U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

79–010 

" ! SENATE 115TH CONGRESS

2d Session 

REPORT

2018

115–271 

Calendar No. 448 

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. 2296 

TO INCREASE ACCESS TO AGENCY GUIDANCE DOCUMENTS 

JUNE 7, 2018.—Ordered to be printed 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

JOHN HOEVEN, North Dakota 

STEVE DAINES, Montana 

CLAIRE MCCASKILL, Missouri 

THOMAS R. CARPER, Delaware 

HEIDI HEITKAMP, North Dakota 

GARY C. PETERS, Michigan 

MAGGIE HASSAN, New Hampshire 

KAMALA D. HARRIS, California 

DOUG JONES, Alabama 

CHRISTOPHER R. HIXON, Staff Director 

GABRIELLE D’ADAMO SINGER, Chief Counsel 

SATYA P. THALLAM, Chief Economist 

MARGARET E. DAUM, Minority Staff Director 

STACIA M. CARDILLE, Minority Chief Counsel 

CHARLES A. MOSKOWITZ, Minority Senior Legislative Counsel 

KATHERINE C. SYBENGA, Minority Counsel 

LAURA W. KILBRIDE, Chief Clerk 


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Calendar No. 448 

115TH CONGRESS SENATE REPORT " ! 2d Session 115–271 

GUIDANCE OUT OF DARKNESS ACT 

JUNE 7, 2018.—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. 2296] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Homeland Security and Governmental Affairs, 

to which was referred the bill (S. 2296) to increase access to agency 

guidance documents, reports favorably 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 the Legislation ................................................... 2 

III. Legislative History ......................................................................................... 3 

IV. Section-by-Section Analysis .......................................................................... 4 

V. Evaluation of Regulatory Impact .................................................................. 4 

VI. Congressional Budget Office Cost Estimate ................................................ 5 

VII. Changes in Existing Law Made by the Bill, as Reported ........................... 5 

I. PURPOSE AND SUMMARY

S. 2296, 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 the website regulations.gov and 

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


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

368 (May 18, 2015). 2Paul 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. 3This 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 Fancis, 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)). 4Paul 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. 5 Id. 6 Id. 7Off. 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.’’). 8 Id. 9 Id. at 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.1 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.’’ 2 Hence 

some observers have used the term ‘‘regulatory dark matter,’’ to 

refer to the Federal administrative policymaking that occurs 

through guidance documents. 3 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.4 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).5 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.’’ 6 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.’’ 7

The bulletin stated that as the scope and complexity of regulatory programs have grown, so has the issuance of guidance documents.8 With the increase in the usage of guidance documents, 

OMB determined that ‘‘clear and consistent agency practices for developing, issuing, and using guidance documents’’ were necessary.9

The bulletin goes on to state that ‘‘[w]ell-designed guidance docuVerDate Sep 11 2014 04:25 Jun 10, 2018 Jkt 079010 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\SR271.XXX SR271

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10 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)). 11 Id. 12 Id. 13 Id. 14 Id. 15 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. 16 Id. 17 Id. 18 Clyde Wayne Crews, Wayne Crews Responds to GOOD Act, Competitive Enter. Inst. (Jan. 

11, 2018), https://cei.org/content/wayne-crews-responds-good-act. 

ments serve many important or even critical functions’’ 10 including 

in providing assistance in interpreting existing law or providing 

greater clarity through a policy statement.11 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.12

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.13 The agency list would be searchable and include 

the name of the guidance document, the docket number, and the 

issuance and revision dates.14

In March 2016, the U.S. Government Accountability Office (GAO) 

examined opportunities to enhance transparency and oversight of 

the rulemaking process.15 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.’’ 16 GAO found that a sample of departments 

varied in the degree to which they complied with OMB’s requirements for significant guidance.17 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. 2296 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.’’ 18

III. LEGISLATIVE HISTORY

Chairman Ron Johnson (R–WI) introduced S. 2296 on January 

11, 2018. Senators James Lankford (R–OK) and Joni Ernst (R–IA) 

later joined as cosponsors. The bill was referred to the Committee 

on Homeland Security and Governmental Affairs. The Committee 

considered S. 2296 at a February 14, 2018 business meeting. 


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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, Enzi, Hoeven, 

Daines, McCaskill, Heitkamp, Peters, Hassan, Harris, and Jones. 

The Committee ordered S. 2296 as amended reported favorably 

en bloc on February 14, 2018, by voice vote. Senators present for 

the vote were Johnson, Portman, Lankford, Enzi, Hoeven, Daines, 

McCaskill, Heitkamp, Peters, Hassan, Harris, and Jones. 

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. 

This section also defines ‘‘guidance document’’ as an agency 

statement of general applicability, other than a rule, 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(A)(ii). 

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 the Internet website 

under section 206(d) of the E-Government Act of 2002 (44 U.S.C. 

3501 note)—commonly referred to as regulations.gov. 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 guidance document in effect on that 

date. 

This section also requires agencies to maintain information on 

the same Internet website concerning rescinded guidance. 

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 


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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 26, 2018. 

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. 2296, 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. 

S. 2296—GOOD Act 

S. 2296 would amend federal law to 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 and to promote open and transparent government. According 

to the Government Accountability Office, many agencies already 

provide guidance documents to the public using websites, email, 

meetings, social media, mass media, and newsletters. Thus, CBO 

estimates that implementing the bill would have no significant 

cost. 

Enacting S. 2296 could affect direct spending by some agencies 

because they are authorized to use receipts from the sale of goods, 

fees, and other collections to cover operating costs. Therefore, payas-you-go procedures apply. Because most agencies can make adjustments to the amounts collected as operating costs change, CBO 

estimates any net changes in direct spending by those agencies 

would be insignificant. Enacting the bill would not affect revenues. 

CBO estimates that enacting S. 2296 would not increase net direct spending or on-budget deficits in any of the four consecutive 

10-year periods beginning in 2028. 

S. 2296 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act. 

The CBO staff contact for this estimate is Matthew Pickford. The 

estimate was approved by H. Samuel Papenfuss, Deputy Assistant 

Director for Budget Analysis. 

VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

Because S. 2296 would not repeal or amend any provision of current law, it would make no changes in existing law within the 


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meaning of clauses (a) and (b) of paragraph 12 of rule XXVI of the 

Standing Rules of the Senate. 

Æ 


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