[Senate Report 118-19]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 58
118th Congress     }                                     {      Report
                                 SENATE
 1st Session       }                                     {      118-19
_______________________________________________________________________

                                     



                      GUIDANCE CLARITY ACT OF 2023

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                 S. 108

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






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                  May 9, 2023.--Ordered to be printed

                             _________
                              
                 U.S. GOVERNMENT PUBLISHING OFFICE
                 
39-010                   WASHINGTON : 2023





















        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

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

                   David M. Weinberg, Staff Director
                    Zachary I. Schram, Chief Counsel
            Lena C. Chang, Director of Governmental Affairs
              Chelsea A. Davis, Professional Staff Member
           William E. Henderson III, Minority Staff Director
              Christina N. Salazar, Minority Chief Counsel
                  Andrew J. Hopkins, Minority Counsel
                     Laura W. Kilbride, Chief Clerk


















                                                       Calendar No. 58
118th Congress     }                                     {      Report
                                 SENATE
 1st Session       }                                     {      118-19

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



 
                      GUIDANCE CLARITY ACT OF 2023

                                _______
                                

                  May 9, 2023.--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. 108]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 108) 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.......................... 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. 108, the Guidance Clarity Act of 2023, would require 
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.\1\
---------------------------------------------------------------------------
    \1\On July 14, 2021, the Committee approved S. 533, the Guidance 
Clarity Act of 2021. That bill is substantially similar to S. 108. 
Accordingly, this committee report is in many respects similar to the 
committee report for S. 533. See S. Rep. No. 117-95.
---------------------------------------------------------------------------
    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.''\2\ Agency guidance 
documents can take the form of ``policy statements, manuals, 
bulletins, advisories, and more.''\3\
---------------------------------------------------------------------------
    \2\Office of Information and Regulatory Affairs, Memorandum for 
Regulatory Policy Officers at Executive Departments and Agencies and 
Managing and Executive Directors of Certain Agencies and Commissions 
(OMB Memo M-20-02) (Oct. 31, 2019).
    \3\Id.
---------------------------------------------------------------------------
    S. 108 would further assist 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. 108 would bring 
transparency and accountability to agency guidance documents 
and ensure federal agencies do not utilize nonbinding guidance 
as de facto regulations. The bill requires OMB to issue 
guidance on the implementation of this bill within 90 days of 
enactment.

                        III. LEGISLATIVE HISTORY

    Senator James Lankford (R-OK) introduced S. 108, the 
Guidance Clarity Act of 2023, on January 26, 2023, with 
original cosponsors Senators Kyrsten Sinema (I-AZ), Ron Johnson 
(R-WI), James Risch (R-ID), and Mike Braun (R-IN). The bill was 
referred to the Committee on Homeland Security and Governmental 
Affairs.
    The Committee considered S. 108 at a business meeting on 
March 29, 2023. At the business meeting, the bill was ordered 
reported favorably by roll call vote of 12 yeas to 0 nays, with 
Senators Peters, Hassan, Sinema, Rosen, Padilla, Ossoff, 
Blumenthal, Paul, Lankford, Romney, Scott, and Hawley voting in 
the affirmative, and with Senators Carper, Johnson, and 
Marshall voting yea by proxy, for the record only.

        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 2023.''

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


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    S. 108 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. 108 would cost less 
than $500,000 over the 2023-2028 period; any spending would be 
subject to the availability of appropriated funds.
    Enacting S. 108 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.
                                         Phillip L. Swagel,
                             Director, Congressional Budget Office.

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

    Because S. 108 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]