[House Report 115-972]
[From the U.S. Government Publishing Office]


115th Congress    }                                    {        Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                    {       115-972

======================================================================



 
                      GUIDANCE OUT OF DARKNESS ACT

                                _______
                                

 September 25, 2018.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

   Mr. Gowdy, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 4809]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 4809) to increase access to agency 
guidance documents, having considered the same, report 
favorably thereon with an amendment and recommend that the bill 
as amended do pass.

                                CONTENTS

                                                                   Page
Summary and Purpose of the Legislation...........................     3
Background and Need for Legislation..............................     3
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     5
Statement of General Performance Goals and Objectives............     5
Legislative History..............................................     5
Committee Consideration..........................................     5
Roll Call Votes..................................................     5
Explanation of Amendments........................................     5
Application of Law to the Legislative Branch.....................     5
Duplication of Federal Programs..................................     6
Disclosure of Directed Rule Makings..............................     6
Federal Advisory Committee Act...................................     6
Unfunded Mandates Statement......................................     6
Earmark Identification...........................................     6
Committee Estimate...............................................     6
New Budget Authority and Congressional Budget Office Cost 
  Estimate.......................................................     6
Section-by-Section Analysis......................................     7
Changes in Existing Law Made by the Bill, as Reported............     8
Additional Views.................................................     9

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Guidance Out Of Darkness Act'' or the 
``GOOD Act''.

SEC. 2. PUBLICATION OF GUIDANCE DOCUMENTS ON THE INTERNET.

  (a) In General.--On the date on which an agency issues a guidance 
document, the head of the agency shall publish the guidance document in 
accordance with subsection (c).
  (b) Previously Issued Guidance Documents.--With respect to any 
guidance document issued by an agency before the effective date of this 
Act that is in effect on the effective date of this Act, the head of 
each agency shall meet the requirements of subsection (c).
  (c) Single Location.--The head of each agency shall:
          (1) Publish any guidance document issued by the agency in a 
        single location on the publicly accessible Federal Government 
        website (commonly known as regulations.gov) described under 
        section 206(d) of the E-Government Act of 2002 (Public Law 107-
        347; 44 U.S.C. 3501 note).
          (2) With respect to a guidance document issued by an agency, 
        include a hyperlink on the online portal of the agency that 
        provides access to the guidance document published pursuant to 
        paragraph (1).
          (3) Ensure that any guidance document published pursuant to 
        paragraph (1) is--
                  (A) clearly identified as a guidance document;
                  (B) sorted into subcategories, as appropriate;
                  (C) published in a machine-readable and open format; 
                and
                  (D) searchable.
          (4) Ensure that any hyperlink described in paragraph (2) be 
        prominently displayed on the online portal of the agency.
  (d) Rescinded Guidance Documents.--Not later than the date on which a 
guidance document issued by an agency is rescinded, the head of the 
agency shall on the Federal Government website described in subsection 
(c)(1)--
          (1) maintain a copy of the rescinded guidance document; and
          (2) indicate--
                  (A) that the guidance document is rescinded; and
                  (B) the date on which the guidance document was 
                rescinded.

SEC. 3. RULE OF CONSTRUCTION.

  In this Act, the term ``guidance document'' shall be construed 
broadly.

SEC. 4. DEFINITIONS.

  In this Act:
          (1) Agency.--The term ``agency'' has the meaning given that 
        term in section 551 of title 5, United States Code.
          (2) Guidance document.--The term ``guidance document''--
                  (A) means an agency statement of general 
                applicability (other than a rule that has the force and 
                effect of law promulgated in accordance with the notice 
                and public procedure under section 553 of title 5, 
                United States Code) that--
                          (i) does not have the force and effect of 
                        law; and
                          (ii) sets forth--
                                  (I) an agency decision or a policy on 
                                a statutory, regulatory, or technical 
                                issue; or
                                  (II) an interpretation of a statutory 
                                or regulatory issue; and
                  (B) may include any of the following:
                          (i) A memorandum.
                          (ii) A notice.
                          (iii) A bulletin.
                          (iv) A directive.
                          (v) A news release.
                          (vi) A letter.
                          (vii) A blog post.
                          (viii) A no-action letter.
                          (ix) A speech by an agency official.
                          (x) An advisory.
                          (xi) A manual.
                          (xii) A circular.
                          (xiii) Any combination of the items described 
                        in clauses (i) through (xii).
          (3) Rule.--The term ``rule'' has the meaning given that term 
        in section 551 of title 5, United States Code.

SEC. 5. EFFECTIVE DATE.

  This Act shall take effect on the date that is 180 days after the 
date of the enactment of this Act.

                   SUMMARY AND PURPOSE OF LEGISLATION

    H.R. 4809, the Guidance Out of Darkness Act or GOOD Act, 
requires agencies to post guidance documents online in one 
central location, thereby increasing transparency and access to 
the documents. Specifically, H.R. 4809 imposes a new 
requirement that agencies collect all current guidance 
documents and publish the documents on a federal website. The 
GOOD Act defines the term ``guidance document'' broadly by 
including any agency statement of general applicability, other 
than a rule which has gone through the notice and public 
procedure contained in section 553 of Title 5 of the United 
States Code, that constitutes an agency decision, policy, or 
interpretation on a statutory, regulatory, or technical issue. 
This definition is consistent with how the term has been 
defined in long-standing executive directives, such as the 
Office of Management and Budget's Good Guidance Bulletin.\1\ 
The Act also contains a non-exhaustive list of the forms 
guidance documents may take, such as memoranda, notices, 
bulletins, advisories, manuals, and circulars.
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    \1\See Office of Mgmt. & Budget, Exec. Office of the President, OMB 
M-07-07, Memorandum for the Heads of Executive Departments and Agencies 
(2007), available at https://www.whitehouse.gov/sites/whitehouse.gov/
files/omb/memoranda/2007/m07-07.pdf.
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                  BACKGROUND AND NEED FOR LEGISLATION

    Under current law, agencies are required to proactively 
disclose, ``statements of policy and interpretations which have 
been adopted by the agency and are not published in the Federal 
Register.''\2\ These statements of policy and interpretations 
are more commonly known as ``guidance documents,''\3\ and 
constitute agency statements intended to inform the public of 
how an agency interprets the law or intends to exercise its 
discretion.\4\ Despite this obligation to publish, current law 
lacks guidelines or requirements for how agencies must publish 
this information. Agencies currently use a variety of methods 
to disseminate their guidance documents, including websites, e-
mail, listservs, social media, newsletters, and third-party 
entities and services, among other methods.\5\
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    \2\5 U.S.C. Sec. 552(a)(2)(B).
    \3\Jared P. Cole & Todd Garvey, Cong. Research Serv., R44468, 
General Policy Statements: Legal Overview 1 (2016); Jessica Mantel, 
Procedural Safeguards for Agency Guidance, 61 Admin. L. Rev. 343, 350 
(2009).
    \4\Mantel, supra note 4, at 350.
    \5\See U.S. Gov't Accountability Office, GAO-15-368, Regulatory 
Guidance Processes: Selected Departments Could Strengthen Internal 
Control and Dissemination Practices 31 (2015).
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    This variation in publication methods can burden entities 
seeking guidance, particularly small entities, which may lack 
the resources to hire legal counsel or compliance staff.\6\ 
This burden is augmented by the ubiquity of guidance documents 
in federal regulatory practice. Scholars have described their 
scale of use as ``massive''\7\ and ``oceanic.''\8\ In some 
agencies, guidance documents may account for as much as 90 
percent of regulatory rules.\9\ However, there is no 
comprehensive compilation of guidance documents,\10\ making one 
of the most frequently used regulatory tools also one of the 
least transparent.
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    \6\See Nat'l Fed'n of Indep. Bus., the Fourth Branch & Underground 
Regulations 5 (2015), available at https://www.nfib.com/pdfs/fourth-
branch-underground-regulations-nfib.pdf.
    \7\Mantel, supra note 4, at 353.
    \8\Nicholas R. Parrillo, Admin. Conference of the United States, 
Federal Agency Guidance: An Institutional Perspective 35 (2017), 
available at https://www.acus.gov/sites/ default/files/documents/
parrillo-agency-guidance-final-report.pdf.
    \9\See Stephen M. Johnson, The Internet Changes Everything: 
Revolutionizing Public Participation and Access to Government 
Information Through the Internet, 50 Admin. L. Rev. 277, 284 (1998).
    \10\Parrillo, supra note 9, at 35.
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    In late 2017, the Committee undertook an oversight project, 
requesting information on guidance documents issued in the 
prior 10 years from 46 agencies. The Committee then held a 
hearing on March 14, 2018, which discussed findings from the 
project. As of that date, agencies had produced information on 
nearly 13,000 guidance documents. This figure--which does not 
include responses that came in after the hearing--shows the 
prodigious rate at which guidance documents are used by federal 
agencies.
    H.R. 4809 alleviates the aforementioned burden on regulated 
entities and also addresses the known unknown that is the 
precise scope of agency use of guidance documents. The Act 
requires agencies to publish guidance documents in one central 
location, similar to how agencies currently publish regulations 
through the Federal Register. Upon the effective date, agencies 
must publish all guidance documents in effect at that time and 
commence publishing new guidance documents on the same day they 
are issued.
    Centralized publishing will make searching for guidance 
documents more efficient, while also allowing for transparency 
about the number and substance of guidance documents in effect. 
This latter purpose is achieved both through centralized 
publishing and the requirements for publishing. In complying 
with H.R. 4809, agencies must publish their guidance documents 
in a machine-readable and searchable format, allowing regulated 
entities and interested parties to more easily find and review 
information on guidance documents. Agencies must also store 
copies of rescinded guidance documents on the federal 
government website, thereby preserving prior agency policies 
for the public to examine.
    Increased transparency through public involvement is a 
principal supported by the Administrative Conference of the 
United States, a governmental entity which brings together 
representatives from government, academia, and the private 
sector to find ways to improve the regulatory system. In 
December 2017, the Conference recommended, ``All written policy 
statements affecting the interests of regulated parties, 
regulatory beneficiaries, or other interested parties should be 
promptly made available electronically and indexed, in a matter 
in which they may readily be found.''\11\ The GOOD Act 
implements this recommendation.
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    \11\Admin. Conference of the United States, Administrative 
Conference Recommendation 2017-5 at 11 (2017), available at https://
www.acus.gov/sites/default/files/documents/Recommendation%202017-
5%20%28Agency%20Guidance%20Through%20Policy%20Statements %29_2.pdf.
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  STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the previous section.

         STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goal or objective of this bill is to increase access to agency 
guidance documents.

                          LEGISLATIVE HISTORY

    On January 16, 2018, Representative Mark Walker (R-NC) 
introduced H.R. 4809, the Guidance Out of Darkness Act, or the 
GOOD Act. H.R. 4809 was referred to the Committee on Oversight 
and Government Reform. The Committee considered H.R. 4809 at a 
business meeting on March 15, 2018, and ordered the bill 
favorably reported, as amended, by voice vote.
    Senator Ron Johnson (R-WI) introduced S. 2296, the Senate 
companion to H.R. 4809, on January 11, 2018. The Senate 
Committee on Homeland Security and Governmental Affairs 
considered S. 2296 at a business meeting on February 14, 2018, 
and ordered the bill favorably reported, as amended, by voice 
vote.

                        COMMITTEE CONSIDERATION

    On March 15, 2018, the Committee met in open session and, 
with a quorum being present, ordered the bill favorably 
reported, as amended, by voice vote.

                            ROLL CALL VOTES

    There were no roll call votes requested or conducted during 
Committee consideration of H.R. 4809.

                       EXPLANATION OF AMENDMENTS

    During Committee consideration of the bill, Representative 
Mark Walker (R-NC) offered an amendment in the nature of a 
substitute. The amendment expands and clarifies the definition 
of ``guidance document,'' defines additional necessary terms, 
adds a rule of construction stating that the term ``guidance 
document'' should be construed broadly, changes the location 
where agencies must publish their guidance documents, requires 
that guidance documents be published in a machine-readable open 
format and be searchable, and makes additional technical 
changes throughout the bill. The Walker amendment was adopted 
by voice vote.

              APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill is to increase access to agency guidance documents. 
As such, this bill does not relate to employment or access to 
public services and accommodations.

                    DUPLICATION OF FEDERAL PROGRAMS.

    In accordance with clause 2(c)(5) of rule XIII no provision 
of this bill establishes or reauthorizes a program of the 
Federal Government known to be duplicative of another Federal 
program, a program that was included in any report from the 
Government Accountability Office to Congress pursuant to 
section 21 of Public Law 111-139, or a program related to a 
program identified in the most recent Catalog of Federal 
Domestic Assistance.

                  DISCLOSURE OF DIRECTED RULE MAKINGS

    This bill does not direct the completion of any specific 
rule makings within the meaning of section 551 of title 5, 
United States Code.

                     FEDERAL ADVISORY COMMITTEE ACT

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of Section 5(b) of the appendix to title 5, 
United States Code.

                      UNFUNDED MANDATES STATEMENT

    Pursuant to section 423 of the Congressional Budget and 
Impoundment Control Act (Pub. L. 113-67) the Committee has 
included a letter received from the Congressional Budget Office 
below.

                         EARMARK IDENTIFICATION

    This bill does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI of the House of Representatives.

                           COMMITTEE ESTIMATE

    Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of 
the House of Representatives, the Committee includes below a 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.

   NEW BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    Pursuant to clause 3(c)(3) of rule XIII of the House of 
Representatives, the cost estimate prepared by the 
Congressional Budget Office and submitted pursuant to section 
402 of the Congressional Budget Act of 1974 is as follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, April 10, 2018.
Hon. Trey Gowdy,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4809, the GOOD 
Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 4809--GOOD Act

    H.R. 4809 would require agencies to post their regulatory 
guidance documents online. Typically, such documents explain 
how regulations are interpreted by the agency but are not 
themselves legally binding. Agencies often disseminate such 
guidance to the public in memorandums, notices, bulletins, 
directives, news releases, letters, blog posts, or speeches.
    Federal policies require agencies to post important 
information online to promote open and transparent government. 
According to the Government Accountability Office, many 
agencies already provide guidance documents using websites, 
email, meetings, social media, mass media, and newsletters. 
Thus, CBO estimates that implementing the bill would have no 
significant cost.
    Enacting H.R. 4809 could affect direct spending by agencies 
that use fees, receipts from the sale of goods, and other 
collections to cover operating costs. Therefore, pay-as-you-go 
procedures apply. Because most agencies can adjust the amounts 
collected as their operating costs change, CBO estimates that 
any net changes in direct spending by those agencies would be 
insignificant. Enacting the bill would not affect revenues.
    CBO estimates that enacting H.R. 4809 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    H.R. 4809 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    On March 26, 2018, CBO transmitted a cost estimate for S. 
2296, the GOOD Act, as ordered reported by the Senate Committee 
on Homeland Security and Governmental Affairs on February 14, 
2018. The two pieces of legislation are similar and CBO's 
estimates of their budgetary effects are the same.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was reviewed by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    Section 1 establishes the short title of the bill.

Sec. 2. Publication of guidance documents on the Internet

    Section 2 requires each agency to publish guidance 
documents on an online portal. After the Act goes into effect 
(180 days after enactment), subsection (a) requires each agency 
to publish each new guidance document when the document is 
issued. Each agency must also publish guidance documents which 
existed before the effective date of the Act on the portal 
pursuant to subsection (b). Section 5 (relating to the 
effective date of the Act) applies to subsection (b) of this 
section by requiring publication of such preexisting guidance 
documents no later than the effective date of the Act.
    Each agency must prominently display on the home page of 
its website a link to the page on which its guidance documents 
can be found. The guidance documents must also be clearly 
identified as guidance documents, categorized appropriately, 
searchable, machine-readable, and in an open format. Open 
format means platform-independent and made available to the 
public without restrictions that would impede the reuse of that 
information.\12\
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    \12\See, e.g., 34 C.F.R. 668.6(b)(2)(ii).
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    Section 2 also requires each agency to maintain rescinded 
guidance documents on its website with the notation that the 
guidance document has been rescinded and the date on which it 
was rescinded.

Sec. 3. Rule of construction

    Section 3 makes clear that the term, guidance document, 
should be interpreted broadly, including but not limited to the 
examples provided in section 4(2)(B).

Sec. 4. Definitions

    Section 4 sets forth definitions of key terms used in the 
bill. Two terms--``agency'' and ``rule''--are defined by 
reference to the terms' existing definitions in section 551 of 
title 5, United States Code. The term ``guidance document'' is 
also defined in section 4, and a non-exhaustive list of 
examples are included. The definition of guidance document 
remains subject to section 3 of the Act.

Sec. 5. Effective date

    Section 5 establishes an effective date of the Act that is 
the date that is 180 days after the date of enactment of the 
Act.

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, this bill would not change 
existing law.

                            ADDITIONAL VIEWS

    During Committee consideration of this bill, Vice Ranking 
Member Gerry Connolly asked the bill sponsor, Rep. Mark Walker, 
if he would work with the minority to ensure the bill does not 
have unintended consequences. Specifically, Rep. Connolly cited 
a news report that quoted Senator Ron Johnson as stating:

          It would open all kinds of mischievous types of 
        guidance under the Obama Administration to outright 
        repeal. All the Trump Administration would have to do 
        is finally issue the report on a guidance, and the 
        clock would start ticking, so we have total ball 
        control on this.\1\
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    \1\Transparency Bill Could Expose More Obama-era Rules to Repeal, 
Washington Examiner (Jan. 23, 2018 (online at 
www.washingtonexaminer.com/transparency-bill-could-expose-more-obama-
era-rules-to-repeal).

    Rep. Walker agreed to work with the minority. Pursuant to 
this agreement, it is the understanding of the minority that 
when the bill is brought to the floor, language will be 
included clarifying that the bill is not intended to impact 
consideration of whether guidance is a rule for purposes of the 
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Congressional Review Act.

                                   Elijah E. Cummings,
                                           Ranking Member.

                                  [all]