses must live 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 that an agency chooses to 
enforce a new interpretation against a regulated party, that party has 
two alternatives: (1) roll the dice on expensive, protracted 
administrative processes and litigation, or (2) pay the penalty, 
regardless of culpability.
  Nothing in this measure is intended to weaken the enforcement powers 
of federal agencies. In fact, by requiring rules to be clear, the 
Regulatory Fair Warning Act would promote compliance and make violators 
easier to catch, because the lines dividing right and wrong would be 
more clear. This moderate measure would provide a minimum of security 
and predictability to regulated individuals and businesses. It would 
surely improve the relationship between federal agencies and the 
American public.
  I originally introduced a version of this legislation in the 104th 
Congress as H.R. 3307. That bill had strong, bipartisan support and it 
was favorably reported by the Judiciary Committee. Many of the same 
Members who cosponsored that bill are cosponsors of this one, and I 
thank them for their support and their work on ensuring fairness in the 
regulatory process.
  There is wide consensus that the government and all its agencies 
should provide citizens with fair warning of what the law and 
regulations require. Likewise, citizens should be able to rely on 
information received from the government and its agencies. Though these 
principles are embodied in the Due Process Clause of the Fifth 
Amendment to the United States Constitution, legislation to codify and 
enforce them in the regulatory context would help ensure that members 
of the public--in addition to having due process rights--are actually 
treated fairly.

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