What This Bill Does
This bill changes how Congress reviews guidance issued by non-agency entities that direct federal agency operations. It treats certain guidance documents from organizations with presidential authority the same way Congress treats official agency rules. The bill also expands the definition of what counts as "guidance" under congressional review rules.
Who It Affects
Federal agencies and non-agency entities that have authority delegated by the President and issue guidance directing agency operations. Congress members who review regulations. The public that is subject to agency guidance documents.
Key Provisions
• Guidance that directs federal agency operations and comes from an entity with presidential authority must be treated as a rule subject to congressional review (Sec. 2)
• Non-agency entities that issue such guidance must follow the same congressional review rules that federal agencies follow (Sec. 2)
• "Guidance" includes memorandums, notices, bulletins, directives, letters, no-action letters, and decisions about managing federal public lands (Sec. 3)
• Task forces or similar entities made up of agency members are now included in the definition of "Federal agency" (Sec. 3)
What Changes
Non-agency entities with delegated presidential authority that issue guidance will now be required to comply with congressional review procedures the same way federal agencies do. Guidance documents become subject to congressional oversight rules they previously may not have been subject to.
Important Definitions
"Guidance" means a statement from an agency that sets policy or interprets law but does not have the force of law, including memorandums, notices, bulletins, directives, letters, and decisions about federal public land management.
Effective Date
Not specified in bill text
II
118TH CONGRESS
1ST SESSION
S. 676
To amend sections 801 and 804 of title 5, United States Code, to include
guidance issued by non-agencies, and for other purposes.
IN THE SENATE OF THE UNITED STATES
MARCH 7, 2023
Mr. SULLIVAN (for himself, Mrs. HYDE-SMITH, Mr. DAINES, Mr. BRAUN, and
Mr. LANKFORD) introduced the following bill; which was read twice and
referred to the Committee on Homeland Security and Governmental Af-
fairs
A BILL
To amend sections 801 and 804 of title 5, United States
Code, to include guidance issued by non-agencies, and
for other purposes.
Be it enacted by the Senate and House of Representa-
1
tives of the United States of America in Congress assembled,
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SECTION 1. SHORT TITLE.
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This Act may be cited as the ‘‘Checks and Balances
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Act’’.
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SEC. 2. GUIDANCE ISSUED BY NON-AGENCIES.
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Section 801 of title 5, United States Code, is amend-
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ed by adding at the end the following:
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•S 676 IS
‘‘(h) For purposes of Congressional review under this
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chapter—
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‘‘(1) guidance that directs the operations of a
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Federal agency and is issued by an entity with au-
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thority delegated by the President shall be consid-
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ered a rule; and
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‘‘(2) the entity that issues the guidance is re-
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quired to comply with this chapter in the same man-
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ner as a Federal agency.’’.
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SEC. 3. DEFINITIONS.
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Section 804 of title 5, United States Code, is amend-
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ed—
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(1) by striking paragraph (1) and inserting the
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following:
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‘‘(1) The term ‘Federal agency’—
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‘‘(A) means any agency as that term is de-
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fined in section 551(1); and
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‘‘(B) includes a task force or similar entity
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composed of members of an agency.’’; and
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(2) by adding at the end the following:
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‘‘(4) The term ‘guidance’—
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‘‘(A) means an agency statement of gen-
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eral applicability (other than a rule that has the
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force and effect of law promulgated in accord-
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•S 676 IS
ance with the notice and comment procedures
1
under section 553) that—
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‘‘(i) does not have the force and effect
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of law; and
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‘‘(ii) is designated by an agency offi-
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cial as setting forth—
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‘‘(I) a policy on a statutory, reg-
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ulatory, personnel, or technical issue;
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or
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‘‘(II) an interpretation of a statu-
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tory or regulatory issue, including a
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personnel issue; and
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‘‘(B) may include—
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‘‘(i) a memorandum;
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‘‘(ii) a notice;
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‘‘(iii) a bulletin;
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‘‘(iv) a directive;
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‘‘(v) a letter;
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‘‘(vi) a no-action letter;
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‘‘(vii) any final agency action intended
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to impose restrictions on the management
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of Federal public land, including the with-
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drawal of Federal public land; and
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•S 676 IS
‘‘(viii) any combination of the items
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described in clauses (i) through (vii).’’.
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Æ
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