Senate Bill Would Put Agencies On Spot To Disclose Guidance

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A bill approved by the Senate Homeland Security and Governmental Affairs Committee last week would direct the Office of Management and Budget and Federal government agencies to promptly publish a laundry list of “guidance” communications that agencies issue and that constitute statements of “general applicability” but do not have the full force of law.

The legislation–S. 380, the Guidance Out of Darkness (GOOD) Act–would apply to guidance documents that are designated by Federal agency officials as setting forth “an agency decision or a policy on a statutory, regulatory, or technical issue,” or an “interpretation of a statutory or regulatory issue.”

Those documents may take the form of memorandum, notice, bulletin, directive, news release, letter, blog post, no-action letter, and speech by agency official, among others.

Agencies would be directed to publish those guidance documents on an ongoing basis in a single location on an agency website. Previously issued guidance documents would have to be posted to the same site within 180 days.  Notices of rescinded guidance would also have to be displayed.  Exempt from the bill are documents whose release would be exempt from the Freedom of Information Act.

The same bill was introduced last year by Sen. Ron Johnson, R-Wis., chairman of the committee, but it did not make it out of the Senate.

A report accompanying last year’s legislation explains, “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.’ Hence some observers have used the term `’regulatory dark matter,’’ to refer to the Federal administrative policymaking that occurs through guidance documents.”

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