New Mexico Register / Volume XXIX, Issue 18 / September 25, 2018

 

 

TITLE 21             AGRICULTURE AND RANCHING

CHAPTER 1        AGRICULTURE AND RANCHING GENERAL PROVISIONS

PART 1                 NMDA RULE MAKING PROCEDURES

 

21.1.1.1                 ISSUING AGENCY:  New Mexico Department of Agriculture, New Mexico State University

MSC 3189; PO Box 30005; Las Cruces, New Mexico 88003-8005; Telephone: (575) 646-3007

[21.1.1.1 NMAC, Rp, 21.1.1.1 NMAC, 11/01/2018]

 

21.1.1.2                 SCOPE:  This rule establishes a rulemaking procedure, which will enable the New Mexico department of agriculture to secure the views and statements of all interested persons concerning rules and regulations at the department in a transparent, organized and fair manner.

[21.1.1.2 NMAC, Rp, 21.1.1.2 NMAC, 11/01/2018]

 

21.1.1.3                 STATUTORY AUTHORITY:  Granted to the board of regents of New Mexico state university under Sections 76-1-2 NMSA 1978 compilation and shall apply to all New Mexico department of agriculture rulemaking proceedings.

[21.1.1.3 NMAC, Rp, 21.1.1.3 NMAC, 11/01/2018]

 

21.1.1.4                 DURATION:  Permanent.

[21.1.1.4 NMAC, Rp, 21.1.1.4 NMAC, 11/01/2018]

 

21.1.1.5                 EFFECTIVE DATE:  November 1, 2018, unless a later date is cited at the end of a section.

[21.1.1.5 NMAC, Rp, 21.1.1.5 NMAC, 11/01/2018]

 

21.1.1.6                 OBJECTIVE:  Standardize rule making procedures for the NMDA.

[21.1.1.6 NMAC, Rp, 21.1.1.6 NMAC, 11/01/2018]

 

21.1.1.7                 DEFINITIONS:  This rule adopts the definitions found in Section 14-4-2 NMSA 1978.

                A.            “Department” means the New Mexico department of agriculture.

                B.            “Director” means the director of the New Mexico department of agriculture.

[21.1.1.7 NMAC, Rp, 21.1.1.7 NMAC, 11/01/2018]

 

21.1.1.8                 ORDER OF ADVANCE NOTICE OF RULEMAKING:  For purposes of developing proposed rules and regulations, the department may request attendance at informal meetings or workshops.

[21.1.1.8 NMAC, Rp, 21.1.1.13 NMAC, 11/01/2018]

 

21.1.1.9                 RULEMAKING PREREQUISITES:

                A.            Prior to the adoption, amendment, or repeal of any rule, the department shall publish notice of its proposed action in the New Mexico register and at least 30 days prior to its proposed action, not including the publication or the day of proposed action, shall:

                                (1)           publish notice of its proposed action in newspapers or trade, industrial, or professional publications, as will reasonably give public notice to interested persons;

                                (2)           notify by mail or electronic mail any person or group filing a written request for such notification to the New Mexico department of agriculture, notification being by mail or electronic mail to the last address specified by the person or group; requests from such persons or groups shall be renewed annually.

                B.            The notice described in Subsection A of 21.1.1.9 NMAC above shall include:

                                (1)           information on the public hearing and how a person may participate;

                                (2)           information on how comments may be submitted to the department where the comments will be received, and when the comments are due;

                                (3)           a summary describing the full text of the proposed rule;

                                (4)           a short explanation describing the substance of the proposed action;

                                (5)           information on how the proposed rule may be obtained and internet link that provides free access to the full text of the proposed rule;

                                (6)           a reference to the statutory authority under which the rule is proposed; and

                                (7)           a citation to technical information, if any, and how to obtain the technical information.

[21.1.1.9 NMAC, Rp, 21.1.1.8 NMAC, 11/01/2018]

 

21.1.1.10               RULEMAKING HEARINGS:  Rulemaking hearings shall be conducted as follows.

                A.            The rules of civil procedure and the rules of evidence shall not apply.

                B.            Unless the circumstances otherwise justify the order of appearance will be as follows:

                                (1)           comments of department staff;

                                (2)           comments of each proponent;

                                (3)           comments of each opponent; and

                                (4)           comments of other interested persons.

[21.1.1.10 NMAC, Rp. 21.1.1.9 NMAC, 11/01/2018]

 

21.1.1.11               PUBLIC COMMENT: The department shall afford all interested persons reasonable opportunity to submit written data, views, or arguments in support of or opposition to a proposed rule. Any interested person seeking to modify a proposed rule in any way must submit a proposed modification in writing to the department.

                A.            Information or comment submitted may be in electronic or written format;

                B.            public comment period will be open for a period of at least 30 days after the date of notice in the NM register; and

                C.            the department will consider all comments respecting the proposed rule prior to a final decision.

[21.1.1.11 NMAC, N, 11/01/2018]

 

21.1.1.12               HEARING OFFICER:  The director may appoint an agency representative or hearing officer to conduct the hearing and receive statements and supporting data.  The agency representative or hearing officer will be authorized to make all rulings in the conduct of the proceedings and in the receipt of statements and supporting data.

[21.1.1.12 NMAC, Rp, 21.1.1.10 NMAC, 11/01/2018]

 

21.1.1.13               RECORD OF THE RULEMAKING HEARING:

                A.            A record shall be made at each proceeding, the cost of which shall be borne by the department.  Transcript costs shall be paid by those persons requesting transcripts.  The records shall contain:

                                (1)           a copy of all publications in the NM register relating to the proposed rule;

                                (2)           a copy of technical information that was relied upon in formulating the final rule;

                                (3)           official transcript, audio recording or verbatim transcript of the hearing, and any memoranda summarizing the hearing provided by the hearing officer or agency official presiding over the hearing;

                                (4)           a copy of all comments and other material received by the agency during public comment period and at the public hearing;

                                (5)           a copy of the full text of the initial proposed rule and the full text of the final adopted rule and the concise explanatory statement provided with the state records administrator ; and

                                (6)           any corrections made by the state records administrator.

                B.            The record shall be closed at the conclusion of the proceeding unless the department or hearing examiner holds it open for no longer than 30 days for the purpose of receiving additional written supporting comment.

[21.1.1.13 NMAC, Rp, 21.1.1.11 NMAC, 11/01/2018]

 

21.1.1.14               ADOPTION OF THE RULE:  Adoption of any rule will be through the board of regents of New Mexico state university at a scheduled board meeting.  The board shall be presented with a complete hearing record and recommended action of the director.

A.            At the time a rule is adopted, the department shall provide a concise explanatory statement to the public containing:

                                (1)           the date the agency adopted the rule;

                                (2)           a reference to the specific statutory or other authority authorizing the rule; and

                                (3)           any findings required by a provision of law for the adoption of the rule.

                B.            Within 15 days after the adoption of the rule the department shall file the adopted rule with the state records office, and shall provide to the public as defined in Section 14-4-2 NMSA 1978, the adopted rule.  The effective date of the rule shall be the date of publication in the New Mexico register unless a later date is provided for in the rule.

[21.1.1.14 NMAC, Rp, 21.1.1.14 NMAC, 11/01/2018]

 

21.1.1.15               EMERGENCY RULE:  The director may adopt an emergency rule if he finds that the time required to complete the rule making procedures would: cause imminent peril to the public health, safety or welfare; cause the unanticipated loss of funding for an agency program; or place the agency in violation of federal law. The agency shall provide to the public a record justifying the finding for the need of the emergency rule, prior to the publication of the emergency rule.  The director's finding and a brief statement of the reasons for its finding shall be incorporated in the public record, the public record will also state that the rule is temporary and will not exceed 180 days.

[21.1.1.15 NMAC, N, 11/01/2018]

 

21.1.1.16               FILING RULES:  Each rule, amendment, or repeal thereof adopted by the department shall be filed with the state records center in accordance with the law.

[21.1.1.16 NMAC, Rp, 21.1.1.15 NMAC, 11/01/2018]

 

21.1.1.17               GENERAL RULES:  [RESERVED]

[21.1.1.17NMAC, Rp, 21.1.1.17 NMAC, 11/01/2018]

 

HISTORY OF 21.1.1 NMAC:

Pre-NMAC History:  The material in this part was derived from that previously filed with the State Records Center and Archives under:

NMDA Rule No. 95-10, Rulemaking Procedures, filed 11/14/1995.

 

History of Repealed Material:

21.1.1 NMAC - NMDA Rule Making Procedures, filed 11/14/1995 and Renumbered 5/29/2009 was repealed and replaced by 21.1.1 NMAC - Rule Making Procedures, effective 11/01/2018.