Hank Johnson: “I appreciate my friend Mr. Young's amendment which establishes a 90-day compliance period for guidance documents when…”

“I appreciate my friend Mr. Young's amendment which establishes a 90-day compliance period for guidance documents when, in the underlying legislation, it makes clear that during any compliance period for guidance it is nonbinding. So I rise in opposition to this amendment which imposes an unnecessary and burdensome 90-day waiting period for agencies to issue guidance documents. Importantly, as a form of nonlegislative rule, guidance documents do not have the force of law and are not subject to the Administrative Procedure Act's notice and comment requirements. Section 104 of H.R. 5 already clarifies that these documents are not legally binding and may not be relied upon by an agency as legal grounds for agency action. This provision additionally requires agencies to make this document available to the public and provide a plain and prominent statement that the document is not legally binding. Given the requirements that already exist in current law and the additional requirements imposed by title I of this bill, it is difficult to ascertain why an additional 90-day compliance period for guidance that is not legally binding is warranted. Furthermore, in all cases, regulated entities have ample opportunity to challenge rules, including guidance, as ``arbitrary or capricious'' under the Administrative Procedure Act where an agency lacks statutory authority to issue the guidance or the guidance is otherwise legally unsound.…”