Guidance Clarity Act of 2021

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.

Mr. Speaker, I yield 3 minutes to the gentleman from Missouri (Mr. Luetkemeyer).

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.

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

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. 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.

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.

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. 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. Speaker, I urge passage of S. 533, and I yield back the balance of my time.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 346, S. 533.

I ask unanimous consent that the committee-reported substitute amendment be agreed to; that the bill, as amended, be considered read a third time and passed; and that the motion to reconsider be considered made and laid upon the table.

Madam Speaker, I ask unanimous consent that the ordering of the yeas and nays on the motion that the House suspend the rules and pass the bill (S. 533) to require a guidance clarity statement on certain agency guidance, and for other purposes, be vacated, to the end that the motion be considered as withdrawn.