II 

115TH CONGRESS 

1ST SESSION S. 580 

To establish agency procedures for the issuance of guidance documents, and 

for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 8, 2017 

Mr. LANKFORD introduced the following bill; which was read twice and 

referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To establish agency procedures for the issuance of guidance 

documents, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Truth in Regulations 

5 Act of 2017’’. 

6 SEC. 2. AGENCY STANDARDS FOR GUIDANCE DOCUMENTS. 

7 (a) DEFINITIONS.—In this section: 

8 (1) ADMINISTRATOR.—The term ‘‘Adminis9 trator’’ means the Administrator of the Office of InVerDate Sep 11 2014 18:37 Mar 14, 2017 Jkt 069200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S580.IS S580

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1 formation and Regulatory Affairs in the Office of 

2 Management and Budget. 

3 (2) AGENCY.—The term ‘‘agency’’ has the 

4 meaning given the term in section 3502 of title 44, 

5 United States Code. 

6 (3) GUIDANCE DOCUMENT.—The term ‘‘guid7 ance document’’— 

8 (A) means an agency statement of general 

9 applicability and future effect, other than a reg10 ulatory action, that sets forth a policy on a 

11 statutory, regulatory, or technical issue or an 

12 interpretation of a statutory or regulatory issue; 

13 and 

14 (B) does not include— 

15 (i) a legal advisory opinion for inter16 nal executive branch use and not for re17 lease (such as Department of Justice Of18 fice of Legal Counsel opinions); 

19 (ii) a brief or other position taken by 

20 an agency in an investigation, pre-litiga21 tion, litigation, or other enforcement pro22 ceeding; 

23 (iii) a speech, editorial, media inter24 view, press material, or congressional cor25 respondence; 


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1 (iv) a guidance document that relates 

2 to a military or foreign affairs function of 

3 the United States (other than a guidance 

4 document on procurement or the import or 

5 export of non-defense articles and serv6 ices); 

7 (v) a grant solicitation, warning letter, 

8 or case or investigatory letter responding 

9 to a complaint involving a fact-specific de10 termination; 

11 (vi) a purely internal agency policy; 

12 (vii) a guidance document that relates 

13 to the use, operation, or control of a gov14 ernment facility; 

15 (viii) an internal guidance document 

16 directed solely to other agencies; or 

17 (ix) any other category of guidance 

18 documents exempted by the head of an 

19 agency, in consultation with the Adminis20 trator. 

21 (4) REGULATION.—The term ‘‘regulation’’ 

22 means an agency statement of general applicability 

23 and future effect, which the agency intends to have 

24 the force and effect of law, that is designed to imple25 ment, interpret, or prescribe law or policy or to deVerDate Sep 11 2014 18:37 Mar 14, 2017 Jkt 069200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S580.IS S580

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1 scribe the procedure or practice requirements of an 

2 agency. 

3 (5) REGULATORY ACTION.—The term ‘‘regu4 latory action’’ means any substantive action by an 

5 agency (normally published in the Federal Register) 

6 that promulgates or is expected to lead to the pro7 mulgation of a final regulation, including notices of 

8 inquiry, advance notices of inquiry and notices of 

9 proposed rule making. 

10 (b) APPROVAL PROCEDURES.— 

11 (1) IN GENERAL.—Except as provided in para12 graph (2), not later than 210 days after the date of 

13 enactment of this Act, the head of each agency shall 

14 develop or have written procedures for the approval 

15 of guidance documents, which shall ensure that the 

16 issuance of guidance documents is approved by each 

17 appropriate senior agency official. 

18 (2) EXCEPTION.—An employee of an agency 

19 may not deviate from the requirements of the proce20 dures developed pursuant to paragraph (1) unless— 

21 (A) the employee has submitted an appro22 priate justification to a supervisor who is an ap23 propriate senior agency official described para24 graph (1) or the head of the agency; and 


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1 (B) the supervisor or head of the agency 

2 has agreed to the deviation. 

3 (c) CONTENTS OF GUIDANCE DOCUMENT.— 

4 (1) REQUIREMENTS.—Each guidance document 

5 issued by an agency shall include the following: 

6 (A) The term ‘‘guidance’’ or a functional 

7 equivalent of that term. 

8 (B) An identification of each agency and 

9 office issuing the document. 

10 (C) An identification of the activity to 

11 which and the person to whom the guidance 

12 document applies. 

13 (D) The date of issuance. 

14 (E) If the document is a revision to a pre15 viously issued guidance document, a notation of 

16 such and an identification of the document re17 placed. 

18 (F) The title of the document and any 

19 identification number, if applicable. 

20 (G) A citation to the statutory provision or 

21 regulation to which the document applies or in22 terprets. 

23 (2) PROHIBITED.—A guidance document may 

24 not include mandatory language such as ‘‘shall’’, 

25 ‘‘must’’, ‘‘required’’, or ‘‘requirement’’, unless— 


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1 (A) the agency is using these words to de2 scribe a statutory or regulatory requirement; 

3 (B) the language is addressed to agency 

4 employees; or 

5 (C) the prohibition against that mandatory 

6 language prevents agency consideration of a po7 sition advanced by any affected private party. 

8 (d) PUBLIC ACCESS AND FEEDBACK FOR GUIDANCE

9 DOCUMENTS.— 

10 (1) INTERNET ACCESS.— 

11 (A) LIST REQUIRED.—The head of each 

12 agency shall maintain on the website of the 

13 agency a list of each guidance document in ef14 fect, which shall include the following: 

15 (i) The name of each guidance docu16 ment. 

17 (ii) Any document identification num18 ber. 

19 (iii) The dates of issuance and revi20 sion. 

21 (iv) An identification of which docu22 ments have been added, revised, or with23 drawn during the previous year. 

24 (B) LINK TO DOCUMENT REQUIRED.—The 

25 head of the agency shall provide a link from the 


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1 list described in subparagraph (A) to each such 

2 guidance document. 

3 (C) UPDATES TO WEBSITE.—Not later 

4 than 30 days after the date on which a guid5 ance document is issued, the head of the agency 

6 shall update the list of guidance documents and 

7 links described in this paragraph accordingly. 

8 (2) PUBLIC FEEDBACK.— 

9 (A) SUBMISSION OF PUBLIC COMMENTS.— 

10 (i) IN GENERAL.—Not later than 60 

11 days after the date of enactment of this 

12 Act, the head of each agency shall estab13 lish and prominently display on the website 

14 of the agency a means for the public— 

15 (I) to electronically submit com16 ments on any guidance document; and 

17 (II) to electronically submit a re18 quest for issuance, reconsideration, 

19 modification, or rescission of any 

20 guidance document. 

21 (ii) NO RESPONSE REQUIRED.—Any 

22 public comment submitted under this para23 graph is for the benefit of the agency, and 

24 a formal response to any such comment by 

25 the agency is not required. 


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1 (B) COMPLAINTS BY THE PUBLIC.—The 

2 head of each agency shall— 

3 (i) designate one or more offices to re4 ceive and address complaints submitted by 

5 the public that the agency is not following 

6 the procedures in this section or is improp7 erly treating a guidance document as a 

8 binding requirement; and 

9 (ii) provide, on the website of the 

10 agency, the name and contact information 

11 for any office described in clause (i). 

12 (e) NOTICE AND PUBLIC COMMENT FOR GUIDANCE

13 DOCUMENTS.— 

14 (1) IN GENERAL.—Except as provided in para15 graph (2), not later than 60 days after the date on 

16 which an agency prepares a draft of a guidance doc17 ument, the agency shall complete the following re18 quirements: 

19 (A) Publish a notice in the Federal Reg20 ister announcing that the draft document is 

21 available. 

22 (B) Post the draft document on the 

23 website of the agency and make the draft pub24 licly available in hard copy (or notify the public 

25 how the guidance document may be reviewed if 


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1 not in a format that permits electronic posting 

2 with reasonable efforts). 

3 (C) Invite public comment on the draft 

4 document. 

5 (D) Prepare and post on the website of the 

6 agency a response-to-comments document. 

7 (2) EXEMPTIONS.—Notwithstanding paragraph 

8 (1), the head of an agency, in consultation with the 

9 Administrator, may designate a guidance document 

10 or group of guidance documents as exempt from the 

11 requirements of this section for being not feasible or 

12 appropriate. 

13 (f) EXIGENT CIRCUMSTANCES.— 

14 (1) IN GENERAL.—In an imminent threat to 

15 public health or safety or similar exigent cir16 cumstance exists or when an agency is required by 

17 law to act more quickly than the procedures de18 scribed in this section allow, the head of the agency 

19 shall certify the circumstance to the Administrator 

20 as soon as possible and, to the extent practicable, 

21 comply with this section. 

22 (2) OTHER DEADLINES.—For any guidance 

23 document that is governed by a statutory or court24 imposed deadline, the agency shall, to the extent 

25 practicable, schedule any proceeding for such docuVerDate Sep 11 2014 18:37 Mar 14, 2017 Jkt 069200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S580.IS S580

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1 ment to permit sufficient time to comply with this 

2 section. 

3 (g) APPLICABILITY.—This section does not affect the 

4 authority of an agency to communicate the views of the 

5 agency in court or in any other enforcement proceeding. 

6 (h) EFFECTIVE DATE.—The requirements of this 

7 section shall take effect 180 days after the date of enact8 ment of this Act. 

9 SEC. 3. LIMITATIONS ON USE OF INTERIM FINAL RULES. 

10 (a) ENHANCED SHOWING REQUIRED FOR INTERIM

11 FINAL RULES.—Section 553(b)(B) of title 5, United 

12 States Code, is amended by striking ‘‘for good cause’’ and 

13 all that follows through the period at the end and inserting 

14 the following: ‘‘determines that an imminent threat to 

15 public health or safety or similar exigent circumstance ex16 ists.’’. 

17 (b) REQUIRED PUBLICATION OR SERVICE DATE.— 

18 Section 553(d)(3) of title 5, United States Code, is amend19 ed to read as follows: 

20 ‘‘(3) in the case of any rule to which the excep21 tion under subsection (b)(B) applies.’’. 

22 (c) LOOKBACK PERIOD FOR INTERIM FINAL

23 RULES.—Section 553 of title 5, United States Code, is 

24 amended by adding at the end the following: 


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1 ‘‘(f) In the case of a rule making in which the excep2 tion under subsection (b)(B) was applied, by not later 

3 than 18 months after the rule takes effect, the agency 

4 shall provide for a period in which interested persons may 

5 submit written data, views, or arguments, in the same 

6 manner as submissions under subsection (c), shall give 

7 such submissions due consideration, and, if appropriate, 

8 repeal or amend the rule accordingly.’’. 

Æ 


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