§ 42-35-2.12. Guidance document. (a) An agency may issue a guidance document without following the procedures set forth in §§ 42-35-2.6 through 42-35-2.9.

(b) An agency that proposes to rely on a guidance document to the detriment of a person in any administrative proceeding shall afford the person an adequate opportunity to contest the legality or wisdom of a position taken in the document. The agency may not use a guidance document to foreclose consideration of issues raised in the document.

(c) A guidance document may contain binding instructions to agency staff members if, at an appropriate stage in the administrative process, the agency's procedures provide an affected person an adequate opportunity to contest the legality or wisdom of a position taken in the document.

(d) If an agency proposes to act in a contested case at variance with a position expressed in a guidance document, it shall provide a reasonable explanation for the variance. If an affected person in a contested case may have relied reasonably on the agency's position, the explanation must include a reasonable justification for the agency's conclusion that the need for the variance outweighs the affected person's reliance interest.

(e) An agency shall maintain an index of all of its effective guidance documents; publish the index on its website; make all guidance documents available to the public; and file the index annually with the secretary of state. The agency may not rely on a guidance document, or cite it as precedent against any party to a proceeding, unless the guidance document is published on its agency website.

(f) A guidance document may be considered by a presiding officer or final decision maker in an agency contested case, but it does not bind the presiding officer or the final decision maker in the exercise of discretion.

(g) A person may petition an agency under § 42-35-6 to promulgate a rule in place of a guidance document.

(h) A person may petition an agency to revise or repeal a guidance document. Not later than sixty (60) days after submission of the petition, the agency shall:

(1) Revise or repeal the guidance document;

(2) Initiate a proceeding to consider a revision or repeal; or

(3) Deny the petition in a record and state its reasons for the denial.

History of Section. (P.L. 2016, ch. 203, § 3; P.L. 2016, ch. 206, § 3.)