U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

89–010 

" ! SENATE 116TH CONGRESS

1st Session 

REPORT

2019

116–12 

Calendar No. 43 

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 

MARCH 25, 2019.—Ordered to be printed 


E:\Seals\Congress.#13
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MITT ROMNEY, Utah 

RICK SCOTT, Florida 

MICHAEL B. ENZI, Wyoming 

JOSH HAWLEY, Missouri 

GARY C. PETERS, Michigan 

THOMAS R. CARPER, Delaware 

MAGGIE HASSAN, New Hampshire 

KAMALA D. HARRIS, California 

KYRSTEN SINEMA, Arizona 

JACKY ROSEN, Nevada 

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 

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 

2 

1On 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. 2Government Accountability Office, Guidance Documents from Federal Agencies, GAO–15– 

368 (May 18, 2015). 3Paul 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. 4This 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)). 5Paul 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. 8Off. 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.’’). 9 Id. 

hyperlink on the internet website of the agency that provides access to the guidance documents.1

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. 

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

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, 

3 

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. 14 Id. 15 Id. 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. 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. 

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

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

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. 

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

4 

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. 

5 

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. 

6 

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. 

Æ 


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