HR-2409-119
Placed on the Union Calendar, Calendar No. 490.
Sponsored by Eric Burlison (R-MO)
What it does
This bill would require federal agencies to place a standard disclaimer statement on the first page of guidance documents issued under a specific exemption from notice-and-comment rulemaking. The statement would clarify that the guidance does not carry the force of law and does not bind the public or the agency. OMB would be required to issue implementing guidance within 90 days of enactment, and the labeling requirement would take effect 30 days after that.
Who benefits
Businesses, individuals, and organizations that interact with federal agency guidance documents, who would gain clearer notice about which agency statements are legally binding versus informal interpretation. Regulated industries and their attorneys who currently must assess whether guidance functions as de facto binding rules would benefit from clearer signaling. Advocacy groups concerned about agencies using guidance to bypass formal rulemaking would see this as reinforcing that distinction.
Who is hurt
Federal agencies would bear modest administrative costs to review and relabel guidance documents and to comply with new OMB implementation requirements. Agency staff who rely on guidance to achieve consistent enforcement outcomes may find that the disclaimer emboldens regulated parties to disregard or challenge guidance in practice, even though the disclaimer does not change existing law on guidance's legal status.
Supporters argue
Supporters argue that agencies have increasingly used informal guidance documents to functionally regulate behavior without going through notice-and-comment rulemaking, and that a clear disclaimer helps the public understand when a document is not legally binding. They contend this transparency measure imposes minimal cost while reinforcing accountability and the rule of law by preventing agencies from blurring the line between guidance and enforceable regulation.
Opponents argue
Opponents argue that agencies already operate under existing legal doctrine distinguishing guidance from binding rules, making this disclaimer requirement largely symbolic and an unnecessary compliance burden. They contend that regulated parties may use the disclaimer as a pretext to ignore reasonable agency interpretations of complex statutes, potentially undermining consistent enforcement and increasing confusion rather than reducing it.
Constitutional context
This bill implements the existing statutory distinction in the Administrative Procedure Act (5 U.S.C. 553(b)(4)(A)) between legislative rules requiring notice-and-comment and general statements of policy or interpretive guidance, a distinction courts have long recognized without disturbing agency structure or separation of powers.
Checks and balances
Congress directs executive agencies to adopt a disclosure practice through OMB coordination, but does not alter any agency's substantive authority, and courts retain their existing role in determining whether a given guidance document functions as a binding rule despite its label.
Historical precedent
Similar guidance-transparency requirements have appeared in past OMB Good Guidance Practices memoranda and in bills like the Guidance Out Of Darkness (GOOD) Act proposals, though none has been enacted as a standalone statute of this kind.