Bills
| 3.23.22

Should Agencies be Required to Publish Guidance Documents on Their Websites? (H.R. 4809)

Do you support or oppose this bill?

What is H.R. 4809?

(Updated November 7, 2018)

This bill — known as the Guidance Out of Darkness (GOOD) Act — would require an agency to publish a guidance document on its website on the day the guidance document is issued. It would also require all guidance documents issued by agencies in the last 10 years to be published in a single location on each agency’s website. Finally, on the day a guidance document is rescinded, an agency must indicate the recincision and the date on its website.

Argument in favor

Businesses can’t be expected to comply with agency guidance if they can’t find it online. Forcing federal agencies to publish their guidance online in a timely manner, and to collect all current guidances in one place, will help businesses meet their compliance obligations while increasing federal government transparency.

Argument opposed

While transparency from federal agencies is a worthwhile goal, too many types of guidance are subject to this bill, which will lead to an overwhelming volume of guidance being published on agencies’ websites.

Impact

Businesses; federal agencies; guidance documents; and federal agencies.

Cost of H.R. 4809

Because most agencies already provide guidance documents using websites, email, meetings, social media, mass media, and newsletters, the CBO estimates that implementing this bill would have no significant cost.

Additional Info

In-Depth: Rep. Mark Walker (R-NC) introduced this bill to increase government accountability and transparency while lessening small business’ burdens by requiring federal agencies to post regulatory guidance documents online in an easy-to-find location:

"Our out-of-control regulatory system represents roughly $2 trillion in cost on the economy and American small businesses every single year. Worse yet, federal agencies are going around the rule-process to avoid accountability and oversight. If agencies expect… small businesses… to comply with their burdensome rules, they should at a minimum make the information available and easily accessible."

In remarks before the House Committee on Oversight and Government Reform, Rep. Walker noted the sheer volume of federal agency guidance, and argued that federal agencies should be held responsible for tracking the guidance they issue:

“Agencies create these [guidance] documents and expect the guidance to be followed.  The agencies should therefore have no problem gathering and posting the documents as the bill requires.  In fact, we know that many agencies already have a list – because they have provided it to us.... At the Committee’s request, federal agencies provided information on more than 12,800 guidance documents issued over the past decade. And that is just a portion of federal guidance documents.  That number is expected to increase as agencies continue to identify guidance and produce information to the Committee. There are a handful of agencies that have been unable to produce a list of guidance documents. That is a red flag and a clear indication that, at some agencies, guidance documents are not tracked. If an agency doesn’t bother to track the hundreds of guidance documents it issues, how can businesses and taxpayers possibly be expected to comply with them? The burden should be on the agencies to make guidance documents easy to find. That’s all this bill does — [r]equire agencies to post information they should already have in a centralized location. This is a small step agencies can take that would have significant benefits. Posting these documents in a central location will alleviate burdens on regulated entities and members of the public. It will shine light on this lesser-understood, yet impactful, sector of federal regulatory activity.”

The Coalition for Sensible Safeguards (CSS), an alliance of over 175 labor, scientific, research, good government, faith, community, health, environmental, and public interest groups, oppose this legislation. CSS Chair Robert Weissman writes:

“Although we agree with the stated intent of the legislation in bringing more sunlight to agency guidance, we have serious concerns that the bill does not actually increase transparency but instead would facilitate the controversial usage of the Congressional Review Act (CRA) to repeal long-standing agency guidance documents… The misuse of this bill in conjunction with the CRA to attack longstanding guidance documents has only grown more plausible and concerning since its introduction, following the recent controversial usage of the CRA to repeal the Consumer Financial Protection Bureau’s 2013 auto lending guidance that dozens of CSS member groups strongly opposed. This Congress has already used the CRA in an unprecedented fashion to repeal 16 commonsense regulations that protect the public, including measures to protect internet privacy, women’s health, retirement security, workplace safety, fair pay in the workplace, the environment and clean water, and sensible gun control... If passed in its current form, the public databases of guidance documents created under the bill would likely serve as a menu for special interests to select potential targets on behalf of their clients for potential CRA attacks. The result would be a multiple course feast that could include guidance documents that were issued up to a decade ago. We also maintain our previously stated concerns about the legislation’s workability. Indeed, the conspicuous lack of attention to issues of workability with respect to the achievement of the bill’s transparency objectives only reinforces our conviction that transparency is not the sponsors’ real goal with this legislation. Most notable among the workability concerns is the bill’s definition of guidance, which would include an extremely large universe of notices, memorandums, bulletins, directives, etc. that would be subject to [this bill’s] transparency requirements. The sheer volume of all of these documents would defeat, rather than advance the goal of transparency. Only those corporate interests with significant financial resources at their disposal could possibly review and digest all of the documents that would suddenly be disclosed pursuant to the bill’s requirements. In contrast, small businesses, public interest groups and ordinary Americans would derive little, if any, benefit.”

This legislation passed the House Committee on Oversight and Government Reform on a voice vote with the support of four cosponsors, all of whom are Republicans. The Competitive Enterprise Institute (CEI) and FreedomWorks support this bill.


Of Note: Aside from formal regulations, guidance documents are among the most important and influential ways in which federal agencies act and actively regulate. While guidance documents are not legally binding on the regulated community, they often set standards for agency implementation, and thus can function as de facto regulations.

Used properly, guidance documents can play an essential role in effective agency regulation by: (1) clarifying an agency’s interpretation of ambiguous statutory and regulatory language, (2) ensuring consistent implementation throughout decentralized agency bureaucracies, and (3) providing the public with notice of an agency’s priorities and policies where the agency has discretionary authority.

However, critics of this practice call view this as an end-run around the legal rule-making process. The Wall Street Journal’s Editorial Board sharply criticized the Obama administration's use of guidances, writing that “[t]he Obama Administration made an art of evading public scrutiny by replacing formal rule-making with a stream of ‘guidance,’ ‘bulletins’ and ‘statements of policy.’”

Rep. Walker’s office argues that Obama-era regulations were harmful to business both in and of themselves, and because they were difficult to find and comply with:

“While the regulations themselves were often erroneous and harmful to businesses, they also created undue burden in compliance as the guidance took on many different forms – blog posts, memos, letters, and news releases.”

Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / cnythzl)