TITLE 1 GENERAL
GOVERNMENT ADMINISTRATION
CHAPTER 24 RULES
PART 25 DEFAULT
PROCEDURAL RULE FOR RULEMAKING
1.24.25.1 ISSUING AGENCY: New Mexico
Office of the Attorney General, 408 Galisteo Street,
Santa Fe, NM 87501.
[1.24.25.1
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1.24.25.2 SCOPE:
State agencies that have not adopted their own procedural rules
consistent with the State Rules Act, Sections 14-4-1 to -11 NMSA 1978 (1967, as
amended through 2017).
[1.24.25.2
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1.24.25.3 STATUTORY AUTHORITY:
Section 14-4-5.8 NMSA 1978.
[1.24.25.3
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1.24.25.4 DURATION:
Permanent.
[1.24.25.4
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1.24.25.5 EFFECTIVE DATE:
April 10, 2018, unless a later date is cited at the end of a section.
[1.24.25.5
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1.24.25.6 OBJECTIVE:
To provide default procedural rules for
public rule hearings for use by agencies that have not adopted their own
procedural rules consistent with the State Rules Act and to facilitate public
engagement with the administrative rulemaking process in a transparent,
organized, and fair manner.
[1.24.25.6
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1.24.25.7 DEFINITIONS:
This rule adopts the definitions found in Section 14-4-2 NMSA 1978.
[1.24.25.7
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1.24.25.8 AGENCY ADOPTION OF PROCEDURAL RULES:
A. Agencies that have not adopted their
own procedural rules consistent with the State Rules Act shall apply these
default rules, until such time as they have adopted their own rules.
B. Agencies may adopt these default
rules, in whole or in part as their own, or continue to use their existing
rules, so long as those rules satisfy the requirements of the State Rules Act
and provide as much opportunity for public participation as provided by these
rules.
C. Agencies that adopt their own rules
must submit a copy to the office of the attorney general within 30 calendar
days of adoption, and post a copy of those rules on the agency’s website, if
one exists.
[1.24.25.8
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1.24.25.9 INITIATION OF THE RULEMAKING PROCESS BY AN AGENCY:
A. The rulemaking process may be
initiated by an agency when a notice for a rule hearing is publicly posted
pursuant to this rule.
B. The agency shall proceed with the
rulemaking process by posting public notice, publishing the proposed rule for
comment, and setting a public rule hearing in accordance with the State Rules
Act and any other applicable law.
C. If the agency is a public body
subject to the Open Meetings Act, the decision to initiate the rulemaking
process must be an action taken by vote of the public body in open session.
D. Once the agency initiates the
rulemaking process, the agency must maintain a record as prescribed in Section
14-4-5.4 NMSA 1978.
[1.24.25.9
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1.24.25.10 INITIATION OF THE RULEMAKING PROCESS BY THE PUBLIC:
A. Any person may file a petition for
rulemaking with an agency.
B. A petition for rulemaking shall be
made in writing and include an explanation of the purpose or statement of
reasons for the proposed rule. A
petition shall include a citation to the legal authority authorizing the agency
to adopt the rule and a copy of or citation to technical information, if any,
that serves as the basis for the proposed rule.
A petition should be as clear as possible and may include the proposed
rule in underline and strikethrough format, consistent with requirements of the
state records administrator.
C. The agency to which a petition is
made shall, if required by law, consider the petition and make a determination
whether to grant or deny the petition.
If the agency denies the petition, it shall issue a concise written
statement explaining its reason for denial.
No affirmative duty to respond to a public petition is created by these
rules. If a public right to petition an
agency exists in law, the agency must follow all timelines or responses
governed by law of the agency.
D. If the agency is a public body
subject to the Open Meetings Act, the decision to grant a petition must be an
action taken by vote of the public body in open session.
E. Once the agency initiates the
rulemaking process, the agency must maintain a record as prescribed in Section
14-4-5.4 NMSA 1978.
[1.24.25.10
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1.24.25.11 RULEMAKING NOTICE:
The agency shall provide to the public, as defined in Section 14-4-2
NMSA 1978, notice of the proposed rulemaking a minimum of 30 calendar days
prior to the public rule hearing and in accordance with requirements of Section
14-4-5.2 NMSA 1978.
[1.24.25.11
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1.24.25.12 WRITTEN COMMENT PERIOD:
A. The public comment period must be at
least 30 calendar days, beginning after publication of the notice in the New
Mexico register and issuance of the rulemaking notice. The agency shall not adopt a proposed rule
before the end of the public comment period.
B. A person may submit, by mail or
electronic form, written comments on a proposed rule, and those comments shall
be made part of the record. Written
comments may be submitted through the end of the public comment period.
C. The agency may decide to amend the
comment period if it provides to the public, as defined in Section 14-4-2 NMSA
1978, notice of the changes.
D. The agency shall post all written
comments on its website, if one exists, as soon as practicable,
and no more than 3 business days following receipt to allow for public
review. All written comments received by
the agency shall also be available for public inspection at the main office of
the agency.
[1.24.25.12
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1.24.25.13 PUBLIC HEARING:
A. Prior to adopting a proposed rule, the
agency must hold a public rule hearing.
The purpose of the hearing is to provide all interested persons a
reasonable opportunity to submit data, views or arguments orally or in writing
on the proposed rule. The agency, at its
sole discretion, may determine whether to hold more than one hearing.
B. The agency may act as the hearing
officer or designate an individual hearing officer to preside over the
hearing. The hearing officer may ask
questions and provide comments for clarification purposes only, but should
refrain from providing opinions or engaging in discussion regarding the merits
of the proposed rule or any public comment presented.. The hearing officer shall
identify and mark all written comments submitted during the public comment
period, as well as any written comments submitted during the hearing. The public comment should be labeled as
exhibits for reference, but do not require formal admission into the hearing
record.
D. Individuals wishing to provide
public comment or submit information at the hearing must state their name and
any relevant affiliation for the record and be recognized before
presenting. Public comment shall not be
taken under oath unless required by law or separate rule of the agency. Any individual who provides public comment at
the hearing may be questioned by the agency or hearing officer or, at the
discretion of the agency or hearing officer, or as otherwise provided by law,
by other persons at the hearing.
E. The hearing shall be conducted in a
fair and equitable manner. The agency or
hearing officer may determine the format in which the hearing is conducted
(e.g. introduction of each part or section one at a time for comment), but the
hearing should be conducted in a simple and organized manner that facilitates
public comment and a clear rulemaking record.
F. The rules of evidence do not apply
to public rule hearings and the agency or hearing officer may, in the interest
of efficiency, exclude or limit comment or questions deemed irrelevant,
redundant, or unduly repetitious.
G. The agency must hold the hearing in
a venue that reasonably accommodates all persons who wish to participate or
observe, and appropriate audio equipment should be secured to ensure all in
attendance can hear the proceeding and be heard when presenting comment. Reasonable efforts shall be made to
accommodate the use of audio and video recording devices. Hearings shall be open to the public, but are
not subject to the New Mexico Open Meetings Act, unless conducted by a quorum
of a public body.
H. The hearing shall be recorded by any
stenographic method in use in the district court or by audio recording.
[1.24.25.13
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1.24.25.14 RULEMAKING RECORD AND ADOPTION OF RULE:
A. The agency shall maintain a record
of the rulemaking proceeding as required in Section 14-4-5.4 NMSA 1978, and any
written comment, document, or other exhibit entered into the record during the
rule hearing shall be labeled clearly.
Pre-filed written comments are part of the rulemaking record without the
need for formal admission. Pre-filed
comments include, but are not limited to: the petition; public notices of the rulemaking,
including any lists of individuals to whom notice was mailed or sent
electronically; the proposed rule in underline and strikethrough format; and
any written comment submitted during the comment period prior to the rule
hearing. Written comments or other
documents introduced during the hearing should be admitted into the record
after being marked as an exhibit.
B. If the rule hearing is conducted by
a designated hearing officer, the complete rulemaking record, including any
memoranda summarizing the contents of the hearing, if written, shall be
compiled and forwarded to the agency head or members of the board or commission
with sufficient time to review. The
agency head or members of the board or commission shall familiarize themselves
with the rulemaking record before rendering a decision on the proposed rule.
C. The agency may adopt, amend or
reject the proposed rule. Any amendments
to the proposed rule must fall within the scope of the current rulemaking
proceeding. Amendments that exceed the
scope of the noticed rulemaking may require a new rulemaking proceeding. Amendments to a proposed rule may fall
outside of the scope of the rulemaking based on the following factors:
(1) any person affected by the adoption of the rule, if amended,
could not have reasonably expected that the change from the published proposed
rule would affect the person’s interest;
(2) subject matter of the amended rule or the issues determined
by that rule are different from those in the published proposed rule; or
(3) effect of the adopted rule differs from the effect of the
published proposed rule.
D. In instances where the agency is
a board or commission, consideration and approval of adoption of the proposed
rule shall occur during a public meeting.
E. The
date of adoption of the proposed rule shall be the date the concise explanatory
statement is signed by the agency, unless otherwise specified in the concise
explanatory statement.
F. The concise explanatory statement
shall include, but not limited to, the following:
(1) citation to specific statutory or other authority
authorizing the rule;
(2) effective date of the rule;
(3) date
of adoption of the rule, if different than the date of the concise explanatory
statement;
(4) if the agency is a board or commission, the date of the
meeting at which the agency voted to approve the adoption of the rule;
(5) reasons for adopting the rule, including any findings
otherwise required by law of the agency, and a summary of any independent
analysis done by the agency;
(6) reasons for any change between the published proposed rule
and the final rule; and
(7) reasons for not accepting substantive arguments made through
public comment.
[1.24.25.14
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1.24.25.15 FILING AND PUBLICATION; EFFECTIVE DATE:
A. Within 15
calendar days after the date of adoption of a rule, the agency shall file the
adopted rule with the state records administrator and shall provide to the
public the adopted rule and concise explanatory statement in accordance with
the State Rules Act.
B. Unless another
date is stated in the agency’s concise explanatory statement, or otherwise
provided by law, the effective date of the rule shall be the date of
publication in the New Mexico register.
[1.24.25.15
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1.24.25.16 EMERGENCY RULES: The agency shall
comply with the rulemaking procedures in Section 14-4-5.6 NMSA 1978, regarding
the promulgation of emergency rules.
[1.24.25.16
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HISTORY OF 1.24.25 NMAC: [RESERVED]