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Senate Engrossed House Bill |
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State of Arizona House of Representatives Fifty-third Legislature Second Regular Session 2018
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CHAPTER 178
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HOUSE BILL 2184 |
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AN ACT
Repealing section 23-1326, Arizona Revised Statutes; amending section 41‑124, Arizona Revised Statutes; repealing section 41-131, Arizona Revised Statutes; amending title 41, chapter 1, article 2, Arizona Revised Statutes, by adding a new section 41-131; amending sections 41-151.14, 41‑1001, 41-1005, 41-1012, 41-1022, 41-1026 and 41-1033, Arizona Revised Statutes; amending title 41, Arizona Revised Statutes, by adding chapter 6.2; amending sections 49‑471.01, 49-471.04, 49‑471.06, 49‑471.07, 49‑471.08, 49‑471.09 and 49‑471.11, Arizona Revised Statutes; appropriating monies; relating to rulemaking.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Repeal
Section 23-1326, Arizona Revised Statutes, is repealed.
Sec. 2. Section 41-124, Arizona Revised Statutes, is amended to read:
41-124. Receipt and record of documents received
A. All documents when delivered to The secretary of state shall be receipted for by him provide a receipt of delivery for any document that is delivered to the secretary of state and when distributed his records shall show record the number of documents delivered, to whom delivered and the date of delivery.
B. The secretary of state shall indelibly mark each book delivered to officers in this state, with the name of the county and designation of the officer. The books shall remain the property of the state.
Sec. 3. Repeal; transfer of monies
A. Section 41-131, Arizona Revised Statutes, is repealed.
B. All unexpended and unencumbered monies remaining in the Arizona blue book revolving fund established by section 41-131, Arizona Revised Statutes, as repealed by subsection A of this section, are transferred to the state general fund on the effective date of this section.
Sec. 4. Title 41, chapter 1, article 2, Arizona Revised Statutes, is amended by adding a new section 41-131, to read:
41-131. Certified copies; fee
A. on request, the secretary of state or the secretary's designee may certify under the great seal of the state of Arizona any PUBLICLY recorded document filed pursuant to this article.
B. The secretary of state may charge a copy fee per page pursuant to section 39-121.o1 and shall charge a certified copy fee pursuant to section 41-126, subsection A, paragraph 10.
Sec. 5. Section 41-151.14, Arizona Revised Statutes, is amended to read:
41-151.14. State and local public records management; violation; classification; definition
A. The head of each state and local agency shall:
1. Establish and maintain an active, continuing program for the economical and efficient management of the public records of the agency.
2. Make and maintain records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency designed to furnish information to protect the rights of the this state and of persons directly affected by the agency's activities.
3. Submit to the director, in accordance with established standards, schedules proposing the length of time each record series warrants retention for administrative, legal or fiscal purposes after it has been received by the agency.
4. Submit a list of public records in the agency's custody that are not needed in the transaction of current business and that are not considered to have sufficient administrative, legal or fiscal value to warrant their inclusion in established disposal schedules.
5. 4. Once every five years submit to the director lists of all essential public records in the custody of the agency.
6. 5. Cooperate with the director in the conduct of surveys.
7. 6. Designate an individual within the agency to manage the records management program of the agency. The agency shall reconfirm the identity of this individual to the state library every other year. The designated individual:
(a) Must be at a level of management sufficient to direct the records management program in an efficient and effective manner.
(b) Shall act as coordinator and liaison for the agency with the state library.
8. 7. Comply with rules, standards and procedures adopted by the director.
B. The governing body of each county, city, town or other political subdivision shall promote the principles of efficient record management for local public records. Such The governing body, as far as practicable, shall follow the program established for the management of state records. The director, on request of the governing body, shall provide advice and assistance in the establishment of a local public records management program.
C. A head of a state or local agency who violates this section is guilty of a class 2 misdemeanor.
D. For the purposes of this section, "records management" means the creation and implementation of systematic controls for records and information activities from the point where they are created or received through final disposition or archival retention, including distribution, use, storage, retrieval, protection and preservation.
Sec. 6. Section 41-1001, Arizona Revised Statutes, is amended to read:
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. "Audit" means an audit, investigation or inspection pursuant to title 23, chapter 2 or 4.
3. "Code" means the Arizona administrative code, which is Published pursuant to section 41-1011.
4. "Committee" means the administrative rules oversight committee.
5. "Contested case" means any proceeding, including rate making, except rate making pursuant to article XV, Constitution of Arizona, 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.
6. "Council" means the governor's regulatory review council.
7. "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.
8. "Emergency rule" means a rule that is made pursuant to section 41‑1026.
9. "Fee" means a charge prescribed by an agency for an inspection or for obtaining a license.
10. "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 expedited rules pursuant to section 41‑1027.
11. "General permit" means a regulatory permit, license or agency authorization that is for facilities, activities or practices in a class that are substantially similar in nature and that is issued or granted by an agency to a qualified applicant to conduct identified operations or activities if the applicant meets the applicable requirements of the general permit, that requires less information than an individual or traditional permit, license or authorization and that does not require a public hearing.
12. "License" includes the whole or part of any agency permit, certificate, approval, registration, charter or similar form of permission required by law, but does not include a license required solely for revenue purposes.
13. "Licensing" includes the agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal or amendment of a license.
14. "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.
15. "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.
16. "Preamble" means:
(a) For any rulemaking 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 rulemaking.
(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 an expedited 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 expedited 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.
17. "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.
18. "Register" means the Arizona administrative register, which is:
(a) this state's official publication of rulemaking notices that are filed with the office of secretary of state.
(b) Published pursuant to section 41-1011.
19. "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.
20. "Rulemaking" means the process for formulation and finalization of to make a new rule or amend, repeal or renumber a rule.
21. "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.
22. "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.
Sec. 7. Section 41-1005, Arizona Revised Statutes, is amended to read:
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 or rule of the Arizona game and fish commission that does the following:
(a) Opens, closes or alters seasons or establishes bag or possession limits for wildlife.
(b) Establishes a fee pursuant to section 5‑321, 5‑322 or 5‑327.
(c) Establishes a license classification, fee or application fee pursuant to title 17, chapter 3, article 2.
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 youths 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. Fees established under sections 41‑4010 and 41‑4042.
14. Rule or other matter relating to agency contracts.
15. Fees established under section 32‑2067 or 32‑2132.
16. Rules made pursuant to section 5‑111, subsection A.
17. 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.
18. Fees or charges established under section 41‑511.05.
19. Emergency medical services protocols except as provided in section 36‑2205, subsection B.
20. Fee schedules established pursuant to section 36‑3409.
21. Procedures of the state transportation board as prescribed in section 28‑7048.
22. Rules made by the state department of corrections.
23. Fees prescribed pursuant to section 32‑1527.
24. Rules made by the department of economic security pursuant to section 46‑805.
25. Schedule of fees prescribed by section 23‑908.
26. Procedure that is established pursuant to title 23, chapter 6, article 6.
27. Rules, administrative policies, procedures and guidelines adopted for any purpose by the Arizona commerce authority pursuant to chapter 10 of this title if the authority provides, as appropriate under the circumstances, for notice of an opportunity for comment on the proposed rules, administrative policies, procedures and guidelines.
28. Rules made by a marketing commission or marketing committee pursuant to section 3‑414.
29. Administration of public assistance program monies authorized for liabilities that are incurred for disasters declared pursuant to sections 26‑303 and 35‑192.
30. User charges, tolls, fares, rents, advertising and sponsorship charges, services charges or similar charges established pursuant to section 28‑7705.
31. Administration and implementation of the hospital assessment pursuant to section 36-2901.08, except that the Arizona health care cost containment system administration must provide notice and an opportunity for public comment at least thirty days before establishing or implementing the administration of the assessment.
32. Rules made by the Arizona department of agriculture to adopt and implement the provisions of the federal milk ordinance as prescribed by section 3‑605.
B. Notwithstanding subsection A, paragraph 21 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 final rule pursuant to an exemption from the applicability of this chapter under this section, another statute or session law, the agency shall:
1. Prepare a notice and follow formatting guidelines prescribed by the secretary of state.
2. Prepare the rulemaking exemption notices pursuant to chapter 6.2 of this title.
3. File a copy of the rule with the secretary of state for publication pursuant to section 41‑1012 and provide a copy to the council.
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.
Sec. 8. Section 41-1012, Arizona Revised Statutes, is amended to read:
41-1012. Code; publication of rules; notification
A. The code shall contain the full text of each final, expedited and emergency rule filed with the secretary of state and each exempt rule made filed with the secretary of state to be published pursuant to a statutory exemption from the applicability of this chapter. The secretary of state shall remove each expired rule as prescribed in section 41‑1011, subsection C.
B. The secretary of state shall electronically 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 a code supplement. Publication of a rule by the secretary of state as provided in this section constitutes prima facie evidence of the making, approving and filing of the a final, emergency or exempt 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 shall offer an e-mail service for persons to receive notification when a quarterly supplement has been published. The service shall include a list of chapters published and where the chapters are posted.
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.
D. The secretary of state shall publish the code electronically for free. The secretary of state shall establish a commercial use fee pursuant to section 39-121.03. The secretary of state shall honor Any paper subscription in place by the end of fiscal year 2017-2018 until the subscription expires.
Sec. 9. Heading change
The article heading of title 41, chapter 6, article 3, Arizona Revised Statutes, is changed from "rule making" to "rulemaking".
Sec. 10. Section 41-1022, Arizona Revised Statutes, is amended to read:
41-1022. Notice of proposed rulemaking; contents of notice
A. Before rule making, amendment An agency shall prepare a notice of proposed rulemaking to make, amend, renumber or repeal, a rule. the agency shall follow formatting guidelines prescribed by the secretary of state in the preparation of the notice. The agency shall file a the notice of the proposed action with the secretary of state. The notice shall include all of the following:
1. The preamble.
2. The code chapter and article in which the rule is being proposed.
3. The proposed or current rule section number.
2. 4. The exact wording of the rule, including the full text of a new rule and any amendment to, renumbering of or repeal of a current 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 publish the notice in the register pursuant to section 41‑1013.
C. At the same time When the agency files a the notice of the proposed rule making with the secretary of state, the agency shall notify by regular first class mail, telefacsimile fax or electronic mail e-mail each person who has made a timely request to the agency for requested notification of the proposed rule making rulemaking and to each person who has requested notification of all proposed rule makings rulemakings. 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 rulemakings 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.
D. An agency shall allow for and accept public comment on the proposed rulemaking as prescribed in section 41-1023, subsection B. If the proposed rulemaking is exempt from the rulemaking requirements, the agency shall allow for and accept public comment as provided under the exemption.
E. If, as a result of public comments or internal review, an agency determines that a proposed rule requires a substantial change pursuant to section 41‑1025, the agency shall issue prepare a notice of supplemental notice containing rulemaking that contains the changes change in the proposed rule. The agency shall provide for additional public comment pursuant to section 41‑1023 and file the notice with the secretary of state. The secretary of state shall publish the notice in the register pursuant to section 41-1013.
Sec. 11. Section 41-1026, Arizona Revised Statutes, is amended to read:
41-1026. Emergency rulemaking
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 after 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 If the emergency is in accordance with the standards in section 41-1044, the attorney general shall create a certificate of approval and file the rule with the secretary of state. , The secretary of state shall publish the rule in the register as provided in section 41‑1013 and publish the rule in the code.
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 The emergency may be renewed for one more one hundred eighty day eighty-day period if all of the following occur requirements are met:
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 AGENCY files a notice of the renewal of the emergency with the attorney general pursuant to this section before the expiration of the preceding one hundred eighty-day period.
4. The agency has issued makes the rule as a proposed rule or has issued an alternative proposed rule pursuant to section 41‑1022.
5. The agency seeks receives approval of the renewal from the attorney general before the expiration of the preceding one hundred eighty day eighty-day period.
6. The agency files notice of the renewal and any required attorney general approval creates a certificate of approval and files the rule with the secretary of state. and notice is published the secretary of state shall publish the renewal of the emergency rule in the register as provided in section 41-1013 and publish the rule in the code.
E. A rule that is made pursuant to this chapter and that replaces a shall repeal an emergency rule made, amended or repealed pursuant to this section shall expressly repeal the rule replaced if it has not expired if the emergency is still effective within the one hundred eighty-day period.
F. On expiration of the one hundred eighty-day period, the secretary of state shall remove the emergency rule from the code. If a rule has not been made pursuant to subsection E of this section, the rule in place before the emergency is restored.
Sec. 12. Section 41-1033, Arizona Revised Statutes, is amended to read:
41-1033. Petition for a rule or review of an agency practice, substantive policy statement or final rule; notice
A. Any person, in a manner and form prescribed by the agency, may petition an agency to request the making of a final rule or a to do either of the following:
1. Make, amend or repeal a final rule.
2. Review of an existing agency practice or substantive policy statement that the petitioner alleges to constitute a rule.
B. An agency shall prescribe the form of the petition and the procedures for the petition's submission, consideration and disposition. The petition person shall clearly state on the petition the rule, rulemaking to review or the agency practice or substantive policy statement that the person wishes the agency to make or review to consider making into a rule.
C. Within Not later than sixty days after submission of a the petition, the agency shall either:
1. deny Reject the petition in writing, stating and state its reasons in writing for denial, to the petitioner.
2. Initiate rulemaking proceedings in accordance with this chapter. or,
3. If otherwise lawful, make a rule.
D. The agency's response to the petition is open to public inspection.
B. E. A person may appeal to the council the agency's final decision within If an agency rejects a petition pursuant to subsection C of this section, the petitioner has thirty days after the agency gives written notice pursuant to subsection A of this section. The appeal shall be limited to APPEAL to the council to review whether an the existing agency practice or substantive policy statement constitutes a rule. The council chairperson shall place this appeal on the agenda of the council's next meeting if at least three council members make such a request of the council chairperson within two weeks after the filing of the appeal.
C. F. A person may petition the council to request a review of a final rule based on the person's belief that the final rule does not meet the requirements prescribed in section 41‑1030.
D. G. If the council receives information indicating that indicates an existing agency practice or substantive policy statement may constitute a rule or that a final rule does not meet the requirements prescribed in section 41‑1030 and at least four council members request of the chairperson that the matter be heard in a public meeting:
1. Within ninety days of after receipt of the fourth council member member's request, the council shall determine whether the agency practice or substantive policy statement constitutes a rule or whether the final rule meets the requirements prescribed in section 41‑1030.
2. Within ten days of after receipt of the fourth council member member's request, the council shall notify the agency that the matter has been or will be placed on an agenda.
3. Within Not later than thirty days of after receiving notice from the council, the agency shall submit a statement to the council that addresses whether the existing agency practice or substantive policy statement constitutes a rule or whether the final rule meets the requirements prescribed in section 41‑1030.
E. H. For the purposes of subsection D G of this section, the council meeting shall not be held scheduled until the expiration of the agency response period prescribed in subsection D G, paragraph 3 of this section.
F. I. An agency practice, substantive policy statement or final rule 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 substantive policy statement constitutes a rule or that the final rule does not meet the requirements prescribed in section 41‑1030, the practice, policy statement or rule shall be considered void.
G. J. A council decision pursuant to this section shall include findings of fact and conclusions of law, separately stated. Conclusions of law shall specifically address the agency's authority to act consistent with section 41‑1030.
H. K. 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.
I. L. Each agency and the secretary of state shall post prominently on their website websites notice of an individual's right to petition the council for review pursuant to this section.
Sec. 13. Heading change
The article heading of title 41, chapter 6, article 4, Arizona Revised Statutes, is changed from "attorney general review of rule making" to "attorney general review of rulemaking".
Sec. 14. Title 41, Arizona Revised Statutes, is amended by adding chapter 6.2, to read:
CHAPTER 6.2
RULEMAKING EXEMPTIONS
ARTICLE 1. GENERAL PROVISIONS
41-1097. Definitions
A. The definitions in section 41-1001 apply to this chapter.
B. In this chapter, unless the context otherwise requires:
1. "Notice of exempt rulemaking" means a notice of:
(a) An exemption pursuant to section 41-1005, except those exemptions that require notice and an opportunity for public comment.
(b) An exemption pursuant to section 41-1057.
(c) A rule adopted pursuant to an exemption, as provided exclusively to an agency in statute or session law, from all requirements of the act.
2. "Published" means a rulemaking that has been printed and distributed by an agency or posted on an agency's website or filed by an agency and published in the register or a combination of any of these requirements as provided in statute or session law.
41-1097.01. Filing and publication of exempt rules
A. The secretary of state shall prescribe a uniform numbering system and have reasonable discretion to determine the form and style for exempt rules filed with and published by the secretary of state's office. The secretary of state shall refuse to accept a notice of exempt rulemaking if the notice or filing does not comply with the secretary of state's prescribed filing requirements, NUMBERING system, form and style.
B. If an agency files a notice of exempt rulemaking, the secretary of state shall publish the notice in the register pursuant to the exemption requirements prescribed in statute or session law.
C. All exempt rules shall be codified and published in the code only as prescribed in statute or session law.
Sec. 15. Section 49-471.01, Arizona Revised Statutes, is amended to read:
49-471.01. Regulatory bill of rights
A. To ensure fair and open regulation under this article by counties, a person:
1. Is eligible for reimbursement of fees and other expenses if the person substantially prevails by adjudication on the merits against a county in a court proceeding or an administrative appeal brought pursuant to this article.
2. Is entitled to have a county not charge the person a fee unless the fee for the specific activity is expressly authorized as provided in section 49‑471.02.
3. Is entitled to receive the information and notice regarding inspections prescribed in section 49‑471.03.
4. May review the full text or summary of all notices of rule or ordinance making activity and the summary of substantive policy statements in the register posted on the county's website as provided in sections 49‑471.04, 49‑471.08, 49‑471.09 and 49‑471.11.
5. May participate in the rule or ordinance making process as provided in this article, including providing an opportunity to provide written or oral comments on notices of proposed rules rule or ordinances ordinance making as provided in sections 49‑471.06 and 49‑471.08, and having the a control officer adequately address those respond to comments as provided in sections 49‑471.07 and 49‑471.08.
6. May allege petition the county in writing that an existing county agency practice or substantive policy statement constitutes a rule or ordinance and have that county agency practice or substantive policy statement be declared void because the practice or substantive policy statement constitutes a rule or ordinance as an appealable agency action under section 49‑471.15 or as provided in sections 49‑471.12 and 49‑497.
7. Is entitled to have the a control officer not base a permitting decision under this article in whole or in part on conditions or requirements that are not specifically authorized by a provision of this state's law as provided in section 49‑471.10, subsection C.
8. Is entitled to have the a control officer identify the legal authority for each condition in a permit issued under this article as provided in section 49‑471.10, subsection C.
9. Is entitled to have a county not make a rule or ordinance under a general grant of rule or ordinance making authority to supplement a more specific grant of rule or ordinance making authority as provided in section 49‑471.10, subsection D.
10. May inspect all rules or ordinances and substantive policy statements of a county, including a directory of documents, in the office of the county control officer as provided in section 49‑471.11.
11. May have the a control officer approve or deny the person's permit application within a predetermined period of time as provided in section 49‑471.13.
12. May have appealable agency actions heard by a hearing board or administrative law judge as provided in section 49‑471.15.
13. May have administrative appeal hearings governed by uniform administrative procedures as set forth in section 49‑496 for appeals to the hearing board and title 41, chapter 6, article 10 for appeals to an administrative law judge as provided in section 49‑471.15.
14. Is entitled to request the a control officer to waive overly burdensome permit procedures and requirements for sources that are not required to obtain a title V permit as provided in section 49‑480, subsection M.
15. Is entitled to obtain judicial review of decisions by the a hearing board, the an administrative law judge or the a control officer in appropriate cases as provided in sections 49‑497, 49‑497.01 and 49‑497.02.
16. Is entitled, with the county’s concurrence, to enter settlement agreements with the county to resolve compliance matters without the need for an order, action in court or allegation or finding of violation as provided in section 49‑511.
B. The reference to rights in subsection A of this section does not grant any additional rights that are not prescribed in the other sections of this article.
Sec. 16. Section 49-471.04, Arizona Revised Statutes, is amended to read:
49-471.04. Notice of proposed rule or ordinance making
A. Before a board of supervisors adopts or amends acts on a rule or ordinance that is subject to section 49‑112, subsection A or a rule or ordinance that does not otherwise qualify under section 41‑471.08 49‑471.08, subsection A, the a control officer shall:
1. File Prepare a notice of a proposed rule or ordinance making with the secretary of state for publication in the register. The secretary of state shall publish the notice in the next issue of the register at no cost to the county. The notice shall include both:
(a) The A preamble as prescribed in section 49‑471.05.
(b) The exact wording full text of the rule or ordinance, including the intended actions to make new sections or amend, repeal or renumber the sections of the rule or ordinance.
2. At the time the control officer files a Post the notice of the proposed rule or ordinance making with the secretary of state on the county's website, . On posting, the control officer shall notify by regular first class mail, fax or electronic mail e-mail each person who has made a timely request to the county for notification of the proposed rule or ordinance making and to each person who has requested notification of all proposed rule or ordinance makings. A county may provide the notification prescribed in this paragraph in a periodic newsletter. The A control officer may purge the control officer's list of persons requesting who requested notification of proposed rule or ordinance makings once each year by providing notice of the purge in the manner prescribed in this paragraph.
B. Before adopting or amending making, amending, repealing or renumbering a rule or ordinance pursuant to section 49‑112, subsection B, a control officer and board of supervisors shall follow the procedure established in this section or in section 49‑471.08.
C. The county may terminate a notice of proposed rule or ordinance making at any time during the rule or ordinance making process and shall publish the notice of termination on the county's website.
D. If the county determines that there is a substantial change between the proposed rule or ordinance making and a final rule or ordinance making, the county shall prepare a notice of supplemental proposed rule or ordinance making for public review pursuant to the requirements under subsection A, paragraphs 1 and 2 of this section.
Sec. 17. Section 49-471.06, Arizona Revised Statutes, is amended to read:
49-471.06. Public participation; written statements; oral proceedings
A. A control officer may meet informally meet with any interested party for the purpose of discussing to discuss a proposed rule or ordinance making action. The A control officer may solicit comments, suggested language or other input on the proposed rule or ordinance. The A control officer may publish post notice of these meetings in the register at no cost to the county on the county's website.
B. For at least thirty days after publication posting of the notice of the proposed rule or ordinance making on the county's website, the a control officer shall afford persons the opportunity to submit in writing accept written statements, arguments, data and views on the preamble and proposed rule or ordinance and preamble, with or without the opportunity to present them orally.
C. Before adopting or amending a rule or ordinance pursuant to section 49‑471.04, subsection A, a control officer shall schedule an oral proceeding on a proposed rule or ordinance if, A person may request in writing to a control officer, within thirty days after the published posted notice, an oral proceeding to provide verbal comments on the notice of proposed rule or ordinance making, a written request for an oral proceeding is submitted to the county.
D. If a control officer receives a request pursuant to subsection C of this section, the control officer shall schedule an oral proceeding on a the proposed rule or ordinance. may not be held earlier than A control officer shall prepare a notice of oral proceeding and shall allow for at least thirty days after between the date of posting the notice of its location and time is published in the register on the county's website and the date of the proceeding. The A notice for the an oral proceeding may be published posted concurrently with the a notice inviting comment generally. The A control officer shall determine a location and time for the oral proceeding that 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 or ordinance, and persons may ask questions regarding the proposed rule or ordinance and present oral argument, data and views on the proposed rule or ordinance.
E. The A control officer, or the a control officer's designee, shall preside at over an oral proceeding on a proposed rule or ordinance. Oral proceedings shall be open to the public and minutes shall be recorded by stenographic or other means.
F. The board of supervisors may adopt rules or ordinances for the conduct of oral proceedings.
Sec. 18. Section 49-471.07, Arizona Revised Statutes, is amended to read:
49-471.07. Time and manner of rule or ordinance making
A. A board of supervisors may not act on a rule or ordinance until the rule or ordinance making record is closed pursuant to subsection E of this section.
B. At the time A control officer submits a rule or ordinance to the board of supervisors, the control officer shall issue shall prepare a PREAMBLE and a concise explanatory statement containing before submitting a notice of final rule or ordinance or notice of final supplemental rule or ordinance to the board. The concise explanatory statement shall contain:
1. An indication A description of any change between the text of the proposed rule or ordinance or preamble contained in the notice of proposed rule or ordinance, making published in the register and the text of the rule or ordinance submitted to the board of supervisors, with the reasons for any change the final rule or ordinance or notice of final supplemental rule or ordinance.
2. An evaluation A summary of the comments and arguments for and against the rule or ordinance, including a response to comments received on the proposed rule or ordinance or preamble and any supplemental notices notice and the county's response to the comments and arguments.
C. The board of supervisors shall not adopt A final rule or ordinance that is substantially different from the proposed rule or ordinance contained in the notice of proposed rule or ordinance making. If the rule or ordinance is substantially different from the proposed rule or ordinance, the board of supervisors shall terminate the rule or ordinance making proceeding and commence a new rule or ordinance making proceeding by filing a new notice of proposed rule or ordinance making, or the board of supervisors may file shall be either resubmitted as a supplemental notice of proposed rule or ordinance making or terminated pursuant to section 49‑471.04, subsections C and D.
D. In determining The following shall be considered to determine whether a final rule or ordinance is substantially different from the published proposed rule or ordinance on which it is required to be based, all of the following shall be considered posted on the county's website:
1. The extent to which all persons affected by the rule or ordinance should have understood that the published proposed rule or ordinance posted on the county's website would affect their interests.
2. The extent to which the subject matter of the rule or ordinance or the issues determined by that rule or ordinance are different from the subject matter or issues involved in the published proposed rule or ordinance posted on the county's website.
3. The extent to which the effects of the rule or ordinance differ from the effects of the published proposed rule or ordinance posted on the county's website if it had been made instead.
E. Within one hundred twenty days after the close of the record on the proposed rule or ordinance making, a control officer shall take one of the following actions:
1. Submit the final rule or ordinance to the board of supervisors for consideration of adoption and a vote.
2. Continue or Terminate the proceeding by publication of posting a notice to that effect in the register of termination on the county's website.
3. Extend the rule or ordinance making process by making additional changes to the proposal and submitting the changes as a supplemental notice of proposed rule or ordinance making.
F. Before the board of supervisors considers the vote on a final notice pursuant to subsection E, paragraph 1 of this section, the board shall place the notice on its meeting agenda. On the board's approval, a final rule or ordinance is effective on the date the board of supervisors adopts the final rule or ordinance. , unless The board of supervisors specifies may specify a later effective date if the board determines that good cause exists for and the public interest will not be harmed by a later effective date.
G. Within thirty days after adoption by the board of supervisors of the notice of final rule or ordinance, the a control officer shall submit a post the notice to the secretary of state for publication in the next register on the county's website. The notice shall contain the preamble and text of the final rule or ordinance. The secretary of state shall publish the notice in the next issue of the register at no cost to the county.
Sec. 19. Section 49-471.08, Arizona Revised Statutes, is amended to read:
49-471.08. Expedited rule or ordinance making
A. The county may conduct expedited rule or ordinance making if a rule or ordinance is adopted made pursuant to section 49‑112, subsection B, and the proposed rule or ordinance is a conforming change to directly reflect federal or state rule or law, the rule or ordinance making may be declared an expedited rule or ordinance making and is not subject to section 49‑471.07, except as otherwise provided in this section, and if all of the following apply requirements are met:
1. The rule or ordinance making is substantially identical to the sense, meaning and effect of the federal or state rule or law from which it is derived.
2. The A control officer makes a written finding setting forth the reasons why the rule or ordinance making is necessary and does not alter the sense, meaning or effect of the federal or state rule or law from which it is derived.
3. Fees established in the rule or ordinance do not exceed limits specified in section 49‑112.
B. For ordinances and rules that meet the requirements of subsection A of this section, the control officer shall file a notice with the secretary of state for publication in the register If the requirements of subsection A of this section are met, a control officer shall prepare a notice of expedited rule or ordinance making. The notice shall contain a preamble, the full text of the proposed rule or ordinance, and the written finding required pursuant to subsection A, paragraph 2 of this section. The secretary of state shall publish the notice in the next issue of the register at no cost to the county. The control officer shall post the notice on the county's website.
C. For at least thirty days after the date of publication in the register posting the notice of expedited rule or ordinance making on the county's website, the a control officer shall accept public comment on the proposed expedited rule or ordinance making.
D. Subject to section 49-471.07, subsections C and D after consideration of any comments, the a control officer shall submit prepare a preamble to include a summary of the arguments for and against the expedited rule or ordinance to the board of supervisors for making and the county's response to the comments and arguments. A control officer shall submit the expedited rule or ordinance making to the board of supervisors for consideration of adoption and a vote. Before the board of supervisors considers the vote on an expedited rule or ordinance making, the board shall place the notice on its meeting agenda. On the board's approval the expedited rule or ordinance is effective on adoption by the board of supervisors the date the board adopts the expedited rule or ordinance.
E. After adoption by the board of supervisors, the a control officer shall submit a notice to the secretary of state for publication in the next issue of the register. post the notice on the county's website. The notice shall contain the full text of the final expedited rule or ordinance and the finding required pursuant to subsection A, paragraph 2 of this section. The secretary of state shall publish the notice in the next issue of the register at no cost to the county.
Sec. 20. Section 49-471.09, Arizona Revised Statutes, is amended to read:
49-471.09. County rule or ordinance making record
A. A control officer shall maintain for public inspection an official archive of a rule or ordinance making record for each proposed rule or ordinance for which a notice is published in the register posted on the county's website and each final rule or ordinance filed with the office of the secretary of state posted on the county's website.
B. The county archive of a rule or ordinance making record shall contain all of the following:
1. Copies of all publications in the register postings on the county's website with respect to the rule or ordinance.
2. All written petitions, requests, submissions and comments received by the county and all other written materials considered or prepared by the a control officer in connection with the rule or ordinance.
3. Any official transcript of oral presentations made in the proceeding on which the rule or ordinance is based, and any tape recording or stenographic record of those presentations, and any memorandum summarizing the contents of those presentations.
4. A copy of any materials, documents or meeting minutes submitted to the board of supervisors.
5. A copy of the final rule or ordinance adopted by the board of supervisors and the preamble, concise explanatory statement and response to comments.
Sec. 21. Section 49-471.11, Arizona Revised Statutes, is amended to read:
49-471.11. Substantive policy statements; directory of rules and policy statements
A. A control officer shall file post substantive policy statements pertaining to this article in the register in accordance with section 41‑1013, subsection B on the county's website.
B. The a control officer shall publish post on the county's website at least annually a directory summarizing the subject matter of all currently applicable rules or ordinances and substantive policy statements pertaining to this article. The A control officer shall keep copies of this directory and all of its substantive policy statements at one location. The directory, rules or ordinances, substantive policy statements and any materials incorporated by reference in the directory, rules or ordinances or substantive policy statements shall be open to public inspection at the office of the control officer.
C. On or before June 30 of each year, the a control officer shall certify to the board of supervisors that the county is in compliance with this section.
APPROVED BY THE GOVERNOR APRIL 11, 2018.
FILED IN THE OFFICE OF THE SECRETARY OF STATE APRIL 11, 2018.