A.R.S. tit. 41 ch. 6 — Arizona Revised Statutes Title 41 Chapter 6 — Administrative Procedure

41-1001. Definitions In this chapter, unless the context otherwise requires: 1. "Agency" means any board, commission, department, officer or other administrative unit of this state, including the agency head and one or more members of the agency head or agency employees or other persons directly or indirectly purporting to act on behalf or under the authority of the agency head, whether created under the Constitution of Arizona or by enactment of the legislature. Agency does not include the legislature, the courts or the governor. Agency does not include a political subdivision of this state or any of the administrative units of a political subdivision, but does include any board, commission, department, officer or other administrative unit created or appointed by joint or concerted action of an agency and one or more political subdivisions of this state or any of their units. To the extent an administrative unit purports to exercise authority subject to this chapter, an administrative unit otherwise qualifying as an agency must be treated as a separate agency even if the administrative unit is located within or subordinate to another agency. 2. "Appealable agency action" has the same meaning prescribed in section 41-1092. 3. "Audit" means an audit, investigation or inspection pursuant to title 23, chapter 2 or 4. 4. "Code" means the Arizona administrative code, which is published pursuant to section 41-1011. 5. "Committee" means the administrative rules oversight committee. 6. "Contested case" means any proceeding, including rate making, except rate making pursuant to article XV, Constitution of Arizona, price fixing and licensing, in which the legal rights, duties or privileges of a party are required or permitted by law, other than this chapter, to be determined by an agency after an opportunity for an administrative hearing. 7. "Council" means the governor's regulatory review council. 8. "Delegation agreement" means an agreement between an agency and a political subdivision that authorizes the political subdivision to exercise functions, powers or duties conferred on the delegating agency by a provision of law. Delegation agreement does not include intergovernmental agreements entered into pursuant to title 11, chapter 7, article 3. 9. "Emergency rule" means a rule that is made pursuant to section 41-1026. 10. "Fee" means a charge prescribed by an agency for an inspection or for obtaining a license. 11. "Final rule" means any rule filed with the secretary of state and made pursuant to an exemption from this chapter in section 41-1005, made pursuant to section 41-1026, approved by the council pursuant to section 41-1052 or 41-1053 or approved by the attorney general pursuant to section 41-1044. For purposes of judicial review, final rule includes expedited rules pursuant to section 41-1027. 12. "General permit" means a regulatory permit, license or agency authorization that is for facilities, activities or practices in a class that are substantially similar in nature and that is issued or granted by an agency to a qualified applicant to conduct identified operations or activities if the applicant meets the applicable requirements of the general permit, that requires less information than an individual or traditional permit, license or authorization and that does not require a public hearing. 13. "License" includes the whole or part of any agency permit, certificate, approval, registration, charter or similar form of permission required by law, but does not include a license required solely for revenue purposes. 14. "Licensing" includes the agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal, change, reduction, modification or amendment of a license, including an existing permit, certificate, approval, registration, charter or similar form of permission, approval or authorization obtained from an agency by the holder of a license. 15. "Licensing decision" means any action by an agency to grant or deny any request for permission, approval or authorization issued in response to any request from an applicant for a license or to the holder of a license to exercise authority within the scope of the license. 16. "Party" means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party. 17. "Person" means an individual, partnership, corporation, association, governmental subdivision or unit of a governmental subdivision, a public or private organization of any character or another agency. 18. "Preamble" means: (a) For any rulemaking subject to this chapter, a statement accompanying the rule that includes: (i) Reference to the specific statutory authority for the rule. (ii) The name and address of agency personnel with whom persons may communicate regarding the rule. (iii) An explanation of the rule, including the agency's reasons for initiating the rulemaking. (iv) A reference to any study relevant to the rule that the agency reviewed and either proposes to rely on in its evaluation of or justification for the rule or proposes not to rely on in its evaluation of or justification for the rule, where the public may obtain or review each study, all data underlying each study and any analysis of each study and other supporting material. (v) The economic, small business and consumer impact summary, or in the case of a proposed rule, a preliminary summary and a solicitation of input on the accuracy of the summary. (vi) A showing of good cause why the rule is necessary to promote a statewide interest if the rule will diminish a previous grant of authority of a political subdivision of this state. (vii) Such other matters as are prescribed by statute and that are applicable to the specific agency or to any specific rule or class of rules. (b) In addition to the information set forth in subdivision (a) of this paragraph, for a proposed rule, the preamble also shall include a list of all previous notices appearing in the register addressing the proposed rule, a statement of the time, place and nature of the proceedings for the making, amendment or repeal of the rule and where, when and how persons may request an oral proceeding on the proposed rule if the notice does not provide for one. (c) In addition to the information set forth in subdivision (a) of this paragraph, for an expedited rule, the preamble also shall include a statement of the time, place and nature of the proceedings for the making, amendment or repeal of the rule and an explanation of why expedited proceedings are justified. (d) For a final rule, except an emergency rule, the preamble also shall include, in addition to the information set forth in subdivision (a), the following information: (i) A list of all previous notices appearing in the register addressing the final rule. (ii) A description of the changes between the proposed rules, including supplemental notices and final rules. (iii) A summary of the comments made regarding the rule and the agency response to them. (iv) A summary of the council's action on the rule. (v) A statement of the rule's effective date. (e) In addition to the information set forth in subdivision (a) of this paragraph, for an emergency rule, the preamble also shall include an explanation of the situation justifying the rule being made as an emergency rule, the date of the attorney general's approval of the rule and a statement of the emergency rule's effective date. 19. "Provision of law" means the whole or a part of the federal or state constitution, or of any federal or state statute, rule of court, executive order or rule of an administrative agency. 20. "Register" means the Arizona administrative register, which is: (a) This state's official publication of rulemaking notices that are filed with the office of secretary of state. (b) Published pursuant to section 41-1011. 21. "Rule" means an agency statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of an agency. Rule includes prescribing fees or the amendment or repeal of a prior rule but does not include intraagency memoranda that are not delegation agreements. 22. "Rulemaking" means the process to make a new rule or amend, repeal or renumber a rule. 23. "Small business" means a concern, including its affiliates, which is independently owned and operated, which is not dominant in its field and which employs fewer than one hundred full-time employees or which had gross annual receipts of less than four million dollars in its last fiscal year. For purposes of a specific rule, an agency may define small business to include more persons if it finds that such a definition is necessary to adapt the rule to the needs and problems of small businesses and organizations. 24. "Substantive policy statement" means a written expression which informs the general public of an agency's current approach to, or opinion of, the requirements of the federal or state constitution, federal or state statute, administrative rule or regulation, or final judgment of a court of competent jurisdiction, including, where appropriate, the agency's current practice, procedure or method of action based upon that approach or opinion. A substantive policy statement is advisory only. A substantive policy statement does not include internal procedural documents which only affect the internal procedures of the agency and does not impose additional requirements or penalties on regulated parties, confidential information or rules made in accordance with this chapter. 41-1001.01. Regulatory bill of rights; small businesses A. To ensure fair and open regulation by state agencies, a person: 1. Is eligible for reimbursement of fees and other expenses if the person prevails by adjudication on the merits against an agency in a court proceeding regarding an agency decision as provided in section 12-348. 2. Is eligible for reimbursement of the person's costs and fees if the person prevails against any agency in an administrative hearing as provided in section 41-1007. 3. Is entitled to have an agency not charge the person a fee unless the fee for the specific activity is expressly authorized as provided in section 41-1008. 4. Is entitled to receive the information and notice regarding inspections and audits prescribed in section 41-1009. 5. May review the full text or summary of all rulemaking activity, the summary of substantive policy statements and the full text of executive orders in the register as provided in article 2 of this chapter. 6. May participate in the rulemaking process as provided in articles 3, 4, 4.1 and 5 of this chapter, including: (a) Providing written comments or testimony on proposed rules to an agency as provided in section 41-1023 and having the agency adequately address those comments as provided in section 41-1052, subsection D, including comments or testimony concerning the information contained in the economic, small business and consumer impact statement. (b) Filing an early review petition with the governor's regulatory review council as provided in article 5 of this chapter. (c) Providing written comments or testimony on rules to the governor's regulatory review council during the mandatory sixty-day comment period as provided in article 5 of this chapter. 7. Is entitled to have an agency not base a licensing decision in whole or in part on licensing conditions or requirements that are not specifically authorized by statute, rule or state tribal gaming compact as provided in section 41-1030, subsection B. 8. Is entitled to have an agency not base a decision regarding any filing or other matter submitted to an agency on a requirement or condition that is not specifically authorized by a statute, rule, federal law or regulation or state tribal gaming compact as provided in section 41-1030, subsection C. 9. Is entitled to have an agency not make a rule under a specific grant of rulemaking authority that exceeds the subject matter areas listed in the specific statute or not make a rule under a general grant of rulemaking authority to supplement a more specific grant of rulemaking authority as provided in section 41-1030, subsection D. 10. May allege that an existing agency practice or substantive policy statement constitutes a rule and have that agency practice or substantive policy statement declared void because the practice or substantive policy statement constitutes a rule as provided in section 41-1033. 11. May file a complaint with the administrative rules oversight committee concerning: (a) A rule's, practice's or substantive policy statement's lack of conformity with statute or legislative intent as provided in section 41-1047. (b) An existing statute, rule, practice alleged to constitute a rule or substantive policy statement that is alleged to be duplicative or onerous as provided in section 41-1048. 12. May have the person's administrative hearing on contested cases and appealable agency actions heard by an independent administrative law judge as provided in articles 6 and 10 of this chapter. 13. May have administrative hearings governed by uniform administrative appeal procedures as provided in articles 6 and 10 of this chapter and may appeal a final administrative decision by filing a notice of appeal pursuant to title 12, chapter 7, article 6. 14. May have an agency approve or deny the person's license application within a predetermined period of time as provided in article 7.1 of this chapter. 15. Is entitled to receive written notice from an agency on denial of a license application: (a) That justifies the denial with references to the statutes or rules on which the denial is based as provided in section 41-1076. (b) That explains the applicant's right to appeal the denial as provided in section 41-1076. 16. Is entitled to receive information regarding the license application process before or at the time the person obtains an application for a license as provided in sections 41-1001.02 and 41-1079. 17. May receive public notice and participate in the adoption or amendment of agreements to delegate agency functions, powers or duties to political subdivisions as provided in section 41-1026.01 and article 8 of this chapter. 18. May inspect all rules and substantive policy statements of an agency, including a directory of documents, in the office of the agency director as provided in section 41-1091. 19. May file a complaint with the office of the ombudsman-citizens aide to investigate administrative acts of agencies as provided in chapter 8, article 5 of this title. 20. Unless specifically authorized by statute, may expect state agencies to avoid duplication of other laws that do not enhance regulatory clarity and to avoid dual permitting to the extent practicable as prescribed in section 41-1002. 21. May have the person's administrative hearing on contested cases pursuant to title 23, chapter 2 or 4 heard by an independent administrative law judge as prescribed by title 23, chapter 2 or 4. 22. Pursuant to section 41-1009, subsection E, may correct deficiencies identified during an inspection unless otherwise provided by law. B. The enumeration of the rights listed in subsection A of this section does not grant any additional rights that are not prescribed in the sections referenced in subsection A of this section. C. Each state agency that conducts audits, inspections or other regulatory enforcement actions pursuant to section 41-1009 shall create and clearly post on the agency's website a small business bill of rights. The agency shall create the small business bill of rights by selecting the applicable rights prescribed in this section and section 41-1009 and any other agency-specific statutes and rules. The agency shall provide a written document of the small business bill of rights to the authorized on-site representative of the regulated small business. In addition to the rights listed in this section and section 41-1009, the agency notice of the small business bill of rights shall include the process by which a small business may file a complaint with the agency employees who are designated to assist members of the public or regulated community pursuant to section 41-1006. The notice must provide the contact information of the agency's designated employees. The agency notice must also state that if the regulated person has already made a reasonable effort with the agency to resolve the problem and still has not been successful, the regulated person may contact the office of ombudsman-citizens aide. 41-1001.02. Clarification of interpretation or application; exemption A. Before submitting an application for a license a person may request from the agency issuing the license a clarification of its interpretation or application of a statute, rule, delegation agreement or substantive policy statement affecting the person's preparation of the application for a license by providing the agency with a written request that states: 1. The name and address of the person requesting the clarification. 2. The statute, rule, delegation agreement or substantive policy statement or part of the statute, rule, delegation agreement or substantive policy statement that the person is requesting be clarified. 3. Any facts relevant to the requested clarification. 4. The person's proposed interpretation of the applicable statute, rule, delegation agreement or substantive policy statement or part of the statute, rule, delegation agreement or substantive policy statement. 5. Whether, to the best knowledge of the person, the issues or related issues are being considered by the agency in connection with an existing license or license application. B. On receipt of a request that complies with subsection A of this section: 1. The agency may meet with the person to discuss the written request and shall respond within thirty days of the receipt of the written request with a written clarification of its interpretation or application as raised in the written request. 2. The agency shall provide the requestor with an opportunity to meet and discuss the agency's written clarification. C. Notwithstanding any other law, an agency's written clarification pursuant to this section does not constitute an appealable action as defined in section 41-1092 or an action against the party pursuant to section 41-1092.12. D. Notwithstanding any other law, this section does not apply to the Arizona peace officer standards and training board. 41-1002. Applicability and relation to other law; preapplication authorization; definitions A. This article and articles 2 through 5 of this chapter apply to all agencies and all proceedings not expressly exempted. B. This chapter creates only procedural rights and imposes only procedural duties. They are in addition to those created and imposed by other statutes. To the extent that any other statute would diminish a right created or duty imposed by this chapter, the other statute is superseded by this chapter, unless the other statute expressly provides otherwise. C. An agency may grant procedural rights to persons in addition to those conferred by this chapter so long as rights conferred on other persons by any provision of law are not substantially prejudiced. D. Unless specifically authorized by statute, an agency shall avoid duplication of other laws that do not enhance regulatory clarity and shall avoid dual permitting to the extent practicable. E. Unless specifically authorized by statute, an agency may not require preapplication authorization or require preapplication conferences as a requirement to filing an application that is otherwise allowed by statute. If preapplication procedures are required by statute, an agency shall consider the preapplication requirements or procedures as the beginning of the licensing time frame for the purposes of article 7.1 of this chapter. An agency may offer voluntary preapplication procedures without specific statutory authority if the agency communicates to an applicant that the preapplication procedures are not mandatory. If preapplication procedures are offered by an agency, the agency shall consider the costs and delays that may be imposed on an applicant and shall seek to minimize those impacts. F. Unless authorized by federal or state law, an agency may not take any action that materially increases the regulatory burdens on a business unless there is a threat to the health, safety and welfare of the public that has not been addressed by legislation or industry regulation within the proposed regulated field. G. Unless authorized by federal or state law, an agency may not apply a regulation to a qualified marketplace platform if the purpose of that regulation is to regulate a business that provides goods or services directly to the customer. H. For the purposes of this section: 1. "Qualified marketplace contractor" means any person or organization, including an individual, corporation, limited liability company, partnership, sole proprietor or other entity, that enters into an agreement with a qualified marketplace platform to use the qualified marketplace platform's digital platform to provide goods or services to third-party individuals or entities seeking those services. 2. "Qualified marketplace platform" means an organization, including a corporation, limited liability company, partnership, sole proprietor or any other entity, that operates a digital platform that facilitates the provision of goods or services by qualified marketplace contractors to third-party individuals or entities seeking those goods or services. 41-1002.01. Educational programs; enrollment limit prohibited; definition A. An agency may not limit enrollment in any school or educational program of an institution of higher education. B. For the purposes of this section, "agency" has the same meaning prescribed in section 41-1001 but does not include the Arizona board of regents or any community college district board. 41-1003. Required rule making Each agency shall make rules of practice setting forth the nature and requirements of all formal procedures available to the public. 41-1004. Waiver Except to the extent precluded by another provision of law, a person may waive any right conferred on that person by this chapter. 41-1005. Exemptions A. This chapter does not apply to any: 1. Rule that relates to the use of public works, including streets and highways, under the jurisdiction of an agency if the effect of the order is indicated to the public by means of signs or signals. 2. Order or rule of the Arizona game and fish commission that does the following: (a) Opens, closes or alters seasons or establishes bag or possession limits for wildlife. (b) Establishes a fee pursuant to section 5-321, 5-322 or 5-327. (c) Establishes a license classification, fee or application fee pursuant to title 17, chapter 3, article 2. (d) Limits the number or use of licenses or permits that are issued to nonresidents pursuant to section 17-332. 3. Rule relating to section 28-641 or to any rule regulating motor vehicle operation that relates to speed, parking, standing, stopping or passing enacted pursuant to title 28, chapter 3. 4. Rule concerning only the internal management of an agency that does not directly and substantially affect the procedural or substantive rights or duties of any segment of the public. 5. Rule that only establishes specific prices to be charged for particular goods or services sold by an agency. 6. Rule concerning only the physical servicing, maintenance or care of agency owned or operated facilities or property. 7. Rule or substantive policy statement concerning inmates or committed youths of a correctional or detention facility in secure custody or patients admitted to a hospital if made by the state department of corrections, the department of juvenile corrections, the board of executive clemency or the department of health services or a facility or hospital under the jurisdiction of the state department of corrections, the department of juvenile corrections or the department of health services. 8. Form whose contents or substantive requirements are prescribed by rule or statute and instructions for the execution or use of the form. 9. Capped fee-for-service schedule adopted by the Arizona health care cost containment system administration pursuant to title 36, chapter 29. 10. Fees prescribed by section 6-125. 11. Order of the director of water resources adopting or modifying a management plan pursuant to title 45, chapter 2, article 9. 12. Fees established under section 3-1086. 13. Fees established under sections 41-4010 and 41-4042. 14. Rule or other matter relating to agency contracts. 15. Fees established under section 32-2067 or 32-2132. 16. Rules made pursuant to section 5-111, subsection A. 17. Rules made by the Arizona state parks board concerning the operation of the Tonto natural bridge state park, the facilities located in the Tonto natural bridge state park and the entrance fees to the Tonto natural bridge state park. 18. Fees or charges established under section 41-511.05. 19. Emergency medical services protocols except as provided in section 36-2205, subsection B. 20. Fee schedules established pursuant to section 36-3409. 21. Procedures of the state transportation board as prescribed in section 28-7048. 22. Rules made by the state department of corrections. 23. Fees prescribed pursuant to section 32-1527. 24. Rules made by the department of economic security pursuant to section 46-805. 25. Schedule of fees prescribed by section 23-908, except that the industrial commission of Arizona must post the schedule of fees on its website and prepare and file a notice of public information with the website address to be published in the register. 26. Procedure that is established pursuant to title 23, chapter 6, article 6. 27. Rules, administrative policies, procedures and guidelines adopted for any purpose by the Arizona commerce authority pursuant to chapter 10 of this title if the authority provides, as appropriate under the circumstances, for notice of an opportunity for comment on the proposed rules, administrative policies, procedures and guidelines. 28. Rules made by a marketing commission or marketing committee pursuant to section 3-414. 29. Administration of public assistance program monies authorized for liabilities that are incurred for disasters declared pursuant to sections 26-303 and 35-192. 30. User charges, tolls, fares, rents, advertising and sponsorship charges, services charges or similar charges established pursuant to section 28-7705. 31. Administration and implementation of the hospital assessment pursuant to section 36-2901.08, except that the Arizona health care cost containment system administration must provide notice and an opportunity for public comment at least thirty days before establishing or implementing the administration of the assessment. 32. Rules made by the Arizona department of agriculture to adopt and implement the provisions of the federal milk ordinance as prescribed by section 3-605. 33. Rules made by the Arizona department of agriculture to adopt, implement and administer the United States food and drug administration produce safety rule (21 Code of Federal Regulations part 112) and any other federal produce safety regulation, order or guideline or other requirement adopted pursuant to the FDA food safety modernization act (P.L. 111-353; 21 United States Code sections 2201 through 2252) as provided by title 3, chapter 3, article 4.1. 34. Calculations that are performed by the department of economic security and that are associated with the adjustment of the sliding fee scale and formula for determining child care assistance pursuant to section 46-805. 35. Rules made by the Arizona department of agriculture to implement and administer the livestock operator fire and flood assistance grant program established by section 3-109.03. B. Notwithstanding subsection A, paragraph 21 of this section, if the federal highway administration authorizes the privatization of rest areas, the state transportation board shall make rules governing the lease or license by the department of transportation to a private entity for the purposes of privatization of a rest area. C. Coincident with making a final rule pursuant to an exemption from the applicability of this chapter under this section, another statute or session law, the agency shall: 1. Prepare a notice and follow formatting guidelines prescribed by the secretary of state. 2. Prepare the rulemaking exemption notice pursuant to chapter 6.2 of this title. 3. File the rule with the secretary of state for publication pursuant to section 41-1012. 4. Provide a copy of the rule to the council. D. Unless otherwise required by law, articles 2, 3, 4 and 5 of this chapter do not apply to the Arizona board of regents and the institutions under its jurisdiction, except that the Arizona board of regents shall make policies or rules for the board and the institutions under its jurisdiction that provide, as appropriate under the circumstances, for notice of and opportunity for comment on the policies or rules proposed. E. Unless otherwise required by law, articles 2, 3, 4 and 5 of this chapter do not apply to the Arizona state schools for the deaf and the blind, except that the board of directors of all the state schools for the deaf and the blind shall adopt policies for the board and the schools under its jurisdiction that provide, as appropriate under the circumstances, for notice of and opportunity for comment on the policies proposed for adoption. F. Unless otherwise required by law, articles 2, 3, 4 and 5 of this chapter do not apply to the state board of education, except that the state board of education shall adopt policies or rules for the board and the institutions under its jurisdiction that provide, as appropriate under the circumstances, for notice of and opportunity for comment on the policies or rules proposed for adoption. In order to implement or change any rule, the state board of education shall provide at least two opportunities for public comment. The state board of education shall consider the fiscal impact of any proposed rule pursuant to this subsection. G. Unless otherwise required by law, articles 2, 3, 4 and 5 of this chapter do not apply to the state board for charter schools, except that the board shall adopt policies or rules for the board and the charter schools sponsored by the board that provide, as appropriate under the circumstances, for notice of and opportunity for comment on the policies or rules proposed for adoption. In order to implement or change any policy or rule, the board shall provide at least two opportunities for public comment. The state board for charter schools shall consider the fiscal impact of any proposed rule pursuant to this subsection. 41-1006. Employees providing agency assistance; identification and publication A. Each state agency shall publish annually in the register, in the state directory and in a telephone directory for Maricopa county the name or names of those employees who are designated by the agency to assist members of the public or regulated community in seeking information or assistance from the agency. B. In any written communication between a state agency and a person, the state agency shall provide the name, telephone number and email address of the employee who is authorized and able to provide information about the communication if the communication does any of the following: 1. Demands payment of a tax, fee, penalty, fine or assessment. 2. Denies an application for a permit or license that is issued by the state agency. 3. Requests corrections, revisions or additional information or materials needed for approval of any application for a permit, license or other authorization that is issued by the state agency. C. An employee who is authorized and able to provide information about any communication that is described in subsection B of this section shall reply within five business days after the state agency receives that communication. 41-1007. Award of costs and fees against a department in administrative hearings; exceptions; definitions A. Except as provided in section 32-3632 and section 42-2064, subsection F, a hearing officer or administrative law judge shall award fees and other costs to any prevailing party in a contested case or an appealable agency action brought pursuant to any state administrative hearing authority. For purposes of this subsection, a person is considered to be a prevailing party only if both: 1. The agency's position was not substantially justified. 2. The person prevails as to the most significant issue or set of issues unless the reason that the person prevailed is due to an intervening change in the law. B. Reimbursement under this section may be denied if during the course of the proceeding the party unduly and unreasonably protracted the final resolution of the matter. C. A party that seeks an award of fees or other costs shall apply to the hearing officer or administrative law judge, within thirty days after the final decision or order, providing: 1. Evidence of the party's eligibility for the award. 2. The amount sought. 3. An itemized statement from the attorneys and experts stating: (a) The actual time spent representing the party. (b) The rate at which the fees were computed. D. The award of reasonable attorney fees pursuant to subsection A of this section need not equal or relate to the attorney fees actually paid or contracted, but an award may not exceed the amount paid or agreed to be paid. E. A decision of a hearing officer or administrative law judge under this section is subject to judicial review. If fees and other costs were denied by the hearing officer or administrative law judge because the party was not the prevailing party but the party prevails on appeal, the court may award fees and other costs for the proceedings before the hearing officer or administrative law judge if the court finds that fees and other costs should have been awarded under subsection A of this section. F. The department shall pay the fees and costs awarded pursuant to this section from any monies appropriated to the department and available for that purpose, or from other operating costs of the department. If the department fails or refuses to pay the award within thirty days after the demand, and if no further review or appeals of the award are pending, the person may file a claim for the award with the department of administration which shall pay the claim within thirty days in the same manner as an uninsured property loss under chapter 3.1, article 1 of this title, except that the department shall be responsible for the total amount awarded and shall pay it from operating monies. If the department had appropriated monies available for paying the award at the time it failed or refused to pay, the legislature shall reduce the department's operating appropriation for the following fiscal year by the amount of the award and appropriate that amount to the department of administration as reimbursement for the loss. G. This section does not apply to: 1. Any grievance and appeal procedure pursuant to title 36, chapter 29. 2. Any appeal procedure pursuant to chapter 4, article 6 of this title. 3. Any administrative appeal filed by an inmate in an Arizona state prison. H. For the purposes of this section: 1. "Department" includes a state agency, department, board or commission, and the universities. 2. "Party" includes an individual, partnership, corporation, limited liability company, limited liability partnership, association and public or private organization. 41-1008. Fees; specific statutory authority A. Except as provided in subsection C of this section, an agency shall not: 1. Charge or receive a fee or make a rule establishing a fee unless the fee for the specific activity is expressly authorized by statute or tribal state gaming compact. 2. Make a rule establishing a fee that is solely based on a statute that generally authorizes an agency to recover its costs or to accept gifts or donations. 3. Increase a fee in an amount that exceeds the percentage of change in the average consumer price index as published by the United States department of labor, bureau of labor statistics between that figure for the latest calendar year and the calendar year in which the last fee increase occurred. An agency may increase a fee in an amount that exceeds the percentage of change in the average consumer price index if either of the following applies: (a) The agency submits the fee increase to the joint legislative budget committee for review before the fee is increased. (b) The agency is required to submit an annual report that includes information about the fee to members of the legislature. B. An agency shall identify the statute or tribal state gaming compact that authorizes the fee on documents relating to collection of the fee. C. An agency authorized by statute or tribal state gaming compact to conduct background checks may charge a fingerprint fee without a statute expressly authorizing the fee. D. Unless the legislature grants an express exemption through statute or session law from all requirements of this chapter for establishing or increasing a fee, an agency shall comply with all applicable rule making provisions to establish or increase the fee. The agency shall not charge or receive the fee until the rule establishing or increasing the fee is effective under the applicable law of this state. E. A fee that is established or increased by exempt rule making from and after September 30, 2012 is effective for two years unless an extension is granted by the council. F. After the expiration of the applicable period under subsection E of this section, the agency shall not charge or receive the fee unless the agency has complied with the rule making requirements of this chapter to establish or increase the fee. G. A person regulated by the rule may petition the council to establish a date that is different than the date under subsection E of this section but no earlier than two years after the exempt rule is made. The agency shall respond to the petition within two weeks after the council notifies the agency that the petition has been filed. Within sixty days the council shall grant or deny the petition after considering whether the public interest requires a different date. 41-1009. Inspections and audits; applicability; exceptions A. An agency inspector, auditor or regulator who enters any premises of a regulated person for the purpose of conducting an inspection or audit shall, unless otherwise provided by law: 1. Present photo identification on entry of the premises. 2. On initiation of the inspection or audit, state the purpose of the inspection or audit and the legal authority for conducting the inspection or audit. 3. Disclose any applicable inspection or audit fees. Notwithstanding any other law, a regulated person being inspected or audited is responsible for only the direct and reasonable costs of the inspection or audit and is entitled to receive a detailed billing statement as described in paragraph 5, subdivision (e) of this subsection. 4. Afford an opportunity to have an authorized on-site representative of the regulated person accompany the agency inspector, auditor or regulator on the premises, except during confidential interviews. 5. Provide notice of the right to have on request: (a) Copies of any original documents taken by the agency during the inspection or audit if the agency is allowed by law to take original documents. (b) A split of any samples taken during the inspection if the split of any samples would not prohibit an analysis from being conducted or render an analysis inconclusive. (c) Copies of any analysis performed on samples taken during the inspection. (d) Copies of any documents to be relied on to determine compliance with licensure or regulatory requirements if the agency is otherwise allowed by law to do so. (e) A detailed billing statement that provides reasonable specificity of the inspection or audit fees imposed pursuant to paragraph 3 of this subsection and that cites the statute or rule that authorizes the fees being charged. 6. Inform each person whose conversation with the agency inspector, auditor or regulator during the inspection or audit is tape recorded that the conversation is being tape recorded. 7. Inform each person who is interviewed during the inspection or audit that: (a) Statements made by the person may be included in the inspection or audit report. (b) Participation in an interview is voluntary, unless the person is legally compelled to participate in the interview. (c) The person is allowed at least twenty-four hours to review and revise any written witness statement that is drafted by the agency inspector, auditor or regulator and on which the agency inspector, auditor or regulator requests the person's signature. (d) The agency inspector, auditor or regulator may not prohibit the regulated person from having an attorney or any other experts in their field present during the interview to represent or advise the regulated person. 8. At the end of the inspection, offer to review, with an authorized representative of the regulated person, the findings of the inspection and what agency actions the regulated person can expect. B. On initiation of an audit or an inspection of any premises of a regulated person, an agency inspector, auditor or regulator shall provide the following in writing: 1. The rights described in subsection A of this section and section 41-1001.01, subsection C. 2. The name and telephone number of a contact person who is available to answer questions regarding the inspection or audit. 3. The due process rights relating to an appeal of a final decision of an agency based on the results of the inspection or audit, including the name and telephone number of a person to contact within the agency and any appropriate state government ombudsman. 4. A statement that the agency inspector, auditor or regulator may not take any adverse action, treat the regulated person less favorably or draw any inference as a result of the regulated person's decision to be represented by an attorney or advised by any other experts in their field. 5. A notice that if the information and documents provided to the agency inspector, auditor or regulator become a public record, the regulated person may redact trade secrets and proprietary and confidential information unless the information and documents are confidential pursuant to statute. 6. The time limit or statute of limitations applicable to the right of the agency inspector, auditor or regulator to file a compliance action against the regulated person arising from the inspection or audit, which applies to both new and amended compliance actions. C. An agency inspector, auditor or regulator shall obtain the signature of the regulated person or on-site representative of the regulated person on the writing prescribed in subsection B of this section and section 41-1001.01, subsection C, if applicable, indicating that the regulated person or on-site representative of the regulated person has read the writing prescribed in subsection B of this section and section 41-1001.01, subsection C, if applicable, and is notified of the regulated person's or on-site representative of the regulated person's inspection or audit and due process rights. The agency inspector, auditor or regulator may provide an electronic document of the writing prescribed in subsection B of this section and section 41-1001.01, subsection C and, at the request of the regulated person or on-site representative, obtain a receipt in the form of an electronic signature. The agency shall maintain a copy of this signature with the inspection or audit report and shall leave a copy with the regulated person or on-site representative of the regulated person. If a regulated person or on-site representative of the regulated person is not at the site or refuses to sign the writing prescribed in subsection B of this section and section 41-1001.01, subsection C, if applicable, the agency inspector, auditor or regulator shall note that fact on the writing prescribed in subsection B of this section and section 41-1001.01, subsection C, if applicable. D. An agency that conducts an inspection shall give a copy of the inspection report to the regulated person or on-site representative of the regulated person either: 1. At the time of the inspection. 2. Notwithstanding any other state law, within thirty working days after the inspection. 3. As otherwise required by federal law. E. The inspection report shall contain alleged deficiencies identified during an inspection. Unless otherwise provided by state or federal law, the agency shall provide the regulated person an opportunity to correct the alleged deficiencies unless the agency documents in writing as part of the inspection report that the alleged deficiencies are: 1. Committed intentionally. 2. Not correctable within a reasonable period of time as determined by the agency. 3. Evidence of a pattern of noncompliance as demonstrated by alleged deficiencies previously identified in an inspection report or other written notice at the same premises. 4. A significant risk to any person, the public health, safety or welfare or the environment. F. If the agency is unsure whether a regulated person meets the exemptions in subsection E of this section, the agency shall provide the regulated person with an opportunity to correct the alleged deficiencies. G. If the agency allows the regulated person an opportunity to correct the alleged deficiencies pursuant to subsection E of this section, the regulated person shall notify the agency when the alleged deficiencies have been corrected. Within thirty days after receipt of notification from the regulated person that the alleged deficiencies have been corrected, the agency shall determine if the regulated person is in substantial compliance and notify the regulated person whether or not the regulated person is in substantial compliance. If the regulated person fails to correct the alleged deficiencies or the agency determines the alleged deficiencies have not been corrected within a reasonable period of time, the agency may take any enforcement action authorized by law for the alleged deficiencies. H. If the agency does not allow the regulated person an opportunity to correct alleged deficiencies pursuant to subsection E of this section, on the request of the regulated person, the agency shall provide a detailed written explanation of the reason that an opportunity to correct was not allowed. I. An agency decision pursuant to subsection E or G of this section is not an appealable agency action. J. At least once every month after the commencement of the inspection, an agency shall provide a regulated person with an update on the status of any agency action resulting from an inspection of the regulated person. An agency is not required to provide an update after the regulated person is notified that no agency action will result from the agency inspection or after the completion of agency action resulting from the agency inspection. K. For agencies with authority under title 49, if, as a result of an inspection or any other investigation, an agency alleges that a regulated person is not in compliance with licensure or other applicable regulatory requirements, the agency shall provide written notice of that allegation to the regulated person. The notice shall contain the following information: 1. A citation to the statute, regulation, license or permit condition on which the allegation of deficiency is based, including the specific provisions in the statute, regulation, license or permit condition that are alleged to be violated. 2. Identification of any documents relied on when determining the allegation of deficiency. 3. An explanation stated with reasonable specificity of the regulatory and factual basis for the allegation of deficiency. 4. Instructions for obtaining a timely opportunity to discuss the alleged deficiencies with the agency. L. Subsection K of this section applies only to inspections or any other investigations necessary for the issuance of a license or to determine compliance with licensure or other regulatory requirements. Subsection K of this section does not apply to an action taken pursuant to section 11-871, 11-876, 11-877, 49-457.01, 49-457.03 or 49-474.01. Issuance of a notice under subsection K of this section is not a prerequisite to otherwise lawful agency actions seeking an injunction or issuing an order if the agency determines that the action is necessary on an expedited basis to abate an imminent and substantial endangerment to public health or the environment and documents the basis for that determination in the documents initiating the action. M. This section does not authorize an inspection or any other act that is not otherwise authorized by law. N. Except as otherwise provided in subsection L of this section, this section applies only to inspections necessary for the issuance of a license or to determine compliance with licensure or other regulatory requirements applicable to a licensee and audits pursuant to enforcement of title 23, chapters 2 and 4. This section does not apply: 1. To criminal investigations, investigations under tribal state gaming compacts and undercover investigations that are generally or specifically authorized by law. 2. If the agency inspector, auditor or regulator has reasonable suspicion to believe that the regulated person may be engaged in criminal activity. 3. To the Arizona peace officer standards and training board established by section 41-1821. 4. To certificates of convenience and necessity that are issued by the corporation commission pursuant to title 40, chapter 2. O. If an agency inspector, auditor or regulator gathers evidence in violation of this section, the violation may be a basis to exclude the evidence in a civil or administrative proceeding. P. Failure of an agency, board or commission employee to comply with this section: 1. May subject the employee to disciplinary action or dismissal. 2. Shall be considered by the judge and administrative law judge as grounds for reduction of any fine or civil penalty. Q. An agency may make rules to implement subsection A, paragraph 5 of this section. R. Nothing in this section shall be used to exclude evidence in a criminal proceeding. S. Subsection A, paragraph 7, subdivision (c) and subsection E of this section do not apply to the department of health services for the purposes of title 36, chapters 4 and 7.1. T. Subsection B, paragraph 5 and subsection E of this section do not apply to the corporation commission for the purposes of title 44, chapters 12 and 13. U. Except as otherwise prescribed by this section and notwithstanding any other law: 1. This section applies to all state agencies that conduct inspections and audits. 2. If a conflict arises between the rights afforded a regulated person pursuant to this section and the rights afforded a regulated person pursuant to another statute, this section governs. 41-1010. Complaints; public record Notwithstanding any other law, a person shall disclose the person's name during the course of reporting an alleged violation of law or rule. During the course of an investigation or enforcement action, the name of the complainant shall be a public record unless the affected agency determines that the release of the complainant's name may result in substantial harm to any person or to the public health or safety. 41-1010.01. Proper venue; appeals of final administrative decisions A. A party that appeals a final administrative decision to the superior court may bring the action in any proper venue. B. Unless otherwise provided by statute, the proper venue may include any of the following: 1. The county where the plaintiff, claimant or appellant resides. 2. The county where the plaintiff's, claimant's or appellant's principal place of business is located. 3. The county where the agency is headquartered. 4. Maricopa county. C. Unless otherwise provided by statute, an agency may not do either of the following: 1. Restrict the proper venue for any appeal of a final administrative decision. 2. Require a party to travel to the agency's county, venue or headquarters to submit or receive documentation that supports the analysis used to propose or finalize a final administrative decision. D. Pursuant to section 12-905, if the proper venue for an action to review a final administrative decision is expressly prescribed by statute, such venue shall control. 41-1011. Preparation and publication of code and register A. The secretary of state shall prepare and publish the code and register. B. The secretary of state shall prescribe a uniform numbering system and have reasonable discretion to determine the form and style for rules filed with and published by the office. The secretary of state shall refuse to accept a rule notice or other notice filing if the notice or filing does not comply with the secretary of state's prescribed filing requirements, numbering system, form and style. C. The secretary of state shall assign titles and chapters to agencies and prepare, arrange and correlate rules and other text as necessary when publishing the code and register. The secretary of state may not alter the sense, meaning or effect of any rule but may renumber rules and parts of rules, rearrange rules, change reference numbers to agree with renumbered rules and parts of rules, substitute the proper rule number for "the preceding rule" and similar terms, delete figures if they are merely a repetition of written words, change capitalization for the purpose of uniformity and correct manifest clerical or typographical errors. With the consent of the attorney general, the secretary of state may remove from the code a provision of a rule that a court of final appeal declares unconstitutional or otherwise invalid and a rule made by an agency that is abolished if the rule is not transferred to a successor agency. The secretary of state shall remove a rule from the code when notified by the governor's regulatory review council that the rule has expired pursuant to section 41-1056, subsection J. 41-1012. Code; publication of rules; notification A. The code shall contain the full text of each final, expedited and emergency rule filed with the secretary of state and each exempt rule filed with the secretary of state to be published pursuant to a statutory exemption from the applicability of this chapter. The secretary of state shall remove each expired rule as prescribed in section 41-1011, subsection C. B. The secretary of state shall electronically publish at least once every quarter a code supplement. Publication of a rule by the secretary of state as provided in this section constitutes prima facie evidence of the making, approving and filing of a final, emergency or exempt rule pursuant to this chapter or a statutory exemption from the applicability of this chapter. C. The secretary of state shall offer an e-mail service for persons to receive notification when a quarterly supplement has been published. The service shall include a list of chapters published and where the chapters are posted. D. The secretary of state shall publish the code electronically for free. The secretary of state shall establish a commercial use fee pursuant to section 39-121.03. The secretary of state shall honor any paper subscription in place by the end of fiscal year 2017-2018 until the subscription expires. 41-1013. Register A. The secretary of state shall electronically publish the register at least once each month and include the contents listed under subsection B of this section. The secretary of state shall publish the notices that are filed with the secretary of state during the preceding thirty days. The register shall include a table of contents and a cumulative index. B. The register shall contain the following: 1. Notices of rulemaking docket openings, including the subject matter of the rules under consideration. 2. Notices of proposed rulemaking. 3. Notices of supplemental proposed rulemaking. 4. Notices of proposed exempt rulemaking for agencies that are exempt from the requirements of chapter 6 of this title but that are required to publish the notice in the register. 5. Notices of oral proceedings if the oral proceeding was not listed in the notice of rulemaking docket opening as provided in section 41-1021, subsection B, paragraph 5. 6. Notices of final exempt rulemaking for agencies that are exempt from the requirements of chapter 6 of this title. For the purposes of this paragraph, "final exempt rulemaking" means rulemaking in which an agency received public comment on the rulemaking regardless of whether the proposed rulemaking was published in the register or elsewhere by the agency as required in the exemption. 7. Notices of exempt rulemaking for agencies that have a onetime exemption from the requirements of chapter 6 of this title or that are exempt pursuant to section 41-1005. For the purposes of this paragraph, "exempt rulemaking" means a rulemaking in which an agency did not publish a notice of proposed rulemaking and the agency was not required to conduct a public hearing or receive public comments. 8. Proposed and final notices of expedited rulemaking and notices that an objection was received regarding a proposed expedited rulemaking. 9. Notices of an agency substantive policy statement. The notice of a substantive policy statement shall contain the name and summary of the policy statement and the website address where the full text of the document is available, if practicable. 10. Notices of intent to increase state museum fees pursuant to section 15-1631. 11. Notices of actions taken by the governor's regulatory review council. 12. Notices of an agency guidance document or revisions to a guidance document. This notice shall contain the name and a summary of the guidance document and information where a person may view the document in its entirety. 13. Notices of each agency ombudsman pursuant to section 41-1006. 14. Notices of public information that pertain to rulemaking notices. 15. Deadlines of the governor's regulatory review council. C. All notices listed in subsection B of this section, except the notices under subsection B, paragraphs 1, 5, 9, 10, 11, 12, 13, 14 and 15 of this section, must include a preamble and the full text of the rule being proposed, amended, renumbered or repealed. D. The register shall be published electronically for free. The secretary of state shall establish a commercial-use fee pursuant to section 39-121.03. Any paper subscription in place at the end of fiscal year 2016-2017 shall be honored until the subscription expires. E. For the purposes of this section, full text publication in the register includes new, amended, renumbered, repealed and existing language that an agency deems necessary for the proper understanding of a rule notice. Rules that are undergoing extensive revision may be reprinted in whole. Existing rule language that is not required for understanding shall be omitted and marked "no change". 41-1014. Department of child safety; final rules The secretary of state shall publish on its website an