[Senate Report 116-297]
[From the U.S. Government Publishing Office]


                                                        Calendar No. 590


116th Congress   }                                             {  Report
                                SENATE                          
2d Session       }                                             {  116-297
_______________________________________________________________________

                                     

                                                       

                      GUIDANCE CLARITY ACT OF 2020

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 3412

               TO REQUIRE A GUIDANCE CLARITY STATEMENT ON
            CERTAIN AGENCY GUIDANCE, AND FOR OTHER PURPOSES
            




               November 17, 2020.--Ordered to be printed
               
               
               
                             ______

             U.S. GOVERNMENT PUBLISHING OFFICE 
 19-010              WASHINGTON : 2020               
               
               
               
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio                    GARY C. PETERS, Michigan
RAND PAUL, Kentucky                  THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma             MAGGIE HASSAN, New Hampshire
MITT ROMNEY, Utah                    KAMALA D. HARRIS, California
RICK SCOTT, Florida                  KYRSTEN SINEMA, Arizona
MICHAEL B. ENZI, Wyoming             JACKY ROSEN, Nevada
JOSH HAWLEY, Missouri

                Gabrielle D'Adamo Singer, Staff Director
                   Joseph C. Folio III, Chief Counsel
           Joshua P. McLeod, Senior Professional Staff Member
               David M. Weinberg, Minority Staff Director
               Zachary I. Schram, Minority Chief Counsel
          Yogin J. Kothari, Minority Professional Staff Member
                     Laura W. Kilbride, Chief Clerk




                                                       Calendar No. 590
                                                       
116th Congress   }                                             {   Report
                                 SENATE
 2d Session      }                                             {  116-297

======================================================================



 
                      GUIDANCE CLARITY ACT OF 2020

                                _______
                                

               November 17, 2020.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 3412]

    [Including the cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 3412) to require a 
guidance clarity statement on certain agency guidance, and for 
other purposes, having considered the same, reports favorably 
thereon without amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................1
III. Legislative History..............................................2
 IV. Section-by-Section Analysis......................................2
  V. Evaluation of Regulatory Impact..................................3
 VI. Congressional Budget Office Cost Estimate........................3
VII. Changes in Existing Law Made by the Bill, as Reported............4

                         I. PURPOSE AND SUMMARY

    S. 3412, the Guidance Clarity Act of 2020, requires 
agencies to provide a guidance clarity statement on certain 
agency guidance that the contents of the document do not have 
the force and effect of law and are not meant to bind the 
public in any way, and are intended to only provide clarity to 
the public about existing requirements under the law or agency 
policy.

              II. BACKGROUND AND THE NEED FOR LEGISLATION

    According to the Office of Management and Budget (OMB), 
agency guidance documents ``should only clarify existing 
obligations; they should not be a vehicle for implementing new, 
binding requirements on the public.''\1\ Agency guidance 
documents can take the form of ``policy statements, manuals, 
bulletins, advisories, and more.''\2\
---------------------------------------------------------------------------
    \1\Memorandum from Dominic J. Mancini, Acting Administrator, Office 
of Info. & Regulatory Affairs (Oct. 31, 2019), https://
www.whitehouse.gov/wp-content/uploads/2019/10/M-20-02-Guidance-
Memo.pdf.
    \2\Id.
---------------------------------------------------------------------------
    The October 9, 2019, Executive Order, Promoting the Rule of 
Law Through Improved Agency Guidance Documents, described how 
agencies utilized non-binding guidance documents 
inappropriately to regulate the public without following the 
rulemaking procedures of the Administrative Procedures Act.\3\ 
The Executive Order clarified agency use of non-binding 
guidance documents and instructed agencies to ensure 
transparency of guidance documents by establishing a single, 
searchable, indexed database that contains links to all 
guidance documents in effect from the agency.\4\ The website 
would also note that guidance documents lack the force and 
effect of law.\5\
---------------------------------------------------------------------------
    \3\Executive Order on Promoting the Rule of Law Through Improved 
Agency Guidance Documents, White House (Oct. 9, 2019), https://
www.whitehouse.gov/presidential-actions/executive-order-promoting-rule-
law-improved-agency-guidance-documents/.
    \4\Id.
    \5\Id.
---------------------------------------------------------------------------
    S. 3412 further assists this effort by ensuring that 
regulated entities understand that guidance documents that have 
not gone through the rulemaking process do not have the force 
and effect of law. To accomplish this, the bill requires 
agencies to provide a guidance clarity statement on certain 
agency guidance, displayed on the first page of the document, 
which explains that the contents of the document do not have 
the force and effect of law, are not binding on the public, and 
are intended to only provide clarity about existing 
requirements under the law or agency policy. S. 3412 will bring 
transparency and accountability to agency guidance documents 
and ensure that Federal agencies do not utilize non-binding 
guidance as de facto regulations.

                        III. LEGISLATIVE HISTORY

    Senator James Lankford (R-OK) introduced S. 3412, the 
Guidance Clarity Act of 2020, on March 5, 2020. The bill was 
referred to the Committee on Homeland Security and Governmental 
Affairs.
    The Committee considered S. 3412 at a business meeting on 
March 11, 2020. The bill was ordered reported favorably en bloc 
by voice vote. Senators Johnson, Portman, Lankford, Romney, 
Scott, Enzi, Hawley, Peters, Carper, Hassan, Harris, Sinema and 
Rosen were present for the vote.

        IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED

Section 1. Short title

    This section provides that the short title of the bill is 
the ``Guidance Clarity Act of 2020.''

Section 2. Guidance clarity statement required

    This section defines the terms ``agency'', ``rule'', and 
``guidance''. It also requires that certain agency guidance 
documents contain a disclaimer on the first page that the 
contents of the document do not have the force and effect of 
law or bind the public in any way, and that the document is 
only intended to provide the public with clarity regarding 
existing requirements under the law.

                   V. EVALUATION OF REGULATORY IMPACT

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATES

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, November 10, 2020.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 3412, the Guidance 
Clarity Act of 2020.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

    
    

    S. 3412 would require federal agencies to include text in 
their guidance documents to clarify that such guidance is not 
legally binding. Guidance documents typically explain how 
regulations are interpreted by the agency but do not carry the 
force of law. Agencies disseminate guidance to the public in 
memorandums, notices, bulletins, directives, news releases, 
letters, blog posts, or speeches.
    CBO expects that placing a clarifying statement in each 
guidance document would not significantly increase agencies' 
administrative costs. CBO estimates that the administrative 
expenses associated with implementing S. 3412 would cost less 
than $500,000 over the 2021-2025 period; any spending would be 
subject to the availability of appropriated funds.
    Enacting S. 3412 could affect direct spending by some 
agencies that are allowed to use fees, receipts from the sale 
of goods, and other collections to cover operating costs. CBO 
estimates that any net changes in direct spending by those 
agencies would be negligible because most of them can adjust 
amounts collected to reflect changes in operating costs.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was reviewed by H. Samuel Papenfuss, 
Deputy Director of Budget Analysis.

       VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    Because S. 3412 would not repeal or amend any provision of 
current law, it would make no changes in existing law within 
the meaning of clauses (a) and (b) of paragraph 12 of rule XXVI 
of the Standing Rules of the Senate.