A. Prior to the adoption, amendment or repeal of any rule, the agency shall, within the time specified by law, or if no time is specified, then at least thirty days prior to its proposed action:

(1) publish notice of its proposed action in the manner specified by law, or if no manner is specified, then in newspapers or trade, industrial or professional publications as will reasonably give public notice to interested persons; and

(2) notify any person specified by law, and, in addition, any person or group filing written request, the request to be renewed yearly as the agency directs by rule, for notice of proposed action which may affect that person or group, notification being by mail or otherwise to the last address specified by the person or group. The notice shall:

(a) give the time and place of any public hearing or state the manner in which data, views or arguments may be submitted to the agency by any interested person;

(b) either state the express terms or adequately describe the substance of the proposed action, or adequately state the subjects and issues involved; and

(c) include any additional matter required by any law, together with specific reference to the statutory authority under which the rule is proposed; and

(3) afford all interested persons reasonable opportunity to submit data, views or arguments orally or in writing and examine witnesses, unless otherwise provided by law. If the agency finds that oral presentation is unnecessary or impracticable, it may require that presentation be made in writing. The agency shall consider fully all written and oral submissions respecting the proposed rule. Upon adoption of a rule contested at hearing or otherwise, the agency shall issue a concise statement of its principal reasons for adoption of the rule and a statement of positions rejected in adopting the rule together with the reasons for the rejections. All persons heard or represented at any hearing, or who submit any writing to be considered in connection with the proposed rule, shall promptly be given a copy of the decision, by mail or otherwise.

B. If the agency finds that immediate adoption, amendment or suspension of a rule is necessary for the preservation of the public peace, health, safety or general welfare, or if the agency for good cause finds that observance of the requirements of notice and public hearing would be contrary to the public interest, the agency may dispense with such requirements and adopt, amend or suspend the rule as an emergency. The agency's finding and a brief statement of the reasons for its finding shall be incorporated in the emergency rule, amendment or suspension filed under Section 5 [12-8-5 NMSA 1978] of the Administrative Procedures Act. Upon adoption of an emergency rule, amendment or suspension which shall remain in effect for longer than sixty days, notice shall be given within seven days as required in this section for proposed rules.

History: 1953 Comp., § 4-32-4, enacted by Laws 1969, ch. 252, § 4.

Effect of failure to comply with statutory procedures. — Where the board of cosmetology failed to (1) comply with the repeal procedure of this section, 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 Section 14-4-5 NMSA 1978, the action of the board in repealing a licensing reciprocity regulation was contrary to law and the repeal was invalid. Rivas v. Bd. of Cosmetologists, 1984-NMSC-076, 101 N.M. 592, 686 P.2d 934.

Subsection B does not apply to the Savings and Loan Act (Article 10, Chapter 58 NMSA 1978). State v. Grissom, 1987-NMCA-123, 106 N.M. 555, 746 P.2d 661.

Law reviews. — For article, "How to Stand Still Without Really Trying: A Critique of the New Mexico Administrative Procedures Act," see 10 Nat. Resources J. 840 (1970).

For note, "On Building Better Laws for New Mexico's Environment," see 4 N.M. L. Rev. 105 (1973).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 2 Am. Jur. 2d Administrative Law § 152 et seq.

73 C.J.S. Public Administrative Law and Procedure §§ 103 to 110.