SB0235

SENATE BILL 235

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Bernadette M. Sanchez

FOR THE ECONOMIC AND RURAL DEVELOPMENT COMMITTEE

AN ACT

RELATING TO RULEMAKING; REQUIRING STATE AGENCIES TO CITE SPECIFIC STATUTORY AUTHORITY FOR RULES THEY PROPOSE TO ENACT.

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

SECTION 1. Section 8-8-4 NMSA 1978 (being Laws 1998, Chapter 108, Section 4) is amended to read:

"8-8-4. COMMISSION--GENERAL POWERS AND DUTIES.--

A. The commission shall administer and enforce the laws with which it is charged and has every power conferred by law.

B. The commission may:

(1) subject to legislative appropriation, appoint and employ such professional, technical and clerical assistance as it deems necessary to assist it in performing its powers and duties;

(2) delegate authority to subordinates as it deems necessary and appropriate, clearly delineating such delegated authority and any limitations;

(3) retain competent attorneys to handle the legal matters of the commission and give advice and counsel in regard to any matter connected with the duties of the commission and, in the discretion of the commission, to represent the commission in any legal proceeding;

(4) organize into organizational units as necessary to enable it to function most efficiently, subject to provisions of law requiring or establishing specific organizational units;

(5) take administrative action by issuing orders not inconsistent with law to assure implementation of and compliance with the provisions of law for which the commission is responsible and to enforce those orders by appropriate administrative action and court proceedings;

(6) conduct research and studies to improve the commission's operations or the provision of services to the citizens of New Mexico;

(7) conduct investigations as necessary to carry out the commission's responsibilities;

(8) apply for and accept grants and donations in the name of the state to carry out its powers and duties;

(9) enter into contracts to carry out its powers and duties;

(10) adopt such reasonable [administrative regulatory and] procedural rules as may be necessary [or appropriate] to carry out [its powers and duties] the provisions of the Public Regulation Commission Act. For any other rule promulgated, adopted or amended, the commission shall cite the specific statutory provisions warranting the rule;

(11) adopt a rule only upon specific statutory authorization regarding the content of the rule;

[(11)] (12) cooperate with tribal and pueblo governments on topics over which the commission and the other governments have jurisdiction and conduct joint investigations, hold joint hearings and issue joint or concurrent orders as appropriate; and

[(12)] (13) apply to the district court for injunctions to prevent violations of any laws that it administers or rules or orders adopted pursuant to those laws.

C. The commission shall:

(1) prepare an annual budget for submission to the legislature;

(2) provide for surety bond coverage for all employees of the commission as provided in the Surety Bond Act and pay the costs of such bonds;

(3) adopt rules to streamline the resolution of cases before it when appropriate by:

(a) the use of hearing examiners;

(b) the taking of evidence with the least delay practicable;

(d) adopting procedures for resolving cases in ways other than by trial-type hearings when appropriate, including consent calendars, conferences, settlements, mediation, arbitration and other alternative dispute resolution methods and the use of staff decisions; and

(4) provide a toll-free telephone number and publish it and the commission's general telephone number in local telephone directories.

D. A majority of the commission constitutes a quorum for the transaction of business; provided, however, that a majority vote of the commission is needed for a final decision of the commission."

SECTION 2. Section 9-1-5 NMSA 1978 (being Laws 1977, Chapter 248, Section 5) is amended to read:

"9-1-5. SECRETARY--DUTIES AND GENERAL POWERS.--

A. The secretary is responsible to the governor for the operation of the department. It is [his] the secretary's duty to manage all operations of the department and to administer and enforce the laws with which [he] the secretary or the department is charged.

B. To perform [his] the secretary's duties, the secretary has every power expressly enumerated in the laws, whether granted to the secretary or the department or any division of the department, except where authority conferred upon any division [therein] is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in [this] the Executive Reorganization Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and [regulations] rules;

(2) delegate authority to subordinates as [he] the secretary deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(3) organize the department into those organizational units [he] that the secretary deems will enable it to function most efficiently, subject to any provisions of law requiring or establishing specific organizational units;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge [his] the secretary's duties;

(5) take administrative action by issuing orders and instructions, not inconsistent with the law, to assure implementation of and compliance with the provisions of law [with the] for whose administration or execution [of which he] the secretary is responsible and to enforce those orders and instructions by appropriate administrative action or actions in the courts;

(6) conduct research and studies that will improve the operations of the department and the provision of services to the citizens of the state;

(7) provide courses of instruction and practical training for employees of the department and other persons involved in the administration of programs with the objective of improving the operations and efficiency of administration;

(8) prepare an annual budget of the department;

(9) provide cooperation, at the request of heads of administratively attached agencies and adjunct agencies, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies; and

(10) appoint, with the governor's consent, a "director" for each division [a "director"]. These appointed positions are exempt from the provisions of the Personnel Act. Persons appointed to these positions shall serve at the pleasure of the secretary.

[(11) give bond in the penal sum of twenty-five thousand dollars ($25,000) and require directors to each give bond in the penal sum of ten thousand dollars ($10,000) conditioned upon the faithful performance of duties, as provided in the Surety Bond Act. The department shall pay the costs of such bonds; and

(12) require performance bonds of such department employees and officers as he deems necessary, as provided in the Surety Bond Act. The department shall pay the costs of such bonds.]

C. The secretary may apply for and receive, with the governor's approval, in the name of the department any public or private funds, including but not limited to United States government funds, available to the department to carry out its programs, duties or services.

D. Where functions of departments overlap or a function assigned to one department could better be performed by another department, a secretary may recommend appropriate legislation to the next session of the legislature for its approval.

E. The secretary may make and adopt such reasonable [and] procedural rules [and regulations] as may be necessary to carry out the [duties of the department and its divisions] provisions of the act creating the department headed by the secretary. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall not be construed to extend further than implementing or interpreting the specific powers and duties conferred by the enabling statute. No rule [or regulation] promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary unless otherwise provided by statute. Unless otherwise provided by statute, no [regulation] rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by [him] the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the [regulation] rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed [regulation] rule or proposed amendment or repeal of an existing [regulation] rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules [and regulations] shall be filed in accordance with the State Rules Act.

F. If this section conflicts with the powers and duties specifically given by statute to a particular secretary, the specific powers and duties shall control. If this section conflicts with other statutes specifically limiting the powers of a secretary, the specific limitations shall control."

SECTION 3. Section 9-2A-7 NMSA 1978 (being Laws 1992, Chapter 57, Section 7, as amended) is amended to read:

"9-2A-7. SECRETARY--DUTIES AND GENERAL POWERS.--

A. The secretary is responsible to the governor for the operation of the department. It is the secretary's duty to manage all operations of the department and to administer and enforce the laws with which [he] the secretary or the department is charged.

B. To perform [his] the secretary's duties, the secretary has every power expressly enumerated in the law, whether granted to the secretary, the department or any division of the department, except when any division is explicitly exempted from the secretary's power by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in the Children, Youth and Families Department Act, exercise general supervisory and appointing power over all department employees, subject to applicable personnel laws and [regulations] rules;

(2) delegate power to subordinates as [he] the secretary deems necessary and appropriate, clearly delineating such delegated power and the limitations to that power;

(3) organize the department into organizational units as necessary to enable it to function most efficiently, subject to any provisions of law requiring or establishing specific organizational units;

(4) within the limitations of available appropriations and applicable laws, employ and fix the

compensation of those persons necessary to discharge [his] the secretary's duties;

(5) take administrative action by issuing orders and instructions, not inconsistent with law, to assure implementation of and compliance with the provisions of law for which administration or execution [he] the secretary is responsible and to enforce those orders and instructions by appropriate administrative action in the courts;

(6) conduct research and studies that will improve the operation of the department and the provision of services to the citizens of the state;

(7) provide courses of instruction and practical training for employees of the department and other persons involved in the administration of programs with the objectives of improving the operations and efficiency of administration and of promoting comprehensive, coordinated, culturally sensitive services that address the whole child;

(8) prepare an annual budget for the department; and

(9) provide cooperation, at the request of administratively attached agencies and adjunct agencies, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies. [and

(10) provide for surety bond coverage for all employees of the department as provided in the Surety Bond Act. The department shall pay the costs of such bonds.]

C. The secretary may apply for and receive, with the governor's approval, in the name of the department, any public or private funds, including United States government funds, available to the department to carry out its programs, duties or services.

D. The secretary may make and adopt such reasonable [and] procedural rules [and regulations] as may be necessary to carry out the [duties of the department and its divisions] provisions of the Children, Youth and Families Department Act. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. No rule [or regulation] promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary. Unless otherwise provided by statute, no [regulation] rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the [regulation] rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed [regulation] rule or proposed amendment or repeal of an existing [regulation] rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules [and regulations] shall be filed in accordance with the State Rules Act.

E. If the secretary certifies to the secretary of finance and administration and gives contemporaneous notice of such certification through the human services register that the department has insufficient state funds to operate any of the programs it administers and that reductions in services or benefit levels are necessary, the secretary may engage in interim rulemaking. Notwithstanding any provision to the contrary in the State Rules Act, interim rulemaking shall be conducted pursuant to Subsection D of this section, except:

(1) the period of notice of public hearing shall be fifteen days;

(2) the department shall send individual notices of the interim rulemaking and of the public hearing to affected providers and beneficiaries;

(3) rules [and regulations] promulgated [under] pursuant to the provisions of this subsection shall be in effect not less than five days after the public hearing;

(4) rules [and regulations] promulgated under this subsection shall not be in effect for more than ninety days; and

(5) if final rules [and regulations] are necessary to replace the interim rules [and regulations], the department shall give notice of intent to promulgate final rules [and regulations] at the time of notice herein. The final rules [and regulations] shall be promulgated not more than forty-five days after the public hearing and filed in accordance with the State Rules Act."

SECTION 4. Section 9-3-5 NMSA 1978 (being Laws 1977, Chapter 257, Section 6, as amended) is amended to read:

"9-3-5. SECRETARY--DUTIES AND GENERAL POWERS.--

A. The secretary of corrections is responsible to the governor for the operation of the corrections department. It is [his] the secretary's duty to manage all operations of the department and to administer and enforce the laws with which [he] the secretary or the department is charged.

B. To perform [his] the secretary's duties, the secretary has every power expressly enumerated in the laws, whether granted to the secretary of the department or any division of the department, except where authority conferred upon any division is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in the Corrections Department Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and [regulations] rules;

(2) delegate authority to subordinates as [he] the secretary deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge [his] the secretary's duties;

(5) take administrative action by issuing orders and instructions, not inconsistent with the law, to assure implementation of and compliance with the provisions of law for whose administration or execution [he] the secretary is responsible and to enforce those orders and instructions by appropriate administrative action or actions in the courts;

(6) conduct research and studies that will improve the operations of the department and the provision of services to the citizens of the state;

(8) prepare an annual budget of the department;

(9) provide cooperation, at the request of heads of administratively attached agencies, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies; and

(10) appoint, with the governor's consent, a "director" for each division. These appointed positions are exempt from the provisions of the Personnel Act. Persons appointed to these positions shall serve at the pleasure of the secretary.

[(11) give bond as provided in the Surety Bond Act. The department shall pay the costs of the bonds; and

(12) require performance bonds of such department employees and officers as he deems necessary, as provided in the Surety Bond Act. The department shall pay the costs of the bonds.]

C. The secretary may apply for and receive, with the governor's approval, in the name of the department any public or private funds, including United States government funds, available to the department to carry out its programs, duties or services.

D. Where functions of departments overlap or a function assigned to one department could better be performed by another department, [a] the secretary may recommend appropriate legislation to the next session of the legislature for its approval.

E. The secretary may make and adopt such reasonable [and] procedural rules [and regulations] as may be necessary to carry out the [duties of the department and its divisions] provisions of the Corrections Department Act. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. No rule [or regulation] promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary. Unless otherwise provided by statute, no [regulation] rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by [him] the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the [regulation] rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed [regulation] rule or proposed amendment or repeal of an existing [regulation] rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules [and regulations] shall be filed in accordance with the State Rules Act.

F. Behavioral health services, including mental health and substance abuse services, provided by the department for persons under the department's supervision shall be in compliance with the requirements of Section 9-7-6.4 NMSA 1978."

SECTION 5. Section 9-4A-6 NMSA 1978 (being Laws 2004, Chapter 25, Section 6, as amended) is amended to read:

"9-4A-6. SECRETARY--DUTIES AND GENERAL POWERS.--

B. To perform the secretary's duties, the secretary has every power expressly enumerated in the laws, whether granted to the secretary or the department, or any division of the department, except where authority conferred upon any division therein is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in the Cultural Affairs Department Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and rules;

(2) delegate authority to subordinates as the secretary deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(3) organize the department into those organizational units the secretary deems will enable it to function most efficiently, subject to any provisions of law requiring or establishing specific organizational units;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge the secretary's duties;

(5) take administrative action by issuing orders and instructions, not inconsistent with the law, to ensure implementation of and compliance with the provisions of law for whose administration or execution the secretary is responsible, and to enforce those orders and instructions by appropriate administrative action or actions in the courts;

(6) conduct research and studies that will improve the operations of the department and the provision of services to the citizens of the state;

(8) prepare an annual budget of the department;

(9) provide cooperation, at the request of heads of administratively attached agencies, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies; and

(10) appoint, with the governor's consent, for each division, a "director". These appointed positions are exempt from the provisions of the Personnel Act. Persons appointed to these positions shall serve at the pleasure of the secretary.

C. The secretary may:

(1) apply for and receive, with the governor's approval, in the name of the department, any public or private funds, including United States government funds, available to the department to carry out its programs, duties or services; and

(2) acquire by purchase, gift, endowment or legacy real or personal property and hold title to that property in the name of the department for the purpose of promoting, encouraging and supporting the performing arts in New Mexico. Property acquired pursuant to this paragraph shall be held under the control and authority of the [cultural affairs] department.

D. Where functions of departments overlap, or a function assigned to one department could better be performed by another department, a secretary may recommend appropriate legislation to the next session of the legislature for its approval.

E. The secretary may make and adopt such reasonable procedural rules as may be necessary to carry out the [duties of the department and its divisions] provisions of the Cultural Affairs Department Act. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. A rule promulgated by the director of a division in carrying out the functions and duties of the division shall not be effective until approved by the secretary. Unless otherwise provided by statute, a rule affecting a person or agency outside the department shall not be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed rule or proposed amendment or repeal of an existing rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules shall be filed in accordance with the State Rules Act."

SECTION 6. Section 9-6-5 NMSA 1978 (being Laws 1977, Chapter 247, Section 5, as amended) is amended to read:

"9-6-5. SECRETARY--DUTIES AND GENERAL POWERS.--

A. The secretary of finance and administration is responsible to the governor for the operation of the department of finance and administration. It is [his] the secretary's duty to manage all operations of the department and to administer and enforce the laws with which [he] the secretary or the department is charged.

B. To perform [his] the secretary's duties, the secretary has every power expressly enumerated in the laws, whether granted to the secretary or the department, or any division or office of the department, except where authority conferred upon any division or office is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in the Department of Finance and Administration Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and [regulations] rules;

(2) delegate authority to subordinates as [he] the secretary deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge [his] the secretary's duties;

(5) take administrative action by issuing orders and instructions, not inconsistent with the law, to assure implementation of and compliance with the provisions of law with the administration or execution of which [he] the secretary is responsible, and to enforce those orders and instructions by appropriate administrative action or actions in the courts;

(6) conduct research and studies that will improve the operations of the department and the provision of services to the citizens of the state;

(8) prepare an annual budget of the department;

(9) provide cooperation, at the request of heads of administratively attached agencies and adjunct agencies, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies;

(10) appoint, with the governor's consent, one "deputy secretary", and, for each division and office, a "director". These appointed positions are exempt from the provisions of the Personnel Act. Persons appointed to these positions shall serve at the pleasure of the secretary; and

(11) serve as, or designate the deputy secretary to serve as, executive officer of the state board of finance.

[(12) give bond as provided in the Surety Bond Act. The department shall pay the cost of such bond; and

(13) require faithful performance or other fidelity bonds of such department employees and officers as he deems necessary, as provided in the Surety Bond Act. The department shall pay the costs of such bonds.]

C. The secretary may apply for and receive, with the governor's approval, in the name of the department, any public or private funds, including but not limited to United States government funds, available to the department to carry out its programs, duties or services.

D. Where functions of departments overlap, or a function assigned to one department could [better] be performed better by another department, [a] the secretary may recommend appropriate legislation to the next session of the legislature for its approval.

E. The secretary may make and adopt such reasonable [administrative and] procedural rules [and regulations] as may be necessary to carry out the [duties of the department and its divisions] provisions of the Department of Finance and Administration Act. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. No rule [or regulation] promulgated by the director of any division or office in carrying out the functions and duties of the division or office shall be effective until approved by the secretary unless otherwise provided by statute. Unless otherwise provided by statute, no [regulation] rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by [him] the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the [regulation] rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed [regulation] rule or proposed amendment or repeal of an existing [regulation] rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules [and regulations] shall be filed in accordance with the State Rules Act."

SECTION 7. Section 9-7-6 NMSA 1978 (being Laws 1977, Chapter 253, Section 7, as amended) is amended to read:

"9-7-6. SECRETARY--DUTIES AND GENERAL POWERS.--

B. To perform [his] the secretary's duties, the secretary has every power expressly enumerated in the laws, whether granted to the secretary or the department or any division of the department, except where authority conferred upon any division is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in the Department of Health Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and [regulations] rules;

(2) delegate authority to subordinates as [he] the secretary deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge [his] the secretary's duties;

(5) take administrative action by issuing orders and instructions, not inconsistent with the law, to assure implementation of and compliance with the provisions of law for which administration or execution [he] the secretary is responsible and to enforce those orders and instructions by appropriate administrative action in the courts;

(6) conduct research and studies that will improve the operations of the department and the provision of services to the citizens of the state;

(7) conduct quality assurance and quality improvement activities;

(8) provide courses of instruction and practical training for employees of the department and other persons involved in the administration of programs with the objective of improving the operations and efficiency of administration;

(9) prepare an annual budget of the department; and

(12) require performance bonds of such department employees and officers as he deems necessary, as provided in the Surety Bond Act. The department shall pay the costs of those bonds.]

D. The secretary shall be responsible for providing appropriate educational programs for all school-age persons, as defined in Section 22-1-2 NMSA 1978, who are clients, as defined in Section 43-1-3 NMSA 1978, of institutions under [his] the secretary's authority as follows:

(1) [he] the secretary shall arrange with school districts for the enrollment of all school-age residents of institutions under [his] the secretary's authority who have been evaluated and recommended for placement in a public school according to the provisions of the Department of Health Education Act. [He] The secretary shall notify the [superintendent of public instruction] secretary of public education prior to public school enrollment of any school-age resident under [his] the secretary's of health's authority; and

(2) [he] the secretary shall provide educational programs, in accordance with the special education rules of the [state board of] public education department, for school-age persons who are clients of institutions under [his] the secretary's authority but who are enrolled in a public school by:

(a) using the facilities and personnel of the department;

(b) contracting with a school district for the provision of educational services; or

E. The secretary may make and adopt such reasonable [and] procedural rules as may be necessary to carry out the [duties of the department and its divisions] provisions of the Department of Health Act. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. No rule promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary unless otherwise provided by statute. Unless otherwise provided by statute, no rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by [him] the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed rule or proposed amendment or repeal of an existing rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules shall be filed in accordance with the State Rules Act."

SECTION 8. Section 9-7A-6 NMSA 1978 (being Laws 1991, Chapter 25, Section 6) is amended to read:

"9-7A-6. SECRETARY--DUTIES AND GENERAL POWERS.--

B. To perform [his] the secretary's duties, the secretary has every power expressly enumerated in the laws, whether granted to the secretary, the department or any division of the department, except where authority conferred upon any division is explicitly exempt from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in the Department of Environment Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and [regulations] rules;

(2) delegate authority to subordinates as [he] the secretary deems necessary and appropriate, clearly delineating that delegated authority and the limitations thereto;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge [his] the secretary's duties;

(6) conduct research and studies that will improve the operations of the department and the provision of services to the citizens of the state;

(8) prepare an annual budget of the department; and

(9) appoint, with the governor's consent, a "director" for each division. These appointed positions are exempt from the provisions of the Personnel Act. Persons appointed to these positions shall serve at the pleasure of the secretary.

[(10) give bond in the penal sum of twenty-five thousand dollars ($25,000) and require directors to each give bond in the penal sum of ten thousand dollars ($10,000) conditioned upon the faithful performance of duties, as provided in the Surety Bond Act. The department shall pay the costs of those bonds; and

(11) require performance bonds of department employees and officers as he deems necessary, as provided in the Surety Bond Act. The department shall pay the costs of those bonds.]

C. The secretary may apply for and receive, with the governor's approval and in the name of the department, any public or private funds, including, but not limited to, United States government funds, available to the department to carry out its programs, duties or services.

D. The secretary may make and adopt such reasonable [and] procedural rules [and regulations] as may be necessary to carry out the [duties of the department and its divisions] provisions of the Department of Environment Act. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. No rule [or regulation] promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary unless otherwise provided by statute. Unless otherwise provided by statute, no procedural [regulation] rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the [regulation] rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed [regulation] rule or proposed amendment or repeal of an existing [regulation] rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules [and regulations] shall be filed in accordance with the State Rules Act."

SECTION 9. Section 9-8-6 NMSA 1978 (being Laws 1977, Chapter 252, Section 7, as amended) is amended to read:

"9-8-6. SECRETARY--DUTIES AND GENERAL POWERS.--

B. To perform [his] the secretary's duties, the secretary has every power expressly enumerated in the laws, whether granted to the secretary or the department or any division of the department, except where authority conferred upon any division is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in the Human Services Department Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and [regulations] rules;

(2) delegate authority to subordinates as [he] the secretary deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge [his] the secretary's duties;

(6) conduct research and studies that will improve the operations of the department and the provision of services to the citizens of the state;

(8) prepare an annual budget of the department;

(9) provide cooperation, at the request of heads of administratively attached agencies, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies; and

[(11) give bond in the penal sum of twenty-five thousand dollars ($25,000) and require directors to each give bond in the penal sum of ten thousand dollars ($10,000) conditioned upon the faithful performance of duties as provided in the Surety Bond Act. The department shall pay the costs of these bonds; and

(12) require performance bonds of such department employees and officers as he deems necessary as provided in the Surety Bond Act. The department shall pay the costs of these bonds.]

D. Where functions of departments overlap or a function assigned to one department could better be performed by another department, the secretary may recommend appropriate legislation to the next session of the legislature for its approval.

E. The secretary may make and adopt such reasonable [and] procedural rules [and regulations] as may be necessary to carry out the [duties of the department and its divisions] provisions of the Human Services Department Act. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. No rule [or regulation] promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary unless otherwise provided by statute. Unless otherwise provided by statute, no [regulation] rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by [him] the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the [regulation] rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed [regulation] rule or proposed amendment or repeal of an existing [regulation] rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing.

F. In the event the secretary anticipates that adoption, amendment or repeal of a rule [or regulation] will be required by a cancellation, reduction or suspension of federal funds or order by a court of competent jurisdiction:

(1) if the secretary is notified by appropriate federal authorities at least sixty days prior to the effective date of such cancellation, reduction or termination of federal funds, the department is required to promulgate [regulations] rules through the public hearing process to be effective on the date mandated by the appropriate federal authority; or

(2) if the secretary is notified by appropriate federal authorities or court less than sixty days prior to the effective date of such cancellation, reduction or suspension of federal funds or court order, the department is authorized without a public hearing to promulgate interim rules [or regulations] effective for a period not to exceed ninety days. Interim [regulations] rules shall not be promulgated without first providing a written notice twenty days in advance to providers of medical or behavioral health services and beneficiaries of department programs. At the time of the promulgation of the interim rules [or regulations], the department shall give notice of the public hearing on the final rules [or regulations] in accordance with Subsection E of this section.

G. If the secretary certifies to the secretary of finance and administration and gives contemporaneous notice of such certification through the human services register that the department has insufficient state funds to operate any of the programs it administers and that reductions in services or benefit levels are necessary, the secretary may engage in interim rulemaking. Notwithstanding any provision to the contrary in the State Rules Act, interim rulemaking shall be conducted pursuant to Subsection E of this section, except:

(1) the period of notice of public hearing shall be fifteen days;

(2) the department shall also send individual notices of the interim rulemaking and of the public hearing to affected providers and beneficiaries;

(3) rules [and regulations] promulgated pursuant to the provisions of this subsection shall be in effect not less than five days after the public hearing;

(4) rules [and regulations] promulgated pursuant to the provisions of this subsection shall not be in effect for more than ninety days; and

H. At the time of the promulgation of the interim rules [or regulations], the department shall give notice of the public hearing on the final rules [or regulations] in accordance with Subsection E of this section.

I. The secretary shall ensure that any behavioral health services, including mental health and substance abuse services, provided, contracted for or approved are in compliance with the requirements of Section 9-7-6.4 NMSA 1978.

J. All rules [and regulations] shall be filed in accordance with the State Rules Act."

SECTION 10. Section 9-15-6 NMSA 1978 (being Laws 1983, Chapter 297, Section 6, as amended) is amended to read:

"9-15-6. SECRETARY--DUTIES AND GENERAL POWERS.--

B. To perform [his] the secretary's duties, the secretary has every power expressly enumerated in the laws, whether granted to the secretary or the department or any division of the department, except where authority conferred upon any division is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in the Economic Development Department Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and [regulations] rules;

(2) delegate authority to subordinates as [he] the secretary deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(3) organize the department into those organizational units [he] that the secretary deems will enable it to function most efficiently;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge [his] the secretary's duties;

(6) conduct research and studies that will improve the operations of the department and the provision of services to the citizens of the state;

(7) provide for courses of instruction and practical training for employees of the department and other persons involved in the administration of programs, with the objective of improving the operations and efficiency of administration;

(8) prepare an annual budget of the department based upon the five-year economic development plan approved by the commission. The economic development plan shall be updated and approved annually by the commission;

(9) provide cooperation, at the request of heads of administratively attached agencies, in order to:

(a) minimize or eliminate duplication of services;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies; and

(10) appoint a "director" for each division. These appointed positions are exempt from the provisions of the Personnel Act. Persons appointed to these positions shall serve at the pleasure of the secretary.

(12) require performance bonds of such department employees and officers as he deems necessary, as provided in the Surety Bond Act. The department shall pay the costs of these bonds.]

C. The secretary may apply for and receive in the name of the department any public or private funds, including but not limited to United States government funds, available to the department to carry out its programs, duties or services.

D. The secretary may make and adopt such reasonable [and] procedural rules [and regulations] as may be necessary to carry out the [duties of the department and its divisions] provisions of the Economic Development Department Act. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. No rule [or regulation] promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary unless otherwise provided by statute. Unless otherwise provided by statute, no [regulation] rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by [him] the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the [regulation] rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed [regulation] rule or proposed amendment or repeal of an existing [regulation] rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules [and regulations] shall be filed in accordance with the State Rules Act."

SECTION 11. Section 9-15A-6 NMSA 1978 (being Laws 1991, Chapter 21, Section 6, as amended) is amended to read:

"9-15A-6. SECRETARY--DUTIES AND GENERAL POWERS.--

B. To perform [his] the secretary's duties, the secretary has every power expressly enumerated in the laws, whether granted to the secretary or the department or any division of the department, except where authority conferred upon any division is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in the Tourism Department Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and [regulations] rules;

(2) delegate authority to subordinates as [he] the secretary deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(3) organize the department into those organizational units [he] that the secretary deems will enable it to function most efficiently;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge [his] the secretary's duties;

(6) conduct research and studies that will improve the operations of the department and the provision of services to the citizens of the state;

(8) prepare an annual budget of the department based upon the five-year tourism plan approved by the commission. This plan shall be updated and approved annually by the commission;

(9) provide cooperation, at the request of heads of administratively attached agencies, in order to:

(a) minimize or eliminate duplication of services;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance; and

[(11) give bond in the penal sum of twenty-five thousand dollars ($25,000) and require directors each to give bond in the penal sum of ten thousand dollars ($10,000) conditioned upon the faithful performance of duties, as provided in the Surety Bond Act. The department shall pay the costs of these bonds; and

(12) require performance bonds of such department employees and officers as he deems necessary, as provided in the Surety Bond Act. The department shall pay the costs of these bonds.]

D. The secretary may make and adopt such reasonable [and] procedural rules [and regulations] as may be necessary to carry out the [duties of the department and its divisions] provisions of the Tourism Department Act. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. No rule [or regulation] promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary unless otherwise provided by statute. Unless otherwise provided by statute, no [regulation] rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by [him] the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the [regulation] rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed [regulation] rule or proposed amendment or repeal of an existing [regulation] rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules [and regulations] shall be filed in accordance with the State Rules Act."

SECTION 12. Section 9-16-6 NMSA 1978 (being Laws 1983, Chapter 297, Section 22) is amended to read:

"9-16-6. SUPERINTENDENT--DUTIES AND GENERAL POWERS.--

A. The superintendent is responsible to the governor for the operation of the department. It is [his] the superintendent's duty to manage all operations of the department and to administer and enforce the laws with which [he] the superintendent or the department is charged.

B. To perform [his] the superintendent's duties, the superintendent has every power expressly enumerated in the laws, whether granted to the superintendent or the department or any division of the department, except where authority conferred upon any division is explicitly exempted from the superintendent's authority by statute. In accordance with these provisions, the superintendent shall:

(1) except as otherwise provided in the Regulation and Licensing Department Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and [regulations] rules;

(2) delegate authority to subordinates as [he] the superintendent deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(3) organize the department into those organizational units [he] that the superintendent deems will enable it to function most efficiently, subject to any provisions of law requiring or establishing specific organizational units;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge [his] the superintendent's duties;

(5) take administrative action by issuing orders and instructions, not inconsistent with the law, to assure implementation of and compliance with the provisions of law for whose administration or execution [he] the superintendent is responsible and to enforce those orders and instructions by appropriate administrative action or actions in the courts;

(6) conduct research and studies that will improve the operations of the department and the provision of services to the citizens of the state;

(7) provide courses of instruction and practical training for employees of the department and other persons involved in the administration of programs, with the objective of improving the operations and efficiency of administration;

(8) prepare an annual budget of the department;

(9) provide cooperation, at the request of heads of administratively attached agencies, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies; and

(12) require performance bonds of such department employees and officers as he deems necessary, as provided in the Surety Bond Act. The department shall pay the costs of these bonds.]

C. The superintendent may apply for and receive, with the governor's approval, in the name of the department any public or private funds, including but not limited to United States government funds, available to the department to carry out its programs, duties or services.

D. The superintendent may make and adopt such reasonable [and] procedural rules [and regulations] as may be necessary to carry out the [duties of the department and its divisions] provisions of the Regulation and Licensing Department Act. For any other rule promulgated, adopted or amended, the superintendent shall cite the specific statutory provisions warranting the rule. The superintendent may adopt a rule only upon specific statutory authorization regarding the content of the rule. No rule [or regulation] promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the superintendent, unless otherwise provided by statute. Unless otherwise provided by statute, no [regulation] rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the superintendent or a hearing officer designated by [him] the superintendent. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the [regulation] rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed [regulation] rule or proposed amendment or repeal of an existing [regulation] rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules [and regulations] shall be filed in accordance with the State Rules Act."

SECTION 13. Section 9-17-5 NMSA 1978 (being Laws 1983, Chapter 301, Section 5) is amended to read:

"9-17-5. SECRETARY--DUTIES AND GENERAL POWERS.--

A. The secretary of general services is responsible to the governor for the operation of the general services department. It is [his] the secretary's duty to manage all operations of the department and to administer and enforce the laws with which [he] the secretary or the department is charged.

B. To perform [his] the secretary's duties, the secretary has every power expressly enumerated in the laws, whether granted to the secretary or the department, or any division of the department, except where authority conferred upon any division is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in the General Services Department Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and [regulations] rules;

(2) delegate authority to subordinates as [he] the secretary deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(3) organize the department into those organizational units [he] that the secretary deems will enable it to function most efficiently, subject to any provisions of law, including executive orders of the governor, requiring or establishing specific organizational units;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge [his] the secretary's duties;

(5) take administrative action by issuing orders and instructions, not inconsistent with law, to assure implementation of and compliance with the provisions of law for whose administration or execution [he] the secretary is responsible, and to enforce those orders and instructions by appropriate administrative action or action in the courts;

(6) conduct research and studies that will improve the operations of the department and the provision of services to other departments and the citizens of the state;

(7) provide courses of instruction and practical training for employees of the department and to other persons involved in the administration of programs, with the objective of improving the operations and efficiency of administration;

(8) prepare the department's annual budget;

(9) cooperate with the heads of administratively attached agencies, and adjunct agencies, at their request, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies; and

(10) appoint, with the governor's consent, one "deputy secretary" and, for each division, a "director". These appointed positions are exempt from the provisions of the Personnel Act. Persons appointed to these positions shall serve at the pleasure of the secretary.

[(11) give bond as provided in the Surety Bond Act. The department shall pay the cost of such bond; and

(12) require faithful performance or other fidelity bonds of such department employees and officers as he deems necessary, as provided in the Surety Bond Act. The department shall pay the cost of such bonds.]

D. Where functions of departments overlap or a function assigned to one department could be better performed by another department, the secretary may recommend appropriate legislation to the next session of the legislature for its approval.

E. The secretary may make and adopt such reasonable [administrative and] procedural rules [and regulations] as may be necessary to carry out the [duties of the department and its divisions] provisions of the General Services Department Act. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. No rule [or regulation] promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary unless otherwise provided by statute. Unless otherwise provided by statute, no [regulation] rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by [him] the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the [regulation] rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed [regulation] rule or proposed amendment or repeal of an existing [regulation] rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation in the state and mailed at least thirty days prior to the hearing date to all persons who have made written request for advance notice of hearing. All rules [and regulations] shall be filed in accordance with the State Rules Act."

SECTION 14. Section 9-19-6 NMSA 1978 (being Laws 1987, Chapter 254, Section 6, as amended) is amended to read:

"9-19-6. SECRETARY--DUTIES AND GENERAL POWERS.--

B. To perform [his] the secretary's duties, the secretary has every power expressly enumerated in the laws, whether granted to the secretary or the department or any division of the department, except where authority conferred upon any division is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in the Department of Public Safety Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and [regulations] rules; provided that the secretary shall not reduce positions for the seventy-sixth fiscal year budgeted in the General Appropriation Act of 1987 except for cause, by attrition or by occurrence of a vacancy;

(2) delegate authority to subordinates as [he] the secretary deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge [his] the secretary's duties;

(5) take administrative action by issuing orders and instructions, not inconsistent with the law, to assure implementation of and compliance with the provisions of law with the administration or execution of which [he] the secretary is responsible and to enforce those orders and instructions by appropriate administrative action [or actions] in the court;

(6) conduct research and studies that will improve the operation of the department and examine other entities and functions of state government related to public safety for purposes of possible transfer to the department;

(8) prepare an annual budget of the department;

(9) provide cooperation, at the request of heads of administratively attached agencies, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies, if any;

(10) appoint, with the governor's consent, for each division, a director. These appointed positions are exempt from the provisions of the Personnel Act. Persons appointed to these positions shall serve at the pleasure of the secretary; and

(11) appoint the director of the New Mexico law enforcement academy, subject to the approval of the New Mexico law enforcement academy board.

[(12) give bond in the penal sum of twenty-five thousand dollars ($25,000) and require directors to each give bond in the penal sum of ten thousand dollars ($10,000), conditioned upon the faithful performance of duties as provided in the Surety Bond Act, with the department paying the cost of such bonds; and

(13) require performance bonds of such employees and officers as he deems necessary as provided in the Surety Bond Act, with the department paying the costs of such bonds.]

E. The secretary may make and adopt such reasonable [and] procedural rules [and regulations] as may be necessary to carry out the [duties of the department and its divisions] provisions of the Department of Public Safety Act. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. No rule [or regulation] promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary unless otherwise provided by statute. Unless otherwise provided by statute, no [regulation] rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by [him] the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the [regulation] rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed [regulation] rule or proposed amendment or repeal of an existing [regulation] rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation in the state and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing.

F. All rules [and regulations] shall be filed in accordance with the State Rules Act."

SECTION 15. Section 9-21-6 NMSA 1978 (being Laws 2004, Chapter 18, Section 6 and Laws 2004, Chapter 24, Section 6) is amended to read:

"9-21-6. SECRETARY--DUTIES AND GENERAL POWERS.--

B. To perform [his] the secretary's duties, the secretary has every power expressly enumerated in the laws, whether granted to the secretary or any division of the department, except where authority conferred upon any division in the department is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in the Indian Affairs Department Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and rules;

(2) delegate authority to subordinates as necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(3) organize the department into those organizational units that will enable it to function most efficiently, subject to any provisions of law requiring or establishing specific organizational units;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge the secretary's duties;

(5) take administrative action by issuing orders and instructions, not inconsistent with the law, to ensure implementation of and compliance with the provisions of law with the administration or execution of which the secretary is responsible, and to enforce those orders and instructions by appropriate administrative action or actions in the courts;

(6) conduct research and studies that will improve the operations of the department and the provision of services to the citizens of the state;

(8) prepare an annual budget of the department;

(9) provide cooperation, at the request of heads of administratively attached agencies, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies; and

D. Where functions of departments overlap, or a function assigned to one department could better be performed by another department, the secretary may recommend appropriate legislation to the next session of the legislature for its approval.

E. The secretary may make and adopt such reasonable procedural rules as may be necessary to carry out the [duties of the department and its divisions] provisions of the Indian Affairs Department Act. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. A rule promulgated by the director of a division in carrying out the functions and duties of the division shall not be effective until approved by the secretary. Unless otherwise provided by statute, a rule affecting a person or agency outside the department shall not be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed rule or proposed amendment or repeal of an existing rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules shall be filed in accordance with the State Rules Act."

SECTION 16. Section 9-23-6 NMSA 1978 (being Laws 2004, Chapter 23, Section 6) is amended to read:

"9-23-6. SECRETARY--DUTIES AND GENERAL POWERS.--

B. To perform the secretary's duties, the secretary has every power expressly enumerated in the laws, whether granted to the secretary or the department or any division of the department, except where authority conferred upon any division is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in the Aging and Long-Term Services Department Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and [regulations] rules;

(2) delegate authority to subordinates as the secretary deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(3) organize the department into those organizational units that the secretary deems will enable it to function most efficiently, subject to provisions of law requiring or establishing specific organizational units;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge the secretary's duties;

(5) take administrative action by issuing orders and instructions, not inconsistent with the law, to ensure implementation of and compliance with the provisions of law for whose administration or execution the secretary is responsible and to enforce those orders and instructions by appropriate administrative action in the courts;

(6) conduct research and studies that will improve the operations of the department and the provision of services to the citizens of the state;

(8) prepare an annual budget of the department;

(9) provide cooperation, at the request of heads of administratively attached agencies, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies; and

E. The secretary may make and adopt such reasonable procedural rules as may be necessary to carry out the [duties of the department and its divisions] provisions of the Aging and Long-Term Services Department Act. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. A rule promulgated by the director of any division in carrying out the functions and duties of the division shall not be effective until approved by the secretary unless otherwise provided by statute. Unless otherwise provided by statute, no rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed rule or proposed amendment or repeal of an existing rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. Rules shall be filed in accordance with the State Rules Act."

SECTION 17. Section 9-24-8 NMSA 1978 (being Laws 2004, Chapter 27, Section 8) is amended to read:

"9-24-8. SECRETARY--DUTIES AND GENERAL POWERS.--

(1) except as otherwise provided in the Public Education Department Act or the Public School Code, exercise general supervisory and appointing power over all department employees, subject to applicable personnel laws and rules;

(2) delegate power to subordinates as [he] the secretary deems necessary and appropriate, clearly delineating such delegated power and the limitations to that power;

(3) organize the department into organizational units as necessary to enable it to function most efficiently, subject to any provisions of law requiring or establishing specific organizational units;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge [his] the secretary's duties;

(5) take administrative action by issuing orders and instructions, not inconsistent with law, to ensure implementation of and compliance with the provisions of law for which administration or execution [he] the secretary is responsible and to enforce those orders and instructions by appropriate administrative action in the courts;

(6) conduct research and studies that will improve the operation of the department and the provision of services to the citizens of the state;

(7) provide courses of instruction and practical training for employees of the department and other persons involved in the administration of programs with the objectives of improving the operations and efficiency of administration and of promoting comprehensive, coordinated and culturally sensitive services that address the education of the whole child;

(8) prepare an annual budget for the department; and

(9) provide cooperation, at the request of administratively attached agencies and adjunct agencies, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies.

D. The secretary may make and adopt such reasonable [and] procedural rules as may be necessary to carry out the [duties of the department and its divisions] provisions of the Public Education Department Act. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. No rule promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary. Unless otherwise provided by statute, no rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by the secretary. The final public hearing on adoption, amendment or repeal of a rule shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed rule or proposed amendment or repeal of an existing rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules shall be filed in accordance with the State Rules Act."

SECTION 18. Section 9-25-8 NMSA 1978 (being Laws 2005, Chapter 289, Section 8) is amended to read:

"9-25-8. SECRETARY--DUTIES AND GENERAL POWERS.--

B. To perform the duties of the secretary, the secretary has every power expressly enumerated in the law, whether granted to the secretary, the department or any division of the department, except when any division is explicitly exempted from the secretary's power by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in the Higher Education Department Act or Chapter 21 NMSA 1978, exercise general supervisory and appointing power over all department employees, subject to applicable personnel laws and rules;

(2) delegate power to subordinates as the secretary deems necessary and appropriate, clearly delineating such delegated power and the limitations to that power;

(3) organize the department into organizational units as necessary to enable it to function most efficiently, subject to any provisions of law requiring or establishing specific organizational units;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge the duties of the secretary;

(5) take administrative action by issuing orders and instructions, not inconsistent with law, to ensure implementation of and compliance with the provisions of law for which administration or execution the secretary is responsible and to enforce those orders and instructions by appropriate administrative action in the courts;

(6) conduct research and studies that will improve the operation of the department and the provision of services to the citizens of the state;

(8) prepare an annual budget for the department; and

(9) provide cooperation, at the request of administratively attached agencies and adjunct agencies, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies.

D. The secretary may make and adopt such reasonable [and] procedural rules as may be necessary to carry out the [duties of the department and its divisions] provisions of the Higher Education Department Act. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. No rule promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary. Unless otherwise provided by statute, no rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by the secretary. No rule promulgated by the department shall infringe upon the authority vested by Article 12 of the constitution of New Mexico in the boards of regents of the educational institutions specified in that article. The final public hearing on adoption, amendment or repeal of a rule shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed rule or proposed amendment or repeal of an existing rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules shall be filed in accordance with the State Rules Act."

SECTION 19. Section 9-26-6 NMSA 1978 (being Laws 2007, Chapter 200, Section 6) is amended to read:

"9-26-6. SECRETARY--GENERAL POWERS AND DUTIES.--

B. To perform the secretary's duties, the secretary has every power expressly enumerated in the laws whether granted to the secretary or the department or any division of the department, except where authority conferred upon the human rights commission is explicitly granted by Section 28-1-4 NMSA 1978 and except where authority conferred upon any division therein is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in the Workforce Solutions Department Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and [regulations] rules;

(2) delegate authority to subordinates as the secretary deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(3) organize the department into those organizational units that the secretary deems will enable it to function most efficiently, subject to any provisions of law requiring or establishing specific organizational units; (4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge the secretary's duties;

(6) conduct research and studies that will improve the operation of the department;

(8) prepare an annual budget of the department;

(9) provide cooperation, at the request of heads of administratively attached agencies, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies, if any; and

(10) within budgetary limits, appoint such staff as required to carry out the duties of the secretary or the department.

E. The secretary may make and adopt such reasonable [and] procedural rules as may be necessary to carry out the [duties of the department and its divisions] provisions of the Workforce Solutions Department Act. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. No rule promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary unless otherwise provided by statute. Unless otherwise provided by statute, no rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed rule or proposed amendment or repeal of an existing rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation in the state and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules shall be filed in accordance with the State Rules Act."

SECTION 20. Section 9-28-4 NMSA 1978 (being Laws 2007, Chapter 291, Section 4, as amended) is amended to read:

"9-28-4. HOMELAND SECURITY AND EMERGENCY MANAGEMENT DEPARTMENT--CREATED--POWERS AND DUTIES.--

A. The "homeland security and emergency management department" is created in the executive branch. The department is a cabinet department. The chief administrative and executive officer of the department is the "secretary of homeland security and emergency management", who shall be appointed by the governor with the consent of the senate and hold office at the pleasure of the governor.

B. The secretary is responsible to the governor for the operation of the department. It is the secretary's duty to manage all operations of the department and to administer and enforce the laws with which the secretary or the department is charged.

C. To perform the secretary's duties, the secretary has every power expressly enumerated in the laws, whether granted to the secretary or the department or any division of the department, except where authority conferred upon any division is explicitly exempted from the secretary's authority by statute. In accordance with these provisions, the secretary shall:

(1) except as otherwise provided in the Homeland Security and Emergency Management Department Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and rules;

(2) delegate authority to subordinates as the secretary deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge the secretary's duties;

(5) take administrative action by issuing orders and instructions, not inconsistent with the law, to ensure implementation of and compliance with the provisions of law for whose administration or execution the secretary is responsible and to enforce those orders and instructions by appropriate administrative action or actions in the courts;

(6) conduct research and studies that will improve the operations of the department and the provision of services to the residents of the state;

(8) prepare an annual budget of the department;

(9) provide cooperation, at the request of heads of administratively attached agencies, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, recordkeeping and related clerical assistance to administratively attached agencies; and

D. The secretary may apply for and receive, with the governor's approval, in the name of the department any public or private funds, including United States government funds, available to the department to carry out its programs, duties or services.

E. The secretary may make and adopt such reasonable [and] procedural rules as may be necessary to carry out the [duties of the department and its divisions] provisions of the Homeland Security and Emergency Management Department Act. For any other rule promulgated, adopted or amended, the secretary shall cite the specific statutory provisions warranting the rule. The secretary may adopt a rule only upon specific statutory authorization regarding the content of the rule. No rule promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the secretary, unless otherwise provided by statute. Unless otherwise provided by statute, no rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by the secretary. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed rule or proposed amendment or repeal of an existing rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules shall be filed in accordance with the State Rules Act."

SECTION 21. Section 14-4-2 NMSA 1978 (being Laws 1967, Chapter 275, Section 2, as amended) is amended to read:

"14-4-2. DEFINITIONS.--As used in the State Rules Act:

A. "agency" means any agency, board, commission, department, institution or officer of the state government except the judicial and legislative branches of the state government;

B. "person" includes individuals, associations, partnerships, companies, business trusts and corporations; and

C. "rule" means any rule, regulation, order or standard [statement of policy], including amendments thereto or repeals thereof, issued or promulgated by any agency and purporting to affect one or more agencies besides the agency issuing [such] the rule or to affect persons not members or employees of [such] the issuing agency. An order or decision or other document issued or promulgated in connection with the disposition of any case or agency decision upon a particular matter as applied to a specific set of facts shall not be deemed such a rule, nor shall it constitute specific adoption thereof by the agency. [Such term shall] "Rule" does not include rules relating to the management, confinement, discipline or release of inmates of any penal or charitable institution, the [Springer] New Mexico boys' school, the girls' welfare home [of] or any hospital [nor to]; rules made relating to the management of any particular educational institution, whether elementary or otherwise [nor to]; or rules made relating to admissions, discipline, supervision, expulsion or graduation of students [therefrom] from any educational institution."

SECTION 22. A new section of the State Rules Act is enacted to read:

"[NEW MATERIAL] RULEMAKING AUTHORITY.--

A. Statutory language granting rulemaking authority or generally describing the powers and functions of the department shall not be construed to extend further than implementing or interpreting the specific powers and duties conferred by the enabling statute.

B. An agency may make and adopt such reasonable procedural rules as may be necessary to carry out its duties. For any other rule promulgated, adopted or amended, the agency shall cite the specific statutory provisions warranting the rule. The agency may adopt a rule only upon specific statutory authorization regarding the content of the rule."

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