(specially concurring).
Regulation 3-300(L)
In arguing for the validity of the adoption of this regulation, the EIB asserts the intent of the uranium companies was to suspend this regulation until the Apnl, 1980 meeting. The intent of the uranium companies is not pertinent; the issue is the action taken by the EIB.
The EIB contends that the action taken was to suspend this regulation until the April, 1980 meeting. This is incorrect. The action taken was to suspend, with no termination date stated, to hear oral argument at the April meeting, and to allow the EIB to take action again.
The EIB claims that the motion for reconsideration at the April meeting, which failed by a tie vote, lifted the suspension because this vote was “action taken”. I disagree; the tie vote resulted in no action. See Petition of Kinscherff, 89 N.M. 669, 556 P.2d 355 (Ct.App.1976).
The suspension not having been lifted, this regulation remains suspended, awaiting action by a majority of the EIB. Thus, I agree that this regulation is not in effect. Regulation 3-300(J)
I agree generally with the discussion that regulation 3-300(J) is not in effect because the RTAC did not consent to the adoption of this regulation. The ways in which consent may be given need not be considered because, as the majority opinion points out, “consent” requires some showing of approval. RTAC’s deferral to the EIB was a submission or yielding to the EIB and not approval of the regulation. The agreement between RTAC and EIB had no effect on the consent issue because the agreement was contrary to the statute requiring consent. See Leaco Rural Tel. Coop., Inc. v. Bureau of Revenue, 86 N.M. 629, 526 P.2d 426 (Ct.App.1974).
I concur in the result reached, but only on the basis stated in this special concurrence — that neither regulation 3-300(L) nor 3-300(J) was properly adopted.