New Mexico Register / Volume XXXII, Issue 7 /April 6,
2021
This is an amendment to 1.2.2 NMAC, Sections 7, 8, 9,
10, 11, 34 & 35 effective 4/6/2021.
This amendment is a permanent replacement of the emergency amendment to
1.2.2 NMAC, Sections 7 and 8 effective 10/15/2020.
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. 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;
B. applicant means any party on whose behalf an application is
made for approval or authorization of the commission;
C. 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;
D. chief
of staff means the person appointed by the commission pursuant to Section 8-8-5
NMSA 1978;
E. 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;
F. 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;
G. 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;
H. document means, except as otherwise
used in the provisions of this rule governing discovery, any submission in a
formal proceeding which is not a pleading or which is required to be filed by
commission rule or order outside a formal proceeding;
I. electronic means relating
to technology having electrical, digital, magnetic, wireless, telephonic,
optical, electromagnetic or similar capabilities;
J. file, filed, or filing means delivery or
transmittal to the chief clerk or the chief clerk’s designee and acceptance by
the chief clerk or the chief clerk’s designee of an order, notice, pleading, or
document to be kept on file in their official capacity;
K. 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;
L. 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;
M. 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;
N. informal
proceedings means any matters handled outside a formal proceeding by the commission
or its staff, including informal complaints;
O. 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;
P. 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;
Q. 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;
R. petitioner means any party on whose
behalf a petition is made for approval, determination, consent, certification,
or authorization of the commission;
S. pleading means an application,
petition, complaint, answer, motion, response to motion, exception, or other
formal written statement filed in any formal proceeding;
T. presiding
officer means a commissioner taking such actions as are permitted under 1.2.2.29
and 1.2.2.30 NMAC or the hearing examiner designated to preside over a
proceeding;
U. proceeding means a formal proceeding;
V. 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;
W. regulated entity means a utility, telecommunications provider, motor carrier, fire
marshal-regulated entity, 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;
X. 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;
Y. staff means all persons, other
than hearing examiners and advisory staff, employed by the commission; and
Z. telecommunications provider shall have the meaning
given in Paragraph (2) of Subsection A of 63-7-23 NMSA 1978.]
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. Fees:
(1) All application fees or
other charges required by law shall be paid to the commission at the time of
filing or at the time the charge is incurred.
(2) 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.
(3) 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 state records center for similar types of copies.
(4) The fee for copies of papers, testimony, or records on
electronic storage media shall be the same charge set by the state records
center for paper copies of the same.
(5) The fee for cassette or CD-ROM copies of audio recordings
of informal and formal proceedings, if available, is $10 per cassette or
CD-ROM.
(6) 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 a document search and preparation fee based on the hourly
rate charged by the state records center for document preparation in 1.13.2
NMAC.]
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. [Address of
the commission: Persons shall submit filings in proceedings
related to utilities and telecommunications providers to the records office
located at the utility division’s address.
Persons shall submit filings in proceedings related to motor carriers,
railroads, fire marshal-regulated entities, corporations, and owners and
operators of gas and hazardous liquid pipelines and underground facilities,
excavators, and one-call notification systems to the records office located at the transportation division’s address.
(1) Utility division.
(a) Street address: Marian Hall, 224 E. Palace
Avenue, Santa Fe, New Mexico 87501-2013.
(b) Mailing address: Public Regulation Commission, Utilities
Division, P.O. Box 1269, Santa Fe, New Mexico 87504-1269.
(2) Transportation division:
(a) Street address. P.E.R.A. Building, 1120 Paseo de
Peralta, Santa Fe, New Mexico, 87504.
(b) Mailing address. Public Regulation Commission,
(indicate appropriate division or bureau), P.O. Box 1269, Santa Fe, NM 87504-1269.
I. Office days and hours: The offices of the commission are open from
8:00 a.m. to 12:00 p.m. and 1:00 p.m. to 5:00 p.m., Monday through Friday,
legal holidays excepted.
J] 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.
K. Current information required: In all cases, persons shall keep the
information required by Subsection J 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.]
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.
[L] 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.
[M] 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.
[N] 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 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;] 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. Filing: A pleading or document is considered filed on
the date stamped by the commission. Any
pleading or document received after regular business hours will be stamped and
considered filed on the next regular business day.
B. 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.
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 be entered on the commission's
docket for decision.
C. Service
Generally:
(1) Except as otherwise
provided by rule or order, all pleadings, orders, notices, and documents filed
in a proceeding shall be promptly served upon those persons described in
Paragraph (4) of Subsection C of 1.2.2.10 NMAC by the person filing the orders,
notices, pleadings, or documents.
Service 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, or by electronic transmission in
accordance with other rules governing electronic service promulgated by the
commission. 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 filed with or 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.
D. Electronic
service: Electronic service shall be
effectuated in accordance with other rules of the commission governing electronic
filing and service.
E. 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.]
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.
[ E. Electronic
form: Any pleading or supporting document may
additionally be presented in electronic form at the option of the party or
staff making a filing, and shall be presented in electronic form if the
commission or presiding officer so orders.
All diskettes, CD-ROMs or other electronic storage media submitted
pursuant to this rule shall be compatible with the commission’s current
computer capabilities. Diskettes,
CD-ROMs and other electronic storage media shall contain the exact electronic
image of the document or pleading being replicated. Unless otherwise ordered by the commission or
presiding officer, the contents of all filed diskettes, CD-ROMs and other
electronic storage media shall be physically or electronically protected from
alteration or deletion. All diskettes,
CD-ROMs or other electronic storage media filed shall have affixed thereto a
label containing the appropriate caption and case number, the title of the
pleading or document, the name of the party or staff making the filing, and
space for date-stamping.]
[F] E. 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] F. 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.
[ H. Copies: The party or staff filing a pleading shall
provide the commission with one (1) original plus five (5) conformed copies of
the pleading unless the commission or presiding officer directs otherwise. The commission or presiding officer may
require the filing of additional paper copies.]
[1.2.2.11 NMAC - Rp, 17 NMAC 1.2.10, 9/1/2008; A, 4/6/2021]
1.2.2.34 TRANSCRIPTS:
[ A. Record of
proceedings and testimony: A full and
complete record of all proceedings before the commission or presiding officer
in any formal public hearing and all testimony shall be taken down by a
reporter appointed by the commission.
B. Copies of
transcripts: Transcripts may be requested by
any party or by staff at the inception of the public hearing or their
preparation otherwise directed by the commission or presiding officer. Any party other than the commission or its
staff who requests and receives transcripts shall pay the specified costs to
the preparer of the transcript. If such
receipt is earlier than the date on which the commission or staff would
otherwise receive transcripts, the preparer shall deliver the commission’s and
staff’s copies to the commission and staff on the earlier date.]
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 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 (1-1/2) 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 (2)
inches from the edge;
(e) the
page number for each page shall be typed at the bottom center one (1) inch from
the edge;
(f) a square of approximately one and
one-half (1-1/2) inches in the upper right-hand corner of each page shall be
left clear for commission use; and
(g) testimony
shall contain line numbers on the left-hand side of the page.
(3) Prepared
testimony shall be included in the record as an exhibit.]
(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]