Assigned to GOV &                                                                                                                   FOR COMMITTEE

 

 

 

 

ARIZONA STATE SENATE

Fifty-Third Legislature, Second Regular Session

 

FACT SHEET FOR H.B. 2184

 

secretary of state; rulemaking

 

Purpose

 

Modifies Secretary of State (SOS) rulemaking requirements and notification processes.

 

Background

 

The SOS is responsible for a number of state functions including: 1) receiving bills and resolutions from the Legislature; 2) keeping a register of the official acts of the Governor; 3) certifying elections; 4) acting as custodian of the great seal of Arizona; and 5) accepting and approving electronic and digital signatures (A.R.S. § 41-121).

 

Additionally, the SOS publishes and distributes the Arizona Administrative Code (AAC) and the Arizona Administrative Register (AAR) (A.R.S. § 41-1011).   The AAC contains codified rules made by state agencies, boards and commissions upon certification by the Attorney General (AG) or approval by the Governor's Regulatory Review Council (GRRC).  The AAC also contains rules exempt from the rulemaking process or exempt from certification or approval. Upon consent of the AG, the SOS may remove a provision of a rule declared unconstitutional or invalid by a court from the AAC. Also, the SOS must remove a rule when notified by GRRC it has expired (A.R.S. § 41-1011).  

 

The AAR is published weekly and contains the rulemaking activity of agencies, including docket openings, and notices of proposed, final and emergency rules. Additionally, the AAR contains notices from agencies that are exempt from rulemaking requirements, but are still required to publish notice for both proposed and final exempt rulemaking.  Final exempt rulemaking means rulemaking in which an agency received public comment on the rulemaking regardless of whether the proposed rulemaking was published in the AAR or elsewhere by the agency as required in the exemption (A.R.S. § 41-1013).

 

Title 41, Chapter 6, Article 3 establishes the statutory requirements for agencies regarding rulemaking authority including the time and manner of rulemaking, emergency and expedited rulemaking, public notice, opportunities for stakeholder comment and final review by GRRC. Agencies must maintain a current, public rulemaking docket for each pending rulemaking proceeding.  The docket must contain information including: 1) the subject matter of the proposed rule; 2) the citation to all published notices; and 3) the status of the proposed rule (A.R.S. § 41-1021).  Before making a rule, amendment or repeal, the agency must file a notice of the proposed action with the SOS for publication in the AAR (A.R.S. § 41-1022). After publication, the agency must allow at least 30 days for public comment (A.R.S. § 41-1023).  Within 120 days after the close of the rulemaking docket, an agency must submit the rule to GRRC for approval, unless the rule is exempt from rulemaking requirements or is an emergency rule, which requires AG approval.  An agency is prohibited from filing a final rule with the SOS without approval from GRRC or the AG as outlined (A.R.S. § 41-1024).

 

Agencies and rules that are exempt from rulemaking requirements include: 1) orders or rules of the Arizona Game and Fish Commission; 2) rules concerning the internal management of an agency not directly affecting the substantive rights of the public; 3) rules made by the State Department of Corrections; and 4) the State Board of Education (A.R.S. § 41-1005).  Additionally, specified agencies that are exempt from GRRC review include: 1) an agency which headed by a single elected official; 2) the Corporation Commission; 3) the Industrial Commission of Arizona; and 4) the Arizona State Lottery (A.R.S. § 41-1057). These entities are subject to review from the AG as outlined (A.R.S. § 41-1044).

 

Statute defines rulemaking as the process for formalization and finalization of a rule and a rule as an agency’s statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of an agency (A.R.S. § 41-1001).

 

There may be a positive fiscal impact to the state General Fund associated with this legislation due to modifications in printing requirements.

 

 

Provisions

 

1.      Requires agencies that are making a final rule, exempt from rulemaking requirements, to prepare a notice following SOS formatting guidelines and requirements as outlined. 

 

AAC

 

2.      Adds that the full text of each expedited, emergency and exempt rule, filed with the SOS, must be published in the AAC.

 

3.      Requires the SOS to:

a)      remove each expired rule in the AAC as statutorily outlined;

b)      electronically publish a code supplement at least once every quarter, instead of publishing all final and exempt rules in loose-leaf form;

c)      offer an e-mail notification service when a quarterly supplement has been published including a list of published chapters and where they are posted;

d)      electronically publish the code supplement for free and establish a commercial use fee as required; and

e)      honor any paper subscription established before the end of FY 2018, until it expires.

 

4.      Specifies the SOS publication of a rule constitutes prima facie evidence that a final, emergency or exempt rule is approved.

 

Proposed rulemaking

 

5.      Requires an agency that is renumbering a rule to prepare a notice of proposed rulemaking.

 

6.      Adds that a notice of proposed rulemaking must include:

a)      the code chapter and article in which the rule is being proposed;

b)      the proposed or current rule section number; and

c)      the full text of a new rule and any amendment, renumbering or repeal of a current rule.

 

7.      Requires notices to be sent by first class mail, instead of by regular mail.

 

8.      Requires an agency to allow for a public comment period on the proposed rulemaking as follows:

a)      at least 30 days after publication of the notice of rulemaking; or

b)      for exempt proposed rulemaking, a public comment period as provided in the exemption.

9.      Requires an agency to file a notice of supplemental rulemaking with the SOS, that makes a substantial change resulting from public comment, for publication in the AAR.

 

Emergency rulemaking

 

10.  Requires the AG, if the emergency rule is in accordance with outlined standards, to create a certificate of approval and file the rule with the SOS.

 

11.  Requires the SOS to publish the emergency rule in the AAC, not just the AAR, and remove it after the 180-day-period expires.

 

12.  Modifies the process for renewing an emergency rule for an additional 180-day period by stipulating the following:

a)  adds that the agency files a renewal notice of the emergency with the AG before the preceding 180-day-period expires;

b)  further requires the AG to issue a certificate of approval and file the emergency rule with the SOS; and

c)  further requires the SOS to publish the renewal of the emergency rule in the ACC.

13.  Stipulates if an emergency rule is not established, the prior rule before the emergency is restored. 

 

Filing a petition for a rule or review

 

14.  Allows any person to petition an agency to amend or repeal a final rule, in addition to the current practice of requesting final rulemaking.

 

15.  Requires an agency's response to a petition to be open for public inspection.

 

Rulemaking exemptions

 

16.  Requires the SOS to:

a)      prescribe a uniform numbering system with reasonable discretion to determine the form and style for exempt rules filed with and published by the SOS;

b)      refuse to accept a notice of exempt rulemaking if the notice or filing does not comply with the filing requirements, numbering system, form and style as prescribed; and

c)      publish the notice of exempt rulemaking in the AAR following exemption requirements in statute or session law.

 

17.  Requires all exempt rules to be codified and published in the AAC as prescribed in statute or session law. 

 

Rulemaking for county environmental regulations

 

18.  Allows a person to petition the county in writing, instead of alleging, that an existing county agency practice or substantive policy statement constitutes a rule or ordinance.

 

19.  Directs a control officer to:

a)      prepare a notice of proposed rule or ordinance making including the full text of the rule or ordinance with the intended actions to make new sections or amend, repeal or renumber the sections of the rule or ordinance;

b)      post the notice on the county's website, instead of filing the notice with the SOS; and

c)      notify each person who made a timely request for notification as outlined.

 

20.  Specifies a control officer and the Board of Supervisors (BOS) must follow outlined procedures before repealing or renumbering a rule or ordinance.

 

21.  Allows the county to terminate a notice of proposed rule or ordinance making any time during the rule making process and requires the termination notice to be published on the county's website.

 

22.  Requires the county to prepare a notice of supplemental proposed rule or ordinance making, if it determines there is a substantial change between the proposed rule or ordinance and a final rule or ordinance, and allow for public review as outlined.

 

23.  Allows a control officer to post a meeting notice to discuss a proposed rule or ordinance on the county's website, instead of publication in the AAR.

 

24.  Modifies the concise explanatory statement as follows:

a)      requires a statement to be prepared before a notice of a final rule or a final supplemental rule is submitted to the BOS;

b)      specifies that comments on a proposed rule and the county's response must be disclosed; and

c)      removes required reasons for any change between the proposed, final or supplemental rules.

 

25.  Modifies procedures after the close of record on the proposed rule or ordinance by requiring a control officer to do the following:

a)      post a notice of termination on the county's website, if a proceeding will be terminated; or

b)      extend the rule or ordinance making process by making additional changes to the proposal and submitting them as a supplemental notice of proposed rule or ordinance making.

 

26.  Requires the BOS to place the notice on a meeting agenda before the BOS considers voting on a final notice.

 

27.  Specifies the BOS can establish a later effective date if it determines there is good cause and the public interest will not be harmed.

 

28.  Requires a control officer to post the notice of final rule or ordinance on the county's website, rather than submitting it to the SOS for publication.

 

Expedited county rule or ordinance making

 

29.  Requires a control officer to do the following:

a)      prepare a notice of expedited rule or ordinance making with a preamble as outlined, and post the notice on the county's website, instead of filing with the SOS;

b)      prepare a preamble including a summary of the arguments for and against the expedited rule or ordinance and the county's response;

c)      submit the expedited rule or ordinance making to the BOS for consideration and a vote; and

d)      post the notice on the county's website upon adoption by the BOS, rather than publication in the AAR.

 

30.  Requires the BOS to place the notice on its meeting agenda before considering a vote on an expedited rule or ordinance making.

 

31.  Stipulates a control officer must maintain an archive with a record for each proposed and final rule that are posted on the county's website. 

 

32.  Specifies the county archive must contain a copy of any documents or meeting minutes submitted to the BOS.

 

33.  Modifies a control officer's responsibilities by requiring them to:

a)      post substantive policy statements on the county's website, instead of filing in the AAR; and

b)      post a directory summarizing all applicable rules or ordinances and substantive policy statements on the county's website, instead of publishing in paper format.

 

Miscellaneous

 

34.  Repeals the requirement that the SOS establish a no trespass public notice list identifying employers who established private property rights to their establishment and any real property in the state.

 

35.  Removes the requirement for the SOS to indelibly mark each book delivered to state officers with the county name and officer designation.

 

36.  Repeals the Arizona Blue Book Revolving Fund (Fund) and transfers all remaining monies in the Fund to the state General Fund.

 

37.  Repeals the requirement that the SOS biennially publish and distribute the Arizona Blue Book.

 

38.  Allows the SOS or designee to certify any publicly recorded document with the state seal, upon request.

 

39.  Permits the SOS to charge a copy fee per page and a certified copy fee as outlined.

 

40.  Eliminates the requirement that each state and local agency submit a list of public records in their custody deemed not needed for the transaction of business and that do not have administrative, legal or fiscal value to be included in disposal schedules.

 

41.  Specifies rulemaking means the processes to make a new rule or amend, repeal or renumber a rule. 

 

42.  Defines notice of exempt rulemaking and published.

 

43.  Makes technical and conforming changes.

 

44.  Becomes effective on the general effective date.

 

House Action

 

GOV               1/25/18     DPA     5-3-0-0

3rd Read          2/15/18                  53-4-3

 

Prepared by Senate Research

February 26, 2018

JO/lat