Guidance and rulemaking have important, but distinct, roles at agencies across the federal government. Regrettably, over the last few years there has been a hazy distinction between guidance and rule. Today, Congressman Blaine Luetkemeyer (MO-03) introduced the Guidance Clarity Act and released the following statement:

“Across the federal bureaucracy, the application of guidance has been abused through so-called ‘regulation by enforcement.’ Our government prides itself on a transparent system of checks and balances, yet many agencies have used guidance in lieu of following the established rulemaking process to regulate industries. My bill will address the vast uncertainty surrounding the unique role of guidance in all federal agencies, ensuring small businesses and other regulated entities fully understand the rules they are subject to.”

Background: Guidance documents are intended to clarify an agency’s policy or interpretation of a regulation but do not carry the weight of finalized rule or law. The official rulemaking process includes numerous steps that must be taken before final enactment. These steps can include public notice and comment, submission to Congress pursuant to the Congressional Review Act, and additional provisions to ensure the input of all stakeholders is included in the formation of a rule. Guidance documents skip over many of these checks and balances and can be published without review or comment.

The Guidance Clarity Act will require all federal agencies to include a guidance clarity statement that states the guidance is not issued in accordance with the rule-making process and therefore is not legally binding.

For the full text of the Guidance Clarity Act please click here.

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