HR 185 RFS 
objectives and regulatory provisions (including 
any statutory deadlines for agency action); 
‘‘(B) summarizes the evidence and data on 
which the agency will base the guidance; 
‘‘(C) identifies the costs and benefits (in-
cluding all costs to be considered during a rule 
making under section 553(b) of this title) of 
conduct conforming to such guidance and 
assures that such benefits justify such costs; 
and 
‘‘(D) describes alternatives to such guid-
ance and their costs and benefits (including all 
costs to be considered during a rule making 
under section 553(b) of this title) and explains 
why the agency rejected those alternatives; and 
‘‘(2) confer with the Administrator of the Office 
of Information and Regulatory Affairs on the 
issuance of such guidance to assure that the guid-
ance is reasonable, understandable, consistent with 
relevant statutory and regulatory provisions and re-
quirements or practices of other agencies, does not 
produce costs that are unjustified by the guidance’s 
benefits, and is otherwise appropriate. 
Upon issuing major guidance, or guidance that involves 
a novel legal or policy issue arising out of statutory man-
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dates, the agency shall publish the documentation required 
by subparagraph (1) by electronic means and otherwise. 
‘‘(b) Agency guidance— 
‘‘(1) is not legally binding and may not be re-
lied upon by an agency as legal grounds for agency 
action; 
‘‘(2) shall state in a plain, prominent and per-
manent manner that it is not legally binding; and 
‘‘(3) shall, at the time it is issued or upon re-
quest, be made available by the issuing agency to in-
terested persons and the public by electronic means 
and otherwise. 
Agencies shall avoid the issuance of guidance that is in-
consistent or incompatible with, or duplicative of, the 
agency’s governing statutes or regulations, with the goal 
of minimizing the potential for uncertainty and litigation 
arising from such uncertainty. 
‘‘(c) The Administrator of the Office of Information 
and Regulatory Affairs shall have authority to issue guide-
lines for use by the agencies in the issuance of major guid-
ance and other guidance. Such guidelines shall assure that 
each agency avoids issuing guidance documents that are 
inconsistent or incompatible with, or duplicative of, the 
law, its other regulations, or the regulations of other Fed-
eral agencies and drafts its guidance documents to be sim-
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ple and easy to understand, with the goal of minimizing 
the potential for uncertainty and litigation arising from 
such uncertainty.’’. 
(b) CLERICAL AMENDMENT.—The table of sections 
for chapter 5 of title 5, United States Code, is amended 
by inserting after the item relating to section 553 the fol-
lowing new item: 
‘‘553a. Agency guidance; procedures to issue major guidance; authority to issue 
guidelines for issuance of guidance.’’. 
SEC. 5. HEARINGS; PRESIDING EMPLOYEES; POWERS AND 
DUTIES; 
BURDEN 
OF 
PROOF; 
EVIDENCE; 
RECORD AS BASIS OF DECISION. 
Section 556 of title 5, United States Code, is amend-
ed by striking subsection (e) and inserting the following: 
‘‘(e)(1) The transcript of testimony and exhibits, to-
gether with all papers and requests filed in the proceeding, 
constitutes the exclusive record for decision in accordance 
with section 557 and shall be made available to the parties 
and the public by electronic means and, upon payment of 
lawfully prescribed costs, otherwise. When an agency deci-
sion rests on official notice of a material fact not appear-
ing in the evidence in the record, a party is entitled, on 
timely request, to an opportunity to show the contrary. 
‘‘(2) Notwithstanding paragraph (1) of this sub-
section, in a proceeding held under this section pursuant 
to section 553(d)(4) or 553(e), the record for decision 
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