N.M. Admin. Code § 1.2.2.37

Current through Register Vol. 35, No. 24, December 23, 2024

Section 1.2.2.37 - COMMISSION ORDERS, EXCEPTIONS, AND REHEARINGS

A.Commission orders:

(1) The commission will issue its order in writing in every proceeding. The order shall contain separately stated findings of fact and, in the commission's discretion, conclusions of law, or combined findings and conclusions. The commission may in its discretion issue an oral decision prior to the issuance of its written order. The timeliness of applications for rehearing and notices of appeal shall be calculated from the date the commission issues its written order. The date a written order is issued is the date when the written order, signed under the seal of the commission, has been filed with the chief clerk or the chief clerk's designee.

(2) The commission may adopt a hearing examiner's recommended decision. If a recommended decision is adopted in its entirety the commission's order shall so state. Where the only changes between the commission order and the hearing examiner's decision are those to correct grammatical or typographical errors, the commission's order shall so state.

(3) The commission may issue an order which makes reference to the recommended decision and indicate disagreements with the hearing examiner and the commission may make further or modified findings and conclusions based on the record.

B.Issuance of recommended decisions: A hearing examiner shall issue a recommended decision. The recommended decision shall be served on all parties to and the staff in the proceeding and shall contain separately stated findings of fact and conclusions of law.

C.Exceptions to recommended decisions:

(1) Filing requirements:

(a) Unless otherwise ordered by the commission or presiding officer exceptions may be filed by staff or by any party within thirteen (13) days after the recommended decision is issued.

(b) Except by prior written approval of the commission or presiding officer, exceptions shall be no longer than forty (40) pages. A summary of argument identifying with particularity and numbering the points excepted to of no more than five (5) pages shall be included with the exceptions and does not count toward the forty (40) page limit.

(c) Unless otherwise ordered by the commission or presiding officer, responses to exceptions may be filed within eight (8) days after the exceptions have been filed. Except by prior written approval of the commission or presiding officer, responses to exceptions shall be no longer than thirty-five (35) pages. A summary of argument of no more than three (3) pages shall be included with a response and does not count toward the thirty-five (35) page limit.

(d) Replies to responses to exceptions shall not be filed without leave of the commission or presiding officer. Except by prior written approval of the commission or presiding officer, replies to responses shall be no longer than fifteen (15) pages. A summary of argument of no more than two (2) pages shall be included with a reply and does not count toward the fifteen (15) page limit. Replies to responses to exceptions shall be filed within thirteen (13) days of service of the response, or such other time period as the commission or presiding officer may prescribe.

(e) Any exception, response, or reply ten (10) pages long or longer shall include a table of contents listing the points made and authorities relied on. A table of contents shall not count toward any page limitation.

(2)Contents: Responses shall not raise for the first time matters which were not raised in the exceptions of a party or the staff. Exceptions and any responses must specifically set forth:

(a) the precise portions of the proposed decision to which the exception is taken or response to exception is made;

(b) the reason for the exception or response;

(c) authorities on which the party or staff relies and specific citations to the record in the form required by Subsection D of 1.2.2.34 NMAC.

(d) In rate cases, reconciliation statements containing the information listed in Subsection F of 1.2.2.36 NMAC.

(3)Copies: Exceptions and responses shall be filed and be accompanied by a certificate of service. The original and five (5) copies shall be filed unless otherwise ordered by the commission or presiding officer.

D.Oral argument to commission after recommended decision: Any party or staff may petition the commission for oral argument after the issuance of a recommended decision. Such request may be included in a brief on exceptions or a response but must be filed no later than the last day to file responses. The commission in its discretion may allow oral argument. If it allows oral argument, it may in its discretion conduct the argument by telephone conference call.

E.Reopening proceedings:

(1)Motion to reopen: Before the issuance of a commission order or after the issuance of a recommended decision, staff or a party to a proceeding may file a motion to reopen the proceeding for the taking of additional evidence.

(2)Allegations: Such motion shall specify those facts claimed to constitute grounds in justification thereof, including material changes of fact or law alleged to have occurred since the conclusion of the public hearing, and shall contain a brief statement of proposed additional evidence and an explanation as to why such evidence was not previously produced.

(3) Responses: Within thirteen (13) days following the service of any motion to reopen staff or any other party may file responses thereto.

(4)Commission may reopen: The commission on its own motion may at any time reopen any proceeding when it has reason to believe that conditions of fact or law have so changed as to require, or that the public interest requires, the reopening of such proceeding.

F. Rehearing:

(1)Motion for rehearing:

(a) Except as otherwise provided in Sections 62-10-16 and 62-11-1 NMSA 1978, after an order has been issued by the commission in a proceeding staff or any party to the proceeding may within ten (10) days after the issuance of the order move for rehearing of the order with respect to any matter determined in the proceeding.

(b) The motion shall specify the matters upon which the movant requests rehearing and the ground or grounds on which the movant considers the order to be unlawful, unjust, or unreasonable with regard to each such matter.

(2)Responses: Any party or staff may file a response in writing within five (5) days, or within thirteen (13) days if Sections 62-10-16 and 62-11-1 NMSA 1978 apply, which opposes or supports the motion for rehearing. Replies to responses shall not be permitted without leave of the commission or presiding officer.

(3)New evidence: A motion for rehearing may seek modification of the order without introduction of additional evidence. If the movant or any party or staff who opposes or supports the motion seeks to introduce additional evidence on any matter, the new evidence must be specified and must be supported by affidavit and a statement of the reasons why the new evidence was not previously introduced. Any new evidence furnished in support of the motion or response shall be considered by the commission only for purposes of the commission's decision on the motion and shall not be considered as evidence pertaining to the order that the commission previously had issued.

(4)Effect of filing motion: The filing of a motion for rehearing shall not excuse staff or a party from complying with or obeying any order or any requirement of an order of the commission, nor shall it operate in any manner to stay or postpone the enforcement thereof except as the commission may by order direct as provided by law.

(5)Oral argument: If the commission in its discretion grants oral argument on a motion for rehearing of the commission's order, said order shall not thereby be vacated.

(6)Disposition of motion for rehearing:

(a) Except as otherwise provided in Section 62-10-16 NMSA 1978, the commission may grant or deny the motion at any time within twenty (20) days after the final order has been issued and prior to the expiration of the period prescribed for filing of responses. If the commission does not act on a motion for rehearing within twenty (20) days after the final order has been issued, the motion shall be deemed denied.

(b) The commission may limit the rehearing to some or all of the matters raised in the motion or may expand the rehearing to include other matters determined in the proceeding.

(c) On rehearing the commission in its discretion may receive some or all of the new evidence specified in the motions or responses subject to cross-examination, may expand the rehearing to include additional evidence, or may restrict the rehearing to modification of its order without introduction of new evidence.

(d) If the rehearing is limited to modification of the order without introduction of new evidence, all parties and staff will have an opportunity to oppose or support the proposed modification, but the rehearing will be decided without oral argument or public hearing unless the commission directs otherwise.

(e) If the commission grants the motion for rehearing in whole or in part, the order being reheard shall be deemed vacated and no order or decision at that time shall exist in the proceeding.

(7)New order: After any rehearing the commission shall enter a new order which may incorporate by reference any portion of the previously issued order which the commission had vacated.

G. Errata notice:

(1) The commission, the commission chairman, or, in the absence of the chairman any other commissioner, may correct typographical errors, omissions, or other non-substantial errors in commission orders through the issuance of errata notices. A presiding officer may also correct typographical errors, omissions, or other non-substantial errors in their orders through the issuance of errata notices. The issuance of an errata notice shall not affect the finality of the decision or order corrected.

(2) A party to a formal proceeding or staff may correct typographical errors, omissions, or other non-substantial errors in its pleadings or documents through the filing of an errata notice, which shall conform to the rule governing pleadings.

H.Notice of appeal: Notices of appeal of commission decisions shall be filed pursuant to applicable statutes, including but not limited to Section 53-13-2 NMSA 1978, Section 59A-52-22 NMSA 1978, Section 62-11-1 NMSA 1978, Section 63-9-16 NMSA 1978, Section 63-9A-14 NMSA 1978, Section 63-9B- 9 NMSA 1978, Section 63-9H-12 NMSA 1978, Section 70-3-15 NMSA 1978, Section 65-2A-35 NMSA 1978, and Section 63-7-1.1 NMSA 1978.

I. Docketing of submissions in compliance with and motions for variances from final orders:

(1) Submissions in compliance with and motions for variances from commission final orders shall be filed under the same case number as that of the final order. A certificate of filing and service stating that the compliance submission has been filed shall be filed and served on staff and all other parties to that case. Motions for variances shall be served on staff and all parties to the case.

(2) Requests for extensions of time to meet compliance provisions contained in final orders of the commission must be in writing and must explain why an extension of time is being requested. Requests shall be filed under the same case number as that of the final order. The chief of staff has the authority to grant such requests.

N.M. Admin. Code § 1.2.2.37

1.2.2.37 NMAC - Rp, 17 NMAC 1.2.39, 9-1-08