COMMITTEE ON GOVERNMENT AND ENVIRONMENT
SENATE AMENDMENTS TO H.B. 2260
(Reference to House engrossed bill)
Page 1, between lines 1 and 2, insert:
“Section 1. 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 a performance audit, financial audit, compliance audit, procedural review, special audit, investigation or evaluation that is required by law.
2. 3. "Code" means the Arizona administrative code.
3. 4. "Committee" means the administrative rules oversight committee.
4. 5. "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. 6. "Council" means the governor's regulatory review council.
6. 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.
7. 8. "Emergency rule" means a rule that is made pursuant to section 41‑1026.
8. 9. "Fee" means a charge prescribed by an agency for an inspection or for obtaining a license.
9. 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.
10. 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.
11. 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.
12. 13. "Licensing" includes the agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal or amendment of a license.
13. 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.
14. 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.
15. 16. "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 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.
16. 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.
17. 18. "Register" means the Arizona administrative register.
18. 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.
19. 20. "Rule making" means the process for formulation and finalization of a rule.
20. 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.
21. 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.”
Renumber to conform
Page 2, between lines 40 and 41, insert:
“20. may have the person’s administrative hearing on contested cases heard by an independent administrative law judge as prescribed by title 23, chapter 4.”
Page 3, line 2, strike “CONSPICUOUSLY” insert “clearly”
Line 3, strike “IN PLAIN ENGLISH CONTAINING” insert “. the agency shall create the small business bill of rights by selecting”
Line 4, strike the comma insert “and”
Line 5, after “AGENCY-SPECIFIC” strike remainder of line
Strike lines 6 through 10
Line 11, strike “BUSINESS BILL OF RIGHTS” insert “statutes and rules”
Line 12, strike “MAY” insert “shall”; strike “AN”
Page 3, line 13, strike “ELECTRONIC” insert “a written”; after “RIGHTS” strike remainder of line
Strike lines 14, 15 and 16
Line 17, strike “THE ENFORCEMENT ACTION”
Line 18, after the first “THE” insert “agency notice of”
Line 19, after “THE” strike remainder of line
Strike lines 20 and 21, insert “AGENCY EMPLOYEES WHO ARE DESIGNATED TO ASSIST MEMBERS OF THE PUBLIC OR REGULATED COMMUNITY PURSUANT TO SECTION 41-1006. THE NOTICE MUST PROVIDE THE AGENCY'S DESIGNATED EMPLOYEE'S CONTACT INFORMATION. THE AGENCY NOTICE MUST ALSO STATE THAT IF THE REGULATED PERSON HAS ALREADY MADE A REASONABLE EFFORT WITH THE AGENCY TO RESOLVE THE PROBLEM AND STILL HAS NOT BEEN SUCCESSFUL, THE REGULATED PERSON MAY CONTACT THE OFFICE OF THE OMBUDSMAN-CITIZENS AIDE.”
Page 4, line 13, strike “THEY ARE” insert “the person is”
Lines 14 and 15, strike “REPRESENTING” insert “represent”
Lines 27 and 31, after the period insert “that”
Line 32, after “AND” insert “that”
Page 7, line 32, after “council” insert “, AND DISTRIBUTE COPIES OF THE REPORT TO THE DIRECTOR OF THE GOVERNOR’S OFFICE OF STRATEGIC PLANNING AND BUDGETING, THE CHAIRPERSON OF THE JOINT LEGISLATIVE BUDGET COMMITTEE AND THE COCHAIRPERSONS OF THE ADMINISTRATIVE RULES OVERSIGHT COMMITTEE”
Between lines 40 and 41, insert:
“(g) the number of complaints that were filed by agency for each of the categories specified in section 41-1009, subsection r.”
Page 8, strike lines 20 through 26
After line 34, insert:
“Sec. 5. Section 41-1376.01, Arizona Revised Statutes, is amended to read:
41-1376.01. Additional powers and duties; definitions
A. In addition to the powers and duties prescribed in section 41‑1376, the ombudsman‑citizens aide shall appoint two assistants, one of whom shall be an attorney, to help the ombudsman-citizens aide investigate complaints relating to public access laws involving an agency and complaints and compliance with reporting requirements pursuant to this article. The assistants shall train public officials and educate the public on the rights of the public and the responsibilities of public agencies under the public access laws. The assistants shall prepare interpretive and educational materials and programs in cooperation with the ombudsman‑citizens aide and shall distribute to elected or appointed public officials the public access laws and educational materials concerning the public access laws.
B. The annual report of the ombudsman-citizens aide shall include the following information about public access:
1. The number of inquiries that are received from the public, the media and government agencies.
2. The number of inquiries that are received about state agencies, county agencies, city or town agencies, school districts and other local jurisdictions.
3. The number of requests that are received concerning public records and public meetings.
4. The number of investigations that are conducted and the results of the investigations.
C. For investigations made pursuant to this section, the ombudsman‑citizens aide may:
1. Make inquiries and obtain information considered necessary subject to the restrictions in section 41‑1377.
2. Enter without notice to inspect agency premises with agency staff on the premises.
3. Hold hearings.
4. Notwithstanding any other law, have access to all agency records, including confidential records, except:
(a) Sealed court records without a subpoena.
(b) Active criminal investigation records.
(c) Records that could lead to the identity of confidential police informants.
(d) Attorney work product and communications that are protected under attorney-client privilege.
(e) Confidential information as defined in section 42‑2001, except as provided in section 42‑2003, subsection M.
(f) Information protected by section 6103(d), 6103(p) or 7213 of the internal revenue code.
(g) Confidential information relating to section 36‑2903, subsection I, section 36‑2917, section 36‑2932, subsection F or section 36‑2972.
(h) Confidential information relating to sections 36‑507, 36‑509 and 36‑2220.
(i) Documents that are protected by section 214 of the critical infrastructure information act of 2002 (6 United States Code section 133a) or by 49 Code of Federal Regulations part 1520.
(j) Information that is protected by section 214 of the critical infrastructure information act of 2002 (6 United States Code section 133a) or 49 Code of Federal Regulations part 1520 or critical infrastructure information as defined by section 41‑1801 on government owned facilities that are classified as critical infrastructure by the federal government or as defined by section 41‑1801.
5. Issue subpoenas if necessary to compel the attendance and testimony of witnesses and the production of books, records, documents and other evidence to which the ombudsman‑citizens aide may have access pursuant to paragraph 4 of this subsection. The ombudsman‑citizens aide may only issue a subpoena if the ombudsman‑citizens aide has previously requested testimony or evidence and the person or agency to which the request was made has failed to comply with the request in a reasonable amount of time.
D. It is contrary to the public policy of this state for any agency or any individual acting for an agency to take any adverse action against an individual in retaliation because the individual cooperated with or provided information to the ombudsman‑citizens aide or the ombudsman‑citizens aide's staff.
E. For the purposes of this section:
1. "Agency" has the same meaning prescribed in section 41‑1371 but includes a public body as defined in section 39‑121.01, subsection A, paragraph 2.
2. "Public access laws" means:
(a) Title 39, chapter 1.
(b) Title 38, chapter 3, article 3.1.
(c) Any other state statute or rule governing access to public meetings or public records.”
Amend title to conform