Arizona Laws 41-1033. Petition for a rule or review of an agency practice, substantive policy statement, final rule or unduly burdensome licensing requirement; notice
A. Any person may petition an agency to do either of the following:
Terms Used In Arizona Laws 41-1033
- 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. See Arizona Laws 41-1001
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Council: means the governor's regulatory review council. See Arizona Laws 41-1001
- 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. See Arizona Laws 41-1001
- including: means not limited to and is not a term of exclusion. See Arizona Laws 1-215
- Licensing: includes the agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal, change, reduction, modification or amendment of a license, including an existing permit, certificate, approval, registration, charter or similar form of permission, approval or authorization obtained from an agency by the holder of a license. See Arizona Laws 41-1001
- 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. See Arizona Laws 41-1001
- 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. See Arizona Laws 41-1001
- 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. See Arizona Laws 41-1001
- Rulemaking: means the process to make a new rule or amend, repeal or renumber a rule. See Arizona Laws 41-1001
- Statute: A law passed by a legislature.
- 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. See Arizona Laws 41-1001
- Writing: includes printing. See Arizona Laws 1-215
1. Make, amend or repeal a final rule.
2. Review 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 person shall state on the petition the rulemaking to review or the agency practice or substantive policy statement to consider revising, repealing or making into a rule.
C. Not later than sixty days after submission of the petition, the agency shall either:
1. Reject the petition and state its reasons in writing for rejection to the petitioner.
2. Initiate rulemaking proceedings in accordance with this chapter.
3. If otherwise lawful, make a rule.
D. The agency’s response to the petition is open to public inspection.
E. If an agency rejects a petition pursuant to subsection C of this section, the petitioner has thirty days to appeal to the council to review whether the existing agency practice or substantive policy statement constitutes a rule. The petitioner’s appeal may not be more than five double-spaced pages.
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. A petition submitted under this subsection may not be more than five double-spaced pages.
G. A person may petition the council to request a review of an existing agency practice, substantive policy statement, final rule or regulatory licensing requirement that the petitioner alleges is not specifically authorized by statute, exceeds the agency’s statutory authority, is unduly burdensome or is not demonstrated to be necessary to specifically fulfill a public health, safety or welfare concern. On receipt of a properly submitted petition pursuant to this section, the council shall review the existing agency practice, substantive policy statement, final rule or regulatory licensing requirement as prescribed by this section. A petition submitted under this subsection may not be more than five double-spaced pages. This subsection does not apply to an individual or institution that is subject to Title 36, Chapter 4, Article 10 or chapter 20.
H. If the council receives information that alleges an existing agency practice or substantive policy statement may constitute a rule, that a final rule does not meet the requirements prescribed in section 41-1030 or that an existing agency practice, substantive policy statement, final rule or regulatory licensing requirement exceeds the agency’s statutory authority, is not specifically authorized by statute or does not meet the guidelines prescribed in subsection G of this section, or if the council receives an appeal under subsection E of this section, and at least three council members request of the chairperson that the matter be heard in a public meeting:
1. Within ninety days after receiving the third council member’s request, the council shall determine whether any of the following applies:
(a) The agency practice or substantive policy statement constitutes a rule.
(b) The final rule meets the requirements prescribed in section 41-1030.
(c) An existing agency practice, substantive policy statement, final rule or regulatory licensing requirement exceeds the agency’s statutory authority, is not specifically authorized by statute or meets the guidelines prescribed in subsection G of this section.
2. Within ten days after receiving the third council member’s request, the council shall notify the agency that the matter has been or will be placed on the council’s agenda for consideration on the merits.
3. Not later than thirty days after receiving notice from the council, the agency shall submit a statement of not more than five double-spaced pages to the council that addresses whether any of the following applies:
(a) The existing agency practice or substantive policy statement constitutes a rule.
(b) The final rule meets the requirements prescribed in section 41-1030.
(c) An existing agency practice, substantive policy statement, final rule or regulatory licensing requirement exceeds the agency’s statutory authority, is not specifically authorized by statute or meets the guidelines prescribed in subsection G of this section.
I. At the hearing, the council shall allocate the petitioner and the agency an equal amount of time for oral comments not including any time spent answering questions raised by council members. The council may also allocate time for members of the public who have an interest in the issue to provide oral comments.
J. For the purposes of subsection H of this section, the council meeting shall not be scheduled until the expiration of the agency response period prescribed in subsection H, paragraph 3 of this section.
K. An agency practice, substantive policy statement, final rule or regulatory licensing requirement considered by the council pursuant to this section shall remain in effect while under consideration of the council. If the council determines that the agency practice, substantive policy statement or regulatory licensing requirement exceeds the agency’s statutory authority, is not authorized by statute or constitutes a rule or that the final rule does not meet the requirements prescribed in section 41-1030, the practice, policy statement, rule or regulatory licensing requirement shall be void. If the council determines that the existing agency practice, substantive policy statement, final rule or regulatory licensing requirement is unduly burdensome or is not demonstrated to be necessary to specifically fulfill a public health, safety or welfare concern, the council shall modify, revise or declare void any such existing agency practice, substantive policy statement, final rule or regulatory licensing requirement. If an agency decides to further pursue a practice, substantive policy statement or regulatory licensing requirement that has been declared void or has been modified or revised by the council, the agency may do so only pursuant to a new rulemaking.
L. A council decision pursuant to this section shall be made by a majority of the council members who are present and voting on the issue. Notwithstanding any other law, the council may not base any decision concerning an agency’s compliance with the requirements of section 41-1030 in issuing a final rule or substantive policy statement on whether any party or person commented on the rulemaking or substantive policy statement.
M. A decision by the council 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.
N. Each agency and the secretary of state shall post prominently on their websites notice of an individual’s right to petition the council for review pursuant to this section.