Exemptions to the Rulemaking Process
It is not uncommon for an agency to be exempt from the rulemaking process as specified in the Arizona Administrative Procedures Act, also known as the APA (Arizona Revised Statutes, Title 41, Chapter 6, Articles 1 through 10.)
An agency's exemption is written in law from the Arizona State Legislature or under a referendum or initiative passed into law by Arizona voters. When an agency files an exempt rulemaking package with our office we require that it specify the law which gives the exemption in what’s call the preamble of rulemaking.
In the Administrative Code we include editor’s notes at the beginning of a Chapter to notify the user that certain rulemaking Sections in the document were made by exempt rulemaking. Exempt rules notes are also included in the historical note at the end of a rulemaking Section.
Notice of Exempt Rulemaking - Standard APA Exemptions
This is an exemption that is in the APA listed under A.R.S. § 41-1005 and A.R.S. § 41-1057. These exemptions give the agency full authority to make, amend, or repeal rules without following the steps outlined in the APA. A few examples of these steps include providing a notice of public hearing or filing a Notice of Proposed Rulemaking for publication in the Administrative Register. It should be noted that some agencies, although exempt from all APA requirements, will draft a Notice of Proposed Exempt Rulemaking and solicit public comments on the rules.
Notice of Proposed Exempt Rulemaking
Unique exemptions to certain processes required under the APA
Recently there has been a trend to give an agency an exemption under session law with an expiration date to complete its rulemaking. The Legislature is specific on the steps an agency must take to complete the rulemaking.
- A. Publish a Notice of Proposed Exempt Rulemaking somewhere
- 1. Publishing a Proposed Exempt Rulemaking or “draft” rules on the agency’s website;
- 2. Filing for publication in the Arizona Administrative Register a Proposed Exempt Rulemaking; or
- 3. Requiring an agency to do both one and two.
- 4. An agency may also be required to or in good faith, file a Notice of Public Information about the Proposed Exempt Rulemaking. This notice often includes the statutory exemption, where the stakeholders can review the draft rules and provide comments.
- B. Solicit and Accept Public Comments.
Some exemptions require an agency to solicit public comments. The solicitation may be part of a Notice of Public Information as stated under subsection (A)(4), or simply asking from comments on an agency’s website.
- C. In rare instances an agency may file a Notice of Supplemental Proposed Exempt Rulemaking if significant changes are being made to the original Notice of Proposed Exempt Rulemaking.
- D. The law may or may not REQUIRE an agency to publish the proposed exempt rules in the Register, but the agency makes the determination whether it will file and publish this type of notice with our office.
Notice of Final Exempt Rulemakings
This type of notice is filed when an agency completes its draft rulemaking under the exemption. It doesn’t matter if the agency filed the draft rules with our office for publication in the Register. If the Proposed Exempt Rulemaking was available for review somewhere, the notice to be submitted for publication in the Code is a Notice of Final Exempt Rulemaking.
Agencies are encouraged to publish all exempt notices in the Register to help maintain the public records and transparency.
Disclosure – Publication of exempt notices in the Register are yet one more way for the public to learn about the rulemaking. Since the Register is the official rule publication for the state stakeholders and the public will turn to it first for information. Other notification methods such as publishing public meetings in a newspaper of record are also encouraged. Some agencies may also choose to publish public meetings on the Department of Administration's Public Meeting online kiosk. Every agency is required to publish every public meeting notice on their websites under A.R.S. § 38-431.02.
Public Records - The public record is permanently maintained and archived under the Secretary of State's records retentions schedule. Therefore, the entire rulemaking record is more readily accessible to both the public and agency personnel.