TITLE 19 NATURAL RESOURCES AND WILDLIFE
CHAPTER 10 NON-COAL
MINING
PART 15 MINING
COMMISSION RULEMAKING
19.10.15.1 ISSUING AGENCY: Energy, Minerals and
Natural Resources Department, Mining and Minerals Division, and Mining
Commission.
[19.10.15.1 NMAC - N, 3/27/2018]
19.10.15.2 SCOPE:
19.10.15 NMAC applies to persons or entities engaged in rulemaking
proceedings before the commission.
[19.10.15.2 NMAC - N, 3/27/2018]
19.10.15.3 STATUTORY AUTHORITY: 19.10.15 NMAC is
adopted pursuant to the New Mexico Mining Act, Sections 69-36-1
to 69-36-20 NMSA 1978 (1993, as amended), and the State Rules Act, Section
14-4-5.8 NMSA 1978 (2017).
[19.10.15.3 NMAC - N, 3/27/2018]
19.10.15.4 DURATION: Permanent.
[19.10.15.4 NMAC - N, 3/27/2018]
19.10.15.5 EFFECTIVE DATE: March 27, 2018, unless
a later date is cited at the end of a section.
[19.10.15.5 NMAC - N, 3/27/2018]
19.10.15.6 OBJECTIVE: The objectives of 19.10.15 NMAC are:
A. to establish procedures
used in rulemaking proceedings before the commission;
B. to
encourage the participation in the hearings the commission conducts for the
promulgation of rules;
C. to
make possible the effective presentation of the evidence and points of view of
parties and members of the public; and
D. to
assure that rulemaking hearings are conducted in a fair and equitable manner.
[19.10.15.6 NMAC - N, 3/27/2018]
19.10.15.7 DEFINITIONS:
See Section 69-36-3 NMSA 1978 and 19.10.1.7 NMAC for definitions. See also Section 14-4-2 NMSA 1978 (2017) for
the definitions of “proceeding”, “proposed rule” and “rule”.
[19.10.15.7 NMAC - N, 3/27/2018]
19.10.15.8 LIBERAL CONSTRUCTION: 19.10.15 NMAC shall
be liberally construed to carry out its purpose.
[19.10.15.8 NMAC - N, 3/27/2018]
19.10.15.9 SEVERABILITY: If any portion or
application of 19.10.15 NMAC is held invalid, the remainder, or its application
to other persons or situations, shall not be affected.
[19.10.15.9 NMAC - N, 3/27/2018]
19.10.15.10 POWERS AND DUTIES OF COMMISSION AND HEARING OFFICER:
A. Commission. The commission shall exercise all powers and
duties prescribed under 19.10.15 NMAC and not otherwise delegated to the hearing
officer or the commission administrator.
B. Hearing officer. The commission shall designate a hearing
officer for each hearing who shall exercise all powers and duties prescribed or
delegated under 19.10.15 NMAC. The
hearing officer may be an appointed member of the commission. The hearing officer shall conduct a fair and
impartial proceeding, assure that the facts are fully elicited and avoid
delay. The hearing officer shall have
authority to take all measures necessary for the maintenance of order and for
the efficient, fair and impartial consideration of issues arising in
proceedings 19.10.15 NMAC governs, including, but not limited to:
(1) conducting hearings under 19.10.15 NMAC;
(2) taking, admitting or excluding evidence, examining witnesses
and allowing post-hearing submissions;
(3) making such orders as may be necessary to preserve decorum
and to protect the orderly hearing process;
(4) if requested by the commission, preparing and filing a
report of the hearing, with recommendations for commission action;
(5) requesting parties to file original documents with the
commission administrator; and
(6) requesting a party to submit a proposed statement of reason
in support of the commission’s decision.
[19.10.15.10 NMAC - N, 3/27/2018]
19.10.15.11 GENERAL PROVISIONS - COMPUTATION OF TIME:
A. Computation of time. In computing any time prescribed or allowed by
these rules, except as otherwise specifically provided, the day of the event
from which the designated period begins to run shall not be included. The last day of the computed period shall be
included, unless it is a Saturday, Sunday or legal state holiday, in which
event the time is extended until the end of the next day, which is not a
Saturday, Sunday or legal state holiday. Whenever a party must act within a prescribed
period after service upon him or her, and service is by mail, three days is
added to the prescribed period. The
three-day extension does not apply to any deadline under the act.
B. Extension of time. The commission or hearing officer may grant
an extension of time for the filing of any document upon timely motion of a
party to the proceeding, for good cause shown, and after consideration of
prejudice to other parties.
[19.10.15.11 NMAC - N, 3/27/2018]
19.10.15.12 GENERAL PROVISIONS - RECUSAL:
No commission member shall participate in an action for which he or she
would be disqualified under Section 69-36-6 NMSA 1978 of the Mining Act, the
Governmental Conduct Act, or any other applicable law.
[19.10.15.12 NMAC - N, 3/27/2018]
19.10.15.13 GENERAL PROVISIONS - EX PARTE DISCUSSIONS:
At no time after the initiation and before the conclusion of a
proceeding under 19.10.15 NMAC, shall the division, or any other party,
interested participant or their representatives discuss ex parte the merits of
the proceeding with any commission member or the hearing officer.
[19.10.15.13 NMAC - N, 3/27/2018]
19.10.15.14 DOCUMENT REQUIREMENTS - FILING AND SERVICE OF DOCUMENTS:
A. The
filing of any document that 19.10.15 NMAC requires
shall be accomplished by delivering the document to the commission administrator
and the commission legal counsel.
B. Any
person filing any document shall:
(1) provide the commission
administrator with nine original hard copies of the document
and one identical bookmarked PDF file via email or personal delivery on CD or
jump drive;
(2) if the document is a notice of intent to present technical
testimony filed by any person other than the petitioner, serve a copy thereof
on the petitioner;
(3) any document filed pursuant to 19.10.15 NMAC shall be filed
with the commission administrator at least 20 days before any meeting at which
the commission will consider the document. If the document is a motion seeking an order
from the hearing officer in a rulemaking hearing, the motion must also be
served at the same time with the hearing officer and the commission’s legal
counsel.
C. Whenever
19.10.15 NMAC requires service of a document, service shall be made by
delivering a copy to the person to be served by mailing it, or, if that person
has agreed, by sending it by facsimile or by electronic transmission to that
person. Agreement to be served by
facsimile or electronic transmission may be evidenced by placing the person’s
facsimile number or email address on a document filed pursuant to 19.10.15 NMAC
service shall also be made upon the commission’s legal counsel. If a person is represented by an attorney,
service of the document shall be made on the attorney. Service by mail is complete upon mailing the
document. Service by facsimile or
electronic transmission is accomplished when the transmission of the document
is completed and acknowledged by designated recipient.
[19.10.15.14 NMAC - N, 3/27/2018]
19.10.15.15 EXAMINATION OF DOCUMENTS FILED:
A. Examination allowed. Subject to the provisions of law restricting
the public disclosure of confidential information, any person may, during
normal business hours, inspect and copy any document filed in any rulemaking
proceeding before the commission. Such
documents shall be made available on the division’s website.
B. Cost of duplication. The person seeking copies of documents shall
bear the cost of duplicating documents.
[19.10.15.15 NMAC - N, 3/27/2018]
19.10.15.16 PREHEARING PROCEDURES - PETITION FOR RULE CHANGE:
A. Any
person, may file a petition with the commission to
adopt, amend or repeal any rule within the commission’s jurisdiction.
B. The
petition shall be in writing and shall include a statement of the reasons for
the rule change. The petition shall cite
the relevant statutes that authorize the commission to adopt the proposed rules
and shall estimate the time that will be needed to conduct the rules hearing,
if possible. A copy of the entire rule,
including the proposed rule change, indicating any language proposed to be
added or deleted, shall be attached to the petition. The entire rule and its proposed changes shall
be submitted to the commission in redline fashion, and shall include line
numbers. Any document that does not
include all the items required to be in a petition shall be returned to the
petitioner along with a copy of these rules and a check-off list of required
items, and the petitioner will be asked to resubmit his or her petition in the
form 19.10.15 NMAC requires.
C. The
commission shall determine at a public meeting within 60 days of submission of
a petition for rule change whether to hold a hearing on the petition. Any person may respond to the petition for
rule change either in writing prior to the public meeting or in person at the
public meeting. If the commission
determines not to hold a hearing, the commission’s determination shall be
subject to review as contemplated by Section 69-36-16 NMSA 1978.
D. If
the commission determines to hold a public hearing on the petition, it may
issue such orders specifying procedures for conduct of the hearing, in addition
to those provided by 19.10.15 NMAC, as may be necessary and appropriate to
fully inform the commission of the matters at issue in the hearing or control
the conduct of the hearing. Such orders
may include requirements for giving additional public notice, holding
pre-hearing conferences, filing direct written testimony prior to the hearing
or limiting testimony or cross-examination.
[19.10.15.16 NMAC - N, 3/27/2018]
19.10.15.17 RULEMAKING
NOTICE:
A. The commission shall distribute a
notice of proposed rulemaking at least 60 days before the hearing on
the rule change by:
(1) posting the notice on the division website;
(2) posting the notice on the sunshine portal;
(3) making the notice available in the division’s district
offices, if any;
(4) sending the
notice by mail or electronic mail to persons who have made a written request to
the commission for advance notice of hearings and who have provided a mail or
an electronic mail address to the commission;
(5) providing the notice to the New Mexico legislative council
for distribution to appropriate interim and standing legislative committees;
and
(6) publishing the notice in the New Mexico register and in a newspaper of general
circulation in the state.
B. Content. The notice shall include:
(1) a summary of the full text of the proposed rule;
(2) a short explanation of the purpose of the proposed rule;
(3) a citation to the specific legal authority authorizing the
proposed rule and the adoption of the rule;
(4) information on how a copy of the full text of the proposed
rule may be obtained, including an internet link to the full text;
(5) information on how a person may comment on the proposed
rule, where comments will be received and when comments are due;
(6) information on where and when a rulemaking hearing will be
held and how a person may participate in the hearing; and
(7) a citation to technical information, if any, that served as
a basis for the proposed rule, and information on how the full text of the
technical information may be obtained.
[19.10.15.17 NMAC - N, 3/27/2018]
19.10.15.18 ENTRY OF APPEARANCE: Any
person who is or may be affected by the proposed rule change may file an entry
of appearance as a party. The entry of
appearance shall be filed no later than 10 days before the date of the hearing
on the petition. In the event of multiple entries of
appearance by those affiliated with one interest group, the hearing officer may
consolidate the entries, or divide the service list to avoid waste of
resources. The filing of a petition or a
notice of intent to present technical testimony shall serve as an entry of
appearance.
[19.10.15.18 NMAC - N, 3/27/2018]
19.10.15.19 MOTIONS:
A. General. Any person who has filed an
entry of appearance may file a motion. All
motions, except those made orally during a hearing, shall be in writing,
specify the grounds for the motion and state the relief sought. Each motion shall be accompanied by an affidavit, certificate or other evidence relied upon and
shall be served as provided by 19.10.15.14 NMAC.
B. Unopposed motions. An unopposed motion shall state that the
concurrence of all other parties was obtained.
The moving party shall submit a proposed order approved by all parties
for the hearing officer’s review.
C. Opposed motions. Any opposed motion shall state either that
concurrence was sought and denied, or why concurrence was not sought. A memorandum brief in support of such motion
may be filed with the motion.
D. Response to motions. Any party upon whom an opposed motion is
served shall have 15 days after service of the motion to file a response. A non-moving party failing to file a timely
response shall be deemed to have waived any objection to granting the motion.
E. Reply to response. The moving party may, but is not required to,
submit a reply to any response within 10 days after the response is served.
F. Decision. The hearing officer shall decide all motions
without a hearing, unless otherwise ordered by the hearing officer sua sponte or upon any party’s written
request. The hearing officer shall refer
any motion that would effectively dispose of the matter, and may refer any
other motion to the commission for a decision.
A procedural motion may be ruled upon prior to the expiration of the
time for response; any response received thereafter shall be treated as a
request for reconsideration of the ruling. The hearing officer shall file all original
documents with the commission administrator.
[19.10.15.19 NMAC - N, 3/27/2018]
19.10.15.20 TECHNICAL TESTIMONY:
A. Any
person, including the petitioner, who intends to present technical testimony at
the hearing shall, no later than 10 working days prior to the hearing, file a
notice of intent to present technical testimony. The notice shall:
(1) identify the person for whom the witness(es)
will testify;
(2) identify each
technical witness the person intends to present and state each witness’s
qualifications, including a description of their educational and work
background, and the anticipated duration of each witness’s testimony;
(3) if the hearing will be conducted at multiple locations,
indicate the location or locations at which the witnesses will be present;
(4) summarize or include a copy of the direct testimony of each
technical witness in narrative form;
(5) include the text of any recommended modifications to the
proposed rule change; and
(6) list and attach all exhibits anticipated to be offered by
that person at the hearing, including any proposed statement of reasons for
adoption of rules.
B. The
hearing officer may enforce 19.10.15.20 NMAC’s provisions through such action
as the hearing officer deems appropriate, including exclusion of the technical
testimony of any witness for whom a notice of intent was not timely filed. If such testimony is admitted, the hearing
officer may keep the record open after the hearing to allow responses to such testimony. The hearing officer may also require that parties
submit written rebuttal testimony prior to hearing.
[19.10.15.20 NMAC - N, 3/27/2018]
19.10.15.21 PARTICIPATION BY PUBLIC:
A. Any
member of the public may testify at the hearing. No prior notification is required to present
non-technical testimony at the hearing.
Any such member may also offer non-technical exhibits with his or her
testimony, so long as the exhibit is not unduly repetitious of the testimony.
B. A
member of the public who wishes to submit a written statement for the record,
in lieu of providing oral testimony at the hearing, shall file the written
statement prior to the hearing or submit it at the hearing. Written comment may be submitted
electronically, mailed or delivered to the commission administrator.
[19.10.15.21 NMAC - N, 3/27/2018]
19.10.15.22 PARTICIPATION BY CONFERENCE TELEPHONE OR SIMILAR DEVICE:
A. A
commission member may participate in a meeting or hearing of the commission by
means of a conference telephone or other similar communications equipment, when
it is otherwise difficult or impossible for the member to attend the meeting or
hearing in person, provided that each member participating by conference
telephone can be identified when speaking, all participants are able to hear
each other at the same time and members of the public attending the meeting or
hearing are able to hear any member of the commission who speaks at the meeting
or hearing. A commission member’s participation
by such means shall constitute presence in person at the meeting or hearing. A commission member who wishes to participate
in a rulemaking hearing in this manner must receive permission from the hearing
officer sufficiently in advance of the rulemaking hearing so as to permit the
commission administrator to arrange for adequate telephone hookup.
B. A
witness may participate in a rulemaking hearing of the commission by means of a
telephone conference or other similar communications equipment when an
emergency or circumstances make it impossible for the witness to attend the
hearing in person. A witness who wishes
to participate in a rulemaking hearing in this manner must receive permission
from the hearing officer in advance of the rulemaking hearing. No witness may participate in a rulemaking
hearing by telephone conference unless he or she makes a request sufficiently
in advance of the rulemaking hearing to permit the commission administrator to
arrange for an adequate telephone or electronic hookup. Each witness participating remotely must be
identified when speaking, all participants must be able to hear each other at
the same time and members of the public attending the hearing must be able to
hear any witness who speaks during the hearing.
[19.10.15.22 NMAC - N, 3/27/2018]
19.10.15.23 HEARING PROCEDURES - CONDUCT OF HEARINGS:
A. The
rules of civil procedure and the rules of evidence shall not apply.
B. The
hearing officer shall conduct the hearing to provide a reasonable opportunity
for all persons to be heard without making the hearing unreasonably lengthy or
cumbersome, or burdening the record with unnecessary repetition. The hearing shall proceed as follows.
(1) The hearing
shall begin with an opening statement from the hearing officer. The statement shall identify the hearing’s
nature and subject matter, and explain the procedures to be followed.
(2) The hearing
officer may allow a brief opening statement by any party who wishes to make one.
(3) Unless otherwise
ordered, the petitioner shall present the proposed rule first.
(4) The hearing
officer shall establish an order for the testimony of other participants. The order may be based upon notices of intent
to present technical testimony, sign-in sheets and the availability of
witnesses who cannot be present for the entire hearing.
(5) If the hearing
continues for more than one day, the hearing officer shall provide an
opportunity each day for testimony from members of the public. Members of the public who wish to present
testimony should indicate their intent on a sign-in sheet.
(6) The hearing
officer may allow a brief closing argument by any person who wishes to make one.
(7) At the close of
the hearing, the hearing officer shall determine whether to keep the record
open for written submittals in accordance with 19.10.15.27 NMAC. If the record is kept open, the hearing
officer shall determine and announce the subject(s) on which submittals will be
allowed and the deadline for filing the submittals.
C. If
the hearing is conducted at multiple locations, the hearing officer may require
the petitioner’s witnesses to summarize their testimony or be available for
cross-examination at each location.
Other participants are not required to testify at more than one
location, and the hearing officer may prohibit a witness from testifying at
more than one location.
[19.10.15.23 NMAC - N, 3/27/2018]
19.10.15.24 TESTIMONY AND CROSS-EXAMINATION:
A. The
hearing officer shall allow all interested persons a reasonable opportunity to
submit arguments and to examine witnesses testifying at the hearing.
B. All
testimony will be taken under oath or affirmation, which may be
accomplished in mass or individually.
C. The
hearing officer shall admit any relevant evidence, unless the hearing officer
determines that the evidence is unduly repetitious. The hearing officer shall require all oral
testimony be limited to the position of the witness in favor of or against the
proposed rule.
D. Any
person who testifies at the hearing may be subject to cross-examination on the
subject matter of his or her direct testimony and matters affecting his or her
credibility. Any person attending the
hearing may conduct such cross-examination if required for a full and true
disclosure of matters at issue in the hearing.
The hearing officer may limit cross-examination to avoid harassment,
intimidation, needless expenditure of time or undue repetition.
[19.10.15.24 NMAC - N, 3/27/2018]
19.10.15.25 EXHIBITS:
A. Any
person offering an exhibit at hearing shall provide at least an
original and 12 copies for the commission, and a sufficient number of copies
for persons attending the hearing.
B. All
exhibits offered at the hearing shall be marked with a designation identifying
the person offering the exhibit and shall be numbered sequentially. If a person offers multiple exhibits, he or
she shall identify each exhibit with an index tab or by other appropriate
means.
C. Large
charts and diagrams, models and other bulky exhibits are discouraged. If visual aids are used, legible copies shall
be submitted for inclusion in the record.
[19.10.15.25 NMAC - N, 3/27/2018]
19.10.15.26 TRANSCRIPT OF PROCEEDINGS: Unless specified by
the commission or hearing officer, an audio recording and index shall be made
of the hearing. If the hearing officer
allows verbatim stenographic transcripts, the petitioner shall bear the cost of
the original verbatim transcript of the proceeding and of providing a copy for
each commission member and commission counsel.
[19.10.15.26 NMAC - N, 3/27/2018]
19.10.15.27 POST-HEARING SUBMISSIONS: The hearing officer
may allow the record to remain open for a reasonable time following the hearing’s
conclusion for written submission of additional evidence, comments and
arguments and proposed statements of reasons.
The hearing officer’s determination shall be announced at the hearing’s
conclusion. In considering whether the
record will remain open, the hearing officer shall consider the reasons why the
material was not presented during the hearing, the significance of the material
to be submitted and the necessity for a prompt decision.
[19.10.15.27 NMAC - N, 3/27/2018]
19.10.15.28 HEARING OFFICER’S REPORT: If the commission
directs, the hearing officer shall file a report of the hearing. The report shall identify the issues
addressed at the hearing, identify the parties’ final proposals and the
evidence supporting those proposals, including discussion or recommendations as
requested by the commission, and shall be filed with the commission
administrator within the time specified by the commission. The commission administrator shall promptly
notify each party that the hearing officer’s report has been filed and shall
provide a copy of the report along with a notice of any deadline set for
comments on that report.
[19.10.15.28 NMAC - N, 3/27/2018]
19.10.15.29 DELIBERATION AND DECISION:
A. If
a quorum of the commission attended at the hearing, and if the hearing notice
indicated that a decision might be made at the hearing’s conclusion, the
commission may immediately deliberate and decide on the proposed rule.
B. If
the commission does not reach a decision at the hearing’s conclusion, the commission
administrator, following receipt of the transcript, will promptly furnish a
copy of the transcript to each member that did not attend the hearing and, if
necessary, to other members, commission counsel and the hearing officer. Exhibits provided to those persons at the
time of the hearing need not be supplied again.
C. The
commission shall reach its decision on the proposed rule within 60 days
following the close of the record or the date the hearing officer’s report is
filed, whichever is later.
D. If
the commission determines during its deliberations that additional testimony or
documentary evidence is necessary for a proper decision on the proposed rule
change, the commission may, consistent with the requirements of due process,
reopen the hearing for such additional evidence only.
E. The
commission shall issue its decision on the proposed rule change in a suitable
format, which shall include its reasons for the action taken.
F. The
commission’s written decision is the official version of the commission’s
action, and the reasons for that action.
Other written or oral statements by commission members are not
recognized as part of the commission’s official decision or reasons.
G. The
adoption of the commission’s written decision shall constitute the adoption of
the rule. Within 15 days after adoption of the written decision, the commission
shall file the rule and the written decision in accordance with the State Rules
Act.
[19.10.15.29 NMAC - N, 3/27/2018]
19.10.15.30 NOTICE OF COMMISSION ACTION: The commission administrator
shall provide notice of the commission’s action in accordance with the State
Rules Act.
[19.10.15.30 NMAC - N, 3/27/2018]
19.10.15.31 APPEALS AND STAYS - APPEAL OF RULES:
A. Appeal
of any rule change by the commission shall be taken in accordance with
governing law.
B. The
appellant shall serve a copy of the notice of appeal on the commission and on
each party.
C. The
appellant shall be responsible for preparation of a sufficient number of copies
of the hearing record at the appellant’s expense.
D. Unless
otherwise provided by governing law, the filing of an appeal shall not act as a
stay of the rule change being appealed.
[19.10.15.31 NMAC - N, 3/27/2018]
HISTORY: [RESERVED]