A bill on Guidance Clarity, presented by Lake Area State Representative Blaine Luetkemeyer, has now passed in the House.

The commonsense legislation requires federal agencies to include a plain language statement on guidance documents clarifying that guidance does not have the force or effect of law.

“This small but critical statement clarifies for citizens and regulators on the ground that guidance is meant to be helpful. A suggestion that can be put in place or completely ignored.  It will help regulators do their jobs more efficiently and small businesses, who lack the resources to employ teams of lawyers, continue to create jobs and grow the economy.   

Speaking on the house floor, Luetkemeyer says the regulatory guidance is an agency’s statement of policy or interpretation of a statute or regulation, and it comes in many forms.

Those include memoranda, bulletins, circulars, manuals, and a wide variety of other agency documents.

Though regulatory guidance does not have the force or effect of law, these lesser-known government documents can have significant effects on the public and can alter the behavior of regulated parties.

Watch the full remarks here: https://www.c-span.org/video/?c4982718/user-clip-guidance-clarity-act

 

 

Full story:

WASHINGTON, D.C. – Today, Congressman Blaine Luetkemeyer’s (MO-03) Guidance Clarity Act passed the House with unanimous support. The Congressman’s full remarks can be found below.

“The federal government produces hundreds of rules, regulations, and laws every year. Without the help of legal teams and consultants, individuals and small businesses cannot possibly keep up with everything coming out of Washington.

 

“The purpose of guidance is to assist those Americans in understanding rules and regulations and give them suggestions on how to adhere to all of these new regimes.

 

“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. Guidance is not backed up by law nor is it enforceable as law. It is, quite simply, a suggestion. 

 

“Unfortunately, in past years many regulators have threatened punitive action against businesses for not following guidance. That is unacceptable, and quite frankly, it is illegal. 

 

“To be clear, I’m not talking about businesses breaking the law or ignoring federal regulations. Guidance documents are meant to clarify or inform the public about policy topics and are not legally binding. Small businesses deserve clarity on what documents are legally binding and should not be punished for deviating from guidance documents.

 

“Regulators have no legal authority to enforce guidance, and any attempt to do so is an egregious abuse of power.

 

“On top of that, with thousands of guidance documents being produced, instead of achieving their intended goal – which is to provide clarity – they are causing even more confusion. 

 

“With some regulators enforcing guidance while others do not, small businesses and entrepreneurs are driven deeper into the regulatory maze of the federal government. 

 

“My bill is a very simple fix to that confusion. The Guidance Clarity Act ensures the first page of guidance documents includes a plain language statement declaring that guidance is not law, nor can it legally be enforced as law. 

 

“This small but critical statement clarifies for citizens and regulators on the ground that guidance is meant to be helpful. A suggestion that can be put in place or completely ignored.  It will help regulators do their jobs more efficiently and small businesses, who lack the resources to employ teams of lawyers, continue to create jobs and grow the economy.    

 

“I hope my colleagues on both sides of the aisle will agree that American small businesses have enough to worry about. They are working hard to keep their employees paid and their customers happy. They don’t have time to worry about keeping track of and abiding by agency suggestions that were never meant to be any more than just that.”

 

Background:

This commonsense legislation requires federal agencies to include a plain language statement on guidance documents clarifying that guidance does not have the force or effect of law.

 

Regulatory guidance is an agency’s statement of policy or interpretation of a statute or regulation, and it comes in many forms: memoranda, bulletins, circulars, manuals, and a wide variety of other agency documents. Though regulatory guidance does not have the force or effect of law, these lesser-known government documents can have significant effects on the public and can alter the behavior of regulated parties.

 

While guidance often plays a beneficial and important role in shaping regulatory programs and informing agency employees, guidance practices can and should be better managed to be more consistent, transparent, and ultimately accountable. In some instances, regulators have inappropriately used guidance in place of regulations or law which is an egregious abuse of power.

 

By providing a clear, plain language statement on the front of every guidance document, the bill will ensure agencies do not circumvent the official rulemaking process and provide clarity to businesses and individuals that guidance is not meant to bind the public but instead provide clarity regarding existing requirements under the law or agency policies.

 

Full bill text can be found HERE.

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