A. If the board determines that an emergency exists which requires immediate action to protect the public peace, health, welfare or safety, it may, with the written concurrence of the governor, adopt a regulation or amendment or repeal thereof, and the emergency regulation shall become effective immediately upon its filing under the State Rules Act [Chapter 14, Article 4 NMSA 1978]. The emergency regulation shall not continue in effect longer than forty-five days unless within that time the board commences proceedings to adopt the regulation by issuing the notice required under Section 61-1-29 NMSA 1978. If the board commences proceedings under Section 61-1-29 NMSA 1978, the emergency regulation shall remain in effect until a permanent regulation takes effect or until the procedures are otherwise completed. In no event shall any emergency regulation remain in effect for more than one hundred twenty days.
B. Any person who is or may be affected by an emergency regulation adopted by the board may appeal to the court of appeals for relief. An appeal of an emergency regulation is perfected by filing a notice of appeal with the court of appeals and the board within the period of time the emergency regulation is in effect. The notice of appeal shall be accompanied by a copy of the emergency regulation. Within three days of the date the board receives the notice of appeal, the board shall file with the court of appeals a statement setting forth the facts requiring the emergency action. The board shall also deliver a copy of the statement to the appellant. The appellant shall have five days to file with the court of appeals a written response to the board's statement. The appellant shall also deliver a copy of its response to the board. The court of appeals may set aside the emergency regulation only if it finds that the board's exercise of its emergency regulation-making authority is arbitrary, capricious, contrary to law or an abuse of discretion.
History: 1953 Comp., § 67-26-30, enacted by Laws 1971, ch. 54, § 4; 1981, ch. 349, § 20.
ANNOTATIONSEmergency regulations were unlawful. — Where the board became aware that amendments to the Acupuncture and Oriental Medicine Practice Act were subject to misinterpretation and that confusion existed about which drugs and substances could be injected into patients, the board adopted regulations in 2009 to establish a formulary to guide extended prescriptive authority; in 2010, the Court of Appeals set aside the 2009 regulations; after a discussion of the impact of the 2010 decision and the resulting confusion over which previous set of rules were in effect, the board re-adopted the 2009 regulations under the emergency powers provided by the Uniform Licensing Act, making the regulations effective for a 120-day period; the board had spent two years preparing the 2009 regulations, and six months passed while the regulations were challenged on appeal; and the 2010 decision placed the board in the same position it was in before the passage of the 2009 regulations a year earlier when no immediate threat to public health existed, an emergency did not exist and the board abused its discretion and acted contrary to law by declaring a sudden emergency and adopting the emergency regulations. Wilcox v. N.M. Bd. of Acupuncture & Oriental Med., 2012-NMCA-106, 288 P.3d 902.