BEFORE THE DEPARTMENT OF REVENUE

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 42.29.101, 42.29.102, and 42.29.103 pertaining to universal system benefits programs

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AMENDED NOTICE OF PROPOSED AMENDMENT AND EXTENSION OF COMMENT PERIOD

 

TO: All Concerned Persons

 

1. On January 8, 2016, the Department of Revenue published MAR Notice No. 42-2-947 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 13 of the 2016 Montana Administrative Register, Issue Number 1.

 

2. A public hearing was held on February 1, 2016. Deb Martin Young, representing Northwestern Energy, and Gary Wiens, representing the Montana Electric Cooperative Association, appeared and testified at the hearing. No written comments were received.

 

3. The department has determined a need to further amend the rules to correct a deficiency in a citation of authority for the proposed amendments. The cited rulemaking authority for the above-stated rules is specific to activity completed in 1999 and may not sufficiently support future amendments, such as the updates necessary to implement Senate Bill 312, L. 2015. Therefore, and as provided for in 2-4-305(8)(a), MCA, the department proposes adding its general rulemaking authorization statute, 15-1-201, MCA, to the rules. The addition of another rulemaking statute is not in response to public comments; however, the department is extending the comment period provided for in the original notice to allow for public consideration of the amendment. The department also proposes further amending ARM 42.29.103 in response to public comments.

 

4. The proposed changes from the original proposal are as follows, new matter underlined, deleted matter interlined:

 

42.29.101 DEFINITIONS The following definitions apply to this chapter:

(1) through (13) remain as proposed.

 

AUTH: 15-1-201, 69-8-413, MCA

IMP: 69-8-402, MCA

 

42.29.102 PURPOSE (1) and (2) remain as proposed.

 

AUTH: 15-1-201, 69-8-413, MCA

IMP: 69-8-103, 69-8-501, MCA

 

42.29.103 ANNUAL REPORTING AND PENALTIES (1) Annual USB programs summary reports required pursuant to 69-8-402, MCA, must be filed with the department on or before March 1 of each year for the previous calendar year USB programs' credits and expenditures. For the purpose of 69-8-414, MCA, a USB programs summary report filed on or before March 1 for the previous calendar year is considered to be filed on March 1.

(2) The department shall provide written notice to each public utility or large customer claiming the USB credit that fails to submit a USB programs annual summary report by March 1 of each year for the previous calendar year USB programs' credits and expenditures. Penalties, authorized by 69-8-414, MCA, shall be imposed if the department does not receive a public utility's or large customer's USB programs annual summary report within 20 business days of the date on the department's written notice.

(3) If the department does not receive a USB programs annual summary report from the public utility or large customer claiming the USB credit within 20 business days of the department's written notice, as set forth in (2), the department shall impose a $1,000 administrative penalty against the public utility or large customer. For each additional 30 days that the public utility or large customer does not file with the department a USB programs annual summary report with the department for previous calendar year credits and expenditures, an additional $1,000 administrative penalty, up to a maximum of $5,000, will be assessed.

(4) Documents submitted by the public utility or large customer shall be subject to the department's protective orders regarding confidential or proprietary materials. A public utility or large customer claiming confidential or proprietary materials shall move the department for a protective order 30 days in advance of filing the USB programs annual summary report to allow an order to be issued prior to the report being filed. The motion for protective order must specify the material sought to be protected and the reason such materials should be considered confidential or proprietary.

(a) and (b) remain as proposed.

(5)  The department shall publish a public notice listing:

(a) the names of the public utilities or large customers who have filed application for the credits as shown on the annual summary reports;

(b) remains as proposed.

(c) the specific date by which interested persons must file any challenge to a public utility's or large customer's claim for credit; and

(d) remains as proposed.

(6) Publication of the public notice will occur within 20 days of the department receiving the public utility's or large company's USB programs annual summary report. The department shall publish the public notice on its web site and in the major newspapers of general circulation for the state of Montana.

(7) A USB programs summary report received on or before March 1 for the previous calendar year is considered timely and recorded as received on March 1.

(8) A USB programs summary report received March 2 through April 1 for the previous calendar year is considered delinquent and recorded as received on April 1.

(7)(9) Claimed credits shall be presumed to be acceptable unless proven otherwise, and the burden of proving ineligibility of a credit lies with the challenging party. If the department receives a challenge to a claimed credit, it shall promptly notify the public utility or large customer claiming the credit of the challenge, in writing, and provide a copy of the interested person's challenge and any supporting documents to the claimant.

 

AUTH: 15-1-201, 69-8-413, MCA

IMP: 69-8-402, 69-8-414, MCA

 

5. The department has thoroughly considered the comments received. A summary of the comments and the department's responses are as follows:

 

COMMENT 1: Gary Wiens, representing the Montana Electric Cooperative's Association, requested that in all instances where the words "public utility" are used in the proposed rules that the word "public" be stricken because, under state statute, electric cooperatives are not public utilities. He stated that the requested amendment is to ensure that the electric cooperatives are covered under the rules.

 

RESPONSE 1: The department appreciates Mr. Wiens bringing attention to this important distinction, and agrees that under statute electric cooperatives are not public utilities. To ensure the rules are applicable to the electric cooperatives, the department has further amended ARM 42.29.103 to strike the word "public" from all instances of "public utility."

 

COMMENT 2: Deb Young, representing Northwestern Energy, suggested that there is room for some clarification around the language of the filing of the annual report by March 1 in ARM 42.29.103. She recommended that the department add language to make it clear that the annual report is tied to the previous calendar year so that a customer is not in a position where they are filing a report for 2016 USB expenditures on March 1 when they have not yet accrued all of their USB obligations for that period of time.

Ms. Young further suggested that the department consider clarifying the language in the rule around the date at which the filing notice obligation begins and the public notification of it. She explained that this is so that the customer, interested parties, and the department will all have an understanding of when to look for the filing of reports, when potential challenges against the reports would be possible, and when the department's notification of the reports would be made available to the public.

 

RESPONSE 2: The department appreciates Ms. Young's comments and agrees that the language should be amended to clarify that the annual report is tied to the previous calendar year. The department has further amended ARM 42.29.103 to specify that the USB report required to be filed by March 1 of each year is for the previous calendar year USB programs' credits and expenditures.

The department also concurs with Ms. Young regarding her suggestion to clarify the date of the filing notice obligation, and has added new (7) to the rule to specify that a USB programs summary report received on or before March 1 for the previous calendar year is considered timely and recorded as received on March 1, and new (8) to specify that a USB programs summary report received March 2 through April 1 for the previous calendar year is considered delinquent and recorded as received on April 1. This will reduce the number of public notices required and narrow the timeframe for the public notices to be published. As Ms. Young suggested, this will give interested parties a better understanding of when to look for the filing of reports, when potential challenges against the reports would be possible, and when the department’s notification of the reports would be made available to the public.

 

6. The Department of Revenue will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, advise the department of the nature of the accommodation needed no later than 5 p.m. on May 6, 2016. Contact Laurie Logan, Department of Revenue, Director's Office, P.O. Box 7701, Helena, Montana 59604-7701; telephone (406) 444-7905; fax (406) 444-3696; or e-mail [email protected].

 

7. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to: Laurie Logan, Department of Revenue, Director's Office, P.O. Box 7701, Helena, Montana 59604-7701; telephone (406) 444-7905; fax (406) 444-3696; or e-mail [email protected] and must be received no later than May 16, 2016. All public comments provided in response to the original notice remain valid for this rulemaking and do not need to be resubmitted to the department.

 

 

 

/s/ Laurie Logan                          /s/ Mike Kadas

Laurie Logan                               Mike Kadas

Rule Reviewer                             Director of Revenue

         

Certified to the Secretary of State April 11, 2016