[House Report 115-972]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-972
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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]