[Senate Report 117-95]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 346
117th Congress     }                                     {      Report
                                 SENATE
 2d Session        }                                     {      117-95
_______________________________________________________________________

                                     



                      GUIDANCE CLARITY ACT OF 2021

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                 S. 533

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







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                 April 27, 2022.--Ordered to be printed 
                 
                             _________
                             
                              
                 U.S. GOVERNMENT PUBLISHING OFFICE
                 
29-010                   WASHINGTON : 2022                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                   GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware           ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire         RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona              RAND PAUL, Kentucky
JACKY ROSEN, Nevada                  JAMES LANKFORD, Oklahoma
ALEX PADILLA, California             MITT ROMNEY, Utah
JON OSSOFF, Georgia                  RICK SCOTT, Florida
                                     JOSH HAWLEY, Missouri

                   David M. Weinberg, Staff Director
                    Zachary I. Schram, Chief Counsel
            Lena C. Chang, Director of Governmental Affairs
          Matthew Cornelius, Senior Professional Staff Member
                Pamela Thiessen, Minority Staff Director
            Sam J. Mulopulos, Minority Deputy Staff Director
Amanda H. Neely, Minority Director of Governmental Affairs and General 
                                Counsel
                     Laura W. Kilbride, Chief Clerk







                                                      Calendar No. 346
117th Congress     }                                     {      Report
                                 SENATE
 2d Session        }                                     {      117-95

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



 
                      GUIDANCE CLARITY ACT OF 2021

                                _______
                                

                 April 27, 2022.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 533]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 533), to require a 
guidance clarity statement on certain agency guidance, and for 
other purposes, having considered the same, reports favorably 
thereon with an amendment (in the nature of a substitute) and 
recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                    Page
  I. Purpose and Summary.............................................. 1
 II. Background and Need for the Legislation.......................... 2
III. Legislative History.............................................. 2
 IV. Section-by-Section Analysis of the Bill, as Reported............. 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. 533, the Guidance Clarity Act of 2021, requires federal 
agencies to state on the first page of guidance documents that 
the text of the document does not have the force and effect of 
law, and is intended only to provide clarity to the public 
about existing legal requirements or agency policies.
    Excluded from this requirement is guidance issued by an 
agency that is not intended to have a substantial effect on the 
behavior of regulated parties, as well as internal executive 
branch legal advice or opinions addressed to executive branch 
officials.

              II. BACKGROUND AND NEED FOR THE 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 Information & Regulatory Affairs (Oct. 31, 2019)
    \2\ Id.
---------------------------------------------------------------------------
    S. 533 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. 533 will bring 
transparency and accountability to agency guidance documents 
and ensure that federal agencies do not utilize nonbinding 
guidance as de facto regulations. S. 533 requires the Office of 
Management and Budget to issue guidance on the implementation 
of this bill within 90 days of enactment.

                        III. LEGISLATIVE HISTORY

    Senator James Lankford (R-OK) introduced S. 533, the 
Guidance Clarity Act of 2020, on March 2, 2021, with Senators 
Ron Johnson (R-WI) and James Risch (R-ID). The bill was 
referred to the Committee on Homeland Security and Governmental 
Affairs.
    The Committee considered S. 533 at a business meeting on 
July 14, 2021. During the business meeting, a substitute 
amendment was offered by Senator Lankford and Chairman Peters 
and adopted by voice vote en bloc. The amendment added language 
requiring the Director of the Office of Management and Budget 
to issue implementing guidance to agencies within 90 days after 
enactment and struck a definition detailing some forms of 
documents that could be considered ``guidance,'' so as to give 
the Administration deference in identifying and clarifying the 
types of agency documents that may constitute guidance. The 
bill, as amended, was ordered to be reported favorably by voice 
vote en bloc with Senators Peters, Hassan, Rosen, Padilla, 
Ossoff, Portman, Johnson, Lankford, Romney, Scott, and Hawley 
present.

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

Section 1--Short title

    This section establishes the short title of the bill as the 
``Guidance Clarity Act of 2021.''

Section 2--Guidance clarity statement required

    This section requires each agency to include a guidance 
clarity statement on the first page of any guidance document it 
issues. The guidance clarity statement informs the reader that 
the text is simply guidance and does not have the force and 
effect of law and is intended solely to provide the public 
information about existing legal requirements or agency 
policies. This section also requires the Office of Management 
and Budget to provide guidance on the implementation of this 
bill no later than 90 days after the bill's enactment.

                   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 ESTIMATE

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 15, 2021.
Hon. Gary Peters,
Chairman, Committee on Homeland Security and Governmental Affairs, 
        Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 533, the Guidance 
Clarity Act of 2021.
    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.

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    S. 533 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. 533 would cost less 
than $500,000 over the 2022-2026 period; any spending would be 
subject to the availability of appropriated funds.
    Enacting S. 533 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. 533 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.

                                  [all]