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: Section
14-4-5.8 NMSA 1978; 1.24.25.8 NMAC.
[13.1.4.3 NMAC - N, 7/1/2019]
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. “Final order” also means “concise
explanatory statement” as described in Section 14-4-5.5 NMSA 1978;
B. “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;
C. “OSI” means the New Mexico
office of superintendent of insurance
D. “Recommended decision” means the
written decision of any designated hearing officer which contains a description
of the rulemaking proceeding, a summary of any written comments submitted to
the superintendent, a summary of any oral comments made at the public hearing,
any analysis or conclusions of the designated hearing officer, and
recommendations to the superintendent concerning adoption, rejection, or
amendment of the proposed rule.
[13.1.4.7 NMAC - N, 7/1/2019]
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.
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 record as prescribed
in Section 14-4-5.4 NMSA 1978.
[13.1.4.8 NMAC - N, 7/1/2019]
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 record as prescribed in Section 14-4-5.4
NMSA 1978.
[13.1.4.9 NMAC - N, 7/1/2019]
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. on the day of the public hearing, or on the last day of
the public hearing if the public hearing extends for more than one day. For purposes only of responses to written
comments or oral comments at the public hearing, the public response period
will extend at least 10 calendar days beyond the public hearing or close of the
30 day comment period, whichever is later, unless the necessity of adopting or
publishing the rule by a certain date makes the extension of the public
response period impractical.
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 record. Written comments may be submitted through the
end of the public comment period, and responses to comments may be submitted
for an additional 10 days, unless the necessity of adopting or publishing the
rule by a certain date makes a response period impractical.
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, 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]
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 record.
C. 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. 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]
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 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 and the hearing officer’s recommended decision 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. The final order may adopt by
reference some or all of any recommended decision and shall include by
reference or otherwise, 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; and
(6) reasons for
not accepting substantive arguments made through public comment.
[13.1.4.13 NMAC - N, 7/1/2019]
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]