Bill Text: AZ SB1273 | 2018 | Fifty-third Legislature 2nd Regular | Chaptered
Bill Title: Administrative proceedings; rules; contested cases
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2018-05-16 - Chapter 337 [SB1273 Detail]
Download: Arizona-2018-SB1273-Chaptered.html
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House Engrossed Senate Bill |
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State of Arizona Senate Fifty-third Legislature Second Regular Session 2018
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CHAPTER 337
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SENATE BILL 1273 |
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AN ACT
amending sections 41-1033 and 41‑1061, Arizona Revised Statutes; relating to administrative procedures.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. 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, final rule or unduly burdensome licensing requirement; 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 review of an existing agency practice or substantive policy statement that the petitioner alleges to constitute a rule. The petition shall clearly state the rule, agency practice or substantive policy statement that the person wishes the agency to make or review. Within sixty days after submission of a petition, the agency shall either deny the petition in writing, stating its reasons for denial, initiate rulemaking proceedings in accordance with this chapter or, if otherwise lawful, make a rule.
B. A person may appeal to the council the agency's final decision within thirty days after the agency gives written notice pursuant to subsection A of this section. The appeal shall be limited to whether an 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. 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. 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 is not specifically authorized by statute pursuant to title 32 based on the person's belief 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. If the council determines that the existing agency practice, substantive policy statement, final rule or regulatory licensing requirement applies to a profession for which the average wage in that profession in this state does not exceed two hundred percent of the federal POVERTY GUIDELINES for a family of four, the council shall review the existing agency practice, substantive policy statement, final rule or regulatory licensing requirement as prescribed by this section. This subsection does not apply to an individual or institution that is subject to title 36, chapter 4, article 10 or chapter 20.
D. E. If the council receives information indicating that 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 or that an existing agency practice, substantive policy statement, final rule or regulatory licensing requirement does not meet the guidelines prescribed in subsection D of this section 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 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 or whether an existing agency practice, substantive policy statement, final rule or regulatory licensing requirement meets the guidelines prescribed in subsection D of this section.
2. Within ten days of after receipt of the fourth council member request, the council shall notify the agency that the matter has been or will be placed on an agenda.
3. Within thirty days of after receiving notice from the council, the agency shall submit a statement 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 or whether an existing agency practice, substantive policy statement, final rule or regulatory licensing requirement meets the guidelines prescribed in subsection D of this section.
E. F. For the purposes of subsection D E of this section, the council meeting shall not be held until the expiration of the agency response period prescribed in subsection D E, paragraph 3 of this section.
F. G. An agency practice, substantive policy statement, or 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 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. 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 and meets the requirements of subsection D of this section, the council may modify, revise or declare void any such existing agency practice, substantive policy statement, final rule or regulatory licensing requirement.
G. H. 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. I. 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. J. 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. 2. Section 41-1061, Arizona Revised Statutes, is amended to read:
41-1061. Contested cases; notice; hearing; records
A. In a contested case, all parties shall be afforded an opportunity for a hearing after reasonable notice. Unless otherwise provided by law, the notice shall be given at least twenty days prior to before the date set for the hearing.
B. The notice shall include:
1. A statement of the time, place and nature of the hearing.
2. A statement of the legal authority and jurisdiction under which the hearing is to be held.
3. A reference to the particular sections of the statutes and rules involved.
4. A short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter upon on application a more definite and detailed statement shall be furnished.
C. Opportunity shall be afforded all parties to participate in a settlement conference or mediation unless both parties or the hearing officer decline to set a settlement conference or mediation.
C. D. Opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved. If there is no genuine issue of material fact, a party may seek disposition of the case by motion.
D. E. Unless precluded by law, and except as to claims for compensation and benefits under chapter 6 of title 23, chapter 6, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order or default.
E. F. The record in a contested case shall include:
1. All pleadings, motions, and interlocutory rulings.
2. Evidence received or considered.
3. A statement of matters officially noticed.
4. Objections and offers of proof and rulings thereon.
5. Proposed findings and exceptions.
6. Any decision, opinion or report by the officer presiding at the hearing.
7. All staff memoranda, other than privileged communications, or data submitted to the hearing officer or members of the agency in connection with their consideration of the case.
F. G. Oral proceedings or any part thereof of the proceedings shall be recorded manually or by a recording device and shall be transcribed on request of any party, unless otherwise provided by law. The cost of such the transcript shall be paid by the party making the request, unless otherwise provided by law or unless assessment of the cost is waived by the agency.
G. H. Findings of fact shall be based exclusively on the evidence and on matters officially noticed.
APPROVED BY THE GOVERNOR MAY 16, 2018.
FILED IN THE OFFICE OF THE SECRETARY OF STATE MAY 16, 2018.
