House Bill text for HB0729

HOUSE BILL 729

48th legislature - STATE OF NEW MEXICO - first session, 2007

INTRODUCED BY

Al Park

AN ACT

RELATING TO ADMINISTRATIVE PROCEDURES; ENACTING THE ADMINISTRATIVE NEGOTIATED RULEMAKING ACT; PROVIDING FOR PROCEDURES FOR ENGAGING IN NEGOTIATED RULEMAKING BETWEEN AGENCIES AND INTERESTED PARTIES; ESTABLISHING REPORTING REQUIREMENTS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as the "Administrative Negotiated Rulemaking Act".

Section 2. DEFINITIONS.--As used in the Administrative Negotiated Rulemaking Act:

A. "agency" means a statewide board, authority, commission, institution, department, division, officer or other statewide government entity that is authorized or required by law to make rules or to adjudicate. The term includes the agency head and one or more members of the agency head, agency employees, or other persons directly or indirectly purporting to act on behalf of, or under the authority of, the agency head. The term does not include the governor, the legislature, and the judiciary;

B. "consensus" means unanimous concurrence among the interests represented on a negotiated rulemaking committee, unless such committee:

(1) agrees to define such term to mean a general but not unanimous concurrence; or

(2) agrees upon another specified definition;

C. "convener" means a person who impartially assists an agency in determining whether establishment of a negotiated rulemaking committee is feasible and appropriate in a particular rulemaking;

D. "facilitator" means a person who impartially aids in the discussion and negotiations among the members of a negotiated rulemaking committee to develop a proposed rule;

E. "interest" means, with respect to an issue or matter, multiple parties that have a similar point of view or that are likely to be affected in a similar manner;

F. "law" means federal or state constitution or statute, judicial decision, common law, rule of court, executive order or rule or order of an agency;

G. "negotiated rulemaking" means rulemaking through the use of a negotiated rulemaking committee;

H. "negotiated rulemaking committee" or "committee" means an advisory committee established by an agency in accordance with the Administrative Negotiated Rulemaking Act to consider and discuss issues for the purpose of reaching a consensus in the development of a proposed rule;

I. "notify" means to take such steps as may be reasonably required to inform another person in the ordinary course of business, whether or not the other person actually comes to know of it;

J. "person" means an individual, corporation, business trust, estate, trust, partnership, limited liability corporation, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality or any other legal or commercial entity;

K. "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;

L. "rule" means the whole or part of an agency statement of general applicability that implements, interprets or prescribes law or policy or the organization, procedure or practice requirements of an agency. The term includes the amendment, repeal or suspension of an existing rule, but does not include:

(1) a statement concerning only the internal management of an agency and not affecting private rights or procedures available to the public;

(2) an agency declaratory order issued under this act;

(3) a decision or order in a disputed case;

(4) an intergovernmental or interagency memorandum, directive or communication that does not affect the rights of, or procedures and practices available to, the public;

(5) an opinion of the attorney general;

(6) an executive order of the governor;

(7) a statement that establishes criteria or guidelines to be used by the staff of an agency in performing audits, investigations or inspections, settling commercial disputes, negotiating commercial arrangements or in the defense, prosecution or settlement of cases, if disclosure of the criteria or guidelines would enable law violators to avoid detection, facilitate disregard of requirements imposed by law or give a clearly improper advantage to persons who are in an adverse position to the state; or

(8) a guidance document; and

M. "rulemaking" means the process for adopting, amending or repealing a rule.

Section 3. DETERMINATION OF NEED FOR NEGOTIATED RULEMAKING COMMITTEE.--

A. An agency may establish a negotiated rulemaking committee to negotiate and develop a proposed rule if the agency determines that the use of the negotiated rulemaking procedure is in the public interest. In making such a determination, the agency shall consider whether:

(1) there is a need for a rule;

(2) there are a limited number of identifiable interests that will be significantly affected by the rule;

(3) there is a reasonable likelihood that a committee can be convened with a balanced representation of persons who can adequately represent the interests identified under Paragraph (2) of this subsection and are willing to negotiate in good faith to reach a consensus on the proposed rule;

(4) there is a reasonable likelihood that a committee will reach a consensus on the proposed rule within a fixed period of time;

(5) the negotiated rulemaking procedure will not unreasonably delay the notice of proposed rulemaking and the issuance of the final rule;

(6) the agency has adequate resources and is willing to commit such resources, including technical assistance, to the committee; and

(7) the agency, to the maximum extent possible consistent with the legal obligations of the agency, will use the consensus of the committee with respect to the proposed rule as the basis for the rule proposed by the agency.

B. An agency may use the services of a convener to assist the agency in identifying persons who will be significantly affected by a proposed rule, including residents of rural areas, and in conducting discussions with such persons to identify the issues of concern to such persons and to ascertain whether the establishment of a negotiated rulemaking committee is feasible and appropriate in the particular rulemaking. The convener shall report findings and may make recommendations to the agency. Upon request of the agency, the convener shall ascertain the names of persons who are willing and qualified to represent interests that will be significantly affected by the proposed rule, including residents of rural areas. The report and any recommendations of the convener shall be made available to the public upon request.

Section 4. PUBLICATION OF NOTICE--APPLICATIONS FOR MEMBERSHIP ON COMMITTEES.--

A. If after considering the report of a convener or conducting its own assessment, an agency decides to establish a negotiated rulemaking committee, the agency shall notify the public by publishing in the New Mexico register and, as appropriate, in trade or other specialized publications, a notice which shall include:

(1) an announcement that the agency intends to establish a negotiated rulemaking committee to negotiate and develop a proposed rule;

(2) a description of the subject and scope of the rule to be developed, and the issues to be considered;

(3) a list of the interests which are likely to be significantly affected by the rule;

(4) a list of the persons proposed to represent such interests and the person or persons proposed to represent the agency;

(5) a proposed agenda and schedule for completing the work of the committee, including a target date for publication by the agency of a proposed rule for notice of formal rulemaking;

(6) a description of administrative support for the committee to be provided by the agency, including technical assistance;

(7) a solicitation for comments on the proposal to establish the committee, and the proposed membership of the negotiated rulemaking committee; and

(8) an explanation of how a person may apply or nominate another person for membership on the committee, as provided under Subsection B of this section.

B. Persons who will be significantly affected by a proposed rule and who believe that their interests will not be adequately represented by any person specified in a notice under Paragraph (4) of Subsection A of this section may apply for, or nominate another person for, membership on the negotiated rulemaking committee to represent such interests with respect to the proposed rule. Each application or nomination shall include:

(1) the name of the applicant or nominee and a description of the interests such person shall represent;

(2) evidence that the applicant or nominee is authorized to represent parties related to the interests the person proposes to represent;

(3) a written commitment that the applicant or nominee shall actively participate in good faith in the development of the rule under consideration; and

(4) the reasons that the persons specified in the notice under Paragraph (4) of Subsection A of this section do not adequately represent the interests of the person submitting the application or nomination.

C. The agency shall provide for a period of at least thirty calendar days for the submission of comments and applications under this section.

Section 5. ESTABLISHMENT OF COMMITTEE.--

A. If after considering comments and applications submitted, the agency determines that a negotiated rulemaking committee can adequately represent the interests that will be significantly affected by a proposed rule and that it is feasible and appropriate in the particular rulemaking, the agency may establish a negotiated rulemaking committee.

B. If after considering such comments and applications, the agency decides not to establish a negotiated rulemaking committee, the agency shall promptly notify the public by publishing notice of such decision and the reasons therefor in the New Mexico register and, as appropriate, in trade or other specialized publications, a copy of which shall be sent to any person who applied for, or nominated another person for, membership on the negotiated rulemaking committee to represent such interests with respect to the proposed rule.

C. The agency shall limit membership on a negotiated rulemaking committee to twenty-five members, unless the agency head determines that a greater number of members is necessary for the functioning of the committee or to achieve balanced membership. Each committee shall include at least one person representing the agency.

D. The agency shall provide appropriate administrative support to the negotiated rulemaking committee, including technical assistance.

Section 6. CONDUCT OF COMMITTEE ACTIVITY.--

A. Each negotiated rulemaking committee shall consider the matter proposed by the agency for consideration and shall attempt to reach a consensus concerning a proposed rule with respect to such matter and any other matter the committee determines is relevant to the proposed rule.

B. The person or persons representing the agency on a negotiated rulemaking committee shall participate in the deliberations and activities of the committee with the same rights and responsibilities as other members of the committee, and shall be authorized to fully represent the agency in the discussions and negotiations of the committee.

C. An agency may nominate either a person from the state government or a person from outside the state government to serve as a facilitator for the negotiations of the committee, subject to the approval of the committee by consensus. If the committee does not approve the nominee of the agency for facilitator, the agency shall submit a substitute nomination. If a committee does not approve any nominee of the agency for facilitator, the committee shall select by consensus a person to serve as facilitator. A person designated to represent the agency in substantive issues may not serve as facilitator or otherwise chair the committee.

D. A facilitator approved or selected by a negotiated rulemaking committee shall:

(1) chair the meetings of the committee in an impartial manner;

(2) impartially assist the members of the committee in conducting discussions and negotiations; and

(3) manage and record the keeping of minutes and records as required under law, except that any personal notes and materials of the facilitator or of the members of a committee shall not be subject to public inspection.

E. A negotiated rulemaking committee may adopt procedures for the operation of the committee.

F. If a committee reaches a consensus on a proposed rule, at the conclusion of negotiations the committee shall transmit to the agency that established the committee a report containing the proposed rule. If the committee does not reach a consensus on a proposed rule, the committee may transmit to the agency a report specifying any areas in which the committee reached a consensus. The committee may include in a report any other information, recommendations or materials that the committee considers appropriate. Any committee member may include as an addendum to the report additional information, recommendations or materials.

G. In addition to the report of the committee, a committee may submit to the agency any other records used to generate or support the report.

Section 7. TERMINATION OF COMMITTEE.--A negotiated rulemaking committee shall terminate upon promulgation of the final rule under consideration, unless the agency, after consulting the committee, specifies an earlier termination date.

Section 8. SERVICES, FACILITIES AND PAYMENT OF COMMITTEE MEMBER EXPENSES.--

A. An agency may employ or enter into contracts for the services of an individual or organization to serve as a convener or facilitator for a negotiated rulemaking committee or may use the services of a government employee to act as a convener or a facilitator for such a committee. An agency shall determine whether a person under consideration to serve as convener or facilitator of a committee has any financial or other interest that would preclude such person from serving in an impartial and independent manner.

B. An agency may use the services and facilities of other agencies and persons with the consent of such agencies and persons, with or without reimbursement to such agencies and persons, and may accept voluntary and uncompensated services.

C. Members of a negotiated rulemaking committee shall be responsible for their own expenses of participation in such committee, except that an agency may, in accordance with applicable law, pay for an employee's reasonable travel and per diem expenses and any other expenses to obtain technical assistance.

Section 9. REPORTING.--By July 2008, and by July of each year thereafter, each agency shall prepare a written report to submit to the governor, president pro tempore of the senate and speaker of the house of representatives regarding the number of rulemaking proceedings engaged in by the agency, whether negotiated rulemaking under the Administrative Negotiated Rulemaking Act was considered and used, whether negotiated rulemaking under the Administrative Negotiated Rulemaking Act was either successful or unsuccessful and a brief explanation as to why such negotiated rulemaking was either successful or unsuccessful. If a negotiated rulemaking committee reaches consensus and the agency later promulgates a final rule that is inconsistent with the consensus of the negotiated rulemaking committee, the agency shall include in its written report a listing of all facts and legal reasons as to why the agency departed from the consensus of the negotiated rulemaking committee. The president pro tempore of the senate and the speaker of the house of representatives shall forward the written reports from the agencies on to the appropriate interim committee or committees for review.

Section 10. JUDICIAL REVIEW.--Any agency action relating to establishing, assisting or terminating a negotiated rulemaking committee shall not be subject to judicial review. Nothing in the Administrative Negotiated Rulemaking Act shall bar judicial review of a rule if such judicial review is otherwise provided by law. A rule that is the product of negotiated rulemaking and is subject to judicial review shall not be accorded any greater deference by a court than a rule that is the product of other rulemaking procedures.

Section 11. EXEMPTIONS.--The governor, by executive order, may exempt an agency from one or more provisions of this act. The executive order shall set forth any and all reasons for providing an agency with an exemption from this act. A copy of the executive order shall be delivered to the president pro tempore of the senate and the speaker of the house of representatives. The president pro tempore of the senate and the speaker of the house of representatives shall forward the executive order to one or more interim or standing committees for further review.

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