This rule was
filed as NMPSC Rule 540.
TITLE 17 PUBLIC UTILITIES AND UTILITY
SERVICES
CHAPTER 9 ELECTRIC SERVICES
PART 540 PROCEDURES FOR REVIEW OF RATES
PROPOSED BY RURAL ELECTRIC
COOPERATIVES
17.9.540.1 ISSUING AGENCY:
New Mexico Public Service Commission [New Mexico Public Regulation
Commission].
[Recompiled
12/30/01]
17.9.540.2 SCOPE:
A. Except as provided in Subsection B all rural electric
cooperatives organized under the Rural Electric Cooperative Act, hereinafter
referred to sometimes as “coops," shall comply with the provisions of
NMPSC Rule 540 [17.9.540 NMAC] when proposing a new rate or rates. NMPSC Rules 110.39 through 110.41 [17.1.2.53
NMAC] relating to applications for change of rates shall not be applicable.
B. The provisions of NMPSC Rules 540.1 through 540.10
[17.9.540.1 through 17.9.540.15 NMAC] shall not affect the Commission's
regulation of the sale, furnishing, or delivery by wholesale suppliers of
electricity to coops under NMSA 1978, Section 62-6-4B et seq. NMPSC Rule 540.11 [17.9.540.16 NMAC] shall
apply to each rural electric cooperative regardless of the law under which it
is organized or whether or not it is a wholesale supplier of electricity.
C. The provisions of NMPSC Rule 540 [17.9.540 NMAC] do not
apply to new coop rules as the term "rules" is used in NMPSC Rule 210
[17.1.210 NMAC].
[Recompiled
12/30/01]
17.9.540.3 STATUTORY AUTHORITY:
NMPSC Rule 540 [17.9.540 NMAC] is adopted under the authority vested in
this Commission by the Public Utility Act, NMSA 1978, Section 62-3-1 et. seq.
[Recompiled
12/30/01]
17.9.540.4 DURATION:
[Recompiled
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17.9.540.5 EFFECTIVE DATE:
[Recompiled
12/30/01]
17.9.540.6 OBJECTIVE:
The purpose of NMPSC Rule 540 [17.9.540 NMAC] is to carry out the
explicit legislative intent of Laws 1985, Chapter 176, which amended NMSA 1978,
Section 62-3-2 and Section 62-8-7, to limit governmental regulation of rate
setting by rural electric cooperatives (whose members have direct control over
rates through an elected board) to the maximum extent consistent with retaining
oversight by the Commission.
[Recompiled
12/30/01]
17.9.540.7 DEFINITIONS:
[Recompiled
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17.9.540.8 [TABLE OF CONTENTS:]
A. Purpose [17.9.540.6 NMAC]
B. Authority [17.9.540.3 NMAC]
C. Applicability [17.9.540.2 NMAC]
D. Filings by Coops Proposing a New Rate or Rates
[17.9.540.9 NMAC]
E. Protests by Coop Members [17.9.540.10 NMAC]
F. Form and Filing of Protest [17.9.540.11 NMAC]
G. Commission Procedure Upon Receipt of a Protest
[17.9.540.12 NMAC]
H. Notice to Customers Prior to Filing of Proposed Rates
[17.9.540.13 NMAC]
I. Review and Hearing of Proposed Rates [17.9.540.14 NMAC]
J. Status of Protestant During Proceeding [17.9.540.15
NMAC]
K. Debt Cost Adjustment Clause [17.9.540.16 NMAC]
L. Effective Date [17.9.540.17 NMAC]
[Recompiled
12/30/01]
17.9.540.9 FILINGS BY COOPS PROPOSING A NEW
RATE OF RATES:
A. A coop which has complied with NMPSC Rule 540.8
[17.9.540.13 NMAC] below shall file with the Commission a schedule proposing a
new rate or rates together with an affidavit describing how the notice required
by NMPSC Rule 540.8 [17.9.540.13 NMAC] has been made, to which affidavit is
annexed a copy of the notice. The
filing shall be in accordance with NMPSC Rule 210 [17.1.210 NMAC] except that
NMPSC Rule 210.14 [Subsection C of 17.9.210.10 NMAC] (entitled "Additional
Information as to Effect of Proposed Rates") and NMPSC Rule 210.13(b)
[Paragraph 2 of Subsection B of 17.9.210.10 NMAC] (relating to filing of
testimony) thereof shall not be applicable.
The filing shall become effective:
(1) on the date set forth in the Advice
Notice, that date being no less than thirty (30) days after such filing;
(2) on any date the coop subsequently agrees
to;
(3) on the day following the entry of an
order by the Commission determining that just cause does not exist for
reviewing the proposed rate or rates pursuant to NMPSC Rule 540.7(c)
[Subsection C of 17.9.540.12 NMAC]; or
(4) if the Commission determines there is
just cause for review pursuant to NMPSC Rule 540.7 [17.9.540.12 NMAC], in
accordance with subsections C and D of NMSA 1978, Section 62-8-7.
B. A coop shall submit with its filing:
(1) the coop's most recent REA Form 7;
(2) a proof of revenue statement for each
class of customers to which the new rate or rates apply;
(3) a statement comparing the new rate or
rates with the present rate or rates, which statement shall contain the
information required in NMPSC Rule 540.8(b)(3) [Paragraph 3 of Subsection B of
17.9.540.13 NMAC]; and
(4) a brief statement explaining what has
caused the need for the rate adjustment.
C. A coop may, but is not required to, include in its filing
any data, exhibits, illustrations, prepared testimony, or written argument
which is pertinent to the schedule proposing a new rate or rates. Whether or not a coop includes such matters
in its filing does not affect its duty to furnish prepared testimony and
exhibits if ordered under NMPSC Rule 540.7(d) [Subsection D of 17.9.540.12
NMAC]. Any testimony and exhibits
included in the coop's filing shall conform to the requirements of NMPSC Rule
110 [17.1.2 NMAC].
D. Failure to abide by the requirements set forth or
incorporated by reference herein shall be deemed grounds for rejection of the
filing.
E. Rates which have been filed and which by operation of
law have become effective without hearing by the Commission shall not be
construed to bear the approval of the Commission but may be subject to inquiry
by the Commission at any time.
[Recompiled
12/30/01]
17.9.540.10 PROTESTS BY COOP MEMBERS:
A. Any member of the coop may protest the proposed rate or
rates by filing a protest in accordance with the requirements of NMPSC Rule
540.6 [17.9.540.11 NMAC] upon the filing of the schedule proposing the new rate
or rates. Protests must be filed no later than twenty (20) days after the coop
files the schedule. The term "member"
herein shall mean each incorporator of a coop and each person admitted to and
retaining membership therein and shall include a husband and wife admitted to a
joint membership.
B. In order to determine whether just cause may exist for
review pursuant to NMPSC Rule 540.7 [17.9.540.12 NMAC], the Commission will
ordinarily consider among other matters whether a protestant has exhausted
remedies within the coop or the coop has unreasonably rejected the protestant's
objections to the new rate or rates. Therefore,
a member should present his objections to the coop in writing and allow the
coop a reasonable period to attempt a resolution of or otherwise respond to
those objections. A period of seven (7)
days after receipt of written objections will be deemed reasonable for the coop
to provide a written response to the member, but a written response is not
required if such time period extends beyond the date specified in Subsection A.
above. The Commission expects the coop
and its member to make a good faith effort to resolve the member's objections
to the proposed rate or rates during that period of time.
[Recompiled
12/30/01]
17.9.540.11 FORM AND FILING OF PROTEST:
A. Contents of Protest:
Protests to the Commission must be in writing and shall be signed by the
member or members submitting the protest or by their attorney. All protests
shall contain the following:
(1) the name, mailing address, and phone
number of each member protesting the proposed rate or rates, and the name, mailing
address, and phone number of each member's attorney, if any;
(2) the name of the coop proposing the rate
or rates and identification of the proposed rate or rates being protested;
(3) a clear and concise statement of the
effect of the proposed rate or rates on the protestant;
(4) a clear and concise statement of the
specific grounds upon which the protestant believes the proposed rate or rates
are unjust, unreasonable, or otherwise unlawful;
(5) a brief description of the member's
efforts to resolve his objections directly with the coop; and
(6) a clear and concise statement of the
relief the protestant seeks from the Commission.
(7) All
protests shall show the caption of the proceeding and the docket number and
shall be titled "Protest."
Whenever possible, protests shall be typed and double-spaced, shall be
on paper 8 1/2 inches wide and 11 inches long, and fastened only on the left
side.
B. Use of Commission Form:
A protestant may, but is not required to, use the Commission's form for
protests. The coop shall make copies of
the Commission's form available to its members upon request.
C. Attachments Required:
The protestant must attach to the protest copies of any written
objections the protestant presented to the coop and any response made by the
coop under NMPSC Rule 540.5(b) [Subsection B of 17.9.540.10 NMAC]. If the protestant did not present his objections
to the coop before filing the protest or if the coop did not respond to
objections presented to it, the protestant shall so state in the protest.
D. Additional Information Permitted: The protestant may, but is not required to,
file with the protest any data, exhibits, illustrations, prepared testimony, or
written argument which is pertinent to the grounds of the protest and which may
aid the Commission in its consideration of the protest under NMPSC Rule 540.7
[17.9.540.12 NMAC].
E. Certificate of Service:
The protestant shall serve copies of the protest and any accompanying
documents on the coop whose proposed rate or rates are being protested either
by first class U.S. mail or by hand delivery.
A certificate of service stating the date and manner of mailing or
delivery must be included in or attached to the protest at the time of filing
with the Commission.
F. Number of Copies Required: At the time of filing the protestant shall provide the Commission
with an original plus ten (10) copies of the protest and any accompanying
documents unless the Commission directs otherwise.
G. Date of Filing:
If a protest is submitted to the Commission before the coop has filed
its proposed rate or rates, the protest shall be deemed filed as of the date of
the coop's filing.
H. Response Not Permitted:
No response to a protest filed with the Commission is permitted except
by leave of the Commission or presiding officer. Notwithstanding the foregoing, if the protestant has not
presented an objection to the coop in accordance with NMPSC Rule 540.5(b)
[Subsection B of 17.9.540.10 NMAC] the coop may, and is encouraged to, initiate
communications with the protestants to determine if there is a negotiated basis
for withdrawal of the protest and may, with notice to the protestant, disclose
such an effort and its results to the Commission or presiding officer.
[Recompiled
12/30/01]
17.9.540.12 COMMISSION PROCEDURE UPON RECEIPT OF A
PROTEST:
A. Upon receipt of a protest which is in substantial
compliance with these procedural rules the Commission shall determine whether
or not there is just cause for reviewing the proposed rate or rates on one or
more of the grounds of the protest.
B. The Commission or the presiding officer in the cause may
notice a pre-hearing conference in order to obtain further information from
either the protestant or the coop in aid of the just cause determination.
C. If the Commission determines that just cause does not
exist for reviewing the proposed rate or rates or that all protests have been
withdrawn by the protestants, the Commission shall enter an order so stating
and providing the basis for such determination. The Commission shall serve the order on the protestants and to
the coop.
D. If a determination is made that there is just cause for
review the Commission or presiding officer shall issue an order noticing the
proposed rate or rates for hearing and stating the issue or issues to be
heard. Either this order or subsequent
orders shall prescribe:
(1) the manner of any further notice to
ratepayers or the public, the cost of which shall be borne by the coop;
(2) a deadline for the filing of motions to
intervene under the intervention provisions of NMPSC Rule 110 [17.1.2 NMAC];
(3) directions
to the parties and, to the extent the Commission or presiding officer may deem
helpful, to the Commission Staff to file written testimony and exhibits; and
(4) the time and place of the hearing.
[Recompiled
12/30/01]
17.9.540.13 NOTICE TO CUSTOMERS PRIOR TO FILING OF
PROPOSED RATES:
A. At least thirty (30) days prior to filing a schedule
proposing a new rate or rates a coop shall give, by mailing with billings or
independently or by publication in the enchantment (in the case of coops
subscribing thereto), written notice to affected customers. For this purpose all customers of the coop
shall be considered to be affected customers unless the Commission, upon motion
made by the coop, directs otherwise.
B. The notice shall include the following information:
(1) the amount of the increase requested in
both dollar amounts and percentage increase;
(2) the customer classifications to which the
new rate or rates apply;
(3) the present rates and the proposed rates
for each customer class and the number of customers in each customer class to
which those proposed rates would apply and, for residential customers without
demand meters, the present rates, the proposed rates, and the percentage
difference between the present bill and the anticipated bill for each of the
following levels of consumption-0 kwh, 250 kwh, 500 kwh, 750 kwh, 1,000 kwh and
2,000 kwh;
(4) the date on which the coop intends to
file with the Commission the schedule proposing the new rate or rates;
(5) a statement that the coop will promptly
notify a member of the date on which it actually files the schedule proposing
the new rate or rates if the member so requests;
(6) a statement that the new rate or rates
will go into effect automatically and without hearing by the Commission unless
one or more members of the coop file a protest with the Commission no later
than twenty (20) days after the coop has filed the schedule proposing the new
rate or rates and the Commission determines there is just cause for reviewing
the proposed rate or rates on one or more of the grounds of the protest AND A
STATEMENT IN ALL CAPITAL LETTERS THAT IF A HEARING IS HELD BY THE PUBLIC
SERVICE COMMISSION [PUBLIC REGULATION COMMISSION] ANY COSTS INCURRED BY THE
UTILITY MAY BE INCLUDED IN THE UTILITY’S FUTURE RATES, FOLLOWING THE UTILITY’S
NEXT RATE CASE;
(7) a statement that the procedures for
protesting a proposed rate or rates are set forth in NMPSC Rule 540 [17.9.540
NMAC], a copy of which can be obtained upon request from or inspected at either
the main office of the coop or the offices of the Commission in Santa Fe, that
forms for protests are available from either the coop or the Commission, and
indicating the telephone numbers and addresses of both the coop and the
Commission;
(8) a statement that before filing a protest
a coop member should attempt to resolve any grievance within the coop by
presenting his objections to the coop in writing and allowing the coop at least
seven (7) days in which to attempt a resolution or otherwise respond;
(9) a statement that any interested person
may examine the rate filings together with any exhibits and related papers that
may be filed at any time at the main office of the coop or on or after the date
of filing at the offices of the Commission in Santa Fe; and
(10) a statement
that further information may be obtained by contacting the coop or the
Commission.
C. The coop shall submit a copy of the form of notice to the
Commission for approval at least fifteen (15) days prior to giving notice to
customers. If the Commission does not
disapprove the form of notice within five (5) working days of submission of the
notice the form will be deemed approved.
D. Failure to comply with this section shall be deemed
grounds for rejection of the filing proposing a new rate or rates.
[Recompiled
12/30/01]
17.9.540.14 REVIEW AND HEARING OF PROPOSED RATES:
Any proceeding to review a coop's proposed rate or rates under NMPSC
Rule 540.7(d) [Subsection D of 17.9.540.12 NMAC] shall be conducted in
accordance with the Public Utility Act and NMPSC Rules 110.1 through 110.29 and
NMPSC Rules 110.56 through 110.142 [17.1.2.7 NMAC through 17.1.2.12 NMAC and
17.1.2.26 NMAC through 17.1.2.40 NMAC].
[Recompiled
12/30/01]
17.9.540.15 STATUS OF PROTESTANT DURING
PROCEEDING:
A. Unless the Commission or presiding officer directs
otherwise the protestant or protestants who filed the protest shall be deemed
parties to any proceeding to review the proposed rate or rates protested. Said protestants shall have the same status
as intervenors and any reference to intervenors during the proceeding shall be
deemed to include such protestants unless otherwise noted. These protestants need not file motions to
intervene otherwise required by NMPSC Rule 110 [17.1.2 NMAC].
B. If more than one member filed the protest the Commission
or the presiding officer may, to expedite the proceeding and avoid duplication,
give intervenor status to fewer than all of the protestants and grant other
intervenor status only upon a showing that their intervention will not be
duplicative and will not unduly delay the proceeding.
[Recompiled
12/30/01]
17.9.540.16 DEBT COST ADJUSTMENT CLAUSE:
A. A coop’s schedule of rates proposed pursuant to NMPSC
Rule 540 [17.9.540 NMAC] may provide for the flow-through to customers of
increases and decreases in the cost of debt capital incurred pursuant to
securities, the issuance of which has been approved by the Commission, above or
below debt cost utilized to establish the rates.
B. Unless the coop obtains the approval of the Commission or
presiding officer for a different methodology, the clause in a rate containing
such an adjustment shall provide at a minimum for the following:
(1) the Base Cost shall be the cost of
Commission authorized debt capital as of the end of the test period upon which
the rates were established, as annualized;
(2) the applicable debt cost expense shall be
determined every calendar quarter by adding the actual changes in the Base Cost
to or, as the case may be, subtracting these changes from the actual cost of
new debt under securities approved by the Commission and incurred after the end
of the period used to determine the Base Cost;
(3) a demand allocation factor shall be
determined for each class of customers (the demand allocation factor shall be
that upon which the cooperative’s current rates were established but may be
adjusted by the cooperative with prior approval of the Commission Executive
Director on the basis of a more recent cost of service study or known and
measurable changes); and
(4) the Debt Cost Adjustment amount to be
allocated to each class of customers for the next succeeding calendar quarter
shall be the result of multiplying items (2) and (3) above. The distribution of the Debt Cost Adjustment
amount among the customers within each class may be on the basis of projected
kilowatt demand or projected kilowatt-hour sales, as the coop elects to designate
in its schedule of rates.
C. The coop shall file with the Commission the data and
calculations called for by Paragraphs (1), (2), (3) and (4) of Subsection B of
this Section above a minimum of ten (10) days before an adjustment factor is to
be applied to billings.
D. The coop shall establish a Balancing Account to
compensate for under-collections and over-collections of revenue by increasing
or decreasing the adjustment factor for the next following calendar quarter and
shall file with the Commission one (1) year from the date of the first Debt
Cost Adjustment filing and annually thereafter a reconciliation of Debt Cost
Adjustment revenues and expenses and the operation of the Balancing
Account. The Commission will examine
this filing to insure that only the appropriate revenues are being recovered.
E. The adjustment factor expressed in either cents per
kilowatt-hour or cents per kilowatt and the resultant billing period charge
shall be shown on each bill as Debt Cost Adjustment.
F. Notwithstanding NMPSC Rule 540.11 [17.9.540.16 NMAC], an
effective schedule of rates, or the filing of information with the Commission,
the Commission reserves the authority to entertain complaints and undertake
investigations of Debt Cost Adjustments as provided in the Public Utility Act
and NMPSC Rule 110 [17.1.2 NMAC].
[Recompiled
12/30/01]
17.9.540.17 EFFECTIVE DATE:
NMPSC Rule 540 [17.9.540 NMAC] shall be effective for all filings made
after the date of adoption of former General Order No. 46 and compliance
thereof with the State Rules Act, NMSA 1978, Section 14-4-1 et seq.
For all previous filings Interim General Order No. 46, adopted July 15,
1985, shall remain in effect.
[Recompiled
12/30/01]
17.9.540.18 [HISTORY: NMPSC Case No. 2086, order dated June 30,
1988, unless otherwise noted. Formerly
NMPSC General Order No. 46, superseded for purposes of rule reorganization and
codification.]
[Recompiled
12/30/01]
HISTORY OF
17.9.540 NMAC:
The material in
this part was derived from that previously filed with the Commission of Public
Records-State Records Center and Archives.
General Order
No. 46, In The Matter Of A General Order No. 46 Regarding Procedures For Review
Of Rates Proposed By Rural Electric Cooperatives. 8/15/85
G.O. 46,
Procedures For Review Of Rates Proposed By Rural Electric Cooperatives; 2/26/86
NMPSC Rule 540,
Procedures For Review Of Rates Proposed By Rural Electric Cooperatives;
6/30/88.
History of
Repealed Material: [RESERVED]