Rules: the other way to make laws

A few bills in the New Mexico legislature this year deal with state regulations and how they are made.  In discussing these bills, I was reminded that most people don’t participate in the rulemaking process, don’t understand how it works and so might not appreciate the benefits of improving it.

Rulemaking is not limited to agencies with the word “regulation” in their title. Lots of agencies have regulatory authority, which is conveyed by statutory language creating that authority.  Where some agencies – such as the boards and commissions in the Department of Regulation and Licensing – generally focus on a particular industry, others, like Taxation and Revenue, may make rules affecting large classes of taxpayers.

Regulations add specificity to statutes.  The language in the law is often general, and detail is required so that people who have to comply with the rules will know more precisely what their rights and obligations are.

The state’s regulations can be found in the New Mexico Administrative Code, published online by the state Commission of Public Records.  The Code itself is a relatively recent development; until it was organized, agencies published their own rules by their own methods in their own formats.  The Code is a big improvement except for an arcane formatting and numbering system that is daunting for the beginner.

Proposed rules and notices about them are published in the New Mexico Register, also published by this commission.  Before the Register was created, these notices were published as legal ads in newspapers, creating long gray columns of tiny type, a source of income for the newspapers, and a chance for a few diligent readers to find this information.  The New Mexico Register no doubt saves the state a great deal of money, but it’s not exactly on the rack at your supermarket checkout stand.

The agency may maintain a list of individuals or organizations who have indicated interest in its regulatory activities and send notices to those people.

A public hearing is held at which comments from the public are listened to, and the agency may modify a rule based on that input.   Interested parties may also submit comments in writing, whether or not they attend the hearing.  The agency is not required, however, to change the rule in response to comments or complaints.

I learned all this from a state agency attorney several years ago.  This was the procedure he followed.  But the law relating to this process, the New Mexico Rules Act (Article 14-4 of the statutes), is surprisingly sketchy.  Most of what I just described isn’t in it.  The attorney told me the rulemaking process is derived from case law, meaning a series of court decisions. This year’s House Bill 34 and Senate Bill 257 are attempts to make the process more transparent.  They have not moved very far in the 2012 session.

Once enacted, regulations have the force of law.

As a matter of basic constitutional principles, rulemaking violates the doctrine of separation of powers, which is intended to protect the citizens from abuse by government.  Legislators make laws but are not the enforcers of the laws they make; but rules are made by the agencies that have the power to enforce them. With the best of intentions, regulators may tend to make rules with a bias toward their own convenience and less regard for yours. They also pay attention to the folks who show up at their hearings, who tend to be members of organized special interest groups, not the general public and usually not the press.

You might think that the rulemaking structure would have extra scrutiny designed into it, to prevent misuse of power.  Well, so far not exactly.

© New Mexico News Services 2012

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