All rulemakings must be submitted to the Council electronically at [email protected].
What is a rulemaking: Rulemaking refers to the process of adopting Arizona rules, as well the document that an agency files with the Arizona Secretary of State (SOS) to update the agency’s rules in the Arizona Administrative Code (A.A.C.). The Administrative Procedure Act (APA), Council rules, and SOS rules and guidelines govern agency rulemaking.
Who files rulemakings with the Council: Most agencies are subject to the APA, and those agencies must follow the applicable rulemaking procedures in A.R.S. § 41-1001 et seq. However, some agencies are exempt from the APA by law and do not need to seek Council approval before filing final rulemakings with the SOS. In addition, legislation may exempt a specific rulemaking from the requirements of the APA.
How rulemakings are completed: The process for completing a rulemaking can vary depending on the rulemaking procedure the agency selects, the type of agency, or specific session law instructions. However, most agencies complete the following steps:
1. The agency determines that it needs to complete a rulemaking and is not entirely exempt or specifically exempted from the rulemaking moratorium based on the language in Executive Order 2021-02 (“moratorium”).
2. If the agency is not exempt from the moratorium, the agency must request an approval from the moratorium from its policy advisor in the Governor’s Office before beginning the rulemaking process. If the request is disapproved, the rulemaking process does not proceed.
3. If the agency has authority to begin the rulemaking process, the agency files a Notice of Rulemaking Docket Opening (NDO) with the SOS. The NDO is published in the Arizona Administrative Register (Register) in order to provide an initial notice to the public that the agency plans to make changes to its rules. A.R.S. § 41-1021(C) specifies the information that needs to be contained in the NDO.
4. An agency will typically, but is not required to, have a period of informal stakeholder input. This period provides the agency with the opportunity to circulate the proposed version of the rule(s) to parties that may be affected by the rulemaking action. This stakeholder process is designed to garner input, and prompt changes to the rule(s) as needed.
5. The agency will file a Notice of Proposed Rulemaking (NPR) with the SOS. Under A.R.S. § 41-1021(A), agencies have 1 year from the time the NDO is published in the Register to file an NPR or terminate the rulemaking proceeding. The NPR is the beginning of a formal stakeholder process outlined in statute. The NPR provides notice to the public that they may submit written comments to the agency about the proposed changes to the rules. A.R.S. § 41-1023(B) requires the agency to accept comments on the rule(s) for at least 30 days before the agency closes the record. During that 30-day period, the a member of the public may also request an oral proceeding to provide the agency with oral comments. Most agencies schedule an oral proceeding in the NPR to avoid the need to publish a separate Notice of Oral Proceeding.
6. After gathering stakeholder and interested public comments, the agency may decide to make additional changes to the rule(s). However, if those changes are substantial as specified in A.R.S. § 41-1025, the agency is required to file a Notice of Supplemental Proposed Rulemaking (NSPR). An NSPR requires the record to be opened for an additional 30-day comment period before the close of record.
7. After the public comment period and close of record, the agency resubmits the rules to its policy advisor in the Governor's office for review and approval.
8. Within 120 days after the close of record, and within 1 year from the publication of the NPR or NSPR, the agency must file a Notice of Final Rulemaking (NFR) with the Council. See A.R.S. §§ 41-1024(B) and 41-1021(A)(4), respectively. The NFR must comply with the SOS rulemaking requirements, as well as requirements contained in A.R.S. § 41-1024(E).
9. Council staff reviews and analyzes the cover letter, NFR, Economic Impact Statement (EIS), and supporting documents. If necessary, Council staff works with the agency to make any changes.
10. Council staff prepares a memorandum regarding the rulemaking and provides the rulemaking package to the Council for consideration at an upcoming Study Session.
11. The Council must approve or return the NFR at a Council Meeting within 120 days of receipt. A.R.S. § 41-1052(C).
12. After the Council has approved the rulemaking, the NFR and EIS must be filed with the SOS. The rules will become effective 60 days after the date of filing with the SOS. An agency may request an immediate or later effective date by demonstrating compliance with the applicable requirements of A.R.S. § 41-1032.
Why rulemakings are necessary: “The primary purpose of rule-making is to give notice to the public of the substantive and procedural requirements that an agency has established for activities falling within its statutory authority.” See Arizona Attorney General Agency Handbook, Chapters 11-12. No rules are permitted that exceed statutory or constitutional authority. The Council has a central responsibility to ensure that rulemakings are authorized and do not exceed the agency's authority.
An agency can create substantive policy statements to explain how the agency will enforce a rule, but the substantive policy statement itself cannot be enforced on the general public. See A.R.S. § 41-1033. Rules are generally favored over substantive policy statements, as the rulemaking process in the APA provides a formal avenue for public participation through the notice and comment process.