TITLE 1 GENERAL GOVERNMENT ADMINISTRATION
CHAPTER 2 ADMINISTRATIVE
PROCEDURES
PART 2 PUBLIC
REGULATION COMMISSION RULES OF PROCEDURE
1.2.2.1 ISSUING
AGENCY: Public Regulation Commission.
[1.2.2.1
NMAC - N, 9/1/2008]
1.2.2.2 SCOPE: This rule
applies to all utility division, transportation division, fire marshal
division, and corporations bureau proceedings other
than rulemakings conducted by the commission.
Other rules governing specialized proceedings or matters shall govern in
the event of a conflict with this rule.
[1.2.2.2
NMAC - N, 9/1/2008]
1.2.2.3 STATUTORY
AUTHORITY: Sections 8-8-4, 8-8-16, 53-18-1, 53-19-66,
59A-52-15, 59A-52-16, 60-2C-3, 62-8-3, 62-13-2, 62-14-9.1, 62-14-10, 63-7-23,
63-9-11, 63-9A-5.1, 63-9A-11, 63-9B-5, 63-9H-10, 65-2A-4, 65-2A-36, 65-6-4, and
70-3-13 NMSA 1978.
[1.2.2.3
NMAC - N, 9/1/2008]
1.2.2.4 DURATION:
Permanent.
[1.2.2.4
NMAC - N, 9/1/2008]
1.2.2.5 EFFECTIVE
DATE: September 1, 2008, unless a later date is
cited at the end of a section.
[1.2.2.5
NMAC - N, 9/1/2008]
1.2.2.6 OBJECTIVE: The
purpose of this rule is to establish procedures for handling matters before the
commission concerning its regulation of utilities, telecommunications
providers, motor carriers, railroads, fire marshal-regulated entities,
corporations, owners and operators of gas and hazardous liquid pipelines and
underground facilities, excavators, and one-call notification systems subject
to the jurisdiction of the commission in New Mexico.
[1.2.2.6
NMAC - N, 9/1/2008]
1.2.2.7 DEFINITIONS: In
addition to the definitions contained in Sections 3-29-2, 8-8-2, 53-4-1,
53-6-3, 53-8-2, 53-11-2, 53-19-2, 53-20-2, 60-2C-2, 62-3-3, 62-14-2, 63-9-2,
63-9A-3, 63-9H-3, 65-2A-3, 65-6-2, and 70-3-12 NMSA 1978, as used in this rule:
A. Definitions beginning with “A”:
(1) advisory
staff means persons hired by the commission pursuant to Section 8-8-13 NMSA
1978, but who do not represent staff in proceedings before the commission;
(2) applicant means any party on
whose behalf an application is made for approval or authorization of the
commission.
B. Definitions beginning with “B”: [RESERVED]
C. Definitions beginning with “C”:
(1) chief clerk means the person appointed by the chief of staff
pursuant to Section 8-8-5 NMSA 1978 to serve as director of the administrative
services division pursuant to Section 8-8-7 NMSA 1978 or the director of the
administrative services division’s designee;
(2) chief of
staff means the person appointed by the commission pursuant to Section 8-8-5
NMSA 1978;
(3) commenter means a person who enters into the record
of a proceeding before the commission or presiding officer a comment on the
grounds of public or private interest, but who is not a party to the
proceeding;
(4) complainant means a person who
complains of anything done or omitted to be done in violation of any law, rule,
or order administered or promulgated by the commission;
(5) corporations means domestic and foreign corporations, limited
liability companies, cooperative associations, sanitary projects act
associations, water users associations, waterworks corporations, and foreign
business trusts as those terms are defined in Section 3-29-2 and Chapter 53,
NMSA 1978, unless exempted by law from commission regulation.
D. Definitions beginning with “D”:
(1) date and time of filing means, for an electronic filing, the date and
time on the filing transmittal email delivered to the records bureau email
address; electronic filings may be deemed filed at later date and time than the
time on the filing transmittal email in accordance with the procedures set
forth in Paragraph (1) of Subsection C of 1.2.2.10 NMAC. For a hard copy filing, the date and time of
filing is the date of the date stamp affixed by the records bureau in accordance
with Paragraph 2 of Subsection C 1.2.2.10 NMAC.
(2) document means, except as
otherwise used in the provisions of this rule governing discovery, any
submission in a formal proceeding, including pleadings, or which is required to
be filed by commission rule or order outside a formal proceeding.
E. Definitions beginning with “E”:
(1) electronic means relating to technology having electrical,
digital, magnetic, wireless, telephonic, optical, electromagnetic or similar
capabilities;
(2) electronic signature means a full, printed name of the person
responsible for the electronic version of the document by scanned or other
electronic reproduction of the signature or by typing in the signature line the
notation “/s/” followed by the name of the person signing the original document
and including the email address of the person signing;
(3) electronic
filing means the
filing procedures for set forth in 1.2.2.10 NMAC.
F. Definitions
beginning with “F”:
(1) file, filed, or filing means filing by electronic mail to the records bureau
email address, unless otherwise permitted by Subsections C and D of 1.2.2.10
NMAC, and acceptance by the chief clerk or the clerk’s designee;
(2) fire
marshal-regulated entities means persons
whose activities are regulated by the provisions of Sections 59A-52-1 through
59A-52-25 NMSA 1978, or the Fireworks Licensing and Safety Act, Sections
60-2C-1 through 60-2C-11 NMSA 1978; this Paragraph shall be effective until
June 30, 2021 at which time it shall be deleted;
(3) formal
proceedings means all matters other than rulemakings to which case numbers are
assigned and which are entered on the commission’s docket for decision by the
commission.
G. Definitions beginning with “G”: [RESERVED]
H. Definitions beginning with “H”: hearing examiner means a person
employed by the commission as a hearing examiner, or a commissioner or advisory
staff member designated by the commission as the hearing examiner to conduct
any hearing or investigation which the commission is authorized to conduct;
I. Definitions beginning with “I”:
(1) informal
proceedings means any matters handled outside a formal proceeding by the commission
or its staff, including informal complaints;
(2) intervenor means a person
permitted by the commission or presiding officer to participate as a party in a
proceeding pursuant to 1.2.2.23 NMAC.
J. Definitions beginning with “J”: [RESERVED]
K. Definitions beginning with “K”: [RESERVED]
L. Definitions beginning with “L”: [RESERVED]
M. Definitions beginning with “M”: mediator means a person
assigned by the commission to facilitate resolution of disputes pending
informally or formally before the commission by assisting parties in their communications
and meetings, identification and exploration of issues, and development of
bases for agreements.
N. Definitions beginning with “N”: [RESERVED]
O. Definitions beginning with “O”: [RESERVED]
P. Definitions beginning with “P”:
(1) party means a person who initiates a commission
proceeding by filing an application, petition or complaint, or whom the
commission or presiding officer names as a respondent, or whom the commission
or presiding officer grants leave to intervene; unless the context indicates
otherwise, the term “party” may also refer to counsel of record for a party;
staff shall have the status of a party, without being required to file a motion
to intervene, but shall not have a right to appeal;
(2) petitioner means any party on whose behalf a petition
is made for approval, determination, consent, certification, or authorization
of the commission;
(3) pleading means an application, petition, complaint,
answer, motion, response to motion, exception, or other formal written statement
filed in any formal proceeding;
(4) presiding officer means a commissioner taking such actions as
are permitted under 1.2.2.29 NMAC and 1.2.2.30 NMAC or the hearing examiner
designated to preside over a proceeding;
(5) proceeding means a formal proceeding;
(6) public
hearing means a portion
of a proceeding, open to the public and conducted by the commission or
presiding officer, that affords an opportunity to present such evidence,
argument, or other appropriate matters as the commission or presiding officer
deems relevant or material to the issues.
Q. Definitions beginning with “Q.”: [RESERVED]
R. Definitions beginning with “R”:
(1) records
bureau email address means
prc.records@state.nm.us or another records bureau email address, as set
out on the commission’s webpage;
(2) regular business hours means 8:00 a.m. to 12:00 p.m. and 1:00 p.m. to
5:00 p.m. prevailing mountain time Monday through Friday, excluding state
holidays;
(3) regulated entity means a utility, telecommunications provider,
motor carrier, fire marshal-regulated entity (to be deleted on June 30, 2021),
railroad, or owner or operator of gas and hazardous liquid pipelines and
underground facilities or one-call notification system subject to the
jurisdiction of the commission;
(4) respondent
means any party against whom any complaint is filed or any party subject to
the jurisdiction of the commission to whom the commission issues notice
instituting a proceeding, investigation, or inquiry of the commission;
S. Definitions beginning with “S”: staff means all persons,
other than hearing examiners and advisory staff, employed by the commission;
and
T. Definitions
beginning with “T”: telecommunications
provider shall have the meaning given in Paragraph (2) of Subsection A of Section 63-7-23 NMSA 1978.
U. Definitions beginning with “U”: unsworn affirmation means an unsworn
affirmation in lieu of a notarization pursuant to Paragraph (3) of Subsection A
of 1.2.2.35 NMAC.
V. Definitions beginning with “V”: [RESERVED]
W. Definitions beginning with “W”: [RESERVED]
X. Definitions beginning with “X”: [RESERVED]
Y. Definitions beginning with “Y”: [RESERVED]
Z. Definitions beginning with “Z”: [RESERVED]
[1.2.2.9
NMAC - Rp, 17 NMAC 1.2.9, 9/1/2008; A, 4/6/2021]
1.2.2.8 GENERAL
PROVISIONS:
A. Public
records: The commission’s policy is to allow full and
complete access to public records in accordance with the Inspection of Public
Records Act, Section 14-2-1 NMSA 1978 et
seq. Except when the commission or
presiding officer directs otherwise, all pleadings, orders, communications,
exhibits, or other documents shall become matters of public record as of the
day and time of their filing. The
commission shall permit any person to examine any such public record, unless
subject to a protective order, or otherwise protectable under the Inspection of
Public Records Act. Under no
circumstances will any person be allowed to take original commission records
from commission premises. Arrangements
to examine records or to obtain copies of records must be made through the
chief clerk or the chief clerk’s designee.
B. Protective orders:
(1) Any person moving for an
order to protect pleadings, documents or classes of documents from disclosure
bears the burden of establishing their right, if any, to such protection. A motion for an order to protect documents or
information from disclosure shall be supported by an affidavit. The affidavit shall:
(a) satisfy the claimant’s burden of making a prima facie showing that protection is
appropriate, and, if protection is sought for pleadings or documents that are
to be filed, that protection is consistent with the Inspection of Public
Records Act, including protectable trade secrets;
(b) be executed by the claimant or a person employed by the
claimant who is sufficiently knowledgeable about the grounds on which
protection is sought that they can defend such claim if it is challenged; and
(c) explain with particularity the
injury which would result from disclosure of the information for which
protection is sought.
(2) If the commission or
presiding officer deems it necessary, or if any party files a motion to compel,
the commission or presiding officer may require the party seeking the
protective order to file the documents or information which are
the subject of the motion in a properly identified sealed container. The container may be opened by the commission
or presiding officer prior to ruling on the motion for a protective order only
for purposes of making an in camera
inspection.
(3) The commission or presiding officer may, in ruling on the
motion, provide that the documents or information not be disclosed or that they
be disclosed only in a designated manner or to designated persons. Any order granting a motion for a protective
order in whole or in part shall include clear and specific instructions to the
chief clerk or chief clerk’s designee regarding the limitations placed on
disclosure of the documents or information subject to the order and a reminder
that sanctions may be imposed under applicable laws for its violation. The protective order shall set forth the
conditions for protection and disclosure of information subject to protection
under the Inspection of Public Records Act to parties to the proceeding. The order shall be included in the
appropriate publicly available file in lieu of the documents or information
which are the subject of the protective order.
(4) The period of time during which disclosure is limited
shall be two years from the date of the final order in the case, provided that
the movant may request that the protective order specify a different period of
protection. The movant may, prior to
expiration of the protective order, move for an order extending the period of
protection of the documents or information.
(5) Nothing in this rule shall be
construed as waiving or altering any requirement placed upon the commission for
timely disclosure and copying of public records under the Inspection of Public
Records Act.
(6) In the event of a
conflict between the terms of a protective order and the rules set forth in
1.2.2 NMAC the protective order controls;
C. Filing Fees:
(1) Filing fees for specific documents
are:
(a) Applications, petitions, formal complaints, and
all other filings requiring a new Case No.; a fee of $25.00 each applies, and
is required at time of filings;
(b) Advice
Notices: a fee of $1.00 per each
proposed rate, rule, or form applies, and is required at time of filing.
(2) Electronically filed documents that are required by
law to be submitted with a filing fee:
(a) the entity electronically filing
documents that require a filing fee shall include as an attachment to the
filing transmittal email a scan (pdf) or photograph (jpeg) of the filing fee
(check or money order made payable to the commission) to show proof of payment
at time of filing. The scan or
photograph of the check or money order shall be a separate electronic document from
the document to be filed;
(b) the
entity electronically filing documents shall promptly physically mail the check
or money order to NMPRC, Attn: Records
Bureau, P.O. Box 1269, Santa Fe, NM 87504-1269 along with a copy of the cover
page for the document that the fee is associated with to assist the chief clerk
or designee with making sure the filing fee is properly applied;
(c) after receipt of the electronically filed document and the
attached scan or photograph of the filing fee, the records chief clerk or
designee will issue a case no. (if applicable) and
will post the document into e-docket.
(3) All application fees or other charges required by law to
be paid along with the
filing of a document shall be paid to
the commission by check or money order at the time of filing a hard copy by regular mail or in-person at
the commission offices.
(4) No pleading or document will be accepted
without payment of required fees and submission of the required number of
copies by the filing party, unless the commission or presiding officer directs
otherwise.
(5) Except as otherwise
provided by Sections 53-2-1, 53-8-87 and 65-2A-36 NMSA 1978, and 12.3.1 NMAC,
the fee for paper copies of papers, testimony, or records, shall be the charge
set by the commission’s inspection of public records policy posted on
the commission’s website.
(6) The fee for copies of papers, testimony, or records on
electronic storage media shall be the charge set by the commission’s inspection of public records policy
posted on the commission’s website.
(7) The
fee for cassette or CD-ROM copies of audio recordings of informal and formal
proceedings, if available, shall be the charge set by the commission’s
inspection of public records policy posted on the commission’s website.
(8) For
paper copies of pleadings or documents that are not retrievable on electronic
storage media maintained by the commission, the chief clerk or chief clerk’s
designee may charge in accordance with the commission’s inspection of public
records policy posted on the commission’s website.
D. Waiver of rules: Upon the commission’s or presiding officer’s
own motion or by motion of the staff or any party showing good cause and such
notice as the commission or presiding officer may deem proper, the commission
or presiding officer may waive the application of any procedural provision of
this rule, except when precluded by law.
E. Construction and amendment: These rules, and any rules incorporated by
reference, shall be so construed as to secure just and speedy determination of
the issues.
F. Docket: The commission shall maintain a docket of all
proceedings, and each new proceeding shall be assigned an appropriate docket
number. The docket is open to public
inspection.
G. Calendar of public hearings: The commission shall maintain a public
hearing calendar. The public hearing
calendar is open to public inspection.
H. Identification
of communications:
Communications shall contain the name, address, e-mail address, if
available, and telephone number of the communicator and an appropriate
reference to any commission cases pertaining to the subject of the
communication.
I. Current information required: In all cases, persons shall keep the
information required by Subsection H of this section current, and when updating
the information, shall indicate the case numbers of all docketed cases in which
the person is a party or otherwise included on the certificate of service.
J. Computation of time: The time within which an act is to be done as
provided in any rule or order promulgated by the commission or order issued by
the presiding officer, when expressed in days, shall be computed by excluding
the day of the act or event from which the time begins to run and including the
last, except that if the last day be Saturday, Sunday, or a legal holiday, the
act may be done in the next succeeding business day.
K. Extensions of time: Except as otherwise provided by law, the time
by which any person is required or allowed to act under any statute, rule, or
order may be extended by the commission or presiding officer for good cause,
upon a motion made before the expiration of the period prescribed or previously
extended. The filing of the motion does
not toll the running of the time period prescribed.
L. Classification of parties: Parties to proceedings before the commission
shall be classified as applicants,
petitioners, complainants, respondents, or intervenors.
[1.2.2.9
NMAC - Rp, 17 NMAC 1.2.9, 9/1/2008; A, 4/6/2021]
1.2.2.9 PRACTICE BEFORE THE
COMMISSION: (See
18.60.4.11 NMAC for matters involving owners and operators of gas and
hazardous liquid pipelines and underground facilities, excavators, and one-call
notification systems.)
A. An individual may appear as a party in person or by an
attorney licensed to practice law in New Mexico at either informal or formal
proceedings.
B. Entities other than an individual may appear as a party
at informal proceedings by an officer or employee of the entity.
C. Commenters may appear in person or by an attorney at any
proceeding.
D. Except as provided in this section, entities other than
an individual must be represented by an attorney licensed to practice law in
New Mexico at all formal proceedings.
E. An attorney licensed in a jurisdiction other than New
Mexico may appear at public hearings before the commission or presiding officer
provided such non-resident attorney files a motion pro hac vice and is associated with and
accompanied by an attorney licensed in New Mexico.
F. The following entities may be represented at all formal
proceedings as provided:
(1) if the party is the United States, it may be represented as
provided in 40 U.S.C. Section 481(a)(4) and 486(d);
(2) if
the party is an association of residential customers of an investor-owned
public utility or an association of residential members of a rural electric
cooperative, it may be represented by an officer or employee thereof who has
been authorized to appear on behalf of the association;
(3) if the party is a class C or class D
water utility as defined in General Provisions for Water Utilities, 17.12.1
NMAC, or is a sewer utility subject to the requirements of procedures for
review of rates proposed by sewer utilities having annual operating revenues
averaging less than $500,000 over any consecutive three-year period, 17.13.970
NMAC, and:
(a) if
such a water or sewer utility is a corporation or LLC whose voting shares are
held by a single shareholder or closely knit group of shareholders all of whom
are natural persons active in the conduct of the business, it may be
represented by an officer or general manager who has been authorized to appear
on behalf of the corporation, or;
(b) if
such a water or sewer utility is a general partnership; and the partnership has
fewer than ten partners, whether limited or general, except that a husband and
wife are treated as one partner for this purpose; and all partners, whether
limited or general, are natural persons; it may be represented by a general
partner who has been authorized to appear on behalf of the general partnership;
(4) if
the party is a water and sanitation district governed by the Water and
Sanitation District Act, Section 73-21-1 NMSA 1978 et seq., it may be represented by an officer or employee of the
water and sanitation district who has been authorized by the water and
sanitation district to appear on its behalf;
(5) if
the party is a utility submitting an application relating to securities
pursuant to Subsection B of Section 62-6-8 NMSA 1978, it may be represented by
an officer or employee of the utility who has been authorized by the utility to
appear on its behalf; however, upon a finding by the commission or the
presiding officer that there is good cause to hold a public hearing on such an
application, the applying utility shall be represented in that proceeding by an
attorney licensed to practice law in New Mexico.
G. The commission or presiding officer may require any
person claiming to represent any other person or entity as allowed by this rule
to provide such verification or corroboration of their claimed representational
authority as the commission or presiding officer may deem necessary.
H. Nothing in this rule shall be construed to prohibit a
party from being represented in a formal proceeding by an attorney licensed to
practice law in New Mexico when such representation is desired by a party or is
required by law.
[1.2.2.9
NMAC - Rp, 17 NMAC 1.2.9, 9/1/2008; A, 4/6/2021]
1.2.2.10 FILING
AND SERVICE:
A. Service and contact emails: all
regulated entities shall at all times keep a current email on file with the
commission’s chief clerk or designee at which they can receive service of
pleadings, process and other communication from the commission. All participants in open dockets shall
provide a current email to the commission’s chief clerk or designee at which
they can receive service of pleadings, process and other communication from the
commission, unless they do not have access to email.
B. Service generally:
(1) Except as otherwise
provided by this rule or order of the commission or presiding officer, all
pleadings, orders, notices, and documents filed in a proceeding shall be
promptly served upon those persons described in Paragraph (4) of Subsection B
of 1.2.2.10 NMAC by the person filing the orders, notices, pleadings, or
documents. Service of electronic filings
shall be made by electronic transmission.
If a person does not have the ability to serve and be served
electronically service on and by that person shall be made by depositing the
pleading, order, notice, or document in the U.S. mail, postage prepaid, using
first class or express mail, by delivering the pleading, order, notice, or
document to a commercial courier service for delivery, by hand delivery. The date of service shall be the date of deposit
in the mail, delivery to a commercial courier service, hand delivery, or
electronic transmission.
(2) A certificate of service
listing, by name, each person served and describing the manner and date of
service shall be attached to the pleading, order, notice, or document being
filed and all copies served or filed, unless otherwise directed by the
commission or presiding officer.
(3) Service of pleadings, orders, notices, and documents on
the staff’s or a party’s named attorney is valid service upon staff or the
party for all purposes in the proceeding unless the commission or presiding
officer directs otherwise.
(4) Service of pleadings, orders, notices, and documents shall
be made upon all persons included on the official service list. The official service list is the most recent
service list issued by the commission or presiding officer in the proceeding.
(a) A service list shall include parties and
staff or their counsel of record and shall be issued by the commission or
presiding officer in all proceedings after the deadline for intervention has
passed in the proceeding, and may be revised from time to time.
(b) The commission or presiding officer shall
serve all service lists upon staff and the parties to the proceeding promptly
upon issuance of the list.
(c) Prior to the issuance of an official service
list, all pleadings, orders, notices, and documents filed in a proceeding shall
be served by the person filing the orders, notices, pleadings, or documents
upon all other parties in the proceeding, persons who have pending motions to
intervene, staff, and as otherwise required by commission rule or order.
(5) Orders or documents issued by the
commission or presiding officer are effective on the date they are filed unless
otherwise stated in the order or document;
(6) When serving documents
electronically each document shall
be identified in the following four segment format: case number-filing date-party name-pleading
identifier. Each name segment shall be
separated by a hyphen. Case number shall
be in the form: xx-xxxxx-suffix (UT or TR). Filing date shall be in the form: four digit year-two digit month-two digit day
of month. Party name shall utilize a single
word or abbreviated form, e.g. party initials, acronym or other identifier. The pleading identifier shall identify the
nature of the pleading by concise description, e.g. petition, application,
complaint, answer, motion seeking xxxxxxx, brief,
response, reply, etcetera.
C. Date stamps on filed documents and
pleadings:
(1) Electronic
filings:
(a) the filing transmittal email for
each filing, as received by the records bureau, shall be converted to a PDF and
appended to every filed document or pleading before uploading to e-docket;
(b) the date and time on the
filing transmittal email shall serve as the date stamp for the filed document
or pleading;
(c) if the date and time on
the filing transmittal email from a party or other person reflects a date or
time that is outside of regular business hours, the filed document or pleading
will be deemed to be filed the following business hour;
(d) if the date and time on
the filing transmittal email from the commission or a presiding officer
reflects a date or time that is outside of regular business hours, the filed document
or order will be deemed to be filed as of the date and time on the filing
transmittal email;
(e) filing transmittal emails
shall be substantially in the format of the sample transmittal email attached
as exhibit one to this rule;
(f) the filing transmittal email
should be addressed to the records bureau email address only and should be a
separate email from any service email;
(2) For a filings by mail or in person, the records bureau shall
date stamp the original document or pleading with the date it is deemed filed, in accordance with the definition of date and
time of filing provided in Paragraph (1) of Subsection D of 1.2.2.7 NMAC,
before scanning and uploading to e-docket.
The filer may request and provide to the records bureau any
number of conformed copies of the filed document or pleading for the records
bureau to stamp and return to them. If the filing is made by mail, the filer must
provide a self-addressed stamped envelope for the return of the conformed
copies.
D. Filings:
(1) Any complete, correctly filed document, order, notice or
pleading will be accepted by the chief clerk or designee and will be uploaded
in the .pdf format submitted in the appropriate identified case numbers
locations in e-docket on a regular basis for the purpose of inspection of
records.
(2) All filed documents
shall be made available, upon reasonable demand, for inspection by the chief
clerk or designee public, other parties or the commission.
(3) The filing party has
the responsibility to make sure that the filed document or pleading is complete
and accurate.
(4) The filing party shall ensure
that all filed documents and pleadings do not contain or have properly redacted
any confidential information or “protected personal identifier information” as
defined by 1-079 NMRA and Section 14-2-6 NMSA 1978.
(5) The filing party shall ensure that
all filed documents and pleadings do not contain or have properly redacted any
protected information that is prohibited from disclosure by any state or
federal law or regulation.
(6) When a party files a document that
contains redacted confidential information or personal protective identifier
information they shall deliver a non-redacted version to the records bureau in
accordance with Paragraph (12) of Subsection E of 1.2.2.10 NMAC.
(7) A filing party who files any
documents or pleadings that contain protected personal identifier information
or information prohibited from disclosure by state or federal law or regulation
shall be solely liable for any damages that result from filing such information
with the commission.
(8) Except as provided in Paragraph
(2) of Subsection C of 1.2.2.10 NMAC, persons exempted from the electronic
filing requirement may physically file documents or pleadings by:
(a) sending
one original of the document or pleading to be filed via regular postal mail
to: NMPRC Records Bureau, PO Box 1269, Santa Fe, NM 87504; or
(b) if the
records bureau has a physical location that is open to the public, by delivery
of one original of the document or pleading to the commission’s chief clerk or
designee during posted office hours.
E. Electronic filing:
(1) Electronic filing required:
(a) all regulated entities are
required to make electronic filings;
(b) all persons should make
electronic filings if they have the ability to do so;
(c) only persons who lack the
ability to make electronic filings are permitted to make physical filings;
(2) electronically filed documents shall
be emailed to the records bureau email address as .pdf documents;
(3) electronically filed documents shall
be scanned with a regular signature or be electronically signed;
(4) electronically filed documents shall
include the email address of the person signing the document in the signature
block, and if filing on behalf of a regulated entity, the email address of the
regulated entity;
(5) electronically filed
documents shall be combined into one complete document, shall include
accompanying consecutively numbered attachments, if any, except in cases where
the.pdf exceeds size limit restrictions, and if so the document shall comply
with Paragraph (8) of Subsection E of 1.2.2.10 NMAC herein;
(6) electronically filed documents shall
include a certificate of service evidencing service upon which individuals or
entities were served and by what manner of service;
(7) Confidentiality agreements and
non-disclosure agreements: when filing nondisclosure agreements or
confidentially agreements, each confidentiality agreement or non-disclosure
agreement shall be filed as a separate document;
(8) when emailing electronically
filed documents to the records bureau email address there are size limit
restrictions to the .pdf attachments of approx. 20MB but this may change as the
commission’s servers change. If a filer
receives an “undeliverable” email due to attachment size limits, the filer
shall re-send the .pdf as a single document using a download link that allows
for it to be downloaded from a cloud service such as Dropbox, One Drive, etcetera. If it is
impossible to re-send an oversized .pdf via a download link it is permissible
to split the .pdf into multiple smaller sized files and email in batches with
identifying numbers showing how the document should be combined (i.e. batch one
of three, batch two of three, etcetera) so that the records chief clerk or
designee may properly assemble for filing in e-docket;
(9) the filing date for an
electronically filed document shall be the date the filing email is sent if
emailed during regular business hours for the commission; if emailed outside of
regular business hours the document will be considered received and filed on
the next regular business day;
(10) no physical hard copies
of electronically filed documents or multiple copies of physically filed
documents are required to be submitted unless the commission or presiding
officer directs the filer to do so. At
the direction of the commission or presiding officer a designated number of
copies of any filed document shall be mailed, by regular postal service mail, to
the commission at any number of designated addresses.
(11) The commission or presiding officer may
direct any filer to submit documents or pleadings to them in a native document
format in addition to the PDF version filed with the records bureau if a native
format exists;
(12) If for any reason physical electronic
storage media must be presented to the commission, unless otherwise directed by
the commission or presiding officer, the electronic storage media shall be a
USB flash drive. All electronic storage
media submitted pursuant to this rule shall be compatible with the commission’s
current computer capabilities. All
physical electronic storage media filed shall have affixed thereto a label
containing the appropriate case number, the title of the pleading or document,
the name of the party or staff making the filing;
(13) Confidential materials are an exception to the
electronic filing requirement and shall be filed as follows:
(a) subject to the terms of
any applicable protective order, confidential materials shall be filed by
mailing hard copies to the NMPRC Records Bureau, PO Box 1269, Santa Fe, NM
87504 or by in-person delivery of hard copies to the commission’s chief clerk
or designee;
(b) when filing
confidential materials they shall submitted to the records bureau in a sealed
envelope that is separate from any mailing envelope;
(c) the sealed envelope containing
confidential materials shall list the case number, case caption, document name,
name of filer and other non-confidential identifying information on the outside
of the envelope;
(14) Parties are responsible for the timely
filing of electronic documents to the same extent as with the filing of
non-electronic documents, with the same consequences for missed deadlines;
F. Rejection:
(1) Pleadings and documents which are not in
substantial compliance with these or other commission rules, orders of the
commission or presiding officer, or applicable statutes may be rejected within
thirty (30) days after filing.
(2) If rejected, such papers will be returned
with an indication of the deficiencies therein.
However, a copy of the rejected papers shall be retained by the chief
clerk or designee as a public record.
Acceptance of a pleading or document for filing is not a determination
that the pleading or document complies with all requirements of the commission
or presiding officer and is not a waiver of such requirements.
(3) The chief of staff of the commission is
authorized to reject pleadings and documents under this rule and to
sub-delegate such authority.
(4) Pleadings
or documents that have been rejected shall not become part of the record proper
used as a basis for the commission's decision.
G. Amendments and withdrawal of
pleadings and supporting documents:
(1) Except in the case of formal complaints, pleadings may be
amended or withdrawn only with leave of the commission or presiding officer and
upon such conditions as the commission or presiding officer may deem
appropriate.
(2) Formal complaints may be amended without
leave at any time prior to the issuance of the probable cause determination
required by this rule.
(3) Amendments to any pleading shall not broaden
the scope of the issues originally filed unless the commission or presiding
officer exercises the discretion to allow such an amendment.
(4) Upon any amendment or withdrawal of a
pleading allowed, the commission or presiding officer may require a
supplementary public notice.
(5) Direct testimony and
exhibits filed may be amended or withdrawn only with leave of the commission or
presiding officer, who may take into consideration, among other things, any
delay or prejudice to the commission, its staff, or the parties which would
result from the granting of the motion.
The commission or presiding officer may grant or deny the motion or
grant the motion only upon such conditions as are deemed appropriate. Upon any amendment or withdrawal allowed, the
commission or presiding officer may require a supplementary public notice.
(6) A copy of any withdrawn filing
shall be retained by the chief clerk or designee as a public record.
[1.2.2.10
NMAC - Rp, 17 NMAC 1.2.28, 9/1/2008; A, 4/6/2021]
1.2.2.11 PLEADINGS: Pleadings
shall be in writing, shall state their object, and shall be signed by the party
or staff representative seeking authorization or relief from the commission or
by their attorney.
A. Contents: All pleadings shall be paginated and shall
contain:
(1) a clear and concise statement of
the authorization or other relief sought;
(2) in the case of initial pleadings, the exact legal name,
mailing address, and telephone number of each party or the staff representative
seeking the authorization or relief; the address or principal place of business
of such party or staff; and the name, mailing address, email address, and
telephone number of the party’s or staff’s attorney, if any;
(3) a concise and explicit statement of the facts which said
party or the staff is prepared to prove by competent evidence and upon which
the commission is expected to rely in granting the authorization or other
relief sought; and
(4) a table of contents, if more than
ten pages.
B. Supporting exhibits: All pertinent and relevant data, exhibits,
illustrations, and prepared testimony, if required by this or any other rule or
order of the commission or presiding officer, must be filed along with the
pleading.
(1) If supporting exhibits
consist of tables or graphs, the specific formulae and equations used to derive
the tables or graphs shall be attached as part of the supporting exhibit.
(2) Failure to submit all direct testimony and
exhibits in support of a proposed tariff change, application, or petition at
the time of filing, if required by rule or order of the commission or presiding
officer, may result in a rejection of the pleading or document without
prejudice.
(3) Likewise, failure to comply with an order of
the presiding officer requiring the filing of testimony and exhibits may result
in the rejection of the pleading or document without prejudice.
C. Form and size: All pleadings shall be typed or machine
printed on paper eight and one-half (8-1/2) inches wide and eleven (11) inches
long. The impression shall be on only
one side of the paper and shall be double-spaced. Footnotes and quotations may be
single-spaced. Pleadings shall be
fastened only on the left side.
Reproductions may be made by any process provided that all copies are
clear and permanently legible.
D. Interrogatories: Written interrogatories and written answers
to interrogatories, shall conform to the form and size
requirements of this rule, except that they may be single-spaced unless the
commission or presiding officer otherwise directs.
F. Title and docket number: All pleadings filed shall show the caption
for the proceeding, the docket number, and the title of the pleading. Pleadings initiating new proceedings shall
leave a space for the docket number.
G. Construction: All pleadings shall be liberally construed
and errors or defects therein which do not mislead or affect the substantial
rights of staff and the parties involved shall be disregarded.
[1.2.2.11
NMAC - Rp, 17 NMAC 1.2.10, 9/1/2008; A, 4/6/2021]
1.2.2.12 MOTIONS:
A. Motions
generally:
(1) Motions may be made at any time during the
course of a proceeding. Notwithstanding
the foregoing, if the grounds for a motion are known to the movant prior to
public hearing, the motion shall be made prior to public hearing except upon
good cause shown. The commission
discourages any delay in the filing of a motion once grounds for the motion are
known to the movant.
(2) Any motion made prior to public hearing must
be made in writing. Motions made orally
during a public hearing must, if the commission or presiding officer requires,
also be filed in writing.
(3) Motions must clearly state the relief sought,
the grounds therefor, whether the motion is opposed, and if so, by whom.
(4) All motions not specifically acted upon shall
be deemed disposed of consistent with the final order of the commission in the
proceeding. Motions based on factual
allegations that do not appear of record shall be supported by affidavit filed
along with the motion.
B. Motions to dismiss: Staff or a party to a proceeding may at any
time move to dismiss a portion or all of a proceeding for lack of jurisdiction,
failure to meet the burden of proof, failure to comply with the rules of the
commission, or for other good cause shown.
The presiding officer may recommend dismissal or the commission may
dismiss a proceeding on their own motion.
C. Responses to motions:
(1) Response times:
(a) On motions made thirteen (13) or more days
prior to a public hearing, staff and parties wishing to respond must respond in
writing within thirteen (13) days of service of the motion or before the public
hearing commences, whichever occurs first.
(b) On motions made subsequent to a public
hearing, unless the motion is a motion for rehearing filed pursuant to
Subsection F of 1.2.2.37 NMAC, staff and parties wishing to respond must
respond in writing within thirteen (13) days of service of the motion.
(c) On motions made within thirteen (13) days of
or during a public hearing, responses shall be made within such time as
directed by the commission or presiding officer.
(d) Replies to responses shall not be filed
without leave of the commission or presiding officer. Replies to responses shall be filed within
thirteen (13) days of service of the response, or such other time period as the
commission or presiding officer may prescribe.
(e) Notwithstanding the foregoing, staff and
parties wishing to respond to motions pertaining to discovery requests or the
answers thereto, including but not limited to motions to compel, motions for
sanctions and motions for protective orders, must respond to the motion within
eight (8) days of service of the motion unless the commission or presiding
officer directs otherwise.
(2) Failure to make a timely
response shall be deemed a waiver of the right to respond.
(3) Written responses based
on factual allegations that do not appear of record shall be supported by
affidavit filed along with the response.
D. Briefs: Motions seeking extensions of time or
continuances and like motions directed to the discretion of the commission or
presiding officer in procedural matters need not be accompanied by briefs. Unless otherwise provided in this rule or
waived by the commission or presiding officer, other motions must be accompanied
by a brief, including points and authorities, addressed to the issues raised by
the motion. Responses to a motion should
similarly be accompanied by a brief, including points and authorities.
E. Opposed and unopposed motions:
(1) The movant shall make a good faith effort to determine
whether a contemplated motion will be opposed.
(2) If a motion will not be opposed, the movant shall so state
in the motion, shall accompany the motion with a proposed order, and need not
file a brief in support of the motion.
The proposed order must be signed by all parties and staff unless the
motion seeks an extension of time or a continuance or is similarly directed to
the discretion of the commission or presiding officer in procedural matters.
(3) Opposed motions shall
state affirmatively that concurrence of other parties and staff has been
requested but denied or shall state why no request for concurrence was
made. Proposed orders need not be
submitted with opposed motions unless the commission or presiding officer
directs otherwise.
F. Oral argument:
(1) Motions will be decided without oral argument
or public hearing unless the commission or presiding officer directs otherwise.
(2) Oral argument or public hearing may be
conducted by telephone conference call at the discretion of the commission or
presiding officer.
(3) Staff and parties waive the opportunity to
request oral argument or an evidentiary public hearing on a motion unless the
request is stated in the motion or response to the motion.
[1.2.2.12
NMAC - Rp, 17 NMAC 1.2.12, 9/1/2008]
1.2.2.13 COMPLAINTS:
A. Complaints: The commission or staff shall not accept a
complaint from a person until the person has made a good faith effort to
resolve the complaint directly with the regulated entity, unless the complaint
is health or safety related.
(1) For informal complaints,
staff or any commissioner may waive this requirement.
(2) For formal complaints, the commission may waive this
requirement for good cause.
B. In forma pauperis: Staff or the commission
shall authorize the commencement, prosecution, defense, and investigation of
any complaint filed by an individual without payment of fees and costs or
security by the person if the individual makes an affidavit that they are
unable to pay such costs or security, as may be provided by law.
C. Alternative dispute resolution: The commission may order the following
mechanisms to resolve complaints or streamline matters before the commission:
(1) settlement conferences;
(2) mediation;
(3) arbitration;
(4) other dispute resolution means, including consent calendars;
and
(5) the use of staff decisions.
[1.2.2.13
NMAC - Rp, 17 NMAC 1.2.16, 9/1/2008]
1.2.2.14 INFORMAL COMPLAINTS: Informal complaints are ordinarily handled by
the consumer relations division through the informal complaint process outlined
in this section, but from time to time, any and all commission employees or
commissioners may receive complaints and inquiries from consumers and
constituents and provide assistance to them consistent with their job duties
and management direction. Any commission
employee who receives an informal complaint should notify the consumer
relations division. Informal complaints
against owners and operators of gas and hazardous liquid pipelines and
underground facilities and one-call notification systems, or fire
marshal-regulated entities shall be submitted directly, as appropriate, to the
transportation division or fire marshal division.
A. Initiation:
(1) A person may initiate an informal complaint
by letter, facsimile transmission, electronic mail, or other writing, via the
commission’s web site at www.nmprc.state.nm.us, by telephone, or in person at the offices
of the consumer relations division of the commission.
(2) Staff shall assist persons making informal
complaints by telephone or in person in creating a written record.
(3) The staff shall endeavor to resolve informal
complaints by correspondence or conference with the persons affected.
(4) Informal complaints will not arrest the
running of any limitations period.
B. Contents:
(1) A written informal complaint shall set forth:
(a) the name, telephone number (if any), and address
of the complainant;
(b) the name and address of the person against whom
such complaint is made;
(c) the nature of the complaint in a clear and
concise manner;
(d) a brief statement of the facts forming the
basis of such complaint; and
(e) the relief requested.
(2) The complaint shall also state whether the
complainant has pursued all remedies with the regulated entity.
(3) The written complaint need not be in
affidavit form.
(4) If the informal complaint does not initially
contain the information described in this paragraph, a member of the staff will
contact the complainant to attempt to obtain the missing data.
C. Without prejudice: The filing of an informal complaint shall not
preclude the complainant from filing a formal complaint at any time. The submission of an informal complaint is
not a prerequisite to filing a formal complaint.
D. Commission investigation of complaint:
(1) Upon receipt of an informal complaint the
commission shall, when appropriate, advise the
regulated entity within a reasonable period of time that a complaint has been
submitted against it. The commission
shall provide the regulated entity with a copy of a written informal complaint
prior to requiring a response from the regulated entity.
(2) The staff shall review and investigate the
complaint and shall advise the complainant and the regulated entity of the
results of the investigation within sixty (60) days. The commission may extend the time for good
cause.
(3) If the complaint is against a motor carrier
and is safety related, and the motor vehicle weighs 10,001 pounds or more,
staff shall also refer the complaint to the motor transportation division.
E. Choice of procedure: If staff is unable to resolve an informal
complaint to the satisfaction of the parties, either party may within five (5)
days after receipt of the results of the investigation:
(1) request
mediation;
(2) request arbitration; or
(3) file
a formal complaint.
[1.2.2.14
NMAC - Rp, 17 NMAC 1.2.17, 9/1/2008]
1.2.2.15 FORMAL
COMPLAINTS: Formal complaints shall conform to the
requirements of this rule governing pleadings, except that the requirements of
this rule shall be liberally construed with respect to pro se parties. A formal complaint shall be accompanied by
the $25.00 filing fee required in Subsection B of Section 62-13-2 NMSA
1978. Pursuant to Section 62-13-2.1 NMSA
1978, the commission may order that the filing fee be refunded if the
commission dismisses the complaint for lack of probable cause and determines
that the complainant filed the complaint in good faith. The filing of a formal complaint shall
commence a formal proceeding. A formal
complaint shall allege that a regulated entity has violated a law, rule, order, tariff, certificate of
public convenience and necessity, or operating authority promulgated or
enforced by the commission. A
formal complaint may be filed by e-mail or facsimile transmission pursuant to
other rules of the commission governing electronic filing and service.
A. Contents: A formal
complaint shall contain:
(1) a clear and concise statement of the relief sought;
(2) a concise and explicit statement of the facts which the
complainant alleges show a violation;
(3) a
statement of any laws, rules, orders, tariffs, certificates of public convenience
and necessity, or operating authorities alleged to have been violated;
(4) the exact legal and "doing business as" name,
mailing address, and telephone number of the complainant and his or her
attorney if any;
(5) the exact legal name, mailing address, and telephone number
of the respondent, if known; and
(6) the following statement signed by the complainant, “The
factual allegations in the complaint are true and correct to the best of my
knowledge and belief,” or an affidavit sworn by the complainant.
B. Discontinuance of service prohibited: A utility or telecommunications provider
shall not discontinue service to a customer or issue a notice of discontinuance
of service relative to the matter in dispute once a formal complaint has been
filed, except as otherwise authorized by law or commission rule. Charges which are not in dispute must
continue to be paid on time and in full by the complainant or be subject to
other applicable commission rules regarding disconnection or discontinuance of
service.
C. Service of complaints; answer:
(1) Upon receipt of a formal complaint that is in
substantial compliance with this rule, within a reasonable period of time the
commission shall cause a copy of the complaint to be served on the respondent
accompanied by a notice from the commission calling upon the respondent to
answer the complaint in writing within twenty (20) days of service of the
complaint. For good cause, the
commission or presiding officer may order the answer to be filed in a shorter
or longer time. The notice shall also
state that the commission may impose administrative fines or other sanctions if
the commission finds merit to the complaint.
The answer may contain an offer to satisfy the complaint as provided in
Subsection D of 1.2.2.15 NMAC. The
commission or presiding officer shall further serve the respondent with notice
of any amendments to the complaint.
(2) Motions for an extension of time to
answer a complaint shall comply with the requirements of this rule.
(3) If an amendment to a complaint is
filed before the answer is filed, the respondent’s time within which to answer
shall be ten (10) days from the date of service of the amendment or the period
set forth in the notice, whichever period is longer.
D. Satisfaction of complaint: If the respondent desires to satisfy the
complaint, they shall submit to the commission in the answer a statement of the
relief which they are willing to give, a copy of which shall be
contemporaneously served upon the complainant.
Upon acceptance of this offer by the complainant and notice to the
commission, the complaint may be dismissed.
If there is a partial settlement of the case with dismissal in part, the
complainant may proceed with the remaining issues. If the commission dismisses a complaint in
whole or in part because the complaint has been satisfied, the commission may
continue or initiate further proceedings if the issues raised in the complaint
involve a general matter of public interest.
E. Contents of answers: The answer shall state in short and plain
terms a respondent’s defenses to each claim asserted and shall admit or deny
the averments upon which the complainant relies. If the respondent is without knowledge or
information sufficient to form a belief as to the truth of an averment, the
answer shall so state and this shall have the effect of a denial. Respondent may challenge jurisdiction and
address whether probable cause exists in the answer.
F. Disposition of complaint. Upon the filing of an answer, the commission
shall evaluate jurisdiction and probable cause, and may,
as appropriate:
(1) grant the relief requested in
whole or in part;
(2) dismiss the complaint in whole or in part;
(3) set further proceedings on the
complaint or on the remaining issues in the complaint; or
(4) designate a hearing examiner to
preside over the complaint or over the remaining issues in the complaint.
G. Notice of public hearing: When a public hearing is required by law or
commission rule, at least twenty (20) days prior to an initial public hearing
on the merits of any complaint, a notice of such initial public hearing shall
be mailed to the respondent and the complainant by the commission or presiding
officer. No public hearing shall be held
until after the commission has determined that probable cause exists for the
complaint. If it is determined that the
subject matter of the complaint involves a matter of general public interest,
the commission or presiding officer may require that a notice of the public
hearing:
(1) be published at least
twenty (20) days prior to the public hearing in a newspaper of general
circulation available in the county where the complaint originated, or
(2) be given in such other
manner as the commission or presiding officer may deem proper under the
circumstances; costs of publication shall be borne by the respondent.
H. Participation of staff: The commission or presiding officer may
require that staff participate at any stage in the proceeding.
I. Dismissal at any time: The
commission shall dismiss a complaint upon a finding of no jurisdiction or
probable cause.
[1.2.2.15
NMAC - Rp, 17 NMAC 1.2.18, 9/1/2008]
1.2.2.16 SETTLEMENT
CONFERENCES:
A. Purpose:
(1) The purposes of a
settlement conference are to provide a forum for the parties and staff to work
together to informally resolve complaints and other matters in dispute,
expedite the public hearing process, and assist parties and staff in reaching a
settlement at the earliest possible stage.
(2) Nothing in this rule
shall be construed to limit or discourage voluntary settlement negotiations
among staff and the parties to any proceeding.
When deemed appropriate, the commission may order a settlement
conference.
(3) The parties and staff may
at any time move for an order designating a mediator to assist in the
resolution of issues in controversy, or if the commission deems it appropriate,
the commission may on its own motion designate a mediator. If the commission designates a mediator, the
mediator shall meet the criteria of Subsection B of 12.2.17 NMAC and shall have
the powers and duties described in Subsections B through D of 1.2.2.16 NMAC, as
well as the power to pursue other alternative dispute resolution techniques
consistent with the objective of facilitating a voluntary resolution among
staff and the parties of all or some of the issues in controversy.
B. Notice of mediated settlement conference:
(1) If a mediator is
appointed, the mediator shall notify the parties and staff of the time and
place of the settlement conference.
(a) The notice will direct the parties and staff
to send the mediator, but not other parties or staff, their settlement
positions and other necessary information that could facilitate the settlement
conference.
(b) In addition the mediator may require counsel
to have their clients present at the settlement conference or accessible by
telephone.
(c) Settlement conferences will be held at
commission offices unless otherwise directed by the mediator.
(d) The settlement conference shall be held within
twenty (20) days of the date of the notice unless good cause is shown for an
extension.
(2) Nothing in this rule
shall be construed to limit additional settlement conferences. The commission or presiding officer may
suspend the procedural schedule in the case until the settlement conference is
complete.
C. Result of settlement conference:
(1) If the parties and staff have agreed upon a settlement,
then a stipulation shall be issued in accordance with the provisions of this
rule governing stipulations. The
stipulation shall be submitted to the assigned hearing examiner to be certified
or to the commission in accordance with this rule.
(2) If the parties and staff
are unable to reach an agreement through mediation, then the mediator shall
issue a statement that the settlement conference was held and the case shall proceed.
D. Inadmissibility of settlement offers: Offers of settlement and statements made in
furtherance of them made in the course of a settlement conference are
privileged and, except by agreement among all parties and staff, shall not be
admissible as evidence in any formal public hearing before the commission or
presiding officer nor disclosed by the mediator voluntarily or through
compulsory process.
E. Proceeding not automatically stayed: Conducting a settlement conference or
conferences shall not stay a formal proceeding unless the commission or
presiding officer issues an order holding the procedural schedule in abeyance.
[1.2.2.16
NMAC - Rp, 17 NMAC 1.2.19, 9/1/2008]
1.2.2.17 MEDIATION:
A. Designation of mediator: If any of
the parties or staff makes a request for mediation, or on its own motion, the
commission may, in its discretion, designate a mediator consistent with
Subsection B of 1.2.2.17 NMAC.
B. Requirements:
(1) The
mediator may be a permanent or temporary employee of the commission or another
state agency or any other individual who is qualified in the matter to be
mediated and is acceptable to the parties and staff. If the parties request a mediator who is not
an employee of the commission, the commission shall not approve the request
unless the parties agree in writing to bear as their own the costs of obtaining
the mediator’s services.
(2) The
mediator shall not be the hearing examiner who is assigned to the case.
(3) The
mediator shall have no official, financial, or personal conflict of interest
with respect to the issues in controversy, unless such interest is fully
disclosed in writing to all parties and staff at the time the mediator is assigned
by the commission and unless all parties agree that the mediator may serve.
(4) The
mediator shall not subsequent to serving as a mediator participate in the
proceeding as a hearing examiner, advisory staff, staff counsel or expert
witness, or as an attorney, expert witness, or representative of any party to
the proceeding.
C. The mediator may be assigned by the commission at the
same time as the commission assigns the case to a hearing examiner. The mediator shall not discuss the mediation
conference with any commissioner or hearing examiner hearing the case.
D. The mediator shall notify the parties and staff by
telephone or mail of the time and place of the mediation conference, which will
be held at commission offices unless otherwise directed by the mediator. The notice may direct the parties and staff
to send the mediator, but not other parties or staff, their settlement
positions and other necessary information that could facilitate the mediation
conference, including the results of staff’s investigation of the complaint.
E. If the parties are able to reach a settlement of
their dispute, in appropriate cases the mediator shall assist the parties in
preparing a written agreement to reflect that resolution. If the parties are unable to reach a complete
settlement of their dispute, the mediator shall advise the parties that they
may request arbitration or file a formal complaint.
[1.2.2.17
NMAC - Rp, 17 NMAC 1.2.20, 9/1/2008]
1.2.2.18 ARBITRATION:
A. A complainant may request arbitration of any
dispute. The complainant’s request shall
be in writing to the commission and shall include a concise statement of the
grounds for the complaint, the remedy sought, and an acknowledgment that the
complainant has read 1.2.2.19 NMAC and agrees to be bound by its terms.
B. A utility or telecommunications provider shall not
discontinue service to a customer or issue a notice of discontinuance relating
to the matter in dispute once the matter is in arbitration, except as otherwise
authorized by law or commission rule.
Charges which are not in dispute must continue to be paid on time and in
full by the complainant or be subject to other applicable commission rules
regarding disconnection or discontinuance of service.
C. The commission or its authorized representative shall
forward the request for arbitration to the respondent together with a copy of
Subsection A of 1.2.2.13 NMAC and 1.2.2.15 NMAC and require that the respondent
submit a written response within ten (10) days of the date of the commission’s letter
forwarding the request.
D. If the respondent agrees to arbitration of the
dispute, the respondent shall include in the response to the complainant’s
request a concise statement of respondent’s position with regard to the merits
of the complaint and an acknowledgment that the respondent has read 1.2.2.19
NMAC and agrees to be bound by its terms.
If the respondent will not agree to arbitration, the
respondent shall so state in the response.
E. If the respondent either fails to respond to a
request for arbitration or does not agree to arbitration, the complainant
retains the right to proceed with a formal complaint.
F. Requirements: If both the complainant and the
respondent agree to arbitration, the commission shall designate an arbitrator.
(1) The
arbitrator may be a permanent or temporary employee of the commission or
another state agency or any other individual who is qualified in the subject
matter to be arbitrated and is acceptable to the parties to the complaint.
(2) The
designated arbitrator shall have no official, financial or personal conflict of
interest with respect to the issues in controversy, unless such interest is
fully disclosed in writing to all parties at the time of the commission’s
designation and all parties agree that the arbitrator may serve.
(3) The
parties shall be required to indicate their consent in writing to the
designated arbitrator within ten (10) days of the date of the commission’s
letter of designation.
(4) If
the parties request an arbitrator who is not an employee of the commission, the
commission shall not approve the request unless the parties agree in writing to
bear the costs as their own pursuant to Section 8-8-4 NMSA 1978.
G. Any employee of the commission designated to
arbitrate the matter under these provisions shall not participate in a
subsequent proceeding on the complaint as a hearing examiner, advisory staff,
staff counsel, or expert witness or as an attorney, expert witness, or
representative of any party to the proceeding.
H. The
commission may assign docket numbers to arbitration proceedings for purposes of
record management but the proceeding remains an informal proceeding under this
rule.
[1.2.2.18
NMAC - Rp, 17 NMAC 1.2.21, 9/1/2008]
1.2.2.19 ARBITRATION PROCEDURES:
A. Timeline for resolution:
(1) Once
designated and approved by the parties, the arbitrator shall proceed to render
a decision in the arbitration proceeding within a reasonable period of time,
not to exceed ninety (90) days, unless otherwise ordered by the commission or
presiding officer.
(2) If the arbitrator at any time
determines that it is unlikely that the dispute can be resolved without
substantially affecting the interests of other ratepayers or the public, the
arbitrator may so inform the parties and staff and terminate the proceeding
without prejudice to the complainant’s right to file a formal complaint.
B. Arbitration procedures:
(1) A
disinterested person qualified in the matter to be arbitrated may be appointed
by the commission.
(2) The
arbitrator shall fix a time and place for an informal public hearing and shall
serve notice of the public hearing on both parties and on staff at least ten
(10) days in advance of the public hearing.
(3) The
arbitrator may issue subpoenas for the attendance of witnesses and for the
production of books, records, documents, and other evidence and shall have the
power to administer oaths.
(4) The
parties and staff may offer such evidence and produce such additional evidence
as the arbitrator may deem necessary to an understanding and determination of
the dispute.
(5) The
arbitrator shall decide the relevancy and materiality of the evidence offered,
and conformity to the New Mexico rules of evidence or to the rules of evidence
contained in this rule is not necessary.
(6) No
stenographic or electronic record will be made of the testimony at public
hearing unless requested by a party, who shall bear the cost of the record, or
by staff.
C. Discovery: Discovery will be permitted but only
with leave of the arbitrator who shall not allow discovery which unduly
complicates, burdens, or impedes the expeditious and informal nature of the
proceeding.
D. Investigation: Whenever the arbitrator deems it
necessary to make an inspection or investigation in connection with the
arbitration, the arbitrator shall so advise the parties and staff, who may be
present at the inspection or investigation.
In the event that one or both of the parties or the staff are not
present, the arbitrator shall make an oral or written report to the parties and
staff and afford them an opportunity to comment.
E. Decision: At the close of or soon after the
public hearing, the arbitrator will issue a brief written decision. Findings of fact and conclusions of law are
not necessary. The arbitrator’s decision
will be binding on the parties and can be implemented by the commission to the
extent such implementation is necessary.
However, the decision will not be a decision of the commission and shall
have no precedential effect.
F. Inadmissibility of settlement
offers: Unless agreed to by all the parties
and staff, no statements, admissions, or offers of settlement made during the
course of arbitration proceedings shall be admissible as evidence in any formal
proceeding nor shall the arbitrator disclose the same voluntarily or through
discovery or compulsory process.
Nothing in this section, however, shall preclude the arbitrator from
issuing a brief written decision describing their conclusions and the bases for
them.
G. Commission not bound: Nothing in this rule shall
be construed to mean that the commission has waived its review of any decision
or that the commission consents to be bound by arbitration.
[1.2.2.19
NMAC - Rp, 17 NMAC 1.2.22, 9/1/2008]
1.2.2.20 FORMAL STIPULATIONS: The
commission recognizes that the parties to a proceeding and staff may reach
compromises and settle some or all issues.
Settlement stipulations shall be binding only if approved by the
commission.
A. Uncontested stipulations:
(1) If the staff and all parties enter into a stipulation
settling some or all of the issues in a proceeding, the stipulation shall be
filed and a copy presented to the presiding officer. If the proceeding is before the commission en banc, the commission may in its
discretion assign a hearing examiner to preside over any public hearing to be
conducted on the stipulation.
(2) When filed and presented, the stipulation must be
accompanied in rate cases by a reconciliation statement showing the dollar
impact of the settlement and the resulting rates. This statement shall contain the information
listed in Subsection F of 1.2.2.36 NMAC.
(3) Upon receipt of a stipulation which would settle
substantive issues, the commission or presiding officer shall conduct a public
hearing to determine whether the stipulation should be approved by the
commission, provided that in extraordinary cases, for good cause shown, the
commission or presiding officer may forego a public hearing. The proponents of the stipulation have the
burden of supporting the stipulation with sufficient evidence and legal
argument to allow the commission to approve it.
(4) In the event the parties and staff enter into a settlement
of one or more issues but not of the entire case, the commission or presiding
officer may in their discretion combine the public hearing on the settlement
stipulation with the public hearing on the contested issues.
(5) In cases heard by a hearing examiner rather than the
commission, the hearing examiner may:
(a) decide that the settlement stipulation should not be
certified to the commission at all, in which event the hearing examiner may
indicate to the parties and staff whether additional evidence or legal argument
in support of the stipulation or amendments to the stipulation might meet the
hearing examiner’s reservations about the stipulation; or
(b) certify the settlement stipulation to the commission for
its review; the certification shall include a recommended disposition of the
stipulation, whether the recommendation be positive or negative or otherwise
suggest a manner of disposition; exceptions to the certification may be filed
within ten (10) days after the date the settlement stipulation is certified to
the commission, unless the commission or presiding officer directs otherwise.
B. Contested stipulations:
(1) If some, but not all, of
the parties to a proceeding, including staff, enter into a stipulation seeking
to dispose of some or all of the issues in the proceeding, the stipulation
shall be filed and copies presented to the presiding officer and served on the
parties or staff opposing the stipulation.
If the proceeding is before the commission en banc, the commission may in its discretion assign a hearing
examiner to preside over any public hearing to be conducted on the
stipulation. When filed and presented,
the stipulation must be accompanied in rate cases by a reconciliation statement
showing the dollar impact of the settlement and the resulting rates. This statement shall contain the information listed
in Subsection F of 1.2.2.36 NMAC.
(2) Parties or staff opposing the stipulation shall file
statements briefly setting forth the grounds upon which they oppose the
stipulation in writing within five (5) days after the stipulation is served, or
orally at the public hearing, whichever occurs first. Responses by staff or parties supporting the
stipulation shall be made as directed by the commission or presiding officer.
(3) The commission or
presiding officer shall schedule the stipulation for public hearing and review
unless it is determined that the nature and extent of the opposition is such
that hearing the stipulation will not materially conserve commission, staff,
and party resources. In the event this determination
is made, the commission or presiding officer may refuse to entertain the
stipulation. The commission or presiding
officer also has the discretion to combine a public hearing on a contested
stipulation with the public hearing on the merits of any substantive issues not
addressed by the stipulation.
(4) A public hearing shall be
conducted to determine whether the stipulation shall be approved by the
commission. The proponents of the
stipulation have the burden of supporting the stipulation with sufficient
evidence and legal argument to allow the commission to approve it. At the public hearing all parties and staff
shall be allowed an opportunity to present evidence and cross-examine opposing
witnesses on the stipulation.
(5) In cases heard by a
hearing examiner rather than the commission the hearing examiner may:
(a) decide that the settlement stipulation should not be
certified to the commission at all, in which event the hearing examiner may
indicate to the parties and staff whether additional evidence or legal argument
in support of the stipulation or amendments to the stipulation might meet the
hearing examiner’s reservations about the stipulation; or
(b) certify the settlement stipulation to the commission for
its review; the certification shall include a recommended disposition of the
stipulation, whether the recommendation be positive or negative or otherwise
suggest a manner of disposition; exceptions to the certification may be filed
within ten (10) days after the date the settlement stipulation is certified to
the commission, unless the commission or presiding officer directs otherwise.
C. Inadmissibility of settlement offers
and rejected settlements: Statements,
admissions, or offers of settlement made during the course of negotiations of
settlements are privileged. No such
statements, admissions, or offers of settlement shall be admissible as evidence
in any formal public hearing, nor disclosed by any mediator designated pursuant
to this rule either voluntarily or through compulsory process, unless agreed to
by all the parties and staff. If a
stipulation is not approved by the commission, the terms of the proposed
settlement are also inadmissible unless their admission is agreed to by all the
parties and staff. Nothing in this
subsection shall preclude proponents of a contested settlement stipulation from
offering that stipulation into the record for purposes of its consideration by
the commission or presiding officer.
D. Precedential effect: Unless the commission explicitly provides
otherwise in the order approving the stipulation, approval of a stipulation
does not constitute commission approval of or precedent regarding any principle
or issue in the proceeding.
[1.2.2.20
NMAC - Rp, 17 NMAC 1.2.23, 9/1/2008]
1.2.2.21 PETITIONS
FOR DECLARATORY ORDERS:
A. Petition: Any
person may petition the commission for a declaratory order to terminate a
controversy or to remove an uncertainty with respect to the applicability to
the petitioner of any statute or rule administered by the commission or any
commission order. Petitions for
declaratory orders shall comply with the requirements for pleadings set forth
in this rule and shall further set forth:
(1) the statute, rule, or order of
which an interpretation is requested;
(2) the nature of the controversy or
uncertainty which is the subject of the petition;
(3) the manner in which the
controversy or uncertainty affects the petitioner;
(4) a complete statement of the facts
and grounds prompting the petition; and
(5) the names and addresses of any other persons
directly involved in the controversy or directly affected by the uncertainty.
B. Brief and affidavits:
(1) A petition for a
declaratory order shall be accompanied by a brief in which the petitioner sets
forth their position and all facts and arguments known in support of and in
opposition to that position.
(2) The petition shall also be accompanied by
affidavits attesting to the facts alleged in the petition or brief.
(3) Failure to comply with these requirements
will be grounds for summary dismissal of the petition.
C. Commission procedure:
(1) Upon the filing of a petition for a
declaratory order, the commission shall decide whether it will, in its absolute
discretion, entertain the petition in whole or in part. If the commission decides to entertain the
petition in whole or in part, the commission or the presiding officer shall
order the petitioner to give such notice of the proceeding as is deemed
appropriate and will proceed to consider the matter with or without public
hearing.
(2) The
commission may at any time during the proceeding, in its absolute discretion,
determine not to issue a declaratory order, in which case the commission shall
so notify the parties and staff.
[1.2.2.21
NMAC - Rp, 17 NMAC 1.2.24, 9/1/2008]
1.2.2.22 INVESTIGATIONS BY COMMISSION:
A. Investigations by the commission: The commission may at any time investigate
any matter within its jurisdiction.
B. Proceedings filed by the commission
of its own motion: Formal
proceedings may be initiated by the commission to consider any matter within
its jurisdiction against any person either by notice, order to show cause, order to cease and desist, or other
process. In such cases the notice, order
to show cause, or other appropriate process shall contain:
(1) specifications of all the matters to be considered and such
specifications shall fairly indicate what the respondent is to meet;
(2) a demand for such information and disclosures as the
commission may deem necessary to the question under investigation;
(3) notice of the time within which such
information and disclosures must be filed;
(4) the time and
place set for public hearing; and
(5) if the
commission deems necessary, the manner of notice to the public or to
ratepayers.
[1.2.2.22
NMAC - Rp, 17 NMAC 1.2.25, 9/1/2008]
1.2.2.23 INTERVENORS
AND COMMENTERS:
A. Intervention: Any person other than staff and the original
parties to a proceeding who desires to become a party to the proceeding may
move in writing for leave to intervene in the proceeding.
(1) The motion for leave to
intervene shall indicate the nature of the movant’s interest in the proceeding.
(2) The motion shall also comply with the
provisions of this rule governing pleadings except that the motion shall
indicate the facts relied upon as grounds for intervention.
(3) Motions for leave to intervene shall be
served on all existing parties and other proposed intervenors of record.
B. Deadline for filing motions to intervene: In proceedings concerning applications
relating to securities, unless the commission or presiding officer orders
otherwise, the motion must be filed before the commencement of the public
hearing. In all other proceedings
motions to intervene must be filed as directed by the commission or presiding
officer in the proceeding.
C. Objections to intervention: Objections to motions for leave to intervene
must be in writing and filed within thirteen (13) days after the service of the
motion or at the time of public hearing, whichever is earlier.
D. Disposition of motions to intervene:
(1) Unless the commission or
presiding officer, on their own motion, denies a motion for leave to intervene,
all timely motions for leave to intervene not objected to by any party or by
staff within thirteen (13) days of service of the motion for leave to intervene
shall be deemed allowed, provided that the commission or presiding officer, on
their own motion after notice and public hearing, may thereafter terminate the
party status of any intervenor.
(2) Where a timely motion for
leave to intervene is contested, the commission or presiding officer may grant
the intervention if it appears after consideration that the motion discloses
that:
(a) the movant possesses a substantial
interest in the subject matter of the public hearing;
(b) participation of the movant is
substantially in the public interest; or
(c) the intervention presents no
undue prejudice to the other parties.
(3) Whenever a motion to
intervene is permitted to be filed out of time, the commission or presiding
officer may deny the motion or grant the motion with limitations on grounds
including, but not limited to:
(a) failure to set forth sufficient
grounds for intervention;
(b) disruption of the proceeding
resulting from the intervention;
(c) prejudice or hardship to existing
parties or staff; or
(d) undue broadening of the issues.
(4) Except as otherwise ordered, a grant of an untimely motion
to intervene must not be a basis for delaying or deferring any procedural
schedule established prior to the grant of the motion.
(5) Intervenors who are granted party status are bound by the
agreements reached and orders entered in the proceeding prior to their
intervention. The commission and the presiding
officer will not allow the broadening of issues unless the public interest
requires it or no undue prejudice or hardship will result to other parties to
the proceeding or to staff.
(6) Notwithstanding the
provisions of Paragraphs (1) through (3) of Subsection D of 1.2.2.23 NMAC,
where there are two (2) or more intervenors or proposed intervenors having
substantially like interests and positions the commission or presiding officer
may, to avoid unnecessary delay or duplication of effort and expense, limit the
number of intervenors in the proceeding.
(7) A proposed intervenor
shall become party to the proceeding once the motion to intervene is deemed
allowed or otherwise granted under this rule.
Intervenors shall have the same rights as other parties to the
proceeding.
E. Withdrawal of intervenors: An intervenor can withdraw by filing notice
and must serve the withdrawal on all parties and staff.
F. Commenters: Commenters shall be entitled to make an oral
statement or submit a written statement for the record, but such statement
shall not be considered by the commission as evidence. All interested persons are afforded the
opportunity to have input into cases which affect them. The commission encourages ratepayer input and
the purpose of this rule is to facilitate participation. However, commenters are not parties and shall
not have the right to introduce evidence, to examine or cross-examine
witnesses, to receive copies of pleadings and documents, to appeal from any
decisions or orders, or to otherwise participate in the proceeding other than
making their comments.
[1.2.2.23
NMAC - Rp, 17 NMAC 1.2.26, 9/1/2008]
1.2.2.24 PROCEDURAL ORDERS:
A. Contents: In rate cases and in other
proceedings as may be appropriate, the commission or presiding officer shall
issue a procedural order or orders setting forth:
(1) any deadlines the commission or presiding officer may set
for the completion of discovery;
(2) deadlines for the filing of staff and intervenor testimony;
(3) any requirements for the filing,
service, or presentation of pleadings, discovery requests, discovery responses,
testimony, exhibits, or other documents in electronic form; in all instances
written or electronic submissions shall be filed in accordance with the
requirements of this rule and other applicable commission rules, unless
otherwise ordered by the commission or presiding officer;
(4) procedures for the prompt argument
and disposition of procedural and discovery motions appropriate to the
proceeding; these procedures may, notwithstanding the provisions of this rule
governing motions, include a shortened time for written responses to motions,
the use of oral argument in lieu of written responses, or other mechanisms to
expedite the decision-making process;
(5) the date,
time, and place of any pre-hearing conference;
(6) the date, time, and place of the public hearing on the
merits; and
(7) any other
relevant dates.
B. Modification of procedural orders: The commission or presiding officer may
modify procedural orders
on their own motion or on motion of staff or a party when necessary.
C. Notice of public hearing:
(1) Reasonable notice shall be given to
all parties of the time and place of every public hearing scheduled by the
commission or presiding officer.
(2) The commission or presiding officer
may require that public notice also be given.
When public notice is required, it shall be published in a newspaper
having general circulation in the area affected by the filed pleadings at least
twenty (20) days prior to the date of the public hearing, unless otherwise
provided by rule, or if the commission or presiding officer finds that
circumstances warrant shorter notice.
The party who is required to publish notice shall cause to be filed, on
or before the date of public hearing, an affidavit of publication of a
responsible officer of the newspaper making such publication. The party required by the commission or
presiding officer to publish the notice shall bear the cost of such
publication.
[1.2.2.24
NMAC - Rp, 17 NMAC 1.2.27, 9/1/2008]
1.2.2.25 DISCOVERY:
A. Commission policy: The
commission favors prompt and complete disclosure and exchange of information
and encourages informal arrangements among the parties and staff for this
exchange. It is further the commission’s
policy to encourage the timely use of discovery as a means toward effective
presentations at public hearing and avoidance of the use of cross-examination
at public hearing for discovery purposes.
B. Discovery procedures:
Techniques of pre-hearing discovery permitted in state civil actions,
such as interrogatories, requests for admissions, depositions, and requests for
production of documents may be employed by staff or by any party. Upon experiencing any difficulties in
obtaining discovery, staff and the parties may seek relief from the commission
or presiding officer by filing a proper motion.
Nothing in this rule shall preclude the commission or the presiding
officer from obtaining information by order or preclude staff from obtaining information
in any lawful manner.
C. Applicability of rules of civil
procedure: Discovery in commission
proceedings shall be governed
by the New Mexico rules of civil procedure for the district courts applicable
to discovery, except where such rules are inconsistent with this rule. Any references to “the court” in those rules
shall be deemed to mean “the commission or presiding officer” for purposes of
commission proceedings.
D. Depositions:
(1) The
commission, the presiding officer, staff, and parties shall have the right to
take the testimony of any witnesses by deposition and compel through the
commission’s subpoena powers the attendance of witnesses and the production of
books, documents, papers, and accounts.
(2) Depositions
may be taken and on-site inspections may be performed upon commencement of the
proceeding and without prior approval of the commission or presiding officer.
(3) Notices
or requests for depositions or on-site inspections shall be served on staff and
on all parties unless the commission or presiding officer directs otherwise.
(4) All
parties and staff may participate in any depositions, or in any on-site
inspections requested by a party or staff under Subsection F of 1.2.2.25 NMAC,
unless the commission or presiding officer directs otherwise.
E. Interrogatories: The staff
and parties may serve upon staff or any party written interrogatories to be
answered by staff or the party served, or if the party served is a public or
private corporation, by any officer or agent who shall furnish such information
as is available to the party.
(1) Interrogatories
may be served after commencement of any proceeding and without leave of the
commission or presiding officer.
(2) The
interrogatories shall be answered separately and fully in writing under oath
and each answer shall be signed by the person or persons making it unless
otherwise ordered by the commission or presiding officer.
(3) Unless
objected to, answers to interrogatories shall be served in the manner provided
in Subsection H of 1.2.2.25 NMAC within fifteen (15) days after the service of
the interrogatories unless the commission or presiding officer enlarges or
shortens the time, or unless the party or staff submitting the interrogatories
and the party or staff to which the interrogatories are directed agree to a
different period of time, notice of which agreement shall be filed and served
on staff and all other parties. Any such
agreements shall not affect the authority of the commission or presiding
officer to govern commission proceedings as provided by law.
(4) Within
fifteen (15) days after service of interrogatories, staff or a party may make
written objections, duly served as provided in Subsection H of 1.2.2.25
NMAC. Written objections shall:
(a) identify the interrogatory or subject matter objected to and
stating with particularity the reasons for the objections; and
(b) include copies or complete restatements of the interrogatory
or interrogatories objected to, and a description of the facts and circumstances
and the legal authority purporting to justify the objection.
(5) The
service of objections shall not excuse the answering party or staff from
answering remaining interrogatories or subparts of interrogatories to which no
objection is stated.
(6) Answers
to interrogatories to which objection is made shall be deferred until a
determination has been made on such objections.
F. Production of documents and things and entry upon
land for inspection and other purposes: The commission, the presiding
officer, staff, and parties may serve upon any party or upon staff requests for
the production or inspection of documents or things within staff’s or that
party’s possession, custody, or control, either consolidated with
interrogatories or alone. The commission,
presiding officer, staff, and parties may serve on any other party a request to
permit entry upon designated land or other property in the possession or
control of the party upon whom the request is served for the purpose of
inspection, measuring, surveying, photographing, testing, or sampling the
property or any designated object or operation thereon, either consolidated
with the interrogatories or alone.
(1) A
request may be served upon commencement of the proceeding and without leave of
the commission or presiding officer.
(2) The
request shall specify a reasonable time, place, and manner of making the
inspection and performing related acts, or of copying the documents, or specify
that copies of the designated documents be sent to the requesting party or
staff in lieu of an inspection.
(3) The request shall set forth the
property or items to be inspected, either by individual item or by category,
and shall describe each item and category with reasonable particularity.
(4) The
requestor shall specify a date for the production or inspection, which date
shall be not less than fifteen (15) days after the date the request is served
unless the commission or presiding officer enlarges or shortens the time or
unless the party or staff submitting the request for production of documents
and the party or staff to which the request is directed agree to a different
period of time, notice of which agreement shall be filed and served on staff
and all other parties. Any such
agreements shall not affect the authority of the commission or presiding
officer to govern commission proceedings as provided by law. If no time is specified production shall be
due fifteen (15) days after service of the request.
(5) Within
fifteen (15) days after service of a request for production staff or a party
may serve written objections in the form and manner provided in Subsections E
and H of 1.2.2.25 NMAC. The objector
shall produce as requested all documents or things which are not the subject of
an objection.
G. Requests for admissions: The
commission, presiding officer, staff, or parties may serve upon any party or
upon staff requests for the admission of facts or the genuineness of
documents. Copies of documents shall be
served with the request.
(1) Requests
may be served upon commencement of the proceeding and without leave of the
commission or presiding officer.
(2) Answers
to requests for admissions shall be served within fifteen (15) days after
service of the request unless the commission or presiding officer enlarges or
shortens the time, or unless the party or staff submitting the request for
admissions and the party or staff to which the request is directed agree to a
different period of time, notice of which agreement shall be filed and served
on staff and all other parties. Any such
agreements shall not affect the authority of the commission or presiding
officer to govern commission proceedings as provided by law.
(3) Written
objections to a request prepared in the form and manner provided in Subsection
E of 1.2.2.25 NMAC shall be filed and served as provided in Subsection H of
1.2.2.25 NMAC within fifteen (15) days of service of the requests. The filing and service of objections shall
not excuse the answering party or staff from answering the remaining requests
to which no objection is stated.
H. Filing and service:
Interrogatories, requests for production or inspection of documents and
things or entry upon lands for inspection and other purposes, and requests for
admissions and other written discovery requests shall be served upon the party
or staff to which such discovery is directed.
Written answers, responses or objections to discovery requests shall be
served on the party or staff making such requests.
(1) Discovery requests and responses, or objections thereto, and
deposition transcripts, shall not be routinely filed. However, the party or staff making a
discovery request shall file a certificate indicating the date of service.
(2) Unless
the commission or presiding officer directs otherwise, interrogatories,
requests for production or inspection of documents and things or entry upon
lands for inspection and other purposes, requests for admissions and other
written discovery requests or notices, as well as written responses or
objections thereto, shall be served on any other party, or staff, which
requests copies of such discovery requests, notices, responses or objections.
(3) Parties
or staff desiring copies of the written discovery materials of other parties or
of staff may request copies either in one blanket request for all discovery
materials throughout the proceeding or by request specific to the discovery
activity in question.
(4) At
the option of the party or staff making a discovery request or response, any
such request or response including objections may additionally be presented in
electronic form. Discovery requests or
responses, including objections, shall be presented in electronic form in
addition to or in lieu of other applicable service or filing requirements of
this rule if the commission or presiding officer so orders pursuant to
Subsection A of 1.2.2.24 NMAC, or pursuant to other commission rules governing
electronic filing and service. The
commission or presiding officer shall not require electronic filing or service
by any party who does not have such capability.
I. Supplementation of responses to discovery
requests: A party or staff who has
responded to a request for discovery is under a duty reasonably and promptly to
amend or supplement their
previous response if they obtain
information which they would have been required to provide in such response if
the information had been available to them at the time they served the
response.
J. Motions to compel or for sanctions:
(1) Staff
or a party may move for an order compelling discovery or for sanctions for
failure to comply with an order directing that discovery be had as provided in
the New Mexico rules of civil procedure for the district courts. In addition to the sanctions provided in
those rules, the commission may impose the penalties set forth in applicable
law, for failure to comply with an order of the commission or presiding
officer.
(2) Any
motion for an order compelling discovery shall include copies or complete
restatements of the discovery requests or notices to which the movant seeks
compelled responses or related relief, along with copies of any responses or
objections to the subject discovery requests or notices, and any other
pertinent materials. An original and
four (4) copies of motions to compel shall be filed and copies shall be served
on staff and all other parties to the proceeding.
(3) No motion to compel, or any other motion regarding any discovery dispute, shall be
considered unless accompanied by a statement that the participants made a good
faith effort to resolve the dispute and were unable to do so.
K. Order for protection of staff, parties, or
witnesses: The commission or presiding
officer may issue such
orders for the protection of staff, parties, or witnesses from annoyances,
embarrassment, or oppression as may be just and proper under the circumstances.
[1.2.2.25
NMAC - Rp, 17 NMAC 1.2.28, 9/1/2008]
1.2.2.26 PRE-HEARING CONFERENCES:
A. General:
(1) It
is the policy of the commission to encourage the use of pre-hearing conferences
as a means of making more effective use of hearing time and to otherwise aid in
the disposition of the proceeding or the settlement thereof. Having the issues clearly delineated in
advance of public hearing and the ground rules for the conduct of the public
hearing well understood may be particularly beneficial in cases heard by the
commission en banc and in such complex or multi-party
proceedings as the rate cases of the major utilities, motor carriers, and
telecommunications providers.
(2) The commission or presiding officer
may, with reasonable written notice, require that all parties and staff attend
one or more pre-hearing conferences for the purpose of formulating and
simplifying the issues in the proceeding or addressing other matters that may
expedite orderly conduct and disposition of the proceeding. Such matters may include but are not limited
to:
(a) details of
the procedural schedule;
(b) the necessity or desirability of amendments to the
pleadings;
(c) the possibility of obtaining admissions of fact and
documents which will avoid unnecessary proof;
(d) limitations on the number of witnesses or time allocated to
particular witnesses or issues at public hearing;
(e) procedures
at the public hearing;
(f) the
distribution of written testimony and exhibits to staff and the parties prior
to the public hearing;
(g) the consideration of any outstanding motions; or
(h) the status
of any settlement negotiations and, if appropriate, identification of any
interest in and resources to support professional assistance therewith or other
alternative means of dispute resolution.
B. Attendance:
(1) All parties and staff shall attend a
pre-hearing conference fully prepared for a productive discussion of all
matters noticed for the conference and motions outstanding at the time of the
conference and fully authorized to make commitments with respect thereto or
take positions thereon. Preparation
should include advance study of all materials filed and materials obtained
through formal and informal discovery and, if feasible, advance informal
communication among the parties and staff to ascertain the extent to which the
parties and staff will be able to agree on the matters which have been noticed
for conference and on any pending motions.
(2) Failure
of any party or staff to attend or be prepared for a pre-hearing conference
without good cause shown shall constitute a waiver of any objection to any
agreement reached or to any order or ruling made as a result of the conference.
(3) Offers
of settlement and statements made in furtherance thereof,
made in the course of a pre-hearing conference or at any other time, are
privileged and, except by agreement among all the parties and staff, shall not
be used against participating parties or staff before the commission.
C. Submission of proposed pre-hearing orders: The commission or
presiding officer may, in the order
convening a pre-hearing conference, direct that each party and the staff file
and serve on all other parties and staff a proposed pre-hearing order which
shall identify all issues the party or staff proposes to address at public
hearing, whether in their case in chief or on cross-examination, set forth the
party’s or staff’s position on each issue and identify the witnesses who will
address each such issue. The commission
or presiding officer may also require the parties and staff to address in their
proposed pre-hearing orders any matters designated in the order convening the
conference, such as:
(1) all factual stipulations to which the parties and staff have
agreed or which the party or staff submitting the statement proposes for
consideration by the parties and staff;
(2) all procedural questions or problems the party or staff
desires to raise at the pre-hearing conference and the resolution proposed;
(3) any proposal the party or staff wishes to make for the
scheduling of testimony at public hearing; or
(4) the amount of time the party or staff desires for the
cross-examination of the different witnesses at public hearing.
D. Pre-hearing orders:
(1) Subsequent
to a pre-hearing conference the commission or presiding officer may issue a
pre-hearing order reciting the action taken and agreements reached at the
conference. The order may also identify
the issues to be tried at public hearing.
(2) The
commission or presiding officer may direct one or more of the parties or staff
to prepare the form of pre-hearing order.
If so directed the preparer shall serve it on the remaining parties and
staff at the time they file it.
Objections to the proposed form of order shall be filed within thirteen
(13) days of service of the form unless the commission or presiding officer
directs otherwise.
(3) The
pre-hearing order shall control the subsequent course of the proceeding and may
by its terms limit the issues to be heard to those designated therein, provided
that the commission or presiding officer may enlarge or modify the issues or
otherwise amend the pre-hearing order when the public interest or justice so
requires.
E. Recessing public hearing for conference: In any proceeding, the commission or
presiding officer may in
their discretion call the parties and staff together for a conference prior to
the taking of testimony or may recess the public hearing for such a
conference. The results of the
conference shall be stated on the record.
[1.2.2.26
NMAC - Rp, 17 NMAC 1.2.29, 9/1/2008]
1.2.2.27 INTERIM RELIEF: Requests
for interim relief may be included in a complaint, petition, application, or
other pleading filed by any party. The
title of the pleading must clearly indicate that such relief is requested.
A. Contents:
Except as provided in Sections 65-2A-11 and 70-3-16 NMSA 1978, in addition
to the usual contents of a pleading, the pleading must allege such
extraordinary facts of immediate and irreparable injury as would justify the
commission’s exercise of discretion by granting interim relief prior to a final
decision.
B. Affidavits or testimony and
exhibits: Any pleading requesting interim
relief shall be accompanied by affidavit or testimony in support of the
request. Any relevant exhibits
in the possession of the party making the request should be appended to the
affidavit or affidavits or testimony.
C. Notice: Copies of the pleading in which interim
relief is requested and the testimony, affidavits, and exhibits filed in
support thereof shall be served upon staff and upon all parties.
D. Public Hearing: Except as provided in Section 70-3-16 NMSA
1978, requests for interim relief other than interim rate relief may be acted
upon with or without public hearing.
E. Bond: Interim relief may be granted subject to
refund and conditioned upon a bond or other adequate protection.
[1.2.2.27
NMAC - Rp, 17 NMAC 1.2.30, 9/1/2008]
1.2.2.28 SUBPOENAS:
A. Subpoena
for witnesses and documents:
(1) Any party or staff requiring the attendance
of a witness from any place in the state to any designated place for the
purpose of taking testimony of such witness at a deposition or public hearing
in a proceeding before the commission shall make written application to the
commission or presiding officer requesting that a subpoena be issued to compel
attendance of such witness.
(2) Likewise a written application requesting the issuance of a subpoena duces tecum to
compel production of specific books, papers, accounts, or other documents must
also be made to the commission or presiding officer if production at deposition
or public hearing is desired.
(3) Such written application must set forth reasons supporting the
issuance of the subpoena for the production of specific books, papers, and
other documents as the case may be.
(4) All applications for the issuance of subpoenas shall be accompanied by
the proposed subpoena, a form for which is available from the commission upon
request.
B. Who may issue: Subpoenas shall be signed and issued by the
presiding officer or by any commissioner, unless the issuance would be an abuse
of process. A copy of the signed and
issued subpoena shall be filed.
C. Service; fees:
(1) Subpoenas
may be served by any person authorized to serve process under the New Mexico
rules of civil procedure for the district courts. The return of service shall be filed promptly
after service. The return shall be by
certificate if service is made by a county sheriff or the county sheriff’s
deputy. Otherwise the return shall be by
affidavit. The form for the return of
service is included with the form of subpoena, available from the commission
upon request.
(2) The witness being subpoenaed shall
receive fees in the amount and in the manner as provided in civil cases in the
district courts of this state.
(3) Whenever
a subpoena is issued at the request of a party the cost of service thereof and
the fee of the witness shall be borne by the requesting party.
D. Enforcement: The commission, any commissioner, staff, or
any party may seek enforcement of the subpoena pursuant to Sections 62-10-9,
63-7-1.1, 63-9-19, 63-9A-20, 63-9B-14, 63-9H-14, 65-3A-34, and 70-3-19 NMSA
1978, or other applicable law.
E. Order for protection of staff,
parties, or witnesses: The
commission or presiding officer may issue such orders to protect staff, parties, or witnesses from
annoyances, embarrassment, or oppression as may be just and proper under the
circumstances.
[1.2.2.28
NMAC - Rp, 17 NMAC 1.2.31, 9/1/2008]
1.2.2.29 PRESIDING OFFICER:
A. General: The functions of a presiding
officer, as the term is used in this rule, may be performed by a hearing
examiner, who may be a commissioner appointed by the commission to hear the
case to the same extent as would a commission employee appointed as “hearing
examiner,” unless otherwise provided by statute or commission rule or
order. Nothing contained in this rule
shall be deemed a waiver of the commission’s power of superintending control
over the activities or decisions of the hearing examiner.
B. Designation of hearing
examiner:
(1) In
all proceedings, the commission may designate a hearing examiner, including a
commissioner, to preside over the proceeding.
The commission shall designate what cases and to what extent the hearing
examiner shall preside over such cases, and such designation may be made by
memorandum from the commission or as otherwise directed by the commission.
(2) If,
after public hearing, the designated hearing examiner becomes unavailable to
the commission, the commission will designate another qualified hearing
examiner to report and recommend the decision or will otherwise proceed with
the case as it may deem appropriate, giving notice to staff and the parties.
C. Powers of hearing
examiners: Hearing
examiners shall have the duty to conduct full, fair, and impartial
public hearings and to take appropriate action to avoid unnecessary delay in
the disposition of proceedings and to maintain order. They shall possess all powers necessary to
that end, including the following:
(1) to administer oaths and affirmations;
(2) to order subpoenas issued and to provide for other methods
of discovery;
(3) to issue
orders to show cause regarding proceedings before the hearing examiner;
(4) to
receive evidence and rule upon all objections and motions which do not involve
final dispositions of proceedings, and to recommend to the commission rulings
on objections and motions which do involve final dispositions of proceedings;
(5) within their
discretion, or upon direction of the commission, to certify any question to the
commission for its consideration and disposition, although the commission has
the discretion to refuse to review a question so certified;
(6) to
order parties and staff to hold appropriate conferences before or during the
public hearing or investigation, provided that the presiding officer shall not
take part in any settlement conference unless their participation is agreed to
by all parties and by staff;
(7) to regulate the course of public hearings or investigations,
including the scheduling, recessing,
reconvening, and adjournment thereof, unless otherwise provided by the
commission;
(8) to apply the procedures of this rule subject to waivers
granted pursuant to this rule;
(9) to take such
other action as may be necessary and appropriate to the discharge of their
duties, consistent with the statutory authority or other authorities under
which the commission functions and with the rules and policies of the
commission.
D. Duties of hearing examiner: Hearing examiners shall have the following
duties:
(1) to
follow and apply the policies of the commission as enunciated in previous
orders and rules, and to comply with the Public Utility Act, the Telephone and
Telegraph Company Certification Act, the New Mexico Telecommunications Act, the
Rural Telecommunications Act, the Public Regulation Commission Act, the Motor
Carrier Act, the Pipeline Safety Act, Chapter 62, Article 14 NMSA 1978, the
Motor Vehicle Act, the Ambulance Standards Act, the Cooperative Association
Act, the Corporate Reports Act, the Professional Corporation Act, the Economic
Development Corporation Act, the Nonprofit Corporation Act, the Business
Corporation Act, the Limited Liability Company Act, the Foreign Business Trust
Registration Act, Chapter 59A, Article 52, the Fireworks Licensing and Safety
Act, the Conflict of Interest Act, and other applicable law;
(2) to
disqualify themselves at any point where their impartiality might be or is
reasonably questioned;
(3) in all rate cases, to render a recommended decision as soon
as practicable before the termination of the suspension period;
(4) to submit final recommended decisions
subject to commission review and treatment as provided in this rule; the
hearing examiner shall file the final recommended decision and provide copies
to all parties, staff, each commissioner, and the advisory staff;
(5) except
as to ex parte matters authorized by
law and commission rules, no hearing examiner shall, in any proceeding to which
they have been assigned, consult with any party on any substantive issue unless
notice is given and an opportunity afforded all parties and staff to
participate and respond.
[1.2.2.29
NMAC - Rp, 17 NMAC 1.2.32, 9/1/2008]
1.2.2.30 PROCEDURAL
AUTHORITY OF A SINGLE COMMISSIONER:
A. The
chairman of the commission or any other commissioner shall preside at public
hearings conducted by more than one commissioner.
B. The chairman of the commission or any other commissioner
may issue any procedural orders prior to, during, or after a public hearing,
including but not limited to orders or notices:
(1) designating
a hearing examiner to preside in a proceeding;
(2) scheduling
public hearings;
(3) clarifying the issues to be considered during a proceeding;
(4) in
the absence of a quorum of commissioners and when prompt action is necessary to
avoid the effectiveness of rate increases for customers of utilities or
telecommunications providers by operation of law, suspending the operation of a
rate increase request, provided that such procedural order is consistent with
law and does not involve the final determination of the proceeding; and
(5) issuing
orders temporarily suspending operating authorities pursuant to 18.3.2.30 NMAC.
C. The delegation to one commissioner of procedural
authority shall not narrow the authority of the hearing examiner pursuant to
this rule or to other rules or orders of the commission, unless the order by
the hearing examiner is inconsistent with and superseded by the procedural
order of the one commissioner.
D. A party may appeal, pursuant to 1.2.2.31 NMAC, a
procedural order of a single commissioner.
[1.2.2.30
NMAC - N, 9/1/2008]
1.2.2.31 INTERLOCUTORY APPEALS FROM
RULINGS OF THE PRESIDING OFFICER:
A. General:
(1) Rulings
of the presiding officer during the course of a proceeding may only be appealed
as provided in this rule.
(2) The
commission does not favor interlocutory appeals from the rulings of a presiding
officer and expects that appeals will be taken only in extraordinary
circumstances. The movant in any such
appeal bears the burden of establishing grounds for review and reversal of a
ruling of the presiding officer made in the course of the proceeding.
B. Motion to presiding officer to permit appeal:
(1) Any party or the staff may, during a
proceeding, move that the presiding officer permit appeal to the commission
from a ruling of the presiding officer.
The motion must demonstrate that:
(a) the
ruling involves a controlling question of law or policy as to which there is
substantial ground for difference of opinion and that an immediate appeal to
the commission from the ruling may materially advance the ultimate disposition
of the proceeding; or
(b) circumstances exist which make prompt commission review of
the contested ruling necessary to prevent irreparable harm to any person.
(2) The
motion must be filed in writing within three (3) days of the date of an oral
ruling or service of a written ruling.
(3) Upon receipt of a motion to permit
appeal, the presiding officer shall determine according to the standards of
Paragraph (1) of Subsection B of 1.2.2.31 NMAC whether to permit appeal of the
ruling to the commission. The presiding
officer need not consider any response to the motion.
(4) If the presiding officer permits
appeal the presiding officer shall transmit to the commission copies of the
ruling being appealed, if written, or a summary of the ruling being appealed,
if oral, and any findings of fact, conclusions of law, or opinion relating
thereto together with the moving party’s motion under Paragraph (1) of
Subsection B of 1.2.2.31 NMAC and any response permitted to the motion. The presiding officer may also, but is not
required to, transmit to the commission a memorandum setting forth the relevant
issues and an explanation of the rulings on the issues.
(5) If
the presiding officer does not issue an order under Paragraph (3) of Subsection
B of 1.2.2.31 NMAC within fifteen (15) days after the motion is filed, the
motion is deemed denied. The movant may
appeal denial to the commission within three (3) days of:
(a) the date the motion is deemed denied;
(b) the date the motion is denied by oral ruling; or
(c) the date a written order denying the motion is served,
appeal the denial to the commission.
C. Commission action:
(1) Unless
the commission acts upon an appeal permitted by a presiding officer under
Paragraph (4) of Subsection B of 1.2.2.31 NMAC or upon an appeal taken from the
presiding officer’s denial of a motion to permit appeal under Paragraph (5) of
Subsection B of 1.2.2.31 NMAC within fifteen (15) days after the date the
appeal is permitted under Paragraph (4) of Subsection B of 1.2.2.31 NMAC or an
appeal is taken under Paragraph (5) of Subsection B of 1.2.2.31 NMAC, the
ruling of the presiding officer will be reviewed in the ordinary course of the
proceeding as if an appeal had not been made.
(2) In the event the commission decides
in its discretion to hear an appeal, it may also in its discretion:
(a) review the
motions, briefs, and other documents which were before the presiding officer
when the presiding officer issued the order being appealed;
(b) require that the presiding officer transmit to the commission
a memorandum explaining the ruling being appealed;
(c) require
submission of briefs by staff and the parties; or
(d) direct such
other submissions as will assist in its consideration of the issues.
D. Appeal not to suspend proceeding: Any decision by a presiding officer to permit
appeal or by the
commission to hear an appeal under the provisions of this rule governing
interlocutory appeals from rulings of the presiding officer will not suspend
the proceeding unless otherwise ordered by the presiding officer or the
commission.
[1.2.2.31
NMAC - Rp, 17 NMAC 1.2.33, 9/1/2008]
1.2.2.32 PUBLIC HEARINGS:
A. Rights of staff, parties, and commenters:
(1) At any public hearing all parties and staff shall be
entitled to enter an
appearance, introduce evidence, examine and cross-examine witnesses, make
arguments, and generally participate in the conduct of the proceeding.
(2) Commenters shall be entitled to make an oral or written statement for
the record but such statement shall not be considered by the commission as
evidence. Commenters are not parties and
shall not have the right to introduce evidence or examine or cross-examine
witnesses, to receive copies of pleadings and documents, to appeal from any
decisions or orders, or to otherwise participate in the proceeding other than
by making their comments.
B. Duty to participate: Except as otherwise provided in this rule or
directed by the commission or presiding
officer, parties or staff who fail to attend meetings, conferences, or public hearings
scheduled or who otherwise fail to participate in the proceeding are deemed to
have notice of, and waive their right to object to, all matters addressed,
resolved, or determined in their absence.
C. Continuance:
(1) Staff
or any party who desires a continuance shall move for a continuance immediately
upon receipt of notice of public hearing or as soon thereafter as facts
requiring such continuance come to their knowledge, stating in detail the
reasons why a continuance is necessary and describing when the need for a
continuance came to their knowledge.
(2) The commission or presiding officer, in passing upon a motion for a
continuance, shall consider whether such motion was promptly made.
(3) The commission or presiding officer may grant such a continuance and
may at any time order a continuance upon their own motion.
D. Appearances:
(1) General: Staff, parties, and commenters
shall enter their appearances at the beginning of the public hearing by giving
their names and addresses in writing to the reporter who will include the same
in the record of public hearing. The
presiding officer conducting the public hearing may in addition require
appearances to be stated orally so that the identity and interest of all
parties, staff, and others present will be known to those at the public
hearing.
(2) Termination of party status:
Notwithstanding any other provision of this rule pertaining to party
status, the party status of any person failing to enter a written
appearance, and if requested by the presiding officer, an oral appearance
terminates at the close of the period for taking such appearances at the public
hearing unless otherwise ordered by the commission or presiding officer. After entering an appearance neither staff
nor a party shall be unrepresented at the public hearing unless excused by the
presiding officer. The commission or
presiding officer may impose appropriate sanctions for violation of this
provision up to and including termination of party status.
E. Service of notice: Following the entry of appearances at the
public hearing, all notices, pleadings, and orders thereafter served shall be served upon such attorneys or
parties of record as defined in this rule entering an appearance, and such
service shall be considered valid service for all purposes upon the party
represented. Persons who have not
appeared as parties may request to the commission to be mailed a copy of any
final order at their own expense in any proceeding contemplated by this rule at
which these persons have appeared as witnesses or commenters or have given
written notification to the commission of their interest in the proceedings.
F. Failure to appear:
(1) At
the time and place set for public hearing, if an applicant, petitioner, or
complainant fails to appear without having obtained a continuance in the manner
specified in Subsection C of 1.2.2.32 NMAC, the commission or presiding officer
may dismiss or recommend dismissal of the petition, application, or complaint
with or without prejudice or may upon good cause shown recess such public
hearing for a further period to be set by the commission or presiding officer
to enable said applicant, petitioner, or complainant to attend.
(2) At the time and place set for public
hearing, if a respondent fails to appear without having obtained a continuance
in the manner specified Subsection C of 1.2.2.32 NMAC, the commission or
presiding officer may proceed with the public hearing as scheduled and enter
such orders disposing of the case as may be proper according to the evidence
adduced, and the respondent failing to appear will be presumed to have waived
the right to refute or rebut such evidence and otherwise present further
evidence. The commission or presiding
officer may upon good cause shown recess such public hearing for a further
period to be set by the commission or presiding officer to enable said
respondent to attend.
G. Conduct at public hearings:
(1) All
parties, staff, counsel, commenters, and spectators shall conduct themselves in
a respectful manner. Demonstrations of
any kind at public hearings shall not be permitted. Any disregard by parties, staff, attorneys,
or other persons of the rulings of the commission or presiding officer on
matters of order and procedure may be noted on the record and treated as
provided in Sections 59A-52-24, 62-10-9, 62-12-4, 63-7-23, 63-9-19, 63-9A-20,
63-9B-14, 65-2A-32, 65-2A-34, 63-9H-14 or 70-3-19 NMSA 1978, or as provided in
the New Mexico rules of civil procedure for the district courts.
(2) The commission or presiding officer
may at their discretion adjourn, recess, or continue any public hearing in case
the conduct of witnesses, spectators, or other persons interferes with the
proper and orderly holding of such public hearing and for any other cause or circumstance
which may prevent the proper conduct of such public hearing.
(3) The commission or presiding officer
may at their discretion limit the time for providing direct testimony or
cross-examination at any public hearing if necessary to promote the proper and
orderly management of such public hearing.
H. Consolidated public hearings: The commission, upon its own motion or upon
motion of staff or a party, may
order two or more proceedings involving a similar question of law or fact to be
consolidated for public hearing where rights of staff, the parties, or the
public interest will not be prejudiced by such procedure and where such
consolidation will not confuse the issues.
I. Joint public hearings: To the extent authorized by law, the
commission may participate jointly in any hearing with any federal, state, or
other regulatory agency. In joint formal
proceedings the participating agencies shall agree upon the rules of procedure
to be followed. Any person entitled to
appear in a representative capacity before either agency involved in the joint
public hearing may appear in a joint public hearing.
J. Telephonic public hearings. Public
hearings may be conducted by telephone or video conference at the discretion of
the commission or presiding officer.
[1.2.2.32
NMAC - Rp, 17 NMAC 1.2.34, 9/1/2008]
1.2.2.33 ORDER OF PRESENTATION AND
RECEIPT OF EVIDENCE: Evidence will ordinarily be received in the
order prescribed in this section unless otherwise directed by the commission or
presiding officer. In hearing several
proceedings upon a consolidated record, the presiding officer shall designate
the order of presentation.
A. Investigation on motion of the
commission:
(1) respondent;
(2) intervenors;
(3) staff; and
(4) rebuttal by respondent.
B. Applications and petitions:
(1) applicant or
petitioner;
(2) intervenors;
(3) staff; and
(4) rebuttal by
applicant and petitioner.
C. Formal complaints:
(1) complainant;
(2) respondent;
(3) intervenors;
(4) staff; and
(5) rebuttal by
complainant.
D. Order to show cause:
(1) staff;
(2) intervenors;
(3) respondent;
and
(4) rebuttal by
staff;
E. Order to cease and desist.
(1) staff,
(2) respondent,
and
(3) rebuttal by staff.
F. In other public hearings, at the discretion of
the presiding officer.
[1.2.2.33
NMAC - Rp, 17 NMAC 1.2.35, 9/1/2008]
1.2.2.34 TRANSCRIPTS:
A. Record of proceedings and testimony:
(1) A full and complete record of all proceedings before the
commission or presiding officer in any formal public hearing and all testimony
shall be made by either audio recording by a commission employee or shall be
taken down and transcribed by a certified court reporter at the discretion of
the presiding officer.
(2) If the commission or presiding officer intends to have a
transcript made by audio recording they will state this in the notice or order
of hearing or proceeding.
(3) Upon receiving notice
that the commission or presiding officer intends to have a transcript made by
audio recording, any party can file a request to have the hearing or proceeding
transcribed by a certified court reporter and the commission will arrange a
court reporter. A party requesting a
court reporter for a hearing or proceeding that would
otherwise be made by audio recording shall be responsible for the full cost of
the court reporter’s fees. A request by
any party to have a hearing or proceeding transcribed by a certified court
reporter shall be filed as soon as practicable before the hearing or
proceeding. If a request by any party to
have a hearing or proceeding transcribed by a certified court reporter is not
made at least seven days prior to the hearing the commission may be unable to
accommodate the request.
B. Copies of transcripts: The commission shall file in e-docket a pdf
version of any transcript it receives on the date the transcript is created or
the date it is filed with the commission or the presiding officer.
C. Corrections: Suggested corrections to the transcript or
record must be offered within 13 days after the transcript is filed in the
proceeding except for good cause shown, and such suggestion shall be in writing
and served upon each party, staff, the official reporter, and the presiding
officer. Failure to timely file
suggested corrections without good cause shown constitutes a waiver of
objections to the transcript.
(1) Objections to the suggested corrections shall
be made in writing within 13 days from the filing of the suggestions. The commission or presiding officer shall,
with or without public hearing, determine what changes, if any, shall be made
in the record.
(2) If no objection is made to the suggested
corrections, the presiding officer may in their discretion direct that the
corrections be made and the manner of making them.
D. Citation form: When referring to the record in briefs and
other documents, staff and the parties shall cite to the transcript using the reporter’s pagination, e.g.,
Tr. (transcript page number). If a
transcript is made by audio recording staff
and the parties shall cite to the transcript using time markers.
[1.2.2.34
NMAC - Rp, 17 NMAC 1.2.36, 9/1/2008; A, 4/6/2021]
1.2.2.35 RULES OF EVIDENCE:
A. General:
(1) Subject to the other provisions of this rule,
all relevant evidence is admissible which, in the opinion of the presiding
officer, is the best evidence most reasonably obtainable, having due regard to
its necessity, competence, availability, and trustworthiness.
(2) In passing upon the admissibility of evidence
the presiding officer shall give consideration to, but shall not be bound by,
the New Mexico rules of evidence which govern proceedings in the courts of this
state. The presiding officer shall also
give consideration to the legal requirement that any final decision on the merits
be supported by competent evidence.
(3) Unless otherwise directed by the
commission or the presiding officer, documents that require sworn verification by notarization under
commission rules may be supported by unsworn affirmation in compliance with
rule of civil procedure 1-011(B) NMRA.
B. Testimony under oath: All testimony to be considered by the
commission or presiding officer in formal public hearings except matters
officially noticed or entered by stipulation shall be made under oath.
C. Stipulation as to facts:
(1) The parties and staff in any proceeding
before the commission or presiding officer may, by stipulation in writing filed
or entered in the record, agree upon the facts or any portion thereof involved
in the controversy, which stipulation shall be binding upon the parties and
staff entering into the stipulation and may be regarded and used by the
commission or presiding officer as evidence at the public hearing. It is desirable that the facts be thus agreed
upon wherever practical. The commission
or presiding officer may, however, require proof or evidence of the facts
stipulated to, notwithstanding the stipulation of the parties and staff.
(2) In the event the parties and staff stipulate
to certain facts as part of a proposed settlement of the case, and the
settlement is rejected, the stipulations of fact entered for purposes of the
settlement will not be binding upon the parties or used as evidence in any
subsequent public hearing on the merits unless all signatories thereto agree to
refile the stipulations of fact.
D. Administrative notice:
(1) The
commission or presiding officer may take administrative notice of the following
matters if otherwise admissible under Subsection A of 1.2.2.35 NMAC:
(a) rules, regulations, administrative rulings, published
reports, licenses, and orders of the commission and other governmental
agencies;
(b) contents of
certificates, permits, and licenses issued by the commission;
(c) tariffs,
classifications, schedules, and periodic reports regularly established by or
filed as required or authorized by law or order of the commission;
(d) decisions, records, and transcripts in other commission
proceedings;
(e) state and
federal statutes;
(f) decisions of state and federal courts;
(g) generally
recognized technical and scientific facts; and
(h) matters of
which the courts of this state may take judicial notice.
(2) In
addition the commission or presiding officer may take administrative notice of
the results of their own inspection of any physical location or condition
involved in the proceeding, and may take administrative notice on the record of
the results of the commission’s previous experience in similar situations and
general information concerning a subject within the commission’s expert
knowledge.
(3) Parties
and staff requesting that administrative notice be taken of documents or
portions of documents or of the contents thereof must submit those documents or
portions of documents to the commission or presiding officer in the form of
exhibits except as may otherwise be provided in this rule.
(4) The
commission or presiding officer may take administrative notice whether
requested or not subject to appropriate objection under Subsection L of
1.2.2.35 NMAC. If staff or a party
requests that administrative notice be taken, the commission or presiding
officer must be provided the necessary information.
(5) Matters noticed are admitted into
evidence to the same extent as other relevant evidence.
E. Resolutions: Resolutions, properly authenticated, of the
governing bodies of cities, towns, counties and other municipal corporations,
and of chambers of commerce, commercial or mercantile boards of trade,
agricultural or manufacturing societies, and other civic organizations will be
received in evidence if relevant. Such
resolution shall be received subject to rebuttal by adversely affected staff or
parties as to the authenticity of the resolution. Recitals of fact contained in resolutions
shall not be deemed proof of those facts.
F. Official records: An official rule, report, order, record, or
other document prepared and issued by any governmental authority may be introduced into evidence. In cases where such official records,
otherwise admissible, are contained in official publications or publications by
nationally recognized reporting services and are in general circulation and
readily accessible to all parties and staff, they may be introduced by
reference unless the presiding officer directs otherwise, provided that proper
and definite reference to the record in question is made by the party or staff
offering the same.
G. Commission files: Papers and documents on file relevant to the
proceeding may be introduced into evidence by reference to number or date or by
any other method of identification satisfactory to the presiding officer unless
the presiding officer directs that the paper or document or a summary thereof
be presented for the record in the form of an exhibit. If only a portion of any such paper or
document is offered in evidence, the part so offered shall be presented for the
record in the form of an exhibit.
H. Records in other proceedings: In case any portion of the record in any
other proceeding before the commission or presiding officer is admissible for
any purpose and is offered in evidence, a true copy of such portion may be
presented for the record in the form of an exhibit.
I. Prepared testimony:
(1) Prepared
written testimony shall be received in evidence as exhibits with the same force
and effect as though it were stated orally by the witness. All witnesses must be present at the public
hearing and shall adopt, under oath, their prepared written testimony, subject
to cross-examination and motions to strike unless the witness’s presence at
public hearing is waived by the commissioner or presiding officer upon notice
to and without objection from staff and the parties.
(2) Unless
the commission or presiding officer directs otherwise, testimony in written
form shall be prepared in accordance with the following guidelines:
(a) the cover page shall contain the case caption and number and
the name of the witness;
(b) all pages
are to be typed or machine printed and double-spaced;
(c) the top,
bottom, and left-hand margins shall be at least one and one-half inches;
(d) the name of
the witness and the case number, if then known, shall be typed at the top
center of each page two inches from the edge;
(e) the page number for each page shall be typed at the bottom
center one inch from the edge;
(f) a square of
approximately one and one-half inches in the upper right-hand corner of each
page shall be left clear for commission use;
(g) testimony shall contain line numbers on the left-hand side
of the page; and
(h) testimony shall be filed in question and answer format and
be supported by affidavit.
(3) Unless
the commission or presiding officer directs otherwise no documents other than
pre-filed testimony shall be admitted into evidence on direct examination of a
witness.
J. Exhibits:
(1) Use of data in exhibits:
(a) When supporting exhibits consist of tables of
data or graphs, all formulae, equations, or other methodology used to derive
the data shall be included as part of the supporting exhibit.
(b) If data used in supporting exhibits are
derived from or supported by complex computerized analyses, working copies of
the computer models may be included on a diskette compatible with the
commission’s current computer capabilities, in lieu of printed material.
(2) Size
of exhibits: Except by special permission of the presiding
officer, no specially prepared exhibits offered as evidence shall be of greater
size, when folded, than eight and one-half (8-1/2) inches by eleven (11)
inches.
(3) Marking
of exhibits: All exhibits shall be marked numerically in
the order of introduction by the moving party or staff. To the extent practicable all exhibits,
including those to be introduced on cross-examination,
shall be marked before the start of public hearings on the day the witness will
be examined thereon.
(4) Designation of part of document as
evidence:
(a) When relevant and material matter offered in
evidence by any party or staff is embraced in a book, paper, or document
containing other matter not material or relevant, the party or staff offering
the same must plainly designate the matter so offered.
(b) If other matter is in such volume as would
unnecessarily encumber the record, such book, paper, or document will not be
received in evidence but may be marked for identification, and, if properly
authenticated, the relevant or material matter may be read into the record, or,
if the presiding officer so directs, a true copy of such matter in proper form
shall be received as an exhibit and like copies delivered by the party or staff
offering the same to all other parties and staff appearing at the public
hearing.
(c) All parties and staff shall be afforded an
opportunity to examine the book, paper, or documents and to offer in evidence
in like manner other portions thereof if found to be material and relevant.
(5) Abstracts of documents: When
documents are numerous and it is desired to offer in evidence more than a
limited number of such documents as typical of the others, an abstract shall be
prepared and offered as an exhibit giving other parties to and staff in the
proceeding reasonable opportunity to examine the abstract and the documents.
(6) Summaries of documents: Where
a document being offered into evidence is voluminous, the presiding officer may
direct that a summary be prepared and offered as an exhibit giving other
parties to and staff in the proceeding reasonable opportunity to examine the
summary and the document. The presiding
officer may require that the summary be offered as an exhibit in addition to
the summarized document or in lieu thereof.
(7) Copies
of exhibits:
(a) When exhibits not attached to pleadings as
required by this rule are offered in evidence, the original shall be furnished
to the reporter.
(b) The party or staff offering exhibits shall
also furnish a copy to each commissioner or hearing examiner sitting, advisory
staff if in attendance, each party, and the staff unless such copies have
previously been furnished or the presiding officer directs otherwise.
(c) The proponent shall, to
the extent practicable, furnish the required copies to the reporter, the
commissioners or hearing examiner, advisory staff, parties, and staff before
the start of the public hearings on the day said proponent intends to offer the
exhibits into evidence.
K. Additional evidence: At any stage of the proceeding the commission
or presiding officer may require
the production of further evidence upon any issue. Such evidence may, at the discretion of the
commission or presiding officer, be in writing or presented orally. All parties and the staff will be given an
opportunity to reply to such evidence submitted and cross-examine the witness
under oath.
L. Objections:
(1) Any
evidence offered in whatever form shall be subject to appropriate and timely
objection. When objection is made to the
admissibility of evidence, such evidence may be received subject to later
ruling by the commission or presiding officer.
(2) The commission or presiding officer their discretion either with or
without objection may exclude inadmissible, incompetent, cumulative, or
irrelevant evidence or order the presentation of such evidence discontinued.
(3) Parties
or staff objecting to the introduction of evidence shall briefly state the
grounds of objection at the time such evidence is offered.
(4) The evidence to be admitted at public hearing shall be material and
relevant to the issue. Formal exceptions
to rulings are not necessary and need not be taken.
M. Offers of proof: An offer of proof for the record may be made
and shall consist of a statement of the substance of the evidence to which
objection has been sustained. The
commission or presiding officer may require offers of proof to be submitted in
writing in question and answer form.
N. Rebuttal evidence:
(1) Rebuttal
evidence is evidence which tends to explain, counteract, repel, or disprove
evidence submitted by another party or by staff. Evidence which is merely cumulative or could
have been more properly offered in the case in chief is not proper rebuttal
evidence.
(2) Staff
or a party wishing to offer rebuttal testimony shall at the close of their
opponent’s direct case move the commission or presiding officer to allow
introduction of rebuttal testimony. The
movant shall indicate the nature of the evidence sought to be adduced and
demonstrate why it is proper rebuttal testimony.
(3) The
commission or presiding officer may permit or require rebuttal evidence to be
submitted in prepared form in accordance with this rule prior to its introduction.
[1.2.2.35
NMAC - Rp, 17 NMAC 1.2.37, 9/1/2008; A, 4/6/2021]
1.2.2.36 PROPOSED FINDINGS AND
CONCLUSIONS AND BRIEFS:
A. Proposed findings and conclusions:
(1) Notice: The presiding officer may require
all parties of record and the staff to file proposed forms of order, including
proposed findings and conclusions, at the close of testimony in the proceeding. The presiding officer shall immediately fix
the time in which the proposed order shall be filed.
(2) Contents:
(a) The party or staff submitting a proposed
order shall clearly identify themselves on the first page of the order.
(b) Each proposed finding of fact and conclusion
of law shall be clearly and concisely stated and numbered.
(c) Each proposed finding of fact shall show
specifically, by appropriate transcript reference, the evidence which supports
the proposed finding unless otherwise permitted by the presiding officer.
(d) Proposed findings and conclusions should be
kept to the minimum needed and may reflect the party’s or staff’s position but
shall not be used to argue that position.
(3) Failure to file; dismissal: The commission may dismiss with or without
prejudice any proceeding where the staff or the party who initiated such
proceeding fails to comply with this rule.
B. Briefs and oral argument; right to file or argue:
(1) The presiding officer may require the filing
of briefs or the presentation of oral argument or both by staff and the
parties. Requests for filing of briefs
or oral argument shall be made before or at the close of the public hearing and
may be made in writing or orally on the record.
(2) The parties and staff shall be given an
opportunity to make argument, upon request, but the manner of presentation,
whether written, oral, or both shall be at the discretion of the presiding
officer.
(3) Presiding officers may also at their
discretion set page limits for briefs, limit the time allocated to each party
and to staff for oral argument, or conduct an oral argument by telephone
conference call.
(4) Any issues raised in a
contested public hearing that are not argued in a post-hearing brief will not
be considered unless consideration will not prejudice the due process rights of
other parties and the commission or presiding officer in their discretion
decides to consider such issues.
C. Time of filing:
(1) Proposed orders and briefs:
(a) Unless otherwise ordered by the presiding
officer, parties and the staff shall have twenty (20) days after the
date the complete transcript of the public hearing is filed with the commission
to file whatever proposed orders and briefs are required by the presiding
officer.
(b) Response briefs may be filed thirteen (13) days after service of the
opening briefs unless otherwise ordered by the presiding officer.
(c) Replies to response briefs shall not be filed without leave of the
commission or presiding officer. Replies
to response briefs shall be filed within thirteen (13) days of service of the
response, or such other time period as
the commission or presiding officer may prescribe.
(2) Enlargement: A motion for enlargement of time
to file a proposed order or brief must be filed no later than three (3) days
prior to that time as set out in Paragraph (1) of Subsection C of 1.2.2.36 NMAC
except for good cause shown.
D. Filing and service of proposed orders and briefs: All proposed orders and briefs shall be filed
and must be accompanied by a certificate of service. The original and five (5) copies shall be
filed unless otherwise ordered by the commission or presiding officer.
E. Briefs, contents generally:
(1) Briefs shall be concise and shall include
transcript citations for each statement of fact or transcript reference in the
form required by Subsection D of 1.2.2.34 NMAC.
(2) Briefs shall contain a table of contents with
page references and a list of authorities cited.
(3) Argument regarding an issue shall include a
brief statement of the position of each party and of staff regarding that
issue.
F. Reconciliation statements:
(1) Unless the commission or presiding
officer directs otherwise, each brief filed in a rate case shall contain a
reconciliation statement setting forth in dollars the final position of the staff
or party filing the brief. The
reconciliation statement shall be in a simple and concise form and, to the
extent necessary for the type of rate regulation applicable, shall set forth:
(a) the
claimed rate base for the regulated entity showing test year figures per book,
adjustments, and adjusted test year figures (if rate base items are at issue
the statement shall set forth on a separate sheet the contested items and their
dollar effect on rate base);
(b) an
income statement showing operating revenues and expenses with test year figures
per book, adjustments, and adjusted test year figures (if any expense items are
at issue the statement shall set forth on a separate sheet the contested
expense or revenue items in detail and the dollar effect on total company
expenses or revenues of their allowance);
(c) the
capital structure of the company (if there is no actual capital structure, any
proposed imputed capital structure, the ratio of each type of capital to total
capital, and the cost and weighted cost of each shall be shown; this schedule
shall show the dollar effects of the requested return upon revenue
requirements);
(d) a computation of projected state and federal taxes on
adjusted figures based on statutory rates or other applicable rates; and
(e) a computation of the claimed revenue deficiency.
(2) If the information required by
Paragraph (1) of Subsection F of 1.2.2.36 NMAC is clearly set forth in
schedules in evidence, such schedules may be appended to the brief in lieu of a
separate reconciliation statement. If
staff or a party adopts the position of another party or of staff, the party or
staff may state whose position is adopted rather than file a separate
duplicative reconciliation statement.
(3) The
company must provide a proof of revenue statement.
(4) The
parties or staff may, on sheets separate from those needed for the
reconciliation statement required by Paragraph (1) of Subsection F of 1.2.2.36
NMAC, show details of adjustments by account numbers, give short explanations
or reasons for the adjustments, and show where these adjustments require
adjustments elsewhere. The parties and
staff may also give citations to the transcript to show where the requested
adjustment is supported by the record.
[1.2.2.36
NMAC - Rp, 17 NMAC 1.2.38, 9/1/2008]
1.2.2.37 COMMISSION ORDERS, EXCEPTIONS,
AND REHEARINGS:
A. Commission orders:
(1) The commission will issue its order
in writing in every proceeding. The
order shall contain separately stated findings of fact and, in the commission’s
discretion, conclusions of law, or combined findings and conclusions. The commission may in its discretion issue an
oral decision prior to the issuance of its written order. The timeliness of applications for rehearing
and notices of appeal shall be calculated from the date the commission issues
its written order. The date a written
order is issued is the date when the written order, signed under the seal of
the commission, has been filed with the chief clerk or the chief clerk's
designee.
(2) The
commission may adopt a hearing examiner’s recommended decision. If a recommended decision is adopted in its
entirety the commission’s order shall so state.
Where the only changes between the commission order and the hearing
examiner’s decision are those to correct grammatical or typographical errors,
the commission’s order shall so state.
(3) The commission may issue an order
which makes reference to the recommended decision and indicate disagreements
with the hearing examiner and the commission may make further or modified
findings and conclusions based on the record.
B. Issuance of
recommended decisions: A hearing examiner shall issue a recommended
decision. The recommended decision shall
be served on all parties to and the staff in the proceeding and shall contain
separately stated findings of fact and conclusions of law.
C. Exceptions to recommended decisions:
(1) Filing requirements:
(a) Unless otherwise ordered by the commission or
presiding officer exceptions may be filed by staff or by any party
within thirteen (13) days after the recommended decision is issued.
(b) Except
by prior written approval of the commission or presiding officer, exceptions
shall be no longer than forty (40) pages.
A summary of argument identifying with particularity and numbering the
points excepted to of no more than five (5) pages shall be included with the
exceptions and does not count toward the forty (40) page limit.
(c) Unless otherwise ordered by the commission or presiding officer,
responses to exceptions may be filed within eight (8) days after the exceptions
have been filed. Except by prior written
approval of the commission or presiding officer, responses to exceptions shall
be no longer than thirty-five (35) pages.
A summary of argument of no more than three (3) pages shall be included
with a response and does not count toward the thirty-five (35) page limit.
(d) Replies to responses to exceptions shall not be filed without leave of
the commission or presiding officer.
Except by prior written approval of the commission or presiding officer,
replies to responses shall be no
longer than fifteen (15) pages. A
summary of argument of no more than two (2) pages shall be included with a
reply and does not count toward the fifteen (15) page limit. Replies
to responses to exceptions shall be filed within thirteen (13) days of service
of the response, or such other time period as the commission or presiding
officer may prescribe.
(e) Any exception, response, or reply ten (10) pages long or longer shall
include a table of contents listing the points made and authorities relied
on. A table of contents shall not count
toward any page limitation.
(2) Contents: Responses shall not raise
for the first time matters which were not raised in the exceptions of a party
or the staff. Exceptions and any
responses must specifically set forth:
(a) the
precise portions of the proposed decision to which the exception is taken or
response to exception is made;
(b) the reason for the exception or response;
(c) authorities on which the party or staff relies and specific
citations to the record in the form required by Subsection D of 1.2.2.34 NMAC.
(d) In
rate cases, reconciliation statements containing the information listed in
Subsection F of 1.2.2.36 NMAC.
(3) Copies: Exceptions and responses
shall be filed and be accompanied by a certificate of service. The original and five (5) copies shall be
filed unless otherwise ordered by the commission or presiding officer.
D. Oral argument to commission
after recommended decision: Any party or staff may petition the
commission for oral argument after the issuance of a recommended decision. Such request may be included in a brief on
exceptions or a response but must be filed no later than the last day to file
responses. The commission in its
discretion may allow oral argument. If
it allows oral argument, it may in its discretion conduct the argument by
telephone conference call.
E. Reopening
proceedings:
(1) Motion to reopen:
Before the issuance of a commission order or after the issuance of a
recommended decision, staff or a party to a proceeding may file a motion to
reopen the proceeding for the taking of additional evidence.
(2) Allegations: Such
motion shall specify those facts claimed to constitute grounds in justification
thereof, including material changes of fact or law alleged to have occurred
since the conclusion of the public hearing, and shall contain a brief statement
of proposed additional evidence and an explanation as to why such evidence was
not previously produced.
(3) Responses:
Within thirteen (13) days following the service of any motion to reopen
staff or any other party may file responses thereto.
(4) Commission may reopen: The
commission on its own motion may at any time reopen any proceeding when it has
reason to believe that conditions of fact or law have so changed as to
require, or that the public interest requires, the reopening of such
proceeding.
F. Rehearing:
(1) Motion
for rehearing:
(a) Except as otherwise provided in Sections 62-10-16 and 62-11-1 NMSA
1978, after an order has been issued by the commission in a proceeding staff or
any party to the proceeding may within ten (10) days after the issuance of the
order move for rehearing of the order with respect to any matter determined in
the proceeding.
(b) The motion shall specify the matters upon which the movant requests
rehearing and the ground or grounds on which the movant considers the order to
be unlawful, unjust, or unreasonable with regard to each such matter.
(2) Responses: Any party or staff may file a
response in writing within five (5) days, or within thirteen (13) days if
Sections 62-10-16 and 62-11-1 NMSA 1978 apply, which opposes or supports the
motion for rehearing. Replies to
responses shall not be permitted without leave of the commission or presiding
officer.
(3) New
evidence: A motion for rehearing may seek modification
of the order without introduction of additional evidence. If the movant or any party or staff who opposes
or supports the motion seeks to introduce additional evidence on any matter,
the new evidence must be specified and must be supported by affidavit and a
statement of the reasons why the new evidence was not previously introduced. Any new evidence furnished in support of the
motion or response shall be considered by the commission only for purposes of
the commission’s decision on the motion and shall not be considered as evidence
pertaining to the order that the commission previously had issued.
(4) Effect of filing motion: The
filing of a motion for rehearing shall not excuse staff or a party from
complying with or obeying any order or any requirement of an order of the
commission, nor shall it operate in any manner to stay or postpone the
enforcement thereof except as the commission may by order direct as provided by
law.
(5) Oral
argument: If the commission in its discretion grants
oral argument on a motion for rehearing of the commission’s order, said order
shall not thereby be vacated.
(6) Disposition of motion for rehearing:
(a) Except as otherwise provided in
Section 62-10-16 NMSA 1978, the commission may grant or deny the motion at any
time within twenty (20) days after the final order has been issued and prior to
the expiration of the period prescribed for filing of responses. If the commission does not act on a motion
for rehearing within twenty (20) days after the final order has been issued,
the motion shall be deemed denied.
(b) The
commission may limit the rehearing to some or all of the matters raised in the motion or may expand the rehearing to include
other matters determined in the proceeding.
(c) On
rehearing the commission in its discretion may receive some or all of the new
evidence specified in the motions or responses subject to cross-examination,
may expand the rehearing to include additional evidence, or may restrict the
rehearing to modification of its order without introduction of new evidence.
(d) If the rehearing is limited to
modification of the order without introduction of new evidence, all parties and
staff will have an opportunity to oppose or support the proposed modification,
but the rehearing will be decided without oral argument or public hearing
unless the commission directs otherwise.
(e) If the commission grants the motion
for rehearing in whole or in part, the order being reheard shall be deemed
vacated and no order or decision at that time shall exist in the proceeding.
(7) New
order: After any rehearing the
commission shall enter a new order which may incorporate by reference any
portion of the previously issued order which the commission had vacated.
G. Errata notice:
(1) The commission, the commission chairman, or,
in the absence of the chairman any other commissioner, may correct
typographical errors, omissions, or other non-substantial errors in commission
orders through the issuance of errata notices.
A presiding officer may also correct typographical errors, omissions, or
other non-substantial errors in their orders through the issuance of errata
notices. The issuance of an errata
notice shall not affect the finality of the decision or order corrected.
(2) A party to a formal proceeding or staff may
correct typographical errors, omissions, or other non-substantial errors in its
pleadings or documents through the filing of an errata notice, which shall
conform to the rule governing pleadings.
H. Notice of appeal: Notices of appeal of commission decisions
shall be filed pursuant to applicable statutes, including but not limited to
Section 53-13-2 NMSA 1978, Section 59A-52-22 NMSA 1978, Section 62-11-1 NMSA
1978, Section 63-9-16 NMSA 1978, Section 63-9A-14 NMSA 1978, Section 63-9B- 9
NMSA 1978, Section 63-9H-12 NMSA 1978, Section 70-3-15 NMSA 1978, Section
65-2A-35 NMSA 1978, and Section 63-7-1.1 NMSA 1978.
I. Docketing of submissions in compliance with and
motions for variances from final orders:
(1) Submissions in compliance with and
motions for variances from commission final orders shall be filed under the
same case number as that of the final order.
A certificate of filing and service stating that the compliance
submission has been filed shall be filed and served on staff and all other
parties to that case. Motions for variances
shall be served on staff and all parties to the case.
(2) Requests
for extensions of time to meet compliance provisions contained in final orders
of the commission must be in writing and must explain why an extension of time
is being requested. Requests shall be
filed under the same case number as that of the final order. The chief of staff has the authority to grant
such requests.
[1.2.2.37
NMAC - Rp, 17 NMAC 1.2.39, 9/1/2008]
1.2.2.38 DISQUALIFICATION:
A. Disqualification of hearing examiner:
(1) A
hearing examiner, other than a commissioner, designated by the commission to
preside in a proceeding, may, upon his or her own motion under Paragraph (2) of
Subsection E of 1.2.2.29 NMAC or upon written request and approval of the
commission, disqualify himself or herself.
(2) Any
party or staff may file a motion to disqualify and remove a hearing examiner
other than a commissioner. Such motion
shall be supported by an affidavit setting forth the alleged grounds for
disqualification. A copy of the motion
and affidavit shall be served by the movant on the hearing examiner whose
removal is sought and the hearing examiner shall respond within ten (10) days
from such service. If the hearing
examiner does not disqualify himself or herself or
respond to the motion within ten (10) days, then the commission shall promptly determine
the validity of the grounds alleged and take appropriate action.
(3) A
hearing examiner, other than a commissioner, may be disqualified for violation
of the code of conduct adopted by the commission.
B. Disqualification of commissioner:
(1) A
commissioner may, upon their own motion or upon written request, disqualify
themselves from participating in any proceeding.
(2) Any
party or staff may file a motion to disqualify and remove a commissioner from
participating in a proceeding.
(a) Such motion shall be supported by an affidavit setting forth the
alleged grounds for disqualification.
(b) A copy of the motion and affidavit shall be served by the movant on
the commissioner whose removal is sought and the commissioner shall respond
within ten (10) days from such service.
(c) The response shall be considered a final order for purposes of
appeal. Until otherwise provided by law,
no commissioner shall rule on a motion to disqualify any other commissioner.
(3) A
commissioner may be disqualified for violation of the code of conduct adopted
by the commission.
[1.2.2.38
NMAC - Rp, 17 NMAC 1.2.40, 9/1/2008]
1.2.2.39 COMMISSION
CODE OF CONDUCT: The conduct of commissioners and all
employees of the commission shall be governed by the code of conduct adopted by
the commission pursuant to Section 10-16-11 NMSA 1978 of the Governmental
Conduct Act unless inconsistent with Sections 8-8-17, 8-8-18 and 8-8-19 NMSA
1978.
[1.2.2.39
NMAC - Rp, 17 NMAC 1.2.41, 9/1/2008]
1.2.2.40 VARIANCE:
A. An
petitioner may request a variance from a requirement of any commission rule or
order.
B. A petition for variance shall be
supported by an affidavit signed by an officer of the applicant or person with
authority to sign for the applicant.
C. Such petition may include a motion
that the commission stay the affected portion of the rule or order for the
transaction specified in the motion.
D. The commission may, at its
discretion, require an informal conference or formal evidentiary public hearing
prior to making its determination.
E. A petition for variance shall:
(1) identify the section of the rule or order from which the
variance is requested;
(2) describe
the situation that necessitates the variance;
(3) describe the
effect of complying with the rule or order on the applicant if the variance is
not granted;
(4) describe the result the variance will have if granted; and
(5) describe how the proposed alternative will achieve the
purpose of the rule, and why it is in the public interest.
[1.2.2.40
NMAC - Rp, 17 NMAC 1.2.39-Subsection I, 9/1/2008]
HISTORY OF 1.2.2 NMAC:
Pre NMAC History:
NMPUC Rule
110, Rules of Practice and Procedure, filed 10/4/93 (by former Public Utility
Commission);
SCC 78-2,
Order (no number), Docket No. 857, In the Matter of the Adoption of Rules of
Practice and Procedure for all Cases Before the N.M. SCC, filed 10/24/78;
SCC 85-11,
Rules of Procedure of New Mexico State Corporation Commission, filed 10/15/85
(by former NM State Corporation Commission).
History of Repealed Material:
17 NMAC
1.2, Public Utilities and Utility Services, Utilities General Provisions,
Utility Division Procedures (filed 12/14/1998) repealed 9/1/2008.
18.1.2
NMAC, Transportation and Highways, Transportation General Provisions,
Transportation Division Procedures (filed 12/10/2002) repealed 9/1/2008.
Other History:
NMPUC Rule
110, Rules of Practice and Procedure (filed 10/4/1993) and SCC 85-11, Rules of
Procedure of New Mexico State Corporation Commission (filed 10/15/1985) were
renumbered, reformatted, amended and replaced by 17 NMAC 1.2, Public Utilities
and Utility Services, Utilities General Provisions, Utility Division
Procedures, effective 12/31/1998.
That
applicable portion of 17 NMAC 1.2, Public Utilities and Utility Services,
Utilities General Provisions, Utility Division Procedures (filed 12/14/1998)
and 18.1.2 NMAC, Transportation and Highways, Transportation General
Provisions, Transportation Division Procedures (filed 12/10/2002) were
renumbered, reformatted, amended and replaced by 1.2.2 NMAC, General Government Administration, Administrative
Procedures, Public Regulation Commission Rules of Procedure, effective
9/1/2008.
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From: (this will auto-populate)
Sent: (this will auto-populate)
To: (this will auto-populate)
Subject: (Case No:
XX-XXXXX-XX; (description
)
Attachments: 20-00238-UT, Errata to Protective Order.pdf (attachments must be labeled in accordance with the guidelines set forth in Paragraph 6 of Subsection B of 1.2.2.10
NMAC)