[Congressional Record (Bound Edition), Volume 145 (1999), Part 3]
[Extensions of Remarks]
[Pages 3235-3236]
[From the U.S. Government Publishing Office, www.gpo.gov]




            INTRODUCTION OF THE REGULATORY FAIR WARNING ACT

                                 ______
                                 

                          HON. GEORGE W. GEKAS

                            of pennsylvania

                    in the house of representatives

                         Monday, March 1, 1999

  Mr. GEKAS. Mr. Speaker, today I am introducing the Regulatory Fair 
Warning Act along with thirteen 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 role. 
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 requested; or
  officials have misled the public about what a rule prohibits or 
requires.
  In our large and complex regulatory system, these simple principles 
can be forgotten.
  I am pleased to introduce this simple, yet necessary measure. Without 
its fundamental

[[Page 3236]]

protections, individuals and businesses must live in an atmosphere of 
uncertainty as to whether they are 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 fair warning legislation in the 104th 
Congress as H.R. 3307. That bill had strong, bipartisan support and it 
was favorably reported by the Judiciary Committee. I reintroduced the 
predecessor of this bill in the 105th Congress as H.R. 4049. 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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