new mexico register164.64.110.239/nmregister/xv/xv05/xv05.pdf · new mexico register volume xv,...

Volume XV Issue Number 5 March 15, 2004

NEW MEXICO

REGISTER

New Mexico Register

Volume XV, Issue Number 5March 15, 2004

The official publication for all notices of rulemaking and filings ofadopted, proposed and emergency rules in New Mexico

The Commission of Public RecordsAdministrative Law Division

Santa Fe, New Mexico2004

COPYRIGHT © 2004BY

THE STATE OF NEW MEXICO

ALL RIGHTS RESERVED

New Mexico RegisterVolume XV, Number 5

March 15, 2004

Table of ContentsNotices of Rulemaking and Proposed Rules

Agriculture, Department ofNotice of Hearing - Lea County Cotton Boll Weevil Control District . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105Notice of Hearing - Central Lea County Cotton Boll Weevil Control District . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Children, Youth and Families DepartmentProtective Services Division

Notice of Public Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105Nursing, Board of

Notice of Public Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105Oil Conservation Commission

Notice of Publication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Adopted RulesEffective Date and Validity of Rule Filings

Rules published in this issue of the New Mexico Register are effective on the publication date of this issue unless otherwisespecified. “No rule shall be valid or enforceable until it is filed with the records center and published in the New Mexico reg-ister as provided by the State Rules Act. Unless a later date is otherwise provided by law, the effective date of a rule shall bethe date of publication in the New Mexico register.” Section 14-4-5 NMSA 1978.

A=Amended, E=Emergency, N=New, R=Repealed, Rn=RenumberedEnergy, Minerals and Natural Resources DepartmentOil Conservation Division

19.15.1 NMAC A Oil and Gas - General Provisions and Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107Game and Fish, Department of

19.31.4 NMAC A / E Fisheries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111Labor, Department ofLabor and Industrial Division

11.1.2 NMAC Rn & A Public Works Minimum Wage Act Policy Manual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111Pharmacy, Board of

16.19.27 NMAC A Dishonorable Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113Public Employee Labor Relations Board

11.21.1 NMAC N Labor Unions/Labor Relations - General Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11411.21.2 NMAC N Representation Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11811.21.3 NMAC N Prohibited Practices Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12311.21.4 NMAC N Impasse Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12511.21.5 NMAC N Approval of Local Boards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12611.21.6 NMAC N Concurrent Pending Related Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

Public Regulation CommissionUtility Division

NMPSC Rule 640 R Purchased Gas Adjustment Clauses for Gas Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 12817.10.640 NMAC N Purchased Gas Adjustment Clauses for Gas Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

Secretary of State1.10.18 NMAC N Administrative Complaint Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

Transportation, Department ofAviation Division

18.11.7 NMAC Rn & A Requirements Governing the Salvage of Abandoned Aircraft . . . . . . . . . . . . . . . . . . . . . 13418.11.9 NMAC Rn & A Governing the Approval of Grants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

iii

Other Material Related to Administrative LawTransportation, Department ofAviation Division

NMAC Chapter Name Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

iv

The New Mexico RegisterPublished by

The Commission of Public RecordsAdministrative Law Division

1205 Camino Carlos ReySanta Fe, NM 87507

The New Mexico Register is available free at http://www.nmcpr.state.nm.us/nmregister

The New Mexico Register is published twice each month by the Commission of Public Records, Administrative Law Division. The cost ofan annual subscription is $270.00. Individual copies of any Register issue may be purchased for $12.00. Subscription inquiries should bedirected to: The Commission of Public Records, Administrative Law Division, 1205 Camino Carlos Rey, Santa Fe, NM 87507.

Telephone: (505) 476-7907; Fax (505) 476-7910; E-mail [email protected].

New Mexico Register / Volume XV, Number 5 / March 15, 2004 105

Notices of Rulemaking and Proposed RulesNEW MEXICO

DEPARTMENT OFAGRICULTURE

Notice of Hearing

The Lea County Cotton Boll WeevilControl District will hold a public hearingunder the Cotton Boll Weevil Control Act,76-6A-1 to 76-6A-16, NMSA 1978, to con-sider reducing the assessment rate collectedto support cotton boll weevil control withinthe Lea County district.

The hearing will be held in the Fair BoardMeeting Room, located at 101 SouthCommercial Street, Lovington, NewMexico, beginning at 1:30 p.m. on April 5,2004.

Written statements in support or opposition,signed by the submitting person, will beaccepted if received prior to 5:00 p.m.,April 5, 2004. Written statements,inquiries, or requests for copies of the ruleshould be directed to the Lea County CottonBoll Weevil Control Committee in care ofMr. John Norris at P.O. Box 2032,Lovington, New Mexico 88260.

NEW MEXICO CHILDREN,YOUTH AND FAMILIES

DEPARTMENTPROTECTIVE SERVICES DIVISION

NEW MEXICOCHILDREN, YOUTH AND FAMILIES

DEPARTMENT

PROTECTIVE SERVICES DIVISION

NOTICE OF PUBLIC HEARING

The Protective Services Division (PSD)will hold a public hearing in Santa Fe onMonday, March 15, 2004 from 1:00 p.m to2:00 p.m. in the Public EmployeesRetirement Association (P.E.R.A.)Building, 1120 Paseo de Peralta, 2nd floorconference room 229, to take commentsregarding proposed revisions to the follow-ing PSD policies: Intake, Investigations.

The PERA building is accessible to peoplewith disabilities. Written comments areprovided the same weight as commentsreceived during the public hearing.Documents are available in different for-mats to accommodate a particular disability.Anyone seeking such assistance must pro-vide two weeks notice to receive any writ-ten material in an alternative format by call-ing 505-827-8445. If assistance is requiredto attend the hearing, please call 505-827-8400 to arrange accommodation.

The proposed policy revisions may bereviewed at any Protective ServicesDivision county office. County office loca-tions may be determined by calling 505-827-8400 for location information. The pro-posed policy revisions may also bereviewed between 8:00 a.m. - 5:00 p.m.(MST) at the PSD Director’s Office, Room254, In the P.E.R.A. building in Santa Fe,NM. Copies of the proposed policies maybe obtained by contacting Mark Ruttkay,Manager, CYFD-PSD, P.O. Drawer 5160,Santa Fe, NM 87502-5160, or by calling505-827-8445. Copies can also be request-ed through the use of the New Mexico relaysystem by calling 505-827-7586.

Board of Nursing will convene a RulesHearing to amend:

16.12.1 NMAC General Provisions16.12.2 NMAC Nurse Licensure16.12.3 NMAC Nursing EducationPrograms16.12.7 NMAC Trial Program forMedication Aides to Serve Persons inLicensed Nursing Facilities16.12.8 NMAC Trial Program forMedication Aides to Administer Medicationin Public Schools

These Hearings will be held at the Board ofNursing Conference Room, 4206 LouisianaNE, Suite A, Albuquerque NM 87109, onFriday, April 16, 2004 at 9:00 a.m.

Any person wishing to present testimony atthe Hearings is requested to submit, to theBoard of Nursing Office, a written state-ment of intent (10 copies) to be received nolater than April 2, 2004

The Statement shall provide:

Name of Witness:Who Witness represents:Brief statement of subject matter of testimo-ny; & anticipated length of presentation.

Notice: Any person presenting testimony,who is representing a client, employer orgroup, must be registered as a lobbyistthrough the Secretary of State’s Office(505) 827-3600 or do so within 10 days ofthe Public Hearings.

Persons requiring special accommodationsat the hearings are asked to call the Boardoffice (841-8340) no later than March 16,2004 so that arrangements can be made.Hearing impaired persons call TDD 1-800-659-8331.

Drafts of proposed changes may be down-loaded from our website:www.state.nm.us/nursing or requestedthrough the Board of Nursing office.

NEW MEXICO DEPARTMENT OF

AGRICULTURE

Notice of Hearing

The Central Lea County Cotton Boll WeevilControl District will hold a public hearingunder the Cotton Boll Weevil Control Act,76-6A-1 to 76-6A-16, NMSA 1978, to con-sider reducing the assessment rate collectedto support cotton boll weevil control withinthe Central Lea County district.

The hearing will be held in the Fair BoardMeeting Room, located at 101 SouthCommercial Street, Lovington, NewMexico, beginning at 2:30 p.m. on April 5,2004.

Written statements in support or opposition,signed by the submitting person, will beaccepted if received prior to 5:00 p.m.,April 5, 2004. Written statements,inquiries, or requests for copies of the ruleshould be directed to the Central LeaCounty Cotton Boll Weevil ControlCommittee in care of Mr. Ace Hamm at P.O.Box 445, Plains, Texas 79355.

NEW MEXICOBOARD OF NURSING

NEW MEXICOBOARD OF NURSING

NOTICE OF PUBLIC HEARING

Notice is hereby given that the New Mexico

NEW MEXICO OILCONSERVATION

COMMISSION

NOTICE OF PUBLICATION

STATE OF NEW MEXICOENERGY, MINERALS AND NATUR-

AL RESOURCES DEPARTMENTOIL CONSERVATION DIVISION

SANTA FE, NEW MEXICO

The State of New Mexico, through its OilConservation Commission, hereby givesnotice that the Commission will conduct apublic hearing at 9:00 A.M. on April 8,2004 in Porter Hall at 1220 South St.Francis Drive, Santa Fe, New Mexico, con-cerning the amendment of 19.15.1 NMACto adopt a new section to be codified at19.15.1.21 NMAC. The new section, whichapplies to the Chihuahuan desert areas ofOtero and Sierra Counties, New Mexico,prohibits the use of pits and imposes addi-tional location, construction, operation andtesting requirements on injection wells andrelated facilities used to dispose of pro-duced water. If you are an individual with adisability who is in need of a reader, ampli-fier, qualified sign language interpreter, orany other form of auxiliary aid or service toattend or participate in the hearing, pleasecontact Division Administrator FloreneDavidson at (505) 476-3458 or through theNew Mexico Relay Network (1-800-659-1779) as soon as possible. Copies of thetext of the proposed amendment are avail-able from Ms. Davidson at 505 476-3458 orfrom the Division’s web site athttp://www.emnrd.state.nm.us/ocd/what-snew.htm

Given under the Seal of the State of NewMexico Oil Conservation Commission atSanta Fe, New Mexico on this 1st day ofMarch, 2004.

STATE OF NEW MEXICOOIL CONSERVATION DIVISION

Lori Wrotenbery, Director

New Mexico Register / Volume XV, Number 5 / March 15, 2004106

End of Notices and Proposed Rules Section

NEW MEXICO ENERGY,MINERALS AND NATURAL

RESOURCES DEPARTMENT

OIL CONSERVATION DIVISION

This is an amendment to 19.15.1 NMAC,Section 7, to be effective 3/31/04. The restof the rule has corrections made to unneces-sary capitalization with no substantivechanges.

19.15.1.7 DEFINITIONS:A. Definitions beginning

with the letter “A”.(1) Abate or abatement shall

mean the investigation, containment,removal or other mitigation of water pollu-tion.

(2) Abatement plan shall mean adescription of any operational, monitoring,contingency and closure requirements andconditions for the prevention, investigationand abatement of water pollution.

(3) Adjoining spacing units arethose existing or prospective spacing unitsin the same pool(s) that are touching at apoint or line the spacing unit that is the sub-ject of the application.

(4) Adjusted allowable shall meanthe allowable production a well or prorationunit receives after all adjustments are made.

(5) Allocated pool is one inwhich the total oil or natural gas productionis restricted and allocated to various wellstherein in accordance with proration sched-ules.

(6) Allowable production shallmean that number of barrels of oil or stan-dard cubic feet of natural gas authorized bythe division to be produced from an allocat-ed pool.

(7) Aquifer shall mean a geologi-cal formation, group of formations, or a partof a formation that is capable of yielding asignificant amount of water to a well orspring.

B. Definitions beginningwith the letter “B”.

(1) Back allowable shall mean theauthorization for production of any shortageor underproduction resulting from pipelineproration.

(2) Background shall mean, forpurposes of ground-water abatement plansonly, the amount of ground-water contami-nants naturally occurring from undisturbedgeologic sources or water contaminantsoccurring from a source other than theresponsible person's facility. This definitionshall not prevent the director from requiringabatement of commingled plumes of pollu-

tion, shall not prevent responsible personsfrom seeking contribution or other legal orequitable relief from other persons, andshall not preclude the director from exercis-ing enforcement authority under any appli-cable statute, regulation or common law.

(3) Barrel shall mean 42 UnitedStates gallons measured at 60 degreesfahrenheit and atmospheric pressure at thesea level.

(4) Barrel of oil shall mean 42United States gallons of oil, after deduc-tions for the full amount of basic sediment,water and other impurities present, ascer-tained by centrifugal or other recognizedand customary test.

(5) Below-grade tank shall meana vessel, excluding sumps and pressurizedpipeline drip traps, where any portion of thesidewalls of the tank is below the surface ofthe ground and not visible.

(6) Berm shall mean an embank-ment or ridge constructed for the purpose ofpreventing the movement of liquids, sludge,solids, or other materials.

[(5)](7) Bottom hole or subsur-face pressure shall mean the gauge pressurein pounds per square inch under conditionsexisting at or near the producing horizon.

[(6)](8) Bradenhead gas wellshall mean any well producing gas throughwellhead connections from a gas reservoirwhich has been successfully cased off froman underlying oil or gas reservoir.

C. Definitions beginningwith the letter “C”.

(1) Carbon dioxide gas shallmean noncombustible gas composedchiefly of carbon dioxide occurring natural-ly in underground rocks.

(2) Casinghead gas shall meanany gas or vapor or both gas and vaporindigenous to and produced from a poolclassified as an oil pool by the division. Thisalso includes gas-cap gas produced fromsuch an oil pool.

(3) Commission shall mean theoil conservation commission.

(4) Common purchaser for natu-ral gas shall mean any person now or here-after engaged in purchasing from one ormore producers gas produced from gaswells within each common source of supplyfrom which it purchases.

(5) Common purchaser for oilshall mean every person now engaged orhereafter engaging in the business of pur-chasing oil to be transported throughpipelines.

(6) Common source of supply.See pool.

(7) Condensate shall mean theliquid recovered at the surface that resultsfrom condensation due to reduced pressure

or temperature of petroleum hydrocarbonsexisting in a gaseous phase in the reservoir.

(8) Contiguous shall meanacreage joined by more than one commonpoint, that is, the common boundary mustbe at least one side of a governmental quar-ter-quarter section.

(9) Conventional completionshall mean a well completion in which theproduction string of casing has an outsidediameter in excess of 2.875 inches.

(10) Correlative rights shallmean the opportunity afforded, as far as it ispracticable to do so, to the owner of eachproperty in a pool to produce without wastehis just and equitable share of the oil or gas,or both, in the pool, being an amount, so faras can be practically determined, and so faras can be practicably obtained withoutwaste, substantially in the proportion thatthe quantity of recoverable oil or gas, orboth, under such property bears to the totalrecoverable oil or gas, or both, in the pool,and for such purpose to use his just andequitable share of the reservoir energy.

(11) Cubic feet of gas or stan-dard cubic foot of gas, for the purpose ofthese rules, shall mean that volume of gascontained in one cubic foot of space andcomputed at a base pressure of 10 ouncesper square inch above the average baromet-ric pressure of 14.4 pounds per square inch(15.025 psia), at a standard base tempera-ture of 60 degrees fahrenheit.

D. Definitions beginningwith the letter “D”.

(1) Deep pool shall mean a com-mon source of supply which is situated5000 feet or more below the surface.

(2) Depth bracket allowable shallmean the basic oil allowable assigned to apool and based on its depth, unit size, orspecial pool rules, which, when multipliedby the market demand percentage factor ineffect, will determine the top unit allowablefor the pool.

(3) Director shall mean the direc-tor of the oil conservation division of theNew Mexico energy, minerals and naturalresources department.

(4) Division shall mean the oilconservation division of the New Mexicoenergy, minerals and natural resourcesdepartment.

E. Definitions beginningwith the letter “E”.

(1) Exempted aquifer shall meanan aquifer that does not currently serve as asource of drinking water, and which cannotnow and will not in the foreseeable futureserve as a source of drinking water because:is hydrocarbon producing;

(a) it is hydrocarbon producing;(b) it is situated at a depth or loca-


Adopted Rules

tion which makes the recovery of water fordrinking water purposes economically ortechnologically impractical; or,

(c) it is so contaminated that itwould be economically or technologicallyimpractical to render that water fit forhuman consumption.

(2) Existing spacing unit is aspacing unit containing a producing well.

F. Definitions beginningwith the letter “F”.

(1) Facility shall mean any struc-ture, installation, operation, storage tank,transmission line, access road, motor vehi-cle, rolling stock, or activity of any kind,whether stationary or mobile.

(2) Field means the general areawhich is underlaid or appears to be under-laid by at least one pool; and field alsoincludes the underground reservoir or reser-voirs containing such crude petroleum oil ornatural gas, or both. The words field andpool mean the same thing when only oneunderground reservoir is involved; howev-er, field unlike pool may relate to two ormore pools.

(3) Fresh water (to be protected)includes the water in lakes and playas, thesurface waters of all streams regardless ofthe quality of the water within any givenreach, and all underground waters contain-ing 10,000 milligrams per liter (mg/1) orless of total dissolved solids (TDS) exceptfor which, after notice and hearing, it isfound there is no present or reasonably fore-seeable beneficial use which would beimpaired by contamination of such waters.The water in lakes and playas shall be pro-tected from contamination even though itmay contain more than 10,000 mg/1 of TDSunless it can be shown that hydrologicallyconnected fresh ground water will not beadversely affected.

G. Definitions beginningwith the letter “G”.

(1) Gas lift shall mean anymethod of lifting liquid to the surface byinjecting gas into a well from which oil pro-duction is obtained.

(2) Gas-oil ratio shall mean theratio of the casinghead gas produced instandard cubic feet to the number of barrelsof oil concurrently produced during anystated period.

(3) Gas-oil ratio adjustment shallmean the reduction in allowable of a highgas oil ratio unit to conform with the pro-duction permitted by the limiting gas-oilratio for the particular pool during a partic-ular proration period.

(4) Gas transportation facilityshall mean a pipeline in operation servinggas wells for the transportation of naturalgas, or some other device or equipment inlike operation whereby natural gas pro-duced from gas wells connected therewith

can be transported or used for consumption. (5) Gas well shall mean a well

producing gas or natural gas from a gaspool, or a well with a gas-oil ratio in excessof 100,000 cubic feet of gas per barrel of oilproducing from an oil pool.

(6) Ground water shall meaninterstitial water which occurs in saturatedearth material and which is capable of enter-ing a well in sufficient amounts to be uti-lized as a water supply.

H. Definitions beginningwith the letter “H”.

(1) Hazard to public health existswhen water which is used or is reasonablyexpected to be used in the future as a humandrinking water supply exceeds at the timeand place of such use, one or more of thenumerical standards of [20 NMAC6.2.3103.A] Subsection A of 20.6.2.3103NMAC, or the naturally occurring concen-trations, whichever is higher, or if any toxicpollutant as defined at [20 NMAC 6.2.1101]Subsection VV of 20.6.2.7 NMAC affectinghuman health is present in the water. Indetermining whether a release would causea hazard to public health to exist, the direc-tor shall investigate and consider the purifi-cation and dilution reasonably expected tooccur from the time and place of release tothe time and place of withdrawal for use ashuman drinking water.

(2) High gas-oil ratio prorationunit shall mean a unit with at least one pro-ducing oil well with a gas-oil ratio in excessof the limiting gas-oil ratio for the pool inwhich the unit is located.

I. Definitions beginningwith the letter “I”.

(1) Illegal gas shall mean naturalgas produced from a gas well in excess ofthe allowable determined by the division.

(2) Illegal oil shall mean crudepetroleum oil produced in excess of theallowable as fixed by the division.

(3) Illegal product shall mean anyproduct of illegal gas or illegal oil.

(4) Inactive well shall be a wellwhich is not being utilized for beneficialpurposes such as production, injection ormonitoring and which is not being drilled,completed, repaired or worked over.

(5) Injection or input well shallmean any well used for the injection of air,gas, water, or other fluids into any under-ground stratum.

J. Reserved.K. Reserved.L. Definitions beginning

with the letter “L”.(1) Limiting gas-oil ratio shall

mean the gas-oil ratio assigned by the divi-sion to a particular oil pool to limit the vol-umes of casinghead gas which may be pro-duced from the various oil producing unitswithin that particular pool.

(2) Load oil is any oil or liquidhydrocarbon which has been used in reme-dial operation in any oil or gas well.

(3) Log or well log shall mean asystematic detailed and correct record offormations encountered in the drilling of awell.

M. Definitions beginningwith the letter “M”.

(1) Marginal unit shall mean aproration unit which is incapable of produc-ing top unit allowable for the pool in whichit is located.

(2) Market demand percentagefactor shall mean that percentage factor of100 percent or less as determined by thedivision at an oil allowable hearing, which,when multiplied by the depth bracket allow-able applicable to each pool, will determinethe top unit allowable for that pool.

(3) Mineral estate is the mostcomplete ownership of oil and gas recog-nized in law and includes all the mineralinterests and all the royalty interests.

(4) Mineral interest owners areowners of an interest in the executive rights,which are the rights to explore and develop,including oil and gas lessees (i.e., “workinginterest owners”) and mineral interest own-ers who have not signed an oil and gaslease.

(5) Minimum allowable shallmean the minimum amount of productionfrom an oil or gas well which may be advis-able from time to time to the end that pro-duction will repay reasonable lifting costand thus prevent premature abandonmentand resulting waste.

(6) Multiple completion (combi-nation) shall mean a multiple completion inwhich two or more common sources of sup-ply are produced through a combination oftwo or more conventional diameter casingstrings cemented in a common well-bore, ora combination of small diameter and con-ventional diameter casing strings cementedin a common well-bore, the conventionaldiameter strings of which might or mightnot be a multiple completion (convention-al).

(7) Multiple completion (conven-tional) shall mean a completion in whichtwo or more common sources of supply areproduced through one or more strings oftubing installed within a single casingstring, with the production from each com-mon source of supply completely segregat-ed by means of packers.

(8) Multiple completion (tubing-less) shall mean completion in which two ormore common sources of supply are pro-duced through an equal number of casingstrings cemented in a common well-bore,each such string of casing having an outsidediameter of 2.875 inches or less, with theproduction from each common source of


supply completely segregated by use ofcement.

N. Definitions beginningwith the letter “N”.

(1) Natural gas or gas shall meanany combustible vapor composed chiefly ofhydrocarbons occurring naturally in a poolclassified by the division as a gas pool.

(2) Non-aqueous phase liquidshall mean an interstitial body of liquid oil,petroleum product, petrochemical, or organ-ic solvent, including an emulsion containingsuch material.

(3) Non-marginal unit shall meana proration unit which is capable of produc-ing top unit allowable for the pool in whichit is located, and to which has been assigneda top unit allowable.

O. Definitions beginningwith the letter “O”.

[(4)](1) Official gas-oil ratio testshall mean the periodic gas-oil ratio testmade by order of the division by suchmethod and means and in such manner asprescribed by the division.

[(5)](2) Oil, crude oil, or crudepetroleum oil shall mean any petroleumhydrocarbon produced from a well in theliquid phase and which existed in a liquidphase in the reservoir.

[(6)](3) Oil field wastes shallmean those wastes produced in conjunctionwith the exploration, production, refining,processing and transportation of crude oiland/or natural gas and commonly collectedat field storage, processing, disposal, orservice facilities, and waste collected at gasprocessing plants, refineries and other pro-cessing or transportation facilities.

[(7)](4) Oil well shall mean anywell capable of producing oil and which isnot a gas well as defined herein.

[(8)](5) Operator shall mean anyperson [or persons] who, duly authorized, isin charge of the development of a lease orthe operation of a producing property, orwho is in charge of the operation or man-agement of a facility.

[(9)](6) Overage or overproduc-tion shall mean the amount of oil or theamount of natural gas produced during aproration period in excess of the amountauthorized on the proration schedule.

[(10)](7) Owner means the personwho has the right to drill into and to producefrom any pool, and to appropriate the pro-duction either for himself or for himself andanother.

P. Definitions beginningwith the letter “P”.

(1) Penalized unit shall mean aproration unit to which, because of anexcessive gas-oil ratio, an allowable hasbeen assigned which is less than top unitallowable for the pool in which it is locatedand also less than the ability of the well(s)

on the unit to produce.(2) Person shall mean an individ-

ual or any other entity including partner-ships, corporation, associations, responsiblebusiness or association agents or officers,the state or a political subdivision of thestate or any agency, department or instru-mentality of the United States and any of itsofficers, agents or employees.

(3) Pit shall mean any surface orsub-surface impoundment, man-made ornatural depression, or diked area on the sur-face. Excluded from this definition areberms constructed around tanks or otherfacilities solely for the purpose of safety andsecondary containment.

(4) Playa lake shall mean a levelor nearly level area that occupies the lowestpart of a completely closed basin and that iscovered with water at irregular intervals,forming a temporary lake.

[(3)](5) Pool means any under-ground reservoir containing a commonaccumulation of crude petroleum oil or nat-ural gas or both. Each zone of a generalstructure, which zone is completely separat-ed from any other zone in the structure, iscovered by the word "pool" as used herein."Pool" is synonymous with "commonsource of supply" and with "common reser-voir."

[(4)](6) Potential shall mean theproperly determined capacity of a well toproduce oil, or gas, or both, under condi-tions prescribed by the division.

[(5)](7) Pressure maintenanceshall mean the injection of gas or other fluidinto a reservoir, either to maintain the exist-ing pressure in such reservoir or to retardthe natural decline in the reservoir pressure.

[(6)](8) Produced water shallmean those waters produced in conjunctionwith the production of crude oil and/or nat-ural gas and commonly collected at fieldstorage, processing, or disposal facilitiesincluding but not limited to: lease tanks,commingled tank batteries, burn pits,LACT units, and community or lease saltwater disposal systems and which may becollected at gas processing plants, pipelinedrips and other processing or transportationfacilities.

[(7)](9) Producer shall mean theowner of a well or wells capable of produc-ing oil or natural gas or both in payingquantities.

[(8)](10) Product means any com-modity or thing made or manufactured fromcrude petroleum oil or natural gas, and allderivatives of crude petroleum oil or naturalgas, including refined crude oil, crude tops,topped crude, processed crude petroleum,residue from crude petroleum, crackingstock, uncracked fuel oil, treated crude oil,fuel oil, residuum, gas oil, naphtha, distil-late, gasoline, kerosene, benzene, wash oil,

lubricating oil, and blends or mixtures ofcrude petroleum oil or natural gas or anyderivative thereof.

[(9)](11) Proration day shall con-sist of 24 consecutive hours which shallbegin at 7 a.m. and end at 7 a.m. on the fol-lowing day. The language in this para-graph is different than that which was filed02-28-97 (effective

[(10)](12) Proration month shallmean the calendar month which shall beginat 7 a.m. on the first day of such month andend at 7 a.m. on the first day of the next suc-ceeding month.

[(11)](13) Proration period shallmean for oil the proration month and for gasthe twelve-month period which shall beginat 7 a.m. on January 1 of each year and endat 7 a.m. on January 1 of the succeedingyear or other period designated by generalor special order of the division.

[(12)](14) Proration scheduleshall mean the order of the division author-izing the production, purchase, and trans-portation of oil, casinghead gas, and naturalgas from the various units of oil or of natu-ral gas in allocated pools.

[(13)](15) Proration unit is thearea in a pool that can be effectively andefficiently drained by one well as deter-mined by the division or commission (SeeNMSA 1978 Section 70-2-17.B) as well asthe area assigned to an individual well forthe purposes of allocating allowable pro-duction pursuant to a prorationing order forthe pool. A proration unit will be the samesize and shape as a spacing unit. All prora-tion units are spacing units but not all spac-ing units are proration units.

[(14)](16) Prospective spacingunit is a hypothetical spacing unit that doesnot yet have a producing well.

Q. Reserved.R. Definitions beginning

with the letter “R”.(1) Recomplete shall mean the

subsequent completion of a well in a differ-ent pool from the pool in which it was orig-inally completed.

(2) Regulated naturally occurringradioactive material (regulated NORM)shall mean naturally occurring radioactivematerial (NORM) contained in any oil-fieldsoils, equipment, sludges or any other mate-rials related to oil-field operations orprocesses exceeding the radiation levelsspecified in [20 NMAC 3.1., Section 1403]20.3.14.1403 NMAC.

(3) Release shall mean all breaks,leaks, spills, releases, fires or blowoutsinvolving crude oil, produced water, con-densate, drilling fluids, completion fluids orother chemical or contaminant or mixturethereof, including oil field wastes and natu-ral gases to the environment.

(4) Remediation plan shall mean


a written description of a program toaddress unauthorized releases. The planmay include appropriate information,including assessment data, health riskdemonstrations, and corrective action(s).The plan may also include an alternativeproposing no action beyond the submittal ofa spill report.

(5) Responsible person shallmean the owner or operator who must com-plete division approved corrective actionfor pollution from releases.

(6) Royalty interest owners areowners of an interest in the non-executiverights including lessors, royalty interestowners and overriding royalty interest own-ers. Royalty interests are non-cost bearing.

S. Definitions beginningwith the letter “S”.

(1) Secondary recovery shallmean a method of recovering quantities ofoil or gas from a reservoir which quantitieswould not be recoverable by ordinary pri-mary depletion methods.

(2) Shallow pool shall mean apool which has a depth range from 0 to5000 feet.

(3) Shortage or underproductionshall mean the amount of oil or the amountof natural gas during a proration period bywhich a given proration unit failed to pro-duce an amount equal to that authorized inthe proration schedule.

(4) Shut-in shall be the status of aproduction well or an injection well whichis temporarily closed down, whether byclosing a valve or disconnection or otherphysical means.

(5) Shut-in pressure shall meanthe gauge pressure noted at the wellheadwhen the well is completely shut in, not tobe confused with bottom hole pressure.

(6) Significant modification of anabatement plan shall mean a change in theabatement technology used excludingdesign and operational parameters, or relo-cation of 25% or more of the compliancesampling stations, for any single medium,as designated pursuant to Subsection E,Paragraph (4), Subparagraph (b),Subsubparagraph (iv) of Section 19.15.5.19NMAC.

(7) Spacing unit is the area allo-cated to a well under a well spacing order orrule. Under the Oil & Gas Act, NMSA1978, Section 70-2-12.B(10), the commis-sion has the power to fix spacing units with-out first creating proration units. See Rutter& Wilbanks Corp. v. Oil ConservationComm’n, 87 NM 286 (1975). This is thearea designated on division form C-102.

(8) Subsurface water shall meanground water and water in the vadose zonethat may become ground water or surfacewater in the reasonably foreseeable futureor may be utilized by vegetation.

T. Definitions beginningwith the letter “T”.

(1) Tank bottoms shall mean thataccumulation of hydrocarbon material andother substances which settles naturallybelow crude oil in tanks and receptacles thatare used in handling and storing of crudeoil, and which accumulation contains inexcess of two (2%) percent of basic sedi-ment and water; provided, however, thatwith respect to lease production and forlease storage tanks, a tank bottom shall belimited to that volume of the tank in whichit is contained that lies below the bottom ofthe pipeline outlet thereto.

(2) Temporary abandonment shallbe the status of a well which is inactive andhas been approved for temporary abandon-ment in accordance with the provisions ofthese rules.

(3) Top unit allowable for gasshall mean the maximum number of cubicfeet of natural gas, for the proration period,allocated to a gas producing unit in an allo-cated gas pool.

(4) Top unit allowable for oil shallmean the maximum number of barrels foroil daily for each calendar month allocatedon a proration unit basis in a pool to non-marginal units. The top unit allowable for apool shall be determined by multiplying theapplicable depth bracket allowable by themarket demand percentage factor in effect.

(5) Treating plant shall mean anyplant constructed for the purpose of whollyor partially or being used wholly or partial-ly for reclaiming, treating, processing, or inany manner making tank bottoms or anyother waste oil marketable.

(6) Tubingless completion shallmean a well completion in which the pro-duction string of casing has an outsidediameter of 2.875 inches or less.

U. Definitions beginningwith the letter “U”.

(1) Underground source of drink-ing water shall mean an aquifer which sup-plies water for human consumption orwhich contains ground water having a totaldissolved solids concentration of 10,000mg/1 or less and which is not an exemptedaquifer.

(2) Unit of proration for gas shallconsist of such multiples of 40 acres as maybe prescribed by special pool rules issuedby the division.

(3) Unit of proration for oil shallconsist of one 40-acre tract or such multi-ples of 40-acre tracts as may be prescribedby special pool rules issued by the division.

(4) Unorthodox well locationshall mean a location which does not con-form to the spacing requirements estab-lished by the rules and regulations of thedivision.

V. Definitions beginning

with the letter “V”. Vadose zone shall meanunsaturated earth material below the landsurface and above ground water, or inbetween bodies of ground water.

W. Definitions beginningwith the letter “W”.

(1) Waste, in addition to its ordi-nary meaning, shall include:

(a) underground waste as thosewords are generally understood in the oiland gas business, and in any event toembrace the inefficient, excessive, orimproper use or dissipation of the reservoirenergy, including gas energy and waterdrive, of any pool, and the locating, spacing,drilling, equipping, operating, or producing,of any well or wells in a manner to reduceor tend to reduce the total quantity of crudepetroleum oil or natural gas ultimatelyrecovered from any pool, and the use ofinefficient underground storage of naturalgas;

(b) surface waste as those wordsare generally understood in the oil and gasbusiness, and in any event to embrace theunnecessary or excessive surface loss ordestruction without beneficial use, howevercaused, of natural gas of any type or in anyform, or crude petroleum oil, or any productthereof, but including the loss or destruc-tion, without beneficial use, resulting fromevaporation, seepage, leakage, or fire, espe-cially such loss or destruction incident to orresulting from the manner of spacing,equipping, operating or producing a well orwells, or incident to or resulting from theuse of inefficient storage or from the pro-duction of crude petroleum oil or naturalgas, in excess of the reasonable marketdemand;

(c) the production of crude petro-leum oil in this state in excess of the rea-sonable market demand for such crudepetroleum oil; such excess production caus-es or results in waste which is prohibited bythe Oil and Gas Act; the words "reasonablemarket demand" as used herein with respectto crude petroleum oil, shall be construed tomean the demand for such crude petroleumoil, for reasonable current requirements forcurrent consumption and use within or out-side of the state, together with the demandof such amounts as are reasonably neces-sary for building up or maintaining reason-able storage reserves of crude petroleum oilor the products thereof, or both such crudepetroleum oil and products;

(d) the non-ratable purchase ortaking of crude petroleum oil in this state;such non-ratable taking and purchasingcauses or results in waste, as defined inSubparagraphs (a), (b), and (c) of this defi-nition and causes waste by violating Section70-2-16 of the Oil and Gas Act;

(e) the production in this state ofnatural gas from any gas well or wells, or


from any gas pool, in excess of the reason-able market demand from such source fornatural gas of the type produced or in excessof the capacity of gas transportation facili-ties for such type of natural gas; the words"reasonable market demand," as used here-in with respect to natural gas, shall be con-strued to mean the demand for natural gasfor reasonable current requirements, forcurrent consumption and for use within oroutside the state, together with the demandfor such amounts as are necessary for build-ing up or maintaining reasonable storagereserves of natural gas or products thereof,or both such natural gas and products.

[(1)](2) Water shall mean allwater including water situated wholly orpartly within or bordering upon the state,whether surface or subsurface, public or pri-vate, except private waters that do not com-bine with other surface or subsurface water.

[(2)](3) Water contaminant shallmean any substance that could alter ifreleased or spilled the physical, chemical,biological or radiological qualities of water."Water contaminant" does not mean source,special nuclear or by-product material asdefined by the Atomic Energy Act of 1954.

[(3)](4) Watercourse shall meanany lake bed, or gully, draw, stream bed,wash, arroyo, or natural or human-madechannel through which water flows or hasflowed.

[(4)](5) Water pollution shallmean introducing or permitting the intro-duction into water, either directly or indi-rectly, of one or more water contaminants insuch quantity and of such duration as maywith reasonable probability injure humanhealth, animal or plant life or property, or tounreasonably interfere with the public wel-fare or the use of property.

[(5)](6) Well blowout shall meana loss of control over and subsequent erup-tion of any drilling or workover well or therupture of the casing, casinghead, or well-head or any oil or gas well or injection ordisposal well, whether active or inactive,accompanied by the sudden emission of flu-ids, gaseous or liquids, from the well.

(7) Wellhead protection area shallmean the area within 200 horizontal feet ofany private, domestic fresh water well orspring used by less than five households fordomestic or stock watering purposes orwithin 1000 horizontal feet of any otherfresh water well or spring. Wellhead pro-tection areas shall not include areas aroundwater wells drilled after an existing oil ornatural gas waste storage, treatment, or dis-posal site was established.

(8) Wetlands shall mean thoseareas that are inundated or saturated by sur-face or groundwater at a frequency andduration sufficient to support, and undernormal circumstances do support, a preva-

lence of vegetation typically adapted for lifein saturated soil conditions in New Mexico.Constructed wetlands used for wastewatertreatment purposes are not included in thisdefinition.

[(6)](9) Working interest ownersare the owners of the operating interestunder an oil and gas lease who have theexclusive right to exploit the oil & gas min-erals. Working interests are cost bearing.[1-5-50…2-1-96; A, 7-15-96; Rn, 19NMAC 15.A.7.1 through 7.84, 3-15-97; A,7-15-99; 19.15.1.7 NMAC - Rn, 19 NMAC15.A.7, 5-15-001; A, 3/31/04]


NEW MEXICO DEPARTMENT OF GAME

AND FISH

This is an emergency order to 19.31.4NMAC, Section 19.

19.31.4.19 E M E R G E N C YORDER FOR FISH SALVAGE: Underauthority of 19.31.10.18 promulgated by thestate game commission on September 15,1994, I, BRUCE C. THOMPSON, directorof the department of game and fish, herebydeclare that an emergency exists inConservancy Park Lake in Bernalillo coun-ty to the extent that fish life will bedestroyed by drying out of these lakes dueto required water releases. Bag limits onsport fish will be unlimited. This relaxationwill go into effect at 12:01 a.m., February27, 2004, and will remain in effect through11:59 p.m., February 29, 2004.

NEW MEXICODEPARTMENT OF LABOR

LABOR AND INDUSTRIALDIVISION

This is an amendment to 11.1.2 NMAC,Section 11, effective 3/15/2004. This rulewas also renumbered and reformatted from11 NMAC 1.1 to comply with currentNMAC requirements.

11.1.2.11 PROCEDURE TO BEEMPLOYED IN THE PREDETERMI-NATION OF WAGE RATES ON PUB-LIC WORKS: Authority: Subsections Ato G of 11.1.2.11 NMAC adopted pursuantto Section 13-4-11, New Mexico StatutesAnnotated, 1978 Compilation.

A. Purpose and scope: Theregulations contained in this part set forththe procedure for the determination of pre-vailing wage rates, on a statewide basis,pursuant to Section 13-4-11, NMSA 1978.

B. Computation of pre-vailing wage rate and definitions: The pre-vailing wage rate for laborers and mechan-ics employed on projects within the street,

highway, utility and light engineering con-struction classification (type “A”) and forlaborers and mechanics employed on build-ing projects and heavy engineering projectswithin the general building (type “B”) andheavy engineering construction classifica-tion (type “H”) and for laborers andmechanics employed on projects deter-mined within the residential building classi-fication (type “C”) shall be computed on astatewide basis without regard to zone,incentive, or subsistence pay. However,while zone, incentive, or subsistence payshall not be considered in determining thestatewide base wage rate, it shall be com-puted and applied on a locality basis in type“B” and type “C” construction in accor-dance with the same formula utilized todetermine the prevailing statewide basewage rate. For the purpose of zone, incen-tive or subsistence pay determination,“locality basis” shall mean location, munic-ipality or site from which the zone, incen-tive or subsistence pay data emanated forthe survey. Working foreman hours shall beincluded in the determination of the prevail-ing wage for that particular craft by survey-ing hours worked with the majority of themechanics in that classification paid by thatcontractor/subcontractor. Where workingforemen are the only mechanics on thatproject, those hours will be surveyed at thepredetermined rated issued on that project.Working foremen in groupings for truckdrivers, operators, and laborers shall not beincluded. For each classification the direc-tor shall employ the following methodolo-gy:

(1) The base wage rate paid ineach work classification shall be grouped inten cent ($ .10) numerically consecutiveintervals, beginning with $.01 and including$.105, from which a weighted average ofeach group shall be taken, (see the follow-ing example).

Example:

Rates paid as follows would be grouped inthis manner:

256 man hours at $10.01 = $2,562.56340 man hours at $10.05 = $3,417.00204 man hours at $10.10 = $2,060.40800 man hours (for group) into $8,039.96 = $10.05 base

wage for group2,011 man hours at $10.11 = $20,331.21722 man hours at $10.16 = $7,335.521,067 man hours at $10.20 = $10,883.40

3,800 man hours (for group) into $38,550.13 = $10.14 base

wage for groupand so forth

(2) The prevailing wage rate for agiven classification on contract work of asimilar nature in the state shall be:

(a) The base wage rate (as deter-mined in Paragraph (1) of Subsection B of11.1.2.11 NMAC above) paid for the major-ity of man hours worked in said classifica-tion, or

(b) In the event that Subparagraph(a) of Paragraph (2) of Subsection B of11.1.2.11 NMAC is not applicable, then thebase wage rate (as determined in Paragraph(1) of Subsection B of 11.1.2.11 NMACabove) paid for the greater number of manhours, provided that such greater numberconstitutes at least thirty per cent (30%) ofthe man hours worked in the classification.

(c) In the event that neitherSubparagraphs (a) nor (b) of Paragraph (2)of Subsection B of 11.1.2.11 NMAC aboveis applicable the weighted average in theclassification shall be the prevailing rate.

(d) In the event that the prevailingwage rate as determined by the applicationof Subparagraphs (a) or (b) of Paragraph (2)of Subsection B of 11.1.2.11 NMAC above(whichever is applicable) would result inlowering the prevailing wage as determinedfrom the last survey immediately precedingby more than 3%, the director shall computethe rate under Rule (c) above, and unlessapplication of Rule (c) above would havethe effect of further lowering the rate, theprevailing rate determined shall be the ratecomputed by application of Rule (c) aboveor the rate as was determined by the last sur-vey preceding, whichever is lower.

(e) Fringe benefits as part ofwages, as defined in Section 13-4-12 (A)(2), NMSA, 1978, shall be determined byapplying Subparagraph (d) of Paragraph (2)of Subsection B of 11.1.2.11 NMAC aboveto the total dollar amount of fringe benefitspaid by each contractor multiplied by thenumber of hours for which the total waspaid. The fringe benefit figure so deter-mined shall be expressed by a single dollarfigure representing the total dollar amountof fringe benefits prevailing as a lump sum,rather than by separate dollar amounts rep-resenting each individual category of fringebenefits found to be prevailing.

(3) The term “base wage rate”contemplated in this section, shall mean thestraight time hours and hourly rate paideach laborer or mechanic.

(4) The term “weighted average”shall mean the sum of the products of thegrouped man hours times group base wagerate divided by the total number of manhours worked in the classification.

(5) The term “similar nature”

shall mean contract work performed onprojects as defined in the severalSubparagraphs of Subsection B of 11.1.2.9NMAC of these regulations.

(6) The term “director” shallmean the public official charged by lawwith the administration of the Public WorksMinimum Wage Act.

(7) The term “state” shall meanthe state of New Mexico.

C. Obtaining and compil-ing wage rate information and preparationof wage rate surveys: For the purpose ofmaking wage determinations, the directorshall conduct a continuing program for theobtaining and compiling of wage rate infor-mation, as required by Section 13-4-11,NMSA 1978, employing the procedures setforth in this Section.

(1) Separate surveys shall be pre-pared for the street, highway, utility andlight engineering classification (type “A”),and for the general building (type “B”) andheavy engineering construction classifica-tion (type “H”) and for the residential con-struction classification (type “C”), andwage determination shall be issued on thebasis thereof.

(2) The annual survey period shallbe the month of June of each year. Wagerate decisions issued as a result of this sur-vey and wage determination shall remaineffective until superseded beginning fifteen(15) days following the making of the wagedetermination pursuant to Subsection D of11.1.2.11 NMAC of these rules and regula-tions. Each annual survey and wage deter-mination shall be and remain valid and thedirector shall issue to requesting agencieswage decisions based thereon until suchsurvey and wage determination is supersed-ed by an effective new survey and wagedetermination. A wage determination basedupon a new survey shall not go into effectpending a final disposition of any appeal tothe labor and industrial commission, sittingas the appeals board. If no appeal is timelyfiled pursuant to properly preserved objec-tion as provided in Subsection D of11.1.2.11 NMAC, infra, such survey anddetermination shall become effective on theapplicable date specified in Paragraph (2) ofSubsection C of 11.1.2.11 NMAC, above.

(3) Surveys and wage rate deter-mination shall be on a statewide basis.

(4) Wage rate surveys prepared bythe director for the street, highway, utilityand light engineering construction classifi-cation (type “A”), and for the general build-ing (type “B”) and for the residential build-ing construction classification (type “C”),and for heavy engineering constructionclassification (type “H”) shall be compiledfrom certified weekly payrolls and verifiedwage information submitted and preparedin accordance with Subsection C of

11.1.2.10 NMAC of these rules and regula-tions and shall be utilized by the director inmaking wage rate determinations; provided,the director shall encourage the voluntarysubmission of wage data by contractors,contractors’ associations, labor organiza-tions and public officers. He shall give dueregard to such information, voluntarily sub-mitted, together with information obtainedfrom field surveys, conducted in accordancewith Section 13-4-11, NMSA 1978, in eval-uating the validity and accuracy of certifiedpayrolls and verified wage informationincorporated in the director’s survey.

(a) Certified weekly payrolls andverified wage information: The directorshall compile his survey from the informa-tion contained in the certified payrolls andverified information submitted for the sur-vey period prepared in accordance withSubsection C of 11.1.2.10 NMAC of theserules and regulations. Not less than twenty-five (25) days prior to the time scheduledfor the hearing specified in Subsection D of11.1.2.11 NMAC infra, the director shallprepare a detailed statement of the informa-tion, if any, which he has excluded fromsaid certified payrolls or verified wageinformation in preparing his survey. Saidstatement, together with all certified pay-rolls and verified wage information, shall beavailable for inspection by any interestedparty in the offices of the director, subject tolimitations imposed by Subsection F of11.1.2.10 NMAC, supra. To the extent thedirector fails to object in said detailed state-ment, the information contained in said cer-tified payrolls or verified wage informationshall be incorporated by the director direct-ly into the survey for the period concernedand the director shall be barred from raisingany objection to said information in anysubsequent proceeding before the labor andindustrial commission, sitting as the appealsboard, or otherwise. The information con-tained in said certified payrolls or verifiedwage information shall be conclusive uponhim as to its validity, accuracy and com-pleteness. This provision shall not preventany interested party from objecting to infor-mation contained in such certified payrollsor verified wage information.

(b) Within the time limits speci-fied in Subparagraph (a) of Paragraph (4) ofSubsection C of 11.1.2.11 NMAC, supra,the director may object to the informationcontained in certified weekly payrolls orverified wage information timely submittedto him and refuse to incorporate it in his sur-vey only on the ground that informationcontained therein does not accurately statethe wages being paid mechanics or laborersemployed under said contract or is not inaccordance with the wage rates contained inthe contract specifications, if any.

(c) The director may omit from


his survey information contained in certi-fied payrolls or in properly prepared andsubmitted verified wage information only tothe extent he has a specific objection as enu-merated in Subparagraph (a) of Paragraph(4) of Subsection C of 11.1.2.11 NMAC,supra, thereto.

D. Review of surveyresults after notice to all interested parties:Survey results shall be reviewed at a meet-ing with all known interested parties. Thetime, date and place of said meeting will beestablished at the discretion of the director.Notice of the subject matter, the time, dateand place of the meeting, the manner inwhich interested persons may present theirviews, and the method by which copies ofthe survey results (including lists of con-tractors and projects covered by the survey)and copies of the director’s statement ofinformation excluded from the survey pur-suant to Paragraph (4) of Subsection C of11.1.2.11 NMAC, supra, may be obtained,shall be published once at least thirty (30)days prior to the meeting date in a newspa-per of general circulation. Such notice shallalso be mailed by the director to all knowninterested parties at least thirty (30) daysprior to the meeting date along with a copyof the survey results (including lists of con-tractors and projects covered by the survey)and a copy of the labor commissioner’sstatement of information excluded from thesurvey pursuant to Paragraph (4) ofSubsection C of 11.1.2.11 NMAC, supra.Any objections to the survey results may becommunicated to the director by an interest-ed party either orally at such meeting or inwriting delivered to the director on orbefore the date of such meeting, and thedirector shall make a record of any and allobjections and of his rulings thereon prior tomaking his determination of prevailingwage rates. The director shall notify theobjecting party and all other parties in atten-dance at the meeting of his ruling(s) onobjections simultaneously with the makingof his wage determination. Objections tothe survey results not made by any interest-ed party receiving proper and timely noticeof such meeting shall be deemed waivedand shall not constitute a ground for appealunless the basis for such objection shall nothave been reasonably discoverable byexamination of the certified payrolls andverified wage information upon which thesurvey results are based, which data and allwork papers and other material relatingthereto shall be available at the office of thedirector, not less than thirty (30) days priorto such meeting, for inspection and copyingby any interested party. For purposes of thisSubsection D of 11.1.2.11 NMAC the term“all interested parties” shall include withoutlimitation the state highway department,incorporated cities and Class A and B coun-

ties and their respective school boards orauthorities, state institutions of higher learn-ing and other contracting agencies whichwith regular frequency undertake publicworks projects subject to the act, and allother persons (including labor organiza-tions, contractors and contractor associa-tions) who make written request to thedirector to receive notice as provided in thissection.

E. When the director hasdetermined it is appropriate to do so, as analternative and in lieu of the statewide sur-vey provisions in the section the directorshall establish the prevailing wage by refer-ence to bona fide collective bargainingagreements (CBA’s). The director shalldetermine such rates pursuant to this sub-section by the following methodology.

(1) The director shall collect andverify all available CBA’s for buildingtrades in New Mexico.

(2) The director shall use the ratesagreed to in the CBA’s to establish the pre-vailing wage rates for crafts and types ofconstruction as available. If the CBA’sreflect different rates for subparts of thestate, the director shall likewise establishsuch rates by zone consistent with their def-initions in the CBA’s.

(3) If there is no statewide CBAfor a particular trade, the director shall referto wage rates the United States departmentof labor has established pursuant to theDavis-Bacon Act for New Mexico for thattrade.

(4) If there is a CBA for a trade,but that CBA does not establish rates for thesame or similar types of construction thatthese regulations identify as A, B, C, and H,the director shall use that rate to establishthe B rate. The director shall thereafteradjust this B rate to the other types of con-struction by the percentage equal to the per-centage difference between the building cat-egories in the rates the United States depart-ment of labor has established for all build-ing categories in the same trade.

(5) If there is neither a CBA norfederal Davis-Bacon rate for a particulartrade, the director shall determine that rateby reference to the rate a CBA or, secondar-ily, the United States department of laborpursuant to the Davis-Bacon Act, or, lastly,an applicable national labor agreement hasestablished for the most similar trade.

(6) The rates the director estab-lishes pursuant to this subsection shall besubject to notice, comment, and appeal con-sistent with Subsection D of this Section

F. Determination of pre-vailing wage rates: The director shall deter-mine prevailing wage rates applicable in thestate for the type of construction proposedbased on [the] survey data, [assembled andcompiled] collective bargaining agree-

ments, federal Davis-Bacon wage rates forNew Mexico, applicable national laboragreements, or a combination thereof.

G. Addendum changes:Wage rate corrections or changes to deci-sions rendered shall not be issued withoutallowing the requesting agency at least ten(10) days notice before the date bids are tobe submitted.

H. Effectiveness of wagerate decisions: Wage rate decisions shallremain effective until superseded; providedthat changes to decisions rendered shall notbe issued without allowing the requestingagency at least ten (10) days notice beforethe date bids are to be submitted. Newwage rate decisions shall be issued for allcontracts on which bids have not been sub-mitted before the date on which a new sur-vey and wage determination becomes effec-tive pursuant to Subsection C of 11.1.2.11NMAC, supra, provided, that any such newdecision shall not supersede any previouslyissued decision unless such new decision isreceived by the contracting agency at leastten (10) days prior to the date on which bidsare to be submitted. Notwithstanding any-thing in these regulations to the contrary orapparently to the contrary, the director shallnot be required to issue a wage rate decisionto a requesting agency unless such agencyreasonably expects to advertise the contractfor bids and to receive bids within 120 daysfrom the date of its written request.[5/31/72, 1/14/76, 6/4/79, 3/7/80, 1/29/81,5/28/81, 11/4/88, 2/8/90, 2/14/94, 8/15/98;11.1.2.11 NMAC - Rn & A, 11 NMAC1.1.11, 3/15/2004]


NEW MEXICO BOARD OFPHARMACY

This is an amendment to 16.19.27 NMAC,Section 7, effective April 1, 2004.

16.19.27.7 D E F I N I T I O N S :Dishonorable conduct by a pharmacistintern licensed pursuant to NMSA 61-11-6,or pharmacy technician registered pursuantto NMSA 61-11-6.

A. Dishonorable conductby a pharmacist intern or pharmacy techni-cian shall mean, among other things, but notto be limited to:

(1) violation of any provision ofthe Pharmacy Act as determined by theboard;

(2) violation of the board of phar-macy regulations as determined by theboard;

(3) violation of the Drug andCosmetic Act as determined by the board;

(4) violation of the ControlledSubstances Act as determined by the board;

(5) failure of the licensee to con-duct himself professionally in conformity

with all applicable federal, state and munic-ipal laws and regulations to his relationshipwith the public and other health profession-als;

(6) acquiring prescription stockfrom unlicensed sources;

(7) failure to hold on the strictestconfidence all knowledge patrons, their pre-scriptions and other confidence entrusted oracquired of by him; divulging in the interestof the patron only by proper forms or whererequired for proper compliance with legalauthorities;

(8) participation in a plan oragreement which compromises the qualityor extent of professional services, or facili-ties at the expense of public health or wel-fare;

(9) the solicitation of prescriptionbusiness by providing prescribers with pre-scription blanks with the name of anylicensed pharmacy or pharmacist printedthereon;

(10) failure to report an impairedlicensee in compliance with Subparagraph(a) of Paragraph (1) of Subsection C of16.9.4.12 NMAC;

(11) conviction, plea of nolo con-tendere, or entering into any other legalagreements for any violation of thePharmacy Act, Controlled Substances Act,Drug Device and Cosmetic Act or any sim-ilar act of another state or territory of theUnited States;

(12) suspension, revocation,denial, or forfeiture of license to practice orsimilar disciplinary action by a licensingagency of another state or territory of theUnited States.

B. Dishonorable conductby a facility (business) shall mean, amongother things, but not to be limited to:

(1) violation of any provision ofthe Pharmacy Act as determined by theboard;

(2) violation of the board of phar-macy regulations as determined by theboard;

(3) violation of the Drug andCosmetic Act as determined by the board;

(4) violation of the ControlledSubstances Act as determined by the board;

(5) failure of the licensee to con-duct himself professionally in conformitywith all applicable federal, state and munic-ipal laws and regulations to his relationshipwith the public and other health profession-als;

(6) acquiring prescription stockfrom unlicensed sources;

(7) failure to hold on the strictestconfidence all knowledge concerningpatrons, their prescriptions and other confi-dence entrusted or acquired of by him;divulging in the interest of the patron onlyby proper forms, or where required for

proper compliance with legal authorities;(8) participation in a plan or

agreement which compromises the qualityor extent of professional services, or facili-ties at the expense of public health or wel-fare;

(9) the solicitation of prescriptionbusiness by providing prescribers with pre-scription blanks with the name of anylicensed pharmacy or pharmacist printedthereon;

(10) failure to report an impairedlicensee in compliance with Subparagraph(a) of Paragraph (1) of Subsection C of16.9.4.12 NMAC;

(11) conviction, plea of nolo con-tendere, or entering into any other legalagreements for any violation of thePharmacy Act, Controlled Substance Act,Drug Device and Cosmetic Act or any sim-ilar act of another state or territory of theUnited States;

(12) suspension, revocation,denial or forfeiture of license to practice orsimilar disciplinary action by a licensingagency of another state or territory of theUnited States;

(13) failure to correct writtendeficiencies, documented by drug inspec-tors during routine inspections;

(14) failure of the business owneror authorized representative to sign theannual self-assessment conducted by thepharmacist-in-charge (see 16.19.6.9.8NMAC);

(15) when an error occurs and apatient is harmed, failure of the businessowner or authorized representative toprovide an appropriate environment(staffing and physical environment) thatcan provide pharmaceutical care in away that does not endanger the public.

C. “ P h a r m a c e u t i c a lcare” means the provision of drug thera-py and other patient care services relatedto drug therapy intended to achieve defi-nite outcomes that improve a patient’squality of life, including identifyingpotential and actual drug-related prob-lems, resolving actual drug-related prob-lems and preventing potential drug-relat-ed problems. [Subsection V of Section61-11-2 NMSA 1978]

D. “Dispensing error”means a prescription that was dispensedfrom the pharmacy differently from whatwas prescribed.

E. “Harm” means tem-porary or permanent impairment of thephysical, emotional or psychologicalfunction or structure of the body and/orpain resulting there from requiring inter-vention.

F. “Patient counseling”means the oral communication by thepharmacist of information to a patient or

his agent or caregiver regarding properuse of a drug or a device. [Subsection Tof Section 61-11-2 NMSA 1978].

G. “Physical environ-ment” means the facility layout design,fixtures, and surroundings that affectlighting levels, sound levels, temperature,interruptions, and distractions.[16.19.27.7 NMAC - N, 12-01-2003; A, 04-01-2004]


NEW MEXICO PUBLICEMPLOYEE LABOR RELATIONS BOARD

TITLE 11 LABOR ANDWORKERS COMPENSATIONCHAPTER 21 L A B O RUNIONS/LABOR RELATIONSPART 1 GENERAL PROVI-SIONS

11.21.1.1 ISSUING AGENCY:Public Employee Labor Relations Board,2929 Coors NW, Suite #303, Albuquerque,NM 87120, (505) 831-5422.[11.21.1.1 NMAC - N, 3-15-04]

11.21.1.2 SCOPE: The scope ofpart 1 of chapter 21 applies to publicemployers, public employees and labororganizations as defined by the PublicEmployee Bargaining Act (10-7E-1 to 10-7E-26 NMSA 1978).[11.21.1.2 NMAC - N, 3-15-04]

11.21.1.3 S T A T U T O R YAUTHORITY: Authority for Part 1 ofChapter 21 is the Public EmployeeBargaining Act NMSA 1978 Sections 1through 26 (10-7E-1 to 10-7E-26 NMSA1978).[11.21.1.3 NMAC - N, 3-15-04]

11.21.1.4 D U R A T I O N :Permanent.[11.21.1.4 NMAC - N, 3-15-04]

11.21.1.5 EFFECTIVE DATE:March 15, 2004, unless otherwise cited atthe end of the section.[11.21.1.5 NMAC - N, 3-15-04]

11.21.1.6 OBJECTIVE: Theobjective for part 1 of chapter 21 is to estab-lish principles governing implementation ofthe New Mexico Public EmployeeBargaining Act (NMSA 1978, Section 10-7E-1 through 10-7E-26) and to establish fairand expeditious procedures that further thepurposes of that act, which are: (1) to guar-antee public employees the right to organizeand bargain collectively with their employ-ers; (2) to promote harmonious and cooper-ative relationships between public employ-ers and public employees; and (3) to protect

the public interest by assuring, at all times,the orderly operation and functioning of thestate and its political subdivisions. (NMSA1978, Section 10-7E-2) These rules shouldbe interpreted consistently with the PublicEmployee Bargaining Act as presently writ-ten or as later amended.[11.21.1.6 NMAC - N, 3-15-04]

11.21.1.7 DEFINITIONS:A. Statutory definition:

The terms defined in Section 4 of the act(NMSA 1978, Sec. 10-7E-4) shall have themeanings set forth therein.

B. Additional definitions:The following terms shall have the mean-ings set forth below.

(1) “Act” means the New MexicoPublic Employee Bargaining Act (NMSA1978, Sections 10-7E-1 through 10-7E-26including any amendments to that statute.

(2) “Amendment of certification”means a procedure whereby an incumbentlabor organization certified by the board torepresent a unit of public employees or apublic employer may petition the board toamend the certification to reflect a changesuch as a change in the name or the affilia-tion of the labor organization or a change inthe name of the employer.

(3) “Certification of incumbentbargaining status” shall mean a procedurewhereby a labor organization recognized bya public employer as the exclusive repre-sentative of an appropriate bargaining uniton June 30, 1999 petitions the board for adeclaration of bargaining status underSection 24(B) of the act (NMSA 1978,Section 10-7E-24(B).

(4) “Challenged ballot” means theballot of a voter in a representation electionwhose eligibility to vote is questioned eitherby a party to the representation case or bythe director.

(5) “Complainant” means an indi-vidual, organization, or public employer,that has filed a prohibited practices com-plaint.

(6) “Confidential employee”means a person who devotes a majority ofhis time to assisting and acting in a confi-dential capacity with respect to a personwho formulates, determines and effectuatesmanagement policies.

(7) “Director” means the directorof the public employee labor relationsboard.

(8) “Document” means any writ-ing, photograph, film blueprint, microfiche,audio or video tape, date stored in electron-ic memory, or data stored and reproduciblein visible or audible form by any othermeans.

(9) “Probationary employee” forstate employees shall have the meaning setforth in the State Personnel Act and accom-

panying regulations; for other publicemployees, other than public schoolemployees, shall have the meaning set forthin any applicable ordinance, charter or reso-lution, or, in the absence of such a defini-tion, in a collective bargaining agreement;provided, however, that for non-stateemployees a public employee may not beconsidered to be a probationary employeefor more than one (1) year after the date heor she is hired by a public employer. If oth-erwise undefined, the term shall refer to anemployee who has held his or her position,or a related position, for less than sixmonths.

(10) “Prohibited practice” meansa violation of Section 10-7E-19, 10-7E- 20or 10-7E-21(A) of the act (NMSA 1978,Section 10-7E-19, 10-7E-20 or 10-7E-21(A).

(11) “Public employer” means thestate or a political sub-division thereof,including a municipality that has adopted ahome rule charter, and does not include agovernment of an Indian nation, tribe orpueblo, provided that state educationalinstitutions as provided in article 12,Section 11 of the constitution of NewMexico shall be considered public employ-ers other than state for collective bargainingpurposes only.

(12) “Public employee” means aregular non-probationary employee of apublic employer; provided that, in the pub-lic schools, “public employee” shall alsoinclude a regular probationary employee.

(13) “Representation case” or“representation proceeding” means anymatter in which a petition has been filedwith the director requesting a certificationor decertification election, or an amendmentof certification, or unit clarification.

(14) “Respondent” means a partyagainst whom a prohibited practices com-plaint has been filed.

(15) “Rules” means the rules andregulations of the board (these rules),including any amendments to them.

(16) “Unit accretion” means theinclusion in an existing bargaining unit ofemployees who do not belong to any exist-ing bargaining unit and who share a com-munity of interest with the employees in theexisting unit and whose inclusion will notrender the existing unit inappropriate.

(17) “Unit clarification” means aproceeding in which a party to an existinglawful collective bargaining relationshippetitions the board to change the scope anddescription of an existing bargaining unit; toconsolidate existing bargaining units repre-sented by the same labor organization; or torealign existing bargaining units of stateemployees represented by the same exclu-sive representative into horizontal units,where the board finds the unit as clarified to

be an appropriate bargaining unit and noquestion concerning, representation arises.

(18) “Unit inclusions or exclu-sions” means the status of an individual,occupational group, or group of publicemployees in clear and identifiable commu-nities of interest in employment terms andconditions and related personnel matters, asbeing within or outside of an appropriatebargaining unit based on factors such assupervisory, confidential or managerial sta-tus, the absence thereof, job context, princi-ples of efficient administration of govern-ment, the history of collective bargaining,and the assurance to public employees ofthe fullest freedom in exercising the rightsguaranteed by the Public EmployeeBargaining Act.[11.21.1.7 NMAC - N, 3-15-04]

11.21.1.8 COMPUTATION OFTIME: When these rules state a specificnumber of days in which some action mustor may be taken after a given event, the dateof the given event is not counted in comput-ing the time, and the last day of the period isdeemed to end at close of business on thatday. Saturday’s, Sundays and state recog-nized legal holidays observed in NewMexico shall not be counted when comput-ing the time. When the last day of the peri-od falls on a Saturday, Sunday or legal hol-iday observed in New Mexico, then the lastday for taking the action shall be the fol-lowing business day.[11.21.1.8 NMAC - N, 3-15-04]

11.21.1.9 EXTENSION OFTIME: A party seeking an extension oftime in which to file with the director, theboard or a hearing examiner any required orpermitted document may file with the direc-tor or the hearing examiner, an appropriatewritten request for an extension. Such arequest shall be filed at least three (3) daysprior to the due date and shall state the posi-tion of all other parties, or that the filingparty was unable to reach another party.The director, the board or the hearing exam-iner may grant an extension for good causeshown and, in granting an extension, mayshorten the time requested.[11.21.1.9 NMAC - N, 3-15-04]

11.21.1.10 FILING WITH THEDIRECTOR OR THE BOARD: To file adocument with the director or the board, thedocument may be either hand-delivered tothe board’s office in Albuquerque during itsregular business hours, or sent to that officeby United States mail, postage prepaid, orby the New Mexico state government inter-agency mail. The director will be responsi-ble for recording the filing of documents tobe filed with the board, as well as docu-ments to be filed with the director. A docu-


ment will be deemed filed when it isreceived by the director. Documents sent tothe board via facsimile (“fax”) transmissionwill be accepted for filing as of the date oftransmission only if an original is filed bypersonal delivery or deposited in the mailno later than the first work day after the fac-simile is sent.[11.21.1.10 NMAC - N, 3-15-04]

11.21.1.11 REPRESENTATIONOF A PARTY: A party may represent his,her, or itself, or be represented by counsel orother representative. Any representative ofa party who is not an employee of the partyshall file with the board a signed notice ofappearance, stating the name of the party;the title and official number (if available) ofthe case in which the representative is rep-resenting the party, and the name, addressand telephone number of the representative.The filing of a pleading containing theabove information is sufficient to fulfill thisrequirement.[11.21.1.11 NMAC - N, 3-15-04]

11.21.1.12 EX PARTE COMMU-NICATIONS: Except as otherwise provid-ed in this rule, no party to a pending repre-sentation, prohibited practices, or factfind-ing proceeding shall communicate, orattempt to communicate, with a hearingexaminer assigned to the case, with thedirector, or with a board member, concern-ing any issue in the case, without, at thesame time, transmitting the same communi-cation to all other parties to the proceeding.It shall not be a violation of this rule to com-municate concerning the status of a case, orto communicate concerning such procedur-al matters as the location or time of a hear-ing, the date on which documents are due,or the method of filing. It shall not be a vio-lation of this rule for a party to communi-cate with the director during the investiga-tory phase of a representation, prohibitedpractices, or impasse resolution proceeding.It shall not be a violation of this rule for aparty to communicate with anyone concern-ing any rulemaking proceeding of theboard, or to communicate with the director,a mediator, or board member at the direc-tor’s mediator’s, or member’s request.[11.21.1.12 NMAC - N, 3-15-04]

11.21.1.13 D I S Q U A L I F I C A -TION: No board agent, member nor hear-ing examiner shall decide or otherwise par-ticipate in any case or proceeding in whichhe or she (a) has a financial interest in theoutcome; (b) is indebted to any party, orrelated to any party or any agent or officerof a party by consanguinity within the thirddegree; (c) has acted on behalf of any partywithin two years of the commencement ofthe case or proceeding; or (d) for some other

reason or prejudice, he or she cannot fairlyor impartially consider the issues in the pro-ceeding.[11.21.1.13 NMAC - N, 3-15-04]

11.21.1.14 MOTION TO DIS-QUALIFY:

A. A motion to disqualifya board agent, member or hearing examinerin any matter, based upon the foregoing cri-teria, shall be filed with the board, withcopies served on all parties, prior to anyhearing or the making of any material rulinginvolving the pending issues.

B. Such motion shall setout the basis for the disqualification and allfacts in support thereof.

C. If the board finds suchmotion meritorious upon due inquiry, itshall disqualify the board agent, member orhearing examiner and he or she shall with-draw from the proceeding. If the motion isdenied, the board shall so rule and the mat-ter shall proceed.[11.21.1.14 NMAC - N, 3-15-04]

11.21.1.15 RECORDS OF PRO-CEEDINGS: All meetings of the board(whether general, special or emergency)and all rulemaking, unit determination, andprohibited practice hearings before theboard or a hearing examiner of the boardshall be audio-recorded, or, upon order ofthe board may be transcribed, except thatboard meetings or portions thereof lawfullyclosed shall not be recorded or transcribed,unless so directed by the board. Followingthe board’s approval of the minutes of ameeting of the board, the minutes shallbecome the sole official record of the meet-ing, and the audio tape of the meeting maybe erased. The director shall keep audiotapes of the rulemaking, unit determination,and prohibited practices hearings for a peri-od of at least one year following the close ofthe proceeding in which the hearing is held,or one year following the close of the lastjudicial or board proceeding (including anyappeal or request for review) related to thecase in which the hearing is held, whichev-er is later, or such longer period as may berequired by law. No recording shall bemade of any mediation proceeding, settle-ment discussion, or alternative dispute reso-lution effort except by agreement of all par-ties and participating officials. The board’srecording or transcript shall be the only offi-cial record of a hearing.[11.21.1.15 NMAC - N, 3-15-04]

11.21.1.16 NOTICE OF HEAR-ING:

A. After the appropriatenotice or petition is filed in a representation,prohibited practices or impasse resolutioncase, the director shall hold a status and

scheduling conference with the parties todetermine the issues; establish a schedulefor discovery, including the issuance of sub-poenas, and pretrial motions; and set a hear-ing date.

B. Upon setting a rule-making hearing, the director or the boardshall cause notice of hearing to be issuedsetting forth the nature of the rulemakingproceeding, the time and place of the hear-ing, the manner in which interested personsmay present their views, and the manner inwhich interested persons may obtain copiesof proposed rules notices of rulemakinghearings shall be sent by regular mail to allpersons who have made requests for suchnotice, and shall be published in at least onenewspaper of general circulation in NewMexico at least thirty (30) days prior tocommencement of the hearing.

C. Upon setting a rule-making hearing, the director or the boardshall cause notice of hearing to be issuedsetting forth the nature of the rulemakingproceeding, the time and place of the hear-ing, the manner in which interested personsmay obtain copies of proposed rules,notices of rulemaking hearings shall be sentby regular mail to all persons who havemade requests for such notice, and shall bepublished in at least one newspaper of gen-eral circulation in New Mexico at least thir-ty (30) days prior to commencement of thehearing.

D. A party to a representa-tion, prohibited practices, or impasse reso-lution case in which a hearing is scheduledmay request postponement of the hearing byfiling a written request with the director,and serving the request upon all other par-ties, at least five (5) days before com-mencement of the hearing. The requestingparty shall state the specific reasons in sup-port thereof. Upon good cause shown, thedirector shall grant a postponement to a dateno more than twenty (20) days later than thepreviously set hearing date. Only inextraordinary circumstances may the direc-tor grant a further postponement, or a post-ponement to a date more than twenty (20)days after the previously set date.[11.21.1.16 NMAC - N, 3-15-04]

11.21.1.17 EVIDENCE ADMIS-SIBLE:

A. The technical rules ofevidence shall not apply, but, in ruling ofthe admissibility of evidence, the hearingexaminer or board may require reasonablesubstantiation of statements or records ten-dered, the accuracy or truth of which is inreasonable doubt.

B. Irrelevant, immaterial,unreliable, unduly repetitious or cumulativeevidence, and evidence protected by therules of privilege (such as attorney-client,


physician-patient or special privilege) shallbe excluded upon timely objection.

C. The hearing examineror board may receive any evidence notobjected to, or may, upon the hearing exam-iner’s or board’s own initiative, excludesuch evidence if it is irrelevant, immaterial,unreliable, unduly repetitious, cumulativeor privileged.

D. Evidence may be tenta-tively received by the hearing examiner orboard, reserving a ruling on its admissibili-ty until the issuance of a report or decision.[11.21.1.17 NMAC - N, 3-15-04]

11.21.1.18 MISCONDUCT: Thehearing examiner or body conducting ahearing or official conducting any otherproceeding, may exclude or expel from thehearing or proceeding any person, whetheror not a party, who engages in violent,threatening, disruptive, or unduly disre-spectful behavior. In the event of suchexclusion or expulsion of a person for mis-conduct, the hearing examiner, body or offi-cial shall explain on the record the reasonsfor the exclusion or expulsion and mayeither proceed in the absence of the exclud-ed person or recess such proceeding andcontinue at another time, as may be appro-priate.[11.21.1.18 NMAC - N, 3-15-04]

11.21.1.19 SUBPOENAS:A. Any party to a proceed-

ing in which a notice of hearing has issuedmay file a written request with the directorfor the issuance of a subpoena for witnesstestimony or a subpoena for the productionof documents to procure testimony or docu-ments at the hearing. Deadlines for request-ing subpoenas shall be established pursuantto the scheduling order agreed to by the par-ties. A subpoena request shall state thename and number of the case; identify theperson(s) or documents sought; and statethe general relevance to an issue in the caseof the testimony or documents sought. Thedirector may refuse to issue a subpoenawhere the request fails to meet theserequirements, or where it appears to thedirector that the documents or testimonysought are not relevant to issues in the case.Otherwise, the director shall immediatelyissue a subpoena to the requesting party.

B. The director, a hearingexaminer, or the board may issue subpoenason the initiative of the director, hearingexaminer or board, in which case a showingof relevance is not required, and a notice ofhearing need not have been issued.

C. A person upon whom asubpoena is served may move to quash thesubpoena. A motion to quash shall be filedaccording to the scheduling order, or as per-mitted by the board, director or the hearing

examiner.D. Any applicable witness

and travel fees shall be the responsibility ofthe subpoenaing party.[11.21.1.19 NMAC - N, 3-15-04]

11.21.1.20 EXCHANGE OFDOCUMENTS AND LISTS OF WIT-NESSES: Pursuant to the scheduling order,each party shall serve upon all other partiesall documents it intends to introduce at thehearing and a list of all witnesses it intendsto call, along with a brief statement of thesubjects about which each witness isexpected to testify. No party may compeldiscovery other than as provided in this ruleand Section 19 (subpoenas), except by aspecific order of the board upon good causeshown. The hearing examiner may permitthe admission in evidence of witness testi-mony or of documents not timely suppliedunder this rule if, in the hearing examiner’sjudgment, there was sufficient reason forthe failure to timely supply the names ordocuments.[11.21.1.20 NMAC - N, 3-15-04]

11.21.1.21 OWNERSHIP ANDCONFIDENTIALITY OF SHOWINGOF INTEREST: Evidence of a showing ofinterest submitted to the director in supportof a representation petition shall remain theproperty of the party submitting such evi-dence; shall not become property of thedirector or the board, shall be kept confi-dential by the director and the board; andshall be returned to the party that submittedthe same upon the close of the case.[11.21.1.21 NMAC - N, 3-15-04]

11.21.1.22 BURDEN OFPROOF:

A. Except in unit clarifica-tion proceedings, no party shall have theburden of proof in a representation orfactfinding proceeding. Rather, the directorin the investigatory phase or the hearingexaminer shall have the responsibility ofdeveloping a fully sufficient record for adetermination to be made, and may requestany party to present evidence or argumentsin any order. In a unit clarification proceed-ing, a party seeking any change in an exist-ing appropriate unit, or in the description ofsuch a unit, shall have the burden of proofand the burden of going forward with theevidence.

B. In a prohibited prac-tices proceeding, the complaining party hasthe burden of proof and the burden of goingforward with the evidence.[11.21.1.22 NMAC - N, 3-15-04]

11.21.1.23 MOTIONS ANDRESPONSES TO MOTIONS: Allmotions and responses to motions, except

those made at a hearing, shall be in writingand shall be served simultaneously upon allparties to the proceeding. All writtenmotions shall be filed and served on all par-ties pursuant to the scheduling order.Motions and responses made at hearingsmay be made orally. If a party decides tofile a response to a written motion, theresponse shall be filed and simultaneouslyserved pursuant to the scheduling order.[11.21.1.23 NMAC - N, 3-15-04]

11.21.1.24 SERVICE: Service ofpapers upon parties may be made by per-sonal delivery or by depositing in UnitedStates mail, first class postage prepaid, orby both facsimile (“fax”) transmission and,by the next scheduled work day after send-ing a “fax”, either personally delivering thedocument or depositing it in first class mail,in which case the date of “fax” transmissionshall be the date of service. Each documentserved shall be accompanied by a signedcertification stating the name and address ofeach person served and the date and methodof service. The certification may be placedon the document served.[11.21.1.24 NMAC - N, 3-15-04]

11.21.1.25 TESTIMONY OFBOARD AGENTS: Agents of the board(including the director, investigators, hear-ing examiner, and board members), whetheremployees of the board or contractors, maynot be compelled to testify in board pro-ceedings.[11.21.1.25 NMAC - N, 3-15-04]

11.21.1.26 FORM OF PAPERS:All papers required or permitted to be filedwith the director, a hearing examiner, or theboard shall be on an official form preparedby the director, if available, or on 8 ½ by 11white paper, double spaced. All papersshall show at or near the top of the first pagethe case name and, if available, the casenumber, and shall be signed.[11.21.1.26 NMAC - N, 3-15-04]

11.21.1.27 APPEAL ORREVIEW BY THE BOARD: Unless oth-erwise provided in these rules, appeal orrequest for review by the board shall be per-mitted only upon completion of proceed-ings before a hearing examiner or the direc-tor. Review by the board shall be based onthe evidence presented or offered at the ear-lier stages of the proceeding, and shall notbe de novo. An interlocutory appeal may beallowed with the permission of the board,director or the hearing examiner.[11.21.1.27 NMAC - N, 3-15-04]

11.21.1.28 D I R E C T O R ’ SAUTHORITY: Except as otherwise pro-vided in these rules, the director shall have


authority to delegate to other board employ-ees or outside contractors any of the author-ity delegated to the director by these rules.In every case where these rules or the actprovide for the appointment of a hearingexaminer, the director or the board shallappoint the hearing examiner, and mayappoint the director or a board member asthe hearing examiner.[11.21.1.28 NMAC - N, 3-15-04]

11.21.1.29 CLOSING OFCASES: The director shall close a case fol-lowing completion of all administrative andjudicial proceedings related to the case. Thedirector may, after notice to the parties,summarily close any case in which the mov-ing party has taken no action within the pre-vious six months, unless the delay is causedby factors beyond the party’s control.[11.21.1.29 NMAC - N, 3-15-04]

11.21.1.30 PUBLICATION OFBOARD DECISIONS: At the times and inthe manner prescribed by the board, thedirector shall reproduce multiple copies ofboard decisions, classify and index the deci-sions, and make tables and indexes of thedecisions, as well as compilations of thedecisions, available to the public.[11.21.1.30 NMAC - N, 3-15-04]

11.21.1.31 TIME LIMITS FORBOARD ACTIONS: Whenever theserules set forth a period of time within whichthe board, the director, or a hearing officermust take any action, the board, director orhearing examiner may, for good cause,extend for a reasonable time, not to exceedtwenty (20) workdays for each extension,the date by which such action must betaken, unless the date is controlled bystatute.[11.21.1.31 NMAC - N, 3-15-04]

11.21.1.32 MEETINGS BYTELEPHONE:

A. Pursuant to 10-15-1(C)NMSA, 1978, a member of the board mayparticipate in a meeting of the publicemployee labor relations board by means ofa conference telephone or other similarcommunications equipment in accordancewith the provisions enumerated inSubsections B through E of 11.21.1.32NMAC.

B. This rule shall onlyapply when it is otherwise difficult orimpossible for the member to attend themeeting in person.

C. Each member partici-pating by conference telephone must beidentified when speaking.

D. All participants must beable to hear each other at the same time.

E. Members of the public

attending the meeting must be able to hearany member of the board who speaks duringthe meeting.[11.21.1.32 NMAC - N, 3-15-04]

History of 11.21.1 NMAC:Pre-NMAC History: The material in thispart was derived from that previously filedwith the commission of public records-staterecords center and archives:PELRB 1, General Provisions, filed 3-18-93.

History of Repealed Material: 11 NMAC21.1, General Provisions (filed 6-24-96),repealed as a result of the internal durationof rule, stated as 7-1-99.

Other History:PELRB 1, General Provisions, filed 3-18-93 was renumbered and replaced by 11NMAC 21.1, General Provisions, filed 6-24-96.11 NMAC 21.1, General Provisions, filed 6-24-96, was replaced by 11.21.1 NMAC,General Provisions, effective 3-15-04.

the end of the section.[11.21.2.5 NMAC - N, 3-15-04]

11.21.2.6 OBJECTIVE: Theobjective of Part 2 of Chapter 21 is to estab-lish a standard for uniform petition filings inan easily understood form in which all per-tinent information is given to the publicemployee labor relations board to determinean appropriate bargaining unit.[11.21.2.6 NMAC - N, 3-15-04]

11.21.2.7 D E F I N I T I O N S :[Reserved][11.21.2.7 NMAC - N, 3-15-04]

11.21.2.8 COMMENCEMENTOF CASE: A representation case is com-menced by filing a representation petitionwith the director on a form prescribed bythe director. The form shall include, at aminimum, the following information: thepetitioner’s name, address, phone number,state or national affiliation, if any, and rep-resentative, if any; the name, address andphone number of the public employer orpublic employers whose employees areaffected by the petition; a description of theproposed appropriate bargaining unit andany existing recognized or certified bargain-ing unit; the geographic work locations,occupational groups, and estimated num-bers of employees in the proposed and anyexisting bargaining unit; a statement ofwhether or not there is a collective bargain-ing agreement in effect covering any of theemployees in the proposed or any existingbargaining unit and, if so, the name, addressand phone number of the labor organizationthat is party to such agreement; a statementof what action the petition is requesting; anda signed declaration by the person filing thepetition that its contents are true and correctto the best of his or her knowledge. In addi-tion, a petition seeking a certification ordesertification election, shall be supportedby a thirty percent showing of interest in theexisting or proposed bargaining unit. Apetition shall contain a signed declarationby the person filing the petition that its con-tents are true and correct to the best of his orher knowledge and, in the case of a decerti-fication petition that he or she is a memberof the labor organization to whom thedecertification petition applies.[11.21.2.8 NMAC - N, 3-15-04]

11.21.2.9 SERVICE OF PETI-TION: Upon filing a petition, the petition-er shall serve it upon the employer and anyincumbent labor organization. Within ten(10) days of the filing of a petition, thedirector shall cause notice of the filing ofthe petition to be sent to any other interest-ed party.[11.21.2.9 NMAC - N, 3-15-04]



TITLE 11 LABOR ANDWORKERS COMPENSATIONCHAPTER 21 L A B O RUNIONS/LABOR RELATIONSPART 2 REPRESENTATIONPROCEEDINGS

11.21.2.1 ISSUING AGENCY:Public Employee Labor Relations Board,2929 Coors NW, Suite #303, Albuquerque,NM, 87120, (505) 831-5422.[11.21.2.1 NMAC - N, 3-15-04]

11.21.2.2 SCOPE: The scope ofPart 2 of Chapter 21 applies to publicemployers, public employees and labororganizations as defined by the PublicEmployee Bargaining Act (10-7E-1 to 10-7E-26 NMSA 1978).[11.21.2.2 NMAC - N, 3-15-04]

11.21.2.3 S T A T U T O R YAUTHORITY: Authority for Part 1 ofChapter 21 is the Public Employee LaborRelations Act NMSA Sections 1 through 26(10-7E-1 to 10-7E-26 NMSA 1978).[11.21.2.3 NMAC - N, 3-15-04]


11.21.2.5 EFFECTIVE DATE:March 15, 2004, unless otherwise cited at

11.21.2.10 FILING OF COL-LECTIVE BARGAINING AGREE-MENT: Along with a representation peti-tion, the petitioner shall file with the direc-tor a copy of any collective bargainingagreement, then in effect or recentlyexpired, covering any of the employees inthe petitioned-for unit.[11.21.2.10 NMAC - N, 3-15-04]

11.21.2.11 SHOWING OFINTEREST: With the petition and at thesame time the petition is filed, the petition-er shall deposit with the director a showingof interest consisting of signed, dated state-ments, which may be in the form of cards ora petition, by at least thirty (30) percent ofthe employees in the proposed unit stating,in the case of a petition for a certificationelection, that each such employee wishes tobe represented for the purposes of collectivebargaining by the petitioning labor organi-zation, and, in the case of a petition for adecertification election, that each suchemployee wishes a decertification election.Each signature shall be separately dated. Solong as it meets the above requirements, ashowing of interest may be in the form ofsignature cards or a petition or other writ-ing, or a combination of written forms. Noshowing of interest need be filed in supportof a petition for amendment of certificationor unit clarification.[11.21.2.11 NMAC - N, 3-15-04]

11.21.2.12 I N F O R M A T I O NREQUESTED OF PARTIES:

A. Within ten (10) days ofthe filing of a representation petition, thedirector shall by letter request of any partythat appears to have an interest in the pro-ceeding, including any public employeesinvolved and any incumbent labor organiza-tions, its position with respect to the appro-priateness of the bargaining unit petitionedfor; a statement of any issues of unit inclu-sion or exclusion that the party believesmay be in dispute, and any other issue thatcould affect the outcome of the proceeding.

B. From any publicemployer involved, the director, within ten(10) days of the filing of a representationpetition, shall also request a list of theemployees who would be eligible to vote ifthe petitioned-for unit were found to beappropriate, based on the payroll period thatended immediately proceeding the filing ofthe petition. The public-employer shall beinstructed to file such a list within ten (10)days of the director’s request. The boardshall make the list available to the parties.[11.21.2.12 NMAC - N, 3-15-04]

11.21.2.13 INITIAL INVESTI-GATION OF PETITION: After a petition

has been filed, the director shall investigatethe petition. The investigation shall includethe following steps and shall be completedwithin thirty (30) days of the filing of thepetition.

A. The director shall checkthe showing of interest (if applicable)against the list of eligible employees in theproposed unit filed by the public employerto determine whether the showing of inter-est has been signed and dated by a sufficientnumber of employees and that the signa-tures are sufficiently current. If signaturessubmitted for a showing of interest meet therequirements set forth in these rules, theyshall be presumed valid unless the directoris presented with clear and convincing evi-dence that they were obtained by fraud, for-gery or coercion. In the event that evidenceof such fraud, forgery or coercion is pre-sented to the director, the director shallinvestigate the allegations as expeditiouslyas possible and shall keep the showing ofinterest confidential during the investiga-tion. The director shall dismiss any petitionsupported by an improper or insufficientshowing of interest, consistent with Section23 (opportunity to present additional show-ing), and shall explain in writing the basisof the dismissal. The director’s determina-tion as to the sufficiency of a showing ofinterest is an administrative matter solelywithin the director’s authority and shall notbe subject to questions or review.

B. The director shall deter-mine the facial validity of the petition,including the facial appropriateness of thepetitioned-for unit and may request the peti-tioner to amend a facially inappropriatepetition. In the absence of an appropriateamendment, the director shall dismiss apetition asking for an election in, or a clari-fication to, a facially inappropriate unit, orthat is otherwise facially improper, in whichcase he shall explain his reasons in writing.

C. The director shall deter-mine whether there are significant issues ofunit scope unit inclusion or exclusion, labororganization or public employer status; abar to the processing of the petition; or othermatters that could affect the proceedings.The director shall make the determinationpursuant to the provisions of 10-7E-13(C)and 10-7E-24 of the Public EmployeeBargaining Act.[11.21.2.13 NMAC - N, 3-15-04[

11.21.2.14SETTLEMENT/STIPULATION OFUNIT ISSUES: If the director finds thatthere are significant issues affecting the pro-ceeding that are or may be in dispute, thedirector shall confer with all parties toattempt to resolve the issues and to enterinto a written stipulation stating the agree-ment. Any such stipulation shall be subject

to approval of the board upon review, whichmay be requested by the board or sought bythe director.[11.21.2.14 NMAC - N, 3-15-04]

11.21.2.15 NOTICE OF FILINGOF PETITION: Unless the director hasdetermined that there is need for a represen-tation hearing pursuant to Section 19, thenwithin thirty (30) days of receipt of a peti-tion, the director shall issue a notice statingthat the petition has been filed, naming thepetitioner, stating the unit petitioned-for,and stating the procedures for interventionas set forth in Section 16, below, includingthe date by which an intervenor must file itspetition and showing of interest. The direc-tor shall issue sufficient copies of the noticeto each employer involved, and each suchemployer shall post such copies in placeswhere notices to employees are normallyposted. The notices shall remain postedcontinuously for a least five days.[11.21.2.15 NMAC - N, 3-15-04]

11.21.2.16 INTERVENTION:A. At any time within ten

(10) days after the employer’s posting of thenotice of filing of petition, a labor organiza-tion other than the petitioner may file withthe director an intervenor’s petition seekingto represent some or all of the employees inthe petitioned-for unit. The intervenor’spetition shall contain the same informationset forth in Section 8 above.

B. The intervenor’s peti-tion shall be accompanied by a showing ofinterest showing that at least thirty (30%) ofthe employees in the petitioned-for unitwish to be represented by the intervenor forpurposes of collective bargaining. Theshowing of interest shall otherwise meet therequirements set forth in Section 11, above.

C. An intervenor that haspresented a sufficient showing of interest inthe unit found to be appropriate shall beplaced on the ballot and shall be considereda party to the proceeding.

D. Upon application, anincumbent labor organization shall haveautomatic intervenor status if it is not thepetitioner, pursuant to the provisions of 10-7E-24(B) of the Public EmployeeBargaining Act.[11.21.2.16 NMAC - N, 3-15-04]

11.21.2.17 CONSENT ELEC-TION: Where the parties are in agreementon all issues required to be resolved in orderto proceed to an election, and the director issatisfied that the issues are so resolved,including unit scope, are acceptable to theboard; the director shall draw up a consentelection agreement to be signed by all par-ties and by the director. Consent electionagreements are subject to board review and


may be set aside by the board on its own ini-tiative. If a consent election agreement isnot set aside at the board’s next regularmeeting or the following regular meeting,the director shall proceed to an election onthe basis of the agreement.[11.21.2.17 NMAC - N, 3-15-04]

11.21.2.18 INVESTIGATION,REPORT, NOTICE OF HEARING:

A. In the absence of a con-sent election agreement, the director shallinvestigate the outstanding issues and shallissue and serve a report and direction ofelection, a report and dismissal of petition,or a notice of hearing within forty-five (45)days of the posting of the notice of filing ofpetition. If there is a dispute between theparties regarding unit composition, or thedirector is satisfied that the issues can bestbe resolved in a hearing, the director shallissue and serve a notice of hearing withoutfirst conducting a further investigation. Ahearing concerning unit composition, wherethe parties are in dispute on that issue, shallbe set for a date not later than thirty (30)days following the director’s notice of hear-ing or the director’s receipt of notice of thedispute, whichever is sooner.

B. A report and directionof election or a report and dismissal of peti-tion shall be subject to board review underthe procedures set forth in Section 22below. The issuance of a notice of hearingshall not be subject to board review.[11.21.2.18 NMAC - N, 3-15-04]

11.21.2.19 REPRESENTATIONHEARING:

A. In the absence of a con-sent election agreement, and where thereare significant unit issues that, in the direc-tor’s view, should be resolved in a hearing,the director shall issue a notice of hearing.

B. Except in cases wherethe board appoints the hearing examiner, thedirector shall appoint the hearing examiner,and may appoint himself or herself to serveas hearing examiner.

C. The hearing examinershall take evidence sufficient to make a fulland complete record on all unresolved unitissues and any other issues necessary toprocess the petition. Details such as thetime, date and place of the election, andwhether there will be manual or mail ballotsor a combination, shall not be resolvedthrough the hearing process, but shall beresolved instead through the pre-electionconference process described in Section 25.

D. The hearing examinermay examine witnesses, call witnesses, andcall for introduction of documents.[11.21.2.19 NMAC - N, 3-15-04]

11.21.2.20 BRIEFS: If any party

requests permission to file a post-hearingbrief, the hearing examiner shall permit allparties to file briefs and shall set a time, forthe filing of briefs which normally shall beno longer than ten (10) days following theclose of the hearing. Briefs shall be filedwith the director and copies shall be servedon all parties.[11.21.2.20 NMAC - N, 3-15-04]

11.21.2.21 HEARING EXAMIN-ER REPORTS: The hearing examinershall issue his or her report following theclose of the hearing. Except in extraordi-nary circumstances, which shall be set forthin the report, the report shall be issued nolonger than fifteen (15) days following theclose of the hearing or the submission ofpost-hearing briefs, whichever is later. Thereport shall make findings of fact, conclu-sions of law, and recommendations for thedetermination of issues, and shall adequate-ly explain the hearing examiner’s reason-ing. The hearing examiner shall serve thereport on all parties and the board.[11.21.2.21 NMAC - N, 3-15-04]

11.21.2.22 BOARD REVIEWOF HEARING EXAMINER REPORTSAND DIRECTOR DECISIONS:

A. Within ten (10) daysafter service of the hearing examiner’sreport, or, in a case where no hearing hasbeen held, within 10 days after the issuanceof a director’s decision, any party may file arequest for board review of the hearingexaminer's or the director’s recommendeddisposition. The request for review shallstate the specific portion of the hearingexaminer’s or director’s recommended dis-position to which exception is taken and thefactual and legal basis for such exception.The request may not rely on any evidencenot presented to the hearing examiner ordirector. The request must be served on allother parties.

B. Within ten (10) daysafter service of a request for review, anyother party may file and serve on all partiesa response to the request for review.

C. Whether or not a partyhas filed a request for review, the board,within sixty (60) days, shall review any rec-ommended disposition regarding the scopeof a bargaining unit made by the director ora hearing examiner. In addition, the boardshall review any other issue properly raisedby a party in a request for review. Theboard shall conduct its review on the basisof the existing record and may, in its discre-tion, hear oral argument.

D. Within sixty (60) daysfollowing review, the board shall issue itsdecision ordering an election, dismissingthe petition, setting a further hearing, or oth-erwise disposing of the case. The board

may adopt or incorporate in and attach to itsdecision all or any portion of the hearingexaminer’s report or director’s decision.[11.21.2.22 NMAC - N, 3-15-04]

11.21.2.23 OPPORTUNITY TOPRESENT FURTHER SHOWING OFINTEREST:

A. When the director findsthat the petitioner or an intervenor has sub-mitted an insufficient showing of interest inthe unit petitioned for, the director shallnotify the petitioner or intervenor, and thatparty shall have the opportunity to submitan additional showing of interest. Thedirector shall then review the additionalshowing of interest to determine whetherthe total showing of interest submitted bythe party is sufficient to sustain its petitionor intervention.

B. In the event that thedirector, hearing examiner or board deter-mines that a unit other than the unit peti-tioned for is appropriate and it appears tothe board or director that the showing ofinterest filed by the petitioner or an inter-venor is insufficient in the unit found appro-priate the director shall notify the petitioneror intervenor and give such party a reason-able amount of time in which to file an addi-tional showing if the party fails to file a suf-ficient showing within that time, the direc-tor shall dismiss the petition or deny inter-venor status.[11.21.2.23 NMAC - N, 3-15-04]

11.21.2.24 ELIGIBILITY TOVOTE:

A. Employees in the bar-gaining unit shall be eligible to vote in theelection if they were employed during thelast payroll period preceding date of theconsent election agreement or the directionof election issued by the director or theboard, and are still employed in the unit onthe date of the election.

B. Employees in the bar-gaining unit who are eligible to vote butwho will be absent on the day of votingbecause of hospitalization, temporaryassignment away from normal post of duty,leave of absence, vacation at a locationmore than fifty (50) miles distant from thepolling place, or other legitimate cause, mayrequest an absentee ballot from the director.Such a request must be received by thedirector at least ten (10) days before theelection, in which case the director, afterpreliminarily determining the employee’seligibility to vote, shall provide the employ-ee with a ballot to be submitted to the direc-tor by mail. To be counted, an absentee bal-lot must be received by the director at leastone day before the ballot count. The direc-tor shall establish procedures to permit anabsentee ballot to be challenged, as provid-


ed in Section 30, below.C. The employer or

employer’s whose employees comprise thebargaining unit shall submit to the directorand to all other parties a list of all employ-ees eligible to vote in the election no laterthan ten (10) days before the commence-ment of the election balloting. Employeeswhose names do not appear on the list butwho believe they are eligible to vote maycast ballots through the challenged ballotprocedure set forth in Section 30, below.[11.21.2.24 NMAC - N, 3-15-04]

11.21.2.25 P R E - E L E C T I O NCONFERENCE: At a reasonable time atleast fifteen (15) days before the election,the director shall conduct a pre-electionconference with all parties to resolve suchdetails as the polling location(s), the use ofmanual or mail ballots or both, the hours ofvoting, the number of observers permitted,and the time and place for counting the bal-lots. The director shall notify all parties bymail of the time and place of the pre-elec-tion conference, at least five (5) days inadvance of the conference. The conferencemay proceed in the absence of any party.The director will attempt to achieve agree-ment of all parties on the election details,but in the absence of agreement, shall deter-mine the details. In deciding the pollinglocation(s), the use of manual or mail par-ticipation in the election by employees inthe bargaining unit. There shall be a strongpreference for on-site balloting.[11.21.2.25 NMAC - N, 3-15-04]

11.21.2.26 NOTICE OF ELEC-TION:

A. The director shall issueand serve on the parties a notice of electionsetting forth all of the details of the election,as described in Section 25 above, no laterthan ten (10) days before the election. Thenotice of election shall also describe thebargaining unit whose members are eligibleto vote and shall describe the challengedballot procedure. The notice shall include asample ballot.

B. The director shall pro-vide a sufficient number of copies of thenotice of election to each employer whoseemployees are eligible to vote so that theemployer may post a notice of election in alllounges or common areas frequented byunit employees and in all places wherenotices to employees are commonly posted.The employer shall post the notices in allsuch areas at least ten (10) days before theelection and shall take reasonable measureto assure that they are not removed, cov-ered, altered or defaced.[11.21.2.26 NMAC - N, 3-15-04]

11.21.2.27 BALLOTS AND

VOTING:A. All voting shall be by

secret ballot prepared by the director, posi-tion on the ballot shall be determined ran-domly. Ballots in an initial election shallinclude a choice of “no representation.”

B. All elections shall beconducted by the director, whether by mailin ballots or on-site elections.

C. Any voter who arrivesat a polling area before the polls close willbe permitted to vote.

D. Public employerswhose employees are eligible to vote in anelection shall allow their employees in thevoting unit sufficient time away from theirduties to cast their ballots and shall allowtheir employees who have been selected aselection observers sufficient time awayfrom their duties to serve as observers. Thisrule does not impose on public employersan obligation to change the work schedulesof employees to accommodate voting hours.[11.21.2.27 NMAC - N, 3-15-04]

11.21.2.28 E L E C T I O N E E R -ING: No electioneering shall be permittedwithin 50 feet of any room in which ballot-ing is taking place.[11.21.2.28 NMAC - N, 3-15-04]

11.21.2.29 OBSERVERS: Eachparty shall be entitled to an equal number ofobservers to observe and assist in eachpolling area, and to witness the counting ofballots. The director has complete discre-tion to determine the number of observers.Observers shall not be supervisory or man-agerial employees or labor organizationemployees. However, representatives of theparties in addition to the observers mayobserve the counting of ballots.[11.21.2.29 NMAC - N, 3-15-04]

11.21.2.30 C H A L L E N G E DBALLOTS:

A. Any party to an elec-tion, through its observer, or the director,may challenge the eligibility to vote of anyperson who presents himself or herself atthe polls, and shall state the reason for thechallenge. The director shall challenge anyvoter whose name does not appear on thelist of employees eligible to vote.

B. The director shall fur-nish “challenge envelopes” on the outsideof each challenge envelope, the directorshall write the name and job classificationof the challenged voter, the name of theparty making the challenge, and the reasonfor the challenge.

C. Following the votingand before the votes are counted, the direc-tor shall attempt to resolve the eligibility ofchallenged voters by agreement of the par-ties. The ballots of challenged voters who

are agreed eligible shall be mixed with theother ballots and counted.

D. Challenged ballotenvelopes containing unresolved chal-lenged ballots shall not be opened and thechallenges shall not be investigated unless,after the other ballots are counted, the chal-lenged ballots could be determinative of theoutcome of the election.

E. If the challenged ballotscould be determinative of the outcome ofthe election, the director shall declare thevote inconclusive; shall, as soon as possible,investigate the challenged ballots to deter-mine voter eligibility; and shall issue areport thereon or a notice of hearing withinfifteen (15) days of the election. Any partymay request board review of the director’sreport, following the procedures set forth inSection 22 above.

F. Following resolution ofdeterminative challenged ballots, the direc-tor shall count the ballot of voters found tobe eligible, adding the results of the earliercount and issuing a revised tally of ballots.[11.21.2.30 NMAC - N, 3-15-04]

11.21.2.31 TALLY OF BAL-LOTS: Immediately following the count-ing of ballots, the director shall serve a tallyof ballots upon one representative of eachparty. The tally shall show the number ofvotes cast for each labor organization listedon the ballot, the number of votes cast forno representation, the number challengedballots, and the percentage of employees inthe unit who cast ballots. The tally shallalso state whether the results are conclusive,and, if so, what the conclusive vote is. If thetally shows that fewer than forty percent(40%) of the employees in the unit voted, orthat the choice of “no representation”received fifty percent (50%) or more of thevalid votes cast, then the tally shall reflectthat no collective bargaining representationwas selected.[11.21.2.31 NMAC - N, 3-15-04]

11.21.2.32 RUN-OFF ELEC-TIONS: In an election where there arethree or more choices on the ballot, if noballot choice receives a majority of the validvotes cast, and at least forty percent (40%)of eligible voters voted, the director shallset a run-off election in which voters will bepermitted to cast ballots for the two choicesthat received the highest number of votes.A new tally shall be issued and served fol-lowing the counting of the votes of a run-offelection. A run-off election must be con-ducted within the fifteen (15) day statutoryperiod following completion of the initialelection.[11.21.2.32 NMAC - N, 3-15-04]

11.21.2.33 CERTIFICATION: If


no objections are filed pursuant to Section34, below, then within ten (10) days follow-ing service of the final tally, the directorshall issue a certification of representative,showing the name of the labor organizationselected and setting forth the bargainingunit, or a certification of results, showingthat no labor organization was selected asbargaining representative.[11.21.2.33 NMAC - N, 3-15-04]

11.21.2.34 O B J E C T I O N S :Within five (5) days following the service ofa tally of ballots, a party may file objectionsto conduct affecting the result of the elec-tion. The director shall, within thirty (30)days of the filing of such objections, inves-tigate the objections and issue a reportthereon. Alternatively, the director mayschedule a hearing on the objections withinthirty (30) days of the filing of the objec-tions. A determination to hold a hearing isnot reviewable by the board and shall fol-low the same procedures set forth in Section19(2)(3), and (4), Section 20 and Section 21above. A party adversely affected by thedirector’s or hearing examiner’s report mayfile a request for review with the boardunder the same procedures set forth inSection 22, above. If the director, hearingexaminer or board finds that the objectionshave merit and that conduct improperlyinterfered with the results of the election,then the results of the election may be setaside and a new election ordered. In thatevent, the director in his or her discretionmay retain the same period for determiningeligibility to vote as in the election that wasset aside, or may establish a new eligibilityperiod for the new election.[11.21.2.34 NMAC - N, 3-15-04]

11.21.2.35 AMENDMENT OFCERTIFICATION: A petition for amend-ment of certification may be filed at anytime by an exclusive representative or anemployer to reflect such a change as achange in the name of the exclusive repre-sentative or of the employer, or a change inthe affiliation of the labor organization. Thedirector shall dismiss such a petition withinthirty (30) days of its filing if the directordetermines that it raises a question concern-ing representation. If the director finds suf-ficient facts to show that the amendmentshould be made, after giving all partiesnotice and an opportunity to submit theirviews, the director shall issue an amend-ment of certification within thirty (30) daysof the filing of the petition. The director’sdecision dismissing the petition or issuanceof amended certification may be appealed tothe board pursuant to the procedures set outin Section 22, above.[11.21.2.35 NMAC - N, 3-15-04]

11.21.2.36 CERTIFICATIONOF INCUMBENT BARGAINING STA-TUS: A labor organization that was recog-nized by a public employer as the exclusiverepresentative of an appropriate bargainingunit on June 30, 1999 shall be recognized asthe exclusive representative of the unit.Such labor organization may petition fordeclaration of bargaining status underSection 24(B) of the act by submitting apetition accompanied by a showing ofmajority support within that unit such apetition for certification of incumbent basedon prior recognition shall not raise an issueof representation. The director shall inves-tigate the petition and, within thirty (30)days of the filing of the petition, shall issuea report and certification, a report and dis-missal, or a notice of hearing. A determina-tion by the director certifying the petitioneror dismissing the petitioner shall be appeal-able to the board under the procedures setforth in Section 22, above.[11.21.2.36 NMAC - N, 3-15-04]

11.21.2.37 UNIT CLARIFICA-TION:

A. Except as provided inSection 24(A) of the act, where the circum-stances surrounding the creation of an exist-ing collective bargaining unit are alleged tohave changed sufficiently to warrant achange in the scope and description of thatunit, or a merger or realignment of previ-ously existing bargaining units representedby the same labor organization, either theexclusive representative or the employermay file with the director a petition for unitclarification. Such a petition seekingrealignment of existing units into horizontalunits may be filed and processed only whenit relates to state employees.

B. Upon the filing of apetition for unit clarification, the directorshall investigate the relevant facts, and shalleither set the matter for hearing or shallissue a report recommending resolution ofthe issues within thirty (30) days of the fil-ing of the petition. In the director’s investi-gation or through the hearing, the directoror hearing examiner shall determinewhether a question concerning representa-tion exists and, if so, shall dismiss the peti-tion.

C. If the director or hear-ing examiner determines that no questionconcerning representation exists and thatthe petitioned-for clarification is justifiedby the evidence presented, the director orhearing examiner shall issue a report clari-fying the unit within thirty (30) days of thefiling of the petition if no hearing is deter-mined necessary, or within thirty (30) daysof the hearing if a hearing is determinednecessary. If the director determines that aquestion concerning representation exists,

he or she shall dismiss the petition.D. A director or hearing

examiner determination on a unit clarifica-tion petition shall be appealable to the boardunder the same procedures set forth inSection 22, above.[11.21.2.37 NMAC - N, 3-15-04]

11.21.2.38 ACCRETIONA. The exclusive represen-

tative of an existing collective bargainingunit, or the employer of employees whobelong to an existing collective bargainingunit may petition the board to include in theunit employees who do not belong, at thetime the petition is filed, to any existing bar-gaining unit, who share a community ofinterest with the employees in the existingunit, and whose inclusion in the existingunit would not render that unit inappropri-ate.

B. If the number ofemployees in the group sought to be accret-ed is less than ten percent (10%) of thenumber of employees in the existing unit,the board shall presume that their inclusiondoes not raise a question concerning repre-sentation requiring an election, and the peti-tioner may proceed by filing a unit clarifi-cation petition under these rules. Such aunit clarification petition to be processed,must be accompanied by a showing of inter-est demonstrating that no less than thirtypercent (30%) of the employees in thegroup sought to be accreted wish to be rep-resented by the exclusive representative aspart of the existing unit. No group ofemployees may be accreted to an existingunit without an election if the board deter-mines that such group would constitute aseparate appropriate bargaining unit.

C. If the number ofemployees in the group sought to be accret-ed is greater than ten percent (10%) of thenumber of employees in the existing unit,the board shall presume that their inclusionraises a question concerning representation,and the petitioner may proceed only by fil-ing a petition for an election under theserules. Such a petition, in an accretion situa-tion, must be accompanied by a showing ofinterest demonstrating that no less than thir-ty percent (30%) of the employees in thegroup sought to be accreted wish to be rep-resented by the exclusive representative aspart of the existing unit.[11.21.2.38 NMAC - N, 3-15-04]

11.21.2.39 V O L U N T A R YRECOGNITION:

A. A labor organizationrepresenting greater than majority supportof employees in an appropriate collectivebargaining unit and a public employer, aftera petition for certification has been filed,may enter into a voluntary recognition


agreement in which the employer recog-nized the labor organization as the exclusiverepresentative of all of the employees in theunit. Such petition shall be accompanied bya showing of majority support, which shallbe verified in accordance with the proce-dures of Section 11, above.

B. Prior to board approvalof any voluntary recognition, the directorshall post notice of filing of petition in themanner provided for in Section 15, above.The director shall also give notice to anyindividuals or labor organizations that regis-ter with the director to be informed of suchpetitions.

C. If an intervenor doesnot file a petition for intervention within ten(10) days then the board shall consider thepetition for approval of the voluntary recog-nition if accompanied by consent of theemployer.

D. The board shall treat avoluntary recognition relationship so estab-lished and approved the same as a relation-ship established through board election andcertification, unless the board finds theagreed-to bargaining unit to be inappropri-ate. In that event, the board may require thefiling and processing of a petition as pro-vided for in these rules, and the conduct ofan election, before recognizing the relation-ship.

E. If an intervenor files aproper petition pursuant to Section 16above, within the ten (10) day time period,then the board may not approve a voluntaryrecognition, and the director shall proceedin the manner set forth for representationpetitions as provided in Section 10 to 14 and17 to 34 above.[11.21.2.39 NMAC - N, 3-15-04]

11.21.2.40 PETITION WITH-DRAWAL: The petitioner in a representa-tion proceeding may request permission ofthe director to withdraw the petition at anytime prior to an initial election. The direc-tor may grant such a withdrawal requestonly after soliciting the positions of all par-ties and, in his or her discretion, maydecline to approve the withdrawal request.[11.21.2.40 NMAC - N, 3-15-04]

11.21.2.41 SEVERANCE PETI-TION: A severance petition is a represen-tation petition filed by a labor organizationthat seeks to sever or slice a group ofemployees who comprise one of the occu-pational groups listed in 10-7E-13 NMSAfrom an existing unit for the purpose offorming a separate, appropriate unit. Itmust be accompanied by a thirty (30%) per-cent showing of interest among the employ-ees in the petitioned-for unit. It may befiled no earlier than ninety (90) days and nolater than sixty (60) days before the expira-

tion date of a collective bargaining agree-ment or may be filed at any time after theexpiration of the third year of a collectivebargaining agreement with a term of morethan three (3) years.[11.21.2.41 NMAC - N, 3-15-04]

History of 11.21.2 NMAC:Pre-NMAC History: The material in thispart was derived from that previously filedwith the commission of public records-staterecords center and archives:PELRB 2, Representation Proceedings,filed 3-18-93.

History of Repealed Material: 11 NMAC21.2, Representation Proceedings (filed 6-24-96), repealed as a result of the internalduration of rule, stated as 7-1-99.

Other History:PELRB 2, Representation Proceedings,filed 3-18-93 was renumbered and replacedby 11 NMAC 21.2, RepresentationProceedings, filed 6-24-96.11 NMAC 21.2, RepresentationProceedings, filed 6-24-96, was replaced by11.21.2 NMAC, RepresentationProceedings, effective 3-15-04.

Permanent.[11.21.3.4 NMAC - N, 3-15-04]


11.21.3.6 OBJECTIVE: Theobjective of Part 3 of Chapter 21 is to setforth an efficient and effective investigativeprocess for collection and evaluating infor-mation to determine whether publicemployers, public employees or labororganizations have engaged in activities orconduct that constitutes a violation of thePublic Employee Bargaining Act (10-7E-1to 10-7E-26 NMSA 1978).[11.21.3.6 NMAC - N, 3-15-04]

11.21.3.7 D E F I N I T I O N S :[RESERVED][11.21.3.7 NMAC - N, 3-15-04]

11.21.3.8 COMMENCEMENTOF CASE:

A. A prohibited practicescase shall be initiated by filing with thedirector a complaint on a form furnished bythe director. The form shall set forth, at aminimum, name, address and phone num-ber of the public employer, labor organiza-tion, or employee against whom the com-plaint is filed (the respondent) and of itsrepresentative if known, the specific sectionof the act claimed to have been violated; thename, address, and phone number of thecomplainant; a concise description of thefacts constituting the asserted violation; anda declaration that the information providedis true and correct to the knowledge of thecomplaining party. The complaint shall besigned and dated, filed with the director, andserved upon the respondent.

B. When an individualemployee files a prohibited practices com-plaint alleging a violation of Section 19(F),19(H), 20(C), or 20 (D) of the act, an inter-pretation given to the collective bargainingagreement by the employer and the exclu-sive representative shall be presumed cor-rect.[11.21.3.8 NMAC - N, 3-15-04]

11.21.3.9 L I M I T A T I O N SPERIOD: Any complaint filed more thansix (6) months following the conductclaimed to violate the act, or more than six(6) months after the complainant either dis-covered or reasonably should have discov-ered each conduct, shall be dismissed.[11.21.3.9 NMAC - N, 3-15-04]

11.21.3.10 FILING OFANSWER:

A. Within fifteen (15) days



TITLE 11 LABOR ANDWORKERS COMPENSATIONCHAPTER 21 L A B O RUNIONS/LABOR RELATIONSPART 3 P R O H I B I T E DPRACTICES PROCEEDINGS

11.21.3.1 ISSUING AGENCY:Public Employee Labor Relations Board,2929 Coors NW, Suite #303, Albuquerque,NM, 87120, (505) 831-5422.[11.21.3.1 NMAC - N, 3-15-04]

11.21.3.2 SCOPE: The scope ofPart 3 of Chapter 21 applies to publicemployers, public employees and labororganization as defined by the PublicEmployee Bargaining Act (10-7E1 to 10-7E-26 NMSA 1978).[11.21.3.2 NMAC - N, 3-15-04]


11.21.3.4 D U R A T I O N :

after service of a complaint, the respondentshall file with the director and serve uponthe complainant its answer admitting, deny-ing or explaining each allegation of thecomplaint. For purposes of this rule, theterm “allegation” shall mean any statementof fact or assertion of law contained in acomplaint. No particular form is requiredeither to state allegations or to answer them.

B. If a respondent in itsanswer admits or fails to deny an allegationof the complaint, the director, hearingexaminer or board may find the allegationto be true.[11.21.3.10 NMAC - N, 3-15-04]

11.21.3.11 DEFAULT DETER-MINATION: If a respondent fails to file atimely answer, the director shall serve onthe parties a determination of violation bydefault, based upon the allegations of thecomplaint and any evidence submitted insupport of the complaint.[11.21.3.11 NMAC - N, 3-15-04]

11.21.3.12 SCREENING /INVESTIGATION:

A. Upon receipt of a com-plaint, the director shall screen the com-plaint for facial adequacy. If the complaintis facially deficient, the director shall advisethe complainant of the deficiency and givethe complainant an opportunity to amendthe complaint within five (5) days. Absentan amendment curing a facially deficientcomplaint, the director shall dismiss thecomplaint, stating the reasons in writing andserving the dismissal on the parties. A com-plaint that is facially untimely pursuant toSection 9 shall be dismissed.

B. After screening a com-plaint, the director shall investigate the alle-gations. The director need not await the fil-ing of an answer before commencing theinvestigation. At the director’s request, thecomplainant shall immediately present tothe director all evidence available to thecomplainant in support of the complaint,including documents and the testimony ofwitnesses.

C. If a complainant fails totimely produce evidence in support of itscomplaint pursuant to the director’s request,or fails to produce evidence that in thedirector’s opinion is sufficient to supportthe allegations of the complaint, the directorshall request the complainant withdraw thecomplaint within five (5) days and, absentsuch withdrawal, shall dismiss the com-plaint stating the director’s reasons in writ-ing and serving the dismissal on all parties.[11.21.3.12 NMAC - N, 3-15-04]

11.21.3.13 APPEAL TO BOARDOF DIRECTOR’S DISMISSAL:

A. The director’s decision

to dismiss a complaint shall be subject toboard review by the complainant filing withthe board and serving upon the other partiesa notice of appeal within ten (10) days fol-lowing service of the dismissal decision. Inits appeal, the complainant shall state theparticular findings or conclusions of thedirector to which it takes exception andshall identify specific evidence that thecomplainant presented or offered to thedirector which supports the complainant’sposition on appeal.

B. Within ten (10) daysafter service of a notice of appeal, any otherparty may file and serve a response to theappeal.

C. The board may consid-er the case on the papers filed with it or, inits discretion, may also hear oral argument.The board shall issue its decision affirmingthe director’s dismissal, ordering furtherinvestigation, or setting a hearing as soon asfeasible following its consideration of theappeal but in any event no later than its nextor the following regular meeting. The boardmay approve and incorporate in its decisionall or any part of the director’s dismissaldecision.[11.21.3.13 NMAC - N, 3-15-04]

11.21.3.14 NOTICE OF HEAR-ING: If the director, following investiga-tion and the filing of an answer, believesthat there is sufficient evidence that therespondent has committed a prohibitedpractice to warrant a hearing, the directorshall designate a hearing examiner, set ahearing, and serve a notice of the hearingupon all parties. The director shall dismissthe complaint or set a hearing within thirty(30) days of filing of the complaint. A hear-ing shall be scheduled within forty-five (45)days of the filing of the complaint.[11.21.3.14 NMAC - N, 3-15-04]

11.21.3.15 PRE-HEARING SET-TLEMENT EFFORTS:

A. Following service of anotice of hearing and before commence-ment of the hearing, the director shallattempt to settle the complaint with the par-ties. If the parties achieve a settlement, theyshall reduce it to writing and submit it to thedirector for approval.

B. If the complaint cannotbe settled by the parties prior to the hearing,the matter shall proceed to hearing.However, the complaint may be settled bythe parties at any time prior to hearing.

C. The director or hearingexaminer may submit a proposed settlementagreement to the board for its approvalbefore the settlement becomes final.

D. The complainant maywithdraw the complaint at any time prior tohearing, without approval by the director or

the board. After commencement of thehearing, the complaint shall not be with-drawn or settled without the approval of thehearing examiner. After a hearing examin-er’s report has been issued, a complaint maynot be withdrawn without board approval.[11.21.3.15 NMAC - N, 3-15-04]

11.21.3.16 P R O H I B I T E DPRACTICES HEARINGS:

A. In the absence of anapproved settlement agreement, the hearingexaminer shall conduct a formal hearing,assigning the burden of proof and the bur-den of going forward with the evidence tothe complainant, as stated in 11.21.1.22NMAC.

B. The hearing examiner,in his or her discretion, may examine wit-nesses, call witnesses, or call for the intro-duction of documents.[11.21.3.16 NMAC - N, 3-15-04]

11.21.3.17 BRIEFS: The filing ofpost-hearing briefs shall be permitted on thesame basis as provided by 11.21.1.20NMAC for briefs in representation cases.[11.21.3.17 NMAC - N, 3-15-04]

11.21.3.18 HEARING EXAMIN-ER REPORTS: The hearing examinershall issue his or her report within the sametime limits and following the same require-ments provided in 11.21.1.21 NMAC forhearing examiner reports in representationcases.[11.21.3.18 NMAC - N, 3-15-04]

11.21.3.19 APPEAL TO BOARDOF HEARING EXAMINER’S RECOM-MENDATION:

A. Any party aggrieved bythe hearing officer’s recommendation mayobtain board review by filing with the boardand serving on the other parties a notice ofappeal within ten (10) days following serv-ice of the hearing officer’s report. Thenotice of appeal shall specify which find-ings, conclusions, or recommendations towhich exception is taken and shall identifythe specific evidence presented or offered atthe hearing that supports each exception.

B. Any other party mayfile a response to notice of appeal within ten(10) days of service of the notice of appeal.

C. The board may deter-mine an appeal on the papers filed or, in itsdiscretion, may also hear oral argument.The board shall decide the appeal and issueits decision within sixty (60) days of thenotice of appeal. The board may issue adecision adopting, modifying, or reversingthe hearing examiner’s recommendations ortaking other appropriate action. The boardmay incorporate all or part of the hearingexaminer’s report in its decision.


D. If notice of appeal isnot filed within the time set out inSubsection A of 11.21.3.19 NMAC, thehearing examiner’s report and recommend-ed decision shall be transmitted immediate-ly to the board which may pro forma adoptthe hearing examiner’s report and recom-mended decision as its own. In that event,the report and decision so adopted shall befinal and binding upon the parties but shallnot constitute binding board precedent.[11.21.3.19 NMAC - N, 3-15-04]

11.21.3.20 RELIEF FROMPROHIBITED PRACTICES DETER-MINATION: A party may move to setaside a default determination enteredagainst it within thirty (30) days after theservice thereof. Said motion shall be servedupon all other parties and shall set out indetail the reasons in support thereof. Uponfinding good cause for the motion and with-in thirty (30) days of the filing of suchmotion, the director or board shall ordersuch further proceeding as it deems appro-priate. The failure to act within thirty (30)days after the filing of such motion shallconstitute a denial of the motion.[11.21.3.20 NMAC - N, 3-15-04]

11.21.3.21 ADMINISTRATIVEAGENCY DEFERRAL: Where the boardbecomes aware that a complainant has initi-ated another administrative or legal pro-ceeding based on essentially the same factsand raising essentially the same issues asthose raised in the complaint, the board maytake any of the following actions, at theboard’s discretion:

A. The board may hold theproceedings under the act in abeyance pend-ing the outcome of the other proceeding.

B. The board may go for-ward with its own processing. In so doing,the board may request that the other pro-ceedings be held in abeyance pending out-come of the board proceeding.In the event that the resolution of the pro-ceedings in such other forum is contrary tothe act, or all issues raised before the boardare not resolved, the board may proceedunder the provisions of 11.21.3 NMAC.

C. For purposes of thisrule, “board” shall mean the board or thedirector.[11.21.3.21 NMAC - N, 3-15-04]

11.21.3.22 A R B I T R A T I O NDEFERRAL:

A. If the subject matter ofa prohibited practices complaint requiresthe interpretation of a collective bargainingagreement; and the parties waive in writingany objections to timeliness or other proce-dural impediments to the processing of agrievance, and the director determines that

the resolution of the contractual disputelikely will resolve the issues raised in theprohibited practices complaint, then thedirector may, on the motion of any party,defer further processing of the complaintuntil the grievance procedure has beenexhausted and an arbitrator’s award hasbeen issued.

B. Upon its receipt of thearbitrator’s award, the complaining partyshall file a copy of the award with the direc-tor, and shall advise the director in writingthat it wishes either to proceed with the pro-hibited practice complaint or to withdraw it.The complaining party shall simultaneouslyserve a copy of the request to proceed orwithdraw upon all other parties.

C. If the complainingparty advises the director that it wishes toproceed with the prohibited practices com-plaint, or if the board on its own motion sodetermines, then the director shall reviewthe arbitrator’s award. If in the opinion ofthe director, the issues raised by the prohib-ited practices complaint were fairly present-ed to and fairly considered by the arbitrator,and the award is both consistent with the actand sufficient to remedy any violationfound, then the director shall dismiss thecomplaint. If the director finds that the pro-hibited practice issues were not fairly pre-sented to, or were not fairly considered by,the arbitrator, or that the award is inconsis-tent with the act, or that the remedy is inad-equate, then the director shall take suchother action as he or she deems appropriate.Among such other actions, the director mayaccept the arbitrator’s factual findings whilesubstituting his or her own legal conclu-sions and/or remedial requirements.

D. In the event that noarbitrator’s award has been issued withinone year following deferral under this rule,then the director may, after notice, dismissthe complaint.

E. The director’s decisioneither to dismiss or further process a com-plaint pursuant to this rule may be appealedto the board under the procedure set forth in11.21.3.13 NMAC. Interim decisions of thedirector under this rule, including the initialdecision to defer or not to defer further pro-cessing of a complaint pending arbitration,shall not be appealable to the board.[11.21.3.22 NMAC - N, 3-15-04]

History of 11.21.3 NMAC:Pre-NMAC History: The material in thispart was derived from that previously filedwith the commission of public records-staterecords center and archives:PELRB 3, Prohibited PracticesProceedings, filed 3-18-93.

History of Repealed Material: 11 NMAC21.3, Prohibited Practices Proceedings

(filed 6-24-96), repealed as a result of theinternal duration of rule, stated as 7-1-99.

Other History:PELRB 3, Prohibited PracticesProceedings, filed 3-18-93 was renumberedand replaced by 11 NMAC 21.3, ProhibitedPractices Proceedings, filed 6-24-96.11 NMAC 21.3, Prohibited PracticesProceedings, filed 6-24-96, was replaced by11.21.3 NMAC, Prohibited PracticesProceedings, effective 3-15-04.



TITLE 11 LABOR ANDWORKERS COMPENSATIONCHAPTER 21 L A B O RUNIONS/LABOR RELATIONSPART 4 IMPASSE RESOLU-TION

11.21.4.1 ISSUING AGENCY:Public Employee Labor Relations Board,2929 Coors NW, Suite #303, Albuquerque,New Mexico (505) 831-5422.[11.21.4.1 NMAC - N, 3-15-04]

11.21.4.2 SCOPE: The scope ofPart 1 of Chapter 21 applies to publicemployers, public employees and labororganization as defined by the PublicEmployee Bargaining Act (10-7E-1 to 10-7E-26 NMSA 1978).[11.21.4.2 NMAC - N, 3-15-04]




11.21.4.6 OBJECTIVE: Theobjective of Part 4 of Chapter 21 is toexplain the process in which a publicemployer or exclusive representative at thestate or local level may request third partyassistance for mediation to address a collec-tive bargaining negotiation impasse arisingunder the Public Employee Bargaining Act(10-7E-1 to 10-7E-26 NMSA 1978).[11.21.4.6 NMAC - N, 3-15-04]


11.21.4.8 STATE BARGAIN-ING MEDIATION: In collective bargain-ing negotiations involving the state and anexclusive representative of state employees,if the parties have failed to reach agreementby October 1 of the year in which bargain-ing commenced, either party may file arequest with the director for mediation serv-ices. If the parties have not agreed on amediator, the director shall, as quickly aspossible, request the federal mediation andconciliation service to provide a mediator.The mediator shall provide services untilthe parties have reached agreement or themediator believes mediation is no longerhelpful, or November 1, whichever occursfirst.[11.21.4.8 NMAC - N, 3-15-04]

11.21.4.9 STATE BARGAIN-ING ARBITRATION:

A. If an impasse occurs,either party may request from the board orlocal board that an arbitrator from the feder-al mediation and conciliation service beappointed. A list of seven (7) arbitrator’swill be provided to the parties, the partiesshall alternately strike names from the list.Who strikes first shall be determined bycoin toss. The arbitrator shall render a final,binding, written decision resolving unre-solved issues pursuant to Subsection E ofSection 17 of the Public EmployeeBargaining Act and the Uniform ArbitrationAct. (44-7(A)-1 to 44-7(A)-32 NSMA1978)

B. The arbitrator’s deci-sion shall be limited to a selection of one ofthe two parties complete, last, best offer.

C. The cost of an arbitratorand the arbitrator’s related costs conductedpursuant to the sub-section shall be sharedequally by the parties.

D. The decision of thearbitrator shall be subject to judicial reviewpursuant to the standards set forth in theUniform Arbitration Act.

E. A public employerother than the state may enter into a writtenagreement with the exclusive representativesetting forth an alternative impasse resolu-tion procedure.

F. In the event that animpasse continues after the expiration of acontract, the existing contract will continuein full force and effect until it is replaced bya subsequent written agreement.[11.21.4.9 NMAC - N, 3-15-04]

11.21.4.10 LOCAL BARGAIN-ING: PROCEDURES ESTABLISHEDBY AGREEMENT: If parties other than

the state and an exclusive representative ofpublic employees have entered into a writ-ten agreement setting forth procedures forthe resolution of collective bargainingimpasses between them, the parties shallfollow those procedures.[11.21.4.10 NMAC - N, 3-15-04]

11.21.4.11 LOCAL BARGAIN-ING MEDIATION: In the absence of awritten agreement between non-state par-ties, stating their impasse resolution proce-dures, if the parties reach impasse, they mayproceed to mediation with the assistance ofan agreed-upon mediator, or, if they havenot agreed upon a mediator, either partymay file a request with the director for theassignment of a mediator. Upon receivingsuch a request, the director shall request thefederal mediation and conciliation serviceto provide a mediator.[11.21.4.11 NMAC - N, 3-15-04]

11.21.4.12 LOCAL BARGAIN-ING: FACTFINDING:

A. If, sixty (60) days fol-lowing commencement of mediation, theparties have not reached agreement, eithermay file a request with the director to assigna factfinder to the negotiations. The direc-tor, after receiving such a request, shallassign a factfinder and shall issue a noticeof factfinding hearing. The factfinder maybe one agreed to by the parties or one select-ed from the list provided by the director, inaccordance with the procedure set forth inSubsection A of 11.21.4.9 NMAC.

B. No longer than fifteen(15) days following the close of the hearing,the factfinder shall serve upon the directorand the parties a written report making find-ings and stating his or her recommendationsfor the resolution of the issues that causedthe impasse.

C. If the parties have notentered into a collective bargaining agree-ment within ten (10) days following theirreceipt of the factfinder’s report, the direc-tor shall publish the report by making acopy of it available to the parties, the elect-ed officials of the local governing body, andlocal news media.[11.21.4.12 NMAC - N, 3-15-04]

11.21.4.13 MEDIATION ANDFACTFINDING FEES: All fees of medi-ation and/or factfinding shall be sharedequally by the parties.[11.21.4.13 NMAC - N, 3-15-04]

History of 11.21.4 NMAC:Pre-NMAC History: The material in thispart was derived from that previously filedwith the commission of public records-staterecords center and archives:PELRB 4, Impasse Resolution Proceedings,

filed 3-18-93.

History of Repealed Material: 11 NMAC21.4, Impasse Resolution Proceedings (filed6-24-96), repealed as a result of the internalduration of rule, stated as 7-1-99.

Other History:PELRB 4, Impasse Resolution Proceedings,filed 3-18-93 was renumbered and replacedby 11 NMAC 21.4, Impasse ResolutionProceedings, filed 6-24-96.11 NMAC 21.4, Impasse ResolutionProceedings, filed 6-24-96, was replaced by11.21.4 NMAC, Impasse Resolution, effec-tive 3-15-04.



TITLE 11 LABOR ANDWORKERS COMPENSATIONCHAPTER 21 L A B O RUNIONS/LABOR RELATIONSPART 5 APPROVAL OFLOCAL BOARDS

11.21.5.1 ISSUING AGENCY:Public Employee Labor Relations Board,2929 Coors NW, Suite #303, Albuquerque,NM 87120, (505) 831-5422.[11.21.5.1 NMAC - N, 3-15-04]

11.21.5.2 SCOPE: The scope ofPart 5 of Chapter 21 applies to publicemployers and labor organizations asdefined by the Public Employee BargainingAct (1-7E-1 to 10 7E-26 NMSA 1978).[11.21.5.2 NMAC - N, 3-15-04]




11.21.5.6 OBJECTIVE: Theobjective of Part 5 Chapter 21 is to identifyand process information necessary for apublic employer other than the state to filean application with the public employeelabor relations board to obtain approval forestablishing and operating a local laborboard and post-approval reporting require-

ments.[11.21.5.6 NMAC - N, 3-15-04]


11.21.5.8 APPLICATION: Anypublic employer other than the state thatwishes to create a local public employeelabor relations board shall file an applica-tion for approval with the state board.[11.21.5.8 NMAC - N, 3-15-04]

11.21.5.9 ABATEMENT: Theboard shall abate, for a period of sixty (60)days, the processing of any matter filed withit which would come within the cognizanceof the local board whose application ispending approval. All limitations periods,whether applicable to representation or pro-hibited practice matters, shall be tolled dur-ing the pendency of any such application.[11.21.5.9 NMAC - N, 3-15-04]

11.21.5.10 LETTER OFINTENT: A public employer may file withthe board a letter of intent to establish alocal board within the meaning of the act.In the event such a letter of intent is filed,the processing of any matter thereafter filedwith the board, which would fall within thecognizance of such local board, shall beabated for thirty (30) days during whichperiod the public employer shall file a for-mal application for approval of a localboard as provided in 11.21.5.8 NMAC.[11.21.5.10 NMAC - N, 3-15-04]

11.21.5.11 CRITERIA FORREVIEW: The board shall review allapplication for approval of local boards inlight of the requirements of Section 10 ofthe act (NMSA 10-7E-10) and upon a find-ing that the application for the local boardmeets the statutory standards shall approvesuch application and remand to the localboard any proceedings held in abeyance.[11.21.5.11 NMAC - N, 3-15-04]

11.21.5.12 CORRECTION FOL-LOWING REVIEW: In the event that anapplication demonstrates that the localboard does not meet the standards ofSection 10 of the act (NMSA 10-7E-10) theapplication shall be rejected and returned tothe public employer. Thereupon, the publicemployer shall have a period of the balanceof the sixty (60) days, or an additional ten(10) days from receipt of the notice of rejec-tion, whichever is later, in which it maymake such changes as are necessary to qual-ify for approval and then may resubmit itsapplication, or may take such other actionas it may deem to be appropriate. Any mat-ters then pending before the board relevant

to that public employer shall be processedin accordance with the board’s procedures.[11.21.5.12 NMAC - N, 3-15-04]

11.21.5.13 CONTENTS OFAPPLICATION: The application forapproval shall include, at a minimum, thefollowing:

A. the name of the localpublic employer;

B. the name, address andphone number of the local governing body;

C. a certified copy of theordinance; resolution, or charter amend-ment creating, or which will create the pro-posed local board;

D. a description of thecomposition of the local board and themethod of appointment of the members tothe local board;

E. a statement or represen-tation that the term of the local board mem-bers shall not exceed one year, and a repre-sentation that a local board member mayserve an unlimited number of terms;

F. a description of themanner in which vacancies to the localboard shall be filled;

G. a statement or represen-tation that no local board member shall holdor seek any other public office or publicemployment or be an employee of anyorganization representing public employeesor public employers;

H. a representation that allcompensation to local board members shallbe in accordance with the provisions of theNew Mexico Per Diem and Mileage Act.[11.21.5.13 NMAC - N, 3-15-04]

11.21.5.14 REVIEW OF LOCALBOARD APPLICATIONS BY THEBOARD: Upon receiving an applicationfor approval of a local board, the board shallconduct an administrative review of theapplication and at a properly noticed publicmeeting or hearing, shall formally considerand approve or disapprove the application.Public notice of such meetings or hearingsshall be provided as required by law. Inconsidering an application for approval of alocal board, the board shall approve suchapplication upon finding that the local boardmeets the requirements of Section 10 of theact (NMSA 10-7E-10). The board mayrequire that the ordinance, resolution orcharter amendment creating the local boardbe amended as necessary in order to meetthe requirements of Section 10 (NMSA 10-7E-10) and to be approved.[11.21.5.14 NMAC - N, 3-15-04]

11.21.5.15 POST-APPROVALREPORTING REQUIREMENTS:Following board approval of a local board,the local board, or the public employer that

created it, shall file with the board anyamendments to the ordinance, resolution, orcharter amendment, creating the local boardwhich are relevant to Section 10 of the act(NMSA 10-7E-10). Upon a finding by theboard that the local board no longer meetsthe requirements of Section 10 of the act(NMSA 10-7E-10), the local board shall beso notified and be given a period of thirty(30) days to come into compliance or priorapproval shall be revoked.[11.21.5.15 NMAC - N, 3-15-04]

11.21.5.16 REVOCATION OFAPPROVAL OF LOCAL BOARD: Uponthe issuance of a final order or judgment bya court of competent jurisdiction, find that alocal board is not in compliance with theact, all matters theretofore pending beforethe local board shall be removed to andcome under the jurisdiction of the board.[11.21.5.16 NMAC - N, 3-15-04]

History of 11.21.5 NMAC:Pre-NMAC History: The material in thispart was derived from that previously filedwith the commission of public records-staterecords center and archives:PELRB 5, Approval of Local Boards, filed3-18-93.

History of Repealed Material: 11 NMAC21.5, Approval of Local Boards (filed 6-24-96), repealed as a result of the internal dura-tion of rule, stated as 7-1-99.

Other History:PELRB 5, Approval of Local Boards, filed3-18-93 was renumbered and replaced by11 NMAC 21.5, Approval of Local Boards,filed 6-24-96.11 NMAC 21.5, Approval of Local Boards,filed 6-24-96, was replaced by 11.21.5NMAC, Approval of Local Boards, effec-tive 3-15-04.



TITLE 11 LABOR ANDWORKERS COMPENSATIONCHAPTER 21 L A B O RUNIONS/LABOR RELATIONSPART 6 C O N C U R R E N TPENDING RELATED CASES

11.21.6.1 ISSUING AGENCY:Public Employee Labor Relations Board,2929 Coors NW, Suite #303, Albuquerque,New Mexico 87120, (505) 831-5422.[11.21.6.1 NMAC - N, 3-15-04]

11.21.6.2 SCOPE: The scope ofPart 6 of Chapter 21 applies to public

employers, public employees and labororganizations as defined by the PublicEmployee Bargaining Act (10-7E-1 to 10-7E-26 NMSA 1978).[11.21.6.2 NMAC - N, 3-15-04]




11.21.6.6 OBJECTIVE: Theobjective of 11.21.6 NMAC is to clarifyother rules and to identify the methods usedby the public employee labor relationsboard for handling inter-related matters insituations not expressly governed by otherrules such as processing and adjudicationconcurrently pending representation peti-tions, prohibited practice complaint pro-ceedings, and applications for local boards.[11.21.6.6 NMAC - N, 3-15-04]


11.21.6.8 RELATED MAT-TERS: When two or more related mattersas set forth below are currently pendingbefore the board, the following proceduresshall apply irrespective of the order of fil-ing. The provisions of 11.21.6 NMAC areintended to clarify other rules and to pro-vide for the board’s handling of inter-relat-ed matters in situations not expressly cov-ered by other rules, however, in the event ofa conflict between this and any previouslyadopted rule, this rule supersedes any con-trary provision of any order rule.[11.21.6.8 NMAC - N, 3-15-04]

11.21.6.9 LETTER OFINTENT AND/OR APPLICATIONSFOR APPROVAL OF LOCAL BOARDSAND REPRESENTATION PETITIONS:Where a letter of intent and/or applicationfor approval of a local board and a repre-sentation petition(s) involving the samepublic employer are pending before theboard, the director, is his/her discretion,may abate the processing of the representa-tion petition(s) as provided for in 11.21.5NMAC. In no event, shall the processing ofa representation petition be abated when

either a notice of hearing pursuant to11.21.2.19 NMAC or a notice of electionpursuant to 11.21.2.26 NMAC has issued.[11.21.6.9 NMAC - N, 3-15-04]

11.21.6.10 LETTER OFINTENT AND/OR APPLICATIONSFOR APPROVAL OF LOCAL BOARDSAND PROHIBITED PRACTICE COM-PLAINTS: Where a letter of intent and/orapplication for approval of a local board ispending and a prohibited practice complaintis filed alleging that the public employer’sordinance, resolution or charter amend-ment, providing for bargaining for itsemployees violates the relevant provisionsof the Public Employee Bargaining Act, theboard shall abate consideration of theapproval of the local board until such timethat the prohibited practice complaint hasbeen disposed of pursuant to the provisionsof 11.21.3 NMAC. The board, in its dis-cretion, may consolidate for purposes ofhearing and decision the application forapproval of the local board and the prohib-ited practice complaint. Where a local ordi-nance, resolution or charter amendmentspecifically authorizes the local board todecide whether its enabling ordinance, reso-lution or charter amendment violates therelevant provisions of the Public EmployeeBargaining Act and a joint request to trans-fer the prohibited practice complaint to thejurisdiction of the local board is submitted,the board shall forthwith consider the appli-cation for approval of the local board pur-suant to the relevant provisions of 11.21.5NMAC and upon the approval of the localboard, the board shall transfer the prohibit-ed practice complaint to the local board.[11.21.6.10 NMAC - N, 3-15-04]

11.21.6.11 LETTERS OFINTENT AND/OR APPLICATIONSFOR APPROVAL OF LOCAL BOARDSAND IMPASSE RESOLUTION PRO-CEEDINGS: Where a letter of intentand/or application for approval of a localboard and a request to invoke the board’simpasse resolution proceedings involvingthe same public employer are pendingbefore the board, the director, in his/her dis-cretion, may abate the processing of theimpasse resolution request. In no event,shall action on such request be abated whenthe director has requested in writing theservices of a mediator.[11.21.6.11 NMAC - N, 3-15-04]

11.21.6.12 MEANING OFTERM: For purposes of this Part 6 theterm “pending before the board” is meant toinclude matters pending before the directorand matters pending before the board.[11.21.6.12 NMAC - N, 3-15-04]

History of 11.21.6 NMAC:Pre-NMAC History: The material in thispart was derived from that previously filedwith the commission of public records-staterecords center and archives:PELRB 6, Concurrently Pending Cases,filed 3-18-93.

History of Repealed Material: 11 NMAC21.6, Concurrently Pending Related Cases(filed 6-24-96), repealed as a result of theinternal duration of rule, stated as 7-1-99.

Other History:PELRB 6, Concurrently Pending Cases,filed 3-18-93 was renumbered and replacedby 11 NMAC 21.6, Concurrently PendingRelated Cases, filed 6-24-96.11 NMAC 21.6, Concurrently PendingRelated Cases, filed 6-24-96, was replacedby 11.21.6 NMAC, Concurrently PendingRelated Cases, effective 3-15-04.


NEW MEXICO PUBLICREGULATION COMMISSIONUTILITY DIVISION

NMPSC Rule 640, Purchased GasAdjustment Clauses for Gas Utilities, filed9-2-92, is repealed effective 3-15-04.

NEW MEXICO PUBLICREGULATION COMMISSIONUTILITY DIVISION

TITLE 17 PUBLIC UTILITIESAND UTILITY SERVICESCHAPTER 10 GAS SERVICESPART 640 PURCHASED GASADJUSTMENT CLAUSES FOR GASUTILITIES

17.10.640.1 ISSUING AGENCY:New Mexico Public RegulationCommission. [17.10.640.1 NMAC - N, 3-15-04]

17.10.640.2 SCOPE: This ruleapplies to all natural gas utilities subject tothe commission’s jurisdiction. [17.10.640.2 NMAC - N, 3-15-04]

17.10.640.3 S T A T U T O R YAUTHORITY: NMSA 1978 Sections 8-8-15 and 62-8-7. [17.10.640.3 NMAC - N, 3-15-04]

17.10.640.4 D U R A T I O N :Permanent. [17.10.640.4 NMAC - N, 3-15-04]

17.10.640.5 EFFECTIVE DATE:

March 15, 2004, unless a later date is citedat the end of a section.[17.10.640.5 NMAC - N, 3-15-04]

17.10.640.6 OBJECTIVE: Thepurpose of this rule is to establish a proce-dure by which a natural gas utility may pro-pose a purchased gas adjustment clause(PGAC) that the commission will reviewpursuant to Subsection E of NMSA 1978Section 62-8-7. The PGAC is intended toensure the stability of the utility’s annualearnings consistent with the utility’s duty toprovide adequate service at just and reason-able rates. The PGAC mechanism also isdesigned to aid in the levelization of the gascost factor reflected in the PGAC compo-nent of the customer’s bill. [17.10.640.6 NMAC - N, 3-15-04]

17.10.640.7 DEFINITIONS: Inaddition to the definitions contained inNMSA 1978 Section 62-3-3, as used in thisrule, unless otherwise specified:

A. annual reconciliationfactor means a computed surcharge or cred-it factor in the PGAC used to collect anyrevenue shortfall in the PGAC or to refundany excess revenue collected through thePGAC;

B. annual reconciliationfactor implementation period means thattwelve consecutive months comprising theperiod set forth in the utility’s PGAC for theimplementation of its annual reconciliationfactor;

C. annual reconciliationperiod means the historical period oftwelve consecutive months used for purpos-es of determining the PGAC balancingaccount under-collection or over-collection;

D. annual reconciliationreport means a report setting out all costsand revenues applicable to the utility'sPGAC and including the calculation of theannual reconciliation factor;

E. attorney generalmeans the attorney general of the state ofNew Mexico and the representatives andconsultants of the attorney general's office;

F. balancing accountmeans the account containing the currentcumulative over-collected or under-collect-ed gas costs or such other costs as orderedby the commission;

G. balancing accountadjustment factor means a mechanismemployed within the gas cost factor state-ment that allows the utility to make adjust-ments to the balancing account to managethe utility’s balancing account as necessary;

H. basic gas cost factormeans an interim factor developed duringthe calculation of the gas cost factor state-ment that considers all of the normal, recur-ring gas cost elements;

I. billing cycle means aregular periodic interval during which cer-tain customers of the utility are billed. Forpurposes of this rule, the billing cycle shallbe deemed to begin on the day of prepara-tion of bills for mailing for the utility’s firstbilling cycle in which the gas cost factorwill become effective;

J. billing factor meansthe gas cost factor applicable for a billingperiod;

K. billing period meansthat period of time that encompasses thedate of the first billing cycle through thedate of the last billing cycle;

L. gas costs mean thosetypes of costs defined by the utility in itsPGAC tariff as approved by the commissionfor recovery through the utility’s PGAC.No gas costs of customers of the utility notsubject to the PGAC shall be included in theutility’s PGAC calculations;

M. gas cost factor meansthe gas cost billing rate used in the utility’sbilling process for recovery of gas costs notincluded in the base rates;

N. gas cost factor state-ment (GCFS) means the filing required bya utility before an adjustment can be madein its gas cost factor;

O. gas supply plan meansa planning report that sets forth the steps toprovide a reliable gas supply at just and rea-sonable rates consistent with market condi-tions, regulatory requirements and otherauthorized purposes;

P. general service gascost factor means the factor determinedwithin the gas cost factor statement that isbilled directly to sales service customers forgas costs. This factor is the sum of the basicgas cost factor, the balancing accountadjustment factor, the producer/suppliersurcharge or refund factor, the annual rec-onciliation factor, any other surcharge orrefund factor authorized by the commission,and the factor for taxes and commissioninspection and supervision fees, if applica-ble;

Q. lowest reasonable costmeans gas supply procured at the lowestcost available at the time a gas contract isentered into or a purchase is made, consis-tent with supply reliability and operationalneeds of the utility;

R. month means a calen-dar month;

S. planning period meansa period of twelve consecutive months orlonger, beginning and ending in the monthsspecified in the utility’s PGAC;

T. producer / suppl iersurcharge or refund factor means a factorutilized to return refunds collected fromsuppliers or to surcharge additional itemsbilled by suppliers that are not recognized

elsewhere in the gas cost factor statement; U. purchased gas adjust-

ment clause (PGAC) means the mecha-nism that allows the utility to set gas costbilling rates for the purpose of recoveringgas costs on a continuing basis and allowsfor levelization of the gas cost factor reflect-ed in the PGAC component of the cus-tomer’s bill;

V. sales customer meansa customer of a utility who purchases gasfrom the utility rather than from a marketer,broker or other supplier;

W. staff means all personsemployed by or representing the utility divi-sion of the commission;

X. tariff means the filedrate schedule, including rates, rules, andforms, setting forth the obligations of theutility and its customers;

Y. verification periodmeans that time as established by this rulebetween the receipt of a gas cost factorstatement by the commission and the firstday of the first billing cycle in which theproposed gas cost factor will be placed ineffect;

Z. transportation cus-tomer means a customer of the utility whopurchases gas from a marketer, broker orsupplier other than the utility and/or obtainsonly transmission and/or distribution serv-ices from the utility;

AA. year means a consecu-tive twelve-month period as defined in theutility’s PGAC. [17.10.640.7 NMAC - N, 3-15-04]

17.10.640.9 APPLICATION FORAPPROVAL OF PGAC:

A. Any gas utility withoutan approved PGAC that requests to use aPGAC for the recovery of gas costs mustfile an initial application with the commis-sion. The filing requirements for the initialapplication are set forth in this section andin 17.10.640.12 NMAC.

(1) The utility’s initial applicationfor use of a PGAC shall include, at a mini-mum, the following:

(a) a detailed description and jus-tification of the gas cost factor calculationmethodology the utility proposes to use as abasis for the PGAC;

(b) proposed PGAC tariff provi-sions, which shall contain the specificmethodology for calculation of the gas costfactor as provided for in 17.10.64012NMAC;

(c) identification of the specificmonths in which the utility proposes tobegin and end its annual reconciliation peri-od, as provided for in Subsection C of17.10.640.13 NMAC, identification of thespecific months in which the utility propos-es to begin and end its annual reconciliation


factor implementation period, as providedfor in Subsection E of 17.10.640.13 NMAC,and identification of the annual date pro-posed for the filing of the utility’s gas sup-ply plan and the beginning and endingmonths proposed for the utility’s planningperiod, as provided for in Subsections B andD of this section;

(d) sufficient financial and othernecessary information and data to identifyand justify the inclusion and recovery ofallowable gas costs through the utility’sPGAC, including a demonstration that noamounts to be recovered under the opera-tion of the PGAC are included in other tar-iffs or charges for service; and

(e) an initial gas supply plan, asprovided for in Subsection B of this section.

(2) Sworn testimony and exhibitsexplaining the utility's proposal and demon-strating that its proposed PGAC complieswith this rule shall accompany an initialapplication for approval to use a PGAC.

(3) The utility may submit por-tions of its gas supply plan and initial appli-cation under seal as provided for inParagraph 3 of Subsection B of this section.

B. Any gas utility seekingcommission approval to use a PGAC shallfile with its initial application pursuant toSubsections A and C of this section a gassupply plan that describes the utility's plansto meet customer demands for supply andtransportation services throughout its serv-ice area and shows that its procurementpolicies are designed to ensure that gas sup-plies are purchased at the lowest reasonablecost. Any utility intending to continueusing its approved PGAC shall file a gassupply plan annually pursuant to SubsectionD of this section.

(1) The utility’s gas supply planshall include, at a minimum, the following:

(a) for the utility’s planning peri-od, information on the utility’s procurementrelated plans, including supply sources, pro-jected significant system modifications orimprovements, types and durations of con-tracts, generic pricing provisions, storagearrangements, and arrangements for pro-cessing, gathering, and transportation byothers of utility-owned gas supply;

(b) for the utility’s planning peri-od, information on projected demands forsales and transportation services;

(c) a description of foreseeablemarket or regulatory developments thatmay affect the plans described in the gassupply plan; and

(d) any other matters as may beordered by the commission.

(2) An officer of the utility shallverify the gas supply plan.

(3) The utility may submit underseal any portions of its gas supply plan thatreveal its contracted portfolio, its major

suppliers, transportation volumes, or itscontract pricing, on a contract-by-contractbasis, to the extent the utility deems specif-ic information to be confidential. The utili-ty also may seek a protective order underSubsection B of 17.1.2.8 NMAC for otherportions of its gas supply plan it considersconfidential, but the utility shall have theburden of proving its right to such protec-tion. Any information submitted under sealpursuant to this Paragraph shall remainunder seal for a period of two (2) years,after which time it shall become publicunless the utility seeks and obtains furtherprotection from the commission.Information submitted under seal shall beavailable for review by the commission andits designated representatives and by anyperson who has entered into a confidential-ity agreement with the utility in a formapproved by commission order.

C. An initial PGAC appli-cation shall be filed with the commissionand shall be reviewed and approved as pro-vided herein.

(1) A utility filing an initial PGACapplication shall contemporaneously withsuch filing mail a copy of such applicationto the attorney general and notification of itsfiling to the intervenors in the utility’s mostrecent general rate case.

(2) A utility’s initial PGAC appli-cation and proposed PGAC shall be deemedapproved thirty (30) days after the filing ofthe application unless otherwise ordered bythe commission.

(3) Any person or staff may file arequest for a hearing on an initial PGACapplication no later than twenty (20) daysafter the filing of the application. Therequest for hearing shall set forth clearly thegrounds for requiring a hearing and shallindicate whether the proposed hearing shallbe limited to specific issues. Upon receiptof a request for hearing, or upon its ownmotion, the commission may order a hear-ing, upon reasonable notice, on the initialPGAC application and may suspend theoperation of the PGAC proposed in theapplication, pursuant to NMSA 1978Section 62-8-7.

(4) The commission may approveall or part of the initial PGAC application.Approval of the application shall constituteapproval of the utility’s use of the proposedPGAC unless otherwise provided in thecommission’s order.

(5) A utility operating with anapproved PGAC shall continue to use itsapproved PGAC until the commissionorders otherwise.

D. A utility operating withan approved PGAC shall file an annual gassupply plan pursuant to Subsection B of thissection on or before the date specified forsuch filing pursuant to Subsection A of this

section and Paragraph 5 of Subsection A of17.10.640.12 NMAC. If the utility fails totimely file its annual gas supply plan asrequired by this subsection, the commissionmay terminate the utility’s PGAC and theutility automatically shall be subject tosanctions in accordance with NMSA 1978Sections 62-12-4 through 62-12-6.

(1) A utility filing an annual gassupply plan shall contemporaneously withsuch filing mail a copy of the report to theattorney general.

(2) An annual gas supply planfiled pursuant to this rule shall not bedeemed approved by the commission.

(3) Staff, the attorney general, orany other interested party may file a requestfor a hearing no later than twenty (20) daysafter the filing of the annual gas supplyplan. The request for hearing shall set forthclearly the grounds for requiring a hearingand shall indicate whether the proposedhearing shall be limited to specific issues.Upon receipt of a request for hearing orupon its own motion, the commission mayorder a hearing, upon reasonable notice, onany or all of the issues identified and oncontinued use of the PGAC, and may sus-pend the operation of any changes to theutility’s procurement program as describedin the gas supply plan, pursuant to NMSA1978 Section 62-8-7.

E. If a utility determinesthat a deviation from its most recently filedgas supply plan is required to achieve itsportfolio’s purposes or the objectives of thisrule, the utility shall file an update with thecommission which explains the deviationfrom the plan. Such deviation shall be sub-ject to the hearing provisions set forth inSubsection D of this section. [17.10.640.9 NMAC - N, 3-15-04]

17.10.640.10 AFFILIATE TRANS-ACTIONS: Any utility intending toinclude a transaction with an affiliate in itsPGAC shall comply with the requirementsof 17.6.450 NMAC, Affiliate Transactions. [17.10.640.10 NMAC - N, 3-15-04]

17.10.640.11 C O N T I N U AT I O NFILING:

A. Each utility operatingwith a PGAC as part of its tariff shall file anapplication for continued use of its PGAC atintervals of no more than four (4) years.The application must address the considera-tions described in Paragraphs (1) through(4) of Subsection E of NMSA 1978 Section62-8-7. A utility may elect to satisfy thisrequirement by presenting evidence and tes-timony either in a rate case or in a discretefiling.

B. If the utility fails totimely file its continuation filing as requiredby Subsection A of this section, the com-


mission may terminate the utility’s PGACand the utility automatically shall be subjectto sanctions in accordance with NMSA1978 Sections 62-12-4 through 62-12-6. [17.10.640.11 NMAC - N, 3-15-04]

17.10.640.12 PGAC TARIFF ANDGAS COST FACTOR STATEMENT:

A. Tariff filing. Theinformation required by Paragraphs 3through 6 of Subsection A of this sectionmay be included in a utility-specific rule orrate. Each utility shall file a tariff, subjectto commission approval, that includes at aminimum the following:

(1) a general description of thePGAC and its applicability to customers;

(2) a provision that rate changesshall be effectuated through the filing of agas cost factor statement as provided for inSubsection B of this section;

(3) the detailed methodology forthe calculation of the gas cost factor, includ-ing the accounting methodology used toensure that the effects that transportationimbalances may have on PGAC gas costsare substantially neutralized;

(4) specific identification and def-inition of all terms applicable to sales cus-tomers utilized in the calculation of the gascost factor, including but not limited to therecovery of unaccounted for gas and anyfuel and power used in connection with thetransportation and processing of gas;

(5) identification of the annualdate for the filing of the gas supply plan asprovided for in Subsections B and D of17.10.640.9 NMAC and of the beginningand ending months of the planning period asdefined in Subsection S of 17.10.640.7NMAC; and

(6) identification of the annualreconciliation period as provided for inSubsection C of 17.10.640.13 NMAC andthe annual reconciliation factor implemen-tation period as provided in Subsection E of17.10.640.13 NMAC.

B. Gas cost factor state-ment. The format for a utility’s gas costfactor statement, including definitions, shallbe submitted with its application forapproval of a PGAC as provided in Section9 of 17.10.640 NMAC. The GCFS shallinclude all data necessary for the commis-sion to review and verify the calculation ofthe resulting commodity billing factor.Each factor or term used, not previouslydescribed in this rule, shall be specificallydefined in each utility's PGAC. The timeperiod over which gas usage shall be billedusing the requested rate shall be specified inthe GCFS. Each GCFS filed shall be certi-fied by an officer of the utility. The GCFSshall include, if applicable, calculations ofthe following:

(1) an actual or estimated basic

gas cost factor;(2) a producer/supplier surcharge

or refund factor;(3) a balancing account adjust-

ment factor;(4) an annual reconciliation fac-

tor;(5) any other surcharge or refund

factor authorized by the commission;(6) a factor for inspection and

supervision fees and taxes to be applied torevenues generated by the resulting billingfactor;

(7) a general service gas cost fac-tor resulting from the summation of theabove components; and

(8) the amount and the duration ofsuch refund or surcharge, if an optionalmethodology for passing refunds or sur-charges through the PGAC as authorized bySubsection C of this section is implementedby the utility.

C. Tariff revisions. Atany time that the commission orderschanges in the utility's PGAC or the utilityproposes changes in its PGAC, the utilityshall file a revised tariff as provided for inSubsection A of this section, to the extentthat the utility's approved tariff provisionsrequire revisions. The utility's revised tariffshall be deemed approved thirty (30) daysafter the filing of the revised tariff unlessthe commission orders otherwise.

D. Filing verification andfactor effective date. The utility shall filea gas cost factor statement as provided forherein to begin a verification period whichshall be no less than fifteen (15) calendardays unless otherwise directed by the com-mission. The effective date for the newgeneral service gas cost factor shall bedeemed to be the first day of the first billingcycle containing the first day of the monthin the subsequent calendar month. Unlessotherwise directed by the commission, nochange in the utility’s general service gascost factor shall be made except at thebeginning of a billing cycle. General serv-ice gas cost factors will be applied to calen-dar month consumption. Calendar monthconsumption may be determined andapplied on a pro rata basis if a utilityemploys a billing cycle application wherebya billing cycle covers portions of two (2) ormore months. The commission shall actupon a utility’s gas cost factor statement fil-ing within the fifteen (15) day verificationperiod, otherwise the filing is deemedapproved.

E. Gas cost factor hear-ings. Staff or any interested party may filea complaint or challenge to the propriety ofany costs and revenues included in the util-ity's PGAC within sixty (60) days of any fil-ing by the utility made pursuant to NMSA1978 Section 62-10-1. Upon receipt of a

complaint or challenge, or upon its ownmotion pursuant to NMSA 1978 Section 62-10-1, the commission may direct the utilityto respond within thirty (30) days. Uponreceipt of the utility's response, the commis-sion may require a formal hearing. Pendinga hearing, the commission may allow thecosts to be placed into the PGAC subject torefund, suspend the inclusion of costs in thePGAC, or take any other reasonable actiondesigned to protect the interests identified inNMSA 1978 Section 62-3-1. To the extentallowed by law, the commission in its dis-cretion may order refunds of amounts col-lected or surcharges for amounts not col-lected under the provisions of this rule tothe customers of a gas utility when the com-mission determines, after notice and hear-ing, that the utility over-collected or under-collected such amounts. Unless otherwiseordered by the commission, formal hearingswill not be held prior to the effective date ofany adjustment determined in accordancewith the provisions of an approved PGAC.

F. Circumstances mate-rially impacting the cost of gas. The util-ity shall describe and explain any circum-stances that materially impact its cost of gasin its gas cost factor statement. Unlessspecifically approved by the commission,the utility shall justify the reasonableness ofany costs incurred due to these circum-stances prior to the inclusion of any gascosts in their PGAC. If the commissiondetermines to hold a hearing, it shall pro-vide five (5) days’ prior notice to the utility,public, attorney general, and intervenors ofrecord in the utility’s most recently filedgeneral rate case.[17.10.640.12 NMAC - N, 3-15-04]

17.10.640.13 ANNUAL PGACRECONCILIATION:

A. Annual reconciliation.Each utility filing an application for aPGAC or operating with a PGAC under theterms of this rule shall provide for an annu-al reconciliation of allowable gas costsincurred to billed gas costs as recorded onthe books and records of the utility. A utili-ty’s proposal for the annual reconciliationshall be consistent with the general provi-sions described below.

B. Purpose. The purposeof the annual reconciliation report is to:

(1) substantiate the appropriate-ness of the amount of the over-collected orunder-collected PGAC dollars remaining inthe PGAC balancing account at the end ofthe annual reconciliation period; and

(2) to establish the annual recon-ciliation factor for refunding or surchargingcustomers for that period’s PGAC balanc-ing account amount, unless the utility uti-lizes another commission-approved methodfor refunding or surcharging customers.


C. R e c o n c i l i a t i o nmethodology. In general, the PGAC bal-ancing account amount shall consist of thedifference between allowable gas costsincurred during the annual reconciliationperiod and gas costs billed during the sameperiod. The PGAC balancing accountamount shall also contain all applicableamounts included by order of the commis-sion. The reconciliation process shall sub-stantiate the PGAC balancing accountamount and shall be performed utilizing theamounts recorded on the books and recordsof the utility applicable to the annual recon-ciliation period. The annual reconciliationshall cover a period of twelve (12) consecu-tive historical months. The specific periodthat comprises the annual reconciliationperiod shall be applied for in the utility’sinitial application filing for a PGAC. Thespecific period may be changed by commis-sion order.

D. Annual reconciliationreport. An annual reconciliation reportshall be filed with the commission no laterthan four (4) months following the end ofthe annual reconciliation period. The annu-al reconciliation report shall be certified byan officer of the company to be true, cor-rect, and in compliance with the reconcilia-tion methodology determined herein. Theannual reconciliation report shall generallyconsist of, but not be limited to, the follow-ing.

(1) Agreed-upon procedures. Areport by an independent auditor, who shallperform agreed-upon procedures pursuantto Statement on Standards for AttestationEngagements (SSAE) No. 10 and No. 11 ,or successor auditing standards, shall besubmitted with the annual reconciliationreport. The auditor’s report shall set forththe procedures and findings of the review.

(2) Schedule of gas purchasesby account number. A summary scheduleshall be submitted detailing all applicablegas purchase dollars and volumes expensedfor the annual reconciliation period byaccount number as prescribed in the appli-cable uniform system of accounts. Theschedule shall also include, but not be lim-ited to, expenses associated with gas stor-age-related transactions, exchange transac-tions, and transactions related to the trans-portation of PGAC-related gas purchases.

(3) Schedule of gas purchasesby supplier. A summary schedule shall besubmitted detailing all applicable gas pur-chase dollars and volumes expensed for theannual reconciliation period by supplier.Purchases from suppliers totaling less than3% of total purchase costs for the periodshall be summed in an “All Others” catego-ry.

(4) Schedules of PGAC rev-enues. Schedules shall be submitted sum-

marizing gas sales dollars and volumesbilled and other PGAC revenues collectedand attributable to the annual reconciliationperiod.

(5) Schedule of costs and rev-enues billed. A schedule shall be submittedsummarizing the above schedules of costsand billed revenues, gas related taxes, rec-onciling items, and other applicableamounts for the annual reconciliation peri-od resulting in the total amount under-col-lected or over-collected from customers.This over-collected or under-collectedamount shall include an interest charge orcredit at the rate specified by NMSA 1978Section 62-13-13, or at such other rate asmay be approved by the commission.

(6) Calculation of the annual orother commission-approved reconcilia-tion methodology. A schedule shall besubmitted detailing the calculation of thefactor to be utilized in refunding or sur-charging the over-collected or under-col-lected amount.

E. Untimely filing ofannual reconciliation report. If the utilityfails to timely file its annual reconciliationreport as required by Subsection D of thissection, the commission may terminate theutility’s PGAC and the utility automaticallyshall be subject to sanctions in accordancewith NMSA 1978 Sections 62-12-4 through62-12-6.

F. Annual reconciliationfactor. The annual reconciliation factorshall be calculated by dividing the over-col-lection or under-collection amount by theestimated sales volumes in the annual rec-onciliation factor implementation period.The specific period of time that comprisesthe annual reconciliation factor implemen-tation period shall be applied for in the util-ity’s initial application filing for a PGAC,and the specific period may be changed bycommission order.[17.10.640.13 NMAC - N, 3-15-04]

17.10.640.14 EXTRAORDINARYCIRCUMSTANCES: Notwithstandingthe provisions of this rule and specificallySubsection C of 17.10.640.12 NMAC, thecommission may direct the utility to alter itscollections through the PGAC as providedherein.

A. Under-collection orover-collection situation. The utility mayapply to the commission or the commissionmay order a hearing on its own motionwhenever the utility or the commission hasgood reason to believe, on the basis ofinformation available to it at the time, thatthe presently effective gas cost factor or thegas cost factor adjustment proposed in anygas cost factor statement filed pursuant toSubsection D of 17.10.640.12 NMACwould result in a substantial under-collec-

tion or over-collection of revenue. B. Substantial gas cost

factor adjustments. The utility may applyto the commission or the commission mayorder a hearing on its own motion whenev-er the utility or the commission becomesaware of an extraordinary circumstanceunder which the gas cost factor adjustmentcalculated in accordance with this rule willresult in a substantial change in the level ofthe PGAC in the following billing periodand excessive fluctuations in the gas costfactor adjustments for future billing periods.

C. Mitigation of con-cerns. After notice and hearing, the com-mission may order the utility to place ineffect, for such period of time as the com-mission may direct, a specified increase ordecrease in the amount of the gas cost fac-tor or take any other action appropriate tothe public interest to mitigate the concernsidentified in Subsections A and B of thissection.[17.10.640.14 NMAC - N, 3-15-04]

17.10.640.15 EXEMPTION ORVARIANCE:

A. A utility may file awritten application for an exemption orvariance from this rule or its approvedPGAC, which shall be verified by an officerof the utility. The utility’s application for anexemption or variance shall:

(1) describe the need for a vari-ance;

(2) set out the effect of complyingwith this rule or the approved PGAC on theutility and its customers as a result of thecondition;

(3) identify any section of thisrule or the approved PGAC for which theexemption or variance is requested;

(4) define the result which therequest will have if granted;

(5) state how the exemption orvariance will meet the objectives of thisrule; and

(6) state why the requested reliefis a reasonable alternative.

B. A utility filing an appli-cation for an exemption or variance shallcontemporaneously with such filing mailcopies of such application to the attorneygeneral and the intervenors in the utility’smost recent general rate case.

C. An application by anyutility for an exemption or a variance shallstay the application of the affected portionof this rule or its PGAC for that utility for aperiod of sixty (60) days from the filing ofthe request, during which time the commis-sion may grant or deny the exemption orvariance, require that the utility file addi-tional information in support of the request,or set the matter for hearing. The stay shallbe extended automatically if the commis-


sion has not taken the above-noted actionwithin sixty (60) days after the filing of theapplication for variance or exemption. [17.10.640.15 NMAC - N, 3-15-04]

17.10.640.16 TERMINATION OFPGAC: If the commission orders termina-tion of the PGAC, the utility shall performan annual reconciliation in accordance withthe methodology prescribed in 17.10.640.13NMAC for the period of time between theend of the period included in its last annualreconciliation report and the date of termi-nation of the PGAC. The utility shall filewith the commission a final reconciliationreport consistent with the requirements ofthe annual reconciliation report underSubsection D of 17.10.640.13 NMAC andshall calculate and collect or refund a finalreconciliation factor consistent with therequirements of Subsection E of17.10.640.13 NMAC. [17.10.640.16 NMAC - N, 3-15-04]

HISTORY OF 17.10.640 NMAC:Pre-NMAC history: The material in thispart was derived from that previously filedwith the state records center and archives.PSC - GO 36 (General Order No. 36) Rulesand Regulations Governing Natural GasUtilities Purchased Gas AdjustmentClauses, filed 12-24-80.NMPSC Rule 640, Purchased GasAdjustment Clauses For Gas Utilities,(NMPSC Case No. 2086), filed 6-30-88. NMPSC Rule 640, Purchased GasAdjustment Clauses For Gas Utilities,(NMPSC Case No. 2360), filed 9-2-92.

History of repealed material:NMPSC Rule 640, Purchased GasAdjustment Clauses For Gas Utilities,(NMPSC Case No. 2360), repealed 3-15-04.

Other history:NMPSC Rule 640, Purchased GasAdjustment Clauses For Gas Utilities,(NMPSC Case No. 2360), filed 9-2-92,replaced by 17.10.640 NMAC, PurchasedGas Adjustment Clauses For Gas Utilities,effective 3-15-04.

107-252).E. “HAVA Title III”

means the section of Public Law 107-252titled “Uniform and NondiscriminatoryElection Technology and AdministrationRequirements”.

F. “HAVA Title III viola-tion” means an act contrary to a party’sstatutory rights regarding voting systemsstandards, provisional voting procedures,voter registration procedures, and opera-tional standards of the statewide voter regis-tration system as found in NMSA 1978,Section 1-2-2.1 and HAVA Title III. It doesnot mean non-Title III election law matters,such as a candidate’s ballot access or cam-paign reporting requirements.[1.10.18.7 NMAC - N, 03-15-2004]

1.10.18.8 INITIATING A COM-PLAINT:

A. Any person whobelieves a HAVA Title III violation hasoccurred, is occurring, or is about to occurmay file a written complaint, on thebureau’s complaint form, that states thename of the alleged violator and a specificdescription of the alleged HAVA Title IIIviolation.

B. The complaint must besigned and sworn or affirmed by the com-plainant and it must be notarized.

C. The complainant maycheck a box on the complaint requesting anon-the-record hearing or no hearing.

D. If the bureau deter-mines that the complaint is incomplete, thebureau shall promptly notify the com-plainant who may be permitted to amendthe complaint, in the sole discretion of thebureau.

E. If the bureau receivesduplicative or repetitive complaints, thebureau may consolidate these for assess-ment, investigation and resolution purposes.[1.10.18.8 NMAC - N, 03-15-2004]

1.10.18.9 INVESTIGATIONOF A COMPLAINT:

A. The bureau shall aspireto complete an initial investigation withinthirty (30) days of the bureau’s receipt ofthe complaint. If the complaint is madeagainst the bureau, a representative of thedistrict attorney shall aspire to complete aninitial investigation within the same timeperiod.

B. The investigation mayinclude the following steps as deemedappropriate under the circumstances: send-ing an acknowledgement letter to the com-plainant; seeking a response from the elec-tion official against whom a complaint ismade; providing the complainant with acopy of any response received from theelection official against whom a complaint


NEW MEXICO SECRETARY OF STATE

TITLE 1 GENERAL GOV-ERNMENT ADMINISTRATIONCHAPTER 10 ELECTIONS ANDELECTED OFFICIALSPART 18 ADMINISTRATIVECOMPLAINT PROCEDURE

1.10.18.1 ISSUING AGENCY:Office of the Secretary of State[1.10.18.1 NMAC - N, 03-15-2004]

1.10.18.2 SCOPE: This ruleapplies to any statewide special election,general election, primary election, county-wide election or election to fill vacancies inthe office of United States representativeand regular or special school district elec-tions as modified by the School ElectionLaw (Sections 1-22-1 to 1-22-19 NMSA1978).[1.10.18.2 NMAC - N, 03-15-2004]

1.10.18.3 S T A T U T O R YAUTHORITY: Election Code, Section 1-2-1 NMSA 1978, Section 1-2-2.1 NMSA1978, Public Law 107-252, The HelpAmerica Vote Act of 2002. The issuingauthority shall adopt rules for an adminis-trative procedure for hearing complaints onviolations of Title III of the Help AmericaVote Act of 2002, including provisionsrelating to voting system standards, provi-sional voting procedures, voter registrationprocedures and operational standards of thestatewide voter registration system.[1.10.18.3 NMAC - N 03-15-2004]

1.10.18.4 D U R A T I O N :Permanent[1.10.18.4 NMAC - N, 03-15-2004]

1.10.18.5 EFFECTIVE DATE:March 15, 2004 unless a later date is cited atthe end of a section.[1.10.18.5 NMAC - N, 03-15-2004]

1.10.18.6 OBJECTIVE: TheElection Code (Section 1-1-1 through 1-24-4 NMSA 1978) was amended by Chapter356, Laws 2003. The purpose of theamendment is compliance with the provi-sions of PL 107-252, effective October 29,2002, which requires New Mexico to estab-lish a state-based administrative complaintprocedure to remedy grievances under TitleIII of the Help America Vote Act.[1.10.18.6 NMAC - N, 03-15-2004]

1.10.18.7 D E F I N I T I O N S :Unless otherwise defined below, the termsused in these procedures share the same def-initions and meanings as the HAVA Act.

A. “Administrative pro-cedures” means the procedures stated inthis rule. These procedures will be avail-able in alternative languages and formats.

B. “Bureau” means theNew Mexico secretary of state’s bureau ofelections.

C. “Complaint form”means a template form created by thebureau that will be available in hard copy incounty clerk’s offices. A copy will also bemade available by mail and available on theoffice of the secretary of state’s website.

D. “HAVA” means theHelp America Vote Act of 2002 (Public Law

is made and give the complainant an oppor-tunity to reply; engaging in informal resolu-tion with the parties through a meeting, tele-conference, or other means; or dismissingthe complaint based on its clear failure toallege a Title III violation.

C. All written documentsthat are part of these administrative proce-dures, including the investigation, are pub-lic documents unless otherwise provided bylaw.[1.10.18.9 NMAC - N, 03-15-2004]

1.10.18.10 HEARING ON ACOMPLAINT:

A. If the complainantrequests a hearing and the bureau does notdismiss the complaint, the bureau willappoint a hearing officer to conduct a hear-ing on-the-record.

B. If the complainant didnot request a hearing and the bureau doesnot dismiss the complaint, the bureau shallmake a final determination in accordancewith the remedies provision of these admin-istrative procedures.

C. If the complaint ismade against the bureau, the office of thesecretary of state shall provide a neutralhearing officer who has no working or per-sonal relationship with the office of the sec-retary of state.

D. For all other com-plaints, the office of the secretary of stateshall provide a hearing officer. It may be,but is not limited to, an employee of theoffice of the secretary of state.

E. The bureau shall pro-vide a time, date and location for the hear-ing and shall send written notice to com-plainant and alleged violator at least fifteen(15) days prior to the hearing. If there is anexpedited hearing, the hearing officer shallprovide telephonic and facsimile notice.

F. Upon written request toanother party, any party may ask to obtainthe names and addresses of witnesses whowill or may be called by the other party totestify at the hearing and inspect and copyany documents that the other party will ormay introduce in evidence at the hearing.The party to whom such a request is madeshould comply with it within ten (10) daysafter the receipt of the request. The hearingofficer, however, has no statutory power toforce the parties to comply with theserequests.

G. If there is a hearing onthe record, the record will include, at a min-imum: the written complaint; writtenresponses to the complaint; documentationprovided in support of or in defense of thecomplaint; and written or audio record orany hearing or pre-hearing proceedings con-ducted by the hearing officer with regard tothe complaint.

H. The hearing officer hasthe discretion to grant continuances, to taketestimony or to examine witnesses. Thehearing officer may also hold conferencesbefore or during the hearing for the settle-ment or simplification of the issues.

I. The hearing officermay admit any evidence and may give pro-bative effect to evidence that is of a kindcommonly relied on by reasonably prudentpeople in the conduct of serious affairs. Thehearing officer may, in his discretion,exclude incompetent, irrelevant, immateri-al, and unduly repetitious evidence.

J. The bureau shall pro-vide a tape recording of any on-the-recordhearing. If a party wants a court reporter,that party must pay the cost.

K. If a person who hasrequested a hearing does not appear, and nocontinuance has been granted, the hearingofficer may hear the evidence of such wit-nesses as may have appeared, and the hear-ing officer may proceed to consider the mat-ter and dispose of it on the basis of the evi-dence before it. Where, because of acci-dent, sickness or other cause, a person failsto appear for a hearing that he has request-ed, the person may, within ten (10) days,apply in writing to the hearing officer toreopen the proceeding, and the hearing offi-cer upon finding sufficient cause shallimmediately fix a time and place for a hear-ing and give the person notice as requiredabove.[1.10.18.10 NMAC - N, 03-15-2004]

1.10.18.11 REMEDIES:A. The hearing officer

shall make a final determination regardingthe complaint within ninety (90) days afterthe complaint has been filed with the bureauunless the complainant agrees in writing toextend the deadline.

B. If a party, agency orhearing officer would like to extend thedeadline, it must receive written approvalfrom the complainant. If the complainantdoes not give approval, the complainantwill automatically proceed to alternativedispute resolution as found in the NewMexico Governmental Dispute Act, NMSA1978, Sections 12-8A-1 through 12-8A-5.The office of the secretary of state, if not aparty, must adopt the agreement reached bythe parties to the alternative dispute resolu-tion procedure within sixty (60) days afterthe complaint is referred to resolution.

C. The final determinationshall be in writing and shall be sent byreturn receipt requested mail to the com-plainant and alleged violator.

D. The final determinationmay dismiss the case or provide a remedyappropriate to the violation. In no eventshall the remedy involve either the payment

of money to the complainant or a findingthat an election official is subject to civilpenalties. An appropriate remedy mayinclude, but is not limited to any or all of thefollowing: written finding that Title III hasbeen violated; a plan for rectifying the par-ticular violation, an assurance that addition-al training will be provided to election offi-cials so as to ensure compliance with HAVATitle III and the New Mexico ElectionCode; and a commitment to better informvoters of their rights.

E. By posting a notice onits website and by distributing news releas-es as it deems appropriate, the office of thesecretary of state shall publicize the resultsof its assessment and investigation of thecomplaint that results in a finding that aTitle III violation has or has not occurred.[1.10.18.11 NMAC - N, 03-15-2004]

1.10.18.12 RIGHT OF APPEAL:These procedures do not grant a statutoryright of review.[1.10.18.12 NMAC - N, 03-15-2004]

HISTORY of 1.10.18 NMAC: [Reserved]


NEW MEXICODEPARTMENT OF

TRANSPORTATIONAVIATION DIVISION

This is an amendment to 18.11.7 NMAC,Sections 1, 5, 7, and 8. This action alsorenumbers 18.11.7 NMAC named,Requirements Governing the Salvage ofAbandoned Aircraft, from 18 NMAC 11.7,Requirements Governing the Salvage ofAbandoned Aircraft to conform to the cur-rent New Mexico Administrative Code(NMAC) requirements, effective 03/15/04.

18.11.7.1 ISSUING AGENCY:The New Mexico [State Highway andTransportation] Department ofTransportation, Aviation Division [, 550Pacheco Street 87505, P.O. Box 1149, SantaFe, NM 87504-1149, 505 827-1525].[11/30/98; 18.11.7.1 NMAC - Rn & A, 18NMAC 11.7.1, 03/15/04]

18.11.7.5 EFFECTIVE DATE:November 30, 1998, unless a later date iscited at the end of [this section or para-graph] a section.[11/30/98; 18.11.7.5 NMAC - Rn & A, 18NMAC 11.7.5, 03/15/04]

18.11.7.7 D E F I N I T I O N S :[NMSHTD - Means The New Mexico StateHighway and Transportation Department.]

A. NMDOT-means theNew Mexico department of transportation.

B. Aviation division -

means the aviation division of the NMDOT.[11/30/98; 18.11.7.7 NMAC - Rn & A, 18NMAC 11.7.7, 03/15/04]

18.11.7.8 APPLICATION:A. Application for an air-

craft salvage permit shall be made on a formprovided by the aviation division and shallinclude information pertinent to the aircraftlocation and land owner. The applicationshall include applicant's certification thatthe aircraft is abandoned as defined inNMSA 1978, Section 64-5-1; that applicanthas not been issued a permit for the sameaircraft, has not defaulted on a previous per-mit and agrees to the terms and conditionsof the permit as determined by the division.

B. The date the applicationis filed and the date land owner is notifiedshall be entered on the application. The fil-ing date shall be the date that the applicationis received in the aviation division office.The notification date is the date notice isreceived by the land owner by certifiedmail.[11/30/98; 18.11.7.8 NMAC - Rn & A, 18NMAC 11.7.8, 03/15/04]

[11/30/98; 18.11.9.6 NMAC - Rn & A, 18NMAC 11.9.6, 3/15/04]

18.11.9.7 DEFINITIONS:[A.] [NMSHTD Means The

New Mexico State Highway andTransportation Department.]

A. NMDOT - means theNew Mexico department of transportation.

B. Aviation division -means the aviation division of the NMDOT.

[B.] C. Sponsor - means theauthority responsible for the airport forwhich the grant is requested.[11/30/98; 18.11.9.7 NMAC - Rn & A, 18NMAC 11.9.7, 3/15/04]

18.11.9.8 PROJECT ELIGI-BILITY: Airports with regularly scheduledairline service utilizing aircraft with seatingcapacity in excess of [30]60 passengers, ora maximum payload capacity of more than[seven thousand five hundred] fifteen thou-sand pounds are not eligible for state fund-ing. Airports on private land are not eligi-ble for state funding unless the landownerfiles a written agreement with the aviationdivision director permitting public use ofthe facility without limit as to time.Airports receiving state funds shall notcharge landing fees for aircraft except foraircraft used in [scheduled air service orcommercial aircraft in excess of 18,000pounds]commercial activities for compen-sation.[11/30/98; 18.11.9.8 NMAC - Rn & A, 18NMAC 11.9.8, 3/15/04]


NEW MEXICODEPARTMENT OF


This is an amendment to 18.11.9 NMAC,Sections 1, 5, 6, 7 and 8. This action alsorenumbers 18.11.9 NMAC named,Governing the Approval of Grants, from 18NMAC 11.9, Governing the Approval ofGrants to conform to the current NewMexico Administrative Code (NMAC)requirements, effective 03/15/04.

18.11.9.1 ISSUING AGENCY:The New Mexico [State Highway andTransportation] Department ofTransportation, Aviation Division [, P.O.Box 1149, Santa Fe, NM 87504-1149, 505827-1525]. [11/30/98; 18.11.9.1 NMAC - Rn & A, 18NMAC 11.9.1, 3/15/04]

18.11.9.5 EFFECTIVE DATE:November 30, 1998, unless a later date iscited at the end of [this] a section [or para-graph].[11/30/98; 18.11.9.5 NMAC - Rn & A, 18NMAC 11.9.5, 3/15/04]

18.11.9.6 OBJECTIVE: Thepurpose of this rule is to establish proce-dures for the implementation of NMSA1978, Section 64-1-11 through 64-1-17,regulations governing the approval ofgrants by the [NMSHTD] NMDOT, avia-tion division.

End of Adopted Rules Section


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NEW MEXICO DEPARTMENT OF


NMAC Chapter Name Change

By request of the New Mexico Departmentof Transportation, Aviation Division, theCommission of Public Records consideredand approved the change of the name ofChapter 11 of Title 18 NMAC from“Airports” to “Aviation.” This namechange will take effect upon the next offi-cial filing of a new rule, amendment orrepeal in Chapter 11 of Title 18 NMAC.


Other Material Related to Administrative Law

End of Other RelatedMaterial Section


SUBMITTAL DEADLINES AND PUBLICATION DATES

The New Mexico Register is the official publication for all material relating to administrative law, such as notices of rule mak-ing, proposed rules, adopted rules, emergency rules, and other similar material. The Commission of Public Records,Administrative Law Division publishes the New Mexico Register twice a month pursuant to Section 14-4-7.1 NMSA 1978.For further subscription information, call 505-476-7907.

2004

Volume XV Submittal Deadline Publication Date Issue Number 1 January 2 January 15 Issue Number 2 January 16 January 30 Issue Number 3 February 2 February 13 Issue Number 4 February 16 February 27 Issue Number 5 March 1 March 15 Issue Number 6 March 16 March 31 Issue Number 7 April 1 April 15 Issue Number 8 April 16 April 30 Issue Number 9 May 3 May 14

Issue Number 10 May 17 May 28 Issue Number 11 June 1 June 15 Issue Number 12 June 16 June 30 Issue Number 13 July 1 July 15 Issue Number 14 July 16 July 30 Issue Number 15 August 2 August 13 Issue Number 16 August 16 August 31 Issue Number 17 September 1 September 15 Issue Number 18 September 16 September 30 Issue Number 19 October 1 October 14 Issue Number 20 October 15 October 29 Issue Number 21 November 1 November 15 Issue Number 22 November 16 November 30 Issue Number 23 December 1 December 14 Issue Number 24 December 15 December 30