[Congressional Record Volume 167, Number 184 (Wednesday, October 20, 2021)]
[House]
[Pages H5689-H5691]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      GUIDANCE CLARITY ACT OF 2021

  Mrs. CAROLYN B. MALONEY of New York. Mr. Speaker, I move to suspend 
the rules and pass the bill (H.R. 1508) to require a guidance clarity 
statement

[[Page H5690]]

on certain agency guidance, and for other purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 1508

       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 ``Guidance Clarity Act of 
     2021''.

     SEC. 2. GUIDANCE CLARITY STATEMENT REQUIRED.

       (a) Requirement.--Each agency, as defined in section 551 of 
     title 5, United States Code, shall include a guidance clarity 
     statement as described in subsection (b) on any guidance 
     issued by that agency under section 553(b)(3)(A) of title 5, 
     United States Code, on and after the date that is 30 days 
     after the date on which the Director of the Office of 
     Management and Budget issues the guidance required under 
     subsection (c).
       (b) Guidance Clarity Statement.--A guidance clarity 
     statement required under subsection (b) shall--
       (1) be displayed prominently on the first page of the 
     document; and
       (2) include the following: ``The contents of this document 
     do not have the force and effect of law and do not, of 
     themselves, bind the public or the agency. This document is 
     intended only to provide clarity to the public regarding 
     existing requirements under the law or agency policies.''.
       (c) OMB Guidance.--Not later than 90 days after the date of 
     enactment of this Act, the Director of the Office of 
     Management and Budget shall issue guidance to implement this 
     Act.

     SEC. 3. DETERMINATION OF BUDGETARY EFFECTS.

       The budgetary effects of this Act, for the purpose of 
     complying with the Statutory Pay-As-You-Go Act of 2010, shall 
     be determined by reference to the latest statement titled 
     ``Budgetary Effects of PAYGO Legislation'' for this Act, 
     submitted for printing in the Congressional Record by the 
     Chairman of the House Budget Committee, provided that such 
     statement has been submitted prior to the vote on passage.

  The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from 
New York (Mrs. Carolyn B. Maloney) and the gentleman from Kansas (Mr. 
LaTurner) each will control 20 minutes.
  The Chair recognizes the gentlewoman from New York.


                             General Leave

  Mrs. CAROLYN B. MALONEY of New York. Mr. Speaker, I ask unanimous 
consent that all Members may have 5 legislative days in which to revise 
and extend their remarks and include extraneous material on this 
measure.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentlewoman from New York?
  There was no objection.
  Mrs. CAROLYN B. MALONEY of New York. Mr. Speaker, I yield myself such 
time as I may consume.
  H.R. 1508 would require Federal agencies to include a guidance 
clarity statement on the first page of guidance documents.
  I thank Representative Luetkemeyer and Ranking Member Comer for 
working with us to perfect this bill.
  Federal rules, regulations, and guidance are complex, even at the 
best of times.
  For most Americans who do not spend hours per day reading through the 
Federal Register, guidance documents can be very confusing.
  This simple, good government bill will help clarify for the public 
that agency guidance is intended to help guide the implementation of 
Federal regulations, not to act as additional legally binding rules.
  This is a bipartisan bill in both the House and the Senate, which 
passed a Senate companion out of committee by voice vote.
  Mr. Speaker, I urge my colleagues to support this legislation, and I 
reserve the balance of my time.
  Mr. LaTURNER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, agency guidance serves an important function in the 
Federal regulatory system.
  Agency guidance helps regulated parties and the public understand how 
agencies will interpret the laws and administer their programs.
  However, agency guidance can be--and has been--abused.
  For example, agencies can use guidance documents to intimidate small 
businesses and individuals into compliance with agency views, sometimes 
under the threat of enforcement action.
  Small businesses and ordinary individuals often do not have the legal 
resources or necessary background to understand when an agency 
statement is binding law.
  It can be difficult for them to determine what agency statements must 
be complied with versus what is merely a nonbinding description of an 
agency's views on which they can push back.
  Agencies have been known to try to start enforcement actions based on 
mere guidance.
  Agencies also have been known to attempt to issue binding rules by 
quietly slipping what they intend to be rules in guidance documents.
  This clearly bypasses the Administrative Procedure Act's requirements 
that were put in place to protect regulated individuals and small 
businesses.
  The courts coined the term ``nonrule rule'' to describe this Big 
Government sleight of hand.
  And the courts have rightly struck down such rules that only appeared 
in agency guidance.
  The Guidance Clarity Act offers a simple solution to these problems.
  It requires agency guidance documents to include the following 
explicit statement: ``The contents of this document do not have the 
force and effect of law and do not, of themselves, bind the public or 
the agency.
  ``This document is intended only to provide clarity to the public 
regarding existing requirements under the law or agency policies.''
  With that stroke of the pen, gone will be the days in which agencies 
can use guidance documents to force small businesses and individuals to 
comply with nonbinding agency views.
  Gone, too, will be the days of agencies trying to issue nonrule rules 
that bypass the Administrative Procedure Act's requirement for 
legislative rules.
  I thank the sponsor of the bill, the ranking member of the Small 
Business Committee, Blaine Luetkemeyer, who has worked tirelessly on 
this bill since it was first introduced.
  I thank Chairwoman Maloney for her speedy efforts to help make 
passage of this bill a bipartisan success.
  And I also thank Senator James Lankford and Senate Homeland Security 
and Governmental Affairs Chairman Gary Peters for their critical 
efforts to achieve a bipartisan compromise on this legislation.
  Mr. Speaker, I reserve the balance of my time.
  Mrs. CAROLYN B. MALONEY of New York. Mr. Speaker, I reserve the 
balance of my time.
  Mr. LaTURNER. Mr. Speaker, I yield 5 minutes to the gentleman from 
Missouri (Mr. Luetkemeyer).
  Mr. LUETKEMEYER. Mr. Speaker, I rise in support of my bill, the 
Guidance Clarity Act.
  The Federal Government produces hundreds of rules, regulations, and 
laws every year. Without the help of legal teams and consultants, 
individuals and small businesses cannot possibly keep up with 
everything that is coming out of Washington.
  The purpose of guidance is to assist those Americans in understanding 
rules and regulations and give them suggestions on how to adhere to 
them.
  Guidance is not approved by Congress, nor does it go through the 
Federal rulemaking process which allows for public input and legal 
scrutiny of agency actions. Guidance is not backed up by law, nor is it 
enforceable by law enforcement. It is, quite simply, a suggestion.
  Unfortunately, in past years, many regulators have threatened 
punitive action against businesses for not following guidance. That is 
unacceptable, and quite frankly, it is illegal.
  To be clear, I am not talking about businesses breaking the law or 
ignoring Federal regulations. Guidance documents are meant to clarify 
or to inform the public about policy topics and are not legally 
binding. Small businesses deserve clarity on what documents are legally 
binding and should not be punished for deviating from guidance 
documents.

  Regulators have no legal authority to enforce guidance, and any 
attempt to do so is an egregious abuse of power.
  On top of that, with thousands of guidance documents being produced, 
instead of achieving their intended goal--which is to provide clarity--
they are causing even more confusion.
  With some regulators enforcing guidance while others do not, small 
businesses and entrepreneurs are driven deeper into the regulatory maze 
of the Federal Government.
  My bill is a very simple fix to that confusion. The Guidance Clarity 
Act

[[Page H5691]]

ensures the first page of guidance documents includes the plain 
language statement declaring that guidance is not law, nor can it 
legally be enforced as law.
  This small but critical statement clarifies for citizens and 
regulators on the ground that guidance is meant to be helpful; a 
suggestion that can be put in place or completely ignored. It will help 
regulators do their jobs more efficiently and small businesses, who 
lack the resources to employ teams of lawyers, continue to create jobs 
and grow the economy.
  I hope my colleagues on both sides of the aisle will agree that 
American small businesses have enough to worry about. They are working 
hard to keep their employees paid and their customers happy. They don't 
have time to worry about keeping track of and abiding by agency 
suggestions that were never meant to be anything more than just that.
  I thank Chairwoman Maloney, Ranking Member Comer, and the gentleman 
from Kansas (Mr. LaTurner) for their leadership in supporting the bill 
and bringing it to the floor.
  Mr. Speaker, I encourage my colleagues to vote in favor of the 
Guidance Clarity Act.
  Mr. LaTURNER. Mr. Speaker, thanks to the Guidance Clarity Act, small 
business owners and individuals across the country will soon have 
confidence that agency guidance, however helpful and clarifying it may 
be, is not legally binding.
  Mr. Speaker, I urge my colleagues to support this necessary 
bipartisan legislation, and I yield back the balance of my time.
  Mrs. CAROLYN B. MALONEY of New York. Mr. Speaker, I urge passage of 
H.R. 1508.
  I thank Blaine Luetkemeyer for his leadership on this bill and the 
cooperation of Ranking Member Comer and all the teams on both sides 
working in support of it.
  Mr. Speaker, I urge passage of this bill, and I yield back the 
balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentlewoman from New York (Mrs. Carolyn B. Maloney) that the House 
suspend the rules and pass the bill, H.R. 1508, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

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