[Congressional Record Volume 168, Number 175 (Monday, November 14, 2022)]
[House]
[Pages H8480-H8481]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              {time}  1700
                      GUIDANCE CLARITY ACT OF 2021

  Mrs. CAROLYN B. MALONEY of New York. Mr. Speaker, I move to suspend 
the rules and pass the bill (S. 533) to require a guidance clarity 
statement on certain agency guidance, and for other purposes.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                                 S. 533

       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 (a) 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.
  The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from 
New York (Mrs. Carolyn B. Maloney) and the gentleman from Pennsylvania 
(Mr. Keller) 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.
  Mr. Speaker, S. 533 would require Federal agencies to include a 
guidance clarity statement on the first page of guidance documents.
  Federal Rules, regulations, and guidance are complex, even at 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.
  I thank Representative Luetkemeyer and Ranking Member Comer for 
working with us to perfect this bill. This is a bipartisan bill which 
has passed the Senate by unanimous consent.
  Mr. Speaker, I urge all of my colleagues to support this legislation 
so it can be sent to the President's desk, and I reserve the balance of 
my time.
  Mr. KELLER. 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 the American people often do not have the legal 
resources or necessary background to know when an agency statement is 
binding law. It is tough for the public to determine what agency 
statements are binding and what are not.
  Even Federal agencies have a tough time understanding the difference. 
They have been known to try to start enforcement actions based simply 
on guidance. Agencies have also been known to attempt to issue binding 
rules by quietly slipping rule language into 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 ``non-rule 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 the 
agencies trying to issue non-rule rules that bypass the Administrative 
Procedure Act's requirements for legislative rules.
  I thank Senator Lankford for his hard work to make this legislation 
the law of the land.
  I also thank the sponsor of the companion bill in this House, the 
ranking member of the Small Business Committee, Blaine Luetkemeyer, who 
has worked tirelessly on this bill since he first introduced it during 
the 115th Congress.
  Also, I thank House Oversight and Reform Committee Chairwoman 
Maloney, Ranking Member   James Comer, and Senate Homeland Security and 
Governmental Affairs Chairman Gary Peters for their critical efforts to 
help make passage of this bill a bipartisan success.
  Mr. Speaker, I urge my colleagues to support the bill, and I reserve 
the balance of my time.
  Mrs. CAROLYN B. MALONEY of New York. Mr. Speaker, if the gentleman 
from Pennsylvania has no further speakers, then I am prepared to close.
  Mr. Speaker, I reserve the balance of my time.
  Mr. KELLER. Mr. Speaker, I yield 3 minutes to the gentleman from 
Missouri (Mr. Luetkemeyer).
  Mr. LUETKEMEYER. Mr. Speaker, I rise in support of S. 533, the 
Guidance Clarity Act, which is identical to my bill, H.R. 1508, which 
passed the House by voice vote on October 20, 2021, almost 13 months 
ago.
  American small businesses have enough to worry about, especially in 
this economy. Inflation, supply chain issues, and labor shortages have 
made it exceedingly difficult to be a small business owner right now. 
These are people who don't have time to worry about keeping track of 
the latest government red tape, which is made more difficult by the 
conflation of agency guidance with regulations or laws.
  The purpose of guidance is to assist Americans in understanding rules 
and regulations and give them suggestions on how to adhere to them. 
However, it is important to note that guidance is not law, nor is it 
enforceable as law--it is simply a suggestion.
  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. Therefore, citizens are free to take the 
suggestion or completely ignore it.

  Unfortunately, over the years, regulators have threatened punitive 
action against businesses for not following guidance. I am not talking 
about people breaking the law or ignoring Federal regulations who 
should certainly face consequences. I am talking about small businesses 
who are following Federal regulations but simply are not doing it in 
the manner certain regulators would prefer--the way their guidance 
suggested regulations be implemented. That is unacceptable, and it is 
illegal. Regulators have no legal authority to enforce guidance, and 
any

[[Page H8481]]

attempt to do so is an egregious abuse of power.
  To make matters worse, thousands and thousands of guidance documents 
are constantly being produced. So instead of achieving their intended 
goal of providing clarity, they are making the waters even murkier.
  With some regulators enforcing guidance while others do not, small 
businesses and entrepreneurs are falling deeper into the regulatory 
maze of the Federal Government.
  The Guidance Clarity Act is a simple, straightforward solution. It 
ensures the first page of guidance documents includes a plain language 
statement declaring that guidance is not law, nor can it be legally 
enforced as law. This might seem like a small fix, but this critical 
statement clarifies for individuals, businesses, and regulators alike 
that guidance is meant to be helpful. It is a suggestion that can be 
put in place or disregarded.
  It will help regulators do their jobs more efficiently and small 
businesses, who lack the resources to employ teams of expensive 
lawyers, to continue to strengthen our workforce and economy.
  Mr. Speaker, I thank Chairwoman Maloney and Ranking Member Comer for 
bringing the Guidance Clarity Act to the floor. I also thank Senator 
Lankford for getting the bill across the finish line in the Senate. 
This is a commonsense solution that will help American small business 
owners, who are the drivers of our economy and embodiment of the 
American Dream, do what they do best.
  Mr. Speaker, I encourage my colleagues to vote in favor of the 
Guidance Clarity Act.
  Mr. KELLER. Mr. Speaker, I have no further speakers, and I yield 
myself the balance of my time to close.
  Mr. Speaker, thanks to the Guidance Clarity Act, small business 
owners and individuals across the country will soon have the 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 
S. 533, 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, S. 533.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. ROSENDALE. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this motion will be postponed.

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