[Senate Report 116-12]
[From the U.S. Government Publishing Office]


                                                        Calendar No. 43
                                                        
116th Congress     }                                       {     Report
                                 SENATE                          
1st Session        }                                       {     116-12
_______________________________________________________________________

                                     

                                                        


                      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. 380

            TO INCREASE ACCESS TO AGENCY GUIDANCE DOCUMENTS
            
            

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



         March 25, 2019.--Ordered to be printed
                 
                 
                      _________ 
                                  
               U.S. GOVERNMENT PUBLISHING OFFICE
 89-010                 WASHINGTON : 2019                       
                 
                 
                 
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio                    GARY C. PETERS, Michigan
RAND PAUL, Kentucky                  THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma             MAGGIE HASSAN, New Hampshire
MITT ROMNEY, Utah                    KAMALA D. HARRIS, California
RICK SCOTT, Florida                  KYRSTEN SINEMA, Arizona
MICHAEL B. ENZI, Wyoming             JACKY ROSEN, Nevada
JOSH HAWLEY, Missouri

                Gabrielle D'Adamo Singer, Staff Director
                   Joseph C. Folio III, Chief Counsel
                   Satya P. Thallam, Chief Economist
               David M. Weinberg, Minority Staff Director
               Zachary I. Schram, Minority Chief Counsel
      Ashley E. Poling, Minority Director of Governmental Affairs
                     Laura W. Kilbride, Chief Clerk
                     
                     



                                                        Calendar No. 43
                                                        
116th Congress   }                                            {    Report
                                 SENATE
 1st Session     }                                            {    116-12

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



 
                      GUIDANCE OUT OF DARKNESS ACT

                                _______
                                

                 March 25, 2019.--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. 380]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 380) to increase 
access to agency guidance documents, having considered the 
same, reports favorably thereon 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 Legislation..............................2
III. Legislative History..............................................4
 IV. Section-by-Section Analysis......................................4
  V. Evaluation of Regulatory Impact..................................5
 VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Bill, as Reported............6

                         I. PURPOSE AND SUMMARY

    S. 380, 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 a central website and publish a hyperlink on 
the internet website of the agency that provides access to the 
guidance documents.\1\
---------------------------------------------------------------------------
    \1\On June 7, 2018, the Committee approved S. 2296, Guidance Out Of 
Darkness Act. That bill is substantially similar to S. 380. 
Accordingly, this committee report is in large part a reproduction of 
Chairman Johnson's committee report for S. 2296, S. Rep. No. 115-271.
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                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.\2\ 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.''\3\ Hence some observers have used 
the term ``regulatory dark matter,'' to refer to the Federal 
administrative policymaking that occurs through guidance 
documents.\4\ This bill seeks to remedy that by providing 
greater transparency and accountability of guidance documents.
---------------------------------------------------------------------------
    \2\Government Accountability Office, Guidance Documents from 
Federal Agencies, GAO-15-368 (May 18, 2015).
    \3\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.
    \4\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 Francis, 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)).
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    In 1997, the Food and Drug Administration (FDA) created an 
agency policy regarding good guidance practices.\5\ 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).\6\ 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.''\7\ 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.''\8\
---------------------------------------------------------------------------
    \5\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.
    \6\Id.
    \7\Id.
    \8\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.'').
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    The bulletin stated that as the scope and complexity of 
regulatory programs have grown, so has the issuance of guidance 
documents.\9\ 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.\10\ The bulletin goes on to state 
that ``[w]ell-designed guidance documents serve many important 
or even critical functions''\11\ including in providing 
assistance in interpreting existing law or providing greater 
clarity through a policy statement.\12\ 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.\13\
---------------------------------------------------------------------------
    \9\Id.
    \10\Id. at 1.
    \11\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)).
    \12\Id.
    \13\Id.
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    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.\14\ The agency list would 
be searchable and include the name of the guidance document, 
the docket number, and the issuance and revision dates.\15\
---------------------------------------------------------------------------
    \14\Id.
    \15\Id.
---------------------------------------------------------------------------
    In March 2016, the U.S. Government Accountability Office 
(GAO) examined opportunities to enhance transparency and 
oversight of the rulemaking process.\16\ 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.''\17\ GAO found 
that a sample of departments varied in the degree to which they 
complied with OMB's requirements for significant guidance.\18\ 
As agencies continue to issue guidance, processes to promote 
transparency and accountability of departments and agencies are 
integral to the public debate.
---------------------------------------------------------------------------
    \16\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.
    \17\Id.
    \18\Id.
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    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. 380 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.''\19\
---------------------------------------------------------------------------
    \19\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. 380 on February 
7, 2019. Senators Joni Ernst (R-IA), Kyrsten Sinema (D-AZ), 
James Lankford (R-OK), and Ted Cruz (R-TX) later joined as 
cosponsors. The bill was referred to the Committee on Homeland 
Security and Governmental Affairs. The Committee considered S. 
380 at a February 13, 2019 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, Romney, Scott, Enzi, Hawley, Peters, Carper, Hassan, 
Harris, Sinema, and Rosen.
    Senator Peters offered two amendments. The first amendment 
added an exception for certain types of documents which do not 
need to be published. The amendment was adopted by voice vote 
en bloc. Senators present for the vote were Johnson, Portman, 
Paul, Lankford, Romney, Scott, Enzi, Hawley, Peters, Carper, 
Hassan, Harris, Sinema, and Rosen.
    The second amendment requires an agency official to 
designate documents as guidance for purposes of the act, and 
removes some items from the list of examples of guidance. Both 
amendments were adopted by voice vote en bloc. Senators present 
for the vote were Johnson, Portman, Paul, Lankford, Romney, 
Scott, Enzi, Hawley, Peters, Carper, Hassan, Harris, Sinema, 
and Rosen.
    The Committee ordered S. 380 as amended reported favorably 
en bloc on February 13, 2019, by voice vote. Senators present 
for the vote were Johnson, Portman, Paul, Lankford, Romney, 
Scott, Enzi, Hawley, Peters, Hassan, Harris, Sinema, and Rosen.

        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, and specifies 
``Director'' as the Director of the Office of Management and 
Budget (OMB).
    This section also defines ``guidance document'' as an 
agency statement of general applicability, other than a rule as 
promulgated pursuant to Sec. 553 of title 5, 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.

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 an internet 
website designated by the Director of OMB. 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 previously issued guidance 
document in effect on that date.
    This section also provides that guidance documents that are 
exempt from disclosure under 5 U.S.C. 552(b) (commonly known as 
the ``Freedom of Information Act'') are not subject to the 
publication requirements of this Act.
    This section also requires agencies to maintain information 
on the same internet website concerning rescinded guidance, 
which must include an indication that the guidance has been 
rescinded (including whether done so pursuant to court order) 
and the date on which it was done so.

                   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 1, 2019.
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. 380, the GOOD Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is David Hughes.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.
    
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    S. 380 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 S. 380 could affect direct spending by some 
agencies (such as the Tennessee Valley Authority) that are 
authorized to use receipts from the sale of goods, fees, and 
other collections to cover their operating costs. Because most 
of those 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 negligible.
    The CBO staff contact for this estimate is David Hughes. 
The estimate was reviewed by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

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

    Because S. 380 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.