New Mexico Administrative Code
Title 17 - PUBLIC UTILITIES AND UTILITY SERVICES
Chapter 1 - UTILITIES GENERAL PROVISIONS
Part 2 - UTILITY APPLICATIONS
Section 17.1.2.8 - APPLICATIONS RELATING TO SECURITIES
Universal Citation: 17 NM Admin Code 17.1.2.8
Current through Register Vol. 35, No. 18, September 24, 2024
A. Annual informational financing filing:
(1) For purposes of this
section, the term "utility" shall include each person subject to Subsection B
of Section
62-6-4
NMSA 1978 and each electric, gas, or combination utility subject to the
jurisdiction of the commission.
(2)
Each rural electric cooperative other than a generation and transmission
cooperative shall not be required to file, correct or update an annual
information filing, but shall file contemporaneously with the commission copies
of all documentation submitted to the rural electrification administration
supporting any loan application to that agency. The documents shall include,
but are not limited to, a power requirements study, a financial forecast, and
an engineering work plan.
(3) To
assist the commission in reviewing applications relating to securities within
the thirty (30) days required by statute, each utility shall file with the
commission on an annual basis the information required by this rule.
(a) Such information shall be filed by the
utility in the form of a written statement plus any pertinent exhibits. Such
written statements and exhibits shall be filed by the utility with its annual
report and cover the twelve month period between the filing of its current
annual report and the date its next annual report is due to be filed.
(b) The commission or presiding officer may,
subsequent to the filing of the statement, require that the utility attend a
conference with staff and other parties to review the filing and discuss the
utility's financing plan. The filing and any conference held are for
informational purposes and no actions taken or statements made by staff shall
be deemed approval of an issuance of securities or in any way bind the
commission or staff.
(4)
A utility, for good cause, shall have a reasonable opportunity to cure its
failure to file its annual informational financing filing in a timely manner
and to cure any deficiencies contained in an annual informational financing
filing. A utility has the duty to discover and cure any such deficiencies at
the earliest possible time. A utility may also request, for good cause, an
extension of time in which to make the annual filing.
(5) A utility which fails to make its annual
informational financing filing may be subject to the imposition of sanctions as
provided in Sections
62-12-1
NMSA 1978 et seq. and such other sanctions as are authorized by law. An
application relating to securities may be dismissed if the utility's annual
informational financing filings are not current and if the utility has not
demonstrated good cause for its failure to make its annual filing when
due.
(6) The following information
must be provided in the annual informational financing filing:
(a) a general description of the anticipated
annual capital requirements with an explanation of the amount which will be
provided internally and the amount to be provided externally;
(b) a general description of all known and
projected securities to be issued, assumed, or guaranteed during the twelve
(12) month period between the filing of the utility's current annual report and
the date its next annual report is due to be filed;
(c) the capital structure in dollar and
percentage amounts expected to be achieved by the utility upon issuance of each
of the known and projected securities, if approved by the commission;
(d) in the case of investor-owned utilities
with common stock outstanding, a list of all stock plans available to
employees, investors, or consumers; the number of shares issued by the utility
under each plan; and the proceeds to the utility therefrom and any discounts
available;
(e) the status of the
securities described in the applications of the utility filed or approved
during the reporting period preceding the period covered by the current
report.
B. Applications to issue, assume, or guarantee securities:
(1) Except as otherwise provided in
Subsection E of
62-6-6
NMSA 1978, before issuing, assuming or guarantying any securities, or creating
a lien on its property situated within New Mexico, each utility or person
subject to Subsection B of Section
62-6-4
NMSA 1978 shall file an application, and receive the commission's approval,
regarding such transactions. Applications relating to securities shall conform
to the requirements of this rule regarding pleadings and shall include in
written form direct testimony and supporting exhibits.
(2) Testimony shall explain the proposed
transactions and specifically address in detail any features which may have
significant impact on ratepayers or the commission's ability to regulate the
utility.
(3) Drafts of all
available transaction documents shall be filed with the application. Investment
memoranda, prospectuses, information or registration statements or other
documents produced to describe the transactions to potential funding sources
shall also be included, if available.
(4) The proposed contents of transaction
documents shall be summarized and included in testimony.
(a) Summaries shall specify those terms and
conditions of the transaction that are firm.
(b) If any terms are not firm, ranges for
interest rates and dollar amounts involved in the transactions and alternative
terms and conditions of the transactions being negotiated shall be summarized
in the application.
(c) Such terms
shall include, but not be limited to, interest rates, maturities, terms of call
and restrictions, necessity for security, manner of sale, and proposed
purchasers.
(d) The commission or
presiding officer may require more information.
(e) The utility shall serve notice of the
filing of the application relating to securities on the attorney general at the
time it files the application with the commission.
(5) The utility shall, to the extent that the
annual informational financing filing is no longer accurate or that new
information has been obtained which would have been included in the filing if
known at the time of filing, include in its direct testimony and supporting
exhibits a corrected or updated version of the annual informational financing
filing, which document shall also be submitted in duplicate and separately as a
compliance filing.
(6) The
application shall show whether the financing for which approval is sought was
reported in the annual informational financing filing and, if it was not
reported, include a statement of the utility's reasons for not having reported
it. Failure to report in the annual filing the financing for which approval is
sought may be grounds for dismissing the application, except where the utility
has demonstrated good cause for the omission.
(7) Final documents shall be submitted when
available following the close of the transaction. Every change from the
documents presented before the commission in the application to issue
securities shall be identified.
C. Procedure upon receipt of application relating to securities:
(1) Upon receipt of an application relating
to securities, the application will automatically be assigned on a rotating
basis to a hearing examiner employed by the commission who shall preside over
the proceedings and take all actions necessary and convenient thereto within
the limits of his or her authority and 17.1.2.8 NMAC, unless otherwise ordered
by the commission.
(2) The
commission or presiding officer shall then determine whether or not a hearing
should be required pursuant to Section
62-6-7
NMSA 1978 or should be held for good cause shown pursuant to Subsection B of
Section
62-6-8 NMSA
1978.
(3) In the event the
commission or presiding officer determines that a public hearing is not
required, the commission will take public comment and dispose of the
application at an open meeting.
(4)
The commission will in all cases involving applications to issue securities
dispose of such applications within thirty (30) days from the date of filing
unless for good cause the commission or presiding officer determines and orders
that a longer period is required.
D. Notice of filing:
(1) A utility filing an application relating
to securities shall, at its expense, publish notice of the filing in a
newspaper of general circulation available in the county where the principal
New Mexico office of the utility is located, as directed by the presiding
officer. The notice must appear at least once. The applicant shall ensure that
an affidavit of publication is filed promptly with the commission upon
publication of the notice.
(2) The
notice required by Paragraph (1) of Subsection D of 17.1.2.8 NMAC shall include
the following information:
(a) a statement of
the nature, amount, and purpose of the filing of the application and the date
of its filing;
(b) a statement that
the commission is required by law to act promptly on the application;
(c) a statement of the date, time, and place
of the hearing on the application or the open meeting at which comments will be
taken and a further statement that any persons desiring to comment on the
application or to intervene in the proceeding should contact the commission for
confirmation of the hearing or meeting date, time, and place, since hearings
and open meetings are on occasion rescheduled;
(d) a statement that those persons desiring
to intervene in a proceeding must file a motion to intervene under Subsections
A and B of 1.2.2.23 NMAC before the commencement of the hearing, or by the date
established by the commission or presiding officer;
(e) a statement that any interested person
may appear at the time and place of hearing and make a written or oral comment
at the hearing pursuant to this rule without becoming an intervenor, but that
the comment will not be considered as evidence in the proceeding;
(f) a statement that the utility's
application together with any exhibits and related papers may be examined at
the main New Mexico office of the utility or at the offices of the commission
in Santa Fe and indicating the addresses and telephone numbers of both the
utility and the commission;
(g) a
statement that this rule will apply to the proceeding except as modified by
order of the commission or presiding officer in the proceeding; and
(h) a statement that further information can
be obtained by contacting either the utility or the commission.
(3) At the time of the filing of
the application the applicant shall submit a copy of the notice to the
commission in the form prescribed by the commission. At the time of submission
the notice shall be complete except as to the date, time, and place of the
hearing or open meeting on the application, which information will be provided
to the utility before it sends the notice to the newspaper for publication. The
commission or presiding officer shall issue the form of notice to be
published.
(4) The commission or
presiding officer may by order require such other notice as is deemed proper
under the circumstances.
(5)
Failure to comply with the provisions of this Subsection D of 17.1.2.8 NMAC may
result in a dismissal of the application.
E. Securities subject to Section 62-6-8.1 NMSA 1978:
(1) A utility proposing to issue,
assume, or guarantee securities which are payable at periods of not more than
eighteen (18) months after the date thereof and over which the commission has
jurisdiction by virtue of Section
62-6-8.1
NMSA 1978 shall file with the commission a written statement setting forth:
(a) the anticipated total amount of such
securities to be issued, assumed, or guaranteed during the twelve (12) month
period between the filing of the utility's current annual report and the date
its next annual report is due to be filed;
(b) the general purposes for which such
securities will be issued, assumed, or guaranteed;
(c) the anticipated manner in which such
securities will be refunded; and
(d) the status of the securities described in
the written statement of the utility filed the prior fiscal year.
(2) Such statement shall be filed
by the utility with its annual report and cover the twelve (12) month period
between the filing of its current annual report and the date its next annual
report is due to be filed.
(3) Not
later than ten (10) days after such statement is filed with the commission, the
commission may, upon a finding of good cause, set a hearing, but otherwise no
hearing concerning such filing shall be required. The filing shall be deemed
approved by the commission in the absence of an order setting such a hearing,
which approval shall, at the request of the utility, be evidenced by confirming
letter of the chief of staff.
(4)
Notwithstanding the setting of a hearing, the utility shall be authorized to
proceed with the proposed financing program until otherwise directed by the
commission. The provisions of Subsection A of 17.1.2.8 NMAC, but not those of
Subsections B, C and D of 17.1.2.8 NMAC, shall apply to the securities
described in Subsection E of 17.1.2.8 NMAC.
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