[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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