Guidance Clarity Act of 2021

Floor Speech

Date: Nov. 14, 2022
Location: Washington, DC

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. 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.