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Senator Lankford Introduces Bill to Clarify Federal Guidance Authority

WASHINGTON, DC – Senator James Lankford (R-OK) today introduced the Guidance Clarity Act, which clarifies that federal agency guidance documents are not legally binding. The bill requires a brief statement at the beginning of all federal agency guidance documents that clearly tells the reader the guidance does not have the force and effect of law.

“Federal agencies have previously attempted to use their guidance documents to avoid the formal rulemaking process and have treated guidance documents as if they are legally binding,” said Lankford. “With more and more bureaucracy to wade through on a daily basis, it is sometimes difficult for Americans to discern when a federal directive is a suggestion or a legal requirement. This good-government bill clarifies that guidance documents are agencies’ interpretations of how to comply with federal law, but they are not law. This bill does not change policy; it simply recognizes what courts have long held: guidance is not legally binding.”

In October 2019 the White House issued Executive Order (EO) 13891 to require transparency in how federal guidance is issued and to ensure federal agencies are not using guidance documents as vehicles for creating law out of thin air. The White House clarified how the EO should be implemented including deadlines for agencies in a follow-up memorandum. The Guidance Clarity Act would codify in law a long-held legal policy and the principles of the EO and would clarify what guidance is and what it isn’t. Rep. Blaine Luetkemeyer (R-MO) introduced the House companion bill in November 2019.

Lankford serves as Chairman of the Senate Homeland Security and Governmental Affairs Committee’s Subcommittee on Regulatory Affairs and Federal Management.