A. Except in the case of an emergency rule, no rule shall be valid or enforceable until it is published in the New Mexico register as provided by the State Rules Act.
B. An agency shall not adopt a rule until the public comment period has ended. 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 it shall provide for additional public participation, comments and rule hearings prior to adopting the rule.
C. An agency may terminate a rulemaking at any time by publishing a notice of termination in the New Mexico register. If a rulemaking is terminated pursuant to this section, the agency shall provide notice to the public.
D. Within fifteen days after adoption of a rule, an agency shall file the adopted rule with the state records administrator or the administrator's designee and shall provide to the public the adopted rule. The state records administrator or the administrator's designee shall publish rules as soon as practicable after filing, but in no case later than ninety days after the date of adoption of the proposed rule. Unless a later date is otherwise provided by law or in the rule, the effective date of a rule shall be the date of publication in the New Mexico register.
E. A proposed rule shall not take effect unless it is adopted and filed within the time limits set by this section.
History: 1953 Comp., § 71-7-6, enacted by Laws 1967, ch. 275, § 6; 1969, ch. 92, § 4; 1995, ch. 110, § 4; 2017, ch. 137, § 3.
ANNOTATIONSThe 2017 amendment, effective July 1, 2017, prohibited agencies from adopting rules until the public comment period has ended, provided time limits on adoption of proposed rules after the public notice period, required the state records administrator to publish the rule within 90 days after the date of adoption of proposed rules, and provided for termination of the rulemaking if no action is taken on a proposed rule within two years after notice is published; in the catchline, added "Time limit on adoption of a proposed rule"; added subsection designation "A."; in Subsection A, added "Except in the case of an emergency rule", and after "until it is", deleted "filed with the records center and"; added Subsections B and C; added subsection designation "D."; in Subsection D, added the first two sentences of the subsection, after "provided by law", added "or in the rule", and deleted "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"; and added Subsection E.
The 1995 amendment, effective July 1, 1995, added the section heading, substituted the language at the end of the first sentence beginning "filed with" for "so filed and shall only be valid and enforceable upon such filing and compliance with any other law", and added the last two sentences.
When rule becomes valid or enforceable. — The language of this section is categorical: a rule is not valid or enforceable until it is filed. There is no implicit exception that makes the rule effective before filing with respect to those with actual notice of the rule. Pineda v. Grande Drilling Corp., 1991-NMCA-004, 111 N.M. 536, 807 P.2d 234.
Prisoner disciplinary rules not covered by act. — Disciplinary rules promulgated by the secretary of corrections, governing the conduct of prisoners confined within a penitentiary, were not required to be filed with the state's record center in the manner required under State Rules Act. Johnson v. Francke, 1987-NMCA-029, 105 N.M. 564, 734 P.2d 804.
No fundamental right to notice and hearing. — There is no fundamental right to notice and hearing before the adoption of a rule. Such a right is statutory only. Livingston v. Ewing, 1982-NMSC-110, 98 N.M. 685, 652 P.2d 235.
Election rules. — Secretary of state's memorandum # 80-50 which listed the name variations which could be counted for the various write-in candidates, and required the precinct officials to list all of the variations, was never filed in the records center as required by Section 14-4-5 NMSA 1978 and was void. Weldon v. Sanders, 1982-NMSC-136, 99 N.M. 160, 655 P.2d 1004.
Actual notice of rule does not dispel necessity of compliance with State Rules Act. State v. Joyce, 1980-NMCA-086, 94 N.M. 618, 614 P.2d 30.
Effect of failure to comply with statutory requirements. — Where the board of cosmetology failed to (1) comply with the repeal procedure of 12-8-4A NMSA 1978, in failing to give notice to interested parties and to hold a hearing prior to taking action, and (2) failed to file the record of its regulatory proceedings with the state records administrator as required by this section, the action of the board in repealing a licensing reciprocity regulation was contrary to law and the repeal was invalid. Rivas v. Board of Cosmetologists, 1984-NMSC-076, 101 N.M. 592, 686 P.2d 934.
Effect of unfiled rules and regulations. — Former statutes (4-10-13 to 4-10-19, 1953 Comp.) did not provide that all unfiled rules and regulations were ineffective, but merely provided that such rules and regulations would not be valid as against any person who did not have actual knowledge of their contents. Maestas v. Christmas, 1958-NMSC-021, 63 N.M. 447, 321 P.2d 631.
Amendment has no effect on validity of previous resolution. — The subsequent adoption of an amended resolution has no effect on the validity of a previous resolution. Livingston v. Ewing, 1982-NMSC-110, 98 N.M. 685, 652 P.2d 235.
Criminal trespass charges not a means to enforce rule until filing. — Criminal trespass charges under 30-20-13 NMSA 1978 are not a means to enforce a rule available to the state until the rule is properly filed in compliance with State Rules Act. State v. Joyce, 1980-NMCA-086, 94 N.M. 618, 614 P.2d 30.
Policies that affect other agencies. — If a policy manual or directive contains statements of policy purporting to affect one or more agencies besides the agency issuing the manual or to affect persons not members or employees of the issuing agency, it must be filed in accordance with the State Rules Act. 1993 Op. Att'y Gen. No. 93-01.
Statute does not authorize center to investigate validity of rules. — The statute makes no provision for a preliminary investigation by the records center with respect to the compliance of the submitting agency to any notice and hearing requirements. As an administrative body, the records center can only act within the scope of the authority delegated by statute, and any independent investigation into the validity of the rules and regulations submitted for filing does not come within the records center's authority; therefore the records center has no power to make a determination as to whether, in fact, the promulgating agency has complied with notice and hearing requirements. 1978 Op. Att'y Gen. No. 78-07.
Orders and decisions excluded by definition from class of rules to which State Rules Act applies are not subject to the provisions of those sections and, in particular, are not governed by 14-4-3 NMSA 1978 and this section. 1979 Op. Att'y Gen. No. 79-32.
What and with whom matters to be filed. — Formerly, all official reports, pamphlets, publications, regulations, rules, codes of fair competition, proclamations and orders issued, prescribed or promulgated by the state corporation commission (now public regulation commission) of general application were to be filed, in accordance with statute, with the supreme court librarian of the state of New Mexico, with the exception of any rule or regulation or order or other document of the corporation commission (now public regulation commission), wherein it is exercising its duty of fixing, determining, supervising, regulating and controlling all charges and rates of railway, express, telephone, telegraph, sleeping car or similar company and common carrier within the state. 1953 Op. Att'y Gen. No. 53-5814.
Law reviews. — For annual survey of New Mexico law relating to administrative law, see 12 N.M.L. Rev. 1 (1982).