GOOD Act

II Calendar No. 43 116TH CONGRESS 1ST SESSION S. 380 [Report No. 116–12] To increase access to agency guidance documents. IN THE SENATE OF THE UNITED STATES FEBRUARY 7, 2019 Mr. JOHNSON (for himself, Ms. ERNST, Ms. SINEMA, Mr. LANKFORD, Mr. CRUZ, Mr. BRAUN, and Mr. TILLIS) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs MARCH 25, 2019 Reported by Mr. JOHNSON, with an amendment [Strike out all after the enacting clause and insert the part printed in italic] A BILL To increase access to agency guidance documents. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Guidance Out Of 4 Darkness Act’’ or the ‘‘GOOD Act’’. 5 VerDate Sep 11 2014 22:36 Mar 25, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6401 E:\BILLS\S380.RS S380 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 380 RS SEC. 2. DEFINITIONS. 1 In this Act: 2 (1) AGENCY.—The term ‘‘agency’’ has the 3 meaning given that term in section 551 of title 5, 4 United States Code. 5 (2) GUIDANCE DOCUMENT.—The term ‘‘guid- 6 ance document’’— 7 (A) means an agency statement of general 8 applicability (other than a rule that has the 9 force and effect of law promulgated in accord- 10 ance with the notice and comment procedures 11 under section 553 of title 5, United States 12 Code) that— 13 (i) does not have the force and effect 14 of law; and 15 (ii) sets forth— 16 (I) an agency decision or a policy 17 on a statutory, regulatory, or tech- 18 nical issue; or 19 (II) an interpretation of a statu- 20 tory or regulatory issue; and 21 (B) may include— 22 (i) a memorandum; 23 (ii) a notice; 24 (iii) a bulletin; 25 (iv) a directive; 26 VerDate Sep 11 2014 22:36 Mar 25, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S380.RS S380 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 380 RS (v) a news release; 1 (vi) a letter; 2 (vii) a blog post; 3 (viii) a no-action letter; 4 (ix) a speech by an agency official; 5 (x) an advisory; 6 (xi) a manual; 7 (xii) a circular; 8 (xiii) a frequently asked questions 9 sheet; or 10 (xiv) any combination of the items de- 11 scribed in clauses (i) through (xiii). 12 SEC. 3. PUBLICATION OF GUIDANCE DOCUMENTS ON THE 13 INTERNET. 14 (a) IN GENERAL.—On the date on which an agency 15 issues a guidance document, the agency shall publish the 16 guidance document in accordance with the requirements 17 under subsection (c). 18 (b) PREVIOUSLY ISSUED GUIDANCE DOCUMENTS.— 19 Not later than 180 days after the date of enactment of 20 this Act, each agency shall publish, in accordance with the 21 requirements under subsection (c), any guidance docu- 22 ment issued by that agency that is in effect on that date. 23 (c) SINGLE LOCATION.— 24 VerDate Sep 11 2014 22:36 Mar 25, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S380.RS S380 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 380 RS (1) IN GENERAL.—All guidance documents pub- 1 lished under subsections (a) and (b) by an agency 2 shall be published in a single location on an internet 3 website designated by the Director under paragraph 4 (4). 5 (2) AGENCY INTERNET WEBSITES.—Each agen- 6 cy shall, for guidance documents published by the 7 agency under subsections (a) and (b), publish a 8 hyperlink on the internet website of the agency that 9 provides access to the guidance documents at the lo- 10 cation described in paragraph (1). 11 (3) ORGANIZATION.— 12 (A) IN GENERAL.—The guidance docu- 13 ments described in paragraph (1) shall be— 14 (i) categorized as guidance docu- 15 ments; and 16 (ii) further divided into subcategories 17 as appropriate. 18 (B) AGENCY INTERNET WEBSITES.—The 19 hyperlinks described in paragraph (2) shall be 20 prominently displayed on the internet website of 21 the agency. 22 (4) DESIGNATION.—Not later than 90 days 23 after the date of enactment of this Act, the Director 24 shall designate an internet website on which guid- 25 VerDate Sep 11 2014 22:36 Mar 25, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\S380.RS S380 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 380 RS ance documents shall be published under subsections 1 (a) and (b). 2 (d) RESCINDED GUIDANCE DOCUMENTS.—On the 3 date on which a guidance document issued by an agency 4 is rescinded, or, in the case of a guidance document that 5 is rescinded pursuant to a court order, not later than the 6 date on which the order is entered, the agency shall, at 7 the location described in subsection (c)(1)— 8 (1) maintain the rescinded guidance document; 9 and 10 (2) indicate— 11 (A) that the guidance document is re- 12 scinded; 13 (B) if the guidance document was re- 14 scinded pursuant to a court order, the case 15 number of the case in which the order was en- 16 tered; and 17 (C) the date on which the guidance docu- 18 ment was rescinded. 19 SECTION 1. SHORT TITLE. 20 This Act may be cited as the ‘‘Guidance Out Of Dark- 21 ness Act’’ or the ‘‘GOOD Act’’. 22 SEC. 2. DEFINITIONS. 23 In this Act: 24 VerDate Sep 11 2014 22:36 Mar 25, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\S380.RS S380 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 380 RS (1) AGENCY.—The term ‘‘agency’’ has the mean- 1 ing given that term in section 551 of title 5, United 2 States Code. 3 (2) DIRECTOR.—The term ‘‘Director’’ means the 4 Director of the Office of Management and Budget. 5 (3) GUIDANCE DOCUMENT.— 6 (A) DEFINITION.—The term ‘‘guidance doc- 7 ument’’— 8 (i) means an agency statement of gen- 9 eral applicability (other than a rule that 10 has the force and effect of law promulgated 11 in accordance with the notice and comment 12 procedures under section 553 of title 5, 13 United States Code) that— 14 (I) does not have the force and ef- 15 fect of law; and 16 (II) is designated by an agency 17 official as setting forth— 18 (aa) a policy on a statutory, 19 regulatory, or technical issue; or 20 (bb) an interpretation of a 21 statutory or regulatory issue; and 22 (ii) may include— 23 (I) a memorandum; 24 (II) a notice; 25 VerDate Sep 11 2014 22:36 Mar 25, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6203 E:\BILLS\S380.RS S380 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 380 RS (III) a bulletin; 1 (IV) a directive; 2 (V) a news release; 3 (VI) a letter; 4 (VII) a blog post; 5 (VIII) a no-action letter; 6 (IX) a speech by an agency offi- 7 cial; and 8 (X) any combination of the items 9 described in subclauses (I) through 10 (IX). 11 (B) RULE OF CONSTRUCTION.—The term 12 ‘‘guidance document’’— 13 (i) shall be construed broadly to effec- 14 tuate the purpose and intent of this Act; 15 and 16 (ii) shall not be limited to the items 17 described in subparagraph (A)(ii). 18 SEC. 3. PUBLICATION OF GUIDANCE DOCUMENTS ON THE 19 INTERNET. 20 (a) IN GENERAL.—Subject to subsection (d), on the 21 date on which an agency issues a guidance document, the 22 agency shall publish the guidance document in accordance 23 with the requirements under subsection (c). 24 VerDate Sep 11 2014 22:36 Mar 25, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6203 E:\BILLS\S380.RS S380 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 380 RS (b) PREVIOUSLY ISSUED GUIDANCE DOCUMENTS.— 1 Subject to subsection (d), not later than 180 days after the 2 date of enactment of this Act, each agency shall publish, 3 in accordance with the requirements under subsection (c), 4 any guidance document issued by that agency that is in 5 effect on that date. 6 (c) SINGLE LOCATION.— 7 (1) IN GENERAL.—All guidance documents pub- 8 lished under subsections (a) and (b) by an agency 9 shall be published in a single location on an internet 10 website designated by the Director under paragraph 11 (4). 12 (2) AGENCY INTERNET WEBSITES.—Each agency 13 shall, for guidance documents published by the agency 14 under subsections (a) and (b), publish a hyperlink on 15 the internet website of the agency that provides access 16 to the guidance documents at the location described in 17 paragraph (1). 18 (3) ORGANIZATION.— 19 (A) IN GENERAL.—The guidance documents 20 described in paragraph (1) shall be— 21 (i) categorized as guidance documents; 22 and 23 (ii) further divided into subcategories 24 as appropriate. 25 VerDate Sep 11 2014 22:36 Mar 25, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6203 E:\BILLS\S380.RS S380 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 380 RS (B) AGENCY INTERNET WEBSITES.—The 1 hyperlinks described in paragraph (2) shall be 2 prominently displayed on the internet website of 3 the agency. 4 (4) DESIGNATION.—Not later than 90 days after 5 the date of enactment of this Act, the Director shall 6 designate an internet website on which guidance doc- 7 uments shall be published under subsections (a) and 8 (b). 9 (d) DOCUMENTS AND INFORMATION EXEMPT FROM 10 DISCLOSURE UNDER FOIA.—If a guidance document 11 issued by an agency is a document that is exempt from dis- 12 closure under section 552(b) of title 5, United States Code 13 (commonly known as the ‘‘Freedom of Information Act’’), 14 or contains information that is exempt from disclosure 15 under that section, that document or information, as the 16 case may be, shall not be subject to the requirements under 17 this Act. 18 (e) RESCINDED GUIDANCE DOCUMENTS.—On the date 19 on which a guidance document issued by an agency is re- 20 scinded, or, in the case of a guidance document that is re- 21 scinded pursuant to a court order, not later than the date 22 on which the order is entered, the agency shall, at the loca- 23 tion described in subsection (c)(1)— 24 VerDate Sep 11 2014 22:36 Mar 25, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\S380.RS S380 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 380 RS (1) maintain the rescinded guidance document; 1 and 2 (2) indicate— 3 (A) that the guidance document is re- 4 scinded; 5 (B) if the guidance document was rescinded 6 pursuant to a court order, the case number of the 7 case in which the order was entered; and 8 (C) the date on which the guidance docu- 9 ment was rescinded. 10 VerDate Sep 11 2014 22:36 Mar 25, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6203 E:\BILLS\S380.RS S380 pamtmann on DSKBFK8HB2PROD with BILLS VerDate Sep 11 2014 22:36 Mar 25, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\S380.RS S380 pamtmann on DSKBFK8HB2PROD with BILLS Calendar No. 43 116TH CONGRESS 1ST SESSION S. 380 [Report No. 116–12] A BILL To increase access to agency guidance documents. MARCH 25, 2019 Reported with an amendment VerDate Sep 11 2014 22:36 Mar 25, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6651 Sfmt 6651 E:\BILLS\S380.RS S380 pamtmann on DSKBFK8HB2PROD with BILLS