ADMINISTRATIVE PROCEDURE ACT
Supp. 07-3
Arizona Revised Statutes, Title 41, Chapter 6, Articles 1 through 10, as effective September 19, 2007
Editor's Note: The statutes printed here are not the official text of the Administrative Procedure Act; they are copied from the Arizona Legislative Information Service web site. The Administrative Procedure Act became effective January 1, 1995.
ARTICLE 1. GENERAL PROVISIONS
Section
§ 41-1001. Definitions
§ 41-1001.01. Regulatory bill of rights
§ 41-1002. Applicability and relation to other law
§ 41-1003. Required rule making
§ 41-1004. Waiver
§ 41-1005. Exemptions
§ 41-1006. Employees providing agency assistance; identification and publication
§ 41-1007. Award of costs and fees against a department in administrative hearings; exceptions; definitions
§ 41-1008. Fees; specific statutory authority
§ 41-1009. Inspections; applicability
§ 41-1010. Complaints; public record
ARTICLE 2. PUBLICATION OF AGENCY RULES
Section
§ 41-1011. Publication and distribution of code and register
§ 41-1012. Code; publication of rules; distribution
§ 41-1013. Register
ARTICLE 3. RULE MAKING
Section
§ 41-1021. Public rule making docket; notice
§ 41-1021.01. Permissive examples
§ 41-1021.02. State agencies; annual regulatory agenda
§ 41-1022. Notice of proposed rule making, amendment or repeal; contents of notice
§ 41-1023. Public participation; written statements; oral proceedings
§ 41-1024. Time and manner of rule making
§ 41-1025. Variance between rule and published notice of proposed rule
§ 41-1026. Emergency rule making, amendment or repeal
§ 41-1026.01. Emergency adoption, amendment or termination of delegation agreements; definition
§ 41-1027. Summary rule making
§ 41-1028. Incorporation by reference
§ 41-1029. Agency rule making record
§ 41-1030. Invalidity of rules not made according to this chapter; prohibited agency action
§ 41-1031. Filing rules and preamble with secretary of state; permanent record
§ 41-1032. Effective date of rules
§ 41-1033. Petition for a rule or review of a practice or policy
§ 41-1034. Declaratory judgment
§ 41-1035. Rules affecting small businesses; reduction of rule impact
§ 41-1036. Preamble; justifications for rule making
ARTICLE 4. ATTORNEY GENERAL REVIEW OF RULE MAKING
Section
§ 41-1044. Attorney general review of certain exempt rules
ARTICLE 4.1. ADMINISTRATIVE RULES OVERSIGHT COMMITTEE
Section
§ 41-1047. Committee review of rules; practices alleged to constitute rules; substantive policy statements
§ 41-1048. Committee review of duplicative or onerous statutes, rules, practices alleged to constitute rules and substantive policy statements
ARTICLE 5. GOVERNOR'S REGULATORY REVIEW COUNCIL
Section
§ 41-1051. Governor's regulatory review council; membership; terms; compensation; powers
§ 41-1052. Council review and approval
§ 41-1053. Council review of summary rules
§ 41-1055. Economic, small business and consumer impact statement
§ 41-1056. Review by agency
§ 41-1056.01. Impact statements; appeals
§ 41-1057. Exemptions
ARTICLE 6. ADJUDICATIVE PROCEEDINGS
Section
§ 41-1061. Contested cases; notice; hearing; records
§ 41-1062. Hearings; evidence; official notice; power to require testimony and records; rehearing
§ 41-1063. Decisions and orders
§ 41-1064. Licenses; renewal; revocation; suspension; annulment; withdrawal
§ 41-1065. Hearing on denial of license or permit
§ 41-1066. Compulsory testimony; privilege against self-incrimination
§ 41-1067. Applicability of article
ARTICLE 7. MILITARY ADMINISTRATIVE RELIEF
Section
§ 41-1071. Military relief from administrative procedures; process
ARTICLE 7.1. LICENSING TIME FRAMES
Section
§ 41-1072. Definitions
§ 41-1073. Time frames; exception
§ 41-1074. Compliance with administrative completeness review time frame
§ 41-1075. Compliance with substantive review time frame
§ 41-1076. Compliance with overall time frame
§ 41-1077. Consequence for agency failure to comply with overall time frame; refund; penalty
§ 41-1078. Reporting; compliance with time frames
§ 41-1079. Information required to be provided
ARTICLE 8. DELEGATION OF FUNCTIONS, POWERS, OR DUTIES
Section
§ 41-1081. Standards for delegation
§ 41-1082. Existing delegation agreements
§ 41-1083. No presumption of funding authority
§ 41-1084. Prohibition on subdelegation
ARTICLE 9. SUBSTANTIVE POLICY STATEMENTS
Section
§ 41-1091. Substantive policy statements; directory
ARTICLE 10. UNIFORM ADMINISTRATIVE APPEALS PROCEDURES
Section
§ 41-1092. Definitions
§ 41-1092.01. Office of administrative hearings; director; powers and duties; fund
§ 41-1092.02. Appealable agency actions; application of procedural rules; exemption from article
§ 41-1092.03. Notice of appealable agency action or contested case; hearing; informal settlement conference; applicability
§ 41-1092.04. Service of documents
§ 41-1092.05. Scheduling of hearings; prehearing conferences
§ 41-1092.06. Appeals of agency actions; informal settlement conferences; applicability
§ 41-1092.07. Hearings
§ 41-1092.08. Final administrative decisions; review
§ 41-1092.09. Rehearing or review
§ 41-1092.10. Compulsory testimony; privilege against self-incrimination
§ 41-1092.11. Licenses; renewal; revocation; suspension; annulment; withdrawal
§ 41-1092.12. Private right of action; recovery of costs and fees; definitions
ARTICLE 1. GENERAL PROVISIONS
§ 41-1001. Definitions
In this chapter, unless the context otherwise requires:
1. "Agency" means any board, commission, department, officer or other administrative unit of this state, including the agency head and one or more members of the agency head or agency employees or other persons directly or indirectly purporting to act on behalf or under the authority of the agency head, whether created under the Constitution of Arizona or by enactment of the legislature. Agency does not include the legislature, the courts or the governor. Agency does not include a political subdivision of this state or any of the administrative units of a political subdivision, but does include any board, commission, department, officer or other administrative unit created or appointed by joint or concerted action of an agency and one or more political subdivisions of this state or any of their units. To the extent an administrative unit purports to exercise authority subject to this chapter, an administrative unit otherwise qualifying as an agency must be treated as a separate agency even if the administrative unit is located within or subordinate to another agency.
2. "Code" means the Arizona administrative code.
3. "Committee" means the administrative rules oversight committee.
4. "Contested case" means any proceeding, including rate making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required or permitted by law, other than this chapter, to be determined by an agency after an opportunity for an administrative hearing.
5. "Council" means the governor's regulatory review council.
6. "Delegation agreement" means an agreement between an agency and a political subdivision that authorizes the political subdivision to exercise functions, powers or duties conferred on the delegating agency by a provision of law. Delegation agreement does not include intergovernmental agreements entered into pursuant to title 11, chapter 7, article 3.
7. "Emergency rule" means a rule that is made pursuant to section 41-1026.
8. "Fee" means a charge prescribed by an agency for an inspection or for obtaining a license.
9. "Final rule" means any rule filed with the secretary of state and made pursuant to an exemption from this chapter in section 41-1005, made pursuant to section 41-1026, approved by the council pursuant to section 41-1052 or 41-1053 or approved by the attorney general pursuant to section 41-1044. For purposes of judicial review, final rule includes proposed summary rules having interim effect pursuant to section 41-1027.
10. "License" includes the whole or part of any agency permit, certificate, approval, registration, charter or similar form of permission required by law, but it does not include a license required solely for revenue purposes.
11. "Licensing" includes the agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal or amendment of a license.
12. "Party" means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party.
13. "Person" means an individual, partnership, corporation, association, governmental subdivision or unit of a governmental subdivision, a public or private organization of any character or another agency.
14. "Preamble" means:
(a) For any rule making subject to this chapter, a statement accompanying the rule that includes:
(i) Reference to the specific statutory authority for the rule.
(ii) The name and address of agency personnel with whom persons may communicate regarding the rule.
(iii) An explanation of the rule, including the agency's reasons for initiating the rule making.
(iv) A reference to any study relevant to the rule that the agency reviewed and either proposes to rely on in its evaluation of or justification for the rule or proposes not to rely on in its evaluation of or justification for the rule, where the public may obtain or review each study, all data underlying each study and any analysis of each study and other supporting material.
(v) The economic, small business and consumer impact summary, or in the case of a proposed rule, a preliminary summary and a solicitation of input on the accuracy of the summary.
(vi) A showing of good cause why the rule is necessary to promote a statewide interest if the rule will diminish a previous grant of authority of a political subdivision of this state.
(vii) Such other matters as are prescribed by statute and that are applicable to the specific agency or to any specific rule or class of rules.
(b) In addition to the information set forth in subdivision (a) of this paragraph, for a proposed rule, the preamble also shall include a list of all previous notices appearing in the register addressing the proposed rule, a statement of the time, place and nature of the proceedings for the making, amendment or repeal of the rule and where, when and how persons may request an oral proceeding on the proposed rule if the notice does not provide for one.
(c) In addition to the information set forth in subdivision (a) of this paragraph, for a proposed summary rule, the preamble also shall include a statement of the time, place and nature of the proceedings for the making, amendment or repeal of the rule and an explanation of why summary proceedings are justified.
(d) For a final rule, except an emergency rule, the preamble also shall include, in addition to the information set forth in subdivision (a), the following information:
(i) A list of all previous notices appearing in
the register addressing the final rule.
(ii) A description of the changes between the
proposed rules, including supplemental
notices and final rules.
(iii) A summary of the comments made
regarding the rule and the agency response
to them.
(iv) A summary of the council's action on the
rule.
(v) A statement of the rule's effective date.
(e) In addition to the information set forth in subdivision (a) of this paragraph, for an emergency rule, the preamble also shall include an explanation of the situation justifying the rule being made as an emergency rule, the date of the attorney general's approval of the rule and a statement of the emergency rule's effective date.
15. "Provision of law" means the whole or a part of the federal or state constitution, or of any federal or state statute, rule of court, executive order or rule of an administrative agency.
16. "Register" means the Arizona administrative register.
17. "Rule" means an agency statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of an agency. Rule includes prescribing fees or the amendment or repeal of a prior rule but does not include intraagency memoranda that are not delegation agreements.
18. "Rule making" means the process for formulation and finalization of a rule.
19. "Small business" means a concern, including its affiliates, which is independently owned and operated, which is not dominant in its field and which employs fewer than one hundred full-time employees or which had gross annual receipts of less than four million dollars in its last fiscal year. For purposes of a specific rule, an agency may define small business to include more persons if it finds that such a definition is necessary to adapt the rule to the needs and problems of small businesses and organizations.
20. "Substantive policy statement" means a written expression which informs the general public of an agency's current approach to, or opinion of, the requirements of the federal or state constitution, federal or state statute, administrative rule or regulation, or final judgment of a court of competent jurisdiction, including, where appropriate, the agency's current practice, procedure or method of action based upon that approach or opinion. A substantive policy statement is advisory only. A substantive policy statement does not include internal procedural documents which only affect the internal procedures of the agency and does not impose additional requirements or penalties on regulated parties, confidential information or rules made in accordance with this chapter.
21. "Summary rule" means a rule that is made pursuant to section 41-1027.
§ 41-1001.01. Regulatory bill of rights
A. To ensure fair and open regulation by state agencies, a person:
1. Is eligible for reimbursement of fees and other expenses if the person prevails by adjudication on the merits against an agency in a court proceeding regarding an agency decision as provided in section 12-348.
2. Is eligible for reimbursement of the person's costs and fees if the person prevails against any agency in an administrative hearing as provided in section 41-1007.
3. Is entitled to have an agency not charge the person a fee unless the fee for the specific activity is expressly authorized as provided in section 41-1008.
4. Is entitled to receive the information and notice regarding inspections prescribed in section 41-1009.
5. May review the full text or summary of all rule making activity, the summary of substantive policy statements and the full text of executive orders in the register as provided in article 2 of this chapter.
6. May participate in the rule making process as provided in articles 3, 4, 4.1 and 5 of this chapter, including:
(a) Providing written or oral comments on proposed rules to an agency as provided in section 41-1023 and having the agency adequately address those comments as provided in section 41-1052, subsection C.
(b) Providing written or oral comments on rules to the governor's regulatory review council as provided in article 5 of this chapter.
7. Is entitled to have an agency not base a licensing decision in whole or in part on licensing conditions or requirements that are not specifically authorized by statute, rule or state tribal gaming compact as provided in section 41-1030, subsection B.
8. Is entitled to have an agency not make a rule under a specific grant of rule making authority that exceeds the subject matter areas listed in the specific statute or not make a rule under a general grant of rule making authority to supplement a more specific grant of rule making authority as provided in section 41-1030, subsection C.
9. May allege that an existing agency practice or substantive policy statement constitutes a rule and have that agency practice or substantive policy statement declared void because the practice or substantive policy statement constitutes a rule as provided in section 41-1033.
10. May file a complaint with the administrative rules oversight committee concerning:
(a) A rule's, practice's or substantive policy statement's lack of conformity with statute or legislative intent as provided in section 41-1047.
(b) An existing statute, rule, practice alleged to constitute a rule or substantive policy statement that is alleged to be duplicative or onerous as provided in section 41-1048.
11. May have the person's administrative hearing on contested cases and appealable agency actions heard by an independent administrative law judge as provided in articles 6 and 10 of this chapter.
12. May have administrative hearings governed by uniform administrative appeal procedures as provided in articles 6 and 10 of this chapter.
13. May have an agency approve or deny the person's license application within a predetermined period of time as provided in article 7.1 of this chapter.
14. Is entitled to receive written notice from an agency on denial of a license application:
(a) That justifies the denial with references to the statutes or rules on which the denial is based as provided in section 41-1076.
(b) That explains the applicant's right to appeal the denial as provided in section 41-1076.
15. Is entitled to receive information regarding the license application process at the time the person obtains an application for a license as provided in section 41-1079.
16. May receive public notice and participate in the adoption or amendment of agreements to delegate agency functions, powers or duties to political subdivisions as provided in section 41-1026.01 and article 8 of this chapter.
17. May inspect all rules and substantive policy statements of an agency, including a directory of documents, in the office of the agency director as provided in section 41-1091.
18. May file a complaint or inquiry with the advocate for private property rights regarding constitutional taking as provided in chapter 8, article 1.1 of this title.
19. May file a complaint with the office of the ombudsman-citizens aide to investigate administrative acts of agencies as provided in chapter 8, article 5 of this title.
B. The enumeration of the rights listed in subsection A of this section does not grant any additional rights that are not prescribed in the sections referenced in subsection A of this section.
§ 41-1002. Applicability and relation to other law
A. Articles 1 through 5 of this chapter apply to all agencies and all proceedings not expressly exempted.
B. This chapter creates only procedural rights and imposes only procedural duties. They are in addition to those created and imposed by other statutes. To the extent that any other statute would diminish a right created or duty imposed by this chapter, the other statute is superseded by this chapter, unless the other statute expressly provides otherwise.
C. An agency may grant procedural rights to persons in addition to those conferred by this chapter so long as rights conferred on other persons by any provision of law are not substantially prejudiced.
§ 41-1003. Required rule making
Each agency shall make rules of practice setting forth the nature and requirements of all formal procedures available to the public.
§ 41-1004. Waiver
Except to the extent precluded by another provision of law, a person may waive any right conferred on that person by this chapter.
§ 41-1005. Exemptions
A. This chapter does not apply to any:
1. Rule that relates to the use of public works, including streets and highways, under the jurisdiction of an agency if the effect of the order is indicated to the public by means of signs or signals.
2. Order of the Arizona game and fish commission that opens, closes or alters seasons or establishes bag or possession limits for wildlife.
3. Rule relating to section 28-641 or to any rule regulating motor vehicle operation that relates to speed, parking, standing, stopping or passing enacted pursuant to title 28, chapter 3.
4. Rule concerning only the internal management of an agency that does not directly and substantially affect the procedural or substantive rights or duties of any segment of the public.
5. Rule that only establishes specific prices to be charged for particular goods or services sold by an agency.
6. Rule concerning only the physical servicing, maintenance or care of agency owned or operated facilities or property.
7. Rule or substantive policy statement concerning inmates or committed youth of a correctional or detention facility in secure custody or patients admitted to a hospital, if made by the state department of corrections, the department of juvenile corrections, the board of executive clemency or the department of health services or a facility or hospital under the jurisdiction of the state department of corrections, the department of juvenile corrections or the department of health services.
8. Form whose contents or substantive requirements are prescribed by rule or statute, and instructions for the execution or use of the form.
9. Capped fee-for-service schedule adopted by the Arizona health care cost containment system administration pursuant to title 36, chapter 29.
10. Fees prescribed by section 6-125.
11. Order of the director of water resources adopting or modifying a management plan pursuant to title 45, chapter 2, article 9.
12. Fees established under section 3-1086.
13. Fee-for-service schedule adopted by the department of economic security pursuant to section 8-512.
14. Fees established under sections 41-2144 and 41-2189.
15. Rule or other matter relating to agency contracts.
16. Fees established under section 32-2067 or 32-2132.
17. Rules made pursuant to section 5-111, subsection A.
18. Rules made by the Arizona state parks board concerning the operation of the Tonto natural bridge state park, the facilities located in the Tonto natural bridge state park and the entrance fees to the Tonto natural bridge state park.
19. Fees or charges established under section 41-511.05.
20. Emergency medical services protocols except as provided in section 36-2205, subsection C.
21. Fee schedules established pursuant to section 36-3409.
22. Procedures of the state transportation board as prescribed in section 28-7048.
23. Rules made by the state department of corrections.
24. Fees prescribed pursuant to section 32-1527.
25. Rules made by the department of economic security pursuant to section 46-805.
26. Schedule of fees prescribed by section 23-908.
27. Procedure that is established pursuant to title 23, chapter 6, article 5 or 6.
B. Notwithstanding subsection A, paragraph 23 of this section, at such time as the federal highway administration authorizes the privatization of rest areas, the state transportation board shall make rules governing the lease or license by the department of transportation to a private entity for the purposes of privatization of a rest area.
C. Coincident with the making of a rule pursuant to an exemption under this section, the agency shall file a copy of the rule with the secretary of state for publication pursuant to section 41-1012.
D. Unless otherwise required by law, articles 2, 3, 4 and 5 of this chapter do not apply to the Arizona board of regents and the institutions under its jurisdiction, except that the Arizona board of regents shall make policies or rules for the board and the institutions under its jurisdiction that provide, as appropriate under the circumstances, for notice of and opportunity for comment on the policies or rules proposed.
E. Unless otherwise required by law, articles 2, 3, 4 and 5 of this chapter do not apply to the Arizona state schools for the deaf and the blind, except that the board of directors of all the state schools for the deaf and the blind shall adopt policies for the board and the schools under its jurisdiction that provide, as appropriate under the circumstances, for notice of and opportunity for comment on the policies proposed for adoption.
F. Unless otherwise required by law, articles 2, 3, 4 and 5 of this chapter do not apply to the state board of education, except that the state board of education shall adopt policies or rules for the board and the institutions under its jurisdiction that provide, as appropriate under the circumstances, for notice of and opportunity for comment on the policies or rules proposed for adoption. In order to implement or change any rule, the state board of education shall provide at least two opportunities for public comment.
§ 41-1006. Employees providing agency assistance; identification and publication
Each state agency that employs more than one hundred persons shall publish annually in the register, in the state directory and in a telephone directory for Maricopa county the name or names of those employees who are designated by the agency to assist members of the public or regulated community in seeking information or assistance from the agency.
§ 41-1007. Award of costs and fees against a department in administrative hearings; exceptions; definitions
A. Except as provided in section 42-2064, subsection G, a hearing officer or administrative law judge shall award fees and other costs to any prevailing party in a contested case or an appealable agency action brought pursuant to any state administrative hearing authority. For purposes of this subsection, a person is considered to be a prevailing party only if both:
1. The agency's position was not substantially justified.
2. The person prevails as to the most significant issue or set of issues unless the reason that the person prevailed is due to an intervening change in the law.
B. Reimbursement under this section may be denied if during the course of the proceeding the party unduly and unreasonably protracted the final resolution of the matter.
C. A party that seeks an award of fees or other costs shall apply to the hearing officer or administrative law judge, within thirty days after the final decision or order, providing:
1. Evidence of the party's eligibility for the award.
2. The amount sought.
3. An itemized statement from the attorneys and experts stating:
(a) The actual time spent representing the party.
(b) The rate at which the fees were computed.
D. The award of reasonable attorney fees pursuant to subsection A of this section need not equal or relate to the attorney fees actually paid or contracted, but an award may not exceed the amount paid or agreed to be paid.
E. A decision of a hearing officer or administrative law judge under this section is subject to judicial review. If fees and other costs were denied by the hearing officer or administrative law judge because the party was not the prevailing party but the party prevails on appeal, the court may award fees and other costs for the proceedings before the hearing officer or administrative law judge if the court finds that fees and other costs should have been awarded under subsection A of this section.
F. The department shall pay the fees and costs awarded pursuant to this section from any monies appropriated to the department and available for that purpose, or from other operating costs of the department. If the department fails or refuses to pay the award within thirty days after the demand, and if no further review or appeals of the award are pending, the person may file a claim for the award with the department of administration which shall pay the claim within thirty days in the same manner as an uninsured property loss under chapter 3.1, article 1 of this title, except that the department shall be responsible for the total amount awarded and shall pay it from operating monies. If the department had appropriated monies available for paying the award at the time it failed or refused to pay, the legislature shall reduce the department's operating appropriation for the following fiscal year by the amount of the award and appropriate that amount to the department of administration as reimbursement for the loss.
G. This section does not apply to:
1. Any grievance and appeal procedure pursuant to title 36, chapter 29.
2. Any appeal procedure pursuant to chapter 4, article 6 of this title.
3. Any administrative appeal filed by an inmate in an Arizona state prison.
H. As used in this section:
1. "Department" includes a state agency, department, board or commission, and the universities.
2. "Party" includes an individual, partnership, corporation, association and public or private organization.
§ 41-1008. Fees; specific statutory authority
A. Beginning on July 1, 1999, except as provided in subsection C, an agency shall not:
1. Charge or receive a fee or make a rule establishing a fee unless the fee for the specific activity is expressly authorized by statute or tribal state gaming compact.
2. Make a rule establishing a fee that is solely based on a statute that generally authorizes an agency to recover its costs or to accept gifts or donations.
B. Beginning on July 1, 1999, an agency shall identify the statute or tribal state gaming compact that authorizes the fee on documents relating to collection of the fee.
C. An agency authorized by statute or tribal state gaming compact to conduct background checks may charge a fingerprint fee without a statute expressly authorizing the fee.
§ 41-1009. Inspections; applicability
A. An agency inspector or regulator who enters any premises of a regulated person for the purpose of conducting an inspection shall:
1. Present photo identification on entry of the premises.
2. On initiation of the inspection, state the purpose of the inspection and the legal authority for conducting the inspection.
3. Disclose any applicable inspection fees.
4. Afford an opportunity to have an authorized on-site representative of the regulated person accompany the agency inspector or regulator on the premises, except during confidential interviews.
5. Provide notice of the right to have:
(a) Copies of any original documents taken by the agency during the inspection if the agency is permitted by law to take original documents.
(b) A split of any samples taken during the inspection if the split of any samples would not prohibit an analysis from being conducted or render an analysis inconclusive.
(c) Copies of any analysis performed on samples taken during the inspection.
6. Inform each person whose conversation with the agency inspector or regulator during the inspection is tape recorded that the conversation is being tape recorded.
7. Inform each person interviewed during the inspection that statements made by the person may be included in the inspection report.
B. On initiation of an inspection of any premises of a regulated person, an agency inspector or regulator shall provide the following in writing:
1. The rights described in subsection A of this section.
2. The name and telephone number of a contact person available to answer questions regarding the inspection.
3. The due process rights relating to an appeal of a final decision of an agency based on the results of the inspection, including the name and telephone number of a person to contact within the agency and any appropriate state government ombudsman.
C. An agency inspector or regulator shall obtain the signature of the regulated person or on-site representative of the regulated person on the writing prescribed in subsection B of this section indicating that the regulated person or on-site representative of the regulated person has read the writing prescribed in subsection B of this section and is notified of the regulated person's or on-site representative of the regulated person's inspection and due process rights. The agency shall maintain a copy of this signature with the inspection report and shall leave a copy with the regulated person or on-site representative of the regulated person. If a regulated person or on-site representative of the regulated person is not at the site or refuses to sign the writing prescribed in subsection B of this section, the agency inspector or regulator shall note that fact on the writing prescribed in subsection B of this section.
D. An agency that conducts an inspection shall give a copy of the inspection report to the regulated person or on-site representative of the regulated person either:
1. At the time of the inspection.
2. Notwithstanding any other state law, within thirty working days after the inspection.
3. As otherwise required by federal law.
E. The inspection report shall contain deficiencies identified during an inspection. Unless otherwise provided by law, the agency may provide the regulated person an opportunity to correct the deficiencies unless the agency determines that the deficiencies are:
1. Committed intentionally.
2. Not correctable within a reasonable period of time as determined by the agency.
3. Evidence of a pattern of noncompliance.
4. A risk to any person, the public health, safety or welfare or the environment.
F. If the agency allows the regulated person an opportunity to correct the deficiencies pursuant to subsection E of this section, the regulated person shall notify the agency when the deficiencies have been corrected. Within thirty days of receipt of notification from the regulated person that the deficiencies have been corrected, the agency shall determine if the regulated person is in substantial compliance and notify the regulated person whether or not the regulated person is in substantial compliance. If the regulated person fails to correct the deficiencies or the agency determines the deficiencies have not been corrected within a reasonable period of time, the agency may take any enforcement action authorized by law for the deficiencies.
G. An agency decision pursuant to subsection E or F of this section is not an appealable agency action.
H. At least once every month after the commencement of the inspection an agency shall provide a regulated person with an update on the status of any agency action resulting from an inspection of the regulated person. An agency is not required to provide an update after the regulated person is notified that no agency action will result from the agency inspection or after the completion of agency action resulting from the agency inspection.
I. This section does not authorize an inspection or any other act that is not otherwise authorized by law.
J. This section applies only to inspections necessary for the issuance of a license or to determine compliance with licensure requirements. This section does not apply:
1. To criminal investigations, investigations under tribal state gaming compacts and undercover investigations that are generally or specifically authorized by law.
2. If the inspector or regulator has reasonable suspicion to believe that the regulated person may be engaged in criminal activity.
3. To the Arizona peace officer standards and training board established by section 41-1821.
K. If an inspector or regulator gathers evidence in violation of this section, the violation shall not be a basis to exclude the evidence in a civil or administrative proceeding, if the penalty sought is the denial, suspension or revocation of the regulated person's license or a civil penalty of more than one thousand dollars.
L. Failure of an agency, board or commission employee to comply with this section:
1. Constitutes cause for disciplinary action or dismissal in accordance with section 41-770.
2. Shall be considered by the judge and administrative law judge as grounds for reduction of any fine or penalty.
M. An agency may make rules to implement subsection A, paragraph 5 of this section.
N. Nothing in this section shall be used to exclude evidence in a criminal proceeding.
§ 41-1010. Complaints; public record
Notwithstanding any other law, a person shall disclose the person's name during the course of reporting an alleged violation of law or rule. During the course of an investigation or enforcement action, the name of the complainant shall be a public record unless the affected agency determines that the release of the complainant's name may result in substantial harm to any person or to the public health or safety.
ARTICLE 2. PUBLICATION OF AGENCY RULES
§ 41-1011. Publication and distribution of code and register
A. The secretary of state is responsible for the publication and distribution of the code and the register.
B. The secretary of state shall prescribe a uniform numbering system, form and style for all rules filed with and published by that office. The secretary of state shall reject rules if they are not in compliance with the prescribed numbering system, form and style.
C. The secretary of state shall prepare, arrange and correlate all rules and other text as necessary for the publication of the code and the register. The secretary of state may not alter the sense, meaning or effect of any rule but may renumber rules and parts of rules, rearrange rules, change reference numbers to agree with renumbered rules and parts of rules, substitute the proper rule number for "the preceding rule" and similar terms, delete figures if they are merely a repetition of written words, change capitalization for the purpose of uniformity and correct manifest clerical or typographical errors. With the consent of the attorney general the secretary of state may remove from the code a provision of a rule that a court of final appeal declares unconstitutional or otherwise invalid and a rule made by an agency that is abolished if the rule is not transferred to a successor agency.
§ 41-1012. Code; publication of rules; distribution
A. The code shall contain the full text of each final rule filed with the secretary of state and each rule made pursuant to a statutory exemption from the applicability of this chapter.
B. The secretary of state shall publish, in loose-leaf form, at least once every quarter all final rules and rules made pursuant to a statutory exemption from the applicability of this chapter. Publication of a rule by the secretary of state as provided in this section constitutes prima facie evidence of the making and filing of the rule pursuant to this chapter or the making of the rule pursuant to a statutory exemption from the applicability of this chapter.
C. The secretary of state may contract for the printing of the code on terms most advantageous to this state.
D. The code shall be available by subscription and for single copy purchase. The charge for each code or periodic subscription shall be a reasonable charge, not to exceed all costs of production and distribution of the code.
§ 41-1013. Register
A. The secretary of state shall publish the register at least once each month, including the information which is provided under subsection B of this section and which is filed with the secretary of state during the preceding thirty days. The secretary of state shall publish an index to the register at least twice each year.
B. The register shall contain:
1. A schedule of the time, date and place of all hearings on proposed repeals, makings or amendments of rules.
2. Each governor's executive order.
3. Each governor's proclamation of general applicability, and each statement filed by the governor in granting a commutation, pardon or reprieve or stay or suspension of execution where a sentence of death is imposed.
4. A summary of each attorney general's opinion.
5. Each governor's appointment of state officials and board and commission members.
6. A table of contents.
7. The notice and agency summary of each docket opening.
8. The full text and accompanying preamble of each proposed rule.
9. The full text and accompanying preamble of each final rule.
10. The full text and accompanying preamble of each emergency rule.
11. Supplemental notices of a proposed rule or summary rule.
12. A summary of council action on each rule.
13. The full text of any exempt final rule filed with the secretary of state pursuant to section 41-1005, subsection C.
14. The identification and a summary of substantive policy statements and notice and a summary of any guidance document publication or revision submitted by an agency.
15. Notices of oral proceedings, public workshops or other meetings on an open rule making docket.
C. The register shall be available by subscription and for single copy purchase. The charge for each register or periodic subscription shall be a reasonable charge, not to exceed all costs of production and distribution of the register.
D. For purposes of this section, full text publication in the register includes all new, amended or added language and such existing language as the proposing agency deems necessary for a proper understanding of the proposed rule. Rules that are undergoing extensive revision may be reprinted in whole. Existing rule language not required for understanding shall be omitted and marked "no change".
ARTICLE 3. RULE MAKING
§ 41-1021. Public rule making docket; notice
A. Each agency shall establish and maintain a current, public rule making docket for each pending rule making proceeding. A rule making proceeding is pending from the time the agency begins to consider proposing the rule under section 41-1022 until any one of the following occurs:
1. The time the rule making proceeding is terminated by the agency indicating in the rule making docket that the agency is no longer actively considering proposing the rule.
2. One year after the notice of rule making docket opening is published in the register if the agency has not filed a notice of the proposed rule making with the secretary of state pursuant to section 41-1022.
3. The rule becomes effective.
4. One year after the notice of the proposed rule making is published in the register if the agency has not submitted the rule to the council for review and approval.
5. Publication of a notice of termination.
B. For each rule making proceeding, the docket shall indicate all of the following:
1. The subject matter of the proposed rule.
2. A citation to all published notices relating to the proceeding.
3. The name and address of agency personnel with whom persons may communicate regarding the rule.
4. Where written submissions on the proposed rule may be inspected.
5. The time during which written submissions may be made and the time and place where oral comments may be made.
6. Where a copy of the economic, small business and consumer impact statement and the minutes of the pertinent council meeting may be inspected.
7. The current status of the proposed rule.
8. Any known timetable for agency decisions or other action in the proceeding.
9. The date the rule was sent to the council.
10. The date of the rule's filing and publication.
11. The date the rule was approved by the council.
12. When the rule will become effective.
C. The agency shall provide public notice of the establishment of a rule making docket by causing a notice of docket opening to be published in the register, including the information set forth in subsection B, paragraphs 1, 2, 3, 5 and 8 of this section.
D. An agency may appoint formal advisory committees to comment, before publication of a notice of proposed rule making under section 41-1022, on the subject matter of a possible rule making under active consideration within the agency. The membership of these committees shall be published at the time of formation and annually thereafter in the register. Members of these committees are not eligible to receive compensation except as otherwise provided by law.
§ 41-1021.01. Permissive examples
An agency may include a diagram, example, table, chart or formula in a rule, preamble, economic impact, small business and consumer impact statement or concise explanatory statement to the extent that it assists in making the document understandable by the persons affected by the rule.
§ 41-1021.02. State agencies; annual regulatory agenda
A. On or before December 1 of each year, each agency, except for a self-supporting regulatory board as defined in section 41-1092, shall prepare and make available to the public the regulatory agenda that the agency expects to follow during the next calendar year.
B. The regulatory agenda shall include all of the following:
1. A notice of docket openings.
2. A notice of any proposed rule making, including potential sources of federal funding for each proposed rule making.
3. A review of existing rules.
4. A notice of a final rule making.
C. The regulatory agenda shall also provide for the following information:
1. Any rule making terminated during the current calendar year.
2. Any privatization option and nontraditional regulatory approach being considered by the agency.
D. This section does not prohibit an agency from undertaking any rule making action even if that action has not been included in the agency's annual regulatory agenda.
§ 41-1022. Notice of proposed rule making, amendment or repeal; contents of notice
A. Before rule making, amendment or repeal, the agency shall file a notice of the proposed action with the secretary of state. The notice shall include:
1. The preamble.
2. The exact wording of the rule.
B. The secretary of state shall include in the next edition of the register the information in the notice under subsection A of this section.
C. At the same time the agency files a notice of the proposed rule making with the secretary of state, the agency shall notify by regular mail, telefacsimile or electronic mail each person who has made a timely request to the agency for notification of the proposed rule making and to each person who has requested notification of all proposed rule makings. An agency may provide the notification prescribed in this subsection in a periodic agency newsletter. An agency may purge its list of persons requesting notification of proposed rule makings once each year.
D. Before commencing any proceedings for rule making, amendment or repeal, an agency shall allow at least thirty days to elapse after the publication date of the register in which the notice of the proposed rule making, amendment or repeal is contained.
E. If, as a result of public comments or internal review, an agency determines that a proposed rule requires substantial change pursuant to section 41-1025, the agency shall issue a supplemental notice containing the changes in the proposed rule. The agency shall provide for additional public comment pursuant to section 41-1023.
§ 41-1023. Public participation; written statements; oral proceedings
A. After providing notice of docket openings, an agency may meet informally with any interested party for the purpose of discussing the proposed rule making action. The agency may solicit comments, suggested language or other input on the proposed rule. The agency may publish notice of these meetings in the register.
B. For at least thirty days after publication of the notice of the proposed rule making, an agency shall afford persons the opportunity to submit in writing statements, arguments, data and views on the proposed rule, with or without the opportunity to present them orally.
C. An agency shall schedule an oral proceeding on a proposed rule if, within thirty days after the published notice of proposed rule making, a written request for an oral proceeding is submitted to the agency personnel listed pursuant to section 41-1021, subsection B.
D. An oral proceeding on a proposed rule may not be held earlier than thirty days after notice of its location and time is published in the register. The agency shall determine a location and time for the oral proceeding which affords a reasonable opportunity to persons to participate. The oral proceeding shall be conducted in a manner that allows for adequate discussion of the substance and the form of the proposed rule, and persons may ask questions regarding the proposed rule and present oral argument, data and views on the proposed rule.
E. The agency, a member of the agency or another presiding officer designated by the agency shall preside at an oral proceeding on a proposed rule. If the agency does not preside, the presiding official shall prepare a memorandum for consideration by the agency summarizing the contents of the presentations made at the oral proceeding. Oral proceedings must be open to the public and recorded by stenographic or other means.
F. Each agency may make rules for the conduct of oral rule making proceedings. Those rules may include provisions calculated to prevent undue repetition in the oral proceedings.
§ 41-1024. Time and manner of rule making
A. An agency may not submit a rule to the council until the rule making record is closed.
B. Within one hundred twenty days after the close of the record on the proposed rule making, an agency shall take one of the following actions:
1. Submit the rule to the council, or, if the rule is exempt pursuant to section 41-1057, to the attorney general.
2. Terminate the proceeding by publication of a notice to that effect in the register.
C. Before submitting a rule to the council or the attorney general, an agency shall consider the written submissions, the oral submissions or any memorandum summarizing oral submissions and the economic, small business and consumer impact statement regarding the rule or information in the preamble.
D. Within the scope of its delegated authority, an agency may use its own experience, technical competence, specialized knowledge and judgment in the making of a rule.
E. Unless exempted by section 41-1005 or 41-1057 or unless the rule is an emergency rule made pursuant to section 41-1026, if the agency chooses to make the rule, the agency shall submit a rule package to the council and to the committee. The rule package shall include:
1. The preamble.
2. The exact words of the rule, including existing language and any deletions.
3. The economic, small business and consumer impact statement.
F. If the rule is exempt pursuant to section 41-1005, the agency shall file it as a final rule with the secretary of state.
G. If the rule is exempt from council approval, pursuant to section 41-1057, the agency shall submit the rule package set forth in subsection E of this section to the attorney general for approval pursuant to section 41-1044.
H. An agency shall not file a final rule with the secretary of state without prior approval from the council, unless the final rule is exempted pursuant to section 41-1005 or 41-1057 or the rule is an emergency rule made pursuant to section 41-1026 or a summary proposed rule made pursuant to section 41-1027.
§ 41-1025. Variance between rule and published notice of proposed rule
A. An agency may not submit a rule to the council that is substantially different from the proposed rule contained in the notice of proposed rule making or a supplemental notice filed with the secretary of state pursuant to section 41-1022. However, an agency may terminate a rule making proceeding and commence a new rule making proceeding for the purpose of making a substantially different rule.
B. In determining whether a rule is substantially different from the published proposed rule on which it is required to be based, all of the following must be considered:
1. The extent to which all persons affected by the rule should have understood that the published proposed rule would affect their interests.
2. The extent to which the subject matter of the rule or the issues determined by that rule are different from the subject matter or issues involved in the published proposed rule.
3. The extent to which the effects of the rule differ from the effects of the published proposed rule if it had been made instead.
§ 41-1026. Emergency rule making, amendment or repeal
A. If an agency makes a finding that a rule is necessary as an emergency measure, the rule may be made, amended or repealed as an emergency measure, without the notice prescribed by sections 41-1021 and 41-1022 and prior review by the council, if the rule is first approved by the attorney general and filed with the secretary of state. The attorney general may not approve the making, amendment or repeal of a rule as an emergency measure if the emergency situation is created due to the agency's delay or inaction and the emergency situation could have been averted by timely compliance with the notice and public participation provisions of this chapter, unless the agency submits substantial evidence that the rule is necessary as an emergency measure to do any of the following:
1. Protect the public health, safety or welfare.
2. Comply with deadlines in amendments to an agency's governing law or federal programs.
3. Avoid violation of federal law or regulation or other state law.
4. Avoid an imminent budget reduction.
5. Avoid serious prejudice to the public interest or the interest of the parties concerned.
B. Within sixty days of receipt, the attorney general shall review the demonstration of emergency and the rule in accordance with the standards prescribed in section 41-1044.
C. After the rule is filed with the secretary of state, the secretary of state shall publish the rule in the register as provided in section 41-1013.
D. A rule made, amended or repealed pursuant to this section is valid for one hundred eighty days after the filing of the rule with the secretary of state and may be renewed for one more one hundred eighty day period if all of the following occur:
1. The agency determines that the emergency situation still exists.
2. The agency follows the procedures prescribed in this section.
3. The rule is approved by the attorney general pursuant to this section.
4. The agency has issued the rule as a proposed rule or has issued an alternative proposed rule pursuant to section 41-1022.
5. The agency seeks approval of the renewal from the attorney general before the expiration of the preceding one hundred eighty day period.
6. The agency files notice of the renewal and any required attorney general approval with the secretary of state and notice is published in the register.
E. A rule that is made pursuant to this chapter and that replaces a rule made, amended or repealed pursuant to this section shall expressly repeal the rule replaced if it has not expired.
§ 41-1026.01. Emergency adoption, amendment or termination of delegation agreements; definition
A. If a delegating agency makes a written finding that a delegation agreement is necessary as an emergency measure, the delegation agreement may be adopted, amended or terminated as an emergency measure, without complying with the public notice and participation provisions of this article. An agency may not adopt, amend or terminate a delegation agreement as an emergency measure if the emergency situation is created due to the agency's delay or inaction and the emergency situation could have been averted by timely compliance with the public notice and participation provisions of this article, unless the agency can present substantial evidence that failure to adopt, amend or terminate the delegation agreement as an emergency measure will result in imminent substantial peril to the public health, safety or welfare.
B. The agency shall file with the secretary of state a summary of the emergency delegation agreement. The summary shall provide the name of the person to contact in the agency with questions or comments. The secretary of state shall publish the summary in the next register.
C. The delegation agreement adopted, amended or terminated pursuant to this section is valid for one hundred eighty days after the filing of the agreement with the secretary of state and may be renewed for one or two more one hundred eighty day periods if all of the following occur:
1. The agency determines that the emergency situation still exists for each renewal.
2. The agency follows the procedures prescribed by this section for each renewal.
3. The agency has begun the public comment and participation process required by this section.
4. The agency makes a finding for an extension of time before the expiration of the preceding one hundred and eighty day period.
5. The agency files notice of the renewal with the secretary of state and notice is published in the register.
D. For purposes of this section, "emergency" means a situation which warrants the adoption of a delegation agreement without compliance with the public notice and participation provisions prescribed in this article because the adoption, amendment or termination of the delegation agreement is necessary for immediate preservation of the public health, safety or welfare, and the public notice and participation requirements of this article are impracticable.
§ 41-1027. Summary rule making
A. An agency may use the summary rule making procedure set forth in this section in place of the rule making procedure set forth in sections 41-1021 through 41-1024 for the following actions:
1. Repeals of rules made obsolete by repeal or supersession of an agency's statutory authority.
2. Making, amendment and repeal of rules that repeat verbatim existing statutory authority granted to the agency.
B. An agency shall initiate summary rule making by filing the proposed summary rule with the council and the secretary of state for publication in the next register. The notice filed with the secretary of state shall include the preamble.
C. The agency shall forward copies of the notice filed with the secretary of state pursuant to subsection B of this section to the council.
D. The proposed summary rule takes interim effect on the date of publication in the register.
E. Within ninety days after publication in the register, after consideration of any comments, the agency shall submit to the council a summary rule, preamble, concise explanatory statement and economic, small business and consumer impact statement.
F. The summary rule making procedures of this section are not available for rules exempted from council approval pursuant to section 41-1057.
§ 41-1028. Incorporation by reference
A. An agency may incorporate by reference in its rules, and without publishing the incorporated matter in full, all or any part of a code, standard, rule or regulation of an agency of the United States or of this state or a nationally recognized organization or association, if incorporation of its text in agency rules would be unduly cumbersome, expensive or otherwise inexpedient.
B. The reference in the agency rules shall fully identify the incorporated matter by location, date and otherwise and shall state that the rule does not include any later amendments or editions of the incorporated matter.
C. An agency may incorporate by reference such matter in its rules only if the agency, organization or association originally issuing that matter makes copies of it readily available to the public for inspection and reproduction.
D. The rules shall state where copies of the incorporated matter are available from the agency issuing the rule and from the agency of the United States or this state or the organization or association originally issuing the matter.
E. An agency may incorporate later amendments or editions of the incorporated matter only after compliance with the rule making requirements of this chapter.
§ 41-1029. Agency rule making record
A. An agency shall maintain an official rule making record for each rule it proposes by publication in the register of a notice of proposed rule making and each final rule filed in the office of the secretary of state. The record and matter incorporated by reference must be available for public inspection.
B. The agency rule making record shall contain all of the following:
1. A copy of the notice initially filed in the office of the secretary of state.
2. Copies of all publications in the register with respect to the rule or the proceeding on which the rule is based.
3. Copies of any portions of the agency's rule making docket containing entries relating to the rule or the proceeding on which the rule is based.
4. All written petitions, requests, submissions and comments received by the agency and all other written materials considered or prepared by the agency in connection with the rule or the proceeding on which the rule is based.
5. Any official transcript of oral presentations made in the proceeding on which the rule is based, or if not transcribed, any tape recording or stenographic record of those presentations, and any memorandum prepared by a presiding official summarizing the contents of those presentations.
6. A copy of all materials submitted to the council, including the economic, small business and consumer impact statement and the minutes of the council meeting at which the rule was reviewed.
7. A copy of the final rule and preamble.
8. Information requested regarding the experience, technical competence, specialized knowledge and judgment of an agency if the agency relies on section 41-1024, subsection D in the making of a rule and a request is made.
C. On judicial review, the record required by this section constitutes the official agency rule making record with respect to a rule. Except as provided in section 41-1036 or otherwise required by a provision of law, the agency rule making record need not constitute the exclusive basis for agency action on that rule or for judicial review of that rule.
§ 41-1030. Invalidity of rules not made according to this chapter; prohibited agency action
A. A rule is invalid unless it is made and approved in substantial compliance with sections 41-1021 through 41-1029 and articles 4, 4.1 and 5 of this chapter, unless otherwise provided by law.
B. An agency shall not base a licensing decision in whole or in part on a licensing requirement or condition that is not specifically authorized by statute, rule or state tribal gaming compact. A general grant of authority in statute does not constitute a basis for imposing a licensing requirement or condition unless a rule is made pursuant to that general grant of authority that specifically authorizes the requirement or condition.
C. An agency shall not:
1. Make a rule under a specific grant of rule making authority that exceeds the subject matter areas listed in the specific statute authorizing the rule.
2. Make a rule under a general grant of rule making authority to supplement a more specific grant of rule making authority.
§ 41-1031. Filing rules and preamble with secretary of state; permanent record
A. Following the filing of a rule made pursuant to an exemption to this chapter or following approval and filing of a rule and preamble and an economic, small business and consumer impact statement by the council as provided in article 5 of this chapter or by the attorney general as provided in article 4 of this chapter, the secretary of state shall affix to each rule document, preamble and economic, small business and consumer impact statement the time and date of filing. A rule is not final until the secretary of state affixes the time and date of filing to the rule document as provided in this section.
B. The secretary of state shall keep a permanent record of rules, preambles and economic, small business and consumer impact statements filed with the office.
§ 41-1032. Effective date of rules
A. A rule becomes effective sixty days after a certified original and two copies of the rule and preamble are filed in the office of the secretary of state and the time and date are affixed as provided in section 41-1031, unless the rule making agency includes in the preamble information that demonstrates that the rule needs to be effective immediately on filing in the office of the secretary of state and the time and date are affixed as provided in section 41-1031. A rule may only be effective immediately for any of the following reasons:
1. To preserve the public peace, health or safety.
2. To avoid a violation of federal law or regulation or state law, if the need for an immediate effective date is not created due to the agency's delay or inaction.
3. To comply with deadlines in amendments to an agency's governing statute or federal programs, if the need for an immediate effective date is not created due to the agency's delay or inaction.
4. To provide a benefit to the public and a penalty is not associated with a violation of the rule.
5. To adopt a rule that is less stringent than the rule that is currently in effect and that does not have an impact on the public health, safety, welfare or environment, or that does not affect the public involvement and public participation process.
B. Notwithstanding subsection A of this section, a rule making agency may specify an effective date more than sixty days after the filing of the rule in the office of the secretary of state if the agency determines that good cause exists for and the public interest will not be harmed by the later date.
C. This section does not affect the validity of an existing rule until the new or amended rule that is filed with the secretary of state is effective pursuant to this section.
§ 41-1033. Petition for a rule or review of a practice or policy
A. Any person, in a manner and form prescribed by the agency, may petition an agency requesting the making of a final rule or a review of an existing agency practice or substantive policy statement that the petitioner alleges to constitute a rule. The petition shall clearly state the rule, agency practice or substantive policy statement which the person wishes the agency to make or review. Within sixty days after submission of a petition, the agency shall either deny the petition in writing, stating its reasons for denial, initiate rule making proceedings in accordance with this chapter or, if otherwise lawful, make a rule.
B. A person may appeal to the council the agency's final decision within thirty days after the agency gives written notice pursuant to subsection A. The appeal shall be limited to whether an existing agency practice or substantive policy statement constitutes a rule. The council shall place this appeal on the agenda of its next meeting if at least three council members make such a request of the council chairman within two weeks after the filing of the appeal.
C. An agency practice or substantive policy statement appealed to and considered by the council pursuant to this section shall remain in effect while under consideration of the council. If the council ultimately decides the agency practice or statement constitutes a rule, the practice or statement shall be considered void.
D. A decision by the agency pursuant to this section is not subject to judicial review, except that, in addition to the procedure prescribed in this section or in lieu of the procedure prescribed in this section, a person may seek declaratory relief pursuant to section 41-1034.
§ 41-1034. Declaratory judgment
A. Any person who is or may be affected by a rule may obtain a judicial declaration of the validity of the rule by filing an action for declaratory relief in the superior court in Maricopa county in accordance with title 12, chapter 10, article 2.
B. Any person who is or may be affected by an existing agency practice or substantive policy statement that the person alleges to constitute a rule may obtain a judicial declaration on whether the practice or substantive policy statement constitutes a rule by filing an action for declaratory relief in the superior court in Maricopa county in accordance with title 12, chapter 10, article 2.
§ 41-1035. Rules affecting small businesses; reduction of rule impact
If an agency proposes a new rule or an amendment to an existing rule which may have an impact on small businesses, the agency shall consider each of the methods described in this section for reducing the impact of the rule making on small businesses. The agency shall reduce the impact by using one or more of the following methods, if it finds that the methods are legal and feasible in meeting the statutory objectives which are the basis of the proposed rule making:
1. Establish less stringent compliance or reporting requirements in the rule for small businesses.
2. Establish less stringent schedules or deadlines in the rule for compliance or reporting requirements for small businesses.
3. Consolidate or simplify the rule's compliance or reporting requirements for small businesses.
4. Establish performance standards for small businesses to replace design or operational standards in the rule.
5. Exempt small businesses from any or all requirements of the rule.
§ 41-1036. Preamble; justifications for rule making
Only the reasons contained in the preamble may be used by any party as justifications for the making of the rule in any proceeding in which its validity is at issue.
ARTICLE 4. ATTORNEY GENERAL REVIEW OF RULE MAKING
§ 41-1044. Attorney general review of certain exempt rules
A. The attorney general shall review rules that are exempt pursuant to section 41-1057.
B. Rules that are exempt pursuant to section 41-1057 shall not be filed with the secretary of state unless the attorney general approves the rule as:
1. To form.
2. Clear, concise and understandable.
3. Within the power of the agency to make and within the enacted legislative standards.
4. Made in compliance with the appropriate procedures.
C. The attorney general shall not approve a rule with an immediate effective date unless the attorney general determines that the rule complies with section 41-1032.
D. Within sixty days of receipt of the rule the attorney general shall endorse the attorney general's approval on the rule package. After approval, the attorney general shall file the rule package with the secretary of state.
E. If the attorney general determines that the rule does not comply with subsection B of this section, the attorney general shall endorse the attorney general's disapproval of the rule on the rule package, state the reasons for the disapproval and within sixty days after receipt of the rule return the rule package to the agency that made the rule.
ARTICLE 4.1. ADMINISTRATIVE RULES OVERSIGHT COMMITTEE
§ 41-1047. Committee review of rules; practices alleged to constitute rules; substantive policy statements
The committee may review any proposed or final rule, summary rule, agency practice alleged to constitute a rule or substantive policy statement for conformity with statute and legislative intent. The committee may hold hearings on whether a proposed or final rule, summary rule, agency practice alleged to constitute a rule or substantive policy statement is consistent with statute and legislative intent. The committee may comment to the agency, attorney general or council on whether the proposed or final rule, summary rule, agency practice alleged to constitute a rule or substantive policy statement is consistent with statute or legislative intent. The committee may designate a representative to testify before the council. The council shall consider the comments of the committee and any testimony. The administrative records shall contain the comments of the committee and any testimony.
§ 41-1048. Committee review of duplicative or onerous statutes, rules, practices alleged to constitute rules and substantive policy statements
A. The committee shall receive complaints concerning statutes, rules, agency practices alleged to constitute rules and substantive policy statements that are alleged to be duplicative or onerous. The committee may review any statutes, rules, agency practices alleged to constitute rules or substantive policy statements alleged to be duplicative or onerous and may hold hearings regarding the allegations. The committee may comment to an agency, the attorney general, the council or the legislature on whether the statutes, rules, agency practices alleged to constitute rules or substantive policy statements are duplicative or onerous. The comments may include committee recommendations for alleviating the duplicative or onerous aspects of the statutes, rules, agency practices alleged to constitute rules and substantive policy statements.
B. The committee shall prepare a report to the legislature by December 1 of each year recommending legislation to alleviate the effects of duplicative or onerous statutes, rules, agency practices alleged to constitute rules and substantive policy statements.
C. This section applies to all statutes, rules, agency practices alleged to constitute rules and substantive policy statements, regardless of whether the statutes, rules, agency practices alleged to constitute rules or substantive policy statements were enacted or made before or after January 1, 1996.
ARTICLE 5. GOVERNOR'S REGULATORY REVIEW COUNCIL
§ 41-1051. Governor's regulatory review council; membership; terms; compensation; powers
A. A governor's regulatory review council is established that consists of six members who are appointed by the governor and who serve at the pleasure of the governor, and the director of the department of administration or the assistant director of the department of administration who is responsible for administering the council. The director or assistant director is an ex officio member and chairperson of the council. The council shall elect a vice-chairperson to serve as chairperson in the chairperson's absence. The governor shall appoint at least one member who represents the public interest, at least one member who represents the business community, one member from a list of three persons who are not legislators submitted by the president of the senate and one member from a list of three persons who are not legislators submitted by the speaker of the house of representatives. At least one member of the council shall be an attorney licensed to practice law in this state. The governor shall appoint the members of the council for staggered terms of three years. A vacancy occurring during the term of office of any member shall be filled by appointment by the governor for the unexpired portion of the term in the same manner as provided in this section.
B. The council shall meet at least once a month at a time and place set by the chairperson and at other times and places as the chairperson deems necessary.
C. Members of the council are eligible to receive compensation in an amount of two hundred dollars for each day on which the council meets and reimbursement of expenses pursuant to title 38, chapter 4, article 2.
D. The chairperson, subject to chapter 4, articles 5 and 6 of this title, shall employ, determine the conditions of employment and specify the duties of administrative, secretarial and clerical employees as the chairperson deems necessary.
E. The council may make rules pursuant to this chapter to carry out the purposes of this chapter.
F. The council shall make the following information available to the public on request and on the council's web site:
1. A list of agency rules approved or returned pursuant to section 41-1052.
2. A list of agencies not certifying compliance as provided in section 41-1091.
3. A list of agencies that report a lack of progress pursuant to section 41-1056, subsection H.
§ 41-1052. Council review and approval
A. Before filing a final rule with the secretary of state, an agency shall prepare, transmit to the council and the committee and obtain the council's approval of the rule and its preamble and economic, small business and consumer impact statement which meets the requirements of section 41-1055.
B. Within ninety days of receipt of the rule, preamble and economic, small business and consumer impact statement, the council shall review and approve or return, in whole or in part, the rule, preamble or economic, small business and consumer impact statement. An agency may resubmit a rule, preamble or economic, small business and consumer impact statement if the council returns the rule, economic, small business and consumer impact statement or preamble, in whole or in part, to the agency.
C. The council shall not approve the rule unless:
1. The economic, small business and consumer impact statement contains the information, data and analysis prescribed by this article.
2. The economic, small business and consumer impact statement is generally accurate.
3. The probable benefits of the rule outweigh the probable costs of the rule.
4. The rule is clear, concise and understandable.
5. The rule is not illegal, inconsistent with legislative intent or beyond the agency's statutory authority.
6. The agency adequately addressed the comments on the proposed rule and any supplemental proposals.
7. The rule is not a substantial change, considered as a whole, from the proposed rule and any supplemental notices.
8. The preamble discloses a reference to any study relevant to the rule that the agency reviewed and either did or did not rely on in the agency's evaluation of or justification for the rule.
D. The council shall verify that a rule with new fees does not violate section 41-1008. The council shall not approve a rule that contains a fee increase unless two-thirds of the voting quorum present vote to approve the rule.
E. The council shall verify that a rule with an immediate effective date complies with section 41-1032. The council shall not approve a rule with an immediate effective date unless two-thirds of the voting quorum present vote to approve the rule.
F. The council may require a representative of an agency whose rule is under examination to attend a council meeting and answer questions. The council may also communicate to the agency its comments on any rule, preamble or economic, small business and consumer impact statement and require the agency to respond to its comments in writing.
G. A person may submit written comments to the council that are within the scope of subsection C, D or E of this section. The council may permit oral comments at a council meeting within the scope of subsection C, D or E of this section.
H. If the agency makes a good faith effort to comply with the requirements prescribed in this article and has explained in writing the methodology used to produce the economic, small business and consumer impact statement, the rule may not be invalidated after it is finalized on the ground that the contents of the economic, small business and consumer impact statement are insufficient or inaccurate or on the ground that the council erroneously approved the rule, except as provided for by section 41-1056.01.
I. The absence of comments pursuant to subsection C, D or E of this section or article 4.1 of this chapter does not prevent the council from acting pursuant to this section.
§ 41-1053. Council review of summary rules
A. After receipt of the summary rule package from the agency, the council shall place the summary rule on its consent agenda for approval unless a member of the council or the committee requests a hearing.
B. If a hearing is requested, the council shall act on the summary rule pursuant to section 41-1052 or shall remand the summary rule to the agency for initiation of a rule making pursuant to sections 41-1022, 41-1023 and 41-1024.
C. If the council returns the rule pursuant to section 41-1052 or remands the rule, the proposed summary rule's interim effect is revoked as of the date of initial publication of the proposed summary rule in the register unless the council orders otherwise.
D. The council, at any time a proposed summary rule is pending, may disapprove the summary rule making and order initiation of a regular rule making pursuant to sections 41-1022, 41-1023 and 41-1024. The council's disapproval of the proposed summary rule revokes the interim effect of the proposed summary rule as of the date of initial publication of the proposed summary rule in the register unless the council orders otherwise.
§ 41-1055. Economic, small business and consumer impact statement
A. The economic, small business and consumer impact summary shall include:
1. An identification of the proposed rule making.
2. A brief summary of the information included in the economic, small business and consumer impact statement.
3. If the economic, small business and consumer impact summary accompanies a proposed rule or a proposed summary rule, the name and address of agency employees who may be contacted to submit or request additional data on the information included in the economic, small business and consumer impact statement.
B. The economic, small business and consumer impact statement shall include:
1. An identification of the proposed rule making.
2. An identification of the persons who will be directly affected by, bear the costs of or directly benefit from the proposed rule making.
3. A cost benefit analysis of the following:
(a) The probable costs and benefits to the implementing agency and other agencies directly affected by the implementation and enforcement of the proposed rule making.
(b) The probable costs and benefits to a political subdivision of this state directly affected by the implementation and enforcement of the proposed rule making.
(c) The probable costs and benefits to businesses directly affected by the proposed rule making, including any anticipated effect on the revenues or payroll expenditures of employers who are subject to the proposed rule making.
4. A general description of the probable impact on private and public employment in businesses, agencies and political subdivisions of this state directly affected by the proposed rule making.
5. A statement of the probable impact of the proposed rule making on small businesses. The statement shall include:
(a) An identification of the small businesses subject to the proposed rule making.
(b) The administrative and other costs required for compliance with the proposed rule making.
(c) A description of the methods that the agency may use to reduce the impact on small businesses. These methods may include:
(i) Establishing less costly compliance requirements in the proposed rule making for small businesses.
(ii) Establishing less costly schedules or less stringent deadlines for compliance in the proposed rule making.
(iii) Exempting small businesses from any or all requirements of the proposed rule making.
(d) The probable cost and benefit to private persons and consumers who are directly affected by the proposed rule making.
6. A statement of the probable effect on state revenues.
7. A description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed rule making.
C. If for any reason adequate data are not reasonably available to comply with the requirements of subsection B of this section, the agency shall explain the limitations of the data and the methods that were employed in the attempt to obtain the data and shall characterize the probable impacts in qualitative terms. The absence of adequate data, if explained in accordance with this subsection, shall not be grounds for a legal challenge to the sufficiency of the economic, small business and consumer impact statement.
D. An agency is not required to prepare an economic, small business and consumer impact statement pursuant to this chapter for the following rule makings:
1. Initial making, but not renewal, of an emergency rule pursuant to section 41-1026.
2. Summary rule makings pursuant to section 41-1027 that only repeal existing rule language.
3. Any rule making that decreases monitoring, record keeping or reporting burdens on agencies, political subdivisions, businesses or persons, unless the agency determines that increased costs of implementation or enforcement may equal or exceed the reduction in burdens.
E. The economic, small business and consumer impact statement for a rule making that is exempt pursuant to subsection D of this section shall state that the proposed rule making is exempt.
§ 41-10
