[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
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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\
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\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.
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\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\
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\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\
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\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\
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\14\Id.
\15\Id.
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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.
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\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\
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\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.
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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.