TITLE 20. COMMERCE, FINANCIAL INSTITUTIONS, AND INSURANCE

Historical Note

Former Rule 1. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-101 recodified from R4-13-101 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-102. Definitions

In this Article, unless the context otherwise requires:

"Act" means the Arizona Workers' Compensation Act, A.R.S. Title 23, Ch. 6, Articles 1 through 11.

"Authorized representative" means an individual authorized by law to act on behalf of a party who files with the Commission a written instrument advising of the individual's authority to act on behalf of the party.

"Carrier" or "insurance carrier" means the state compensation fund and every insurance carrier authorized by the Arizona Department of Insurance to underwrite workers' compensation insurance in Arizona.

"Claimant" means an employee who files a claim for workers' compensation.

"Filing" means actual receipt of a report, document, instrument, videotape, audiotape, or other written matter at a Commission office during office hours as set forth in R20-5-103.

"Physician" means a licensed physician or other licensed practitioner of the healing arts.

"Self-insured employer" means an employer or workers' compensation pool granted authority by the Commission to self- insure for workers' compensation.

"Uninsured employer" or "noncomplying employer" means an employer that is subject to and fails to comply with A.R.S. §§ 23-961 or 23-962.

"Working days" means all days except Saturdays, Sundays, and state legal holidays.

Historical Note

Former Rule 2. R20-5-102 recodified from R4-13-102 (Supp. 95-1). Section repealed; new Section made by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-103. Location of Industrial Commission Offices and Office Hours

The main office of the Industrial Commission of Arizona is located in Phoenix, Arizona. An office is also located in Tucson, Arizona. The offices are open for business from 8:00 a.m. until 5:00 p.m. every day except Saturdays, Sundays, and state legal holidays.

Historical Note

Former Rule 3. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-103 recodified from R4-13-103 (Supp. 95-1). Section repealed; new Section made by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-104. Address of Claimant and Uninsured Employer

A. A claimant shall advise the Commission and carrier or self-insured employer of the claimant's current mailing address and place of residence. If a claimant files a workers' compensation claim against an uninsured employer, the claimant shall advise the special fund division of the claimant's current mailing address and place of residence.

B. An uninsured employer against whom a claimant files a workers' compensation claim shall advise the special fund division of the uninsured employer's current mailing address and place or places of residence.

C. Providing the address of a claimant's or uninsured employer's attorney or authorized representative is not sufficient to meet the requirements of this Section.

Historical Note

Former Rule 4. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-104 recodified from R4-13-104 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-105. Filing Requirements; Time for Filing; Computation of Time; Response to Motion

A. A report, document, instrument, videotape, audiotape, or other written matter required to be filed with the Commission under A.R.S. § 23-901 et seq. and this Article shall be filed at a Commission office within the time required by law and this Article.

B. For purposes of computing time under this Article, the following applies:

1. The Commission shall not include in the computation of time the day of the act or event from which the designated period begins to run.

2. The Commission shall include in the computation of time the last day of the designated period, unless the last day is a Saturday, Sunday, or state legal holiday, in which event the period runs until the end of the next day that is not a Saturday, Sunday, or state legal holiday.

3. If this Article or other law requires that a report, document, instrument, videotape, audiotape, or other written matter be filed within a designated period of time before hearing, the Commission shall not include the day of the act or event from which the designated period of time begins to run. The Commission shall include the last day of the designated period unless that day is a Saturday, Sunday, or state legal holiday, in which event the period runs to the end of the next day that is not a Saturday, Sunday, or state legal holiday.

4. If the period of time prescribed is less than 11 days, the Commission shall not include intermediate Saturdays, Sundays, or state legal holidays in the computation of time.

C. The Commission shall deem a report, document, instrument, videotape, audiotape, or other written matter filed at the Tucson office as filed at the main office for purposes of computing time.

D. A person upon whom a motion to join is filed under this Article may file a response to the motion within 10 days after the motion is filed.

E. The Commission shall not consider a discovery motion unless the moving party attaches a separate statement to the discovery motion certifying that after good faith efforts to do so, the moving party has been unable to satisfactorily resolve the matter giving rise to the discovery motion with the opposing party.

Historical Note

Former Rule 5. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-105 recodified from R4-13-105 (Supp. 95-1). Section repealed; new Section made by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-106. Forms Prescribed by the Commission

A. The following forms shall be used when applicable:

1. Employer's report of industrial injury (form 101) shall contain:

a. Employee, employer, and carrier identification;

b. Description of employment;

c. Description of accident and injury;

d. Description of medical treatment received by employee;

e. Employee's wage data;

f. Date, signature, and title of employer or the employer's representative; and

g. Statement doubting the validity of the claim, if the employer doubts the validity of the claim.

2. The physician's portion of the worker's and physician's report of injury (form 102) shall contain:

a. Name and address of physician;

b. Information regarding preexisting conditions;

c. Information regarding the industrial injury, treatment, and prognosis;

d. Statement authorizing the attachment of a medical report that contains the information required in form 102; and

e. Physician's signature and date.

3. Notice of supportive medical benefits (form 103) shall contain:

a. Employee, employer, insurance carrier, and claim identification;

b. Description of authorized medical benefits;

c. Date the notice is mailed;

d. Name and telephone number of the individual issuing the notice; and

e. Statement regarding reopening and appeal rights including filing requirements.

4. Notice of claim status (form 104) shall contain:

a. Employee, employer, insurance carrier, and claim identification;

b. Status of the claim;

c. Date the notice is mailed;

d. Name and telephone number of the individual issuing the notice; and

e. Statement of a party's hearing and appeal rights including filing requirements.

5. Notice of suspension of benefits (form 105) shall contain:

a. Employee, employer, insurance carrier, and claim identification;

b. Effective date of the suspension;

c. Reasons for the suspension;

d. Date the notice is mailed;

e. Name and telephone number of the individual issuing the notice; and

f. Statement of a party's hearing and appeal rights including filing requirements.

6. Notice of permanent disability or death benefits (form 106) shall contain:

a. Employee, employer, insurance carrier, and claim identification;

b. Applicable statutory authority under which compensation is paid;

c. Disability and compensation information;

d. Date the notice is mailed;

e. Name and telephone number of the individual issuing the notice; and

f. Statement regarding hearing and appeal rights including filing requirements.

7. Notice of permanent disability and request for determination of benefits (form 107) shall contain:

a. Employee, employer, insurance carrier, and claim identification;

b. Type of disability;

c. Applicable statutory authority for designated disability;

d. Designation of dependents where death is involved;

e. Designation of advanced payments and amount of the advance;

f. Date the notice is mailed; and

g. Name and telephone number of the individual issuing the notice.

8. Carrier's recommended average monthly wage calculation (form 108) shall contain:

a. Employee, employer, insurance carrier, and claim identification;

b. Employment and wage history;

c. Designation of dependents; and

d. Carrier's calculations for the recommended average monthly wage and the basis for the calculation.

9. Notice of permanent compensation payment plan (form 111) shall contain:

a. Employee, employer, and carrier identification;

b. Amount of permanent compensation and description of payment plan;

c. Name of the responsible entity contracted by the carrier to administer the payment plan;

d. Statement that the carrier remains the responsible party for payment;

e. Statement regarding supportive care and reopening rights;

f. Date the notice is mailed; and

g. Name and telephone number of the individual issuing the notice.

10. Report of insurance coverage (form 0006) shall contain:

a. Name and address of the carrier;

b. Legal name of entity that the carrier insures;

c. All other insured names or subsidiary entities under which the carrier's insured does business in Arizona;

d. Address of all insured entities with insurance policy information for each address; and

e. Employer Identification Number (EIN), Taxpayer Identification Number (TIN), or Federal Identification Number (FIN) assigned to each insured person or entity.

11. Report of significant work exposure to bodily fluids shall contain:

a. The requirements set forth in A.R.S. §§ 23-1043.02(B) and 23-1043.03(B);

b. Employee identification;

c. Employer identification;

d. Details of the exposure including:

i. Date of exposure;

ii. Time of exposure;

iii. Place of exposure;

iv. How exposure occurred;

v. Type of bodily fluid or fluids;

vi. Source of bodily fluid or fluids;

vii. Part or parts of body exposed to bodily fluid or fluids;

viii. Presence of break or rupture in skin or mucous membrane; and

ix. Witnesses (if known); and

e. Dated signature of employee or the employee's authorized representative.

B. The following forms may be used:

1. The workers' portion of the worker's and physician's report of injury (form 102) requests:

a. Employee, employer, insurance carrier, and physician identification;

b. Description of the accident, including date of injury; and

c. Date and signature of the employee or the employee's authorized representative.

2. Worker's report of injury (form 407) requests:

a. Employee and employer identification;

b. Job title;

c. Employment description;

d. Employee's wage data;

e. Date of injury;

f. Accident and injury descriptions;

g. Medical treatment information;

h. Information concerning prior injuries of the employee;

i Disability income; and

j. Date and signature of the employee or the employee's authorized representative.

3. Worker's annual report of income (form 110-A) requests:

a. Employee, employer, insurance carrier, and claim identification;

b. Employment and wage history for the preceding 12 months;

c. Date and signature of the employee or the employee's authorized representative attesting to the truthfulness of the employment and wage information; and

d. Statement that failure to submit an annual report of income may result in a suspension of benefits by the carrier or self-insured employer.

4. Notice of intent to suspend (form 110-B) requests:

a. Employee, employer, insurance carrier, and claim identification;

b. Employment and wage history for the preceding 12 months;

c. Date and signature of the employee or the employee's authorized representative attesting to the truthfulness of the employment and wage information;

d. Statement that failure to submit an annual report within 30 days of the date of the notice shall result in a suspension of benefits by the carrier or self-insured employer.

5. Request for hearing requests:

a. Names of the employee, employer, and insurance carrier;

b. Claim identification;

c. Identification of the award, notice, order, or determination protested and reason(s) for the protest;

d. Estimated length of time for hearing and city or town in which hearing is requested;

e. Name and address of any witness for whom a subpoena is requested; and

f. Date and signature of party or the party's authorized representative.

6. Petition to reopen requests:

a. Names of the employee, employer, and insurance carrier;

b. Claim identification;

c. Identification or description of the new, additional, or previously undiscovered temporary or permanent disability or medical condition justifying the reopening of the claim; and

d. Employee's medical and employment history.

7. Petition for rearrangement or readjustment of compensation requests:

a. Names of the employee, employer, and insurance carrier;

b. Claim identification;

c. Income and employment history;

d. Medical history; and

e. Statement of the basis for the increase or decrease in earning capacity.

8. Claim for dependent's benefits-fatality form requests:

a. Identification of dependent filing claim;

b. Identification of deceased;

c. Date of death;

d. Date of injury, if different than date of death;

e. Name and address of employer at time of deceased's death;

f. Statement of cause of death;

g. Names and addresses of health care providers rendering treatment to deceased in two years before death;

h. Conditions treated by health care providers in the two years before deceased's death;

i. If claim is for spousal benefits, the form requests:

i. Name, address, and date of birth of spouse;

ii. Copy of marriage certificate;

iii. Date and place of marriage to deceased;

iv. History of prior marriages of deceased and deceased's spouse, including copies of divorce decrees; and

v. Statement of living arrangements at time of deceased's death, including reason for living apart at time of death, if applicable;

j. If claim is for a dependent child, the form requests:

i. Name, date of birth, and address of child at time of deceased's death;

ii. List of children in care and custody of current spouse; and

iii. Statement of whether unborn child is expected and date expected;

k. If claim is for dependent other than a child, the form requests:

i. Name and address of other dependent,

ii. Relationship of other dependent to deceased, and

iii. Statement of the nature and extent of dependency; and

l. Date, telephone number, and signature of dependent or authorized representative of dependent.

9. Request to leave the state form requests:

a. Employee, insurance carrier, and claim identification;

b. Reason for requesting to leave Arizona;

c. Dates leaving and returning to Arizona;

d. Out-of-state address;

e. Name and telephone number of attending physician; and

f. Date and signature of the employee or the employee's authorized representative.

10. Request to change doctors form requests:

a. Employee, insurance carrier, and claim identification;

b. Reason for requesting change of doctor;

c. Name and phone number of claimant's current doctor;

d. Name and phone number of doctor claimant requests to change to; and

e. Date and signature of the employee or the employee's authorized representative.

11. Complaint of bad faith and unfair claim processing practices requests:

a. Employee, employer, and insurance carrier identification;

b. Description of the alleged bad faith or unfair claim processing practices;

c. Date of the complaint; and

d. Name, address, and telephone number of the person signing the complaint.

12. Certification of employer's drug and alcohol testing policy requests:

a. Employer's certification as described under A.R.S. § 23-1021 (F);

b. Name and federal identification number of the employer; and

c. Name of all subsidiaries and locations of the employer.

C. Optional use of a form described in subsection (C) does not affect any requirement under the Act or this Article.

D. Forms or format for the forms described in this Section are available from the Commission.

E. Forms prescribed under this Section shall not be changed, amended, or otherwise altered without the prior written approval of the Commission.

Historical Note

Former Rule 6. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). Amended effective August 28, 1992 (Supp. 92-3). R20-5-106 recodified from R4-13-106 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-107. Manner of Completion of Forms and Documents

A. An individual completing a form or document shall fill out the form or document legibly in ink or by typewriter.

B. A party or a party's authorized representative shall sign any form or document that is required by the Act, this Article, or other law to be signed.

C. Unless otherwise provided in this Article, if a party is required to sign a form or document, the Commission shall not accept a typewritten name or stamped signature.

D. If, within the time period prescribed by law, a party files an incomplete form or document, or files an instrument other than a form or document when a form or document is required, the Commission shall serve notice to the party that the form or document fails to comply with this Section. The Commission deems the report or document timely filed if the party files a properly completed and signed form or document within 14 days after the Commission serves the notice described in this subsection.

Historical Note

Former Rule 7. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-107 recodified from R4-13-107 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-108. Confidentiality of a Commission Claims File; Reproduction and Inspection of a Commission Claims File

A. Except as provided in this Section, a claims file maintained by the Commission is private and confidential and the Commission shall not make the claims file available for inspection and copying. For purposes of this Section, "claims file" means the official record maintained by the Commission for a claimant's industrial injury including the worker's report of injury, employer's report of injury, worker and physician's report of injury, and all other reports, records, instruments, videotapes, audiotapes, transcripts, and other matters scanned or otherwise placed into the file.

B. Except as provided in subsections (D) and (E), the Commission shall make a Commission claims file relating to a current or prior claim of a claimant available for inspection and copying by any party to any proceeding currently or previously before the Commission involving the same claimant.

C. Except as provided in subsections (D) and (E), the Commission shall not make a Commission claims file available to a non-party for inspection and copying unless the Commission receives a court order or written authorization signed by the affected claimant or the affected claimant's authorized representative.

D. The Commission shall make a transcript contained in a Commission claims file available for inspection and copying if:

1. The person requesting to inspect and copy the transcript is a person authorized under subsections (B) or (C); and

2. The transcript concerns a hearing related to a claim that is not in litigation.

E. The Commission shall make a transcript contained in a Commission claims file available only for inspection if:

1. The person requesting to inspect and copy the transcript is a person authorized under subsections (B) or (C); and

2. The transcript concerns a hearing related to a claim currently in litigation.

F. The Commission shall provide copies at a charge of $.25 per page.

G. A Commission claims file shall not be removed from a Commission office unless in the custody of an authorized representative of the Commission.

Historical Note

Former Rule 8. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). Amended effective August 28, 1992 (Supp. 92-3). R20-5-108 recodified from R4-13-108 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-109. Admission into Evidence of Documents Contained in a Commission Claims File

A. If a party or an administrative law judge considers a document contained in a Commission claims file, including a transcript of a prior proceeding, necessary or appropriate for hearing purposes, the administrative law judge shall receive a copy of the document into evidence if the document is otherwise admissible.

B. With the permission of the administrative law judge, instead of submitting a copy of the document into evidence, a party may refer to the document's location on the Commission's optical disk imaging system by providing an accurate description of the document that includes the claimant's claim number and image document identification number the Commission assigns to the document.

Historical Note

Former Rule 9. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-109 recodified from R4-13-109 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-110. Employer Duty to Report Fatality

If an employee dies as a result of an injury by accident arising out of and in the course of employment, the employer shall report the death to the Commission's claims division by telephone, telegram, or electronic filing, no later than the next business day following the death. The report shall state the name of the employee, when, how, and where the accident occurred, and the nature of the condition causing the accident. This Section does not limit or affect an employer's duty to report a death to the Arizona Occupational Safety and Health Division of the Commission as required under R20-5-637.

Historical Note

Former Rule 10. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-110 recodified from R4-13-110 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-111. Request for Autopsy

If a claim is filed for compensation for death from an industrial injury and an autopsy is requested, the expense of the autopsy shall be borne by the requesting party.

Historical Note

Former Rule 11. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-111 recodified from R4-13-111 (Supp. 95-1).

R20-5-112. Physician's Initial Report of Injury

A. A physician shall complete and file with the Commission a physician's initial report of injury under A.R.S. § 23-908(A) within eight days after first providing treatment to an injured worker. The physician shall report the injury:

1. Using Commission form 102 (worker's and physician's report of injury), or

2. Attaching to form 102 a medical report that contains the information required in form 102.

B. The physician shall sign and date form 102 or the medical report attached to form 102. The signature of the physician may be typewritten or stamped on this form.

C. If a claimant uses form 102 to initiate a claim, either the injured worker or the injured worker's authorized representative shall sign the worker's portion of form 102.

Historical Note

Former Rule 12. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). Amended effective August 28, 1992 (Supp. 92-3). R20-5-112 recodified from R4-13-112 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-113. Physician's Duty to Provide Signed Reports; Rating of Impairment of Function; Restriction Against Interruption or Suspension of Benefits; Change of Physician

A. If a claimant's disability extends beyond seven days, every physician who attends, treats, or examines the claimant shall provide to the insurance carrier, self-insured employer, or special fund division, at least once every 30 days while the claimant's disability continues, a personally signed report describing the:

1. Claimant's condition,

2. Nature of treatment,

3. Expected duration of disability, and

4. Claimant's prognosis.

B. When a physician discharges a claimant from treatment, the physician:

1. Shall determine whether the claimant has sustained any impairment of function resulting from the industrial injury. The physician should rate the percentage of impairment using the standards for the evaluation of permanent impairment as published by the most recent edition of the American Medical Association in Guides to the Evaluation of Permanent Impairment, if applicable; and

2. Shall provide a final signed report to the insurance carrier, self-insured employer, or special fund division that details the rating of impairment and the clinical findings that support the rating.

C. A carrier, self-insured employer, and special fund division shall not interrupt or suspend a claimant's temporary disability compensation benefits because a physician fails to comply with any requirement of subsection (A).

D. A carrier, self-insured employer, and special fund division may withhold payment to a physician for services rendered to a claimant until the physician complies with subsection (A).

E. Upon application of a party, the Commission shall authorize a change of physician if:

1. The Commission determines that the health, life, or recovery of a claimant is retarded, endangered, or impaired;

2. The attending physician agrees to the change or is unavailable to continue treatment;

3. The Commission determines that the relationship between the attending physician and claimant renders further progress or improvement unlikely;

4. The Commission determines that the claimant's recovery may be expedited by a change of physician or conditions of treatment; or

5. The insurance carrier agrees to the change.

F. Except as provided in A.R.S. § 23-1070 and this subsection, a claimant who is examined by a physician under A.R.S. § 23-908(E) is not required to obtain written authorization to change to another physician. If, however, the claimant continues to see, or treat with, a physician who the claimant initially saw or treated with under A.R.S. § 23-908(E), then that physician is an attending physician and the claimant shall obtain written authorization to change under A.R.S. § 23-1071(B) if the claimant seeks to change to another physician.

Historical Note

Former Rule 13. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-113 recodified from R4-13-113 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-114. Examination at Request of Commission, Carrier or Employer; Motion for Relief

A. If the Commission or a party requests an examination of a claimant by a physician, the party requesting the examination shall serve the claimant, or if represented, the claimant's attorney, with notice of the time, date, place, and physician conducting the examination at least 15 days before the scheduled date of the examination.

B. If a claimant unreasonably fails to attend or promptly advise of the claimant's inability to attend an examination under this Section, the party requesting the examination may charge the claimant or deduct from the claimant's entitlement to present or future temporary or permanent disability compensation, any reasonable expense of the missed appointment.

C. A party adverse to a party who schedules a medical examination may offer into evidence the report of any medical examination as provided in R20-5-155 or within five days after the adverse party receives the report, subject to the right of cross-examination by the party who scheduled the examination.

D. If a carrier, self-insured employer, or special fund division requests an examination of a claimant's mental or physical condition under A.R.S. § 23-1026, the carrier, self-insured employer, or special fund division shall immediately, upon receipt of the report of the examination, provide a copy of the report to the claimant or the claimant's authorized representative. If the mental condition of an unrepresented claimant is examined under A.R.S. § 23-1026, the carrier, self-insured employer, or special fund division may, in its discretion, provide the report to the claimant's treating physician rather than to the claimant.

E. To protect a claimant from annoyance, embarrassment, oppression, or undue burden or expense, the Commission may order, upon good cause shown, one or both of the following:

1. That the examination not be held; or

2. That the examination may be conducted only on specified terms and conditions, including a designation of the time, place, and examining physician.

F. A claimant requesting protection under subsection (E) shall file a motion with the presiding administrative law judge or chief administrative law judge if a judge has not been assigned to the case, within three days after the claimant receives notice of the examination. The claimant shall serve a copy of the motion on all parties. The party requesting the examination shall have three days after receiving the motion to file a response. The party shall serve the response on the claimant or, if represented, the claimant's attorney of record.

Historical Note

Former Rule 14. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-114 recodified from R4-13-114 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-115. Request to Leave the State

A. The effective date of an order granting or denying a request to leave the state under A.R.S. § 23-1071(A) is the date a claimant files a request to leave the state with the Commission.

B. For purposes of A.R.S. § 23-1071(A):

1. "While the necessity of having medical treatment continues" means the period of time in which a claimant asserts an entitlement to temporary compensation, or active medical, surgical, or hospital benefits;

2. "Leave the state" means to travel across the state border, except when the logical or nearest medical facility is situated across the state border; and

3. "From the date the employee first requested the written approval" means from the date the claimant's request is filed with the Commission.

Historical Note

Former Rule 15. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-115 recodified from R4-13-115 (Supp. 95-1). Section repealed; new Section made by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-116. Payment of Claimant's Travel Expenses When Directed to Report for Medical Examination or Treatment

A. If a claimant is directed by a carrier, self-insured employer, or special fund division to report for a medical examination or treatment in a locality other than either the claimant's current place of residence or employment, the carrier, self-insured employer, or special fund division shall pay, in advance, the claimant's travel expenses from either the claimant's current place of residence or employment, whichever route of travel is required.

B. For purposes of this Section, "travel expenses" means those expenses required to be paid under A.R.S. § 23-1026.

C. The carrier, self-insured employer, or special fund division shall calculate travel expenses using the current rates applicable to state employees.

Historical Note

Former Rule 16. Amended subsections (A) and (B) effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). Correction to subsection (A) as certified effective March 1, 1987 (Supp. 88-4). R20-5-116 recodified from R4-13-116 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-117. Medical, Surgical, Hospital, and Burial Expenses

A. A carrier, self-insured employer, or special fund division, shall pay bills for medical, surgical, and hospital benefits provided under A.R.S. § 23-901 et seq. according to applicable medical and surgical fee schedules adopted by the Commission and in effect at the time the services are rendered. A physician or provider of nursing, hospital, drug or other medical services shall itemize and submit a bill for payment only to the responsible carrier, self-insured employer, or special fund division.

B. A claimant shall not be responsible to pay any disputed amounts between the medical provider and the carrier, self-insured employer, or special fund division.

C. If a claimant pays a bill described in subsection (A), the responsible carrier, self-insured employer, or special fund division shall reimburse the claimant the amount allowed by the fee schedules, provided that the claimant presents receipted vouchers or other proof of payment to support the claim for reimbursement.

D. If an insured employer pays a bill described in subsection (A), the responsible carrier or self-insured employer shall reimburse the employer the amount allowed by the fee schedules, provided that the employer presents receipted vouchers or other proof of payment to support the claim for reimbursement.

E. An insurance carrier, self-insured employer, or special fund division may pay any authorized burial expenses directly to the funeral service professional.

F. If an employee's dependent pays burial expenses, the responsible carrier, self-insured employer, or special fund division shall reimburse the dependent the amount authorized by A.R.S. § 23-1046 provided that the dependent presents proof of payment to support the claim for reimbursement.

G. If an insured employer pays burial expenses, the responsible carrier or self-insured employer shall reimburse the employer to the extent authorized by A.R.S. § 23-1046 provided that the employer presents proof of payment to support the claim for reimbursement.

Historical Note

Former Rule 17. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-117 recodified from R4-13-117 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-118. Effective Date of Notices of Claim Status and Other Determinations; Attachments to Notices of Claim Status; Form of Notices of Claim Status

A. If a notice of claim status accepting a claim for benefits is final, any subsequent notice of claim status that changes a claimant's amount of, or entitlement to, compensation or medical, surgical, or hospital benefits shall not have a retroactive effect for more than 30 days from the date a carrier or self-insured employer issues the subsequent notice of claim status. This subsection does not apply to a subsequent notice that affects the entitlement to or amount of death benefits. The Commission may for good cause relieve a carrier or self-insured employer of the effect of this subsection.

B. If a notice of claim status or other determination issued by a carrier, self-insured employer, or special fund division, is based upon a physician's report:

1. The carrier or self-insured employer shall attach a copy of the physician's complete report to the notice of claim status or other determination sent to the Commission; and

2. The carrier, self-insured employer, or special fund division shall attach a copy of the physician's complete report to the notice of claim status or other determination served on a party, except as provided in R20-5-114(D).

C. If a carrier, self-insured employer, or special fund division pays compensation to a claimant:

1. The carrier or self-insured employer shall close the claim by issuing a notice of claim status; and

2. The special fund division shall close the claim by issuing a notice of determination.

D. The inadvertent failure of a carrier, self-insured employer, or special fund division to comply with subsection (B) shall not affect the validity of a notice or determination if the carrier, self-insured employer, or special fund division issuing the notice or determination had in its possession at the time the notice or determination is issued a medical report consistent with the notice or determination.

Historical Note

Former Rule 18. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). Amended effective August 28, 1992 (Supp. 92-3). R20-5-118 recodified from R4-13-118 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-119. Notice of Third-party Settlement

A. Except as otherwise provided by law, if an employer is insured for workers' compensation insurance and a claimant, or in the event of death, the claimant's dependent, elects to proceed against a third party, the claimant shall notify the appropriate workers' compensation carrier, or self-insured employer, of any settlement or judgment in the third party suit and the basis upon which the claimant and third party agree to disburse the proceeds of the settlement or judgment.

B. If an employer is uninsured for workers' compensation insurance and a claimant, or in the event of death, the claimant's dependent, elects to proceed against a third party, the claimant shall notify the special fund division of any settlement or judgment in the third party suit and the basis upon which the claimant and third party agree to disburse the proceeds of the settlement or judgment.

C. If a lawsuit is filed against a third party, the claimant or the claimant's attorney shall provide copies of pleadings and all offers of settlement to the workers' compensation carrier, self-insured employer, or special fund division to whom notice is required under subsections (A) and (B).

Historical Note

Former Rule 19. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-119 recodified from R4-13-119 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-120. Settlement Agreements, Compromises and Releases

A. No settlement agreement, compromise, or waiver of rights of a workers' compensation claim, will be valid unless approved by the Commission.

B. The acceptance of any payments or the signing of a settlement agreement, compromise, release or waiver of rights, unless approved by the Commission, shall not release the employer or his insurance carrier from any obligation imposed by the Workers' Compensation Law.

C. The carrier or employer shall not be entitled to a credit for any sums paid to an employee under a settlement agreement which has not been approved by the Commission.

Historical Note

Former Rule 20. Amended subsections (A) and (B) effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-120 recodified from R4-13-120 (Supp. 95-1).

R20-5-121. Present Value and Basis of Calculation of Lump Sum Commutation Awards

A. The Commission shall calculate the present value of an award that is commuted to a lump sum under R20-5-122. The Commission shall not include in the present value calculation compensation paid before the filing of a lump sum commutation petition. The Commission shall use the filing date of a lump sum commutation petition to compute the present value of an award.

B. The Commission shall calculate the present value of an award at least annually, whether payable for a period of months or based upon the life of the employee, using the United States Life Tables, 2003, National Vital Statistics Reports, Vol. 54, Number 14, April 19, 2006, revised March 28, 2007, Table 1 incorporated by reference, and discounted at the rate established by the Commission. This incorporation does not include any later amendments or editions of the incorporated matter. A copy of this referenced material is available for review at the Commission and may be obtained from the U.S. Department of Health and Human Services, Centers for Disease Control. The rate established by the Commission is based on the following formula: The mean average of the three-month Treasury Bill rate on December 31 of each of the five years prior to July 1 of the current year. The rate, once calculated, is effective until the Commission calculates a new rate under this subsection. The discount rate is published in the minutes of the Commission meeting establishing the rate and is available upon request from the Commission.

Historical Note

Former Rule 21. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-121 recodified from R4-13-121 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3). Amended by final rulemaking at 10 A.A.R. 724, effective February 3, 2004 (Supp. 04-1). Amended by final rulemaking at 11 A.A.R. 2973, effective July 12, 2005 (Supp. 05-3). Amended by final rulemaking at 13 A.A.R. 4139, effective November 6, 2007 (Supp. 07-4).

R20-5-122. Lump Sum Commutation

A. A petition for a lump sum commutation in an unscheduled case shall not be approved unless the carrier approves of such petition.

B. If the lump sum commutation petition is approved by the carrier, the Commission's primary consideration in passing upon the petition will be whether more net income per month will be generated after receipt of the lump sum than the applicant is presently receiving. The granting of a lump sum petition will only be granted if the facts demonstrate a reasonable basis for financial betterment or rehabilitation of the claimant.

C. The burden of proving that the commutation of compensation satisfies the criteria in (B) is on the applicant.

Historical Note

Former Rule 22. Amended subsections (A) and (B) effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-122 recodified from R4-13-122 (Supp. 95-1).

R20-5-123. Rejection of the Act

If an employee serves upon an employer written notice under A.R.S. § 23-906, rejecting the provisions of the Act, the employer shall keep one copy of the rejection in the employer's business records.

Historical Note

Former Rule 23. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-123 recodified from R4-13-123 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-124. Rejection Not Applicable to New Employment

A. An election by an employee to reject the Act is not binding upon the employee in a new employment by another employer or following re-employment by the same employer.

B. If an employee is continuously employed and the employer changes workers' compensation insurance carriers, or form of doing business, the prior rejection is valid and remains in full force and effect.

Historical Note

Former Rule 24. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-124 recodified from R4-13-124 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-125. Rejection Before an Employer Complies with A.R.S. §§ 23-961(A) and 23-906(D)

An employee's rejection of the Act received by an employer before the employer complies with the requirements of A.R.S. §§ 23-961(A) or 23-906(D) is valid and continues in full force and effect whether the employer subsequently obtains workers' compensation coverage under A.R.S. § 23-961(A), posts the notice required under A.R.S. § 23-906(D), or makes available the forms required under A.R.S. § 23-906(D).

Historical Note

Former Rule 25. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-125 recodified from R4-13-125 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-126. Revocation of Rejection

A. An employee who rejects the Act may revoke that rejection by serving upon the employee's employer an original and one copy of a written notice of revocation. The written revocation shall state that the employee revokes the employee's prior rejection of the Act.

B. Within five days after receiving a written notice of revocation, an insured employer shall file with the employer's carrier, or workers' compensation pool, a copy of the notice of revocation. The employee has all rights to compensation and benefits provided by the Act for any injury that occurs after the employee serves the revocation notice upon the employer.

Historical Note

Former Rule 26. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-126 recodified from R4-13-126 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-127. Insurance Carrier Notification to Commission of Coverage

A. Every insurance carrier authorized to underwrite workers' compensation insurance in Arizona shall, within five days after undertaking to insure an employer, report that information to the Commission. The carrier shall provide the information on or in the same format as Commission form 0006. Form 0006 is available upon request from the Commission.

B. Failure to comply with this Section does not affect the validity of coverage.

Historical Note

Former Rule 27. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). Amended effective August 28, 1992 (Supp. 92-3). R20-5-127 recodified from R4-13-127 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-128. Medical Information Reproduction Cost Limitation; Definition of Medical Information

A. A health care provider shall not charge more than $.25 per page plus $10 per hour in associated clerical costs for reproduction of medical information when a party, an authorized representative of a party, or an entity that is authorized by a claimant in a workers' compensation matter makes a request for that information under A.R.S. § 23-908(C).

B. This Section applies to all A.R.S. § 23-908(B) health care providers providing medical services to injured claimants including health care providers that contract with copying services, recordkeeping services, or other similar services for the reproduction of medical information. For purposes of this Section, fees for reproduction of medical information charged by these services are considered the same as if the reproduction fees are charged by a health care provider.

C. For purposes of this Section, "medical information" means:

1. A communication recorded in any form or medium and maintained for the purpose of patient care, diagnosis, or treatment, including a report, note, order, test result, photograph, videotape, X-ray, and billing record;

2. A report of an independent medical examination that describes patient care or treatment;

3. A psychological record;

4. A medical record held by a health care provider including a medical record prepared by another provider; and

5. A recorded communication between emergency medical personnel and medical personnel concerning the care or treatment of a person.

D. For purposes of this Section, "medical information" does not include:

1. Materials that are prepared in connection with utilization review, peer review, or quality assurance activities, including records that a health care provider prepares under A.R.S. §§ 36-441, 36-445 or 36-2402; and

2. Recorded telephone and radio calls to and from a publicly operated emergency dispatch office relating to requests for emergency services or reports of suspected criminal activity.

Historical Note

Former Rule 28. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-128 recodified from R4-13-128 (Supp. 95-1). Section repealed; new Section made by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-129. Carrier or Workers' Compensation Pool Determinations Binding upon its Insured or Member; Self-Rater Exception

A. The Commission deems an insurance carrier or workers' compensation pool the agent of an employer insured by the carrier or workers' compensation pool.

B. The Commission also deems any action or determination taken or made by the insurance carrier or workers' compensation pool binding upon the employer. The employer may not protest or petition the Commission for relief concerning an action or determination taken by the employer's insurance carrier or workers' compensation pool unless the employer notifies the carrier or workers' compensation pool, and the Commission in writing that the employer disagrees with the carrier's or worker's compensation pool's action or determination within the time described in A.R.S. § 23-947.

C. This Section does not apply to employers insured under a Self-Rating Insurance Plan.

Historical Note

Former Rule 29. Amended subsection (A) effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-129 recodified from R4-13-129 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-130. Claims Office Location and Function; Requirements of Maintaining an Out-of-State Claims Office

A. Except as provided in subsection (B), each carrier that has or is underwriting workers' compensation insurance in Arizona, and each employer and workers' compensation pool that has been granted authority to act as a self-insurer by the Commission, shall maintain a workers' compensation claims office in Arizona. A carrier, self-insured employer, and self-insured workers' compensation pool shall process and pay workers' compensation claims and maintain the workers' compensation claims files described in R20-5-131 in its Arizona office. A carrier, self-insured employer, and self-insured workers' compensation pool shall notify the claims division of the Commission of the address of the Arizona claims office.

B. Except as provided in subsections (C) and (D), a carrier or self-insured employer may request authorization from the Commission to maintain an out-of-state claims office. The Commission shall grant a carrier or self-insured employer authorization to maintain an out-of-state claims office no later than 20 days after the carrier or self-insured employer provides satisfactory evidence of the following:

1. Existence of a toll-free telephone line to the out-of-state claims office;

2. Completion of Commission claims division's training by the individuals responsible for claims processing at the out-of-state office; and

3. Designation of a financial institution located in Arizona that will cash on demand checks issued by the out-of-state claims office.

C. The Commission shall not permit a self-insured workers' compensation pool to maintain a claims office out-of-state.

D. The Commission shall rescind its authorization to maintain an out-of-state claims office if a carrier or self-insured employer no longer meets the requirements of subsection (B) or fails to process and pay claims as required under the Act and this Article.

E. A carrier or self-insured employer maintaining an out-of-state claims office shall print the carrier's or self-insured employer's toll-free telephone number to the out-of-state claims office on all notices of claim status or other determinations issued by the out-of-state claims office. Failure to print the toll-free telephone number on a notice or other determination as required by this subsection does not affect the validity of the notice or determination.

F. For claims processing purposes, a carrier, self-insured employer, or self-insured workers' compensation pool may have more than one designated representative provided the carrier, self-insured employer, or self-insured workers' compensation pool:

1. Notifies the Commission at the time an insurance policy is issued or authorization to self-insure is granted; and

2. Notifies the Commission each time that the insurance policy or authorization to self-insure is renewed.

Historical Note

Former Rule 30. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-130 recodified from R4-13-130 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-131. Maintenance of Carrier and Self-insured Employer Claims Files; Contents; Inspection and Copying; Exchange of Medical Reports; Authorization to Obtain Medical Records

A. A carrier and self-insured employer shall maintain a workers' compensation claims file for each claimant. A carrier and self-insured employer shall include in a workers' compensation claims file all employer's reports, medical and hospital reports, awards, orders, notices of claims status, wage data, and all other items affecting the claim required by law to be maintained by a carrier or self-insured employer.

B. Subject to subsection (C), all parties, authorized representatives of parties, and authorized representatives of the Commission may inspect and copy items contained in a carrier's or self-insured employer's claims file within five days from the date the item is filed in the claims file.

C. If a carrier or self-insured employer maintains a claims file at an out-of-state claims office, the carrier or self-insured employer shall make the claims file available for copying and inspection to the persons listed in subsection (B) within 10 days after receiving a request for the file at a location in Arizona designated by the carrier or self-insured employer.

D. A carrier or self-insured employer shall furnish copies of a claims file within 10 days after receiving a request from any party, authorized representative of a party, and authorized representative of the Commission at a charge not to exceed $.25 per page. A carrier or self-insured employer may require prepayment of the copying charges if the requester or authorized representative has an account with the carrier or self-insured employer that is more than 30 days overdue.

E. A carrier or self-insured employer is not required to maintain in a claims file, or produce for inspection and copying:

1. Documents or matters representing the work product of the carrier or self-insured employer;

2. Documents or matters representing the work product of a carrier's or self-insured's attorney; or

3. Investigation and rehabilitation reports.

F. All medical records concerning a claimant's mental or physical condition that are in a party's possession shall be furnished, upon request, to another party in the same Commission proceeding.

G. Within 10 days of a request, a claimant shall provide to a party in a Commission proceeding involving the claimant, a release of information authorizing any attending, treating, or examining physician to provide records described in A.R.S. § 23-908(C).

Historical Note

Former Rule 31. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-131 recodified from R4-13-131 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-132. Parties' Notice to Commission of Intention to Impose Liability upon A.R.S. § 23-1065 Special Fund

If the notices required by A.R.S. § 23-1065 are not given to the Commission, the Commission shall not be bound by the testimony and evidence presented at a hearing as it relates to the imposition of liability upon the special fund.

Historical Note

Former Rule 32. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-132 recodified from R4-13-132 (Supp. 95-1).

R20-5-133. Claimant's Petition to Reopen Claim

A. A petition to reopen filed with the Commission under A.R.S. § 23-1061(H) shall be in writing, signed, and dated by the claimant or the claimant's authorized representative. A petition to reopen form is available from the Commission upon request.

B. A claimant shall provide to the Commission a copy of a medical report supporting the disability or condition justifying the reopening of the claim.

C. If the Commission does not receive the medical report described in subsection (B) within 14 days of receipt of a petition to reopen, the Commission shall notify all parties, in writing, that it has received a petition to reopen without the required medical report. A carrier or self-insured employer is not required to act on a petition to reopen that is received without the required medical report.

D. If the Commission receives a medical report in support of a petition to reopen and a claimant does not file a petition to reopen within 14 days of receipt of the medical report, the Commission shall forward the medical report to the carrier or self-insured employer for information purposes only. A carrier or self-insured employer is not required to take any action upon receipt of the medical report.

E. If the Commission receives a medical report in support of a petition to reopen from an out-of-state physician and a party objects to the report at least 20 days before a scheduled hearing, the Commission shall not consider the report or place the report in evidence unless the party submitting the report produces the author of the report for cross-examination either at the hearing or at a deposition. The party submitting into evidence the medical report prepared by an out-of-state physician shall pay the expenses of a deposition under this subsection.

Historical Note

Former Rule 33. Amended subsections (A), (C), (D) and (E) effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). Amended effective August 28, 1992 (Supp. 92-3). R20-5-133 recodified from R4-13-133 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-134. Petition for Rearrangement or Readjustment of Compensation Based Upon Increase or Reduction of Earning Capacity

A. A petition for rearrangement or readjustment of compensation filed with the Commission under A.R.S. § 23-1044(F) shall be in writing. A form is available from the Commission upon request.

B. A party or a party's authorized representative shall sign a petition for rearrangement or readjustment and include in the petition:

1. A statement of the basis upon which the rearrangement or readjustment of compensation is sought, and

2. Documentation in support of the petition.

C. The petition shall be signed by the employee or the employee's authorized representative, the employer, or, in the case of an insurance carrier, by its authorized representative, and shall include a statement of the basis upon which the rearrangement of compensation is sought accompanied by supportive documentary evidence.

D. If a self-insured employer, carrier, special fund division, or uninsured employer requests a hearing protesting the Commission's determination under A.R.S. § 23-1044(F) and the claimant resides outside of Arizona, the Commission may order the self-insured employer, carrier, special fund division, or uninsured employer to pay the claimant's transportation and living expenses to attend any scheduled hearing.

Historical Note

Former Rule 34. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). Amended effective August 28, 1992 (Supp. 92-3). R20-5-134 recodified from R4-13-134 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-135. Requests for Hearing; Form

A. Any interested party or the party's authorized representative, except as otherwise provided by law or this Article, may request a hearing on a claim. A request for hearing shall be in writing.

B. A Request for Hearing form is available upon request from the Commission and requests the following:

1. Employee, employer, insurance carrier, authorized representative, and claim identification;

2. Issue upon which the request for hearing is filed;

3. Requests for subpoenas of witnesses;

4. Desired location and length of time for the hearing;

5. Signature and address of requesting party.

Historical Note

Former Rule 35. Amended subsections (A) and (B) effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). Amended effective August 28, 1992 (Supp. 92-3). R20-5-135 recodified from R4-13-135 (Supp. 95-1).

R20-5-136. Time Within Which Requests for Hearing Shall be Filed

All requests for hearing shall be filed with the Commission as required under A.R.S. § 23-947 or other applicable law.

Historical Note

Former Rule 36. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-136 recodified from R4-13-136 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-137. Service of a Request for Hearing

A party filing a request for hearing shall serve a copy of the party's request for hearing upon all other parties at the same time that the party files the request for hearing with the Commission. The failure to serve a copy of a request for hearing upon other parties does not affect the validity of the hearing request.

Historical Note

Former Rule 37. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-137 recodified from R4-13-137 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-138. Hearing Calendar and Assignment to Administrative Law Judge; Notification of Hearing

A. The chief administrative law judge shall maintain a hearing calendar. The chief administrative law judge shall ensure that a request for hearing filed in accordance with this Article is:

1. Placed on the hearing calendar, and

2. Assigned to an administrative law judge who is designated as the presiding administrative law judge.

B. A presiding administrative law judge may hold a hearing at an earlier date than required under A.R.S. § 23-941(D), if all parties to the proceeding agree.

Historical Note

Former Rule 38. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-138 recodified from R4-13-138 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-139. Administrative Resolution of Issues by Stipulation Before Filing a Request for Hearing

A. At any time before the filing of a request for hearing, parties may resolve issues by written stipulation. The parties shall file the stipulation with the Commission for approval or other action as may be appropriate.

B. If the Commission determines that a written stipulation is reasonably supported by the facts, the Commission may approve the stipulation or enter an appropriate award without a request for hearing or hearing.

Historical Note

Former Rule 39. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-139 recodified from R4-13-139 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-140. Informal Conferences

A. A presiding administrative law judge may hold an informal conference to:

1. Resolve and dispose of disputed issues;

2. Narrow or limit the scope of the issues to be considered at a subsequent hearing;

3. Simplify the method of proof at a hearing; or

4. Eliminate the need for hearing if the facts appear to be uncontested.

B. A party may request that a pending hearing be disposed of by an informal conference, by filing a written request that:

1. Specifies the purpose for the conference consistent with subsection (A), and

2. Does not contain any argument regarding the merits of the case.

C. If the presiding administrative law judge determines that an informal conference is appropriate, the judge shall give notice to the parties of the time and place of the conference. The presiding administrative law judge may, without a request from a party, schedule an informal conference by giving five days notice to the parties of the time, place, and subject matter of the informal conference. The parties may waive the five day notice requirement of this subsection.

D. If a presiding administrative law judge disposes of issues in controversy at an informal conference, the presiding administrative law judge may enter an award without convening a hearing.

E. If a presiding administrative law judge disposes of, narrows, or limits some, but not all issues in controversy, the presiding administrative law judge shall prepare and mail to the parties a statement setting forth the issues to be resolved at a hearing. The presiding administrative law judge shall limit the hearing to the issues contained in the statement unless at the hearing all parties and, the presiding administrative law judge agree that the judge may consider issues beyond the scope of the statement.

F. Upon request by a party or upon a presiding administrative law judge's own motion, the presiding administrative law judge may order the parties to file a joint statement listing the disputed issues to be considered at formal hearing. The presiding administrative law judge shall give the parties at least 10 days to file the statement and shall order the parties to file the statement three to 10 days before the first scheduled hearing.

Historical Note

Former Rule 40. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-140 recodified from R4-13-140 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-141. Subpoena Requests for Witnesses; Objection to Documents or Reports Prepared by Out-of-State Witness

A. Subpoena requests for witnesses.

1. Subpoena request for non-medical witness. A party may request a presiding administrative law judge to issue a subpoena to compel the appearance of a non-medical witness by filing a written request with the presiding administrative law judge at least 10 days before the date of the first scheduled hearing.

2. Subpoena request for expert medical witness. A party may request a presiding administrative law judge to issue a subpoena to compel the appearance of an expert medical witness by filing a written request with the presiding administrative law judge at least 20 days before the date of the first scheduled hearing.

3. Statement of expected testimony. In the discretion of the presiding administrative law judge, the judge may order the party requesting a subpoena to file within five days of the order a written statement summarizing the substance of the testimony expected of the witness.

4. Issuance of Subpoena. A presiding administrative law judge shall issue a subpoena requested under this Section if the judge determines that the testimony of the witness is material and necessary and, if applicable:

a. The party files a timely statement under subsection (A)(3); or

b. The party shows at or before the first scheduled hearing that good cause exists for the party's failure to respond timely to the judge's order under subsection (A)(3).

5. Service of a subpoena. The Commission may serve a subpoena by mail unless the party requesting the subpoena requests personal service. If a party requests personal service of a subpoena, the Commission shall prepare the subpoena and the party requesting personal service shall:

a. Ensure that the subpoena is served in the same manner as in a civil action; and

b. Pay all expenses of the service.

B. A presiding administrative law judge shall not grant a party a continued hearing because a subpoenaed witness fails to appear at hearing unless the party filed a timely request for subpoena as required by subsection (A). If a party timely requested a subpoena for a witness who fails to appear at a scheduled hearing, the presiding administrative law judge may grant a continued hearing if the party requesting the subpoena demonstrates that:

1. The testimony of the witness is material and necessary, and

2. Good cause is shown as to why the witness failed to appear.

C. Witness Fees.

1. If a non-medical witness requests a witness fee, the party requesting the subpoena shall pay the non-medical witness fees and mileage provided for witnesses in civil actions in the Superior Court. If more than one party subpoenas the same witness, the parties shall divide the witness fee equally.

2. The Commission shall pay the witness fee to a medical witness under the Commission's medical fee schedule after the presiding administrative law judge approves the fee.

D. Objection to an out-of-state physician's report.

1. A presiding administrative law judge shall not consider or place into evidence a timely filed physician's report authored by a physician residing outside Arizona if a party files an objection to that report at least 20 days before the scheduled hearing, unless the party submitting the report produces the author for cross-examination either at the hearing or at a deposition.

2. Nothing in R20-5-143(G) precludes a party from taking or submitting into evidence a deposition of a physician taken under this subsection.

3. The party submitting into evidence a report of an out-of-state physician shall pay the expenses of a deposition taken under this subsection.

E. Objection to document prepared by out-of-state non-medical witness.

1. A presiding administrative law judge shall not consider or place into evidence a timely filed document prepared by a non-medical witness who resides outside Arizona if a party files an objection to that document at least seven days before the scheduled hearing unless the party submitting the document produces the author for cross-examination either at the hearing or at a deposition.

2. Nothing in R20-5-143 precludes a party from taking or submitting into evidence a deposition within the time limits set by a presiding administrative law judge.

3. The party submitting into evidence a document prepared by an out-of-state non-medical witness shall pay the expenses of a deposition taken under this subsection.

F. If a presiding administrative law judge approves, the testimony of a party's out-of-state non-medical or expert medical witness may be taken telephonically.

Historical Note

Former Rule 41. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-141 recodified from R4-13-141 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-142. In-State Oral Depositions

A. A party may take the oral deposition of another party or a witness residing in Arizona by serving a Notice of Deposition by Oral Examination upon the deponent and every party at least 10 days before the date of the oral deposition and at least 40 days before the first scheduled hearing.

B. A party may file with the presiding administrative law judge a written objection to the taking of an oral deposition within five days after service of the Notice of Deposition. If no request for hearing has been filed, a party shall file the written objection with the chief administrative law judge. The party objecting to the deposition shall:

1. State the basis for objecting to the deposition; and

2. Serve a copy of the party's objections on all parties.

C. The oral deposition shall not commence until the presiding administrative law judge rules on the written objection. The presiding administrative law judge shall rule on the written objection to the taking of an oral deposition within seven days after a party files a written objection by:

1. Ordering the deposition to proceed;

2. Ordering the deposition not be taken; or

3. Entering any other appropriate protective order.

D. The party taking the deposition shall comply with the Arizona Rules of Civil Procedure governing the taking of depositions.

E. The expense of any deposition shall be borne by the party taking the deposition but shall not include the expense of any other interested party.

F. A presiding administrative law judge shall not cancel or continue a hearing because a party fails to take or complete a deposition under this Section.

G. A deposition taken under this Section shall only be used to impeach a witness during a hearing, except that, in the exercise of discretion, the presiding administrative law judge may admit a deposition into evidence for another purpose if:

1. The deponent is deceased at the time of the hearing, or

2. All parties agree.

H. A party may take a telephonic deposition under this Section either by agreement of the parties or by order of the presiding administrative law judge in the exercise of the judge's discretion.

Historical Note

Former Rule 42. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-142 recodified from R4-13-142 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-143. Out-of-State Oral Depositions

A. A party shall obtain permission from a presiding administrative law judge before taking an out-of-state oral deposition of another party or a witness by filing a written request with the presiding administrative law judge that contains:

1. The name and address of the party or witness to be deposed, and

2. Each reason why the party's or witness' testimony is necessary.

B. The party requesting permission to take the out-of-state deposition shall serve a copy of the request upon each party.

C. If no objection to the request for permission to take the deposition is filed under subsection (D) the presiding administrative law judge shall, within seven days from the date of the request, grant or deny permission to take the deposition.

D. A party may file with the presiding administrative law judge a written objection to the taking of an out-of-state oral deposition within five days after being served with a request to take the out-of-state deposition. The party objecting to the out-of state deposition shall:

1. State the basis for objecting to the deposition; and

2. Serve a copy of the party's objections on each party.

E. The oral deposition shall not commence until the presiding administrative law judge rules on the written objection. The presiding administrative law judge shall rule on the written objection to the taking of an out-of-state oral deposition within seven days after a party files the written objection by:

1. Ordering the deposition to proceed,

2. Ordering the deposition not be taken, or

3. Entering any other appropriate protective order.

F. A party shall not take more than two depositions per hearing under this Section unless a presiding administrative law judge, upon a showing of good cause, approves the taking of additional depositions.

G. In the exercise of discretion, the presiding administrative law judge may admit into evidence a deposition taken under this Section if the transcript of the deposition is filed with the Commission at least five days before any scheduled hearing or as otherwise directed by the presiding administrative law judge. If the transcript of the deposition is not timely filed under this subsection, the administrative law judge shall not consider the deposition for any purpose unless the parties and the administrative law judge agree that the deposition may be considered.

H. Parties may take telephonic depositions under this Section either by agreement of the parties or by order of a presiding administrative law judge in the exercise of the administrative law judge's discretion.

I. A party taking a deposition taken under this Section shall comply with R20-5-142(A), (D), (E) and (F).

Historical Note

Former Rule 43. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-143 recodified from R4-13-143 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-144. Written Interrogatories

A. After a party files a request for hearing with the Commission, any party may serve written interrogatories upon another party. A party shall serve written interrogatories at least 40 days before the scheduled hearing.

B. A party shall not serve more than 25 interrogatories, including subsections.

C. A party shall serve answers to the interrogatories upon all parties within 10 days after service of the interrogatories. A party shall not file answers to the interrogatories with the Commission.

D. A presiding administrative law judge shall not cancel or continue a hearing because a party fails to answer interrogatories under this Section.

E. A party shall only use written interrogatories served under this Section to impeach a witness during a hearing, except that, in the exercise of discretion, the presiding administrative law judge may admit the interrogatory answers into evidence for another purpose if the party answering the interrogatories is deceased at the time of the scheduled hearing.

Historical Note

Former Rule 44. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-144 recodified from R4-13-144 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-145. Refusal to Answer or Attend; Motion to Compel; Sanctions Imposed

A. If a party or deponent refuses to answer any question asked at a deposition under R20-5-142 or R20-5-143, the party asking the question shall either complete the deposition in other matters or adjourn the deposition. With notice to all persons affected by the deponent's refusal to answer a question, the party asking the question may apply to the presiding administrative law judge for an order compelling the deponent to answer the question.

B. If a party refuses to answer an interrogatory served under R20-5-144, the party serving the interrogatory may submit the interrogatory to the presiding administrative law judge and apply for an order compelling the answer.

C. If a presiding administrative law judge issues an order compelling an answer under subsection (A) or (B) and finds that a refusal to answer is without substantial justification, the presiding administrative law judge shall require the party or witness refusing to answer or the authorized representative advising that party or witness not to answer, or both of them, to pay to the party asking the question:

1. Reasonable attorney's fees incurred to obtain the order compelling the answer, and

2. Reasonable expenses that will be incurred to obtain the requested answer.

D. If a presiding administrative law judge denies a motion to compel an answer under subsection (A) or (B), and finds that the motion was made without substantial justification, the presiding administrative law judge shall require the party filing the motion, or the parties' authorized representative advising that party to make the motion, or both of them, to pay to the party or witness refusing to answer, reasonable attorney's fees incurred in opposing the motion.

E. In addition to the sanctions authorized under R20-5-157, a presiding administrative law judge may, upon a party's motion, impose the following sanctions upon a party if the party, or an officer or managing agent of that party, willfully fails to appear for a deposition after being served with proper notice of the deposition, or fails to serve answers to interrogatories after proper service of the interrogatories:

1. Strike out all or any part of a document filed by the party;

2. Dismiss the action or proceeding, or any part of the action or proceeding;

3. Order the suspension or forfeiture of compensation; or

4. Preclude the introduction of evidence.

F. The party filing a motion under subsections (A), (B), or (E) shall attach to the motion:

1. The statement required under R20-5-105(E) and

2. A proposed order that includes the relief requested and a service page with the names and addresses of all parties served.

Historical Note

Former Rule 45. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-145 recodified from R4-13-145 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-146. Repealed

Historical Note

Former Rule 46. R20-5-146 recodified from R4-13-146 (Supp. 95-1). Section repealed by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-147. Videotape Recordings and Motion Pictures

A. A party proposing to offer a videotape recording or motion picture into evidence at a Commission hearing shall provide written notice to the Commission and all parties at least 40 days before the first scheduled hearing.

B. If a party serves a written request to view a videotape recording or motion picture upon the party proposing to submit the videotape recording or motion picture into evidence, the party proposing to offer the videotape recording or motion picture into evidence shall provide the necessary facilities and equipment to allow the other party to view the videotape recording or motion picture no later than 25 days before the first scheduled hearing.

C. A presiding administrative law judge may admit into evidence a videotape recording or motion picture if the videotape recording or motion picture:

1. Is a reasonable and accurate representation of the scene, person, object, or action portrayed; and

2. Will aid in the understanding of the issues before the presiding administrative law judge.

D. The party submitting the videotape recording or motion picture into evidence shall ensure that commentary, interrogation, dialogue, or testimony are not a part of the videotape recording or motion picture.

E. A presiding administrative law judge shall not cancel or continue a hearing because a party fails to view a videotape recording or motion picture as provided in this Section.

F. This Section does not apply to:

1. Videotape recordings or motion pictures obtained by surveillance, or

2. Videotape recordings or motion pictures of medical procedures performed by a physician.

Historical Note

Former Rule 47. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-147 recodified from R4-13-147 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-148. Burden of Presentation of Evidence; Offer of Proof

A. A party shall rest at the conclusion of the presentation of the party's evidence. If there is a dispute as to which party has the burden of proof, the presiding administrative law judge shall direct who has the burden of proof.

B. If a presiding administrative law judge prohibits a witness from answering a question, the presiding administrative law judge shall permit an offer of proof in the form of an avowal or in writing.

Historical Note

Former Rule 48. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-148 recodified from R4-13-148 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-149. Presence of Claimant at Hearing; Notice of a Parties' Non-Appearance at Hearing; Assessment of Hearing Costs for Non-Appearance

A. A claimant, whether or not represented by an attorney, shall appear personally at any hearing without the necessity of subpoena unless excused by the presiding administrative law judge.

B. Subject to subsection (A), at least three days before a scheduled hearing a party shall notify the presiding administrative law judge of any non-appearance by a party or party's authorized representative that requires the judge to cancel or reschedule the hearing.

C. If a party fails to notify the presiding administrative law judge as required under subsection (B), the presiding administrative law judge may order the party or the party's authorized representative to reimburse the Commission for hearing expenses and costs incurred by the Commission including fees of expert medical witnesses and other witness fees.

Historical Note

Former Rule 49. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-149 recodified from R4-13-149 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-150. Joinder of a Party

A. An administrative law judge may join as a party any person, firm, corporation, or other entity in favor of whom or against whom a right to relief may exist and over whom the Commission may acquire jurisdiction.

B. Joinder may be made upon application of any party or upon the presiding administrative law judge's own motion.

C. A party seeking to join another person, firm, corporation, or other entity shall file a motion requesting joinder with the presiding administrative law judge at least 30 days before hearing. The moving party shall serve a copy of the motion upon the person, firm, corporation, or other entity for whom joinder is requested, and upon all other parties.

D. If the requirements of this Section are met, the presiding administrative law judge shall join as a party the person, firm, corporation, or other entity for whom joinder is requested and shall issue a notice advising the parties of the joinder.

Historical Note

Former Rule 50. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-150 recodified from R4-13-150 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-151. Special Appearance

Any party against whom a claim may exist under the Act, or against whom a contingent liability may exist under the Act, and over whom the Commission has not acquired jurisdiction, may enter a special appearance. A special appearance made under this Section does not invoke the jurisdiction of the Commission.

Historical Note

Former Rule 51. R20-5-151 recodified from R4-13-151 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-152. Resolution of Issues by Stipulation After the Filing of a Request for Hearing; Notice of Resolution; Assessment of Hearing Costs

A. Subject to the requirement of subsection (D), parties may stipulate to any fact or issue after a party files a request for hearing. The stipulation may be in writing or made orally at the time of hearing.

B. A stipulation is binding upon the parties unless a presiding administrative law judge or the Commission grants the parties permission to withdraw the stipulation.

C. If a stipulation is not reasonably supported by the evidence, a presiding administrative law judge or the Commission, may set aside or refuse to accept the stipulation and proceed to determine the true facts.

D. A party shall notify a presiding administrative law judge of any stipulation, compromise or settlement agreement, or withdrawal of a hearing request that makes a hearing unnecessary at least three days before a scheduled hearing.

E. The presiding administrative law judge may order a party or parties to reimburse the Commission for hearing expenses and costs incurred by the Commission including fees of expert medical witnesses and other witness fees if a party fails to notify the presiding administrative law judge as required under subsection (D).

Historical Note

Former Rule 52. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-152 recodified from R4-13-152 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-153. Exclusion of Witnesses

Any party may request that all other witnesses except the parties be excluded from the hearing until called to testify. The presiding administrative law judge may, in the judge's discretion, grant or deny the request. If the request is granted, the presiding administrative law judge shall admonish each witness not to discuss the witness's testimony with anyone other than attorneys on the case.

Historical Note

Former Rule 53. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-153 recodified from R4-13-153 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-154. Correspondence to Administrative Law Judge

A person submitting correspondence, including subpoena requests, to an administrative law judge concerning a matter pending before the administrative law judge, shall contemporaneously serve a copy of the correspondence upon all other parties, or if represented, the parties' authorized representatives. The administrative law judge shall not consider correspondence or subpoena requests to be evidence except by agreement of all parties to the matter.

Historical Note

Former Rule 54. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-154 recodified from R4-13-154 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-155. Filing of Medical and Non-Medical Reports Into Evidence; Request for Subpoena to Cross-examine Author of Report Submitted into Evidence; Failure to Timely Request Subpoena for Author

A. Except as provided in R20-5-114(C), a party filing a medical report or hospital record into evidence ("medical report") that is not already contained in the Commission's claims file, shall file the medical report with the presiding administrative law judge at least 25 days before the first scheduled hearing.

B. A party filing into evidence a document, report, instrument, or other written matter not described in subsection (A) ("non-medical report") that is not already contained in the Commission's claims file, shall file the non-medical report with the presiding administrative law judge at least 15 days before the first scheduled hearing.

C. The party filing a medical or non-medical report into evidence shall serve a copy of the report to all other parties.

D. A presiding administrative law judge shall not receive into evidence any medical or non-medical report that is not filed as required under this Section. If the report has been placed in the Commission's claims file, the presiding administrative law judge shall remove the report from the Commission's claims file and return the report to the filing party.

E. The presiding administrative law judge may suspend the requirements of this Section;

1 Upon a showing of good cause; or

2. If the parties agree that the judge may accept the medical or non-medical report into evidence.

F. The party filing a medical or non-medical report under this Section shall file a cover letter with the report stating:

1. The party's identity;

2. The reports filed; and

3. Proof of service of the reports upon the other parties.

G. A party seeking to cross-examine the author of any medical or non-medical report filed into evidence shall request a subpoena under R20-5-141.

H. If a party fails to timely request a subpoena under this Section and R20-5-141, the party waives the right to cross-examine the author of any medical or non-medical report filed into evidence and the presiding administrative law judge shall admit the medical or non-medical report in evidence.

Historical Note

Former Rule 55. Amended subsections (A) and (D) effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-155 recodified from R4-13-155 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-156. Continuance of Hearing

A. A party may request a continuance of a scheduled hearing. If a party shows good cause, a presiding administrative law judge may grant a request that a hearing be continued.

B. If at the conclusion of a hearing a party seeks to continue the hearing to introduce additional evidence, the party shall state specifically and in detail:

1. The nature and substance of the additional evidence,

2. The names and addresses of additional witnesses, and

3. The reason the party was unable to produce the evidence or witnesses at the hearing.

C. A presiding administrative law judge may deny a request for a continuance under subsection (B) if the presiding administrative law judge determines that, with the exercise of due diligence, the evidence or testimony could have been produced or the evidence or testimony would be cumulative, immaterial, or unnecessary.

D. A presiding administrative law judge may, on the judge's own motion, continue a hearing and order further examinations or investigations that the judge determines are warranted.

E. If more than 40 days before the first scheduled hearing, a presiding administrative law judge reschedules the hearing discovery and filing deadlines under this Article shall be calculated with respect to the new hearing date.

F. If less than 40 days before the first scheduled hearing, a presiding administrative law judge reschedules the hearing discovery and filing deadlines under this Article shall be calculated with respect to the original hearing date.

Historical Note

Former Rule 56. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-156 recodified from R4-13-156 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-157. Sanctions

A. A presiding administrative law judge may impose the following sanctions against any party or authorized representative of a party who fails to comply with this Article or fails to comply with an order of the presiding administrative law judge or Commission:

1. Dismissal of the party's request for hearing;

2. Refusal to permit the introduction of evidence by the party; or

3. Assessment of reasonable attorney's fees and costs against the sanctioned party or authorized representative of a party.

B. If a party shows good cause, a presiding administrative law judge or the Commission may relieve a party of sanctions imposed under subsection (A).

Historical Note

Former Rule 57. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-157 recodified from R4-13-157 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-158. Service of Awards and Other Matters

A. An award, decision, order, subpoena, notice, document, or other matter required by the Act, this Article, or other law to be served shall be made upon a party or, if represented, the party's authorized representative. Service upon the authorized representative is service upon the party.

B. Service may be made and is deemed complete by:

1. Depositing the document or matter in the United States mail, with postage prepaid, addressed to the party served at the address as shown by the records of the Commission; or

2. Personal service in the same manner as a summons is served in a civil action.

C. Proof of service may be made by an affidavit or oral testimony of the person making such service.

Historical Note

Former Rule 58. Amended subsection (C) effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-158 recodified from R4-13-158 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-159. Record for Award or Decision on Review

A presiding administrative law judge's award or decision under A.R.S. § 23-942 or award or decision upon review under A.R.S. § 23-943 shall be based upon:

1. The record as it exists at the conclusion of the hearings, and

2. Any memoranda provided under A.R.S. § 23-943(E) or requested by the presiding administrative law judge.

Historical Note

Former Rule 59. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-159 recodified from R4-13-159 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-160. Application to Set Attorney Fees Under A.R.S. § 23-1069

A. For purposes of A.R.S. § 23-1069, "final disposition of a case" occurs when all compensation benefits have been released to a claimant.

B. A claimant or attorney filing an application for attorney's fees under A.R.S. § 23-1069 shall serve notice of the application to all parties, including if applicable, the insurance carrier, self-insured employer, or special fund division.

C. Upon the filing of an application, the attorney and claimant shall, provide information to the Commission to enable the Commission to award reasonable attorney's fees.

D. Attorney's fees awarded under this Section shall be set by the Commission, an administrative law judge, or other authorized representative of the Commission.

Historical Note

Former Rule 60. Amended effective March 1, 1987, filed February 26, 1987 (Supp. 87-1). R20-5-160 recodified from R4-13-160 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-161. Stipulations for Extensions of Time

Stipulations for extensions of time in which to file papers or briefs in the various courts shall be received and signed by the Chief Counsel or other members of the Legal Department.

Historical Note

Former Rule 61. R20-5-161 recodified from R4-13-161 (Supp. 95-1).

R20-5-162. Legal Division Participation

The chief counsel and other members of the legal staff of the Commission who participate in proceedings or matters under the Act and this Article do so on behalf of the Commission.

Historical Note

Former Rule 62. R20-5-162 recodified from R4-13-162 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-163. Bad Faith and Unfair Claim Processing Practices

A. For purposes of A.R.S. § 23-930, an employer, self-insured employer, insurance carrier, or claims processing representative commits "bad faith" if the employer, self-insured employer, insurance carrier, or claims processing representative:

1. Institutes a proceeding or interposes a defense that is not:

a. Well-grounded in fact;

b. Warranted by existing law; or

c. A good faith argument for the extension, modification, or reversal of existing law;

2. Unreasonably delays:

a. Payment of benefits; or

b. Authorization for, or receipt of, medical benefits or treatment;

3. Unreasonably underpays benefits;

4. Unreasonably terminates benefits;

5. Intentionally misleads a claimant as to applicable statutes of limitation, benefits, or remedies available to the claimant under the Act or under this Article; or

6. Unreasonably interferes with or obstructs the claimant's right to choose the claimant's attending physician, except in cases involving a self-insured employer under A.R.S. § 23-1070.

B. For purposes of A.R.S. § 23-930, an employer, self-insured employer, insurance carrier, or claims processing representative commits "unfair claim processing practices" if the employer, self-insured employer, insurance carrier, or claims processing representative:

1. Unreasonably issues a notice of claim status without adequate supporting information in its possession or available to it;

2. Unreasonably fails to acknowledge communications from the Commission, an unrepresented claimant, or a claimant's attorney with respect to a claim;

3. Fails to act reasonably and promptly upon communications from the Commission, an unrepresented claimant, or a claimant's attorney with respect to a claim;

4. Directly advises a claimant not to consult or obtain the services of an attorney; or

5. Communicates directly, for an improper purpose, with a claimant represented by an attorney.

C. A person alleging bad faith or unfair claim processing practices ("complainant") shall file a written complaint with the claims manager of the Commission. The complainant, or the complainant's authorized representative, shall sign the complaint.

D. The complaint shall describe the specific actions of the employer, self-insured employer, insurance carrier, or claims processing representative, that are alleged to constitute bad faith or unfair claim processing practices. A complaint form is available upon request from the Commission.

E. Upon receipt of a complaint under this subsection, the claims manager of the Commission shall serve the complaint upon all parties.

F. If the Commission acts on its own motion under A.R.S. § 23-930(A), the claims manager shall mail a notice of alleged bad faith or unfair claim processing practices to the claimant or the claimant's authorized representative and the:

1. Employer;

2. Self-insured employer;

3. Insurance carrier; or

4. Claims processing representative.

G. The person or entity named in a complaint or notice served under A.R.S. § 23-930 and this Section shall file with the claims manager a written response to the complaint or notice, within 30 days after service by the Commission of the complaint or notice.

H. The person or entity filing a written response shall serve a copy of the response upon the complainant, or the complainant's authorized representative, if represented.

I. If the person or entity named in a complaint or notice served under A.R.S. § 23-930 and this Section fails to file a written response, the Commission shall consider the absence of a response a denial of the allegations of the complaint or notice.

J. Upon receipt of a written response, or upon the expiration of 30 days if no response is filed, the Commission shall enter an award as it deems, in its discretion, appropriate under A.R.S. §§ 23-930(B) or (C).

Historical Note

Adopted as an emergency effective February 1, 1988, pursuant to A.R.S. § 41-1026, valid for only 90 days (Supp. 88-1). Emergency expired. Amended and readopted as an emergency effective April 29, 1988, pursuant to A.R.S. § 41-1026, valid for only 90 days (Supp. 88-2). Readopted without change as an emergency effective August 1, 1988, pursuant to A.R.S. § 41-1026, valid for only 90 days (Supp. 88-3). Readopted without change as an emergency effective November 9, 1988, pursuant to A.R.S. § 41-1026, valid for only 90 days (Supp. 88-4). Emergency expired. Amended and readopted as an emergency effective July 11, 1989 (Supp. 89-3). Adopted as a permanent rule effective October 4, 1989 (Supp. 89-4). R20-5-163 recodified from R4-13-163 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

R20-5-164. Human Immunodeficiency Virus and Hepatitis C Significant Exposure; Employee Notification;
Reporting; Documentation; Forms

A. An employer subject to the Act shall notify its employees of the requirements of A.R.S. § 23-1043.02 and § 23-1043.03 by posting the Commission notice titled "Work Exposure to Bodily Fluids" in a conspicuous place immediately next to the "Notice to Employees" notice required under A.R.S. § 23-906(D).

B. A properly posted "Work Exposure to Bodily Fluids" notice constitutes sufficient notice to employees of the requirements of a prima facie case under A.R.S. § 1043.02(B) and § 23-1043.03(B).

C. An employer's insurance carrier, claims processor, or workers' compensation pool shall provide the "Work Exposure to Bodily Fluids" notice to the employer. This notice is also available from the Commission upon request.

D. An employer shall make readily available to its employees the Commission form described in R20-5-106 titled "Report of Significant Work Exposure to Bodily Fluids." An employer's insurance carrier, claims processor, or workers' compensation pool shall provide the "Report of Significant Work Exposure to Bodily Fluids" to the employer. This form is also available from the Commission upon request.

E. If an employee sustains a significant exposure as defined in A.R.S. § 23-1043.02(G) or § 23-1043.03(G), the employee shall complete, date, and sign a "Report of Significant Work Exposure to Bodily Fluids" form. The employee or employee's authorized representative shall give to the employer the completed, dated, and signed form. The employer shall return one copy of the completed form to the employee or to the employee's authorized representative. Nothing in this subsection limits the requirements to report an injury or file a claim under the Act.

F. If an employee submits a written report of a significant exposure to an employer, but does not use the Commission form titled "Report of Significant Work Exposure to Bodily Fluids," the employer shall provide the employee the Commission form within five calendar days after receiving the employee's initial written report.

G. The date of the receipt by the employer or its authorized representative of the employee's initial report is the date used to compute the time period prescribed in A.R.S. § 23-1043.02(B)(2) and § 23-1043.03(B)(2) if:

1. The initial report contains the information required in the "Report of Significant Work Exposure to Bodily Fluids" form; or

2. The employee gives to the employer the completed Commission form within 10 calendar days after the employee's receipt of the Commission form.

H. Failure or refusal by the employer to provide the Commission form to the employee shall not be a defense to a prima facie claim under A.R.S. § 23-1043.02(B) and § 23-1043.03(B).

I. In investigating the circumstances and facts surrounding an employee's report to an employer of a significant exposure to bodily fluids under A.R.S. § 23-1043.02(C) and § 23-1043.03(C), the employer, or its carrier, or any employees, agents or contractors of either the employer or carrier, shall not disclose to any person, except as authorized or required by law, that the reporting employee, or any witness or alleged source of exposure, may have or did contract the human immunodeficiency virus, acquired immune deficiency syndrome, or hepatitis C. However, an employer, its carrier or their respective attorneys, may:

1. Direct an agent to investigate the employee's report of significant exposure to bodily fluids; and

2. Communicate with the investigating agent about the conduct and results of the investigation.

J. As required under the federal Occupational Safety and Health Standard for Bloodborne Pathogens, 29 CFR 1910.1030, an employer shall pay for the testing required by A.R.S. § 23-1043.02.

Historical Note

Adopted effective April 9, 1992 (Supp. 92-2). R20-5-163 recodified from R4-13-163 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effective August 17, 2001 (Supp. 01-3).

Article 2. SELF-INSURANCE REQUIREMENTS FOR INDIVIDUAL EMPLOYERS AND WORKERS' COMPENSATION POOLS ORGANIZED UNDER A.R.S. §§ 11-952.01(B) AND 41-621.01

R20-5-201. Definition of Self-insurer

"Self-insurer" or "self-insured" means an individual employer or a workers' compensation pool as defined in A.R.S. §§ 11-952.01(B) or 41-621.01(A) that is authorized by the Commission to self-insure for workers' compensation.

Historical Note

Former Rule I. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-201 recodified from R4-13-201 (Supp. 95-1). Amended effective October 9, 1998 (Supp. 98-4).

R20-5-202. Self-insurance Application; Requirements

A. All applicants who initially apply for self-insurance on or after the certification of the 1993 rule amendments by the Attorney General and filing of those amendments with the Secretary of State shall:

1. Complete, date, sign, and file with the Commission an application for authority to self-insure on a form that can be obtained from the Commission and contains the following information:

a. Applicant identification including names, addresses, corporation, subsidiary, and partnership information;

b. Nature of business;

c. History of business in Arizona and elsewhere;

d. Payroll data;

e. Work force data;

f. Insurance data;

g. Claims history;

h. Method proposed to finance self-insurance liability and reserves;

i. Program for compliance with occupational safety and health standards, rules, and laws of this state;

j. Program to finance medical, surgical, and hospital benefits including information on organization responsible for processing claims;

k. Names and addresses of Arizona agents upon whom legal notice of proceedings before the Commission is served;

l. Authorization for signator;

m. Authorization by corporate resolution, or board of trustees resolution, if applicable; and

n. Statement attesting to the truthfulness of the information in the application.

2. Maintain an office in Arizona. Payroll reports and other materials relating to the calculation of premiums shall be readily available at this office for inspection and audit by the Commission or its authorized representative.

3. In the first year of operation, obtain a guaranty bond and specific excess insurance or excess of loss insurance in an amount as provided in R20-5-206(D)(1) to adequately protect against catastrophic losses. Starting with the second year of operation, an individual self-insurer shall choose one of the two options provided in R20-5-206(D). The insurance shall contain:

a. A 60-day notice of termination; and

b. A provision that insolvency of the self-insurer does not relieve the excess insurer of liability assumed under the contract.

B. An individual applicant for self-insurance that is not a member of a workers' compensation pool, in addition to complying with subsection (A) of this rule, shall:

1. Have been engaged in business in Arizona for at least five years prior to the date of application.

2. Provide an annual payroll in this state of at least $2,000,000 (this payroll may include the combined payrolls of all subsidiary companies carried under the self-insurance authorization; the requirements of this subsection do not apply to political subdivisions of this state) and meet either of the following thresholds:

a. Total reported assets of at least $50,000,000; or

b. Combination of $10,000,000 in net worth and a cash flow ratio of .25.

3. Provide the Commission with an internally certified copy of the employer's audited or reviewed financial statements for the most current and prior two years. The Commission's review of the applicant's financial statements includes the following:

a. Calculation of the following ratios:

i. Cash Flow Ratio - Cash flow from operations divided by current liabilities which is an indication of the ability of the applicant to meet current obligations out of cash flow.

ii. Current Ratio - Current assets divided by current liabilities which indicate the applicant's ability to service current obligations.

iii. Debt Status Ratio - Net worth divided by total liabilities which indicate the proportion of funds supplied by the applicant relative to the funds supplied by creditors.

iv. Profitability Ratio - Profit before taxes, divided by total assets, multiplied by 100 which measures the return on assets and the efficiency of assets employed by the firm.

v. Quick Ratio - Cash and equivalents, plus trade receivables, divided by current liabilities which express the degree to which the applicant's liabilities are covered by the most liquid current assets.

vi. Working Capital Ratio - Working capital divided by sales which measures the sufficiency of working capital to support sales.

b. Comparison of the applicant's ratios with the ratios of existing self-insurers in the same or a closely related industry.

c. Review of notes to the financial statement.

d. Review of management report of operation and other information published in the annual statement.

4. Provide the Commission with the names of all other jurisdictions in which it has been granted authority to self-insure and the effective dates of such authorization.

5. Provide the Commission with the names of all other jurisdictions in which its application to self-insure has been denied or its authority to self-insure has been suspended or revoked, and the dates and reasons for such denials, suspensions, or revocations.

C. In addition to the requirements of subsection (A), a workers' compensation pool applicant for self-insurance shall:

1. File with the application for self-insurance a completed indemnity agreement on a form that can be obtained from the Commission, signed by a duly authorized agent of the pool jointly and severally binding the pool and each of its members to comply with the provisions of A.R.S. Title 23, Chapter 6 and rules adopted pursuant to Chapter 6. The indemnity agreement shall contain the following information:

a. Name of the group, with names of trustees and members;

b. Amount of the corporate surety bond;

c. Name of the service agent of the group, including a description of the agent's duties and responsibilities; and

d. Statement that the group will defend and assume liabilities in the name of and on behalf of any member of the group.

2. Provide a copy of the most recently audited financial report of the pool prepared by a certified public accountant, including a copy of the examination report prepared by the Department of Insurance and that Department's recommendations, if any.

3. Provide the names and addresses of the members of the board of trustees of the pool.

4. Provide the agreement indicating the terms and conditions of coverage within the pool including any exclusions of coverage.

5. An intergovernmental agreement filed with the Commission pursuant to A.R.S. § 11-952.01(G)(7) shall contain the provisions of A.R.S. § 11-952.01(I).

Historical Note

Former Rule II. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-202 recodified from R4-13-202 (Supp. 95-1).

R20-5-203. Self-insurance Renewal Application; Requirements

A. All individual applicants for self-insurance renewal authority shall:

1. Complete, date, sign, and file with the Commission an Option Election form that can be obtained from the Commission when providing a bond or other security as required by R20-5-206(D) for the payment of workers' compensation liabilities. The Option Election form shall list the following:

a. Total outstanding workers' compensation accrued liabilities for all previous periods of self-insurance;

b. Amount of future reserves;

c. Amount of calculated bond based on the amount of total estimated future liability x 125%.

For those self-insurers complying with R20-5-206(D)(1), the self-insurer shall additionally provide a certificate of excess insurance.

2. Provide a continuation certificate for the guaranty bond or letter of credit signed by an authorized representative of the surety or bank. The amount of the bond, letter of credit, or securities shall equal the amount submitted on the Option Election form.

3. Submit a copy of the most recent certified annual financial statement at least 30 days prior to the anniversary date of the authorization to self-insure. A parent company that has executed a guaranty for a subsidiary shall also submit a copy of its most recent certified annual financial statement within the same time period required by this subsection.

4. Provide a Guaranty To Satisfy Compensation Claims Under Workers' Compensation Act in Arizona form as provided in R20-5-206(C) completed, signed, and dated by the parent company of a subsidiary self-insurer if the parent company of the self-insurer is different from the last filing approved by the Commission.

B. All workers' compensation pool applicants for self-insurance renewal authority shall:

1. Provide information to the Commission as required under subsections (A)(1), (2), and (3).

2. Provide an updated indemnity agreement pursuant to R20-5-202(C)(2) for changes occurring since the last filing approved by the Commission.

C. All applicants for renewal shall continue to maintain an office in Arizona as described in R20-5-202(A)(2).

D. The Commission's analysis for renewal includes the following:

1. A review of the items required by R20-5-202(A).

2. A review of the claims profile which includes a review of the preceding year's claims filed, claims denied, and denial rate. Denial rates in excess of 8% require additional analysis by the Commission's Claims Division to establish the reasons for the denials.

3. A review of the self-insurer's financial profile which includes a review of the financial data as described in R20-5-202(B)(3).

Historical Note

Former Rule III. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-203 recodified from R4-13-203 (Supp. 95-1).

R20-5-204. Denial of Authorization to Self-insure

If the Commission denies an application for authorization to self-insure for failure to comply with A.R.S. § 23-961(A)(2) or for failure to comply with the requirements of R20-5-202 or R20-5-203, the Commission shall issue an Order to the applicant refusing authorization to self-insure. An appeal of such denial may be made pursuant to A.R.S. § 23-945.

Historical Note

Former Rule IV. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-204 recodified from R4-13-204 (Supp. 95-1).

R20-5-205. Resolution of Authorization

If the Commission grants authorization to self-insure, a Resolution of Authorization to Self-insure will be issued. The issuance of the Resolution shall be conditioned upon the deposit with the Commission, prior to the effective date stated in the Resolution, of the bonds or other securities specified by A.R.S. § 23-961(A)(2) and this Article.

Historical Note

Former Rule V. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-205 recodified from R4-13-205 (Supp. 95-1).

R20-5-206. Posting of Guaranty Bond; Effective Date; Execution; Subsidiary Company Guaranty Bond; Parent Company Guaranty; Bond Amounts

A. Any guaranty bond filed with the Commission shall bear the same effective date as the effective date of the Resolution of Authorization to Self-insure and shall be for a minimum of one year, subject to annual renewal.

B. A guaranty bond shall be made by a company authorized and licensed to transact the business of fidelity and surety insurance in Arizona. The guaranty bond shall be executed by a duly authorized agent of the surety and be countersigned by a licensed resident agent. A bond form can be obtained from the Commission and contains the following information:

1. Applicant identification;

2. Amount of the bond;

3. Conditions of the bond obligations; and

4. Statement regarding responsibility for fees and costs associated with collection of the bond and responsibility for payment of any award or judgment against the surety.

C. For the Commission to issue a Resolution of Authorization to Self-insure to a subsidiary company, the parent company shall first execute a guaranty for the subsidiary on a form that can be obtained from the Commission. The parent company shall submit its most recent audited financial statement to the Commission for analysis to determine the ability of the parent company to meet its obligations under the guaranty and under A.R.S. § 23-961(A)(2). The guaranty shall state that the parent company agrees and guarantees on behalf of the subsidiary that any and all liabilities against the subsidiary, under or by virtue of the Workers' Compensation Laws of Arizona, shall be promptly and fully paid, and the subsidiary company has on deposit a guaranty bond or securities. The guaranty for a subsidiary company, and the Resolution of Authorization to Self-insure issued to such subsidiary company, shall be valid and effective only as long as the parent company has on file with the Commission a valid guaranty to satisfy compensation claims of the subsidiary. A parent company is one which owns sufficient stock in the subsidiary company to control the subsidiary and does not mean a company in which all or a majority of the stockholders are the same as in the subsidiary. The guaranty shall be accompanied by a verified certificate as to stock ownership of the subsidiary, a certified copy of the charter or articles of incorporation of the parent company and a certified copy of the resolution of the directors of the parent company authorizing a designated officer to execute the guaranty.

D. In compliance with this Article and the Workers' Compensation Laws of Arizona, an individual self-insurer that is not a member of a workers' compensation pool shall post either:

1. A minimum $250,000 guaranty bond and a specific excess reinsurance policy with a self-insured retention of $250,000 and a policy limit of liability of not less than $10,000,000.

2. A guaranty bond equal to 125% of the total outstanding accrued liability as reflected in the Option Election form from the self-insurer to the Commission or a minimum guaranty bond in the amount of $100,000, whichever is greater. The total outstanding accrued liabilities shall be determined by certification from the self-insurer for the Commission's approval.

E. In compliance with this Article and the Workers' Compensation Laws of Arizona, a workers' compensation pool shall post a guaranty bond equal to 125% of the total outstanding accrued liability as reflected in the Option Election form from the self-insured pool to the Commission or a minimum guaranty bond in the amount of $100,000, whichever is greater. The total outstanding accrued liabilities shall be determined by certification from the self-insured pool for the Commission's approval.

Historical Note

Former Rule VI; Amended effective February 27, 1975 (Supp. 75-1). Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-206 recodified from R4-13-206 (Supp. 95-1).

R20-5-207. Posting of Securities in Lieu of Guaranty Bond; Registration; Deposit

A. In lieu of posting a guaranty bond as provided in R20-5-206, the self-insurer may deposit with the Commission for transmittal to the State Treasurer bonds of the United States.

B. Any securities deposited with the State Treasurer shall be registered to: "The Industrial Commission of Arizona, in trust for the fulfillment by -------- of its obligations under the Arizona Workers' Compensation Laws. The securities shall be held by the State Treasurer, as custodian subject to the order of, and in trust for, The Industrial Commission of Arizona, with the power in the Commission to collect or order collection of the principal as it becomes due, to sell or order the sale of these securities or any part of these securities, and to apply or order the application of the proceeds to the payment of any award rendered against the self-insurer in the event of the default in the payment of its obligations. The interest coupons on such securities shall be remitted by the Commission to the self-insurer upon request as they mature.

C. The securities deposited in compliance with subsections (A) and (B) shall have a face value at maturity in the amount specified by the Commission.

Historical Note

Former Rule VII. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-207 recodified from R4-13-207 (Supp. 95-1).

R20-5-208. Posting Other Securities

If the Commission accepts securities other than those specified in R20-5-207, including letters of credit, these securities shall be registered in the same manner as provided in R20-5-207.

Historical Note

Former Rule VIII. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-208 recodified from R4-13-208 (Supp. 95-1).

R20-5-209. Authorization Limitation

If the Resolution of Authorization to Self-insure is validated by a deposit of acceptable securities, or by a guaranty bond, the resolution shall remain in full force and effect for a period of one year unless revoked by the Commission.

Historical Note

Former Rule IX. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-209 recodified from R4-13-209 (Supp. 95-1).

R20-5-210. Continuation of Authorization

If timely and sufficient application for renewal is made pursuant to R20-5-203, the existing authorization to self-insure shall continue, subject to compliance with A.R.S. Title 23, Chapter 6 and this Article, until the renewal application has been finally determined by the Commission.

Historical Note

Former Rule X. R20-5-210 recodified from R4-13-210 (Supp. 95-1).

R20-5-211. Revocation of Authorization; Notice of Insolvency; Notice of Change of Ownership

A. The Commission may revoke a resolution of authorization to self-insure for good cause. Good cause includes:

1. The impairment of the solvency of the self-insurer.

2. The failure of the self-insurer to respond within 10 days of a demand by the Commission to substitute a satisfactory guaranty bond or securities when in the Commission's judgment the bond or securities on deposit are unsatisfactory or insufficient in amount or character.

3. The failure of the self-insurer to pay tax assessments levied by the Commission within 30 days of the due dates prescribed by A.R.S. §§ 23-961 and 23-1065.

4. The failure of the self-insurer to promptly provide the Commission within 60 days the reports required by the Commission under this Article concerning the business, operations, employees, wages, injuries, and other subjects under Commission jurisdiction.

5. The failure to comply with state workers' compensation laws.

6. The failure of the self-insurer to pay or comply with any award of the Commission within 30 days after the award becomes final.

7. The willful misstating of any material fact in a payroll report, injury report, or other report or statement made to the Commission.

8. The deliberate refusal of the self-insurer to comply with Commission rules.

9. The failure of the workers' compensation pool to notify the Commission within 30 days before termination or cancellation that a member has been terminated or cancelled.

10. The failure of the workers' compensation pool to notify the Commission within 30 days of receipt of notification that, as a result of the annual audit or examination by the Director of the Department of Insurance, it appears that the assets of the pool are insufficient to enable the pool to discharge its legal liabilities and other obligations and the resulting notification by the Director of the Department of Insurance to the administrator and board of trustees of the workers' compensation pool of the insufficiency and the Director's list of recommendations to abate the deficiency.

11. The failure of the pool to comply with the recommendation of the Director of the Department of Insurance within 60 days of the date of notice as prescribed in A.R.S. §§ 11-952.01(L) and 41-621.01(J).

B. The self-insurer shall notify the Commission within 24 hours of any bankruptcy filing under federal law or insolvency proceeding under any state's laws.

C. The self-insurer shall notify the Commission within 24 hours of any change in the ownership status of the employer.

Historical Note

Former Rule XI. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-211 recodified from R4-13-211 (Supp. 95-1).

R20-5-212. Notice of Revocation of Resolution of Authorization to Self-insure

The registration and deposit in the United States mail of a Notice of Revocation of the Resolution of Authorization to Self-insure, addressed to the last known address of the employer as shown by the records of the Commission, and signed by the Commission, shall be deemed to constitute actual delivery of such notice to a self-insurer.

Historical Note

Former Rule XII. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-212 recodified from R4-13-212 (Supp. 95-1).

R20-5-213. Substitution of Bond or Securities

No bond or other security deposited as a condition precedent to validating a Resolution of Authorization to Self-insure shall be returned nor shall any substitution be allowed, except upon written order of the Commission. No return of such bond or other security shall be authorized except upon proof that the employer has placed with the Commission an amount or amounts as determined by the Commission to be sufficient to provide for the present value of all death benefits, awards, and determinations previously made by the Commission or the self-insurer, with an adequate contingency amount to apply to reopened claims that have been closed and become final during the period of self-insurance.

Historical Note

Former Rule XIII. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-213 recodified from R4-13-213 (Supp. 95-1).

R20-5-214. Rating Plans Available for Self-insurers

A. Any of the following rating plans are available to self-insured employers for the purpose of calculating the taxes required by A.R.S. §§ 23-961(G) and 23-1065(A).

1. Fixed Premium Plan

2. Ex-medical Plan

3. Guaranteed Cost Plan

4. Retrospective Rating Plan

B. The provisions of the rating plans apply only to operations and payroll in Arizona, and all such operations in Arizona shall be combined as a single base for the calculation of any premium modifications to all such operations.

Historical Note

Former Rule XIV. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-214 recodified from R4-13-214 (Supp. 95-1).

R20-5-215. Fixed Premium Plan: Definition; Formula; Eligibility

A. A Fixed Premium Plan means a plan in which neither losses nor incurred loss reserves are used for calculation. The only discount is for premium size.

B. The formula for calculation of the fixed premium plan is as follows: Payroll x Applicable Rate Less Premium Discount.

C. Fixed Premium Plan shall be the exclusive plan available to:

1. Those self-insurers electing this plan.

2. Those self-insurers whose annual net taxable premium does not exceed $100,000 annually.

3. Those self-insurers not eligible for any other plan authorized by the Commission for rating purposes.

Historical Note

Former Rule XV. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-215 recodified from R4-13-215 (Supp. 95-1).

R20-5-216. Ex-medical Plan: Definition; Formula; Eligibility; Modification

A. An Ex-Medical Plan means a plan for premium calculation which provides for rate revisions based upon the self-insurer operating a medical facility with a program for providing medical, surgical, or hospital services to all of the self-insurer's employees for their benefit and that has complied with the requirements specified in A.R.S. § 23-1070. Neither losses nor incurred loss reserves are used in such plan.

B. The formula for calculation of the Ex-Medical Plan is as follows: [(Payroll x Applicable Rate) x (1-Ex-Medical Factor)] less Premium Discount.

C. Only those self-insurers whose program for medical, surgical, or hospital services has been authorized by the Commission are eligible to utilize this plan, for premium calculation.

D. To be eligible for this plan the self-insurer's annual net taxable premium must exceed $100,000.

Historical Note

Former Rule XVI. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-216 recodified from R4-13-216 (Supp. 95-1).

R20-5-217. Guaranteed Cost Plan: Definition; Formula; Eligibility; Cost of Calculation

A. A Guaranteed Cost Plan means a plan providing for the direct relationship, on an annual basis, of the premium for tax purposes and the experience modification developed to reflect the loss payment and incurred loss experience of the self-insured employer. Loss data for three complete years must be provided to calculate the experience modification factor. This plan shall be calculated annually and the premium shall not be subject to further adjustment during the subsequent year.

B. The formula for the calculation of the Guaranteed Cost Plan is as follows: Payroll x Applicable Rate x Experience Modification Factor Less Premium Discount.

C. Only those sell-insurers who satisfy all of the following requirements shall be eligible to use the Guaranteed Cost Plan:

1. The submission of data concerning paid loss determinations and incurred loss reserves for each workers' compensation claimant. The information is used to calculate an experience modification factor for the self-insurer. Three years of loss data shall be formulated to calculate the experience modification factor.

2. An annual net taxable premium exceeding $100,000.

Historical Note

Former Rule XVII. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-217 recodified from R4-13-217 (Supp. 95-1).

R20-5-218. Retrospective Rating Plan: Definition; Formula; Eligibility

A. Retrospective rating plan means a plan providing for the relationship between the premium for tax purposes, the experience modification factor developed to reflect the loss payment and incurred loss experience of the self-insured employer, and the actual incurred losses for the tax year. This plan is to be calculated annually and the premiums shall not be subject to further adjustment during the tax year.

B. The formula for calculating the retrospective rating plan is as follows: [Payroll x Applicable Rate x Experience Modification Factor x Basic Premium Factor + (losses current year + adjusted losses previous year) x loss conversion factor)] x Tax Multiplier = Net Taxable Premium (NTP). The NTP is subject to a maximum and minimum premium level depending on which one of the four rating option plans specified in the rating systems filed by the rating organization used by the State Compensation Fund pursuant to A.R.S. Title 20, Chapter 2, Article 4 is used.

C. Only those self-insurers who satisfy all of the following requirements shall be eligible to use the retrospective rating plan:

1. The submission of data concerning paid loss determinations and incurred loss reserved for each worker's compensation claimant. The information is used to calculate an experience modification factor for the self-insurer. Four years of loss data must be formulated. The oldest three years of data is used to calculate the rate and the most current year's data is used in the actual tax calculation.

2. An annual net taxable premium exceeding $100,000.

Historical Note

Former Rule XVIII. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-218 recodified from R4-13-218 (Supp. 95-1).

R20-5-219. Payment of Taxes by Self-insurers

The tax payments described in A.R.S. §§ 23-961(G) through (J) and 23-1065(A) shall be processed in accordance with the following:

1. All self-insurers shall submit their payroll, loss, medical, and other information to the Commission by January 31 of each year.

2. All self-insurers shall pay their annual taxes on or before March 31 based on premiums calculated for the preceding calendar year. The payment for each tax shall not be less than $250.00 per year.

3. Those self-insurers who paid $2,000.00 or more for the administrative fund tax (A.R.S. § 23-961(G)) for the preceding calendar year shall pay a quarterly tax in the following year. One of two methods can be used to calculate the payment. The first method is a quarterly payment of 25% of the tax calculated for the previous year. The second method is based on actual payroll and premiums calculated for each quarter. Those self-insured employers who paid $2,000.00 or more for the Special Fund tax (A.R.S. § 23-1065(A)) for the preceding calendar year must pay a quarterly tax using the same methods to calculate payment. The quarterly payments are due April 30, July 31, October 31, and January 31 for the periods ending March 31, June 30, September 30, and December 31, respectively.

4. Upon calculation of the annual taxes, it shall be determined by the Commission if the self-insured employer has overpaid or underpaid its taxes. If the total of the quarterly payments is less than the actual taxes calculated for the year, then the amount representing the difference is due on or before March 31. If the total of the quarterly payments exceeds the amount of the actual taxes calculated for the year, a refund will be paid to the self-insurer.

5. If the self-insurer fails to pay the annual or quarterly taxes when due, a penalty of the greater of $25.00 or 5% of the tax or payment due plus interest at the rate of 1% per month from the date the tax or payment was due shall be paid by the self-insurer.

Historical Note

Former Rule XIX. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-219 recodified from R4-13-219 (Supp. 95-1).

R20-5-220. Basis; Definitions

For determining the premium for purposes of R20-5-214, the Commission shall utilize as the basis for classifications, rating procedures, and plans those specified in the rating systems filed by the rating organization used by the State Compensation Fund pursuant to A.R.S. Title 20, Chapter 2, Article 4.

Historical Note

Former Rule XX. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-220 recodified from R4-13-220 (Supp. 95-1).

R20-5-221. Book and Record Review by the Commission

All reports, books, and records of the self-insurer relating to classifications, payroll, incurred loss reserves, and procedures for development of statistical information for the development of rating information are subject to review by the Commission and its authorized representatives. If, in the judgment of the Commission, reports, records, and data relating to payroll or claims are not valid or credible, the Commission reserves the right to require correction of procedure and data to better determine the information needed to evaluate the rating programs.

Historical Note

Former Rule XXI. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-221 recodified from R4-13-221 (Supp. 95-1).

R20-5-222. Audits; Cost of Audit

The Commission may, at any time upon three working days' notice, perform or have performed for its benefit an audit of the payroll, loss payment, and loss reserve records for incurred losses of the self-insurer for the purpose of determining the scope and adequacy of the maintained records. The entire cost of the audit will be borne by the self-insurer.

Historical Note

Former Rule XXII. Section repealed, new Section adopted effective July 6, 1993 (Supp. 93-3). R20-5-222 recodified from R4-13-222 (Supp. 95-1).

R20-5-223. Time-frames for Processing Initial and Renewal Applications for Authorization to Self-insure

A. Administrative completeness review.

1. Initial application.

a. The Administration Division shall review an initial application for authority to self-insure within 20 days of receipt of the application to determine whether the application contains the information required by A.R.S. § 23-961 and this Article.

b. The Administration Division shall inform an applicant by written notice whether the application is complete within the time-frame provided in this subsection. If the application is incomplete, the Administration Division shall include in its written notice to the applicant a complete list of the missing information.

c. The Administration Division shall deem the application withdrawn if an applicant fails to file a complete application within 45 days of being notified by the Administration Division that the application is incomplete, unless the applicant obtains an extension to provide the missing information under subsection (D).

2. Renewal application.

a. The Administration Division shall review a renewal application for authority to self-insure within 20 days of receipt of the application to determine whether the application contains the information required by A.R.S. § 23-961 and this Article.

b. The Administration Division shall inform a self-insurer by written notice whether the application is complete within the time-frame provided in subsection (A)(2)(a). If the application is incomplete, the Administration Division shall include in its written notice to the self-insurer a complete list of the missing information.

c. The Administration Division shall deem the application withdrawn if a self-insurer fails to file a complete application within 45 days of being notified by the Administration Division that the application is incomplete, unless the self-insurer obtains an extension to provide the missing information under subsection (D).

B. Substantive review.

1. Initial application. Within 70 days after the Administration Division determines an initial application complete, the Commission shall determine whether an initial application for authority to self-insure meets the substantive criteria of A.R.S. § 23-961 and this Article and shall issue an order granting or denying authority to self-insure.

2. Renewal application. Within 40 days after the Administration Division determines a renewal application complete, the Commission shall determine whether a renewal application for authority to self-insure meets the substantive criteria of A.R.S. § 23-961 and this Article and shall issue an order granting or denying authority to self-insure.

C. Overall review.

1. Initial application. The overall review period shall be 90 days, unless extended under A.R.S. § 41-1072 et seq.

2. Renewal application. The overall review period shall be 60 days, unless extended under A.R.S. § 41-1072 et seq.

D. If an applicant or self-insurer cannot timely submit to the Administration Division information to complete an initial or renewal application, the applicant or self-insurer may obtain an extension to submit the missing information by filing a written request with the Administration Division no later than 40 days after receipt of the notice from the Administration Division that the initial or renewal application is incomplete. The written request for an extension shall state the reasons the applicant or self-insurer is unable to meet the 45-day deadline. If an extension will enable the applicant or self-insurer to assemble and submit the missing information, the Administration Division shall grant an extension of not more than 30 days and provide written notice of the extension to the applicant or self-insurer.

Historical Note

Former Rule XXIII. Section repealed effective July 6, 1993 (Supp. 93-3). R20-5-223 recodified from R4-13-223 (Supp. 95-1). New Section adopted October 9, 1998 (Supp. 98-4).

R20-5-224. Computation of Time

A. In computing any period of time prescribed or allowed by this Article, the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period computed shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

B. Except as otherwise provided by law, the Commission may extend time limits prescribed by this Article for good cause.

Historical Note

Former Rule XXIV. Section repealed effective July 6, 1993 (Supp. 93-3). R20-5-224 recodified from R4-13-224 (Supp. 95-1). New Section adopted effective October 9, 1998 (Supp. 98-4).

ARTICLE 3. PRIVATE EMPLOYMENT AGENTS

R20-5-301. Definitions

In addition to the definitions provided in A.R.S. § 23-521, the following definitions apply to this Article:

"Advertising" means any material, means, or medium used by a licensed employment agent for solicitation or promotion of business. This includes business cards, notices, or announcements in newspapers, radio, television, brochures, pamphlets, gift items, and signs. It also includes referral cards, invoices, letterheads, or other forms if the forms are used in combination with solicitation or promotion of business.

"Applicant" means any individual, including a talent or model, seeking the services of a licensed employment agent.

"Applicant-paid fee" means a sum of money or value that is collected from an applicant for receiving employment services from a licensed employment agent.

"Bona fide job order" means an employer's or company's written or oral authorization to a licensed employment agent to refer an applicant to the employer.

"Business manager" means a person, firm, corporation, or association whose services to a talent or model are limited to giving financial advice or managing the business affairs of the talent or model.

"Candidate" means a person, firm, corporation, or association, applying for an employment agent license.

"Career counseling service" means a person, firm, corporation, or association that provides career assistance, career management, job search assistance, evaluation or planning, information and advice on all career decisions including vocational guidance and employment counseling, interview preparation, or other information to enable an individual to secure employment, but does not include the following:

A provider of job referral services;

A provider of vocational rehabilitation as defined in A.R.S. § 23-501;

A person, firm, corporation, or association that prepares resumes and documents in support of resumes without providing career counseling or referral services;

A public or private educational institution;

A psychologist licensed or certified in this state who provides career guidance and counseling to patients as part of the psychologist's practice;

A person engaged in the practice of social work, counseling, or marital and family therapy as those terms are defined in A.R.S. § 32-3251, who provides career guidance and counseling as part of the social work, counseling, marital or family therapy;

A physician licensed in this state who provides career guidance and counseling to patients as part of the physician's practice;

A priest, minister, rabbi or other clergy who provides career guidance and counseling as part of the clergy's practice; and

An attorney licensed in this state who provides career guidance and counseling as part of the attorney's practice.

"Career counselor" means an individual working in a career counseling service to provide career assistance, career management, job search assistance, career evaluation or planning, or information and advice on all career decisions including vocational guidance and employment counseling, interview preparation, or other information to enable an individual to secure employment. An employee of a career counseling service whose duties are primarily clerical in nature is not a career counselor.

"Commission" means the Industrial Commission of Arizona.

"Company" means a business that obtains applicants from a licensed talent and/or modeling agency.

"Complaint" means an oral or written communication made to the Department or to the Commission by any person alleging improper conduct by a licensed employment agent.

"Council" means the Arizona Employment Advisory Council.

"Department" means the Labor Department of the Industrial Commission of Arizona.

"Director" means the Director of the Industrial Commission of Arizona.

"Electronic media service" means a business that lists applications, resumes, or job openings on a computerized network or system.

"Engagement" means the employment of an individual as an actor, entertainer, model, or performer in an entertainment enterprise.

"Entertainment enterprise" means theater, motion pictures, radio, television, opera, ballet, modeling, circus, vaudeville or variety act, or other performance- or exhibition-oriented business.

"License" means a document issued by the Commission that authorizes a person to conduct business as an employment agent.

"Labor contractor" means an employer as defined under A.R.S. Title 23, Chapter 6, who leases or provides temporary workers to a customer or client.

"Licensed employment agent" or "licensee" means an employment agent defined in A.R.S. § 23-521(A) who holds a valid license issued by the Commission under A.R.S. § 23-521 et seq.

"Managing agent" means a person, firm, corporation, or association that is designated by a licensed employment agent to be in charge of the operation of an employment agency or any of its branches or divisions.

"Model" means an individual who is employed to display, by wearing, clothes or other merchandise.

"Personal manager" means a person, firm, corporation, or association whose services are limited to counseling or advising a talent or model in connection with the talent's or model's professional career.

"Placement counselor" means an individual working in a placement counseling service to assist an applicant to obtain employment by providing career counseling services, referral services, or registry services. An employee of a licensed employment agent whose duties are primarily clerical in nature is not a placement counselor.

"Placement counseling service" means a person, firm, corporation, or association that provides career counseling services, referral services, or registry services.

"Referral service" means a person, firm, corporation, or association that refers an applicant to employment upon receipt of a bona fide job order.

"Secretary" means the Director of the Industrial Commission of Arizona Labor Department who serves as the Secretary for the Employment Advisory Council.

"Talent" means an individual rendering performing services in an entertainment enterprise, including musicians.

"Talent or modeling agency or agent" means a person, firm, corporation, or association that provides employment information to a talent or model for the purpose of securing an engagement for the talent or model.

Historical Note

Former Rule I. R20-5-301 recodified from R4-13-301 (Supp. 95-1). Section R20-5-301 repealed; new Section R20-5-301 adopted effective September 9, 1998 (Supp. 98-3).

R20-5-302. Computation of Time

A. In computing any period of time prescribed or allowed by this Article, the Commission shall not include the day of the act or event from which the period of time begins to run. The Commission shall include the last day of the period computed unless it is a Saturday, Sunday, or legal holiday in which event, the period shall run until the end of the next day that is not a Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than 11 days, the Commission shall exclude intermediate Saturdays, Sundays, and legal holidays in the computation of time.

B. Except as otherwise provided by law, the Commission may extend time limits prescribed by this Article for good cause.

Historical Note

Former Rule II; Amended effective March 9, 1981 (Supp. 81-2). R20-5-302 recodified from R4-13-302 (Supp. 95-1). Section R20-5-302 repealed; new Section R20-5-302 adopted effective September 9, 1998 (Supp. 98-3).

R20-5-303. Forms Prescribed by the Commission

The Commission shall make the following forms, which contain the information listed, available upon request.

1. Initial application for employment agent license:

a. Name of candidate, including other names used by the candidate;

b. Personal identifying information of candidate;

c. Residence, length of residence, and place of prior residency of candidate;

d. Employment history of candidate, including work history and experience as an employment agent;

e. Personal references of candidate;

f. Felony and misdemeanor convictions of candidate;

g. Name, trade name, divisions and all other names under which candidate intends to do business;

h. Proposed location of all business sites;

i. Organizational structure of business;

j. Names and addresses of all persons or firms having a financial interest in the business and the percentage of financial interest of each person's or firm's share;

k. Job classifications of proposed clientele;

l. Fee rates and schedules of business;

m. Names and addresses of all persons who will be involved in the management and supervision of the business at all locations of the business;

n. Information relating to Workers' Compensation Insurance; and

o. Request for education records; and

p. Request for military discharge records.

2. Business financial statement:

a. Name of candidate;

b. Business address of candidate; and

c. Disclosure of financial information of candidate that pertains to financial stability or irregularity, misappropriation, conversion, irregular withholding or accounting of money belonging to another person.

3. Personal financial statement:

a. Name of candidate or managing agent;

b. Home address of candidate or managing agent; and

c. Disclosure of personal financial information of candidate or managing agent that pertains to financial stability or irregularity, misappropriation, conversion, irregular withholding or accounting of money belonging to another person.

4. Supplemental application:

a. Name and telephone number of managing agent, including other names used by the managing agent;

b. Name of private employment agent with whom the managing agent intends to associate;

c. Personal identifying information of managing agent;

d. Residence, length of residence, and place of prior residency of managing agent;

e. Employment history of managing agent, including work history and experience as an employment agent;

f. Personal references of managing agent;

g. Felony and misdemeanor convictions of managing agent; and

h. Request for education records; and

i. Request for military discharge records.

5. Renewal application for employment agent license:

a. Name, address, and telephone number of licensee seeking renewal;

b. Position of licensee with employment agent business;

c. Name, trade name, including abbreviations of name or trade name, of licensee seeking renewal;

d. Current legal business status of licensee seeking renewal;

e. Name of managing agent;

f. Type of business to be renewed;

g. Address of all business sites of licensee;

h. Name of all divisions operated by licensee;

i. Names and addresses of other businesses operated by licensee;

j. Number of placement counselors employed by licensee during preceding year;

k. Schedule of fees and rules implemented by licensee and any changes in the schedule of fees and rules during the preceding year;

l. List of changes made to forms required by A.R.S. § 23-521 et seq. and this Article in the preceding year;

m. Information pertaining to complaints received in the preceding year by the licensee; and

n. Information pertaining to compliance with the Arizona workers' compensation laws.

Historical Note

Former Rule III; Amended effective March 9, 1981 (Supp. 81-2). R20-5-303 recodified from R4-13-303 (Supp. 95-1). Section R20-5-303 repealed; new Section R20-5-303 adopted effective September 9, 1998 (Supp. 98-3).

R20-5-304. Time-frames for Processing Initial and Renewal Applications for Employment Agent License by Commission

A. Administrative completeness review.

1. The Department shall review an initial or renewal application for employment agent license within 15 days of receipt of the application to determine whether the application contains the information required by A.R.S. § 23-521 et seq. and this Article. The Department shall inform the candidate or licensee by written notice whether the application is deemed complete or deficient within the time-frame provided in this subsection. The Department shall deem the application withdrawn if the candidate or licensee fails to file a complete application within 45 days of being notified by the Department that the application is incomplete or deficient. A candidate or licensee can request an extension of time to file a complete application by filing a written request with the Department before the Department deems the application withdrawn. For good cause shown, the Department may grant an extension of time by serving written notice of the extension upon the candidate or licensee.

B. Substantive review.

1. Initial applications. Within 120 days after an initial application is deemed complete, the Commission shall determine whether the initial application for employment agent license meets the substantive criteria of A.R.S. § 23-521 et seq. and this Article and shall issue a written order granting or denying the license.

2. Renewal applications. Within 60 days after a renewal application is deemed complete, the Commission shall determine whether the renewal application for employment agent license meets the substantive criteria of A.R.S. § 23-521 et seq. and this Article and shall issue a written order refusing to renew the license or grant the renewal by issuing a new license.

C. Overall Review.

1. Initial application. Within 135 days after receipt of an initial application for an employment agent license, the Commission shall issue an order denying or granting the initial license.

2. Renewal application. Within 75 days after receipt of a renewal application for an employment agent license, the Commission shall issue an order refusing to renew the license or grant the renewal by issuing a new license.

Historical Note

Former Rule IV; Amended effective March 9, 1981 (Supp. 81-2). R20-5-304 recodified from R4-13-304 (Supp. 95-1). Section R20-5-304 repealed; new Section R20-5-304 adopted effective September 9, 1998 (Supp. 98-3).

R20-5-305. Filing Requirements for Initial Application for Employment Agent License

A. Initial application for employment agent license.

1. A candidate shall complete an initial application on forms approved by the Commission.

2. A candidate shall file an application for an employment agent license with the Department. An application is considered filed when it is received at the office of the Department and stamped by the Department with the date of filing.

3. An application shall be typewritten or written in legible text.

4. The individual completing the application shall sign and date the application and have the signature notarized.

5. The individual completing and signing the application shall verify that the information contained in and submitted with the application is true and correct.

B. If a candidate intends to do business as a sole proprietorship, then the candidate shall include the following information with the application for an initial employment agent license:

1. A supplemental application completed by all managing agents of the candidate. All supplemental applications shall comply with the requirements of subsection (A);

2. A personal financial statement completed by the candidate;

3. A business financial statement completed by the candidate;

4. Education records of the candidate and all managing agents;

5. Military discharge records of the candidate and all managing agents;

6. A $5000 surety bond or a $1000 cash deposit. If a cash deposit is submitted, the candidate shall increase the deposit to $5000 before a license is issued. The candidate may replace the cash deposit with a $5000 surety bond;

7. A copy of the registration of the trade name through the Arizona Secretary of State;

8. Completion of the written examination required by A.R.S. § 23-526 with a passing grade by the candidate and all managing agents. An 80% grade is required to pass the examination;

9. A copy of the franchise agreement, if the proposed business is a franchise; and

10. A copy of the sale or purchase agreement, if the candidate is purchasing an existing employment agent business.

C. If a candidate intends to do business as a partnership, the candidate shall include the following information with the application for an initial employment agent license:

1. A supplemental application completed by all partners and managing agents of the candidate. All supplemental applications shall comply with the requirements of subsection (A);

2. A personal financial statement for each partner and prepared by each partner;

3. A business financial statement completed by all partners;

4. Education records of all partners and all managing agents;

5. Military discharge records of all partners and all managing agents;

6. A $5000 surety bond or a $1000 cash deposit. If a cash deposit is submitted, the candidate shall increase the deposit to $5000 before a license is issued. The candidate may replace the cash deposit with a $5000 surety bond;

7. A copy of the registration of the trade name through the Arizona Secretary of State;

8. A copy of the partnership agreement;

9. A copy of the franchise agreement, if the proposed business is a franchise;

10. A copy of the sale or purchase agreement, if the candidate is purchasing an existing employment agent business;

11. Completion of the written examination required by A.R.S. § 23-526 with a passing grade by the candidate and all managing agents. An 80% grade is required to pass the examination;

D. If the candidate intends to do business as a corporation, an officer of the corporation shall complete and sign the initial application for employment agent license and shall include the following information in the candidate's application:

1. A supplemental application completed by all managing agents of the candidate. All supplemental applications shall comply with the requirements of subsection (A);

2. A business financial statement of the corporation;

3. Education records of all managing agents and the officer completing the application for employment agent license;

4. Military discharge records of all managing agents and the officer completing the application;

5. A $5000 surety bond or a $1000 cash deposit. If a cash deposit is submitted, the candidate shall increase the deposit to $5000 before a license is issued. The candidate may replace the cash deposit with a $5000 surety bond;

6. Completion of the written examination required by A.R.S. § 23-526 with a passing grade by the candidate and all managing agents. An 80% grade is required to pass the examination;

7. Certified resolution of the corporation authorizing the application for an employment agent license and naming the individuals authorized to act on behalf on the corporation;

8. A copy of the candidate's articles of incorporation on file with the Arizona Corporation Commission;

9. A copy of the franchise agreement, if the proposed business is a franchise;

10. A copy of the sale or purchase agreement, if the candidate is purchasing an existing employment agent business; and

11. A copy of the registration of the trade name through the Arizona Secretary of State.

E. A candidate shall include with an application for initial employment agent license a schedule of fees and charges as described in A.R.S. § 23-530(A).

F. A candidate shall include with an application for initial employment agent license a copy of all rules and regulations as described in A.R.S. § 23-530(A).

G. A candidate shall include with an application for initial employment agent license sample forms of the following documents:

1. Receipts;

2. Contracts;

3. Job order forms; and

4. Other documents that relate in any manner to the fee that is charged an applicant.

Historical Note

Former Rule V; Former Section R4-13-305 renumbered and amended as Section R4-13-306, new Section R20-5-305 adopted effective March 9, 1981 (Supp. 81-2). R20-5-305 recodified from R4-13-305 (Supp. 95-1). Section R20-5-305 repealed; new Section R20-5-305 adopted effective September 9, 1998 (Supp. 98-3).

R20-5-306. Written Examination

A. Except as otherwise provided in this Article, all individuals required by A.R.S. § 23-526 and this Article to take the written examination described in A.R.S. § 23-526(B), shall complete the examination within 12 months before filing an initial application for employment agent license with the Department. The Commission shall not grant an employment agent license unless all individuals required by A.R.S. § 23-526 and this Article to take the written examination have answered correctly 80% of the questions asked in the examination.

B. The Department shall give notice of the time and place of the written examination upon request.

C. Examination results are valid for a period of 12 months. If after 12 months, the individual taking the examination does not use the results in support of an application for an employment agent license, then that individual shall be required to retake the examination.

Historical Note

Former Rule VI. Former Section R4-13-306 renumbered and amended as Section R4-13-307, former Section R4-13-305 renumbered and amended as Section R4-13-306 effective March 9, 1981 (Supp. 81-2). R20-5-306 recodified from R4-13-306 (Supp. 95-1). Section R20-5-306 repealed; new Section R20-5-306 adopted effective September 9, 1998 (Supp. 98-3).

R20-5-307. Renewal of Employment Agent License

A. A licensee can apply for renewal of an employment agent license under A.R.S. § 23-528 by filing a completed renewal application with the Department before the date of the expiration of the license. In addition to the information described in R20-5-303(5), a licensee shall include the renewal license fee in A.R.S. § 23-528(B).

B. The Commission shall deem an employment agent license expired if a renewal application is not filed with the Department before the expiration date of the employment agent license. If an employment agent license expires, the formerly licensed agent shall file a new application which meets the requirements of this Article for an initial application.

C. If a timely and complete renewal application is filed with the Department under this Article, the Commission shall consider the existing employment agent license valid, subject to compliance with A.R.S. § 23-531 et seq. and this Article, until a new license is issued or an order of the Commission refusing to renew becomes final.

Historical Note

Former Rule VII. Former Section R4-13-307 renumbered as Section R4-13-309, former Section R4-13-306 renumbered and amended as Section R4-13-307 effective March 9, 1981 (Supp. 81-2). R20-5-307 recodified from R4-13-307 (Supp. 95-1). Section R20-5-307 repealed; new Section R20-5-307 adopted effective September 9, 1998 (Supp. 98-3).

R20-5-308. Substantive Review of Initial or Renewal Application for Employment Agent License

A. When a completed initial or renewal application for employment agent license is filed, the Department shall investigate the candidate or licensee to verify whether the information contained in and submitted with the initial or renewal application for employment agent license is accurate and complies with the requirements of A.R.S. § 23-521 et seq. and this Article. The Department shall also conduct an investigation of the candidate or licensee, in accordance with A.R.S. § 23-523(3) and § 23-524, to determine whether the candidate or licensee has a history or record of any of the following:

1. Dishonesty;

2. Financial instability or irregularity, including a record of misappropriation, conversion, or irregular withholding or accounting of money belonging to another;

3. Incompetence;

4. Gross negligence;

5. Bribery;

6. Willful or repeated disregard of the requirements of A.R.S. Title 23, Chapter 3, Article 2;

7. Source of injury or loss to the public; or

8. Lack of education, experience, training, or skill to enable the candidate, licensee, or managing agent to competently discharge the duties and responsibilities of a licensed employment agent.

B. The Department shall verify that all individuals who are required by this Article to take the written examination required by A.R.S. § 23-526(B) have received a passing score of 80%.

C. The Department shall present the findings of its investigation described in subsections (A) and (B) to the Council. The Council shall make its recommendation regarding an initial or renewal application for employment agent license based on the information submitted by the candidate or licensee and the investigation of the Department. Under the authority of A.R.S. § 23-522.02, the Council shall recommend that an application for an initial or renewal license be denied if the Council finds one or more of the following conditions:

1. Material misrepresentation or fraud in the initial or renewal application;

2. The candidate, licensee, or managing agent has a history or record of dishonesty;

3. The candidate, licensee, or managing agent has a history or record of financial instability or irregularity, including a record of misappropriation, conversion or irregular withholding or accounting of money belonging to another;

4. The candidate, licensee, or managing agent has a history or record of incompetence;

5. The candidate, licensee, or managing agent has a history or record of gross negligence;

6. The candidate, licensee, or managing agent has a history or record of bribery;

7. The candidate, licensee, or managing agent has a history or record of willful or repeated disregard of the requirements of A.R.S. Title 23, Chapter 3, Article 2;

8. The candidate, licensee, or managing agent has a history or record of causing, directly or indirectly, injury or loss to the public; or

9. The candidate, licensee, or managing agent lacks the education, experience, training, or skill to enable the candidate, licensee, or managing agent to competently discharge the duties and responsibilities of a licensed employment agent.

D. The Department shall present the recommendation of the Council pertaining to an initial application to the Commission. The Department shall also present to the Commission the recommendation of the Council that denies a renewal application. If the Council recommends that a renewal application be granted, the Department is not required to present the recommendation to the Commission. In that event, the Department shall notify the licensee of the approval by sending the licensee a renewed license.

Historical Note

Former Rule VIII. Former Section R4-13-308 renumbered as Section R4-13-310, new Section R4-13-308 adopted effective March 9, 1981 (Supp. 81-2). R20-5-308 recodified from R4-13-308 (Supp. 95-1). Section R20-5-308 repealed; new Section R20-5-308 adopted effective September 9, 1998 (Supp. 98-3).

R20-5-309. Decision by the Commission on an Initial or Renewal Application for Employment Agent License

A. In addition to the requirements imposed by A.R.S. § 23-521 et seq., the Commission shall consider the following before granting or denying an initial or renewal employment agent license:

1. The information submitted by the candidate or licensee,

2. The findings of the investigation by the Department, and

3. The recommendation of the Council.

B. Under the authority in A.R.S. §§ 23-523 and 23-524, the Commission shall deny an application for an initial or renewal license if the Commission finds one or more of the following conditions:

1. Material misrepresentation or fraud in the initial or renewal application;

2. The candidate, licensee, or managing agent has a history or record of dishonesty;

3. The candidate, licensee, or managing agent has a history or record of financial instability or irregularity, including a record of misappropriation, conversion or irregular withholding or accounting of money belonging to another;

4. The candidate, licensee, or managing agent has a history or record of incompetence;

5. The candidate, licensee, or managing agent has a history or record of gross negligence;

6. The candidate, licensee, or managing agent has a history or record of bribery;

7. The candidate, licensee, or managing agent has a history or record of willful or repeated disregard of the requirements of A.R.S. Title 23, Chapter 3, Article 2;

8. The candidate, licensee, or managing agent has a history or record of causing, directly or indirectly, injury or loss to the public; or

9. The candidate, licensee, or managing agent lacks the education, experience, training, or skill to enable the candidate, licensee, or managing agent to competently discharge the duties and responsibilities of a licensed employment agent.

C. The Commission shall issue written findings and an order granting or denying an employment agent license.

D. If the Commission denies an employment agent license, the Department shall serve a copy of the Commission's written findings and order upon the candidate or licensee within five days of the date the Commission issues its findings and order.

E. If the Commission grants a renewal application for employment agent license, then the Department shall provide the licensee with a renewed license within five days of the date the Commission issues its written findings and order.

F. If the Commission grants an initial application for employment agent license, the Department shall provide the candidate with written notification of that approval. The written notification shall include a statement that the license approved by the Commission will be issued upon receipt of the annual fee required under A.R.S. § 23-528 and that the approval will expire within 45 days unless the fee is paid.

Historical Note

Former Rule IX. Former Section R4-13-309 repealed, former Section R4-13-307 renumbered as Section R4-13-309 effective March 9, 1981 (Supp. 81-2). R20-5-309 recodified from R4-13-309 (Supp. 95-1). Section R20-5-309 repealed; new Section R20-5-309 adopted effective September 9, 1998 (Supp. 98-3).

R20-5-310. Payment of Initial License Fee under A.R.S. § 23-528

A. The Commission shall not issue an initial employment agent license granted under this Article until the candidate pays the license fee required under A.R.S. § 23-528.

B. A candidate shall pay the license fee required under A.R.S. § 23-528 within 45 days of the date the Commission grants the initial application for employment agent license.

C. If a candidate fails to pay the license fee required under A.R.S. § 23-528 within the time provided in this Section, the Commission shall deem the order approving an initial application for employment agent license expired. In that event, the Commission shall require the candidate to file a new application if the candidate still seeks licensing as an employment agent.

Historical Note

Former Rule X. Former Section R4-13-310 renumbered and amended as Section R4-13-312, former Section R4-13-308 renumbered as Section R4-13-310 effective March 9, 1981 (Supp. 81-2). R20-5-310 recodified from R4-13-310 (Supp. 95-1). Section R20-5-310 repealed; new Section R20-5-310 adopted effective September 9, 1998 (Supp. 98-3).

R20-5-311. Right to Request a Hearing

A. A candidate or licensee shall have 30 days from the date the Commission findings and order is served under R20-5-309 to request a hearing.

B. A request for hearing shall be in writing and signed by the candidate or licensee or the candidate's or licensee's legal representative. The candidate or licensee shall file the request for hearing with the Department.

C. The Commission shall deem its findings and order final if a request for hearing is not received by the Department within the time specified in subsection (A).

Historical Note

Former Rule XI. Former Section R4-13-311 repealed, new Section R4-13-311 adopted effective March 9, 1981 (Supp. 81-2). R20-5-311 recodified from R4-13-311 (Supp. 95-1). Section R20-5-311 repealed; new Section R20-5-311 adopted effective September 9, 1998 (Supp. 98-3).

R20-5-312. Hearing Rights and Procedures

A. Burden of proof.

1. Except as provided in subsection (A)(2) and R20-5-324, in all proceedings arising out of A.R.S. Title 23, Chapter 3, Article 2, the candidate or licensee shall have the burden of proof to establish that it has met the requirements of A.R.S. § 23-521 et seq. and this Article.

2. In revocation and suspension hearings, the Commission shall have the burden of proof to establish that the licensee committed the acts described in A.R.S. § 23-529(A).

B. Roles of Chair and Chief Counsel.

1. The Chair of the Commission or designee shall preside over hearings held under this Article. Except as otherwise provided in this Section, the Chair shall apply the provisions of A.R.S. § 41-1062 to hearings held under this Article and shall have the authority and power of a presiding officer as described in A.R.S § 41-1062.

2. The Chief Counsel of the Commission shall represent the Commission in hearings held before the Commission. Upon direction of the Chair of the Commission and on behalf of the Commission, the Chief Counsel shall issue all notices and subpoenas required under this Section. In the discretion of the Chief Counsel, the Chief Counsel may assign an attorney from the Legal Division of the Commission to represent the Department.

C. Appearance by a party.

1. Except as otherwise provided by law, the parties may appear on their own behalf or through counsel.

2. When an attorney appears or intends to appear before the Commission, the attorney shall notify the Commission, in writing, of the attorney's name, address, and telephone number and the name and address of the person on whose behalf the attorney appears.

D. Filing and service.

1. For purposes of this Section, a document is deemed filed when the Commission receives the document. All documents required to be filed in this Section with the Commission shall be served upon the Chief Counsel of the Industrial Commission and upon all parties to the proceeding.

2. Except as otherwise provided in A.R.S. § 23-521, et seq. and this Article, service of all documents upon the Commission, candidate, licensee or applicant shall be by personal service or by mail. Personal service includes delivery upon the Commission or party. Service by mail includes every type of service except personal service and is complete on mailing.

E. Notice of hearing.

1. The Commission shall give the parties at least 20 days notice of hearing.

2. A notice of hearing shall be in writing and mailed to the address of the candidate or licensee as shown on the application for employment agent license or upon the candidate's or licensee's representative if a notice of appearance has been filed by the representative. In the case of a fee dispute hearing, a notice of hearing shall be mailed to the address of the applicant as shown on the complaint and the licensee as shown on the answer, if an answer is filed. If no answer is filed, then the notice of hearing shall be sent to the last known mailing address of the licensee as shown on the records of the Commission.

3. A notice of hearing shall comply with the requirements in A.R.S. § 41-1061(B).

F. Evidence.

1. The civil rules of evidence do not apply to hearings held under this Section.

2. The parties may make opening and closing statements with the permission of the Commission if the statements will be helpful to a determination of the issues.

3. All witnesses at a hearing shall testify under oath or affirmation.

4. The parties may present evidence and conduct cross-examination of witnesses.

5. Documentary evidence may be received into evidence and shall be filed no later than 15 days before the date of the hearing. Upon request or upon direction from the Chair of the Commission, the Commission may issue a subpoena to the author of any document submitted into evidence to appear and testify at the hearing.

6. Upon written request by a party or upon direction from the Chair of the Commission, the Commission may issue a subpoena requiring the attendance and testimony of a witness whose testimony is material. A subpoena shall be requested no later than 10 days before the date of the hearing.

7. Upon written request by a party or upon direction from the Chair of the Commission, the Commission may issue a subpoena duces tecum requiring the production of documents or other tangible evidence. The written request by a party shall contain a statement explaining the general relevance, materiality, and reasonable particularity of the documentary or other tangible evidence and the facts to be proved by them.

G. Transcript of Proceedings. Hearings before the Commission shall be stenographically reported or mechanically recorded. Any party desiring a copy of the transcript shall obtain a copy from the court reporter.

Historical Note

Former Rule XII. Former Section R4-13-312 renumbered as Section R4-13-314, former Section R4-13-310 renumbered and amended as Section R4-13-312 effective March 9, 1981 (Supp. 81-2). R20-5-312 recodified from R4-13-312 (Supp. 95-1). Section R20-5-312 repealed; new Section R20-5-312 adopted effective September 9, 1998 (Supp. 98-3).

R20-5-313. Decision Upon Hearing by Commission

A. A decision of the Commission to deny an initial or renewal application shall be based upon the grounds in R20-5-309(B) and shall be made by a majority vote of the quorum of Commission members present when the decision is rendered at a public meeting.

B. A decision of the Commission to revoke or suspend a license shall be based upon the grounds in A.R.S. § 23-529 and shall be made by a majority vote of the quorum of Commission members present when the decision is rendered at a public meeting.

C. A decision of the Commission under R20-5-322(D) shall be based upon the grounds in R20-5-322(B) and shall be made by a majority vote of the quorum of Commission members present when the decision is rendered at a public meeting.

D. Within 30 days after the Commission renders a decision at a public meeting, the Commission shall issue a written decision upon hearing which shall include findings of fact and conclusions of law, separately stated.

E. A Commission decision is final unless a candidate or licensee requests review under R20-5-314 within 30 days from the date the written decision is issued.

Historical Note

Former Rule XIII. Former Section R4-13-313 renumbered and amended as Section R4-13-318 effective March 9, 1981 (Supp. 81-2). R20-5-313 recodified from R4-13-313 (Supp. 95-1). New Section adopted effective September 9, 1998 (Supp. 98-3).

R20-5-314. Request for Review

A. A party may request review of a Commission decision issued under R20-5-313 by filing with the Commission a written request for review no later than 30 days after the written decision is mailed to the parties.

B. A request for review shall be based upon one or more of the following grounds which have materially affected the rights of a party:

1. Irregularities in the hearing proceedings or any order or abuse of discretion depriving the party seeking review of a fair hearing;

2. Misconduct by the Department, Council, Commission, or any party to the hearing;

3. Accident or surprise which could not have been prevented by ordinary prudence;

4. Newly discovered material evidence that could not have been discovered with reasonable diligence and produced at the hearing;

5. Excessive or insufficient sanctions or penalties imposed at hearing;

6. Error in the admission or rejection of evidence, or errors of law occurring at, or during the course of, the hearing;

7. Bias or prejudice of the Department, Council, or Commission; or

8. That the order, decision, or findings of fact are not justified by the evidence or are contrary to law.

C. A request for review shall state the specific facts and laws in support of the request and shall specify the relief sought by the request.

D. The Commission shall issue a decision upon review no later than 30 days after receiving a request for review.

E. The Commission's decision upon review is final unless a candidate or licensee seeks judicial review as provided in A.R.S. § 12-901 et seq.

Historical Note

Former Section R4-13-312 renumbered as Section R4-13-314 effective March 9, 1981 (Supp. 81-2). R20-5-314 recodified from R4-13-314 (Supp. 95-1). Section R20-5-314 repealed; new Section R20-5-314 adopted effective September 9, 1998 (Supp. 98-3).

R20-5-315. Procedure for Investigation and Disposition of Complaints Filed Under A.R.S. § 23-529

A. A complaint described in A.R.S. § 23-529 shall be filed with the Department within 90 days of the date on which the event giving rise to the complaint occurred.

B. Upon receipt of a complaint, the Department shall conduct a thorough investigation of the facts relative to the alleged misconduct including obtaining a response from the licensee that is the subject of the complaint. If, upon completion of its investigation, the Department determines that there is sufficient evidence to warrant a revocation or suspension hearing, the Department shall present its findings to the Commission. If the Commission agrees with the Department that there is sufficient evidence to warrant a revocation or suspension hearing, the Commission shall direct the secretary of the Commission to serve the subject licensee with a verified complaint under A.R.S. § 23-529. In addition to the requirements set forth in A.R.S. § 23-529, the verified complaint shall contain the factual findings of the Department and a statement that the Commission shall consider the failure of the licensee to appear at hearing to be an admission of the factual findings in the verified complaint.

C. Except as provided in A.R.S. § 23-529, A.A.C R20-5-312, R20-5-313, and R20-5-314 govern hearing rights and procedures for revocation and suspension hearings.

Historical Note

Adopted effective March 9, 1981 (Supp. 81-2). R20-5-315 recodified from R4-13-315 (Supp. 95-1). Section R20-5-315 repealed; new Section R20-5-315 adopted effective September 9, 1998 (Supp. 98-3).

R20-5-316. Reissuance of Employment Agent License After Suspension under A.R.S. § 23-529(D)

A. An employment agent, whose license has been suspended, may file a request with the Commission after the Commission's decision suspending the license is deemed final asking that the license be reissued. The request for reissuance shall be filed with the Department and shall include the following:

1. The grounds and facts supporting the request for reissuance;

2. All action taken by the formerly licensed employment agent to correct, remedy, or address the reason that the Commission suspended the license; and

3. All information required in an initial application, unless unchanged, in which case a verified statement that the information required for an initial employment agent license is true and correct as originally submitted.

B. The Department shall review the request for reissuance of employment agent license for administrative completeness within 15 days of receipt of the request.

C. Within 60 days after the expiration of the time-frame described in subsection (B), the Commission shall conduct a hearing to determine whether the previously suspended license should be reissued. The Commission shall reissue the suspended license if it appears by substantial evidence that the licensee has corrected or remedied the reason that the Commission suspended the license and the licensee has not engaged in any acts in violation of A.R.S. Title 23, Chapter 3, Article 2 or this Article during the time that the license was suspended.

D. R20-5-312, R20-5-313 and R20-5-314 govern hearing rights and procedure for this Section.

Historical Note

Adopted effective March 9, 1981 (Supp. 81-2). R20-5-316 recodified from R4-13-316 (Supp. 95-1). Section R20-5-316 repealed; new Section R20-5-316 adopted effective September 9, 1998 (Supp. 98-3).

R20-5-317. Amendment of Employment Agent License

A. A licensee shall apply to the Department for an amendment to its employment agent license 30 days before:

1. Changing the name under which the employment agent license is issued; or

2. Changing the location of the employment agency.

B. The Department shall review a request for amendment and shall issue an amended license 15 days after receipt of a licensee's current license and the following, if applicable:

1. If the licensee changes the name of the employment agency, the licensee shall submit an amendment or rider of the surety bond showing the new name; or

2. If the licensee changes the licensee's trade name, the licensee shall submit a copy of the registration of the new trade name with the Arizona Secretary of State and submit an amendment or rider of the surety bond showing the new name.

C. Transfer or sale of license prohibited.

1. A licensee shall not transfer to another the licensee's employment agent license.

2. A licensee shall not sell the licensee's employment agent license. A purchaser of a licensee's business shall not operate the applicant-paid fee business until the purchaser is licensed by the Commission under A.R.S. § 23- 521 et seq. and this Article.

D. Before a licensee changes its legal status or form of doing business, the licensee shall file an initial application for an employment agent license for the new business.

E. Relinquishment of license.

1. A licensee shall give the Department 30 days written notice before terminating or discontinuing business as an employment agent.

2. After receipt of a notice of intent to terminate or discontinue, the Department shall conduct an investigation of the licensee's operation to determine whether the operations are in order and in compliance with A.R.S. § 23-521 et seq. and this Article.

3. If the Department determines that the licensee's operations are in order it shall notify the licensee and the company issuing the surety bond that the Department approves the discontinuance of the licensee's business and cancellation of the bond. If the licensee has made a cash deposit, the Department shall instruct the State Treasurer to return the cash deposit. After the Department notifies the licensee of its approval to discontinue business, the licensee shall return its license to the Department for cancellation.

4. If, after an investigation of the licensee's operation, the Department determines that the licensee's operation is not in order (for example, pending claims, refund claims), the Department shall not approve the cancellation of the surety bond or return of the licensee's cash deposit until the licensee resolves all pending matters to the satisfaction of the Department.

F. Cancellation of the bond by the surety.

1. The Department shall provide written notice to a licensee within five days of a notice of cancellation of the bond by the surety. A licensee shall submit a new bond or cash deposit to the Department at least 10 days before the existing bond is canceled.

2. If a licensee fails to provide to the Department a new bond or cash deposit within 10 days before the cancellation of the existing bond, the Department shall advise the licensee in writing that the licensee may not act as an employment agent from the date of the cancellation until the date a new bond or cash deposit is received by the Department.

3. The repeated failure to maintain a surety bond or cash deposit at all times constitutes gross negligence and cause for disciplinary action under A.R.S. § 23-529.

G. Disassociation of managing agent.

1. A licensee shall notify the Department within 10 days if any managing agent is disassociated from a licensee.

2. At the time of disassociation, a licensee shall appoint another managing agent unless an existing managing agent will be managing the employment agency without replacement of the disassociating managing agent.

3. A newly appointed managing agent shall complete and file a supplemental application within 30 days of appointment.

4. A newly appointed managing agent shall take and pass the written examination required by A.R.S. § 23-526 and R20-5-306.

5. The Department shall advise a licensee whether an application filed by a newly appointed managing agent is deemed complete within 10 days from the date the application is filed. The Department shall issue findings and an order approving or disapproving the appointment of the newly appointed managing agent within 45 days of the date that the licensee is notified the application is complete. The Department shall disapprove the appointment of the new managing agent if the Department finds one or more of the following conditions:

a. Material misrepresentation or fraud in the newly appointed managing agent's supplemental application;

b. The newly appointed managing agent has a history or record of dishonesty;

c. The newly appointed managing agent has a history or record of financial instability or irregularity including a record of misappropriation, conversion, or irregular withholding or accounting of money belonging to another;

d. The newly appointed managing agent has a history or record of incompetence;

e. The newly appointed managing agent has a history or record of gross negligence;

f. The newly appointed managing agent has a history or record of bribery;

g. The newly appointed managing agent has a history or record of willful disregard of the requirements of A.R.S. Title 23, Chapter 3, Article 2;

h. The newly appointed managing agent has a history or record of injury or loss to the public; or

i. The newly appointed managing agent lacks the education, experience, training, or skill to enable the newly appointed managing agent to competently discharge the duties and responsibilities of a managing agent.

6. The Department shall deem its findings and order issued under subsection (G) final unless the licensee requests a hearing before the Commission within 30 days of the date that the findings and order is issued. The request for hearing shall be in writing, signed by the licensee or the licensee's legal representative and filed with the Commission. The Commission shall consider the factors in subsection (G) when approving or disapproving the appointment of a new managing agent. R20-5-312, R20-5-313, and R20-5-314 shall govern hearing rights and procedure for a request for hearing filed under this subsection.

Historical Note

Adopted effective March 9, 1981 (Supp. 81-2). R20-5-317 recodified from R4-13-317 (Supp. 95-1). Section R20-5-317 repealed; new Section R20-5-317 adopted effective September 9, 1998 (Supp. 98-3).

R20-5-318. Form of Books, Registers and Records

A. A licensee shall keep true and correct records of all the business transactions related to the business of an employment agency, including records documenting all bona fide job orders or referrals and copies of all advertisements of the licensee. The licensee shall ensure that all records are legible, understandable and maintained in the office of the licensee for at least three years.

B. In addition to the requirements of subsection (A), a licensee shall maintain a summary record of the licensee's job orders and referrals for the prior three years which is recorded on a form containing the following:

1. Name of the individual communicating the job order;

2. Name of the individual communicating the job referral;

3. Date of the job order and the job referral;

4. Name of the individual recording the job order and job referral;

5. Name and address of employer or company placing the job order;

6. Name of individual to whom the applicant is to report for an interview;

7. Job title and basic requirements of the job contained in job order and referral; and

8. Name of applicant referred.

Historical Note

Former Section R4-13-313 renumbered and amended as Section R4-13-318 effective March 9, 1981 (Supp. 81-2). R20-5-318 recodified from R4-13-318 (Supp. 95-1). Section R20-5-318 repealed; new Section R20-5-318 adopted effective September 9, 1998 (Supp. 98-3).

R20-5-319. Form and Requirements of Contracts

A. Contract terms and provisions. A licensee shall ensure that all contracts between a licensee and applicant set forth in clear and unambiguous terms the respective rights and obligations of the applicant and licensee and include the following:

1. The name and address of the applicant and licensee;

2. A list of the current schedule of fees and charges described in A.R.S. § 23-530(A) and submitted to the Commission;

3. A clear statement defining when the applicant becomes obligated for the payment of a fee;

4. A clear statement describing the circumstances under which the applicant is entitled to an adjustment, waiver, or refund of a fee;

5. A clear statement describing the services performed by the licensee, including if applicable, the duration of the contract;

6. A statement that the employment agency is licensed, bonded, operates under the laws of Arizona, and is regulated by the Industrial Commission of Arizona;

7. An acknowledgment by the applicant that the applicant has received a copy of the signed contract; and

8. Except for contracts between an applicant and a talent or modeling agent, a statement that employment is considered to be temporary when within 90 days after employment begins the employment is terminated through "no fault" of the applicant, or the applicant voluntarily terminates the employment with "just cause."

9. The following statement shall be included in all contracts between an applicant and career counseling service in no smaller than 10 point bold face type: `No verbal or written promise or guarantee of any job or employment is made or implied under the terms of the contract'.

B. An applicant is deemed to have accepted a position when the applicant agrees with an employer or company to start work at an agreed-upon wage.

C. Except for contracts between an applicant and a talent or modeling agent, all placements are considered permanent unless the contract expressly states otherwise or within 90 days after employment begins the employment is terminated through "no fault" of the applicant, or the applicant voluntarily terminates the employment with "just cause."

D. A licensee shall provide the applicant a copy or duplicate original of all documents signed by either or both the applicant and licensee.

E. The duration and terms of a contract entered into by a talent or modeling agent and applicant shall not exceed two years. A contract may be renewed or terminated by mutual consent of the parties.

F. If a term of a contract entered into by a talent or modeling agent, or applicant provides that the applicant's compensation is paid directly to the talent or modeling agent by a company, the talent or modeling agent shall pay the applicant the compensation received, less the talent or modeling agent's fee, no later than seven days after receiving the compensation from the company.

G. A talent or modeling agent shall not specify in a contract with an applicant a higher rate of commission than that which is on file with the Department.

Historical Note

Adopted effective September 9, 1998 (Supp. 98-3).

R20-5-320. Bona Fide Job Order

A. A licensee shall not offer or represent to an applicant a specific position without having a bona fide job order.

B. A licensee shall not misrepresent any matter in connection with a bona fide job order.

C. A licensee shall not initiate contact with any applicant at the applicant's current place or places of employment for any reason related to the licensee's employment agency business without the applicant's written permission.

Historical Note

Adopted effective September 9, 1998 (Supp. 98-3).

R20-5-321. Bona Fide Job Referral

A. A referral from a licensee, other than a talent or modeling agent, is bona fide when all of the following are completed:

1. The licensee informs the applicant of the name and location of an employer that has placed a bona fide job order, including the name of the individual to whom the applicant will report for an interview;

2. The licensee informs the applicant of the job specifications and salary range, including the nature, terms, and conditions of the position;

3. The licensee informs the employer of the applicant's name and qualifications; and

4. The employer and applicant agree, either directly or by authorized arrangement of the licensee, to meet for an interview.

B. A referral from a talent or modeling agent is bona fide when all of the following are completed:

1. The talent or modeling agent informs the applicant of the name and location of a company that has placed a bona fide job order;

2. The talent or modeling agent informs the applicant of the time and duration of the contracted engagement and the amount to be paid to the applicant for the engagement; and

3. The talent or modeling agent gives the applicant a description of the entertainment or services to be performed by the applicant, including the nature, terms, and conditions of the position, and if applicable, the number of performances per day or week required of the applicant.

Historical Note

Adopted effective September 9, 1998 (Supp. 98-3).

R20-5-322. Submission and Approval of Fee Schedule and Receipts by Commission

A. The Department shall not approve a fee schedule or receipt submitted by a candidate or licensee unless the schedule or receipt is in a form that is reasonably understandable by applicants.

B. The Department shall consider the following factors in determining the reasonableness of a fee under A.R.S. § 23-530(B):

1. The fee customarily charged in the locality for similar employment services;

2. The time and labor required of the candidate or licensee;

3. The skill required to perform the employment services properly; and

4. The experience, reputation, and ability of the candidate or licensee performing the employment services.

C. A licensee may change its schedule of fees by filing an amended schedule of fees with the Department. The licensee shall not use the amended schedule of fees until the schedule has been approved by the Department.

D. Except as provided in R20-5-308, the Department shall review a licensee's amended schedule of fees within 30 days from the date of filing and shall issue a written order approving or disapproving the schedule of fees. The Commission shall deem an order approving or disapproving the schedule of fees final unless a licensee requests a hearing within 30 days after the order is issued. R20-5-312, R20-5-313, and R20-5-314 shall govern hearings held under this subsection.

Historical Note

Adopted effective September 9, 1998 (Supp. 98-3).

R20-5-323. Fees for Services

A. Under A.R.S. § 23-530 and subject to subsection (D), a licensee, other than a talent or modeling agent or career counselor, may charge an applicant a fee when any of the following occur:

1. The applicant accepts employment as a result of a bona fide job order;

2. The applicant accepts employment as a result of a bona fide job order and fails to report for work, except when justifiable circumstances prevent the applicant from reporting to work. For purposes of this Section `justifiable circumstances' include death of an applicant or family member, serious physical or psychological illness or condition of an applicant or family member or `just cause' as defined in R20-5-323(F);

3. The applicant fails to secure or does not accept a position to which the applicant was originally referred but accepts another position with that employer or with any employer to whom the first employer refers the applicant within six months as a result of the original referral by the licensee; and

4. The applicant informs another person of the availability of the position described in the referral by the licensee and that person accepts the position within six months after the date of the referral.

B. Under A.R.S. § 23-530 and subject to subsection (D), a talent or modeling agent may charge an applicant a fee when the applicant receives compensation from the company to whom the applicant is sent under a bona fide referral.

C. Under A.R.S. § 23-530 and subject to subsection (D), a career counselor may either charge an applicant a fee after the applicant receives services from the career counselor, or require payment in advance of services, if the career counselor provides a prompt refund to the applicant when services are not provided.

D. Computation of a fee by a licensee other than a talent or modeling agent or career counselor.

1. A licensee shall not charge a full fee but may charge an adjusted fee to an applicant who starts work but before the expiration of 90 days stops work for the following reasons:

a. The applicant or family member dies,

b. The applicant or family member suffers a serious physical or psychological illness or condition,

c. The applicant is discharged `without fault', or

d. The applicant resigns with `just cause'.

2. A licensee shall not charge more than 50% of the scheduled fee to an applicant who fails to report to work without good reason or voluntarily terminates employment without just cause within 30 days of starting employment.

E. For purposes of computing a fee, termination "for cause" or "with fault" means a lawful or legal termination "for cause" or "with fault" under the laws of this State which may include termination for the following reasons:

1. Unexcused absence from work;

2. Intentional violation of employer work rules; or

3. Incapacitation or inability to perform work duties due to alcohol, drugs, or illegal substances or agents.

F. For purposes of computing a fee, an applicant has "just cause" for voluntarily terminating employment when the conditions of employment were either misrepresented or withheld from the applicant and those conditions, if known, would cause the applicant to reasonably refuse employment.

G. Refund of a fee.

1. A licensee shall immediately refund to an applicant the entire fee paid by the applicant if following a bona fide job order the applicant is not permitted to, or is unable to start work, as a result of justifiable circumstances as defined in R20-5-323(A)(2).

2. A licensee shall immediately refund to an applicant the entire fee paid by the applicant if the licensee fails to provide or deliver the services or products agreed upon in the contract between the licensee and applicant.

Historical Note

Adopted effective September 9, 1998 (Supp. 98-3).

R20-5-324. Fee Disputes

A. Complaint alleging refund dispute.

1. An applicant alleging that a licensee has failed to refund a fee that the applicant is entitled to receive may file a written notarized complaint with the Department. The written complaint shall be filed within 90 days of demanding a refund from the licensee. The applicant shall make the written complaint under oath and include the following information:

a. The name and address of the applicant;

b. The name and address of the licensee against whom the complaint is filed;

c. The factual allegations of the applicant along with any supporting documentation;

d. The relief requested by the applicant; and

e. All steps taken to informally resolve the dispute between the applicant and licensee.

2. The Department shall serve the licensee a copy of the complaint by certified mail within five days of receipt of the complaint.

B. Answer.

1. A licensee shall respond to a complaint filed against it by filing an answer with the Department within 10 days after the complaint is mailed.

2. The licensee shall attach to the licensee's answer copies of all receipts, agreements, or contracts relevant to the dispute.

3. The Department shall mail the applicant a copy of the licensee's answer within 10 days of receipt of the answer.

C. Investigation and determination by Department.

1. The Department shall investigate the allegations contained in a complaint and answer to determine whether a fee charged by the licensee complies with A.R.S. § 23-521 et seq. and this Article. At the request of the parties or on its own motion, the Department may schedule an informal meeting between the applicant, licensee and Director of the Department. The Department shall convene the informal meeting for the purpose of obtaining information to assist the Department in its investigation of the refund dispute.

2. Within 90 days after receipt of the answer, or the complaint if no answer is filed, the Department shall issue written findings and an order setting forth its determination of the refund dispute.

3. The Department shall mail a copy of its findings and order upon the applicant and licensee by mail at the last known address of the applicant and licensee.

4. The Department shall deem its findings and order final unless within 30 days from the date the findings and order is mailed, the applicant or licensee, or an authorized representative of the applicant or licensee, requests a hearing before the Commission.

D. Commission Hearing and Decision.

1. Hearing rights and procedures shall be governed by R20-5-312.

2. An applicant shall have the burden to establish that the applicant is entitled to a refund.

3. Based on the evidence presented at hearing, the Commission shall determine whether the fee charged by the licensee complies with the requirements of A.R.S. § 23-521 et seq. and this Article entitling the applicant to a refund of the fee. The Commission shall issue written findings and an order setting forth its determination. The Commission decision is final unless a party requests review within 30 days from the date the decision is issued.

4. A party may request review of a Commission decision issued under this subsection by filing with the Commission a written request for review no later than 30 days after the written decision is mailed to the parties. The request for review shall be based upon one or more of the grounds set forth in R20-5-314 (B) that have materially affected the rights of a party. The request for review shall state the specific facts and laws in support of the request and shall specify the relief sought by the request.

5. The Commission shall deem its decision upon review final unless an applicant or licensee seeks review as required by A.R.S. § 23-532(C).

Historical Note

Adopted effective September 9, 1998 (Supp. 98-3).

R20-5-325. Determining Right of Referral and Placement

As between two licensees, the licensee entitled to a fee is the licensee that first completes a bona fide referral. However, if after the expiration of six months from the date of a referral by a licensee to an employer, no active interest or consideration is being given the applicant by the employer through the original referral, and a second licensee, who has a bona fide job order from the employer, refers the same applicant to the same employer and the applicant secures employment as a result of the second referral, the second licensee is entitled to the fee.

Historical Note

Adopted effective September 9, 1998 (Supp. 98-3).

R20-5-326. Advertising

In addition to the provisions of A.R.S. § 23-534, the Department shall deem advertising false, misleading, or misrepresentative if the advertisement fails to conform to the following requirements:

1. An advertisement shall carry the name under which the agency is licensed to do business and shall state that the business is an applicant-paid service or includes an applicant-paid service. An agent may abbreviate in an advertisement "applicant-paid service" as "app-pd svc." An agent may abbreviate in an advertisement the name under which the agency is licensed to do business provided that an agent does not abbreviate its licensed name by using initials only unless initials are a part of the name under which the agent is licensed;

2. If an advertisement is for a specific position, it shall be based upon an actual bona fide job order with the licensee and available at the time the advertisement is printed;

3. An advertisement shall not use a post office box number, a press box number, an associate name, an employer or counselor name, a telephone number only, or any other "blind" address;

4. An advertisement shall be canceled when a position is known to be filled or when knowledge is available that the position is not available;

5. A position shall not be advertised at maximum pay only. A position may be advertised at a range from minimum to maximum, or by the words "to a maximum or $" or "to $." The word "open" or the symbol "$$$" may not be used as a substitute for the salary of any position or positions in an advertisement;

6. An advertised position that requires or may require travel 50 miles beyond the city in which the newspaper or medium is published shall state that the position is not local;

7. A job title shall appear in an advertisement and shall be reasonably descriptive in accordance with the type of work to be performed;

8. An advertisement for a position within the agency itself shall indicate the agency is the employer;

9. An advertisement shall not state "guarantees a job," "guaranteed results," or words of similar import;

10. If the advertisement is a display or promotional advertisement and does not list a particular position, it shall carry the licensed name of the licensed employment agency;

11. An advertisement shall not state or imply that the licensed employment agency has access to an `an unpublished job market' or `hidden job market'; and

12. An advertisement for a career counseling service shall not state or imply the following:

a. The existence of specific or general job openings;

b. Special contacts;

c. The success performance of clients in percentage terms;

d. Prospective increase in income as a result of utilizing the career counseling service;

e. The number of interviews or job offers likely to be obtained as a result of utilizing the career counseling service; and

f. The time within which it is likely that a new position will be found.

Historical Note

Adopted effective September 9, 1998 (Supp. 98-3).

R20-5-327. Labor Contractors

A labor contractor is not considered a private employment agent provided the labor contractor does not charge a fee to the worker who is contracted to the labor contractor's customer or client and meets the definition of a labor contractor under this Article.

Historical Note

Adopted effective September 9, 1998 (Supp. 98-3).

R20-5-328. Talent and Modeling Agencies

A. All talent or modeling agencies meeting the definition of an employment agent in A.R.S. § 23-521(A) are subject to the provisions of A.R.S § 23-521 et seq. and this Article, except that the Department shall not consider the following activities as conducting the business of a talent agent in this state if no fees are charged to applicants for:

1. The production of theatrical or musical arts or stage shows consisting of responsibility for an entire program;

2. Acting as exclusive business or personal manager for a talent and not referring talent and models to jobs; or

3. Casting services.

B. A talent or modeling agency shall investigate any company who offers employment to a talent or model to reasonably ensure that the company has not defaulted in the payment of salaries, fees, or other compensation to talents and models the company has employed.

Historical Note

Adopted effective September 9, 1998 (Supp. 98-3).

R20-5-329. Employment Agencies Acting Without a License

A. The Department shall investigate the nature and scope of the business of any person, firm, corporation, or association when the person, firm, corporation, or association appears to meet the definition of an "employment agent" in A.R.S. § 23-521, but is operating without an employment agent license.

B. The Department's investigation may include requesting written reports from the person, firm, corporation, or association in question, inspecting relevant records, and securing statements or depositions from witnesses.

C. If, after a thorough investigation, the Department determines that the person, firm, corporation, or association is conducting the business of an employment agent in Arizona without an employment agent license, the Department shall submit the entire record of its investigation, along with the Department's findings, to the appropriate law enforcement agency for criminal prosecution in accordance with the provisions of A.R.S. § 23-536.

Historical Note

Adopted effective September 9, 1998 (Supp. 98-3).

ARTICLE 4. ARIZONA BOILERS AND LINED HOT WATER HEATERS

R20-5-401. Applicability

This Article applies to all boilers and lined hot water storage heaters operated in Arizona, except the following:

1. Boilers and lined hot water storage heaters regulated by the United States Government,

2. Boilers and lined hot water storage heaters operated in private residences or apartment complexes of not more than six units, and

3. Boilers and lined hot water storage heaters operated on Indian reservations.

Historical Note

Former Rules B-1.1 and B-1.2. Former Section R4-13-401 repealed, new Section R4-13-401 adopted effective April 12, 1979 (Supp. 79-2). Section R4-13-401 repealed, new Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-401 recodified from R4-13-401 (Supp. 95-1). Amended effective October 9, 1998 (Supp. 98-4).

R20-5-402. Definitions

In this Article, unless the text otherwise requires:

"Act" means A.R.S. Title 23, Chapter 2, Article 11.

"Alteration" means a change in any item described on the original manufacturer's data report which affects the pressure-containing ability of the boiler except for "Repairs."

"Applicant" means an individual requesting permission to act as a special inspector under A.R.S. § 23-485.

"ASME Code" means the Boiler and Pressure Vessel Code, Sections I, II, IV, V, and IX, published by the American Society of Mechanical Engineers.

"Authorized Inspector" means an authorized representative under A.R.S. § 23-471(1) or a special inspector under A.R.S. § 23-485.

"Blowdown tank" or "blowdown separator" means an ASME-stamped vessel designed to receive discharged steam or hot water from a boiler.

"Condemned boiler or lined hot water storage heater" means a boiler or lined hot water storage heater that has been inspected and found to be unsafe by the Director or authorized inspector and which has been stamped or tagged in accordance with R20-5-407(H).

"Direct fired jacketed steam kettle" means a metallic vessel (other than a sterilizer) in which steam or vapor is generated.

"External inspection" means an examination of a boiler or lined hot water storage heater performed by an authorized inspector when the boiler or lined hot water storage heater is in operation.

"Fully attended boiler" means a boiler that is operated by an individual who meets the requirements of R20-5-417 and whose primary function is the care, maintenance, and operation of the boiler and the equipment associated with the boiler system.

"Inspection certificate" means a document issued by the Division for the operation of a boiler or lined hot water storage heater under the Act.

"Internal inspection" means a complete examination of the internal and external surfaces of a boiler or lined hot water storage heater by an authorized inspector after the boiler or lined hot water storage heater is shut down.

"Relief valve" means an ASME-stamped automatic pressure relieving device designed for liquid service which is actuated by the pressure upstream of the valve and opens further with an increase in pressure above the stamped pressure.

"Repairs" means work necessary to restore a boiler or lined hot water storage heater to a safe and satisfactory operating condition that complies with this Article.

"Safety relief valve" means an ASME-stamped automatically pressure-actuated relieving device designed for use either as a safety valve or as a relief valve.

"Safety valve" means an ASME-stamped automatic pressure relieving device designed for steam or vapor service which is actuated by the pressure upstream of the valve and characterized by full opening pop-action.

"Secondhand boiler or secondhand lined hot water storage heater" means a boiler or lined hot water storage heater that has changed both location and ownership since original installation.

"User" means a person or entity that does not have legal title to a boiler or lined hot water storage heater but has control and responsibility for the operation of a boiler or lined hot water storage heater (for example, lessee).

Historical Note

Former Rules B-2.1 through B-2.6. Former Section R4-13-402 repealed, new Section R4-13-402 adopted effective April 12, 1979 (Supp. 79-2). Amended effective March 31, 1981 (Supp. 81-2). Amended effective May 11, 1981 (Supp. 81-3). Amended effective May 31, 1985 (Supp. 85-3). Section R4-1-402 repealed, new Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-402 recodified from R4-13-402 (Supp. 95-1). Amended effective October 9, 1998 (Supp. 98-4).

R20-5-403. Boiler Advisory Board

A. Members of the boiler advisory board appointed by the Commission pursuant to A.R.S. § 23-474(2) shall serve for a period of three years. The board shall be composed of persons knowledgeable in the industry and shall be reasonably balanced in representation with respect to industry, owners/operators, labor and the public.

B. The board shall hold an annual meeting and such other meetings as may be appropriate and shall conduct business at times and places arranged by the Commission.

Historical Note

Former Rules B-3.1 through B-3.3. Former Section R4-13-403 repealed, new Section R4-13-403 adopted effective April 12, 1978 (Supp. 79-2). Section R4-13-403 repealed, new Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-403 recodified from R4-13-403 (Supp. 95-1).

R20-5-404. Minimum Standards for Boilers and Lined Hot Water Storage Heaters

A. Compliance with National Consensus Standards.

1. An owner, user, or operator of a boiler installed, repaired, replaced, or reinstalled in Arizona, on or after the effective date of this Article shall comply with the 1995 ASME Boiler and Pressure Vessel Code, Sections I, II, IV, V, and IX, and addenda as of June 30, 1997, incorporated by reference and on file with the Office of the Secretary of State. This incorporation does not include any later amendments or editions of the incorporated material. A copy of this referenced material is available for review at the Industrial Commission of Arizona and may be obtained from the American Society of Mechanical Engineers at International Three Park Avenue, New York, New York 10016-5990 or at http://www.asme.org/.

2. An owner, user, or operator of a boiler installed, repaired, replaced, or reinstalled in Arizona, before the effective date of this Article shall comply with the ASME Boiler and Pressure Vessel Code in effect at the time of the last installation, repair, replacement, or reinstallation of the boiler in Arizona. As an alternative, an owner, user, or operator of a boiler described in this subsection may comply with subsection (A)(1).

3. An owner, user, or operator of an oil-fired lined hot water storage heater installed, operated, repaired, replaced, or reinstalled in Arizona shall comply with the UL 732 Standard for Safety, Oil-Fired Water Heaters, ANSI Z95.3-1975, April 17, 1975, incorporated by reference and on file with the Office of the Secretary of State. This incorporation does not include any later amendments or editions of the incorporated material. A copy of this referenced material is available for review at the Industrial Commission of Arizona and may be obtained from Underwriters Laboratories, Inc. at 1655 Scott Boulevard, Santa Clara, California 95050 or http://www.ul.com/. The incorporated material may also be obtained from the American National Standards Institute at 11 West 42nd St., New York, New York 10036 or at http://web.ansi.org/.

4. An owner, user, or operator of a gas-fired lined hot water storage heater installed, operated, repaired, replaced, or reinstalled in Arizona shall comply with the American National Standard for Gas Water Heaters, ANSI Z21.10.3-1975, Volume 3, October 17, 1975, incorporated by reference and on file with the Office of the Secretary of State. This incorporation does not include any later amendments or editions of the incorporated material. A copy of this referenced material is available for review at the Industrial Commission of Arizona and may be obtained from the American National Standards Institute at 11 West 42nd St., New York, New York 10036 or at http://web.ansi.org/.

5. An owner, user, or operator of a boiler installed, repaired, replaced, or reinstalled in Arizona after the effective date of this Article shall comply with the American National Standard for Controls and Safety Devices for Automatically Fired Boilers, ANSI/ASME CSD-1-1995 and 1996 addenda, incorporated by reference and on file with the Office of the Secretary of State. This incorporation does not include any later amendments or editions of the incorporated matter. A copy of this referenced material is available for review at the Industrial Commission of Arizona and may be obtained from the American Society of Mechanical Engineers at International Three Park Avenue, New York, New York 10016-5990 or at http://www.asme.org/. The incorporated material may also be obtained from the American National Standards Institute at 11 West 42nd St., New York, New York 10036 or at http://web.ansi.org/.

6. An owner, user, or operator of a boiler installed, repaired, replaced, or reinstalled in Arizona before the effective date of this Article shall comply with the American National Standard for Controls and Safety Devices for Automatically Fired Boilers in effect at the time of the last installation, repair, replacement, or reinstallation of a boiler in Arizona. As an alternative, an owner, user, or operator of a boiler described in this subsection may comply with subsection (A)(5)

7. A permanent source of outside air shall be provided for each boiler and lined hot water storage heater room to assure complete combustion of the fuel as required by ANSI Z223.1-1988, NFPA 54, National Fuel Gas Code incorporated by reference and on file with the Secretary of State. This incorporation does not include any later amendments or editions of the incorporated matter. A copy of this referenced material is available for review at the Industrial Commission of Arizona and may be obtained from the American National Standards Institute at 11 West 42nd St., New York, New York 10036 or at http://web.ansi.org/.

B. Installation, Maintenance, and Repair Requirements.

1. An owner, user, or operator shall ensure that a signed copy of the Manufacturer's Data Report for a boiler or lined hot water storage heater is kept at the location of the boiler or lined hot water storage heater and available for review upon request from an authorized inspector.

2. A boiler shall have masonry or structural supports of sufficient strength and rigidity to safely support the boiler and its contents without any vibration in the boiler or its connecting piping.

3. A boiler or lined hot water storage heater installed in new construction shall have at least three feet clearance between the top of the boiler or lined hot water storage heater and the ceiling, and at least three feet clearance between all sides of the boiler or lined hot water storage heater and adjacent walls, structures, or other equipment.

4. A boiler with a manhole shall have at least five feet clearance between the boiler manhole and any wall, ceiling, or piping.

5. An owner, user, or operator shall ensure that a boiler or lined hot water storage heater is located to provide space to permit an operator or authorized inspector to safely operate, maintain, and inspect the boiler, lined hot water storage heater, and equipment associated with the boiler or lined hot water storage heater systems.

6. A newly constructed boiler room in excess of 500 square feet floor area and containing one or more boilers having a total fuel capacity of 1,000,000 Btu per hour, or equivalent electrical heat input, shall have at least two exits on each level of the boiler or boilers. Each exit shall be remotely located from other exits.

7. An owner, user, or operator shall ensure that a boiler or lined hot water storage heater room is kept clean and with no obstructions to the boiler or lined hot water storage heater.

8. An owner, user, or operator shall ensure that combustible, flammable, or explosive materials are not stored in a boiler or lined hot water storage heater room.

9. If a boiler or lined hot water storage heater is moved outside Arizona for temporary use or repairs, the owner, user, or operator shall not reinstall the boiler or lined hot water storage heater in Arizona until the owner, user, or operator notifies and receives verbal or written permission from the Division under R20-5-419 to reinstall the boiler or lined hot water storage heater. If the Division grants permission to reinstall the boiler or lined hot water storage heater, the owner, user, or operator shall not operate the reinstalled boiler or lined hot water storage heater until the owner, user, or operator receives an inspection certificate from the Division under this Article.

10. Before installing, repairing, replacing, or reinstalling any new or used boiler, an owner, user, or operator shall notify an authorized inspector.

11. Before installing a used boiler, an owner, user, or operator shall ensure that the boiler receives a hydrostatic test under R20-5-411.

12. An owner, user, or operator of a portable boiler shall notify an authorized inspector before installing the portable boiler and shall not operate the portable boiler until the owner, user, or operator receives an inspection certificate from the Division.

Historical Note

Former Rules B-4.1 through B-4.3. Former Section R4-13-404 repealed, new Section R4-13-404 adopted effective April 12, 1979 (Supp. 79-2). Amended subsection (P) by adding paragraph (7) and amended subsection (Q) effective October 3, 1980 (Supp. 80-5). Section R4-13-404 repealed, new Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-404 recodified from R4-13-404 (Supp. 95-1). Amended effective October 9, 1998 (Supp. 98-4).

R20-5-405. Lap-seam Crack

The shell or drum of a boiler in which a lap-seam crack is discovered along a longitudinal riveted joint (i.e., a crack is found in a lap-seam, extending parallel to the longitudinal joint and located either between or adjacent to rivet holes) shall be immediately disconnected from use. Patching is prohibited.

Historical Note

Former Section R4-13-405 repealed effective April 12, 1979 (Supp. 79-2). New Section R4-13-405 adopted effective June 13, 1980 (Supp. 80-3). Section R4-13-405 repealed, new Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-405 recodified from R4-13-405 (Supp. 95-1).

R20-5-406. Repairs and Alterations

A. If repairs or alterations may affect the working pressure or safety of a boiler, an owner, user, or operator shall consult with an authorized inspector before having the repairs or alterations made. The authorized inspector shall provide the owner, user, or operator information regarding the best method to repair or alter the boiler. The owner, user, or operator shall ensure that an authorized inspector inspects and approves the repairs and alterations after the repairs or alterations are made.

B. Repairs and alterations to boilers shall conform to the applicable provisions of the National Board Inspection Code, ANSI/NB-23-1995 Edition and 1996 addenda, incorporated by reference and on file with the Office of the Secretary of State. This incorporation does not include any later amendments or editions of the incorporated material. A copy of this referenced material is available for review at the Industrial Commission of Arizona and may be obtained from the National Board of Boiler and Pressure Vessel Inspectors at 1055 Crupper Avenue, Columbus, Ohio 43229-1183 or at http://www.nationalboard.org/.

C. An owner, user, or operator shall not permit an individual to remove or repair a safety appliance of a boiler or lined hot water storage heater in operation. An owner, user, or operator shall not permit a person to remove or repair a safety appliance of a boiler or lined hot water storage heater not in operation except as provided under the ASME Code. If an owner, user, or operator permits a person to remove a safety appliance from a boiler or lined hot water heater as provided under the ASME Code, then the owner, user, or operator shall ensure that the safety appliance is reinstalled in proper working order before the boiler or lined hot water storage heater is placed back into operation.

D. A person shall not alter in any manner a safety valve, relief valve, or safety relief valve.

E. Repairs of fittings or appliances shall comply with the requirements of the National Board Inspection Code, ANSI/NB-23 1995 Edition and 1996 addenda incorporated by reference and on file with the Office of the Secretary of State. This incorporation does not include any later amendments or editions of the incorporated material. A copy of this referenced material is available for review at the Industrial Commission of Arizona and may be obtained from the National Board of Boiler and Pressure Vessel Inspectors at 1055 Crupper Avenue, Columbus, Ohio 43229-1183 or at http://www.nationalboard.org/.

F. Replacement of fittings or appliances shall comply with the requirements of the 1995 ASME Boiler and Pressure Vessel Code, Sections I, II, IV, V, and IX, and addenda as of June 30, 1997, incorporated by reference and on file with the Office of the Secretary of State. This incorporation does not include any later amendments or editions of the incorporated material. A copy of this referenced material is available for review at the Industrial Commission of Arizona and may be obtained from the National Board of Boiler and Pressure Vessel Inspectors at 1055 Crupper Avenue, Columbus, Ohio 43229-1183 or at http://www.nationalboard.org/. A copy of the incorporated material may also be obtained from the American Society of Mechanical Engineers at International Three Park Avenue, New York, New York 10016-5990 or at http://www.asme.org.

Historical Note

Former Section R4-13-406 repealed effective April 12, 1979 (Supp. 79-2). New Section R4-13-406 adopted effective June 13, 1980 (Supp. 80-3). Section R4-13-406 repealed, new Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-406 recodified from R4-13-406 (Supp. 95-1). Amended effective October 9, 1998 (Supp. 98-4).

R20-5-407. Inspection of Boilers and Lined Hot Water Storage Heaters and Issuance of Inspection Certificates

A. An authorized inspector shall comply with the guidelines set forth in the National Board Inspection Code, ANSI/NB-23 1995 Edition and 1996 addenda, incorporated by reference and on file with the Office of the Secretary of State. This incorporation does not include any later amendments or editions of the incorporated material. A copy of this referenced material is available for review at the Industrial Commission of Arizona and may be obtained from the National Board of Boiler and Pressure Vessel Inspectors at 1055 Crupper Avenue, Columbus, Ohio 43229-1183 or at http://www.nationalboard.org/.

B. If an owner, user, or operator fails to comply with the requirements for an inspection or pressure test under this Article, the Division shall withhold the inspection certificate until the owner, user, or operator complies with the requirements.

C. An authorized inspector shall not engage in the sale of any object or device relating to boilers, lined hot water storage heaters, or equipment associated with boiler or lined hot water storage systems.

D. Under A.R.S. § 23-485 (D), a special inspector shall submit inspection reports to the Division on forms equivalent to Form NV-6 of the National Board Inspection Code, Appendix G, 1995 Edition and 1996 addenda, incorporated by reference and on file with the Secretary of State. This incorporation does not include any later amendments or editions of the incorporated matter. A copy of this referenced material is available for review at the Industrial Commission of Arizona and may be obtained from the National Board of Boiler and Pressure Vessel Inspectors at 1055 Crupper Avenue, Columbus, Ohio 43229-1183 or at http://www.nationalboard.org/.

E. The Division shall issue to an owner or user an inspection certificate within 15 days of receipt of an inspection report that documents that a boiler or lined hot water storage heater complies with the Act and this Article. An owner, user, or operator of a boiler or lined hot water storage heater shall post the inspection certificate in the establishment where the boiler or lined hot water storage heater is located.

F. An owner, user, or operator shall ensure than an authorized inspector tags or stamps a steam boiler with an identification number assigned by the Division immediately after installing, but before operating, a new steam boiler, or when an authorized inspector performs an initial certificate inspection of an existing steam boiler. The identification number shall be at least 5/16" in height and in the following format: AZ-# # # #

G. The Division shall mark with a metal dye stamp a boiler or lined hot water storage heater declared by the Division as unfit for further service, with the code "XXX AZ8 XXX" which shall designate that the boiler or lined hot water storage heater is condemned.

H. For any conditions not covered by this Article, the applicable provisions of the ASME Code that was in effect in Arizona at the time of the installation of the boiler or lined hot water storage heater shall apply.

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). New Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-407 recodified from R4-13-407 (Supp. 95-1). Amended effective October 9, 1998 (Supp. 98-4).

R20-5-408. Frequency of Inspection

A. An owner, user, or operator of a power boiler shall ensure that an authorized inspector performs a certificate inspection and external inspection of the power boiler every 12 months. An authorized inspector shall perform the external inspection while the power boiler is in operation to ensure that safety devices of the power boiler are operating properly.

B. An authorized inspector shall perform an internal inspection and pressure test on a boiler or lined hot water storage heater if the inspector determines from an external inspection of the boiler or lined hot water storage heater that continued operation of the boiler or lined hot water storage heater is a danger to public or worker safety.

C. The Division shall issue a 12-month inspection certificate to an owner or user to operate a fully attended power boiler if:

1. An owner, user, or operator ensures that an authorized inspector performs an external safety inspection and audit of the operational methods and logs of the fully attended boiler at least every 12 months and performs an internal inspection of the fully attended power boiler at least every 24 months; and

2. Inspection reports of an authorized inspector document that the fully attended boiler complies with A.R.S. § 23-471 et seq. and this Article.

D. An owner, user, or operator of a direct-fired jacketed steam kettle shall ensure that an authorized inspector performs a certificate inspection of the direct-fired jacketed steam kettle every 24 months.

E. An owner, user, or operator of a heating or process boiler, not exceeding 15 p.s.i. maximum allowable working pressure, steam or vapor, shall ensure that an authorized inspector performs a certificate inspection of the heating or process boiler every 24 months.

F. An owner, user, or operator of a hot water heating or hot water supply boiler shall ensure that an authorized inspector performs a certificate and external inspection of the hot water heating or hot water supply boiler at the time the hot water heating or hot water supply boiler is installed. An inspection certificate issued by the Division following an inspection under this subsection shall not state an expiration date. An owner, user, or operator of a hot water heating or hot water supply boiler not exceeding 200,000 Btu per hour input and a water temperature of 210° F is exempt from the inspections required under this subsection.

G. Except as provided in A.R.S. § 23-474(10), an owner, user, or operator of a lined hot water storage heater shall ensure that an authorized inspector performs a certificate and external inspection of the lined hot water storage heater at the time the heater is installed.

H. An owner, user, or operator of a boiler or hot water storage heater shall ensure that an inspection required under A.R.S. § 23-471 et seq. and this Article is conducted no later than 30 days after an inspection certificate expires. An authorized inspector may conduct an inspection prior to expiration of the inspection certificate.

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). New Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-408 recodified from R4-13-408 (Supp. 95-1). Amended effective October 9, 1998 (Supp. 98-4).

R20-5-409. Notification and Preparation for Inspection

A. An authorized inspector shall perform a certificate inspection at a time mutually agreeable to the inspector and owner, user, or operator.

B. Before an authorized inspector performs an internal inspection of a boiler, an owner, user, or operator shall:

1. Cool the furnace and combustion chambers;

2. Drain the water from the boiler;

3. Remove the manhole and handhole plates, wash-out plugs, and inspection plugs in water column connections;

4. Remove insulation or brickwork if necessary to determine the condition of the boiler, headers, furnace, supports, and other parts;

5. Remove the pressure gauge for testing;

6. Prevent any leakage of steam or hot water into the boiler by disconnecting the involved pipe or valve;

7. Close, tag, and padlock the non-return and steam stop valves before opening the manhole or handhole covers and entering any part of the steam generating unit that is connected to a common header with other boilers. Open the free blow drain or cock between the non-return and steam stop valves;

8. Close, tag, and padlock the blowoff valves after draining the boiler: and

9. Open all drains and vent lines.

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). New Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-409 recodified from R4-13-409 (Supp. 95-1). Amended effective October 9, 1998 (Supp. 98-4).

R20-5-410. Report of Accident

An owner, user, or operator shall immediately notify the Division of an explosion, severe over heating, or personal injury involving a boiler or lined hot water storage heater. A person shall not remove or disturb the involved boiler or lined hot water storage heater or parts of the boiler or lined hot water storage heater before an investigation by an authorized inspector, except for the purpose of preventing personal injury or limiting consequential damage.

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). New Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-410 recodified from R4-13-410 (Supp. 95-1). Amended effective October 9, 1998 (Supp. 98-4).

R20-5-411. Hydrostatic Tests

A. A hydrostatic test shall not exceed 1.5 times the maximum allowable working pressure. The pressure shall be controlled so that the required test pressure does not exceed 2%.

B. During a hydrostatic test, safety valves shall be removed or each safety valve disc shall be held to the disc's seat by a testing clamp. Safety valve discs shall not be held to the disc seat by screwing down the compression screw upon the spring. A plug device designed for this purpose may be used to hold a safety valve disc to the disc seat.

C. The temperature of the water used to apply a hydrostatic test shall not be less than 70°F nor more than 120°F.

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). New Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-411 recodified from R4-13-411 (Supp. 95-1). Amended effective October 9, 1998 (Supp. 98-4).

R20-5-412. Automatic Low-water Fuel Cutoff Devices or Combined Water Feeding and Fuel Cutoff Devices

A. An owner, user, or operator shall ensure that low-water fuel cutoff devices or combined water feeding and fuel cutoff devices do not interfere with an operator's or inspector's ability to safely clean, repair, test, or inspect a boiler or lined hot water storage heater.

B. A low-water fuel cutoff device shall have a pressure rating not less than the set pressure of the safety valve or safety relief valve.

C. An open circuit failure, break, or disconnection of the electrical components or conductors in the safety circuit of a probe-type low-water fuel cutoff device shall prevent continued operation of the firing mechanism of the device.

D. If an alarm is used, the alarm shall be clearly audible above the existing noise level and shall be located to alert the operator of the boiler or lined hot water storage heater that a potentially dangerous situation is developing. An alarm may be used in conjunction with indicating lights.

E. Each automatically fired high pressure steam boiler, except miniature boilers, and constantly attended boilers, shall have at least two automatic low-water fuel cutoff devices. Each cutoff device shall be installed to prevent start-up of the boiler and to automatically cut off the boiler fuel supply when the water level of the boiler falls no lower than the lowest visible part of the gauge glass. Controls of the cutoff devices shall be set so that the cutoff devices function sequentially.

F. Each miniature boiler shall have at least one low-water fuel cutoff device.

G. The activation of the second (lower) low-water fuel cutoff device of two cutoff devices set to function sequentially shall cause a safety shutdown (lockout) of a boiler requiring manual reset of the boiler. A manual reset device shall be installed in the lower cutoff device or installed in another location on the boiler as permitted under this Section. If a reset device is not installed in the low-water fuel cutoff device, an indicator shall reflect that the low-water fuel cutoff device has caused a safety shutdown (lockout) of the boiler. The manual reset device may be an instantaneous type or use a time delay of not more than three minutes after the fuel has been cut off.

H. Except as otherwise permitted under this Article, a low-water fuel cutoff device shall be inserted internally or attached externally to a boiler. An external cutoff device may be attached to piping that connects a water column to a boiler or the external cutoff device may be combined with a water column. The pipe size of water column piping and connections to which an external cutoff device is attached or combined shall be at least 1". If a low-water fuel cutoff device is connected to a boiler by pipe or fittings, no shutoff valves shall be placed in the connecting piping. A cross or similar fitting shall be placed in the water piping at every right angle to facilitate cleaning and inspection of the boiler and low-water fuel cutoff device. Fuel cutoff devices shall have a full-size vertical drain pipe and blowoff valve located at the device or water-equalizing pipe connections, so that the device and the equalizing pipe can be flushed and the fuel cutoff device tested.

I. A time-delay component may be combined with a low-water fuel cutoff device to prevent short cycling in the boiler system. The time-delay component shall not constrict any connecting piping, and the time delay shall not exceed the boiler manufacturer's timing or 90 seconds, whichever is less. The low-water fuel cutoff device shall shut off fuel supply if the water level falls to the lowest visible part of the gauge glass.

J. A flow-sensing device may be installed instead of a low-water fuel cutoff device in a water tube or coil-type boilers that use forced circulation to prevent overheating and failure. The flow-sensing device shall prevent burner operation if the circulating flow of the water tube or coil-type boiler is below a safe minimum of flow. Flow-sensing devices shall be located to ensure that the device will not be activated if a relief condition occurs.

K. In addition to the requirements of subsections (A) through (E), the following requirements apply to low-water fuel cutoff devices for steam boilers.

1. Each automatically fired steam heating boiler shall have at least one automatic low-water fuel cutoff or combined water feeding and fuel cutoff device. Boilers with a pumped condensate return shall have two cutoff devices, each attached with separate connections to the boiler. Each low-water fuel cutoff device shall be installed to prevent start-up and to automatically shut off the boiler fuel supply if the water level falls no lower than the lowest visible part of the gauge glass. If a water feeding device is used, it shall be constructed and installed so that the water inlet valve cannot feed water into the boiler through the float chamber or its connections to the boiler. The water feeding device shall be located to maintain the operating water level of the boiler.

2. If a steam boiler has dual low-water fuel cutoff devices both devices shall shut off the fuel supply to the boiler if a low-water condition develops. The low-water fuel cutoff devices shall be set to function sequentially. The activation of the second (lower) low-water fuel cutoff device shall cause a safety shutdown (lockout) of the boiler requiring manual reset of the boiler. A manual reset device shall be installed in the lower cutoff device, or installed in another location on the boiler as permitted under this Section. If a reset device is not installed in the low-water fuel cutoff device, an indicator shall reflect that the low-water fuel cutoff device has caused a safety shutdown (lockout) of the boiler. The manual reset device may be an instantaneous type or use a time delay of not more than three minutes after the cutoff device has caused a fuel cutoff.

3. A low-water fuel cutoff device shall be inserted internally or attached externally to a boiler. An external cutoff device may be connected to water column piping. The water column piping to which an external cutoff device is attached shall be at least 1" pipe size. If the cutoff device is connected to the boiler by pipe and fittings, no shutoff valves shall be placed in the connecting piping. A cross or similar fitting shall be placed in the water piping connection at every right angle to facilitate cleaning and inspection of the boiler and low-water fuel cutoff device. A full-size drain valve and piping shall be installed on the lowest cross or similar fitting to facilitate testing of the low-water cutoff device.

4. A low-water fuel cutoff or combined water feeding and fuel cutoff device may be installed in the connection (tapped openings) that attaches a water gauge glass directly to a boiler, provided the water gauge glass is connected to the boiler with nonferrous tees and wyes so that the water gauge is attached directly and as closely as possible to the boiler. The pipe size of a nonferrous tee and wye connecting a water gauge glass to the boiler shall be at least 1/2". The urn of the tee or wye shall connect to the water glass fitting and the side outlet or branch of the tee or wye shall connect to the water feeding and fuel cutoff device. The ends of all pipe nipples shall be reamed to the full inside diameter of the pipe.

5. A low-water fuel cutoff device or combined water feeding and fuel cutoff device shall have a vertical drain pipe and a blowoff valve located at the device or water equalizing pipe connections to allow testing and flushing of the device and the equalizing pipe.

6. A time-delay component may be combined with a low-water fuel cutoff device to prevent short cycling in the boiler system. The time-delay component shall not constrict any connecting piping, and the time delay shall not exceed the boiler manufacturer's timing or 90 seconds, whichever is less. The low-water fuel cutoff device shall cut off the fuel supply if the water level falls to the lowest visible part of the gauge glass.

L. In addition to the requirements of subsections (A) through (E), the following requirements apply to low-water fuel cutoff devices for hot water boilers.

1. An automatically fired hot water boiler shall be protected by a low-water fuel cutoff or combined feeder cutoff device designed for hot water service.

2. A low-water fuel cutoff device shall be located any place above the lowest safe permissible water level established by the boiler manufacturer.

3. No stop valves shall be located between the boiler and control of a low-water fuel cutoff device.

4. If a low-water fuel cutoff device is located in the boiler system piping, the owner, user, or operator of the hot water boiler shall ensure that:

a. The float chamber drains properly under a low-water condition; and

b. The low-water cutoff device is installed so that if water flow occurs in the float chamber, the water flows in the upward direction.

5. A low-water fuel cutoff device shall cause a safety shutdown (lockout) requiring a manual reset if low-water conditions occur. If a reset device is not installed in the low-water fuel cutoff device, an indicator shall reflect that the low-water fuel cutoff device has caused a safety shutdown (lockout). The manual reset device may be an instantaneous type or may use a time delay of not more than three minutes after the fuel has been cut off.

6. An owner, user, or operator shall provide a method to test the operation of a low-water fuel cutoff device without draining the piping system of the boiler. The method of testing shall not render the low-water fuel cutoff device unsafe or inoperable.

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). New Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-412 recodified from R4-13-412 (Supp. 95-1). Amended effective October 9, 1998 (98-4).

R20-5-413. Safety and Safety Relief Valves

A. A valve shall not be placed between a safety valve and a boiler or between a safety valve and the safety valve discharge point.

B. A discharge pipe shall be the full size of the safety outlet. The discharge pipe shall be fitted with a drain to prevent water from accumulating in the discharge pipe and in the upper part of the safety valve.

C. Safety valve discharge piping shall not discharge water or steam into walkways or platforms.

D. In addition to the requirements of subsections (A) through (C), the following requirements apply to safety valves for power boilers:

1. A power boiler shall have at least one safety valve, except that if the heating surface of a power boiler exceeds 500 square feet, or the electric input of the power boiler is greater than 500 kilowatts, the power boiler shall have at least two safety valves;

2. Safety valves shall be connected to the power boiler independent of any steam connection and shall be attached as closely as possible to the power boiler without unnecessary intervening pipe or fittings;

3. A safety valve for a power boiler shall have the capacity to discharge steam generated by the boiler without allowing the pressure to rise more than 6% above the highest pressure to which any valve is set, and in no case more than 6% above the maximum allowable working pressure of the power boiler;

4. The minimum relieving capacity of a safety valve or safety relief valve for power boilers, other than electric boilers and forced-flow steam generators without fixed steam and water lines, shall be determined on the basis of the pounds of steam generated per hour per square foot of the boiler heating surface and water wall heating surface;

5. The minimum relieving capacity of a safety valve or safety relief valve for electric boilers shall be 3.5 pounds per hour per kilowatt input;

6. A power boiler shall have one or more safety valves set at or below the maximum allowable working pressure. The remaining safety valves may be set within a range of 3% above the maximum allowable working pressure. The range of settings for all safety valves on the boiler shall not exceed 10% of the highest pressure to which any valve is set;

7. If two or more connected power boilers operate at different pressures and safety valve settings, the lower pressure boiler and piping connecting the boilers shall be equipped with safety valves of sufficient capacity to prevent overpressure of the lower pressure boiler and connecting piping, considering the maximum generating capacity of the connected boilers;

8. When a power boiler is supplied with feed-water directly from a water main without the use of a feeding apparatus, safety valves shall not be set at a pressure greater than 94% of the lowest pressure obtained in the water main feeding the boiler;

9. Weighted lever safety valves or safety valves having either a cast iron seat or disk shall not be used. Safety valves shall conform to the requirements of the 1995 ASME Boiler and Pressure Vessel Code, Section I, and addenda as of June 30, 1997, incorporated by reference and on file with the Office of the Secretary of State. This incorporation does not include any later amendments or editions of the incorporated material. A copy of this referenced material is available for review at the Industrial Commission of Arizona and may be obtained from the American Society of Mechanical Engineers at International Three Park Avenue, New York, New York 10016-5990 or at http://www.asme.org/; and

10. No safety valve shall be smaller than 1/2" and no larger than 6" standard pipe size.

E. In addition to the requirements of subsections (A) through (C), the following requirements apply to safety valves for heating boilers:

1. A steam heating boiler shall have at least one ASME-rated and stamped safety valve of the spring-loaded pop-type, adjusted to relieve the total capacity of the boiler. Seals shall be attached to each safety valve to prevent tampering or resetting of the valve;

2. A hot water heating or hot water supply boiler shall have at least one safety relief valve to relieve the total capacity of the boiler without exceeding the maximum allowable working pressure of the boiler; and

3. Hot water heating boilers installed in parallel (side by side), having a pump return, shall have check valves installed on either side of a stop valve on the common return header.

F. In addition to the requirements of subsections (A) through (C), the following requirements apply to lined hot water storage heaters:

1. A lined hot water storage heater shall have at least one ASME-rated and stamped, pressure, temperature, automatic reseating relief valve. Valves shall be set to discharge at or below the maximum allowable working pressure of the heater and shall be equipped with a test lever;

2. The minimum relieving capacity of relief valves shall be determined by the Btu-per-hour output of the burner that is stamped on the data plate of the lined hot water storage heater; and

3. The minimum relieving capacity of valves on an electric lined hot water storage heater shall be 3,500 Btu per hour for each kilowatt rating.

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). New Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-413 recodified from R4-13-413 (Supp. 95-1). Amended effective October 9, 1998 (Supp. 98-4).

R20-5-414. Pressure-reducing valves

A. If a pressure-reducing valve is used, at least one relief or safety valve shall be provided on the low pressure side of the reducing valve if the piping or equipment on the low pressure side does not meet the requirements of the high pressure side. Relief or safety valves shall be placed next to or as close as possible to the reducing valve. A relief or safety valve shall not discharge escaping fluid into walkways or an area in which individuals work.

B. A hand-controlled bypass on a reducing valve is permissible. If a hand-controlled bypass is used on a reducing valve, the safety valve required on the low pressure side shall have the capacity to relieve all pressure through the bypass without overpressuring the low pressure side.

C. A pressure gauge shall be installed on the low pressure side and next to the reducing valve.

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). New Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-414 recodified from R4-13-414 (Supp. 95-1). Amended effective October 9, 1998 (Supp. 98-4).

R20-5-415. Boiler Blowdown and Blowoff Equipment

A. Except as provided in this Section, an owner, user, or operator of blowdown and blowoff equipment shall comply with the National Board Rules and Recommendations for the Design and Construction of Boiler Blowoff Systems, 1991 Edition, incorporated by reference and on file with the Office of the Secretary of State. This incorporation does not include any later amendments or editions of the incorporated material. A copy of this referenced material is available for review at the Industrial Commission of Arizona and may be obtained from the National Board of Boiler and Pressure Vessel Inspectors at 1055 Crupper Avenue, Columbus, Ohio 43229-1183 or at http://www.nationalboard.org/.

B. Blowdown from a boiler is a hazard to life and property.

C. Blowdown from a boiler shall pass through blowdown equipment that reduces pressure and temperature to levels not exceeding 5 p.s.i.g. and 140° F.

D. The thickness of a blowdown vessel shall be at least 3/16".

E. All blowdown equipment shall be fitted with openings that allow cleaning and inspection of the equipment.

F. Blowdown separators may be used with boilers instead of boiler blowdown tanks, provided that blowdown separators are operated with a temperature gauge and water cooler to prevent drain water temperature from exceeding 140° F.

G. In addition to the requirements of subsections (A) through (F), the following requirements apply to blowdown piping and valves for power boilers:

1. Each power boiler shall have two valves on the blowdown piping. The valves shall be designed for the pressure and temperature of the maximum operating pressure of the boiler. The blowdown piping shall have two slow-opening valves or one slow-opening and one quick-opening valve. The slow-opening valve shall be a wye type valve, except that angle valves may be used in vertical pipes, or horizontal piping, if the angle valves are constructed or installed so that the lowest edge of the opening through the seat of the angle valve is at least 25% of the inside diameter below the center line of the angle valve.

2. Globe valves, gate valves, and valves that have dams or other pockets where sediment may collect shall not be used in a blowdown system.

3. Quick-opening valves, including ball valves, shall be constructed and approved in accordance with ANSI/ASME B31.1-1995 Edition, Power Piping, incorporated by reference and on file with the Office of the Secretary of State. This incorporation does not include any later amendments or editions of the incorporated material. A copy of this referenced material is available for review at the Industrial Commission of Arizona and may be obtained from the American Society of Mechanical Engineers at International Three Park Avenue, New York, New York 10016-5990 or at http://www.asme.org/.

4. If a safety valve is set greater than 100 p.s.i., the boiler blowdown piping shall be constructed of heavy duty pipe. For purposes of this subsection, heavy duty pipe means Schedule 80 black iron pipe or stronger.

5. Size of boiler blowdown and blowoff piping and valves shall comply with Table 1.

Table 1.

H. In addition to the requirements of subsections (A) through (F), the following requirements apply to bottom blowdown or drain valves for heating boilers:

1. A hot water heating boiler shall have a bottom blowdown or drain pipe connection fitted with a valve or cock connected with the lowest available water space with the minimum size of blowdown piping and valves as shown in Table 1;

2. A boiler that has a capacity of no more than 25 gallons and a minimum drain valve size of 3/4" is exempt from subsection (F); and

3. Discharge piping connected to a bottom blowdown or bottom drain connection, or both, shall be the same pipe size as the connection.

I. Discharge outlets of blowdown pipes, safety valves, and other piping shall be located and structurally supported to prevent injury to individuals.

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). New Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-415 recodified from R4-13-415 (Supp. 95-1). Amended effective October 9, 1998 (Supp. 98-4).

R20-5-416. Maximum Allowable Working Pressure

The ASME Code under which a boiler was constructed and stamped shall determine the maximum allowable working pressure for the ASME-stamped boiler.

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). New Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-416 recodified from R4-13-416 (Supp. 95-1). Amended effective October 9, 1998 (Supp. 98-4).

R20-5-417. Maintenance and Operation of Boilers; Qualifications for Operators of Power Boilers

A. An owner, user, or operator of a boiler constructed under the ASME Code, Sections I, II, IV, V, or IX shall comply with the manufacturer's maintenance and operation instructions for the boiler.

B. In addition to the requirements of subsection (A), an owner, user, or operator of a boiler constructed under the ASME Code, Sections I, II, IV, V, or IX shall comply with the following preventive maintenance schedule if the boiler contains the component or system listed.

1. On a daily basis, the owner, user, or operator shall:

a. Test the low-water fuel cutoff and alarm, and

b. Check the burner flame for proper combustion.

2. On a weekly basis, the owner, user, or operator shall:

a. Check for proper ignition, and

b. Check the flame failure detection system.

3. On a monthly basis, the owner, user, or operator shall:

a. Test all fan and air pressure interlocks,

b. Check the main burner safety shutoff valve,

c. Check the low fire start switch,

d. Test fuel pressure and temperature interlocks of oil-fired units, and

e. Test the high and low fuel pressure switch of gas-fired units.

4. Every six months, the owner, user, or operator shall:

a. Inspect burner components;

b. Check flame failure system components, such as vacuum tubes, amplifier, and relays;

c. Check wiring of all interlocks and shutoff valves;

d. Recalibrate all indicating and recording gauges; and

e. Check steam and blowdown piping and valves.

5. Annually, the owner, user, or operator shall:

a. Replace vacuum tubes, scanners, or flame rods in the flame failure system according to the manufacturer's instructions;

b. Check all coils and diaphragms; and

c. Test operating parts of all safety shutoff and control valves.

C. An owner or user of a power boiler shall designate an individual who meets the requirements of subsection (E) to operate the boiler. An owner or user may operate the boiler if the owner or user meets the requirements of subsection (E).

D. A boiler operator that meets the requirements of subsection (E) shall be on the premises at all times a power boiler is in operation.

E. A boiler operator of a power boiler shall meet the following minimum requirements:

1. Knowledge of and an ability to explain the function and operation of all safety controls of the boiler;

2. Ability to start the boiler in a safe manner;

3. Knowledge of all safe methods of feeding water to the boiler;

4. Knowledge of and the ability to blow down the boiler in a safe manner;

5. Knowledge of safety procedures to follow if water exceeds or drops below permissible safety levels; and

6. Knowledge of and the ability to safely shut down the boiler.

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). New Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-417 recodified from R4-13-417 (Supp. 95-1). Amended effective October 9, 1998 (Supp. 98-4).

R20-5-418. Non-standard Boilers

An owner, user, or operator shall remove from service a boiler that does not bear an ASME stamp unless the boiler operates properly and safely after an inspector performs an internal and external inspection and a hydrostatic pressure test of 1 1/2 times the allowable working pressure held for at least 30 minutes. The inspections and test required under this subsection shall be performed on an annual basis and any time an owner, user, or operator suspects that a boiler cannot be operated safely.

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). New Section adopted effective April 9, 1992 (Supp. 92-2). R20-5-418 recodified from R4-13-418 (Supp. 95-1). Amended effective October 9, 1998 (Supp. 98-4).

R20-5-419. Request to Reinstall Boiler or Lined Hot Water Heater

A. The Division shall grant or deny permission to reinstall a boiler or lined hot water heater within three business days after an owner or user requests permission to reinstall the boiler or lined hot water heater. The order of the Division granting or denying permission to reinstall a boiler shall be in writing.

B. The Division shall grant permission to reinstall a boiler or lined hot water heater if the boiler or lined hot water heater complies with A.R.S. § 23-471 et seq. and this Article. The Division shall deny permission to reinstall a boiler or lined hot water storage heater if the boiler or lined hot water storage heater does not comply with A.R.S. § 23-471 et seq. and this Article.

C. An order of the Division denying permission to reinstall a boiler shall be final unless an owner or user requests a hearing under A.R.S. § 23-479 within 15 days after the Division mails the order. The owner or user requesting a hearing shall have the burden to prove that a boiler meets the requirements of A.R.S. § 23-471 et seq. and this Article.

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). R20-5-419 recodified from R4-13-419 (Supp. 95-1). New Section adopted effective October 9, 1998 (98-4).

R20-5-420. Special Inspector Certificate under A.R.S. § 23-485

A. Review Time-frames.

1. Administrative Completeness Review.

a. The Division shall determine whether an application to take a written examination or request for a special inspector certificate under A.R.S. § 23-485 is complete within three days of receipt of the application or request. The Division shall inform the applicant whether the application or request is complete or incomplete by written notice. If the application or request is incomplete, the Division shall include in its written notice to the applicant a complete list of the missing information.

b. The Division shall deem an application or request withdrawn if an applicant fails to file a complete application or request within 10 days of being notified by the Division that the application or request is incomplete, unless the applicant obtains an extension to provide the missing information. An applicant may obtain an extension to submit the missing information by filing a written request with the Division no later than 10 days after the Division mails notice that the application or request is incomplete. The written request for an extension shall state the reasons the applicant is unable to meet the 10-day deadline. If an extension will enable the applicant to assemble and submit the missing information, the Division shall grant an extension of not more than 10 days and provide written notice of the extension to the applicant.

2. Substantive review.

a. Application to take written examination under A.R.S. § 23-485(A). Within three days after the Division deems an application complete under subsection (B), the Division shall determine whether the applicant is eligible to take the National Board Examination.

b. Request for special inspector certificate under A.R.S. § 23-485. Within three days after the Division deems a request complete under subsection (C), the Division shall determine whether the applicant meets the criteria of A.R.S. § 23-485 and subsection (C).

3. Overall review. The overall review period shall be six days, unless extended under A.R.S. § 41-1072 et seq.

B. Application to take Written Examination under A.R.S. § 23-485(A).

1. An application to take the written examination under A.R.S. § 23-485(A) is deemed complete under subsection (A)(1) when an applicant files a complete and notarized application to take the National Board Examination.

2. An individual requesting to take the written examination under A.R.S. § 23-485(A) shall complete an application to take the National Board Examination on a form approved by the Commission at least 45 days before the date of the examination.

3. The application to take the National Board Examination shall be filed with the Division. An application is considered filed when it is received at the office of the Division and stamped by the Division with the date of filing.

4. An application to take the National Board Examination shall be typewritten or written in legible text.

5. The individual completing the application to take the National Board Examination shall sign the application. The signature shall be notarized.

C. Application for Special Inspector Certificate under A.R.S. § 23-485. An application for a special inspector certificate under A.R.S. § 23-485 is deemed complete under subsection (A)(1) when the following is filed with the Division:

1. The applicant provides written documentation that the applicant holds a certificate of competency as a inspector of boilers or lined hot water storage heaters for a state that has a standard of examination substantially equal to that of Arizona or the applicant holds a commission as an inspector of boilers and pressure vessels issued by the National Board of Boiler and Pressure Vessel Inspectors, and

2. The applicant provides proof of employment as a full- time inspector for a company operating or insuring boilers or lined hot water storage heaters in Arizona and whose duties as an inspector include making inspections of boilers or lined hot water storage heaters to be used or insured by the company and not for resale.

D. Notice of Eligibility.

1. If an applicant is eligible to take the National Board Examination, the Division shall issue a written notice of eligibility to the applicant. If an applicant is not eligible to take the National Board Examination, the Division shall issue a written notice denying eligibility to the applicant. The Commission shall deem the notice denying eligibility final if an applicant does not request a hearing within 15 days after the Division mails the notice.

2. If an applicant meets the criteria of A.R.S. § 23-485 and subsection (C), the Division shall issue a certificate to the applicant under subsection (G). If an applicant fails to meet the criteria of A.R.S. § 23-485 and subsection (C), the Division shall issue a written notice denying eligibility to the applicant. The Commission shall deem the notice denying eligibility final if an applicant does not request a hearing within 15 days after the Division mails the notice.

E. Written Examination under A.R.S. § 23-485(A).

1. The written examination described in A.R.S. § 23-485(A) shall be the National Board Examination of the National Board of Boiler and Pressure Vessel Inspectors.

2. The Division shall administer the National Board Examination the first Wednesday and Thursday of every March, June, September, and December to eligible applicants. Within two days after the Division administers the National Board Examination, the Division shall return the examinations of eligible applicants to the National Board of Boiler and Pressure Vessel Inspectors. Examinations shall be graded by the National Board of Boiler and Pressure Vessel Inspectors.

3. An applicant is qualified to take the National Board Examination if the applicant meets the criteria established by the Rules and Regulations of the National Board of Boiler and Pressure Vessel Inspectors, Article 1, NB 215, 1994, incorporated by reference and on file with the Office of the Secretary of State. This incorporation does not include any later amendments or editions of the incorporated material. A copy of this referenced material is available for review at the Industrial Commission of Arizona and may be obtained from the National Board of Boiler and Pressure Vessel Inspectors at 1055 Crupper Avenue, Columbus, Ohio 43229-1183 or at http://www.nationalboard.org/.

4. A passing grade of the National Board Examination is 70%.

5. The Division shall provide written notice to an applicant of the applicant's grade for the National Board Examination within three days after the Division receives notice of the grade from the National Board of Boiler and Pressure Vessel Inspectors.

6. The Division shall issue a certificate of competency to an applicant who passes the National Board Examination.

F. Issuance of Special Inspector Certificate. The Division shall issue a special inspector certificate, A.R.S. § 23-485, to an applicant no later than three days after the Division determines that an applicant meets the criteria of A.R.S. § 23-485 and subsection (C).

G. Hearing on Denial of Eligibility for Special Inspector Certificate.

1. A request for hearing protesting a notice of eligibility shall be in writing and signed by the applicant or the applicant's legal representative. The applicant shall file the request for hearing with the Division.

2. The Commission shall hold a hearing under A.R.S. § 41-1065. The hearing shall be stenographically recorded.

3. The Chair of the Commission or designee shall preside over hearings held under this Section. The Chair shall apply the provisions of A.R.S. § 41-1062 et seq. to hearings held under this Section and shall have the authority and power of a presiding officer as described in A.R.S § 41-1062.

4. A decision of the Commission to deny or grant eligibility for a special inspector certificate shall be based upon the criteria set forth in A.R.S. § 23-485 and this Section and shall be made by a majority vote of the quorum of Commission members present when the decision is rendered at a public meeting. After a decision is rendered at a public meeting, the Commission shall issue a written decision upon hearing which shall include findings of fact and conclusions of law, separately stated. An order of the Commission denying a special inspector certificate is final unless an applicant files a request for review within 15 days after the Commission mails its order.

5. A request for review shall be based upon one or more of the following grounds which have materially affected the rights of an applicant:

a. Irregularities in the hearing proceedings or any order or abuse of discretion whereby the applicant seeking review was deprived of a fair hearing;

b. Misconduct by the Division;

c. Accident or surprise which could not have been prevented by ordinary prudence;

d. Newly discovered material evidence that could not have been discovered with reasonable diligence and produced at the hearing;

e. Excessive or insufficient sanctions or penalties imposed at hearing;

f. Error in the admission or rejection of evidence, or errors of law occurring at, or during the course of, the hearing;

g. Bias or prejudice of the Division; and

h. The order, decision, or findings of fact are not justified by the evidence or are contrary to law.

6. The Commission shall issue a decision upon review no later than 30 days after receiving a request for review.

7. The Commission's decision upon review is final unless an applicant seeks judicial review as provided in A.R.S. § 23-483.

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). R20-5-420 recodified from R4-13-420 (Supp. 95-1). New Section adopted effective October 9, 1998 (Supp. 98-4).

R20-5-421. Repealed

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). R20-5-421 recodified from R4-13-421 (Supp. 95-1).

R20-5-422. Repealed

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). R20-5-422 recodified from R4-13-422 (Supp. 95-1).

R20-5-423. Repealed

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). R20-5-423 recodified from R4-13-423 (Supp. 95-1).

R20-5-424. Repealed

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). R20-5-424 recodified from R4-13-424 (Supp. 95-1).

R20-5-425. Repealed

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). R20-5-425 recodified from R4-13-425 (Supp. 95-1).

R20-5-426. Repealed

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). R20-5-426 recodified from R4-13-426 (Supp. 95-1).

R20-5-427. Repealed

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). R20-5-427 recodified from R4-13-427 (Supp. 95-1).

R20-5-428. Repealed

Historical Note

Repealed effective April 12, 1979 (Supp. 79-2). R20-5-428 recodified from R4-13-428 (Supp. 95-1).

ARTICLE 5. ELEVATOR SAFETY

R20-5-501. Repealed

Historical Note

Former Rule E-1. Amended effective November 9, 1979 (Supp. 79-6). R20-5-501 recodified from R4-13-501 (Supp. 95-1). Section repealed by final rulemaking at 9 A.A.R. 381, effective March 15, 2003 (Supp. 03-1).

R20-5-502. Definitions

A. "Chief" means the chief inspector of the Elevator Safety Section of the Division of Occupational Safety and Health.

B. "Inspection" means the official determination by an inspector of the condition of all parts of the equipment on which the safe operation of an elevator depends.

C. "Elevator Safety Section" means the Elevator Safety Section of the Division of Occupational Safety and Health of the Industrial Commission of Arizona.

Historical Note

Former Rule E-2. R20-5-502 recodified from R4-13-502 (Supp. 95-1). Amended by final rulemaking at 9 A.A.R. 381, effective March 15, 2003 (Supp. 03-1).

R20-5-503. Repealed

Historical Note

Former Rule E-3. R20-5-503 recodified from R4-13-503 (Supp. 95-1). Section repealed by final rulemaking at 9 A.A.R. 381, effective March 15, 2003 (Supp. 03-1).

R20-5-504. Safety Standards for Platform Lifts and Stairway Chairlifts

Every owner or operator under A.R.S. § 23-491.02 shall comply with the American Society of Mechanical Engineers Safety Standard for Platform Lifts and Stairway Chairlifts A.S.M.E. A18.1-1999, with amendments as of January 30, 2001, which are incorporated by reference and on file with the Office of the Secretary of State. This incorporation by reference does not include amendments to A.S.M.E. A18.1 - 1999 published after January 30, 2001. A copy of this referenced material is also available for review at the Industrial Commission of Arizona and may be obtained from the American Society of Mechanical Engineers at Three Park Avenue, New York, NY 10016-5990 or at http://www.asme.org/.

Historical Note

Former Rule E-4. R20-5-504 recodified from R4-13-504 (Supp. 95-1). Section repealed; new Section made by final rulemaking at 9 A.A.R. 381, effective March 15, 2003 (Supp. 03-1).

R20-5-505. Certificate of Inspection

The owner or operator under A.R.S. § 23-491.02 shall keep the Industrial Commission's Certificate of Inspection at the same location as the elevator, dumbwaiter, escalator, moving walk, or related equipment and make the certificate available for inspection and copying upon request.

Historical Note

Former Rule E-5. R20-5-505 recodified from R4-13-505 (Supp. 95-1). Amended by final rulemaking at 9 A.A.R. 381, effective March 15, 2003 (Supp. 03-1).

R20-5-506. Recordkeeping

A. The Elevator Safety Section shall assign an identification number to every elevator, dumbwaiter, escalator, and moving walk for recordkeeping purposes. The identification number shall be on a tag that is located on the controller or mainline disconnect.

B. The Elevator Safety Section shall be notified by the owner or operator, before any installation, relocation, or major alteration of an elevator, escalator, dumbwaiter, moving walk, material lift, wheelchair lift, stairway chairlift, platform lift, or dumbwaiter with automatic transfer device within the state.

C. The building owner or manager or representative shall notify the Elevator Safety Section immediately of every accident involving personal injury or disabling damage to an elevator, escalator, dumbwaiter, moving walk, material lift, wheelchair lift, stairway chairlift, platform lift, or dumbwaiter with automatic transfer device.

Historical Note

Former Rule E-6. Amended effective November 9, 1979 (Supp. 79-6). R20-5-506 recodified from R4-13-506 (Supp. 95-1). Amended by final rulemaking at 9 A.A.R. 381, effective March 15, 2003 (Supp. 03-1).

R20-5-507. Safety Code for Elevators, Escalators, Dumbwaiters, Moving Walks, Material Lifts, and Dumbwaiters with Automatic Transfer Devices

Every owner or operator of an elevator, escalator, dumbwaiter, moving walk, material lift or dumbwaiter with automatic transfer device, installed on or after the effective date of this Section shall comply with the ASME A17.1-2000 Safety Code for Elevators and Escalators, which is incorporated by reference and on file with the Office of the Secretary of State. This incorporation by reference does not include amendments or revisions to ASME A17.1 published after March 23, 2001. A copy of this referenced material is also available for review at the Industrial Commission of Arizona and may be obtained from the American Society of Mechanical Engineers at Three Park Avenue, New York, NY 10016-5990 or at http://www.asme.org/. Every owner or operator of an elevator, escalator, dumbwaiter, moving walk, material lift, or dumbwaiter with an automatic transfer device, installed before the effective date of this Section shall comply with the ASME A17.1 Safety Code for Elevators and Escalators in effect at the time of installation or, as an alternative, may comply with ASME A17.1-2000.

Historical Note

Former Rule R4-13-507 repealed, new Section R4-13-507 adopted effective November 9, 1979 (Supp. 79-6). Amended effective March 30, 1981 (Supp. 81-2). Amended effective June 23, 1983 (Supp. 83-3). Amended effective July 24, 1985 (Supp. 85-4). Amended effective September 5, 1989 (Supp. 89-3). Amended effective March 20, 1992 (Supp. 91-2). R20-5-507 recodified from R4-13-507 (Supp. 95-1). Amended effective October 8, 1996 (Supp. 96-4). Amended by final rulemaking at 5 A.A.R. 2935, effective August 4, 1999 (Supp. 99-3). Amended by final rulemaking at 9 A.A.R. 381, effective March 15, 2003 (Supp. 03-1).

R20-5-508. Safety Standards for Belt Manlifts

Every owner or operator under A.R.S. § 23-491.02 shall comply with the standards of the American National Standard Institute Safety Standard for Belt Manlifts, ASME A90.1-1997, with amendments approved on February 28, 1997, which is incorporated by reference and on file with the Office of the Secretary of State. This incorporation by reference does not include amendments or revisions to ASME A90.1 published after February 28, 1997. A copy of this referenced material is also available for review at the Industrial Commission of Arizona and may be obtained from the American Society of Mechanical Engineers at Three Park Avenue, New York, NY 10016-5990 or at http://www.asme.org/.

Historical Note

Adopted effective November 9, 1979 (Supp. 79-6). R20-5-508 recodified from R4-13-508 (Supp. 95-1). Amended by final rulemaking at 9 A.A.R. 381, effective March 15, 2003 (Supp. 03-1).

R20-5-509. Safety Requirements for Personnel Hoists and Employee Elevators for Construction and Demolition Operations

Every owner or operator under A.R.S. § 23-491.02 shall comply with the standards of the American National Standard Institute Safety Requirements for Personnel Hoists and Employee Elevators for Construction and Demolition Operations, A.N.S.I., A10.4 1990, which is incorporated by reference and on file with the Office of the Secretary of State. This incorporation by reference does not include amendments or revisions to ANSI A10.4 1990 published after December 7, 1990. A copy of this referenced material is also available for review at the Industrial Commission of Arizona and may be obtained from the American Society of Mechanical Engineers at Three Park Avenue, New York, NY 10016-5990 or at http:// www.asme.org/.

Historical Note

Adopted effective November 9, 1979 (Supp. 79-6). Amended effective June 23, 1983 (Supp. 83-3). R20-5-509 recodified from R4-13-509 (Supp. 95-1). Amended by final rulemaking at 9 A.A.R. 381, effective March 15, 2003 (Supp. 03-1).

R20-5-510. The American National Standard Institute, Safety Requirements for Material Hoists, A.N.S.I., A10.5-1981

Every owner or operator under A.R.S. § 23-491.02 shall comply with the standards of the American National Standard Institute Safety Requirements for Material Hoists, A.N.S.I., A10.5-1981, which is incorporated by reference. This incorporation by reference does not include amendments or revisions to ANSI A10.5, 1981, as published after June 29, 1981. A copy of this referenced material is also available for review at the Industrial Commission of Arizona and may be obtained from the American Society of Mechanical Engineers at Three Park Avenue, New York, NY 10016-5990 or at http:// www.asme.org/.

Historical Note

Adopted effective November 9, 1979 (Supp. 79-6). Amended effective June 23, 1983 (Supp. 83-3). R20-5-510 recodified from R4-13-510 (Supp. 95-1). Amended by final rulemaking at 9 A.A.R. 381, effective March 15, 2003 (Supp. 03-1).

R20-5-511. The American National Standard Institute, Guide for Inspection of Elevators, Escalators, and Moving Walks, A.S.M.E., A17.2 - 2001

Every Elevator Inspector under A.R.S. § 23-491.05 shall use the American National Standard Institute, Guide for Inspection of Elevators, Escalators, and Moving Walks, A.S.M.E., A17.2 - 2001, which is incorporated by reference and on file with the Office of the Secretary of State. This incorporation by reference does not include amendments or revisions to ASME A17.2.1, 2001 published after December 31, 2001. A copy of this referenced material is also available for review at the Industrial Commission of Arizona and may be obtained from the American Society of Mechanical Engineers at Three Park Avenue, New York, NY 10016-5990 or at http:// www.asme.org/.

Historical Note

Adopted effective March 30, 1981 (Supp. 81-2). R20-5-511 recodified from R4-13-511 (Supp. 95-1). Amended by final rulemaking at 9 A.A.R. 381, effective March 15, 2003 (Supp. 03-1).

R20-5-512. Expired

Historical Note

Adopted effective March 30, 1981 (Supp. 81-2). R20-5-512 recodified from R4-13-512 (Supp. 95-1). Section expired under A.R.S. § 41-1056(E) at 11 A.A.R. 2320, effective May 19, 2005 (Supp. 05-2).

ARTICLE 6. OCCUPATIONAL SAFETY AND HEALTH STANDARDS

R20-5-601. The Federal Occupational Safety and Health Standards for Construction, 29 CFR 1926

Each employer shall comply with the standards in the Federal Occupational Safety and Health Standards for Construction, as published in 29 CFR 1926, with amendments as of November 15, 2007, incorporated by reference. Copies of these referenced materials are available for review at the Industrial Commission of Arizona and may be obtained from the United States Government Printing Office, Superintendent of Documents, Washington, D.C. 20402. These standards shall apply to all conditions and practices related to construction activity by all employers, both public and private, in the state of Arizona. This incorporation by reference does not include amendments or editions to 29 CFR 1926 published after November 15, 2007.

Historical Note

Editorial correction (Supp. 75-1). Amended as an emergency effective November 16, 1977 pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 77-6). Amended as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-601 repealed, former emergency adoption effective October 29, 1980, adopted effective March 2, 1981 (Supp. 81-2). Amended effective June 17, 1981 (Supp. 81-3). Amended effective November 14, 1984 (Supp. 84-6). Amended effective March 3, 1987 (Supp. 87-1). Amended effective April 22, 1988; amended effective May 26, 1988 (Supp. 88-2). Amended effective October 14, 1988 (Supp. 88-4). Amended effective September 14, 1989 (Supp. 89-3). Amended effective April 2, 1990 (Supp. 90-2). Amended effective August 6, 1990 (Supp. 90-3). Amended effective February 8, 1991 (Supp. 91-1). Amended effective November 21, 1991 (Supp. 91-4). Amended effective February 28, 1992 (Supp. 91-2). Amended effective October 22, 1992; amended effective December 23, 1992 (Supp. 92-4). Amended effective September 13, 1993 (Supp. 93-3). Amended effective October 21, 1993; amended effective December 17, 1993 (Supp. 93-4). Amended effective May 11, 1994 (Supp. 94-2). Amended effective November 18, 1994 (Supp. 94-4). Amended effective January 12, 1995; R20-5-601 recodified from R4-13-601 (Supp. 95-1). Amended effective August 28, 1996 (Supp. 96-3). Amended effective April 1, 1997 (Supp. 97-2). Amended effective December 12, 1997 (Supp. 97-4). Amended effective August 27, 1998 (Supp. 98-3). Amended by final rulemaking at 6 A.A.R. 592, effective January 14, 2000 (Supp. 00-1). Amended by final rulemaking at 8 A.A.R. 851, effective February 5, 2002 (Supp. 02-1). Amended by final rulemaking at 9 A.A.R. 2108, effective June 2, 2003 (Supp. 03-2). Amended by final rulemaking at 12 A.A.R. 4102, effective December 4, 2006 (Supp. 06-4). Amended by final rulemaking at 13 A.A.R. 1417, effective March 30, 2007 (Supp. 07-1). Amended by final rulemaking at 14 A.A.R. 2711, effective June 17, 2008 (Supp. 08-2).

R20-5-602. The Federal Occupational Safety and Health Standards for General Industry, 29 CFR 1910

Each employer shall comply with the standards in Subparts B through Z inclusive of the Federal Occupational Safety and Health Standards for General Industry, as published in 29 CFR 1910, with amendments as of November 15, 2007, incorporated by reference. Copies of these reference materials are available for review at the Industrial Commission of Arizona and may be obtained from the United States Government Printing Office, Superintendent of Documents, Washington, D.C. 20402. These standards shall apply to all conditions and practices related to general industry activity by all employers, both public and private, in the state of Arizona; provided that this rule shall not apply to those conditions and practices which are the subject of rule R20-5-601. This incorporation by reference does not include amendments or editions to 29 CFR 1910 published after November 15, 2007.

Historical Note

Editorial correction (Supp. 75-1). Amended as an emergency effective November 16, 1977 pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 77-6). New Section R4-13-602 adopted effective July 30, 1980 (Supp. 80-4). Amended as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-602 repealed, former emergency adoption effective October 29, 1980, adopted effective March 2, 1981 (Supp. 81-2). Amended effective June 17, 1981 (Supp. 81-3). Amended subsection (A) effective October 1, 1981 (Supp. 81-5). Amended subsection (A) effective March 5, 1982 (Supp. 82-2). Amended subsection (A) effective May 6, 1983 (Supp. 83-3). Amended subsection (A) effective April 6, 1984 (Supp. 84-2). Amended subsection (A) effective July 3, 1984 (Supp. 84-4). Amended subsection (A) effective October 18, 1984 (Supp. 84-5). Editorial correction, amendment October 18, 1984, withdrawn for subsequent certification. Amended effective November 14, 1984, and December 14, 1984 (Supp. 84-6). Amended subsection (A) effective June 9, 1986 (Supp. 86-3). Amended subsection (A) effective March 3, 1987 (Supp. 87-1). Amended subsection (A) effective June 26, 1987 (Supp. 87-2). Amended subsection (A) effective April 22, 1988; amended subsection (A) effective May 26, 1988 (Supp. 88-2). Amended subsection (A) effective October 14, 1988 (Supp. 88-4). Amended effective September 14, 1989 (Supp. 89-3). Amended effective April 2, 1990 (Supp. 90-2). Amended effective August 6, 1990 (Supp. 90-3). Amended effective February 8, 1991 (Supp. 91-1). Amended effective November 21, 1991 (Supp. 91-4). Amended effective February 28, 1992 (Supp. 91-2). Amended effective March 20, 1992 (Supp. 91-2). Amended effective June 16, 1992 (Supp. 92-2). Amended effective October 22, 1992; amended effective December 23, 1992 (Supp. 92-4). Amended effective May 14, 1993 (Supp. 93-2). Amended effective September 13, 1993 (Supp. 93-3). Amended effective October 21, 1993; amended effective December 17, 1993 (Supp. 93-4). Amended effective May 11, 1994 (Supp. 94-2). Amended effective July 19, 1994 (Supp. 94-3). Amended effective November 18, 1994 (Supp. 94-4). Amended effective January 12, 1995; Amended effective February 10, 1995; R20-5-602 recodified from R4-13-602 (Supp. 95-1). Amended effective August 28, 1996 (Supp. 96-3). Amended effective April 1, 1997 (Supp. 97-2). Amended effective December 12, 1997 (Supp. 97-4). Amended effective August 27, 1998 (Supp. 98-3). Amended by final rulemaking at 6 A.A.R. 592, effective January 14, 2000 (Supp. 00-1). Amended by final rulemaking at 7 A.A.R. 5137, effective October 19, 2001 (Supp. 01-4). Amended by final rulemaking at 9 A.A.R. 2108, effective June 2, 2003 (Supp. 03-2). Amended by final rulemaking at 11 A.A.R. 576, effective January 4, 2005 (Supp. 05-1). Amended by final rulemaking at 12 A.A.R. 4102, effective December 4, 2006 (Supp. 06-4). Amended by final rulemaking at 13 A.A.R. 1417, effective March 30, 2007 (Supp. 07-1). Amended by final rulemaking at 13 A.A.R. 2927, effective July 31, 2007 (07-3). Amended by final rulemaking at 14 A.A.R. 193, effective January 8, 2008 (Supp. 08-1). Amended by final rulemaking at 14 A.A.R. 2711, effective June 17, 2008 (Supp. 08-2).

R20-5-602.01. Subpart T, Commercial Diving Operations

Each employer shall comply with the standards in Subpart T of the Federal Occupational Safety and Health Standards for the General Industry as published in 29 CFR 1910, with amendments as specified in R20-5-602, except that the exemption set forth in 29 CFR 1910.401(a)(2)(ii) shall not apply. Subpart T shall apply to any diving operation performed solely for search, rescue, or related public safety purposes by or under the control of a governmental agency.

Historical Note

New Section made by final rulemaking at 14 A.A.R. 193, effective January 8, 2008 (Supp. 08-1).

R20-5-603. The Federal Occupational Safety and Health Standards for Agriculture, 29 CFR 1928

Each employer shall comply with the standards in Subparts A through D inclusive of the Federal Occupational Safety and Health Standards for Agriculture, as published in 29 CFR 1928, with amendments as of March 7, 1996, incorporated by reference and on file with the Office of the Secretary of State. Copies of these referenced materials are available for review at the Industrial Commission of Arizona and may be obtained from the United States Government Printing Office, Superintendent of Documents, Washington, D.C. 20402. This incorporation by reference does not include amendments or editions to 29 CFR 1928 published after March 7, 1996.

Historical Note

Adopted effective February 28, 1975 (Supp. 75-1). Former Section R4-13-603 repealed, new Section R4-13-603 adopted as an emergency effective November 16, 1977, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 77-6). Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-603 repealed, former emergency adoption effective October 29, 1980, adopted effective March 2, 1981 (Supp. 81-2). Amended effective April 22, 1988 (Supp. 88-2). Amended effective December 17, 1993 (Supp. 93-4). Amended effective May 11, 1994 (Supp. 94-2). Amended effective November 18, 1994 (Supp. 94-4). Amended effective February 10, 1995. R20-5-603 recodified from R4-13-603 (Supp. 95-1). Amended effective April 1, 1997 (Supp. 97-2).

R20-5-604. Rules of Agency Practice and Procedure concerning OSHA Access to Employee Medical Records, 29 CFR 1913

Each employer pursuant to A.R.S. § 23-403(B) shall comply with Federal Regulations, Title 29, Part 1913, with amendments as of May 23, 1980 (amendments of May 23, 1980 on file with the Secretary of State), which are hereby adopted and incorporated by reference as if set forth fully herein. This regulation applies to OSHA Access to Employee Medical Records.

Historical Note

Adopted effective February 28, 1975 (Supp. 75-1). Repealed as an emergency effective November 16, 1977, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 77-6). Repealed as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Repealed effective March 2, 1981 (Supp. 81-2). New rule adopted effective November 14, 1984 (Supp. 84-6). R20-5-604 recodified from R4-13-604 (Supp. 95-1).

R20-5-605. Hoes for Weeding or Thinning Crops

A. The use of a hoe with a handle less than four feet in length for weeding or thinning crops is prohibited. This prohibition is based upon the existence of other practical and adequate alternatives to the use of these short-handle hoes.

B. This rule does not apply to greenhouse or nursery operations.

Historical Note

Adopted effective February 28, 1975 (Supp. 75-1). Repealed as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Repealed effective March 2, 1981 (Supp. 81-2). New Section R4-13-605 adopted effective September 7, 1984 (Supp. 84-5). R20-5-605 recodified from R4-13-605 (Supp. 95-1).

R20-5-606. State Definition of Terms Used in Adopting Federal Standards Pursuant to R20-5-601, R20-5-602, R20-5-603 and R20-5-604

For the purposes of the standards enumerated in the federal occupational safety and health standards incorporated into R20-5-601, R20-5-602, R20-5-603, and R20-5-604:

1. "Agency" means the Industrial Commission of Arizona.

2. "Assistant Secretary" means the Director of the Arizona Division of Occupational Safety and Health of the Industrial Commission of Arizona.

3. "Assistant Secretary of Labor for Occupational Safety and Health" means the Director of the Arizona Division of Occupational Safety and Health of the Industrial Commission of Arizona.

4. "Office of the Solicitor of Labor" means Legal Counsel for the Industrial Commission of Arizona.

5. "OSHA" means Arizona Division of Occupational Safety and Health.

Historical Note

Adopted effective February 28, 1975 (Supp. 75-1). Repealed as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Repealed effective March 2, 1981 (Supp. 81-2). New Section R4-13-606 adopted effective May 31, 1985 (Supp. 85-3). R20-5-606 recodified from R4-13-606 (Supp. 95-1).

R20-5-607. Expired

Historical Note

Adopted effective February 28, 1975 (Supp. 75-1). Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-607 repealed, former emergency adoption effective October 29, 1980, adopted and amended effective March 2, 1981 (Supp. 81-2). R20-5-607 recodified from R4-13-607 (Supp. 95-1). Section expired under A.R.S. § 41-1056(E) at 9 A.A.R. 5062, effective September 30, 2003 (Supp. 03-4).

R20-5-608. Definitions

A. "Act" means the Arizona Occupational Safety and Health Act of 1972, with amendments effective August 27, 1977 (Arizona Revised Statutes, Title 23, Chapter 2, Article 10).

B. The definitions and interpretations contained in A.R.S. § 23-401 of the Act shall be applicable to such terms when used in these rules.

C. "Working days" means Mondays through Fridays but shall not include Saturdays, Sundays, or state holidays. In computing fifteen working days, the day of the receipt of any notice shall not be included, and the last day of the fifteen working days shall be included.

D. "Compliance Safety and Health Officer" means a person authorized by the Occupational Safety and Health Division, Industrial Commission of Arizona, to conduct inspections.

E. "Establishment" means a single physical location where business is conducted or where services or industrial operations are performed. (For example: a factory, mill, stores, hotel, restaurant, movie theatre, farm, ranch, bank, sales office, warehouse, or central administrative office.) Where distinctly separate activities are performed at a single physical location (such as contract construction activities from the same physical location as a lumber yard), each activity shall be treated as a separate physical establishment, and a separate notice or notices shall be posted in each such establishment, to the extent that such notices have been furnished by the Industrial Commission of Arizona, Division of Occupational Safety and Health. Where employers are engaged in activities which are physically dispersed, such as agriculture, construction, transportation, communications, and electric, gas and sanitary services, the notice or notices required by this Section shall be posted at the location to which employees report each day. Where employees do not usually work at, or report to, a single establishment, such as traveling salesmen, technicians, engineers, etc., such notice or notices shall be posted at the location from which the employees operate to carry out their activities. In all cases, such notice or notices shall be posted in accordance with requirements of subsection (A) of this Section.

Historical Note

Adopted effective February 28, 1975 (Supp. 75-1). Repealed as an emergency effective November 16, 1977, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 77-6). Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-608 repealed, new Section R4-13-608 adopted effective March 2, 1981 (Supp. 81-2). R20-5-608 recodified from R4-13-608 (Supp. 95-1).

R20-5-609. Posting of Notice: Availability of the Act, Regulations and Applicable standards

A. Each employer shall post and keep posted a notice or notices, to be furnished by the Industrial Commission of Arizona, Division of Occupational Safety and Health, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Industrial Commission. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to ensure that such notices are not altered, defaced, or covered by other material.

B. Copies of the Act, all regulations published in this Chapter and applicable standards will be available at all offices of the Arizona Division of Occupational Safety and Health. If an employer has obtained copies of these materials, he shall make them available upon request to any employee or his authorized representative for review in the establishment where the employee is employed on the same day the request is made or at the earliest time mutually convenient to the employee or his authorized representative and the employer.

C. Any employer failing to comply with the provisions of this Section shall be subject to citation and penalty in accordance with the provisions of A.R.S. § 23-418 of the Act.

Historical Note

Adopted effective February 28, 1975 (Supp. 75-1). Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-609 repealed, former Section R4-13-608 adopted as an emergency effective October 29, 1980, renumbered and amended as Section R4-13-609 effective March 2, 1981 (Supp. 81-2). R20-5-609 recodified from R4-13-609 (Supp. 95-1).

R20-5-610. Authority for Inspection

A. The Director of the Division of Occupational Safety and Health or his authorized representative upon presentation of credentials shall be permitted to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, or place of environment where work is performed by an employee of an employer; to inspect and investigate during regular working hours and in a reasonable manner, any such place of employment, and all pertinent conditions, structures, machines, apparatus, devices, equipment and materials therein; to question privately any employer, owner, operator, agent or employee and to review records required by the Act and regulations published in this Article and other records which are directly related to the purpose of the inspection.

B. Representatives of the Secretary of Health, Education, and Welfare are authorized to make inspections and to question employers and employees in order to carry out the functions of the Secretary of Health, Education, and Welfare under the Williams-Steiger Occupational Safety and Health Act. Inspections conducted by Department of Labor Compliance Safety and Health Officers and representatives of the Secretary of Health, Education and Welfare under Section 8 of the Williams-Steiger Occupational Safety and Health Act and pursuant to 29 CFR Part 1903 shall not affect the authority of any state to conduct inspections in accordance with agreements and plans under Section 18 of the Williams-Steiger Occupational Safety and Health Act.

C. Prior to inspecting areas containing information which is classified by an agency of the United States government in the interests of national security, Compliance Safety and Health Officers shall have obtained the appropriate security clearance.

Historical Note

Adopted effective February 28, 1975 (Supp. 75-1). Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-610 repealed, former Section R4-13-609 adopted as an emergency effective October 29, 1980, renumbered and adopted as Section R4-13-610 effective March 2, 1981 (Supp. 81-2). R20-5-610 recodified from R4-13-610 (Supp. 95-1).

R20-5-611. Objection to Inspection

A. Upon a refusal to permit a Compliance Safety and Health Officer, in the exercise of his official duties, to enter without delay and at reasonable times any place of employment or any place therein, to inspect, to review records, or to privately question any employer, owner, operator, agent, or employee, in accordance with rule R20-5-610, or to permit a representative of employees to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace in accordance with rule R20-5-615, the Compliance Safety and Health Officer shall terminate the inspection or confine the inspection to other areas, conditions, structures, machines, apparatus, devices, equipment, materials, records, or interviews concerning which no objection is raised. The Compliance Safety and Health Officer shall endeavor to ascertain the reason for such refusal and shall immediately report the refusal and the reason therefore to the Director of the Division. The Director shall immediately consult with the Industrial Commission and its legal counsel, who shall promptly take appropriate action, including compulsory process if necessary.

B. Compulsory process may be sought in advance of an inspection or reinvestigation if, in the judgment of the Director of the Division and the Industrial Commission Chief Legal Counsel, circumstances exist including but not limited to specific evidence of an existing violation or reasonable legislative or administrative standards for conducting an inspection which make pre-inspection process desirable or necessary.

C. With the approval of the Industrial Commission, and the Industrial Commission Chief Legal Counsel, compulsory process may also be obtained by the Director of the Division or his designee.

D. For purposes of this Section, the term compulsory process shall mean the institution of any appropriate action, including ex parte application for an inspection warrant or its equivalent.

Historical Note

Adopted effective June 19, 1975 (Supp. 75-1). Repealed as an emergency effective November 16, 1977, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 77-6). Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-611 repealed, former Section R4-13-610 adopted as an emergency effective October 29, 1980, renumbered and amended as Section R4-13-611 effective March 2, 1981 (Supp. 81-2). R20-5-611 recodified from R4-13-611 (Supp. 95-1).

R20-5-612. Entry Not a Waiver

Any permission to enter, inspect, review records, or question any person shall not imply or be conditioned upon a waiver of any cause of action, citation, or penalty under the Act. Compliance Safety and Health Officers are not authorized to grant any such waiver.

Historical Note

Adopted effective June 19, 1975 (Supp. 75-1). Repealed as an emergency effective November 16, 1977, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 77-6). Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-612 repealed, former Section R4-13-611 adopted as an emergency effective October 29, 1980, renumbered and adopted as Section R4-13-612 effective March 2, 1981 (Supp. 81-2). R20-5-612 recodified from R4-13-612 (Supp. 95-1).

R20-5-613. Advance Notice of Inspections

A. Advance notice of inspections may not be given except in the following situations:

1. In cases of apparent imminent danger, to enable the employer to abate the danger as quickly as possible;

2. In circumstances where the inspection can most effectively be conducted after regular business hours or where special preparations are necessary for an inspection;

3. Where necessary to ensure the presence of representatives of the employer and employees or the appropriate personnel needed to aid in an inspection; and

4. In other circumstances where the Division Director determines that the giving of advance notice would enhance the probability of an effective and thorough inspection.

B. In the situations described in subsection (A) of this Section, advance notice of inspections may be given only if authorized by the Division Director. When advance notice is given, it shall be the employer's responsibility promptly to notify the authorized representative of employees of the inspection, if the identity of such representative is known to the employer. (See rule R20-5-615(B) as to situations where there is no authorized representative of employees.) Upon the request of the employer, the Compliance Safety and Health Officer will inform the authorized representative of employees of the inspection, provided that the employer furnishes the Compliance Safety and Health Officer with the identity of such representative and with such other information as is necessary to enable him promptly to inform such representative of the inspection. An employer who fails to comply with his obligation under this subsection promptly to inform the authorized representative of the employees of the inspection or to furnish such information as is necessary to enable the Compliance Safety and Health Officer to promptly inform such representative of the inspection may be subject to citation and penalty under A.R.S. § 23-408 of the Act. Advance notice in any of the situations described in subsection (A) of this Section shall not be given more than 24 hours before the inspection is scheduled to be conducted, except in apparent imminent danger situations and other unusual circumstances.

Historical Note

Adopted effective July 28, 1975 (Supp. 75-1). Repealed as an emergency effective November 16, 1977, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 77-6). Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-613 repealed, former Section R4-13-612 adopted as an emergency effective October 29, 1980, renumbered and adopted as Section R4-13-613 effective March 2, 1981 (Supp. 81-2). R20-5-613 recodified from R4-13-613 (Supp. 95-1).

R20-5-614. Conduct of Inspections

A. At the beginning of an inspection, Compliance Safety and Health Officers shall present their credentials to the owner, operator, or agent in charge at the establishment; explain the nature and purpose of the inspection; and indicate generally the scope of the inspection and the records specified in rule R20-5-610 which they wish to review.

B. Compliance Safety and Health Officers shall have authority to take environmental samples and to take or obtain photographs related to the purpose of the inspection, employ other reasonable investigative techniques, and question privately any employer, owner, operator, agent or employee of an establishment.

C. In taking photographs and samples, Compliance Safety and Health Officers shall take reasonable precautions to ensure that such actions with flash, spark producing, or other equipment would not be hazardous. Compliance Safety and Health Officers shall comply with all employer safety and health rules and practices at the establishment being inspected, and they shall wear and use appropriate protective clothing and equipment.

D. The conduct of inspections shall be such as to preclude unreasonable disruption to the operations of the employer's establishment.

E. At the conclusion of an inspection, a Compliance Safety and Health Officer shall confer with the employer or his representative and informally advise him of any apparent safety or health violations disclosed by the inspection. During such conference, the employer shall be afforded an opportunity to bring to the attention of the Compliance Safety and Health Officer any pertinent information regarding conditions in the workplace.

Historical Note

Adopted effective March 2, 1976 (Supp. 76-2). Repealed as an emergency effective November 16, 1977, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 77-6). Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-614 repealed, former Section R4-13-613 adopted as an emergency effective October 29, 1980, renumbered and amended as Section R4-13-614 effective March 2, 1981 (Supp. 81-2). R20-5-614 recodified from R4-13-614 (Supp. 95-1).

R20-5-615. Representatives of Employers and Employees

A. Compliance Safety and Health Officers shall be in charge of inspections and questioning of persons. A Compliance Safety and Health Officer may permit additional employer representatives and additional representatives authorized by employees to accompany him where he determines that such additional representatives will further aid the inspection. A different employer and employee representative may accompany the Compliance Officer during each different phase of an inspection if this will not interfere with the conduct of the inspection.

B. Compliance Safety and Health Officers shall have authority to resolve all disputes as to who is the representative authorized by the employer and employees for the purpose of this rule. If there is no authorized representative of employees, or if the Compliance Safety and Health Officer is unable to determine with reasonable certainty who is such representative, he shall consult with a reasonable number of employees concerning matters of safety and health in the workplace.

C. The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.

D. Compliance Safety and Health Officers are authorized to deny the right of accompaniment under this Section to any person whose conduct interferes with a fair and orderly inspection. The right of accompaniment in areas containing trade secrets shall be subject to the provisions of rule R20-5-616(B). With regard to information classified by an agency of the United States government in the interest of national security, only persons authorized to have access to such information may accompany a Compliance Safety and Health Officer in areas containing such information.

Historical Note

Adopted effective March 2, 1976 (Supp. 76-2). Repealed as an emergency effective November 16, 1977, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 77-6). Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-615 repealed, former Section R4-13-614 adopted as an emergency effective October 29, 1980, renumbered and amended as Section R4-13-615 effective March 2, 1981 (Supp. 81-2). R20-5-615 recodified from R4-13-615 (Supp. 95-1).

R20-5-616. Trade Secrets

A. At the commencement of an inspection, the employer may identify areas in the establishment which contain or which might reveal a trade secret. If the Compliance Safety and Health Officer has no clear reason to question such identification, information obtained in such areas, including all negatives and prints of photographs, environmental samples, shall be labeled "confidential-trade secret" and shall not be disclosed except in accordance with provisions of A.R.S. § 23-426.

B. Upon the request of an employer, any authorized representative of employees under rule R20-5-615 in an area containing trade secrets shall be an employee in that area or an employee authorized by the employer to enter that area. Where there is no such representative or employee, a Compliance Safety and Health officer shall consult with a reasonable number of employees who work in that area concerning matters of safety and health.

Historical Note

Adopted effective March 2, 1976 (Supp. 76-2). Repealed as an emergency effective November 16, 1977, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 77-6). Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-616 repealed, former Section R4-13-615 adopted as an emergency effective October 29, 1980, renumbered and adopted as Section R4-13-616 effective March 2, 1981 (Supp. 81-2). R20-5-616 recodified from R4-13-616 (Supp. 95-1).

R20-5-617. Consultation with Employees

Compliance Safety and Health Officers may privately consult with employees concerning matters of occupational safety and health to the extent they deem necessary for the conduct of an effective and thorough inspection. During the course of an inspection, any employee shall be afforded an opportunity to bring any violation of the Act, which he has reason to believe exists in the workplace, to the attention of the Compliance Safety and Health Officer.

Historical Note

Adopted effective January 21, 1976 (Supp. 76-1). Repealed as an emergency effective November 16, 1977, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 77-6). Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-617 repealed, former Section R4-13-616 adopted as an emergency effective October 29, 1980, renumbered and amended as Section R4-13-617 effective March 2, 1981 (Supp. 81-2). R20-5-617 recodified from R4-13-617 (Supp. 95-1).

R20-5-618. Complaints by Employees

A. A copy of a complaint submitted pursuant to A.R.S. § 23-408(E) shall be provided to the employer or his agent by the Director of the Division of Occupational Safety and Health or his representative no later than the time of inspection, except that, upon the request of the person giving such notice, his name shall not appear in such copy or in any record published, released, or made available by the Arizona Division of Occupational Safety and Health.

B. If upon receipt of such notification the Division Director determines that the complaint meets the requirements set forth in subsection (A) of this rule, and that there are reasonable grounds to believe that the alleged violation exists, he shall cause an inspection to be made as soon as practicable, to determine if such alleged violation exists. Inspections under this rule shall not be limited to matters referred to in the complaint.

Historical Note

Adopted effective January 21, 1976 (Supp. 76-1). Repealed as an emergency effective November 16, 1977, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 77-6). Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-618 repealed, former Section R4-13-617 adopted as an emergency effective October 29, 1980, renumbered and amended as Section R4-13-618 effective March 2, 1981 (Supp. 81-2). R20-5-618 recodified from R4-13-618 (Supp. 95-1).

R20-5-619. Inspection Not Warranted; Informal Review

If the Division Director determines that an inspection is not warranted because there are no reasonable grounds to believe that a violation or danger exists with respect to a complaint in accordance with A.R.S. § 23-408(E), he shall notify the complaining party in writing of such determination. The complaining party may obtain review of such determination by submitting a written statement of position with the Industrial Commission and, at the same time, providing the employer with a copy of such statement by certified mail. The employer may submit an opposing written statement of position with the Industrial Commission and, at the same time, provide the complaining party with a copy of such statement by certified mail. Upon the request of the complaining party or the employer, the Industrial Commission, at their discretion, may hold an informal conference in which the complaining party and the employer may orally present their views. After considering all written and oral views presented, the Industrial Commission shall affirm, modify, or reverse the determination of the Division Director and furnish the complaining party and the employer a written notification of their decision and the reasons therefore. The decision of the Industrial Commission shall be final and not subject to further review. Such determination shall be without prejudice to the filing of a new complaint meeting the requirements of A.R.S. § 23-408(E).

Historical Note

Adopted effective May 25, 1977 (Supp. 77-3). Repealed as an emergency effective November 16, 1977, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 77-6). Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-619 repealed, former Section R4-13-618 adopted as an emergency effective October 29, 1980, renumbered and amended as Section R4-13-619 effective March 2, 1981 (Supp. 81-2). R20-5-619 recodified from R4-13-619 (Supp. 95-1).

R20-5-620. Expired

Historical Note

Adopted effective May 25, 1977 (Supp. 77-3). Repealed as an emergency effective November 16, 1977, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 77-6). Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-620 repealed, former Section R4-13-619 adopted as an emergency effective October 29, 1980, renumbered and amended as Section R4-13-620 effective March 2, 1981 (Supp. 81-2). R20-5-620 recodified from R4-13-620 (Supp. 95-1). Section expired under A.R.S. § 41-1056(E) at 9 A.A.R. 5062, effective September 30, 2003 (Supp. 03-4).

R20-5-621. Citations: Notices of De Minimis Violations

A. The Division Director shall review the inspection reports of the Compliance Safety and Health Officer. If, on the basis of the report, the Division Director believes that the employer has violated a requirement of A.R.S. § 23-403 of the Act, of any standard, rule or order promulgated pursuant to A.R.S. § 23-410 of the Act, or of any substantive rule published in these rules, he shall, if appropriate, consult with the Industrial Commission's counsel and shall issue to the employer either a citation or notice of de minimis violations. An appropriate citation or notice of de minimis violation shall be issued even though after being informed of an alleged violation by the Compliance Safety and Health Officer, the employer immediately abates, or initiates steps to abate, such alleged violation. Any citation or notice of de minimis violations shall be issued with reasonable promptness after termination of the inspection. No citation may be issued under this rule after the expiration of six months following the occurrence of any alleged violation.

B. If a citation or notice of de minimis violation issued for a violation alleged in a request for inspection under A.R.S. § 23-408(E), a copy of the citation or notice of de minimis violation shall also be sent to the employee or representative of employees who made such request or notification.

C. After an inspection, if the Division Director determines that a citation is not warranted with respect to a danger or violation alleged to exist in a request for inspection under A.R.S. § 23-408(E), the informal review procedures prescribed in rule R20-5-619(A) shall be applicable. After considering all views presented, the Industrial Commission shall affirm the determination of the Division Director, order a reinspection, or issue a citation if the Industrial Commission believes that the inspection disclosed a violation. The Industrial Commission shall furnish the complaining party and the employer with a written notification of their determination and the reasons therefore. The determination of the Industrial Commission shall be final and not subject to review.

D. Every citation shall state that the issuance of a citation does not constitute a finding that a violation of the Act has occurred unless there is a failure to contest as provided for in the Act or, if contested, unless a citation is affirmed by the Hearing Division or the Review Commission.

Historical Note

Adopted as an emergency effective May 24, 1977, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 77-3). Repealed as an emergency effective November 16, 1977, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 77-6). Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-620 adopted as an emergency effective October 29, 1980, renumbered and amended as Section R4-13-621 effective March 2, 1981 (Supp. 81-2). R20-5-621 recodified from R4-13-621 (Supp. 95-1).

R20-5-622. Proposed Penalties

A. All employers shall be notified of any proposed penalties, issued pursuant to A.R.S. § 23-418, by certified mail or by a signed verification in person.

B. The Division Director shall determine the amount of any proposed penalty, giving due consideration to the appropriateness of penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations in accordance with the provisions of A.R.S. § 23-418 of the Act.

C. Appropriate penalties may be proposed with respect to an alleged violation even though after being informed of such alleged violation by the Compliance Safety and Health Officer, the employer immediately abates, or initiates steps to abate, such alleged violation. Penalties shall not be proposed for de minimis violations which have no direct or immediate relationship to safety or health.

Historical Note

Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-621 adopted as an emergency effective October 29, 1980, renumbered and amended as Section R4-13-622 effective March 2, 1981 (Supp.81-2). R20-5-622 recodified from R4-13-622 (Supp. 95-1).

R20-5-623. Posting of Citations

A. Upon receipt of any citation under the Act, the employer shall immediately post such citation, or a copy thereof, unedited, at or near each place an alleged violation referred to in the citation occurred, except as provided below. Where, because of the nature of the employer's operations, it is not practicable to post the citation at or near each place of alleged violation, such citation shall be posted, unedited, in a prominent place where it will be readily observable by all affected employees. For example, where employers are engaged in activities which are physically dispersed, the citation may be posted at the location to which the employees report each day. Where employees do not primarily work at or report to a single location, the citation may be posted at the location from which the employees operate to carry out their activities. The employer shall take steps to ensure that the citation is not altered, defaced, or covered by other material. Notices of de minimis violations need not be posted.

B. Each citation, or a copy thereof, shall remain posted until the violation has been abated, or for three working days, whichever is later. The filing by the employer of a notice of intention to contest under A.R.S. § 23-471(A) shall not affect his posting responsibility under this rule unless and until the Hearing Division and/or Review Commission issues a final order vacating the citation.

C. An employer to whom a citation has been issued may post a notice in the same location where such citation is posted indicating that the citation is being contested before the Hearing Division and/or Review Commission, and such notice may explain the reasons for such contest. The employer may also indicate that specified steps have been taken to abate the violation.

Historical Note

Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-622 adopted as an emergency effective October 29, 1980, renumbered and amended as Section R4-13-623 effective March 2, 1981 (Supp. 81-2). R20-5-623 recodified from R4-13-623 (Supp. 95-1).

R20-5-624. Employer and Employee Contests before the Hearing Division

A. All notices to contest citations and/or penalties shall be submitted to the Division Director and immediately transmitted to the Hearing Division in accordance with the Rules of Procedure prescribed by the Industrial Commission.

B. Any affected employee or employee representative appealing the period allowed an employer to abate a particular violation shall submit the notice of contest to the Division Director who shall immediately transmit such notice to the Hearing Division in accordance with the Rules of Procedure prescribed by the Industrial Commission.

Historical Note

Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-623 adopted as an emergency effective October 29, 1980, renumbered and amended as Section R4-13-624 effective March 2, 1981 (Supp. 81-2). R20-5-624 recodified from R4-13-624 (Supp. 95-1).

R20-5-625. Failure to Correct a Violation for Which a Citation Has Been Issued

A. All employers failing to correct an alleged violation for which a citation has been issued, within the period permitted for its correction, shall be notified of such failure and any proposed penalties issued pursuant to A.R.S. § 23-418 by certified mail or by signed verification in person.

B. All notices to contest a notification of failure to correct a violation and of proposed additional penalty shall be submitted to the Division Director and immediately transmitted to the Hearing Division in accordance with the Rules of Procedure prescribed by the Industrial Commission.

C. Each notification of failure to correct a violation and of proposed additional penalty shall state that it shall be deemed to be the final order of the Industrial Commission and not subject to review by any court or agency unless within fifteen working days from the receipt of such notification, the employer notifies the Division Director in writing that he intends to contest the notification or the proposed additional penalty before the Hearing Division.

Historical Note

Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-624 adopted as an emergency effective October 29, 1980, renumbered and amended as Section R4-13-625 effective March 2, 1981 (Supp. 81-2). R20-5-625 recodified from R4-13-625 (Supp. 95-1).

R20-5-626. Informal Conferences

At the request of an affected employer, employee, or representative of employees, the Industrial Commission, or their designee, may hold an informal conference for the purpose of discussing any issues raised by an inspection, citation, notice of proposed penalty, or notice of intention to contest. The settlement of any issue at such conference shall be subject to rules and procedures prescribed by the Industrial Commission. If the conference is requested by the employer, an affected employee or his representative shall be afforded an opportunity to participate, at the discretion of the Industrial Commission or their designee. If the conference is requested by an employee or representative of employees, the employer shall be afforded an opportunity to participate, at the discretion of the Industrial Commission or their designee. Any party may be represented by counsel in such conference. No such conference or request for such conference shall operate as a stay of any fifteen working day period for filing a notice of intention to contest as prescribed in rule R20-5-624.

Historical Note

Adopted as an emergency effective October 29, 1980, pursuant to A.R.S. § 41-1003, valid for only 90 days (Supp. 80-5). Former Section R4-13-625 adopted as an emergency effective October 29, 1980, renumbered and adopted as Section R4-13-626 effective March 2, 1981 (Supp. 81-2). R20-5-626 recodified from R4-13-626 (Supp. 95-1).

R20-5-627. Abatement Verification

A. Scope and application. This Section applies to employers, as defined in A.R.S. § 23-401, who receive a citation for a violation of the Arizona Occupational Safety and Health Act.

B. Definitions:

1. Abatement means action by an employer to comply with a cited standard or rule or to eliminate a recognized hazard, as defined in A.R.S. § 23-401, identified by the Division during an inspection.

2. Abatement date means:

a. For an uncontested citation item, the later of:

i. The date in the citation for abatement of the violation;

ii. The date approved by the Division as a result of a petition for modification of the abatement date (PMA); or

iii. The date for abatement completion as established in a citation by an informal conference agreement.

b. For a contested citation item for which an administrative law judge has issued a final decision affirming the violation, the later of:

i. The date identified in the final decision for completion of abatement;

ii. The date computed by adding the original period allowed for abatement in the citation to begin 15 days from the final decision date of an administrative law judge; or

iii. The date established by a formal settlement agreement.

3. Affected employee means an employee who is exposed to the hazard identified as a violation in a citation.

4. Final order date means:

a. The date on which an uncontested citation is deemed final under A.R.S. § 23-417 (A); or

b. For a contested citation item: The date on which a decision or order of an administrative law judge becomes final under A.R.S. § 23-421 or § 23-423.

5. Movable equipment means a hand-held or non-hand-held machine or device, powered or unpowered, that is used to do work and is moved within or between workplaces.

C. Abatement certification.

1. Within 10 calendar days after the abatement date, an employer shall certify to the Division that the employer has abated each cited violation except as provided in subsection (C)(2). An employer may use Appendix A to certify abatement.

2. An employer is not required to certify abatement if a Compliance Safety and Health Officer, during an onsite inspection:

a. Observes, within 24 hours after a violation is identified, that abatement has occurred; and

b. Notes the abatement action on the citation.

3. An employer's certification that abatement is complete shall include, for each cited violation, in addition to the information required by subsection (H), the completion date and method of abatement and a statement that affected employees and their representatives have been informed of the completed abatement.

D. Abatement documentation.

1. Within 10 days after the abatement date, an employer shall submit to the Division, documents which evidence that abatement is complete for each willful or repeat violation and for any serious violation for which abatement documentation is required.

2. Documents which evidence that abatement is complete may include documents for purchase or repair of equipment, photographs or videos of the abatement, or other written records.

E. Abatement plans.

1. The Division may require an employer to submit an abatement plan, except for a nonserious violation, when the time permitted for abatement is more than 90 days. The citation shall state that an abatement plan is required. An employer may use Appendix B for an abatement plan.

2. An employer shall submit an abatement plan for each cited violation within 25 days from the date of a final order when the citation states that a plan is required. In the abatement plan, the employer shall identify:

a. The violation,

b. The steps necessary to achieve abatement,

c. A schedule for completing abatement, and

d. How the employer will protect employees from the violative condition until abatement is complete.

F. Progress reports.

1. The Division may require an employer who submits an abatement plan under subsection (E), to submit periodic progress reports for each cited violation. If the Division requires a periodic progress report, the citation shall include the following information:

a. Periodic progress reports are required and the cited violations for which periodic progress reports are required;

b. The date on which an initial progress report must be submitted. The date of the initial progress report shall be no sooner than 30 days after the submission date required for abatement;

c. Whether additional progress reports are required; and

d. The date on which additional progress reports shall be submitted.

2. For each violation, the employer shall summarize in the progress report, the action taken to achieve abatement and the date the action was taken.

G. Employee notification.

1. An employer shall inform affected employees and the employees' representative of abatement activities covered by this Section by posting a copy of each document submitted to the Division or a summary of the document at the location of the cited violation.

2. For employers who have mobile work operations, the employer shall:

a. Post each document or a summary of the document submitted to the Division in a conspicuous place where it can be readily seen by employees and the employee representative; or

b. Take other steps to communicate fully to affected employees and the employees' representative about abatement actions.

3. The employer shall inform employees and the employees' representative of the right to examine and copy all abatement documents submitted by the employer to the Division.

a. An employee or an employee representative shall submit a written request to examine and copy abatement documents within three working days of receiving notice that the documents have been submitted to the Division.

b. An employer shall comply with an employee's or employee representative's written request to examine and copy abatement documents within five working days of receiving the request.

4. An employer shall ensure that notice in subsection (G)(1) to employees and a employee representative is provided at the same time or before the information is provided to the Division and that abatement documents are:

a. Not altered, defaced, or physically covered by other material; and

b. Remain posted for at least three working days after submission to the Division.

H. Transmitting abatement documents.

1. An employer shall include, in each submission required by this Section, the following information:

a. The employer's name and address;

b. The inspection number to which the submission relates;

c. The citation, item number, and location to which the submission relates;

d. A statement that the information submitted is accurate; and

e. The signature of the employer or the employer's authorized representative.

2. The date of postmark is the date of submission for mailed documents. For documents transmitted by other means, the date the Division receives the document is the date of submission.

I. Movable equipment.

1. For serious, repeat, and willful violations involving movable equipment, an employer shall attach a warning tag or a copy of the citation to the operating controls or to the cited component of equipment that is moved within or between workplaces. The Division shall deem attaching a copy of the citation to the equipment to meet the tagging requirement of subsection (I)(3) and the posting requirement of R20-5-623.

2. The employer shall use a warning tag to warn employees about the nature of the violation involving the movable equipment and identifies the location of the violation. An employer may use the tag in Appendix C to meet this requirement.

3. If a violation has not been abated, an employer shall attach a warning tag or a copy of the citation to the equipment as follows:

a. For hand-held equipment, the employer shall attach a warning tag or copy of the citation within eight hours after the employer receives the citation; and

b. For non-hand-held equipment, the employer shall attach a warning tag or copy of the citation before moving the equipment within or between workplaces.

4. For the construction industry, a tag that is designed and used in accordance with 29 CFR 1926.20(b)(3) and 29 CFR 1926.200(h) is deemed by the Division to meet the requirements of this Section when the information required by subsection (I)(2) is included on the tag.

5. An employer shall ensure that the tag or copy of the citation attached to movable equipment is not altered, defaced, or physically covered by other material.

6. An employer shall ensure that the tag or copy of the citation attached to movable equipment remains attached until:

a. The employer has abated the violation and all abatement verification documents required by this Section have been submitted to the Division;

b. The employer has permanently removed the cited equipment from service or the cited equipment is no longer within the employer's control; or

c. The Division, administrative law judge, or Review Board vacates the citation.

Historical Note

Adopted effective June 26, 1998 (Supp. 98-2).

Appendix A. Sample Abatement - Certification Letter (Nonmandatory)

[Name], Director

The Industrial Commission of Arizona

Division of Occupational Safety and Health

P. O. Box 19070

Phoenix, Arizona 85005

[Company's Name]

[Company's Address]

The hazard referenced in Inspection Number [Insert 9-digit #] for violation identified as:

Citation [insert #] and item [insert #] was corrected on [insert date] by:

_____________________________________________.

Citation [insert #] and item [insert #] was corrected on [insert date] by:

_____________________________________________.

Citation [insert #] and item [insert #] was corrected on [insert date] by:

_____________________________________________.

Citation [insert #] and item [insert #] was corrected on [insert date] by:

_____________________________________________.

Citation [insert #] and item [insert #] was corrected on [insert date] by:

_____________________________________________.