New Mexico Register / Volume XXXIII, Issue 20 / October 25,
2022
This is an amendment to 21.1.1 NMAC, Sections 9, 10,
11, 12, 14, 15 and 16 effective 12/01/2022.
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) if
required by statute, 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.]
(3) sending
it by electronic mail to persons who have participated in the rulemaking and
who have provided an electronic mail address to the agency;
(4) post
on the agency website;
(5) post
on the sunshine portal;
(6) make
available at the agency district and field offices;
(7) provide to the New Mexico legislative council.
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, A;
12/01/2022]
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.] from the general public.
C. Comments
from 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.
D. Public
hearings shall be conducted in a fair and equitable manner.
E. Public
hearings shall be open to the public and recorded.
[21.1.1.10 NMAC, Rp.
21.1.1.9 NMAC, 11/01/2018; A, 12/01/2022]
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.
D. All comments filed on proposed
rule shall be made available to any person for inspection upon request and
shall be posted to the agency’s website within three (3) business days of
receipt.
[21.1.1.11 NMAC, N, 11/01/2018; A,
12/01/2022]
21.1.1.12 HEARING
OFFICER:
The director [may] shall 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; A,
12/01/2022]
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)] A. the date the
agency adopted the rule and effective date if different than adopted date;
[(2)] B. a reference to
the specific statutory or other authority authorizing the rule; and
[(3)] C. any findings
required by a provision of law for the adoption of the rule;
D. reasons
for any changes between the published proposed rule and the final rule;
E. reasons
for not accepting substantive arguments made through public comment.
[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; A,
12/01/2022]
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.] The
department shall comply with emergency rulemaking procedures in Section
14-4-5.6 NMSA 1978.
[21.1.1.15 NMAC, N, 11/01/2018; A,
12/01/2022]
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.] State
Rules Act, Section 14-4-5 NMSA 1978
[21.1.1.16 NMAC, Rp, 21.1.1.15 NMAC, 11/01/2018; A,
12/01/2022]