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The State of Nevada's rulemaking process for executive branch entities is defined in the Nevada Revised Statutes under NRS 233B (The Nevada Administrative Procedures Act). Below is a short discussion of how the process works for the State Environmental Commission (SEC). Of note, SEC Form #1 is used for initiating the rulemaking processes. Three types of rulemaking exist: Emergency, Temporary and Permanent.

Emergency Regulation — Emergency regulations are effective for 120 days and cannot be renewed as emergency regulations. The Governor assents to emergency regulations; they are very rare and are used only when an emergency exists.

Temporary Regulation — A Temporary regulation is defined by statute as beginning on July 1 of even number years and ending on June 30 of an odd numbered year. For example, the temporary "regulatory cycle" begins on July 1, 2010 and ends on June 30, 2011. The temporary regulatory cycle coincides with the legislative cycle. And since the permanent regulations are "written" by the Legislative Counsel, (the people who draft statutes also draft regulations for the Executive Branch) the "drafters" are not available when the legislature is in session.

Temporary regulations undergo the usual public workshops, noticing, and agenda posting requirements stipulated under the Nevada Administrative Procedures Act and the Nevada Open Meeting Law. Temporary regulations are submitted to LCB with an accompanying "Information Statement" either prior to, or after adoption at an SEC regulatory hearing. 35 days after adoption by the SEC, the regulation is filed with the Secretary of State. During this time period the Legislative Commission (upon the request of a Legislator) can examine a temporary regulation and take certain actions to forestall it's implementation (See: NRS 233B.0633). All temporary regulations expire on November 1 of odd number years (for example, November 1, 2011) unless adopted as a permanent regulation.

Permanent Regulation — The permanent regulatory cycle begins on July 1st of odd numbered years and ends on June 30th of even numbered years. As an example, the permanent cycle would begin on July 1, 2011 and end on June 30, 2012.

All proposed "permanent regulations" are sent by the submitting agency (e.g., the Environmental Commission) to the Legislative Counsel Bureau (LCB) for drafting. The agency's draft regulation is then "posted" on LCB's web site (i.e., in the Register of Administrative Regulations). LCB attorneys then redraft the agency regulation to confirm with acceptable style and language of the Nevada Administrative Code (NAC); they also evaluate substantive portions of the agency's regulation to insure that legal authority exists to support the regulation (i.e. within the Nevada Revised Statutes - NRS). The redrafted regulation is then posted on LCB's website and returned to the submitting agency. Of note, and by regulation, LCB has 30 days to draft and return a proposed regulation to an executive branch agency.

Notice of Intent to Act Upon Regulations: In the case of the Environmental Commission, a regulatory hearing is then scheduled to consider the regulation. The SEC is required to publicly notice the regulation (i.e., regulatory petition) to all interested parties on the SEC ground-based and electronic mailing lists. The public notice is also submitted to the major newspapers of general statewide circulation for publication. By statute (NRS 445B.215) an SEC public notice for a regulatory hearing must be published at least three times beginning 30 days prior to the hearing. This disclosure is called the "Notice of Intent to Act Upon Regulations". The SEC also establishes a webpage for each regulatory hearing; these webpages contain the complete record of regulatory and non-regulatory documents for each specific hearing (for examples see "Recent Regulatory Hearing" on the SEC home page).

Agendas: Before a regulatory hearing is actually held, a meeting agenda is posted and made available to all individuals on the SEC mailing lists. The noticing requirments for agendas is required under the Nevada Open Meeting Law (NRS 241). In brief, a written notice must be given at least 3 working days before the public meeting, and it must include the time, place, and location of the meeting along with a list of locations where the notice was posted.

Agendas typically consist of a statement of the topics scheduled to be considered — denoting action and non-action items — and a period devoted for public comments. Most importantly, the open meeting law stipulates that no action may be taken on a matter unless it's listed on the meeting agenda as an action item.

In terms of specific posting requirements, agendas must be posted "at the principal office of the public body or, if there is no principal office, at the building in which the meeting is to be held, and at not less than three other separate, prominent places within the jurisdiction of the public body not later than 9 a.m. of the third working day before the meeting."

Filing Procedures: At a regulatory hearing [see recent hearing], the Commission hears the proposed regulation, listens to public testimony, reviews exhibits, deliberates and then acts to adopt, amend or repeal the regulation. After adoption, the necessary filing documents are prepared including an "Information Statement" that discloses public and business concerns, economic impacts and other relevant information. This package — including the regulation and any amendments to the adopted regulation — is then submitted to the Legislative Counsel for consideration by the Legislative Commission or it's subcommittee to review regulations at a public hearing. If the regulation(s) is approved by the Legislative Commission, it becomes the law and is enforceable on the effective date of the regulation.

Adopted regulations are dated and maintained on LCB's Register of Administrative Regulations website. Regulations of the Commission are also maintained in the SEC online archives and on recent SEC webpage's established for each regulatory hearing. It should be noted, the Legislative Commission has the authority to suspend a regulation, or return it to the adopting agency (see: NRS. 233B.0675) .

Regulatory Workshops — Prior to a regulatory hearing before the Commission, a regulatory workshop is required. This is done by the petitioning agency, which is usually the Nevada Division of Environmental Protection, although other agencies or individuals can petition the Commission for regulatory changes (see: SEC Form 1). Regulatory workshops must be held at least 15 days prior to a regulatory hearing before the Commission.

Regulatory workshops are subject to the noticing and procedural requirements defined in NRS 233B and NRS 241 -- the Nevada Open Meeting Law. Of note, a recent change to the Open Meeting Law now requires electronic recording and preparation of summary minutes for regulatory workshops.

Other Posting Requirements — As noted perviously, Nevada's Open Meeting Law spells out the posting requirements for meetings of public bodies. For the Environmental Commission, agendas typically contain both regulatory and non-regulatory items . Of note, if the SEC intends to take a non-regulatory action on a specific party and that action involves a "contested case" such as ratification of a settlement agreement, then only reasonable notice (typically 21 working days) is afforded to the affected party.

Archives — The Environmental Commission maintains an Archive that provides information about regulatory petitions adopted by the Commission since 1993. Included in the system are the minutes of the regulatory hearings, information about appeal hearings and air settlement fines.

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   John B. Walker