SB 745

This bill 1) prohibits a court from according deference to agency interpretations

of law in certain proceedings and prohibits agencies from seeking deference in any

proceeding to agency interpretations of law; 2) establishes various requirements

with respect to the adoption and use of guidance documents by agencies, including

requirements that agencies must comply with in order to adopt guidance documents;

and 3) provides that settlement agreements do not confer rule-making authority.

Agency interpretations of law

Generally under current law, when reviewing an agency decision in a contested

case or other matter subject to judicial review under the law governing

administrative procedure for state agencies, a court must accord due weight to the

experience, technical competence, and specialized knowledge of the agency involved,

as well as discretionary authority conferred upon it. The bill limits this directive

such that a court performing judicial review of such a decision must accord no

deference to an agency's interpretation of law.

The bill also provides that no agency may seek deference in any proceeding

based on the agency's interpretation of any law.

Guidance documents

Subject to various exceptions, the bill defines “guidance document" as any

formal or official document or communication issued by an agency, including a

manual, handbook, directive, or informational bulletin, that 1) explains the agency's

implementation of a statute or rule enforced or administered by the agency, including

the current or proposed operating procedure of the agency; or 2) provides guidance

or advice with respect to how the agency is likely to apply any statute or rule enforced

or administered by the agency, if that guidance or advice is likely to apply to a class

of persons similarly affected.

The bill requires each agency, no less than 21 days before adopting a guidance

document, to post the proposed guidance document on the agency's Internet site and

submit it to the Legislative Reference Bureau for publication in the register and to

provide a period for persons to submit written comments to the agency on the

proposed guidance document. The agency must retain all written comments

submitted during the public comment period and consider those comments in

determining whether to adopt the guidance document as originally proposed, modify

the proposed guidance document, or take any other action. The bill allows for a

comment period of less than 21 days with the approval of the governor. The bill also

requires each adopted guidance document, while valid, to remain available on the

agency's Internet site and requires the agency to permit continuing public comment

on the guidance document. Each guidance document must be signed by the head of

the agency below a statement containing certain certifications.

The bill provides that a guidance document does not have the force of law and

does not provide the authority for implementing or enforcing a standard,