[Congressional Record Volume 164, Number 159 (Wednesday, September 26, 2018)]
[House]
[Pages H9072-H9074]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
GUIDANCE OUT OF DARKNESS ACT
Mr. RUSSELL. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 4809) to increase access to agency guidance documents, as
amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 4809
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Guidance Out Of Darkness
Act'' or the ``GOOD Act''.
SEC. 2. PURPOSE.
It is the purpose of this Act to increase the transparency
of agency guidance documents and to make guidance documents
more readily available to the public.
SEC. 3. 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 an online portal designated by the
Director of the Office of Management and Budget.
(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(d) Rescinded Guidance Documents.--Not later than the date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rescinded, the head of the agency shall on the online portal
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(1) maintain a copy of the rescinded guidance document; and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(A) that the guidance document is rescinded; and
(B) the date on which the guidance document was rescinded.
(e) Deadline to Designate Portal.--Not later than 30 days
after the date of the enactment of this Act, the Director of
the Office of Management and Budget shall designate an online
portal in accordance with subsection (c)(1).
SEC. 4. RULES OF CONSTRUCTION.
(a) Guidance Documents.--In this Act, the term ``guidance
document'' shall be construed broadly.
(b) Congressional Review.--Nothing in this Act may be
construed to affect whether a guidance document qualifies as
a rule for purposes of chapter 8 of title 5, United States
Code.
SEC. 5. 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. 6. EFFECTIVE DATE.
Except as provided in section 3(e), this Act shall take
effect on the date that is 180 days after the date of the
enactment of this Act.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
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Oklahoma (Mr. Russell) and the gentleman from California (Mr. Gomez)
each will control 20 minutes.
The Chair recognizes the gentleman from Oklahoma.
General Leave
Mr. RUSSELL. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
and include extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Oklahoma?
There was no objection.
Mr. RUSSELL. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I urge support of H.R. 4809, the Guidance Out of
Darkness, or GOOD, Act, which was introduced by my colleague and friend
from North Carolina, Mr. Walker.
Regulatory guidance is widely used by agencies. The guidance applies
to industry and taxpayers alike. However, we really don't know the full
universe of agency guidance.
Professor Nicholas Parrillo of Yale Law School, who testified before
the Oversight and Government Reform Committee earlier this year said,
``There is no comprehensive compilation of guidance, but everyone
agrees its volume is oceanic.''
The Oversight and Government Reform Committee has been looking into
agency use of guidance over the past year, and we found this is an area
of government in need of reform.
H.R. 4809 introduces much-needed elements of transparency and
consistency to the process of disseminating agency guidance documents.
In 2007, the Office of Management and Budget issued what is known as
the ``Good Guidance Bulletin.'' This bulletin requires Federal agencies
to follow certain best practices when issuing significant guidance
documents, which are those that are the costliest to comply with or are
otherwise exceptionally impactful.
The Good Guidance Bulletin requires agencies to maintain lists of
their significant guidance documents on their websites so that they can
be readily found by the people and entities the documents affect. The
GOOD Act expands this posting requirement to all guidance documents.
Regulated entities shouldn't have to search high and low to find out
how agencies interpret the laws and regulations that affect every
sector of the economy. The public deserves to have this information,
and this legislation will make these policy documents more accessible
to the public.
Mr. Speaker, I urge all Members to support this legislation, and I
reserve the balance of my time.
Mr. GOMEZ. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, we can all agree that agencies should be transparent
about what guidance is currently in effect for agency employees.
During committee consideration of this legislation, Democratic
members raised concerns that the bill should not be used for a purpose
other than simple transparency. Unfortunately, the Senate sponsor of
the companion legislation was quoted as stating that the bill could be
used to eliminate guidance issued during President Barack Obama's
administration by making those guidance documents available for
disapproval under the Congressional Review Act.
Mr. Speaker, I thank the majority for working with minority to
address the concerns expressed in committee. The majority agreed to
include a provision in the bill that clarifies that this bill will not
be used to influence whether guidance falls under the Congressional
Review Act.
The bill we are considering today states that ``Nothing in this Act
may be construed to affect whether a guidance document qualifies as a
rule for purposes of chapter 8 of title 5, United States Code.''
There are additional improvements I believe should be made to the
bill. For example, the definition in the bill of what would be
considered a guidance document remains very broad, and it is unclear
about who decides what is considered a guidance document.
The bill also makes no exceptions for national security or other
sensitive documents. However, I do not object to this bill moving
forward, but I do hope the majority will continue to work with all
Members as this legislation moves through the legislative process.
Mr. Speaker, I reserve the balance of my time.
Mr. RUSSELL. Mr. Speaker, I yield 5 minutes to the gentleman from
North Carolina (Mr. Walker), the sponsor of this bill, my friend.
Mr. WALKER. Mr. Speaker, I rise today in support of H.R. 4809, the
Guidance Out of Darkness, or GOOD, Act.
Mr. Speaker, those who must live their lives or run their businesses
according to a set of rules have a right to know what those rules are.
To foster accountability and transparency in Federal regulation,
Congress passed the Administrative Procedure Act in 1946, which
required disclosure or publication of administrative rules.
Unfortunately, the law contains an exception for what we commonly refer
to as guidance documents.
Guidance documents are sporadically posted on agency websites and the
websites of component agencies and offices, while some are not posted
at all. That inconsistency places burdens on regulated entities.
Small businesses are especially harmed because they do not have the
resources to hire full-time compliance staff. Instead, small-business
owners have to take the time and energy away from their businesses to
stay up to date on each new regulatory guidance.
The GOOD Act requires transparency and consistency in the regulatory
process.
The public deserves to know what guidance documents are out there.
They deserve to know how the agencies administering our laws interpret
those laws and regulations.
H.R. 4809 requires agencies to post their guidance documents online
in one centralized location. Agencies create these documents and expect
the guidance to be followed. They should, therefore, have no problem
gathering and posting these documents for the American people to see.
At the request of the Oversight and Government Reform Committee,
dozens of agencies have disclosed information to us on their use of
guidance documents. The results have been staggering.
To date, agencies have provided lists of more than 18,000 guidance
documents issued just in the past decade, and that is just a portion of
Federal guidance documents. There are a handful of agencies that have
been unable or flat out refused to produce a list of guidance documents
for the committees.
I believe we would agree this is a red flag. If an agency doesn't
bother to keep track of its guidance documents, then how in the world
can businesses and taxpayers be expected to comply with them?
The burden should be on the agencies to make guidance documents
publicly available and easy to find. That is all this bill does. It
requires agencies to post information they should already have in a
central location so it can be easily found. This is a small step
agencies can take that will have significant benefits, alleviating
burdens on regulated entities and the public.
I thank the bipartisan group of my colleagues who supported H.R. 4809
during committee consideration of this bill, and I urge all Members to
support this legislation. Why? Because this legislation is commonsense
reform that Members of both parties can support in the name of good
governance and transparency.
Mr. Speaker, there is one additional item that is common sense that I
believe both parties could support, and that is wishing my wife a happy
birthday today.
Mr. GOMEZ. Mr. Speaker, I yield back the balance of my time.
Mr. RUSSELL. Mr. Speaker, I urge adoption of the bill, and I yield
back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Oklahoma (Mr. Russell) that the House suspend the rules
and pass the bill, H.R. 4809, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
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