Who is required to submit reports: Every five years, agencies must submit reports to the Council for review and approval. In 2012, the Legislature expressly stated that each agency must review and report on rules made by an agency under an exemption from the APA (A.R.S. Title 41, Chapter 6). See A.R.S. § 41-1056(A). Such an exemption may appear in session law, A.R.S. § 41-1005, A.R.S. § 41-1057, or the agency’s own statutes.
What is a five-year-review report: The reports are intended to be a concise written analysis of an agency’s administrative rules. Staff reviews the report according to the criteria provided in A.R.S. § 41-1056(A) and A.A.C. R1-6-301. Staff then recommends approval or return of the report in memoranda, which staff presents to the Council at least one public meeting.
When reports are due: Reports are typically due to the Council on the last business day of the month in which the report is scheduled. Consistent with A.R.S. § 41-1056(L), Council staff notifies the agency that a report is due. If the agency does not timely submit a report on a rule that is scheduled by the Council, the rule expires pursuant to A.R.S. § 41-1056(J).
If an agency is unable to submit the report by the deadline, the agency may obtain a one-time, automatic, 120-day extension pursuant to A.R.S. § 41-1056(I) and A.A.C. R1-6-303(A). The agency may also request a longer extension that does not exceed 180 days. However, the longer extension must be granted by Council pursuant to A.A.C. R1-6-303(B)(2).
If an agency completes a rulemaking that substantially revises rules scheduled for a report within two years before the due date of the report, the agency may request that the report be rescheduled pursuant to A.A.C. R1-6-302. When scheduling or rescheduling a report, staff ensures that the due date is within five years of the effective date of the rulemaking.
Why reports are necessary: Statute requires agencies to regularly review each rule to determine whether the rule still meets the criteria contained in A.R.S. § 41-1056(A) and A.A.C. R1-6-301. If a rule fails to meet the criteria, the rule ordinarily will need to be amended or repealed. In the process of reviewing its rules for compliance with A.R.S. § 41-1056(A), the agency may discover issues with its rules, from inconsistencies with statute to outdated terminology being used throughout the rules. The agency then develops a proposed course of action to address issues raised in the report. This proposed course of action and the report become documented institutional knowledge that prepares the agency for future action.
If an agency determines that the rule is no longer necessary, the agency can complete a rulemaking to repeal the rule or choose to allow a rule to expire by not including the rule in the scheduled report. A.R.S. § 41-1056(J) states that “[i]f an agency fails to submit its report…the rules scheduled for review expire….” A.A.C. R1-6-301(C)(2) requires the agency to list the rules the agency intends to allow to expire in its cover letter, which is submitted with the report at the time of initial submission to staff.
How reports are submitted and heard: An agency must submit a report by close of business on the scheduled due date of the report. Staff will log the report submission on the Calendar, determine whether the submission meets the requirements of R1-6-301, and assign the report to a staff attorney and economist for review. Once a report is submitted to the Council, staff lists the report on its “In-House Agenda” which is posted on the Council website. This provides further notice to the public that they may comment to Council on the report, pursuant to A.R.S. § 41-1052(I). Similarly, the report is added to the appropriate agenda, according to the submission deadlines established by the Council’s yearly calendar.
ATTENTION Agencies, Boards, and Commissions: Please be advised that a change in A.R.S. § 41-1056(A) now includes rules made pursuant to an exemption from the A.P.A. or any part of the A.P.A. in the five-year-review report process. Accordingly, GRRC plans to add exempt rules of each agency to its five-year-review report schedule. Please be aware that each agency that makes exempt rules is required to provide a copy of the rules to GRRC so the rules may be scheduled for a five-year-review report. A.R.S. § 41-1005(C). If you believe this requirement does not apply to your agency, please seek legal advice and notify GRRC of the legal grounds which you believe removes your agency from being subject to these requirements.