SB0257

SENATE BILL 257

50th legislature - STATE OF NEW MEXICO - second session, 2012

INTRODUCED BY

Mark Boitano

AN ACT

RELATING TO RULES; CREATING REQUIREMENTS FOR PROPOSING, ADOPTING, AMENDING OR REPEALING RULES IN A UNIFORM MANNER ACROSS ALL STATE AGENCIES; AMENDING AND ENACTING SECTIONS OF THE STATE RULES ACT TO REQUIRE REGULATORY IMPACT STATEMENTS UNDER CERTAIN CIRCUMSTANCES; AMENDING THE SMALL BUSINESS REGULATORY RELIEF ACT; REPEALING CERTAIN SECTIONS OF THE STATE RULES ACT.

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

SECTION 1. 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. "proceeding" means a formal or informal agency process or procedure that is commenced or conducted by an agency;

D. "proposed rule" means a rule that is provided to the public by an agency for review and public comment prior to its adoption, amendment or repeal;

E. "provide to the public" means for an agency to distribute rulemaking information in ways designed to notify members of the public of the rulemaking action, particularly those who may be affected by the subject of the rulemaking; provided that:

(1) "provide to the public" includes distribution of rulemaking information by:

(a) posting it on the agency web site, if any;

(b) posting it on the sunshine portal;

(d) sending it by mail or electronic mail to persons who have made a written request, including current contact information, for notice from the agency of announcements addressing the subject of the rulemaking proceeding; and

(e) providing it to the New Mexico legislative council for distribution to appropriate interim and standing legislative committees; and

(2) where appropriate, feasible or required by law, "provide to the public" may include distribution of rulemaking information:

(a) in languages other than English;

(b) to agencies of local and tribal governments;

(d) to public facilities, such as community centers and libraries, for display in each county in which the subject of the announcement will have significant impacts and in which there is not an agency office;

(e) to radio and television outlets for use in public service announcements, particularly in areas in which there are no printed media and in which the language or languages used by a significant percentage of the population are not written; and

(f) for publication in a newspaper of general circulation, if any, in each county in which the subject of the announcement will have significant impacts;

F. "regulatory impact statement" means a document, for informational purposes only, that pertains to a rule or proposed rule and that contains:

(1) a summary of the rule or proposed rule;

(2) a description of any person, resources, classes of persons and political subdivisions that would be affected by the rule or proposed rule;

(3) the probable negative and positive impacts, including the economic, employment, social, environmental and any other relevant impacts, of the rule or proposed rule on affected persons, resources, classes of persons and political subdivisions;

(4) a comparison of the costs and benefits of the rule or proposed rule to the costs and benefits of inaction, including determining whether the cost in time, money and resources costs at least fifty thousand dollars ($50,000) to a business;

(5) the probable negative or positive impact to the general fund, the state budget or a special fund of the rule or proposed rule;

(6) a statement on whether there are means for achieving the purpose of the rule or proposed rule with fewer adverse effects; and

(7) a summary of public comments or other evidence submitted during the rulemaking;

[C.] G. "rule" means any rule, regulation, order or standard [or 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; and

H. "rulemaking" means the process for adoption of a new rule or the amendment or repeal of an existing rule."

SECTION 2. A new section of the State Rules Act is enacted to read:

"[NEW MATERIAL] AGENCY ANNUAL REGULATORY AGENDA.--

A. On or before June 30 of each year, each agency expecting to engage in a rulemaking shall prepare and provide to the public a regulatory agenda.

B. The regulatory agenda shall include:

(1) a list of pending rulemakings and the current status of each rulemaking; and

(2) a list of any rulemakings expected to be proposed for the next fiscal year.

C. This section does not prohibit an agency from undertaking a rulemaking even if that rulemaking has not been included in the agency's regulatory agenda. This section does not require an agency to undertake a rulemaking listed on the agency's regulatory agenda.

D. The regulatory agenda shall be updated on a timely basis by the agency to indicate a change to the status of a rulemaking proceeding, including the preliminary outline, notice, public comment, public hearing and final agency action."

SECTION 3. A new section of the State Rules Act is enacted to read:

"[NEW MATERIAL] PRELIMINARY OUTLINE.--

A. For the purpose of seeking public input, an agency is encouraged to gather information relevant to the subject matter of the rulemaking and solicit comments and recommendations from the public.

B. Prior to publication pursuant to Section 5 of this 2012 act, the agency proposing the rulemaking shall include a preliminary outline of the rulemaking on the regulatory agenda. The preliminary outline shall include:

(1) the subject matter, statutory authority and purpose of the rulemaking being considered;

(2) the name of the agency that is proposing the rulemaking and that has the authority to adopt the rule and the agency's contact for information;

(3) the procedure and deadlines for providing input to the agency on the drafting of the preliminary rule;

(4) the agency's contemplated timetable for the rulemaking; and

(5) any other information deemed appropriate by the agency.

C. In response to a request from a member of the public for a copy of the preliminary outline, the agency:

(1) shall provide the preliminary outline as soon as is practicable and without requiring a formal inspection of public records request; and

(2) shall provide the preliminary outline without charge except to cover any actual costs incurred by the agency.

D. Nothing in this section shall be construed to preclude an agency from:

(1) changing a rulemaking that the agency is considering; or

(2) not proceeding with a rulemaking that the agency has considered."

SECTION 4. A new section of the State Rules Act is enacted to read:

"[NEW MATERIAL] RULE DRAFTING COMMITTEE.--

A. An agency may appoint a rule drafting committee to comment or make recommendations on the subject matter of a rulemaking under active consideration within the agency. The committee, in consultation with one or more agency representatives, may attempt to reach a consensus on the terms or substance of a proposed rule. In making appointments to the committee, the agency shall make reasonable efforts to inform the public of the formation of the committee and to seek a balance in representation from among interested members of the public. The formation of the committee, the agency contact, the process by which interested members of the public may request to be a member of the committee and a notice of scheduled meetings shall be included on the regulatory agenda. Committee meetings shall be open to the public but shall not be subject to the Open Meetings Act or the Per Diem and Mileage Act.

B. Pursuant to the Governmental Dispute Prevention and Resolution Act, an agency or member of the public may seek alternative dispute resolution during rulemaking. It is at the discretion of the agency if the rulemaking will proceed during alternative dispute resolution."

SECTION 5. A new section of the State Rules Act is enacted to read:

"[NEW MATERIAL] NOTICE OF PROPOSED RULEMAKING.--

A. Not later than thirty days before a public rule hearing, the agency proposing the rule shall provide to the public and publish in the New Mexico register a notice of proposed rulemaking. The notice shall include:

(1) a summary of the full text of the proposed rule;

(2) a short explanation of the purpose of the proposed rule;

(3) a citation to the specific legal authority authorizing the proposed rule and the adoption of the rule;

(4) information on how a copy of the full text of the proposed rule may be obtained;

(5) information on how a person may comment on the proposed rule, where comments will be received and when comments are due;

(6) information on where and when a public rule hearing will be held and how a person may participate in the hearing; and

(7) a citation to technical information, if any, that served as a basis for the proposed rule, and information on how the full text of the technical information may be obtained.

B. An agency may charge a reasonable fee for providing any written material requested by a person pursuant to this section.

C. An internet link to the notice and an internet link to the full text of the proposed rule shall be included on the regulatory agenda.

D. If the agency changes the date of the public rule hearing or the deadline for submitting comments as stated in the notice, the agency shall provide notice to the public of the change."

SECTION 6. A new section of the State Rules Act is enacted to read:

"[NEW MATERIAL] PUBLIC PARTICIPATION, COMMENTS AND RULE HEARINGS.--

A. The notice required pursuant to Section 5 of this 2012 act shall specify a public comment period of at least thirty days after publication in the New Mexico register during which a person may submit information and comment on the proposed rule. The information or comment may be submitted in an electronic or written format or at a public rule hearing, if any, pursuant to Subsection B of this section. The agency shall consider all information and comment on a proposed rule that is submitted within the comment period.

B. At a public rule hearing, members of the public shall be given a reasonable opportunity to submit data, views or arguments orally or in writing. Except as otherwise provided by law, an agency representative or hearing officer shall preside over a public rule hearing.

C. The rule hearing shall be open to the public and be recorded."

SECTION 7. A new section of the State Rules Act is enacted to read:

"[NEW MATERIAL] AGENCY RECORD IN RULEMAKING PROCEEDING.--

A. An agency shall maintain a rulemaking record for each rule it proposes to adopt. The record and materials incorporated by reference in the proposed rule shall be readily available for public inspection in the central office of the agency and available for public display on the sunshine portal. If an agency determines that any part of the rulemaking record cannot be practicably displayed or is inappropriate for public display on the sunshine portal, the agency shall describe the document and shall note on the sunshine portal that the document is not displayed.

B. A rulemaking record shall contain:

(1) a copy of all publications in the New Mexico register relating to the proposed rule;

(2) a copy of any technical information that was relied upon in formulating the final rule;

(3) any official transcript of a public rule hearing or, if not transcribed, any audio recording or verbatim transcript of the hearing, and any memoranda summarizing the contents of the hearing prepared by the hearing officer or agency official who presided over the hearing;

(4) a copy of all comments and other material received by the agency during the public comment period and at the public hearing;

(5) a copy of the rule and a concise explanatory statement filed with the records center; and

(6) any corrections made by the state records administrator pursuant to Section 14-4-3 NMSA 1978."

SECTION 8. A new section of the State Rules Act is enacted to read:

"[NEW MATERIAL] CONCISE EXPLANATORY STATEMENT.--At the time it adopts a rule, an agency shall provide to the public a concise explanatory statement containing:

A. the date the agency adopted the rule;

B. a reference to the specific statutory or other authority authorizing the rule;

C. any findings required by a provision of law for adoption of the rule;

D. the agency's reasons for adopting the proposed rule, including the agency's reasons for not accepting substantial arguments made in testimony and comments; and

E. the reasons for any substantive change between the text of the proposed rule at the time of the notice of proposed rulemaking issued pursuant to Section 5 of this 2012 act and the text of the rule as adopted."

SECTION 9. A new section of the State Rules Act is enacted to read:

"[NEW MATERIAL] EMERGENCY RULE.--

A. An agency shall comply with the rulemaking procedures of Sections 3 through 8 of this 2012 act unless the agency finds that the time required to complete the procedures would:

(1) cause an imminent peril to the public health, safety or welfare;

(2) cause the loss of funding for an agency program; or

(3) place the agency in violation of federal or state law.

B. The agency shall provide to the public a record of any finding pursuant to Subsection A of this section before adopting an emergency rule. The record shall include a statement that the emergency rule is temporary. After such record has been provided to the public, the agency may adopt the emergency rule immediately without prior notice or hearing or with any abbreviated notice and hearing that it finds practicable.

C. Emergency rules may take effect immediately upon filing with the records center. Emergency rules shall be published in the New Mexico register.

D. No emergency rule shall permanently amend or repeal an existing rule. An emergency rule shall remain in effect until a permanent rule takes effect under the normal rulemaking process. If no permanent rule is adopted within one hundred eighty days from the effective date of the emergency rule, the emergency rule shall expire. If an expired emergency rule temporarily amended or repealed an existing rule, the rule shall revert to what it was immediately before the emergency rule took effect."

SECTION 10. A new section of the State Rules Act is enacted to read:

"[NEW MATERIAL] VARIANCE BETWEEN PROPOSED AND FINAL ACTION.--An agency shall not take action on a proposed rule that differs from the action proposed in the notice of proposed rulemaking on which the rule is based unless the action is a logical outgrowth of the action proposed in the notice."

SECTION 11. A new section of the State Rules Act is enacted to read:

"[NEW MATERIAL] TIME LIMIT ON ADOPTION OF A PROPOSED RULE.--

A. Except in the case of an emergency rule as provided in Section 9 of this 2012 act, an agency shall not adopt a proposed rule until the public comment period has ended.

B. If the agency fails to take action on a proposed rule within two years after the notice of proposed rulemaking is published in the New Mexico register, the rulemaking is automatically terminated unless the agency takes action to extend the period. The agency may extend the period of time for adopting the proposed rule for an additional period of two years by filing a statement of good cause for the extension in the rulemaking record, but shall provide for additional public participation as provided in Section 6 of this 2012 act prior to adopting the proposed rule.

C. The agency may terminate a rulemaking at any time by publishing a notice of termination in the New Mexico register.

D. If a rulemaking is terminated pursuant to this section, the agency shall provide notice to the public and to each person who has participated in the rulemaking and who has provided contact information to the agency.

E. An agency shall file adopted rules with the records center and publish the adopted rules in the New Mexico register not later than one hundred eighty days after the date of adoption of the proposed rule.

F. A proposed rule shall not take effect unless it is adopted and filed within the time limits set by this section."

SECTION 12. A new section of the State Rules Act is enacted to read:

"[NEW MATERIAL] DEFAULT PROCEDURAL RULES--RULEMAKING HEARING.--

A. The attorney general shall adopt default procedural rules for a public rule hearing for use by agencies.

B. Except as otherwise provided in Subsection C of this section, an agency shall use the default procedural rules published under Subsection A of this section.

C. An agency may adopt a rule of procedure that differs from the default procedural rules adopted under Subsection A of this section."

SECTION 13. Section 14-4-3 NMSA 1978 (being Laws 1967, Chapter 275, Section 3, as amended) is amended to read:

"14-4-3. FORMAT OF RULES--FILING--DISTRIBUTION.--

A. Each agency promulgating any rule shall place the rule in the format and style required by rule of the records center and shall deliver [one original paper copy and one electronic copy] the rule to the records center accompanied by the concise explanatory statement required by Section 8 of this 2012 act. The records center shall note thereon the date and hour of filing.

B. The records center shall maintain [the original] a copy of the rule as a permanent record open to public inspection during office hours and shall have the rule published in a timely manner in the New Mexico register and compiled into the New Mexico Administrative Code.

C. At the time of filing, an agency may submit to the records center [an additional] a paper copy, for annotation with the date and hour of filing, to be returned to the agency.

D. The state records administrator, after written notification to the filing agency, may make minor, nonsubstantive corrections in spelling, grammar and format in filed rules. The state records administrator shall make a record of the correction and shall deliver the record to the filing agency and issuing authority within ten days of the change."

SECTION 14. Section 14-4-5 NMSA 1978 (being Laws 1967, Chapter 275, Section 6, as amended) is amended to read:

"14-4-5. FILING AND COMPLIANCE REQUIRED FOR VALIDITY.--No rule shall be valid or enforceable until it is filed with the records center and published in the New Mexico register as provided by the State Rules Act. Unless a later date is otherwise provided by law, the effective date of a rule shall be the date of publication in the New Mexico register. [Emergency regulations may go into effect immediately upon filing with the records center, but shall be effective no more than thirty days unless they are published in the New Mexico register.]"

SECTION 15. A new section of the State Rules Act is enacted to read:

"[NEW MATERIAL] REGULATORY IMPACT STATEMENT.--

A. If information or a comment submitted in an electronic or written format or at a public rule hearing pursuant to Section 6 of this 2012 act indicates that the cost of a rule or proposed rule to a business in time, money or resources will be at least fifty thousand dollars ($50,000), the agency shall perform a regulatory impact statement regarding the rule or proposed rule. The agency shall make the regulatory impact statement available for public inspection during office hours. At the time of notice of a public hearing on a rule or proposed rule about which a regulatory impact statement has been completed, the agency shall include in the notice a public announcement that the regulatory impact statement is available for inspection and comment.

B. If a regulatory impact statement regarding a rule or proposed rule has been completed, the agency shall file the regulatory impact statement and the rule or proposed rule with the records center in the format and style established by the state records administrator.

C. If an agency is unable to complete all or part of a regulatory impact statement due to hardship when a regulatory impact statement is required, including lack of agency resources or unavailable information, the agency shall document the reason for the hardship in lieu of completing all or part of the regulatory impact statement and file that document with the portion of the regulatory impact statement that is completed and the rule or proposed rule with the records center in the format and style established by the state records administrator.

D. The state records administrator shall maintain and make available to the public a list of all regulatory impact statements filed with the records center and any documentation of hardship. The state records administrator shall maintain the original copy of all regulatory impact statements as a permanent, public record. The state records administrator shall provide the list of all regulatory impact statements filed with the records center on July 1 of each year to the governor, the president pro tempore of the senate and the speaker of the house of representatives for distribution to the appropriate standing or interim legislative committee.

E. Notwithstanding other provisions of the State Rules Act, the public regulation commission shall not be exempt from preparing and filing regulatory impact statements."

SECTION 16. REPEAL.--Section 14-4-5.1 NMSA 1978 (being Laws 1995, Chapter 110, Section 10) is repealed.

SECTION 17. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2012.