[House Report 118-597]
[From the U.S. Government Publishing Office]


118th Congress   }                                      {       Report
                        HOUSE OF REPRESENTATIVES
 2d Session      }                                      {      118-597

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



 
                  GUIDANCE OUT OF DARKNESS ACT OF 2023

                                _______
                                

 July 18, 2024.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Comer, from the Committee on Oversight and Accountability, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 890]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Accountability, to whom was 
referred the bill (H.R. 890) to increase access to agency 
guidance documents, having considered the same, reports 
favorably thereon with an amendment and recommends that the 
bill as amended do pass.

                                CONTENTS

                                                                   Page
Summary and Purpose of Legislation...............................     3
Background and Need for Legislation..............................     3
Section-by-Section Analysis......................................     4
Legislative History..............................................     5
Committee Consideration..........................................     6
Roll Call Votes..................................................     6
Explanation of Amendments........................................     8
List of Related Committee Hearings...............................     8
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     8
Statement of General Performance Goals and Objectives............     8
Application of Law to the Legislative Branch.....................     8
Duplication of Federal Programs..................................     9
Disclosure of Directed Rule Makings..............................     9
Federal Advisory Committee Act Statement.........................     9
Unfunded Mandates Reform Act Statement...........................     9
Earmark Identification...........................................     9
Committee Cost Estimate..........................................     9
New Budget Authority And Congressional Budget Office Cost 
  Estimate.......................................................     9
Changes in Existing Law Made by the Bill, as Reported............    10

    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 of 2023'' 
or the ``GOOD Act of 2023''.

SEC. 2. 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) Director.--The term ``Director'' means the Director of 
        the Office of Management and Budget.
          (3) Guidance document.--
                  (A) Definition.--The term ``guidance document''--
                          (i) 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 comment 
                        procedures under section 553 of title 5, United 
                        States Code) that--
                                  (I) does not have the force and 
                                effect of law; and
                                  (II) is designated by an agency 
                                official as setting forth--
                                          (aa) a policy on a statutory, 
                                        regulatory, or technical issue; 
                                        or
                                          (bb) an interpretation of a 
                                        statutory or regulatory issue; 
                                        and
                          (ii) may include--
                                  (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; 
                                and
                                  (X) any combination of the items 
                                described in subclauses (I) through 
                                (IX).
                  (B) Rule of construction.--The term ``guidance 
                document''--
                          (i) shall be construed broadly to effectuate 
                        the purpose and intent of this Act; and
                          (ii) shall not be limited to the items 
                        described in subparagraph (A)(ii).

SEC. 3. PUBLICATION OF GUIDANCE DOCUMENTS ON THE INTERNET.

  (a) In General.--Subject to subsection (d), on the date on which an 
agency issues a guidance document, the agency shall publish the 
guidance document in accordance with the requirements under subsection 
(c).
  (b) Previously Issued Guidance Documents.--Subject to subsection (d), 
not later than 180 days after the date of enactment of this Act, each 
agency shall publish, in accordance with the requirements under 
subsection (c), any guidance document issued by that agency that is in 
effect on that date.
  (c) Single Location.--
          (1) In general.--All guidance documents published under 
        subsections (a) and (b) by an agency shall be published in a 
        single location on an internet website designated by the 
        Director under paragraph (4).
          (2) Agency internet websites.--Each agency shall, for 
        guidance documents published by the agency under subsections 
        (a) and (b), publish a hyperlink on the internet website of the 
        agency that provides access to the guidance documents at the 
        location described in paragraph (1).
          (3) Organization.--
                  (A) In general.--The guidance documents described in 
                paragraph (1) shall be--
                          (i) categorized as guidance documents; and
                          (ii) further divided into subcategories as 
                        appropriate.
                  (B) Agency internet websites.--The hyperlinks 
                described in paragraph (2) shall be prominently 
                displayed on the internet website of the agency.
          (4) Designation.--Not later than 90 days after the date of 
        enactment of this Act, the Director shall designate an internet 
        website on which guidance documents shall be published under 
        subsections (a) and (b).
  (d) Documents and Information Exempt From Disclosure Under FOIA.--If 
a guidance document issued by an agency is a document that is exempt 
from disclosure under section 552(b) of title 5, United States Code 
(commonly known as the ``Freedom of Information Act''), or contains 
information that is exempt from disclosure under that section, that 
document or information, as the case may be, shall not be subject to 
the requirements under this Act.
  (e) Rescinded Guidance Documents.--On the date on which a guidance 
document issued by an agency is rescinded, or, in the case of a 
guidance document that is rescinded pursuant to a court order, not 
later than the date on which the order is entered, the agency shall, at 
the location described in subsection (c)(1)--
          (1) maintain the rescinded guidance document; and
          (2) indicate--
                  (A) that the guidance document is rescinded;
                  (B) if the guidance document was rescinded pursuant 
                to a court order, the case number of the case in which 
                the order was entered; and
                  (C) the date on which the guidance document was 
                rescinded.

                   SUMMARY AND PURPOSE OF LEGISLATION

    H.R. 890 ensures agency guidance is transparent by 
requiring agencies to publish legal and regulatory guidance 
documents online in a single location designated by the 
Director of the Office of Management and Budget. New guidance 
documents must be posted online the date they are issued. 
Guidance issued before the date of enactment must be published 
on the website within 180 days of enactment. Guidance documents 
that are rescinded by the agency must still be retained on the 
website, with disclaimers that they have been rescinded.

                  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.''\1\ These statements of policy and interpretations 
are more commonly known as ``guidance documents''\2\ and 
constitute agency statements intended to inform the public of 
how an agency interprets the law or intends to exercise its 
discretion.\3\ Despite this obligation to publish, current law 
lacks guidelines or requirements for how agencies must publish 
this information. Agencies typically have used 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.\4\
---------------------------------------------------------------------------
    \1\5 U.S.C. Sec. 552(a)(2)(B).
    \2\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).
    \3\Mantel, supra note 2, at 350.
    \4\See U.S. Gov't Accountability Office, GAO-15-368, Regulatory 
Guidance Processes: Selected Departments Could Strengthen Internal 
Control and Dissemination Practices at 31 (2015).
---------------------------------------------------------------------------
    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.\5\ 
This burden is augmented by the ubiquity of guidance documents 
in federal regulatory practice. Scholars have described their 
scale of use as ``massive''\6\ and ``oceanic.''\7\ However, 
there is no comprehensive compilation of guidance documents,\8\ 
making one of the most frequently used regulatory tools also 
one of the least transparent.
---------------------------------------------------------------------------
    \5\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.
    \6\Mantel, supra note 4, at 353.
    \7\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.
    \8\Id. at 35.
---------------------------------------------------------------------------
    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.
    Building upon Congress' work in this area, reforms 
contained in H.R. 890 and its predecessor bills during the 
115th and 116th Congresses were implemented by a 2019 executive 
order. The order was in effect during 2019 and 2020 but has 
since been rescinded.\9\ H.R. 890 would codify these reforms in 
statute and permanently alleviate the burdens on entities 
seeking these guidance documents. The bill requires agencies to 
publish guidance documents in one central location. 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.
---------------------------------------------------------------------------
    \9\Exec. Order No. 13891, 84 Fed. Reg. 55235 (secs. 1-3) (Oct. 9, 
2019). See also, Exec. Order No. 13992, 86 Fed. Reg. 7049 (sec. 2) 
(Jan. 20, 2021).
---------------------------------------------------------------------------
    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. 890, 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 public examination.
    Increased transparency through public involvement is a 
principle supported by the Administrative Conference of the 
United States (ACUS), 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 manner 
in which they may readily be found.''\10\ The GOOD Act 
implements this recommendation.
---------------------------------------------------------------------------
    \10\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.
---------------------------------------------------------------------------
    The American public will benefit greatly from the GOOD 
Act's requirement that guidance documents be centrally 
published. By making guidance documents easier to discover and 
navigate, the bill will help the American public, especially 
small entities, better understand the law, agencies' 
understanding of their obligations, and how to conduct their 
affairs in light of agency views.

                      SECTION-BY-SECTION ANALYSIS

Sec. 1. Short title

    The short title is the ``Guidance Out of Darkness Act of 
2023'' or the ``GOOD Act of 2023''.

Section 2. Definitions

           Sets forth definitions of key terms used in 
        the act.
                   Defines the term ``agency'' by 
                reference to section 551 of title 5, United 
                States Code, where that term has been 
                previously defined.
                   Defines the term ``Director'' to 
                mean the Director of the Office of Management 
                and Budget.
                   Defines the term ``guidance 
                document'' to mean a ``statement of general 
                applicability'' that ``does not have the force 
                and effect of law'' and is designated by an 
                agency official as setting forth ``a policy on 
                a statutory, regulatory, or technical issue'' 
                or an ``interpretation of a statutory or 
                regulatory issue.''
                   Includes within the term 
                ``guidance document'' agency memoranda, 
                notices, bulletins, directives, news releases, 
                letters, blogs, no-action letters, agency 
                officials' speeches, or any combination 
                thereof.
                   Sets forth a rule of 
                construction that the term, ``guidance 
                document'' should be interpreted broadly and 
                not be constrained to the aforesaid examples.

Section 3. Publication of guidance documents on the internet

           Requires agencies to publish their guidance 
        documents at a single location on the internet as 
        determined by the OMB Director within 90 days of 
        enactment (presumably to be Regulations.gov), and sets 
        certain agency publishing requirements, including:
                   Publishing new guidance 
                documents when the documents are issued;
                   Publishing preexisting guidance 
                documents not later than 180 days after the 
                date the Act takes effect;
                   Prominently displaying on the 
                agencies' websites hyperlinks to the location 
                of their respective guidance documents at the 
                website designated by the Director; and
                   Clearly categorizing guidance 
                documents as such, with appropriate 
                subcategories.
           Provides that, if a guidance document is 
        exempt from disclosure under section 552(b) of title 5, 
        United States Code (known as the Freedom of Information 
        Act (FOIA)), or contains information that is exempt 
        under FOIA, that document or information is not subject 
        to the Act's requirements.
           Requires agencies to maintain rescinded 
        guidance documents online with notations that the 
        guidance documents have been rescinded and the dates on 
        which they were rescinded, including any relevant case 
        numbers if rescinded pursuant to court orders.

                          LEGISLATIVE HISTORY

    H.R. 890 was introduced on February 9, 2023, by 
Representative James Comer. The bill was referred to the 
Committee on Oversight and Accountability. The following 
Representatives are cosponsors of the bill: Perry PA (R-R), 
Andy Biggs (R-AZ), Clay Higgins (R-LA), Tim Burchett (R-TN), 
Pete Sessions (R-TX), Virginia Foxx (R-NC), Nancy Mace (R-SC), 
Lauren Boebert (R-CO), Russell Fry (R-SC), Gary J. Palmer (R-
AL), Nicholas A. Langworthy (R-NY), Eric Burlison (R-MO), 
Harriet M. Hageman (R-WY), Ro Khanna (D-CA), and Pat Fallon (R-
TX). The Committee on Oversight and Accountability held a 
hearing related to and used for development and consideration 
of the bill on June 14, 2023. The Committee considered H.R. 890 
at a business meeting on July 12, 2023, and ordered the bill as 
amended favorably reported by a recorded vote.
    The Senate companion to H.R. 890 is S. 791, which was 
introduced by Senator Ron Johnson (R-WI) on March 14, 2023, and 
was referred to the Senate Committee on Homeland Security and 
Governmental Affairs.
    During the 115th Congress, a similar bill--H.R. 4809--was 
considered by the Committee, ordered favorably reported on 
March 15, 2018, and subsequently passed the House under 
suspension of the rules by a voice vote on September 26, 
2018.\11\
---------------------------------------------------------------------------
    \11\H. Rept. 115-972 at 5 (Sept. 25, 2018).
---------------------------------------------------------------------------

                        COMMITTEE CONSIDERATION

    On July 12, 2023, the Committee met in open session and 
ordered the bill, H.R. 890, favorably reported with an 
amendment in the nature of a substitute, by a roll call vote of 
41-0, a quorum being present.

                            ROLL CALL VOTES

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the following roll call votes 
occurred during the Committee's consideration of H.R. 890:
    The first and only roll call vote was on final passage of 
H.R. 890. The bill was agreed to in a recorded vote of 41-0.


    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                       EXPLANATION OF AMENDMENTS

    During Committee consideration of the bill, Representative 
James Comer (R-KY), Chairman of the Committee, offered an 
amendment in the nature of a substitute that would make certain 
technical changes to the bill. The amendment in the nature of a 
substitute passed by voice vote.

                   LIST OF RELATED COMMITTEE HEARINGS

    In accordance with House rule XIII, clause 3(c)(6)(A), (1) 
the following Committee hearing was used to develop or consider 
H.R. 890:
    On June 14, 2023, the Committee held a hearing titled 
``Death by a Thousand Regulations: The Biden Administration's 
Campaign to Bury America in Red Tape'' with Mr. Anthony P. 
Campau, Principal, Clark Hill Public Strategies; Prof. Casey 
Mulligan, University of Chicago; Mr. Adam J. White, Senior 
Fellow, American Enterprise Institute, and Co-Executive 
Director, the C. Boyden Gray Center for the Study of the 
Administrative State, George Mason University Antonin Scalia 
Law School; and Prof. Sally Katzen, New York University School 
of Law.
    (2) The following hearing related to H.R. 890 was held:
    On June 14, 2023, the Committee held a hearing titled 
``Death by a Thousand Regulations: The Biden Administration's 
Campaign to Bury America in Red Tape'' with Mr. Anthony P. 
Campau, Principal, Clark Hill Public Strategies; Prof. Casey 
Mulligan, University of Chicago; Mr. Adam J. White, Senior 
Fellow, American Enterprise Institute, and Co-Executive 
Director, the C. Boyden Gray Center for the Study of the 
Administrative State, George Mason University Antonin Scalia 
Law School; and Prof. Sally Katzen, New York University School 
of Law.

  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 Background and Need for 
Legislation section above.

         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 
goals or objectives of this bill are to ensure and streamline 
public access to agency guidance documents, and for other 
purposes.

              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 does not relate to employment or access to public 
services and accommodations in the legislative branch.

                    DUPLICATION OF FEDERAL PROGRAMS

    In accordance with clause 3(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, 
U.S.C.

                FEDERAL ADVISORY COMMITTEE ACT STATEMENT

    The Committee finds that this legislation does not direct 
the establishment of advisory committees within the definition 
of Section 5(b) of the appendix to title 5, U.S.C.

                 UNFUNDED MANDATES REFORM ACT STATEMENT

    Pursuant to section 423 of the Congressional Budget Act of 
1974 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 COST ESTIMATE

    Pursuant to clause 3(d) 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:

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    H.R. 890 would require agencies to post their guidance 
documents (such as memorandums, directives, blog posts, and 
speeches by agency officials) on a single website designated by 
the Office of Management and Budget.
    According to the Government Accountability Office, many 
agencies already provide guidance documents on their websites. 
Thus, CBO expects that implementing the bill would increase 
agencies' administrative expenses mostly for consolidating and 
uploading documents in a single location. Using information on 
the cost for similar activities, CBO estimates that the cost 
would be $6 million over the 2023-2028 period. Any spending 
would be subject to the availability of appropriated funds.
    Enacting H.R. 890 would affect direct spending by some 
agencies that are allowed to use fees, receipts from the sale 
of goods, and other collections to cover operating costs. CBO 
estimates that any net changes in direct spending by those 
agencies would be negligible because most of them can adjust 
amounts collected to reflect changes in operating costs.
    The CBO staff contact for this estimate is Kelly Durand. 
The estimate was reviewed by Christina Hawley Anthony, Deputy 
Director of Budget Analysis.

                                         Phillip L. Swagel,
                             Director, Congressional Budget Office.

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    The requirements of clause 3(e) of rule XIII of the Rules 
of the House of Representatives do not apply to H.R. 890.

                                  [all]