AN ACT
RELATING TO PUBLIC UTILITIES; PROVIDING FOR TRANSITION COST
RECOVERY; PERMITTING INVESTMENT IN OR CONSTRUCTION, ACQUISITION OR OPERATION OF
CERTAIN GENERATING PLANTS; PERMITTING COMBINED GAS AND ELECTRIC DISTRIBUTION
UTILITIES TO FUNCTION WITHOUT SEPARATION; SETTING BILLING REQUIREMENTS;
PROVIDING APPLICATION AND APPROVAL PROCEDURES FOR DISTRIBUTION COOPERATIVE
UTILITIES; ELIMINATING THE PUBLIC UTILITY ACT FROM A DELAYED REPEAL; REPEALING
THE ELECTRIC UTILITY INDUSTRY RESTRUCTURING ACT OF 1999.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of the Public Utility Act is
enacted to read:
"TRANSITION COST
RECOVERY.--
A. Notwithstanding repeal of the Electric
Utility Industry Restructuring Act of 1999, unless otherwise waived, a public
utility shall be entitled to an opportunity to recover its transition
costs. Utilities may retain these
transition costs as a regulatory asset on their books pending recovery, which
shall be completed by January 1, 2010.
B. For purposes of this section,
"transition costs" means the prudent, reasonable and unmitigable
costs other than stranded costs, not recoverable elsewhere under either
federally approved rates or rates approved by the commission, that a public
utility would not have incurred but for its compliance with the requirements of
the Electric Utility Industry Restructuring Act of 1999 and rules promulgated
pursuant to that act relating to the transition to open access, and the prudent
cost of severance, early and enhanced retirement benefits, retraining,
placement services, unemployment benefits and health care coverage to public
utility nonmanagerial employees who are laid off on or before January 1, 2003,
that are not otherwise recovered as a stranded salary and benefits cost. Transition costs shall not include costs that
the public utility would have incurred notwithstanding the Electric Utility
Industry Restructuring Act of 1999."
Section 2. A new section of the Public Utility Act is
enacted to read:
"PUBLIC
UTILITIES--GENERATING PLANT INVESTMENT, CONSTRUCTION, ACQUISITION AND
OPERATION.--
A. A public utility may invest in, construct,
acquire or operate a generating plant that is not intended to provide retail
electric service to New Mexico customers, the cost of which is not included in
retail rates and which business activities shall not be subject to regulation
by the commission pursuant to the Public Utility Act, except as provided by
Section 62-9-3 NMSA 1978. This section
shall not diminish a public utility's obligation, by the prudent acquisition of
resources, to serve its retail load at a cost of service no higher than the
average book cost plus fuel, other operating and maintenance costs and the
utility's authorized rate of return on investment of the utility's unregulated
generation constructed or acquired after January 1, 2001; provided that this
provision does not apply to a public utility that does not acquire unregulated
generation after January 1, 2001. The
commission shall assure that the regulated business is appropriately credited
for any off-system sales made from regulated assets.
B. This section shall apply only to a public
utility that began investing in, constructing or acquiring generating plant
pursuant to this section before July 1, 2004.
This section shall continue to apply until the latest of:
(1) January 1, 2015;
(2) the date the public utility divests its
interest in generating plant acquired or constructed pursuant to the provisions
of this section; or
(3) the date the plant receives a certificate of
convenience and necessity in accordance with Section 62-9-1 NMSA 1978."
Section 3. A new section of the Public Utility Act is
enacted to read:
"GAS AND ELECTRIC
UTILITIES--COMBINED SERVICE.--A public utility that provides both electricity
and natural gas distribution services shall not be required to functionally
separate its electric and gas transmission, transportation and distribution operations
from each other. Any rule or order to
the contrary is void. Nothing in this
section shall prevent a combined gas and electric distribution company from
selling the natural gas commodity to customers pursuant to tariffs approved by
the commission."
Section 4. A new section of the Public Utility Act is
enacted to read:
"BILLING--FRANCHISE
FEES--GROSS RECEIPTS TAXES.--
A. A franchise fee charge shall be stated as a
separate line entry on a bill sent by a public utility or a distribution
cooperative utility to a customer and shall only be recovered from a customer
located within the jurisdiction of the government authority imposing the
franchise fee.
B. Any gross receipts taxes collected on
electric services received by a retail customer in the state shall be stated as
a separate line entry on a bill for electric service sent to the customer by a
public utility or distribution cooperative utility."
Section 5. A new section of the Rural Electric
Cooperative Act is enacted to read:
"DISTRIBUTION COOPERATIVE
UTILITIES ORGANIZED IN OTHER STATES--APPLICATION.--A distribution cooperative
utility organized pursuant to the laws of another state and providing bundled
services in this state on April 1, 1999 to not more than twenty percent of its
total customers may file an application with the commission seeking approval of
its election to be governed by the laws related to electric restructuring of
the state where the utility was organized.
The commission shall approve the application if the distribution
cooperative utility:
A. does not provide supply service to other than
its service customers in this state; and
B. remains subject to the jurisdiction and
authority of the commission for bundled service provided in this state."
Section 6. Section 62-3-3 NMSA 1978 (being Laws 1967,
Chapter 96, Section 3, as amended) is amended to read:
"62-3-3. DEFINITIONS.--Unless otherwise specified,
when used in the Public Utility Act:
A. "affiliated interest" means a
person who directly or indirectly, through one or more intermediaries, controls
or is controlled by or is under common control with a public utility. Control includes instances where a person is
an officer, director, partner, trustee or person of similar status or function
or owns directly or indirectly or has a beneficial interest in ten percent or
more of any class of securities of a person;
B. "commission" means the public
regulation commission;
C. "commissioner" means a member of
the commission;
D. "municipality" means a municipal
corporation organized under the laws of the state, and H-class counties;
E. "person" means an individual, firm,
partnership, company, rural electric cooperative organized under Laws 1937,
Chapter 100 or the Rural Electric Cooperative Act, corporation or lessee,
trustee or receiver appointed by any court.
"Person" does not mean a class A county as described in
Section 4-36-10 NMSA 1978 or a class B county as described in Section 4-36-8
NMSA 1978. "Person" does not
mean a municipality as defined in this section unless the municipality has
elected to come within the terms of the Public Utility Act as provided in
Section 62-6-5 NMSA 1978. In the absence
of voluntary election by a municipality to come within the provisions of the
Public Utility Act, the municipality shall be expressly excluded from the
operation of that act and from the operation of all its provisions, and no such
municipality shall for any purpose be considered a public utility;
F. "securities" means stock, stock
certificates, bonds, notes, debentures, mortgages or deeds of trust or other
evidences of indebtedness issued, executed or assumed by a utility;
G. "public utility" or
"utility" means every person not engaged solely in interstate
business and, except as stated in Sections 62-3-4 and 62-3-4.1 NMSA 1978, that
may own, operate, lease or control:
(1) any plant, property or facility for the
generation, transmission or distribution, sale or furnishing to or for the
public of electricity for light, heat or power or other uses;
(2) any plant, property or facility for the
manufacture, storage, distribution, sale or furnishing to or for the public of
natural or manufactured gas or mixed or liquefied petroleum gas for light, heat
or power or other uses; but the term "public utility" or
"utility" shall not include any plant, property or facility used for
or in connection with the business of the manufacture, storage, distribution,
sale or furnishing of liquefied petroleum gas in enclosed containers or tank
truck for use by others than consumers who receive their supply through any
pipeline system operating under municipal authority or franchise and distributing
to the public;
(3) any plant, property or facility for the
supplying, storage, distribution or furnishing to or for the public of water
for manufacturing, municipal, domestic or other uses; provided, however,
nothing contained in this paragraph shall be construed to apply to irrigation
systems, the chief or principal business of which is to supply water for the
purpose of irrigation;
(4) any plant, property or facility for the
production, transmission, conveyance, delivery or furnishing to or for the
public of steam for heat or power or other uses; or
(5) any plant, property or facility for the
supplying and furnishing to or for the public of sanitary sewers for
transmission and disposal of sewage produced by manufacturing, municipal,
domestic or other uses; provided that the terms "public utility" or
"utility" as used in the Public Utility Act do not include any
utility owned or operated by a class A county as described in Section 4-36-10
NMSA 1978 either directly or through a corporation owned by or under contract
with such a county;
H. "rate" means every rate, tariff,
charge or other compensation for utility service rendered or to be rendered by
a utility and every rule, regulation, practice, act, requirement or privilege
in any way relating to such rate, tariff, charge or other compensation and any
schedule or tariff or part of a schedule or tariff thereof;
I. "renewable energy" means electrical
energy generated by means of a low- or zero-emission generation technology that
has substantial long-term production potential and may include, without
limitation, solar, wind, hydropower, geothermal, landfill gas, anaerobically
digested waste biomass or fuel cells that are not fossil fueled. "Renewable energy" does not include
fossil fuel or nuclear energy;
J. "service" or "service
regulation" means every rule, regulation, practice, act or requirement
relating to the service or facility of a utility;
K. "Class I transaction" means the
sale, lease or provision of real property, water rights or other goods or
services by an affiliated interest to a public utility with which it is
affiliated or by a public utility to its affiliated interest;
L. "Class II transaction" means:
(1) the formation after May 19, 1982 of a
corporate subsidiary by a public utility or a public utility holding company by
a public utility or its affiliated interest;
(2) the direct acquisition of the voting
securities or other direct ownership interests of a person by a public utility
if such acquisition would make the utility the owner of ten percent or more of
the voting securities or other direct ownership interests of that person;
(3) the agreement by a public utility to purchase
securities or other ownership interest of a person other than a nonprofit
corporation, contribute additional equity to, acquire additional equity
interest in or pay or guarantee any bonds, notes, debentures, deeds of trust or
other evidence of indebtedness of any such person; provided, however, that a
public utility may honor all agreements entered into by such utility prior to
May 19, 1982; or
(4) the divestiture by a public utility of any
affiliated interest that is a corporate subsidiary of the public utility;
M. "corporate subsidiary" means any
person ten percent or more of whose voting securities or other ownership
interests are directly owned by a public utility; and
N. "public utility holding company"
means an affiliated interest that controls a public utility through the direct
or indirect ownership of voting securities of that public utility."
Section 7. Section 62-15-32 NMSA 1978 (being Laws 1939,
Chapter 47, Section 32, as amended) is amended to read:
"62-15-32. CONSTRUCTION OF ACT--INCONSISTENCY.--The
Rural Electric Cooperative Act shall be construed liberally. The enumeration of any object, purpose,
power, manner, method or thing shall not be deemed to exclude like or similar
objects, purposes, powers, manners, methods or things. Nothing contained in the Rural Electric
Cooperative Act shall be construed, however, to conflict with any duty to which
a cooperative is subject or with any benefit to which a cooperative is entitled
under the Public Utility Act. In the
event any provision of the Rural Electric Cooperative Act is held to be
repugnant to any provision of the Public Utility Act or to a cooperative's
inclusion as a public utility thereunder, the latter shall be controlling and
the former shall be held repealed to the extent of the repugnancy. Nothing in the Public Utility Act shall be
deemed to authorize interference with, abrogation or change of the rights or
obligations of a party under a wholesale power supply agreement, mortgage or
financing agreement to which a distribution cooperative utility is a
party."
Section 8. Laws 1998, Chapter 108, Section 82, as
amended, is amended to read:
"Section 82. DELAYED REPEAL.--The following are repealed
effective July 1, 2003:
A. Chapter 63, Article 7 NMSA 1978;
B. the Telephone and Telegraph Company
Certification Act;
C. the New Mexico Telecommunications Act; and
D. the Cellular Telephone Services Act."
Section 9. REPEAL.--Sections 62-3A-1 through 62-3A-23
NMSA 1978 (being Laws 1999, Chapter 294, Sections 1 through 8, Laws 2000,
Chapter 88, Section 1 and Laws 1999, Chapter
294, Sections 9 through 23, as
amended) are repealed.