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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.

These include:

  • 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.

Rules FAQ

FAQ

The Administrative Register (Register) is a legal publication published by the Administrative Rules Division that contains information about rulemaking activity in the state of Arizona. The Register is published by a numbered volume in a calendar year. Weekly issues are published each Friday with each issue making up the volume. The electronic version as authenticated by the office online is the official version.

The Register contains state agencies, boards and commissions:

  • Notifications of an agency's intent to draft rules (docket opening); Proposed draft rules; Public notices about proposed rules, these include oral proceedings or public hearings; and Final Rules.
  • The Register "tracks" rulemaking activity of proposed, final, emergency, summary, and exempt rules.

The Register is also the source of notification to:

  • G.R.R.C. agendas;
  • Deadlines;
  • Actions;
  • Rule expirations;
  • Agency oral proceedings;
  • Policy statement notices;
  • Guidance document notices;
  • Public information notices;
  • Ombudsman notices;
  • Delegation agreement notices;
  • Advisory committee notices;
  • Objection to a proposed expedited rulemaking, and petitions; and
  • Intent to increase museum fees.
  • A.R.S. § 41-1013(B)(9) through (15).

The Register has a cumulative index, which means users can track a rule from the beginning to the end of the rulemaking process.

If you have questions about the content or application of a published rule section, please contact the agency that promulgated the rule. The contact information is found in the preamble (beginning) of the rule as published in the Administrative Register.

Give input on:

  • License and Permit Fees
  • Operation, Health and Environmental Standards
  • Certification and Licensing Requirements

How do I find a Proposed Rule?

Click on the current year and volume link. Scroll to the Table of Contents. Click on the most current issue's Table of Contents. Scroll to the "Indexes" at the end of the issue's Table of Contents. Click on "Indexes," a pdf will open. Agencies are listed in alphabetical order. Simply search the pdf by using Ctrl-F. The find box will open and type in an agency name. Under each agency heading is a list of section numbers and Register issue page numbers for reference.The online logbook also contains notice filings and Register dates by agency with links directly to the issues.

How do I make a comment?

Once you have found the issue, open the Administrative Register Table of Contents. Open a published notice of:

  • Proposed Rulemaking, or
  • Proposed Exempt Rulemaking

The agency contact information is located in the preamble at the beginning of the rule. See A.R.S. § 41-1022 .

Your options:

  • Comment in writing to the agency's address and rulewriter ombudsman listed in the preamble.
  • An oral proceeding may already be scheduled and published in the preamble. Attend the meeting and comment in person under A.R.S. § 41-1022 .
  • If no oral proceeding is scheduled and you would like to speak in person, request a proceeding in writing under A.R.S. § 41-1023 .

An agency may also inform stakeholders of public meetings in a Notice of Oral Proceeding after a proposed rulemaking notice has been published. These notices are published in the Register. Attend the meeting and verbally make comments on the proposed rulemaking.

The public and stakeholders may reproduce, without restrictions, notices published in the Register.

There is a commercial use fee to use the Register. Commercial use fees apply to those who intend to use the Register for resale or profit. For more information see our order form.

As of August 9, 2017, the electronic version of the Register, authenticated by the Division, is the official version under Arizona law. Prior to that date the paper version of the Register, as printed by the Division, was considered the official version. A.R.S. § 41-1013(D).

  • Does the office offer paper subscriptions? What is the commercial use fee to use the Register?

  • The office no longer offers subscriptions to the Register as of September 2017. There is a fee for commercial use of the Register. Fill out the order form and contact the Division for more information.

Contact Rules Division

Office of the Secretary of State
Administrative Rules Division
1700 W Washington St Fl 7
Phoenix AZ 85007-2808