[Senate Report 115-271]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 448
115th Congress      }                                    {      Report
                                 SENATE
 2d Session         }                                    {     115-271
_______________________________________________________________________

                                     


                      GUIDANCE OUT OF DARKNESS ACT

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 2296

            TO INCREASE ACCESS TO AGENCY GUIDANCE DOCUMENTS










[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]













                  June 7, 2018.--Ordered to be printed

                                  ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

79-010                         WASHINGTON : 2018 

























        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming             MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota            KAMALA D. HARRIS, California
STEVE DAINES, Montana                DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
                   Satya P. Thallam, Chief Economist
               Margaret E. Daum, Minority Staff Director
               Stacia M. Cardille, Minority Chief Counsel
       Charles A. Moskowitz, Minority Senior Legislative Counsel
                 Katherine C. Sybenga, Minority Counsel
                     Laura W. Kilbride, Chief Clerk


















                                                      Calendar No. 448
115th Congress      }                                    {      Report
                                 SENATE
 2d Session         }                                    {     115-271

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



 
                      GUIDANCE OUT OF DARKNESS ACT

                                _______
                                

                  June 7, 2018.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 2296]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 2296) to increase 
access to agency guidance documents, reports favorably with an 
amendment in the nature of a substitute, and recommends that 
the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
 IV. Section-by-Section Analysis......................................4
  V. Evaluation of Regulatory Impact..................................4
 VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Bill, as Reported............5

                         I. PURPOSE AND SUMMARY

    S. 2296, the Guidance out of Darkness, or ``GOOD'' Act, 
seeks to provide greater transparency and accountability of 
guidance documents, which agencies use to provide regulated 
entities and the public with assistance in interpreting 
existing law and understanding agency policies. The bill 
requires agencies to post all guidance--including items such as 
memos, ``Dear Colleague'' letters, bulletins, directives, or 
anything that can be considered a policy statement or 
interpretation--on the website regulations.gov and publish a 
hyperlink on the internet website of the agency that provides 
access to the guidance documents.

                II. BACKGROUND AND NEED FOR LEGISLATION

    Agency guidance documents serve four primary purposes: (1) 
explaining new regulations; (2) responding to stakeholder 
questions; (3) clarifying existing policies; and (4) sharing 
leadership priorities and initiatives.\1\ Some have raised 
concerns about agencies issuing guidance when they should 
undertake rulemaking and some regulatory experts have observed 
that ``no one actually knows how many guidance documents exist, 
or how to find them all.''\2\ Hence some observers have used 
the term ``regulatory dark matter,'' to refer to the Federal 
administrative policymaking that occurs through guidance 
documents.\3\ This bill seeks to remedy that by providing 
greater transparency and accountability of guidance documents.
---------------------------------------------------------------------------
    \1\Government Accountability Office, Guidance Documents from 
Federal Agencies, GAO-15-368 (May 18, 2015).
    \2\Paul Noe, Shining the Light on Regulatory Dark Matter: Due 
Process and Management for Agency Guidance Documents, Am. Forest & 
Paper Ass'n (Feb. 6, 2018), http://www.afandpa.org/media/blog/bloga/
2018/02/06/shining-the-light-on-regulatory-dark-matter-due-process-and-
management-for-agency-guidance-documents.
    \3\This term was first coined by Clyde Wayne Crews Jr. See Clyde 
Wayne Crews, Mapping Washington's Lawlessness: A Preliminary Inventory 
of ``Regulatory Dark Matter,'' Competitive Enter. Inst. (Dec. 9, 2015), 
https://cei.org/content/mapping-washington%E2%80%99s-lawlessness 
(citing Mathew Fancis, First Planck Results: The Universe is Still 
Weird and Interesting, Ars Technica (Mar. 21, 2013) (Astrophysicists 
have concluded that ordinary visible matter . . . make[s] up only a 
tiny fraction of the universe . . . Instead, dark matter and dark 
energy make up most of the universe, rendering the bulk of existence 
beyond our ability to directly observe)).
---------------------------------------------------------------------------
    In 1997, the Food and Drug Administration (FDA) created an 
agency policy regarding good guidance practices.\4\ Later that 
year, Congress mandated certain aspects of the FDA's good 
guidance practices through the Food and Drug Administration 
Modernization Act of 1997 (FDAMA).\5\ A decade later, the 
Office of Management and Budget (OMB) recognized the public 
concern regarding access to guidance documents and a lack of a 
formal process and issued government-wide ``Good Guidance 
Practices.''\6\ The OMB Good Guidance Practices bulletin 
established policies and procedures for all departments and 
agencies in regards to the development, issuance, and use of 
``significant guidance documents.''\7\
---------------------------------------------------------------------------
    \4\Paul R. Noe & John D. Graham, Due Process and Management for 
Guidance Documents: Good Governance Long Overdue, 25 Yale J. on Reg. 
103 (2008), https://regproject.org/wp-content/uploads/Paul-Noe-Due-
Process-and-Management-for-Guidance-Documents.pdf.
    \5\Id.
    \6\Id.
    \7\Off. Of Mgmt. & Budget, Exec. Off. Of the President, OMB 
Memorandum M-07-07, Issuance of OMB's ``Final Bulletin for Agency Good 
Guidance Practices'' (Jan. 18, 2007), https://www.whitehouse.gov/sites/
whitehouse.gov/files/omb/memoranda/2007/m07-07.pdf (The bulletin 
defines this term as ``a guidance document disseminated to regulated 
entities or the general public that may reasonably be anticipated to: 
(i) Lead to an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; or (ii) Create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency; or (iii) 
Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (iv) Raise novel legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles set forth 
in Executive Order 12866, as further amended.'').
---------------------------------------------------------------------------
    The bulletin stated that as the scope and complexity of 
regulatory programs have grown, so has the issuance of guidance 
documents.\8\ With the increase in the usage of guidance 
documents, OMB determined that ``clear and consistent agency 
practices for developing, issuing, and using guidance 
documents'' were necessary.\9\ The bulletin goes on to state 
that ``[w]ell-designed guidance documents serve many important 
or even critical functions''\10\ including in providing 
assistance in interpreting existing law or providing greater 
clarity through a policy statement.\11\ However, not all 
guidance is well-designed nor does all guidance receive the 
careful consideration under consistent procedures for 
regulatory development and review and therefore the bulletin 
established general policies and procedures for developing, 
issuing, and using significant guidance.\12\
---------------------------------------------------------------------------
    \8\Id.
    \9\Id. at 1.
    \10\Id. at 2 (citing Off. Of Mgmt. & Budget, Exec. Off. Of the 
President, Stimulating Smarter Regulation: 2002 Report to Congress on 
the Costs and Benefits of Regulations and Unfunded Mandates on State, 
Local and Tribal Entities, 72-74 (2002)).
    \11\Id.
    \12\Id.
---------------------------------------------------------------------------
    One procedure in particular, to aid in public access to the 
development and issuance of significant guidance documents, 
established that agencies would maintain a current electronic 
list of all significant guidance documents on their agency 
websites, within 30 days of issuance.\13\ The agency list would 
be searchable and include the name of the guidance document, 
the docket number, and the issuance and revision dates.\14\
---------------------------------------------------------------------------
    \13\Id.
    \14\Id.
---------------------------------------------------------------------------
    In March 2016, the U.S. Government Accountability Office 
(GAO) examined opportunities to enhance transparency and 
oversight of the rulemaking process.\15\ GAO stated ``concerns 
have been raised about the level of oversight for agencies' 
guidance, whether agencies seek feedback from affected parties 
on guidance, and how to ensure that agencies do not issue 
guidance when they should undertake rulemaking.''\16\ GAO found 
that a sample of departments varied in the degree to which they 
complied with OMB's requirements for significant guidance.\17\ 
As agencies continue to issue guidance, processes to promote 
transparency and accountability of departments and agencies are 
integral to the public debate.
---------------------------------------------------------------------------
    \15\U.S. Gov't Accountability Off., GAO-16-505T, Federal 
Rulemaking: Opportunities Remain for OMB to Improve the Transparency of 
Rulemaking Processes (2016), https://www.gao.gov/assets/680/676081.pdf.
    \16\Id.
    \17\Id.
---------------------------------------------------------------------------
    Regulated entities, Congress and the government oversight 
community remain uncertain of the breadth of existing guidance 
documents. This uncertainty can have real effects on regulated 
parties.
    S. 2296 seeks to establish a baseline transparency standard 
for guidance, broadly defined, which will facilitate more 
accountability. In turn, greater accountability and 
transparency will inform the public, while also providing a 
necessary check on regulatory agencies. As one regulatory 
expert stated, ``[r]equiring vastly more disclosure, ensuring 
that federal agencies post all guidance documents online is a 
sensible and essential step to beginning to hold federal 
agencies accountable for their actions.''\18\
---------------------------------------------------------------------------
    \18\Clyde Wayne Crews, Wayne Crews Responds to GOOD Act, 
Competitive Enter. Inst. (Jan. 11, 2018), https://cei.org/content/
wayne-crews-responds-good-act.
---------------------------------------------------------------------------

                        III. LEGISLATIVE HISTORY

    Chairman Ron Johnson (R-WI) introduced S. 2296 on January 
11, 2018. Senators James Lankford (R-OK) and Joni Ernst (R-IA) 
later joined as cosponsors. The bill was referred to the 
Committee on Homeland Security and Governmental Affairs. The 
Committee considered S. 2296 at a February 14, 2018 business 
meeting.
    During the business meeting, Chairman Johnson offered an 
amendment in the nature of a substitute which was adopted by 
voice vote en bloc as modified. The amendment clarified the 
definition of guidance and also specified the manner in which 
guidance documents would be posted to a central website. 
Senators present for the vote were Johnson, Portman, Paul, 
Lankford, Enzi, Hoeven, Daines, McCaskill, Heitkamp, Peters, 
Hassan, Harris, and Jones.
    The Committee ordered S. 2296 as amended reported favorably 
en bloc on February 14, 2018, by voice vote. Senators present 
for the vote were Johnson, Portman, Lankford, Enzi, Hoeven, 
Daines, McCaskill, Heitkamp, Peters, Hassan, Harris, and Jones.

        IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED

Section 1. Short title

    This section establishes the short title of the bill as the 
``Guidance Out Of Darkness Act'' or the ``GOOD Act.''

Section 2. Definitions

    This section defines ``agency'' as those defined under 
section 551 of title 5 of United States Code.
    This section also defines ``guidance document'' as an 
agency statement of general applicability, other than a rule, 
that does not have the force or effect of law; and that is 
designated by an agency official as setting forth a policy on 
statutory, regulatory, or technical issue, or an interpretation 
of a statutory or regulatory issue. Such a document may include 
a memorandum; a notice; a bulletin; a directive; a news 
release; a letter; a blog post; a no-action letter; and 
combination thereof.
    This section also states that the term ``guidance 
document'' shall be construed broadly to effectuate the purpose 
and intent of the bill, and shall not be limited to the 
illustrative list of documents put forward in Section 2(A)(ii).

Section 3. Publication of guidance documents on the Internet

    This section requires all guidance documents published by 
an agency to be published in a single location on the Internet 
website under section 206(d) of the E-Government Act of 2002 
(44 U.S.C. 3501 note)--commonly referred to as regulations.gov. 
Each agency must publish a hyperlink on the Internet website of 
the agency that provides access to the guidance documents. 
Agencies must publish the guidance documents in accordance with 
this bill on the date on which an agency issues the guidance 
document.
    This section also requires each agency to publish, no later 
than 180 days after the date of enactment, and in accordance 
with requirements of the bill, any guidance document in effect 
on that date.
    This section also requires agencies to maintain information 
on the same Internet website concerning rescinded guidance.

                   V. EVALUATION OF REGULATORY IMPACT

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would impose no costs on 
state, local, or tribal governments.

             VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 26, 2018.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2296, 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.

S. 2296--GOOD Act

    S. 2296 would amend federal law to 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 and to promote open and transparent 
government. According to the Government Accountability Office, 
many agencies already provide guidance documents to the public 
using websites, email, meetings, social media, mass media, and 
newsletters. Thus, CBO estimates that implementing the bill 
would have no significant cost.
    Enacting S. 2296 could affect direct spending by some 
agencies because they are authorized to use receipts from the 
sale of goods, fees, and other collections to cover operating 
costs. Therefore, pay-as-you-go procedures apply. Because most 
agencies can make adjustments to the amounts collected as 
operating costs change, CBO estimates any net changes in direct 
spending by those agencies would be insignificant. Enacting the 
bill would not affect revenues.
    CBO estimates that enacting S. 2296 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    S. 2296 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

       VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    Because S. 2296 would not repeal or amend any provision of 
current law, it would make no changes in existing law within 
the meaning of clauses (a) and (b) of paragraph 12 of rule XXVI 
of the Standing Rules of the Senate.

                                  [all]