Arizona Administrative Register, Volume 23, Issue 09, March 3, 2017, p. 483-572

• Jurisdiction: Arizona
• Library: Arizona Register
• Published date: 03 March 2017
• Year: 2017

Notices of Final Rulemaking

March 3, 2017 | Published by the Arizona Secretary of State | Vol. 23, Issue 9 487

NOTICE OF FINAL RULEMAKING

TITLE 2. ADMINISTRATION

CHAPTER 8. STATE RETIREMENT SYSTEM BOARD

[R17-19]

PREAMBLE

1. Article, Part, or Section Affected (as applicable) Rulemaking Action

R2-8-401 Amend

R2-8-403 Amend

R2-8-405 Amend

2. Citations to the agency's statutory rulemaking authority to include both the authorizing statute (general) and the

implementing statute (specific):

Authorizing statute: A.R.S. § 38-714(E)(4)

Implementing statutes: A.R.S. §§ 41-1092 et seq.

3. The effective date for the rules:

April 8, 2017

a. If the agency selected a date earlier than the 60 day effective date as specified in A.R.S. § 41-1032(A),

include the earlier date and state the reason or reasons the agency selected the earlier effective date as

provided in A.R.S. § 41-1032(A)(1) through (5):

Not applicable

b. If the agency selected a date later than the 60 day effective date as specified in A.R.S. § 41-1032(A),

include the later date and state the reason or reasons the agency selected the later effective date as pro-

vided in A.R.S. § 41-1032(B):

Not applicable

4. Citations to all related notices published in the Register as specified in R1-1-409(A) that pertain to the record of

the final rulemaking package:

Notice of Docket Opening: 22 A.A.R. 2568, September 16, 2016

Notice of Proposed Rulemaking: 22 A.A.R. 2555, September 16, 2016

Notice of Supplemental Proposed Rulemaking: 22 A.A.R. 3234, November 18, 2016

5. The agency's contact person who can answer questions about the rulemaking:

Name: Jessica A.R. Thomas, Rules Writer

Address: Arizona State Retirement System

3300 N. Central Ave., Suite 1400

Phoenix, AZ 85012-0250

Telephone: (602) 240-2039

E-mail: JessicaT@azasrs.gov

6. An agency's justification and reason why a rule should be made, amended, repealed, o r renumbered, to include

an explanation about the rulemaking:

R2-8-401 contains definitions that are applicable to this Article. R2-8-401 needs to be amended to reflect that for purposes of

appeals, the “Board” refers to the Committee designated by the Board to hear appeals. R2-8-403 allows a person who is dissatis-

fied with a decision by the Director to file an appeal with the ASRS by submitting a Request for Hearing of an appealable agency

action. The ASRS will amend the rule to distinguish between an appeal related to a long-term disability determination and an

appeal related to a member benefits determination. R2-8-405 allows a person who is dissatisfied with the final decision of the

appeal to file a motion for rehearing or review. The ASRS will amend this rule to distinguish between a motion for reconsideration

and a motion for rehearing. The amended rules will better reflect the ASRS appeals process and will make the appeal rules more

consistent, clear, and understandable; this rulemaking will ensure members have notice about how the ASRS processes different

types of appeals.

NOTICES OF FINAL RULEMAKING

This section of the Arizona Administrative Register

contains Notices of Final Rulemaking. Final rules have

been through the regular rulemaking process as defined in

the Administrative Procedures Act. These rules were

either approved by the Governor’s Regulatory Review

Council or the Attorney General’s Office. Certificates of

Approval are on file with the Office.

The final published notice includes a preamble and

text of the rules as filed by the agency. Economic Impact

Statements are not published.

The Office of the Secretary of State is the filing office and

publisher of these rules. Questions about the interpretation

of the final rules should be addressed to the agency that

promulgated them. Refer to Item #5 to contact the person

charged with the rulemaking. The codified version of these

rules will be published in the Arizona Administrative Code.

488 Vol. 23, Issue 9 | Published by the Arizona Secretary of State | March 3, 2017

Notices of Final Rulemaking

7. A reference to any study relevant to the rule that the agency reviewed and either relied on or did not 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:

No study was reviewed.

8. A showing of good cause why the rulemaking is necessary to promote a statewide interest if the rulemaking will

diminish a previous grant of authority of a political subdivision of this state:

Not applicable

9. A summary of the economic, small business, and consumer impact:

The ASRS promulgates rules that allow the agency to provide for the proper administration of the state retirement trust fund.

ASRS rules affect ASRS members and ASRS employers regarding how they contribute to, and receive benefits from, the ASRS.

The ASRS effectively administrates how public-sector employers and employees participate in the ASRS. As such, the ASRS does

not issue permits or licenses, or charge fees, and its rules have little to no economic impact on private-sector businesses, with the

exception of some employer partner charter schools, which have voluntarily contracted to join the ASRS. Thus, there is little to no

economic, small business, or consumer impact, other than the minimal cost to the ASRS to prepare the rule package. The rule will

have minimal economic impact, if any, because it merely clarifies the appeals process. Clarifying the appeals process will increase

understandability of how a person may submit an appeal and will ensure members of the public understand how an appeal will be

handled with the ASRS, which will increase the effectiveness and efficiency of the appeals process; thus, reducing the regulatory

burden and the economic impact.

10. A description of any changes between the proposed rulemaking, including supplemental notices, and the final

rulemaking:

In November 2016, the ASRS filed a Notice of Supplemental Proposed Rulemaking with the Secretary of State in order to make

the following changes to the proposed rule language:

• In R2-8-403, the ASRS added subsection (H) to clarify when an appellant will receive a response to a letter of appeal at the assis-

tant director level.

• The ASRS further amended R2-8-403(D) to clarify when an appellant will receive a response letter to a letter of appeal at the

Director level.

• The ASRS changed “his designee” to “such director’s designee” in order to conform to rulemaking standards.

• The ASRS change “request” to “Request” in R2-8-403(E) in order to reflect that the rule addresses a “Request for a Hearing.”

11. An agency's summary of the public or stakeholder comments made about the rulemaking and the agency

response to the comments:

The ASRS received no written comments regarding the rulemaking. No one attended the oral proceedings on October 17, 2016 and

December 27, 2016.

12. All agencies shall list any other matters prescribed by statute applicable to the specific agency or to any specific

rule or class of rules. Additionally, an agency subject to Council review under A.R.S. §§ 41-1052 and 41-1055

shall respond to the following questions:

None

a. Whether the rule requires a permit, whether a general permit is used and if not, the reasons why a gen-

eral permit is not used:

The rules do not require a permit.

b. Whether a federal law is applicable to the subject of the rule, whether the rule is more stringent than fed-

eral law and if so, citation to the statutory authority to exceed the requirements of federal law:

There are no federal laws applicable to these rules.

c. Whether a person submitted an analysis to the agency that compares the rule's impact of the competi-

tiveness of business in this state to the impact on business in other states:

No analysis was submitted.

13. A list of any incorporated by reference material as specified in A.R.S. § 41-1028 and its location in the rule:

No materials are incorporated by reference.

14. Whether the rule was previously made, amended, or repealed as an emergency rule. If so, cite the notice

published in the Register as specified in R1-1-409(A). Also, the agency shall state where the text was changed

between the emergency and the final rulemaking packages:

Not applicable

15. The full text of the rules follows:

TITLE 2. ADMINISTRATION

CHAPTER 8. STATE RETIREMENT SYSTEM BOARD

ARTICLE 4. PRACTICE AND PROCEDURE BEFORE THE BOARD

Section

R2-8-401. Definitions

R2-8-403. Letters of Appeal; Request for a Hearing of an Appealable Agency Action

Notices of Final Rulemaking

March 3, 2017 | Published by the Arizona Secretary of State | Vol. 23, Issue 9 489

R2-8-405. Motion for Rehearing Before the Board; Motion for Review of a Final Decision

ARTICLE 4. PRACTICE AND PROCEDURE BEFORE THE BOARD

R2-8-401. Definitions

The following definitions apply to this Article, unless otherwise specified:

1. “Appealable agency action” means the same as in A.R.S. § 41-1092(3).

2. “Board” means a Committee designated by the Board to take action on appeals as described in A.R.S. § 38-714(E)(1).

3. “Final administrative action” means the same as in A.R.S. § 41-1092 and is rendered by the Board.

R2-8-403. Letters of Appeal; Request for a Hearing of an Appealable Agency Action

A. After receipt of an agency decision, a person who is not satisfied with the agency decision, may submit a letter of appeal:

1. To the ASRS’s vendor for long-term disability benefits, if the appeal relates to a long-term disability decision; or

2. To the ASRS Member Services Division Assistant Director, or such director’s designee, if the appeal relates to an agency deci-

sion other than a long-term disability decision.

B. Upon receipt of a letter of appeal, the long-term disability vendor, or the Member Services Division Assistant Director, or such direc-

tor’s designee, shall send a response letter to the person requesting the appeal notifying the person of:

1. The decision the agency is making in response to the letter of appeal; and

2. The person’s right to appeal the agency response by submitting a letter of appeal to the ASRS Director or such director’s desig-

nee.

C. A person who is not satisfied with the agency response pursuant to subsection (B) may submit a letter of appeal to the ASRS Director

or such director’s designee within 60 days of the date on the agency response letter.

D. Within 30 days of the date the ASRS receives a letter of appeal pursuant to subsection (C), the ASRS director or such director’s des-

ignee shall send a response letter by certified mail to the person requesting the appeal that includes:

1. The agency action the ASRS is taking in response to the letter of appeal; and

2. Notice of Appealable Agency Action, as required pursuant to A.R.S. § 41-1092.03 informing the person requesting the appeal,

that the person has a right to appeal the agency action by submitting a Request for Hearing pursuant to subsections (E) and (F).

A.E.AFor an appealable agency action, a person who is not satisfied with a decision by the Director an agency action pursuant to subsec-

tion (D) that is an appealable agency action may file a Request for a Hearing, in writing, with the DirectorASRS. The date the

Request is filed is established by the ASRS date stamp on the face of the first page of the Request. The request Request shall include

the following:

1. The name and mailing address of the member, employer, or other person filing the request Request;

2. The name and mailing address of the attorney for the person filing the request Request, if applicable;

3. A concise statement of the reasons for the appeal.

B.F. The person requesting a hearing shall file the Request for a Hearing with the ASRS Office of the Director within 30 days after receiv-

ing a response letter decision of the Director and including a Notice of an Appealable Agency Action, pursuant to subsection (E). The

date the request is filed is established by the Director’s date stamp on the face of the first page of the request.

C.G. Upon receipt of the Request for a Hearing, the ASRS shall notify the Office of Administrative Hearings as required in A.R.S. § 41-

1092.03(B).

H. Pursuant to subsection (B):

1. The long-term disability vendor shall send a response letter to the person requesting the appeal within 120 days of the date the

long-term disability vendor receives the letter of appeal; and

2. The Member Services Division Assistant Director, or such director’s designee, shall send a response letter to the person request-

ing the appeal within 30 days of the date the ASRS receives the letter of appeal.

R2-8-405. Motion for Rehearing Before the Board; Motion for Review of a Final Decision

A. Except as provided in subsection (H), within 30 days after service of the final administrative decision, any aggrieved party in an

appealable agency action aggrieved by a final decision may file with the Board a written motion Motion for rehearing Rehearing

Before the Board, in writing, or review of the final decision specifying the particular grounds for rehearing before the Board not later

than 30 days after service of the decision.

B. Except as provided in subsection (H), within 30 days after service of the final administrative decision, any aggrieved party of an

appealable agency action may file with the Board a Motion for Review of a Final Decision, in writing, specifying the particular

grounds for reviewing the Board’s final administrative decision.

B.C. A party may amend a motion Motion for rehearing Rehearing Before the Board or a Motion for review Review of a Final Decision at

any time before the Board rules on the motion. A party may file a response within 15 days after the motion or the amended motion is

filed. The Board may require the filing of written briefs upon the issues raised in the motion or the amended motion, and may provide

for oral argument.

C.D. The Board may grant a Motion for rehearing Rehearing Before the Board or a Motion for review Review of a Final decision Decision

for any of the following causes that materially affecting affects the moving party’s rights:

1. Irregularity in the administrative proceedings of the agency or the hearing officer, or any order or abuse of discretion that

deprives the moving party of a fair hearing;

2. Misconduct of the Board, the hearing officer, or the prevailing party;

3. Accident or surprise that could not have been prevented by ordinary prudence;

4. Newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original

hearing;

5. Excessive or insufficient penalties;

6. Error in the admission or rejection of evidence or other errors of law occurring at the administrative hearing or during the pro-

cess of the action; or