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Administrative Procedure Act – Arizona

The Arizona Administrative Procedure Act is found in Title 41, Chapter 6 of the Arizona Revised Statutes.  The Act applies to all agencies not expressly exempted.  In addition to rights created and duties imposed by other statutes this Act creates procedural rights and imposes only procedural duties.  Other statutes supersede this Act if any conflict arises with regard to the rights and duties. An exemption is that, if expressly provided in the other statutes that this Act will supersede then the rule does not apply.  According to A.R.S. § 41-1002(C), the Arizona Administrative Procedure Act can grant procedural rights to persons if it does not considerably prejudice rights conferred on other persons by any other provision of law.  The Act permits all the agencies to make rules of practice setting forth all the necessities of formal measures available to public.

According to A.R.S. § 41-1004, a person can waive any right conferred on him/her by this Act if such waiver is not exempted by any other provision of law.

A.R.S. § 41-1005 discusses the situations where this Act is not applied. Some of them are:

  • A rule relating to public works in streets and highways under the jurisdiction of state agency which is already specified to the public through signs or signals;
  • Rules relating to speed, parking, stopping and other operations of motor vehicles;
  • Rules relating to physical servicing care or maintenance of service agency owned or operated facilities or property.
  • Order of the Arizona game and fish commission that deals with possession limits for wildlife;
  • Rules concerning internal management which will not affect the public in any ways;
  • Rules which establishes the prices of specific goods or services sold by an agency.
  • Rules relating to agency contracts;
  • Rules made by department of economic security;
  • Procedures of the state transportation board;
  • Rules made by Arizona state parks board concerning the operation of Tonto natural bridge state park.

Article 2 of Title 41 (A.R.S. § 41-1011 – A.R.S. § 41-1013) discusses publication of agency rules.  According to A.R.S. § 41-1011, the secretary of state is responsible for the publication and distribution of the administrative agency code and register.  The secretary can prescribe the form and style for filing the rules and s/he can also reject the rules if it does not comply with those form and style.

Article 3 (A.R.S. § 41-1021 – A.R.S. § 41-1036) deals with the rule making power under the Arizona Administrative Procedure Act.  According to A.R.S. § 41-1021, each agency can preserve a public rule making docket for each pending rule making proceeding.  The docket of each rule making proceeding must indicate the following:

  1. The subject matter of the anticipated rule;
  2. Citation of all published notices;
  3. Name and address of the agency personnel with whom public can communicate to know regarding the rule;
  4. Where to inspect the written submissions on the proposed rule and when and where the written submissions or oral comments will be made;
  5. Where to inspect a copy of the monetary, small commerce and purchaser impact statement and the minutes of the pertinent council meeting;
  6. Current status of the rule;
  7. Time table for agency decisions or any other actions relating to the proceeding;
  8. Date the rule was sent to council;
  9. Date of filing and publication of the rule;
  10. Date of approval by the council;
  11. When the rule will become effective.

According to A.R.S. § 41-1022, an agency can file a notice of the proposed rule making, amendment or repeal with the secretary of the state.  Any proceeding concerning the proposed action can be made only after the expiry of thirty days after the publication of the register in which contains the proposed rule, amendment or repeal.  This rule is not applicable if the rule is made, amended or repealed as an emergency measure.  But attorney general can disapprove the rule, amendment or repeal if the emergency situation arose due to the delay or inaction of the administrative agency.

According to A.R.S. § 41-1044, the attorney general can review the rules that are exempted pursuant to section 1057 and such rule cannot be filed with the secretary of state unless it is approved by the attorney general.  A.R.S. § 41-1057 discusses additional exemptions (other than A.R.S. § 41-1005), where the Act does not apply.  It exempts an agency:

  • which is a unit of state government headed by a single elected official;
  • a corporation commission doing similar acts including preparation of economic impact statement and a statement of the effect of the rule on small business;
  • industrial commission of Arizona incorporated under federal occupational safety and health standards as published in 29 Code of Federal Regulations parts 1904, 1910, 1926 and 1928;
  • Arizona state lottery that makes rules relating only to the design, operation or prize structure of a lottery game.

Article 6 (A.R.S. § 41-1061 – A.R.S. § 41-1067) discusses the adjudicative proceedings under the Act.  It says that parties must be provided with notice of the proceedings as well as a reasonable opportunity for hearing.  Parties must also be given chance to respond to and present evidence and arguments on all concerned questions.

The Act also provides for military relief from administrative procedures under A.R.S. § 41-1071.  Further section A.R.S. § 41-1081 discusses the standards for delegation.  It speaks about the things that should be compulsorily contained in a delegation agreement. The agreement must contain:

  • what is being delegated by the administrative agency;
  • terms of agreement;
  • procedures for terminating agreement;
  • procedures for amending agreement;
  • procedures for resolving conflicts between parties to agreement;
  • standards for performance;
  • requirements concerning record keeping and reporting;
  • definition of the enforcement role if enforcement authority is being delegated;
  • types of fees that will be imposed on regulated parties;
  • qualification of personnel responsible to perform delegated functions;
  • auditing requirements if delegation includes transfer of funds;
  • names and address of primary contact persons from both sides.

A.R.S. § 41-1081 prohibits a political subdivision that exercises delegating authority as per a delegation agreement, from sub-delegation of that delegated authority, to any other agency or political sub division without first notifying the delegating agency.

Inside Administrative Procedure Act – Arizona