TITLE 13 INSURANCE
CHAPTER 1 INSURANCE
GENERAL PROVISIONS
PART 4 PUBLIC RULE
HEARINGS
13.1.4.1 ISSUING AGENCY: New
Mexico Office of Superintendent of Insurance.
[13.1.4.1 NMAC - N, 7/1/2019]
13.1.4.2 SCOPE: This
rule applies to all proceedings within the New Mexico office of superintendent
of insurance in which the superintendent adopts rules pursuant to the State
Rules Act, Sections 14-4-1
through 14-4-11 NMSA 1978 (1967, as amended through 2017).
[13.1.4.2 NMAC - N, 7/1/2019]
13.1.4.3 STATUTORY
AUTHORITY: Sections 14-4-1 et seq, NMSA
1978, State Rules Act, and Section 59A-2-9 NMSA 1978.
[13.1.4.3 NMAC - N, 7/1/2019 ; A, 9/10/2024]
13.1.4.4 DURATION: Permanent.
[13.1.4.4 NMAC - N, 7/1/2019]
13.1.4.5 EFFECTIVE
DATE: July 1, 2019, unless a later date is cited at the end of a
section.
[13.1.4.5 NMAC - N, 7/1/2019]
13.1.4.6 OBJECTIVE:
To provide procedural
rules for public rule hearings for use by the New Mexico office of superintendent
of insurance consistent with the State Rules Act and to facilitate public
engagement with the superintendent’s rulemaking process in a transparent,
organized, and fair manner.
[13.1.4.6 NMAC - N, 7/1/2019]
13.1.4.7 DEFINITIONS: This rule adopts the definitions
found in Section 14-4-2 NMSA 1978
and in 13.1.1.7
NMAC. In addition:
A. “Business day” means Monday through
Friday, excluding holidays observed by the state.
B. “Final order” also means “concise
explanatory statement” as described in Section 14-4-5.5 NMSA 1978.
C. “Logical outgrowth” occurs when a final rule
differs from the proposed rule if
interested parties should have anticipated that the change was possible, and
thus reasonably should have filed their comments on the subject during the
notice-and-comment period.
D. “OSI” means the New Mexico office of
superintendent of insurance.
[13.1.4.7 NMAC - N, 7/1/2019; A, 9/10/2024]
13.1.4.8 INITIATION
OF THE RULEMAKING PROCESS BY THE SUPERINTENDENT:
A. The rulemaking process may be
initiated by the superintendent through a notice for a rule hearing that is
publicly posted pursuant to this rule and pursuant to 14-4-5.2 NMSA 1978.
B. The superintendent 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. Once the superintendent initiates
the rulemaking process, the superintendent must maintain a rulemaking record as
prescribed in Section 14-4-5.4 NMSA 1978.
[13.1.4.8 NMAC - N, 7/1/2019; A, 9/10/2024]
13.1.4.9 INITIATION
OF THE RULEMAKING PROCESS BY THE PUBLIC:
A. Any person may file a petition for rulemaking with the
superintendent.
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 superintendent 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 superintendent shall, if
required by law, consider the petition and make a determination within 30
calendar days whether to grant or deny the petition. If the superintendent denies the petition,
the superintendent shall issue a final order explaining the reason for
denial. No affirmative duty to respond
to a public petition is created by these rules.
If a public right to petition the superintendent exists in the insurance
code, the superintendent must follow all timelines or responses governed by the
insurance code.
D. Once the superintendent initiates the rulemaking process,
the superintendent must maintain a rulemaking record as prescribed in Section 14-4-5.4 NMSA 1978.
[13.1.4.9 NMAC - N, 7/1/2019; A, 9/10/2024]
13.1.4.10 RULEMAKING
NOTICE: The
superintendent 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.
[13.1.4.10 NMAC - N, 7/1/2019]
13.1.4.11 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 superintendent shall not adopt a proposed
rule before the end of the public comment period.
B. As long as
the public comment period is at least 30 calendar days, the public comment
period will close for initial comments at 4:00 p.m. five days prior to the date
of the hearing. For purposes only of
responses to written comments or oral comments at the public hearing, the
public response period will close at 4:00 p.m. one business day after
the date of the final public hearing.
C. A person may
submit, by mail or electronic form, written comments or responses to comments
on a proposed rule, and those comments or responses shall be made part of the rulemaking
record.
D. The superintendent may decide to
amend the comment period, or response period, if the superintendent provides to
the public, as defined in Section 14-4-2 NMSA 1978,
notice of the changes.
E. The superintendent shall post all
written comments and responses on the OSI website and on the sunshine portal,
as soon as practicable, and no more than three business days following receipt
to allow for public review. All written
comments and responses received by the superintendent shall also be available
for public inspection at the main office of OSI.
[13.1.4.11 NMAC - N, 7/1/2019; A, 9/10/2024]
13.1.4.12 PUBLIC
HEARING:
A. Prior to adopting a proposed rule,
the superintendent 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 superintendent, at the superintendent’s discretion, directly or
through a designated hearing officer, may determine whether to hold more than
one hearing.
B. The superintendent 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.
All written comments submitted during the public comment period, as well
as any written comments submitted during the hearing, will be made part of the rulemaking
record.
C. Individuals wishing to provide public comment or submit
information at the hearing must state their name and any relevant affiliation
for the rulemaking record and must be recognized by the hearing officer before
presenting. Public comment shall not be
taken under oath unless required by law or separate rule. Any individual who provides public comment at
the hearing may be questioned by the superintendent or hearing officer or, at
the discretion of the superintendent or hearing officer, or as otherwise
provided by law, by other persons at the hearing.
D. The hearing shall be conducted in a fair and equitable
manner. The superintendent 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 will be conducted in a simple and organized manner that facilitates
public comment and a clear rulemaking record.
E. The rules of evidence do not apply to public rule
hearings and the superintendent or hearing officer may, in the interest of
efficiency, exclude or limit comment or questions deemed irrelevant, redundant,
or unduly repetitious.
F. The superintendent 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.
G. The hearing shall be recorded by any
stenographic method in use in the district court or by audio recording.
[13.1.4.12 NMAC - N, 7/1/2019; A, 9/10/2024]
13.1.4.13 RULEMAKING
RECORD AND ADOPTION OF RULE:
A. The superintendent 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 rulemaking 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
superintendent with sufficient time to review.
The superintendent shall review the rulemaking record before rendering a
final decision on the proposed rule.
C. The superintendent 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 to a proposed
rule are within the scope of the rulemaking if the amendments:
(1) are
a logical outgrowth of the rule proposed in the notice; or
(2) are
proposed, or are reasonably suggested, by comments made during the comment
period, and the 10 day response period after the close of the comment period
has been provided; and
(a) any person affected by the
adoption of the rule, if amended, should have reasonably expected that any
change from the published proposed rule would affect that person’s interest; or
(b) the subject matter of the
amended rule or the issues determined by that rule are the same as those in the
published proposed rule.
D. The date of adoption of the proposed
rule shall be the date the final order is signed by the superintendent, unless
otherwise specified in the final order.
E. In accordance with Section 14-4-5.5
NMSA 1978, the final order shall include but not be 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 final order;
(4) reasons for adopting the rule,
including any findings otherwise required by law of the superintendent, and a
summary of any independent analysis done by the superintendent;
(5) reasons for any change between the
published proposed rule and the final rule;
(6) any findings required by a provision
of law for adoption of the rule; and
(7) reasons for not accepting substantive
arguments made through public comment.
[13.1.4.13 NMAC - N, 7/1/2019; A, 9/10/2024]
13.1.4.14 FILING
AND PUBLICATION; EFFECTIVE DATE:
A. Within 15 calendar days after the
date of adoption of a rule, the superintendent shall file the adopted rule with
the state records administrator and shall provide to the public the adopted
rule and final order in accordance with the State Rules Act.
B. Unless another date is stated in the
superintendent’s final order, or otherwise provided by law, the effective date
of the rule shall be the date of publication in the New Mexico register.
[13.1.4.14 NMAC - N, 7/1/2019]
13.1.4.15 EMERGENCY
RULES: The
superintendent shall comply with the rulemaking procedures in Section 14-4-5.6 NMSA 1978, regarding the promulgation of
emergency rules.
[13.1.4.15 NMAC - N, 7/1/2019]
History of 13.1.4 NMAC: [RESERVED]