Mont. Admin. R. tit. 38 | Mont. Admin. R. Title 38 — Public Service Regulation

Chapter 38.1 Organizational Rule

Subchapter 38.1.1 Organizational Rule

Mont. Admin. R. 38.1.101 Organizational Rule

(1) Organization. The organization, functions, and duties of the Department of Public Service Regulation, and its Commission, divisions, and primary work units are described in this rule.

(a) History. Public utility regulation got its start in Montana in 1907 with the creation of a three-member Board of Railroad Commissioners. In 1913, the Montana Legislature created the Public Service Commission, vesting it with the authority to supervise, control, and regulate public utilities in the public interest. In 1971, the legislature created the Department of Public Service Regulation, pursuant to 2-15-2601, MCA, and set the Public Service Commission as the department head. In 1974, the legislature expanded the Commission from three members elected statewide to five members elected from regional districts. Over time, the Commission has retained limited regulatory responsibilities for railroad safety and received varying degrees of new regulatory responsibilities over privately owned monopolistic industries, including electric, natural gas, water, sewer, and telephone utilities, along with some types of motor carriers and intra-state natural gas pipelines.

(b) Public Service Commission. The Public Service Commission (Commission) is the department head. The Commission is a deliberative, quasi-judicial body comprised of five elected commissioners. The Commission is responsible for the direction and general administration of the department and, pursuant to Title 69, MCA, the supervision and regulation of the operations of certain public utilities, common carriers, railroads, and other regulated industries. Administratively, the Commission is responsible for selecting and directing department management and approving the department's strategic plan, policies, initiatives, and budgets. The Commission is supported by a professional staff that provides expert legal, regulatory, public policy, consumer assistance, communications, and operational support.

(c) Commissioners. Each commissioner resides within a unique geographic district from which they are elected by the people of the district, pursuant to 69-1-103, MCA. All commissioners are vested with fiduciary obligations to the department and bound by the oath of office pursuant to Article III, Section 3 of the Montana Constitution. Commissioners may be assigned to chair committees or Commission proceedings, serve on boards and committees, and lead or assist with the department's special projects. Commissioners regularly receive staff reports and recommendations and confer with staff to obtain relevant information prior to Commission deliberations. Individual commissioners confer with the executive director regarding internal operations matters and work through division administrators on other matters within the Commission’s jurisdiction.

(d) Department Management. Department management includes the officers of the Commission, executive director, chief legal counsel, chief regulator, business manager, Commission secretary, and external affairs coordinator. Department management are responsible for leadership, supervision, productivity, and quality control within assigned areas of operation. Management cooperates agency-wide to support Commission functions and carry out the department's statutory responsibilities in accordance with the acts, policies, and directions of the Commission.

(i) Management - Officers of the Commission. The officers of the Commission are the president, who is the presiding officer pursuant to 69-1-107, MCA, and the vice president. The officers are selected by the Commission from its membership at the Commission's first business meeting of each year after a general election. If an officer ceases to be a member of the Commission, or otherwise vacates an officer position, the Commission shall select a replacement officer within ten days at a business meeting publicly noticed for that purpose.

(A) President: The president has authority for the general supervision of the department and acts as the agency head on behalf of the Commission in all administrative matters not otherwise delegated by law, administrative rule, policy, or an act of the Commission. The president is the designated spokesperson for the Commission and is responsible for the preservation of order and decorum. The president has the power to preside over the Commission's meetings; approve department calendars, agendas, and expenditures; and designate commissioners and staff for special assignments. The president directly supervises the executive director and confers with and guides management. The president performs other duties prescribed by applicable law, rule, policy, and acts of the Commission. The president reports to the Commission.

(B) Vice President: The vice president assumes the president’s duties when the president is unavailable, except when the president or the Commission otherwise delegates the duties. The vice president supports and assists the president, and performs other duties prescribed by applicable law, rule, policy, and acts of the Commission. The vice president reports to the president.

(ii) Management – Staff. Management staff are:

(A) Executive Director: The executive director is the chief administrative officer of the department and the administrator of the Centralized Services Division. The executive director supervises management staff and acts as the department's chief of staff responsible for the performance of all staff across all divisions. The executive director advises the Commission regarding internal matters and reports to the president.

(B) Chief Legal Counsel: The chief legal counsel is the administrator of the Legal Division and acts as the Commission's general counsel. The chief legal counsel advises the Commission regarding legal matters and reports to the executive director regarding internal matters.

(C) Chief Regulator: The chief regulator is the administrator of the Regulatory Division. The chief regulator advises the Commission regarding regulatory matters and reports to the executive director regarding internal matters.

(D) Business Manager: The business manager is responsible for managing the department's human resources, financial activity, and facilities. The business manager advises the Commission regarding these matters and reports to the executive director.

(E) Commission Secretary: The Commission secretary is responsible for administrative support to the Commission and manages the department's reception services, technology, office equipment, records retention, inventory, and common areas. The Commission secretary advises the Commission regarding these matters and reports to the executive director.

(F) External Affairs Coordinator: The external affairs coordinator coordinates the department's public policy, communications, and public relations work. The external affairs coordinator advises the Commission regarding these matters and reports to the executive director.

(e) Divisions. The department staff is organized into three divisions. All divisions cooperate and assist one another to fulfill the department's operational and statutory requirements in accordance with the acts, policies, strategic plan, and directions of the Commission. The department's divisions are:

(i) Legal Division;

(ii) Centralized Services Division; and

(iii) Regulatory Division.

(2) Primary Functions of Department Divisions:

(a) Legal Division. The Legal Division provides competent representation to the department. The Legal Division facilitates the Commission's legal and quasi-judicial proceedings and provides legal counsel to the Commission and department in matters requiring legal representation, interpretation, or opinion. The Legal Division represents the department and the Commission in court; issues legal opinions; analyzes contracts; and advises the Commission on interpretations of law on matters within the scope of the department's jurisdiction and responsibility. Its activities include managing dockets before the Commission and related document intake and distribution; drafting Commission notices, orders, and decisions; drafting, revising, and managing administrative rules; conducting legal research; and acting as hearing officers for the department.

(b) Centralized Services Division. The Centralized Services Division provides internal operations functions for the department and facilitates public access, consumer assistance, public policy, and communication activities. This division includes three units:

(i) Internal Business. This unit manages the department's budget, accounting, procurement, revenue collection, and related reporting; office space and facility maintenance; furnishings and equipment; and human resources, safety, and payroll processing.

(ii) IT & Administrative Support. This unit manages the department's technology systems, inventory, and supplies; reception and mail processing services; compilation, assembly, and distribution of Commission agendas, minutes, and work session materials; and the department's record-keeping and retention. The unit facilitates the Commission's meetings; maintains the department's office equipment, reception, and common areas; and provides administrative support to commissioners and the Centralized Services Division.

(iii) External Affairs. This unit coordinates the department's external communications, public policy analysis, and public access and participation. The unit coordinates website content, press releases, and media responses; facilitates public comment and participation in Commission proceedings; tracks and analyzes legislative acts and related public policy; and assists with escalated consumer assistance matters.

(c) Regulatory Division. The Regulatory Division conducts financial, economic, and technical analyses of the operations of regulated public utilities and common carriers; administers tariffs; performs railroad and pipeline safety inspections; monitors compliance; manages enforcement; drafts and implements Commission rules, orders, and other directives; administers applications for operating authority; participates in regional transmission forums; assists with developing and modifying regulations and policies; and advises the Commission regarding all of these matters. The division is comprised of the following work groups:

(i) Utility Rate Design. This unit includes economists who assist in interpretation and application of public policy and develop rate design recommendations.

(ii) Utility Accounting. This unit includes accountants and financial analysts who analyze operating costs, revenue requirements, and performance of regulated entities.

(iii) Pipeline Safety. This unit includes inspectors who perform safety inspections on intrastate natural gas lines.

(iv) Railroad Safety. This unit includes inspectors who perform safety inspections on locomotives, freight cars, and railway fencing.

(v) Compliance Assistance. This unit includes regulatory compliance specialists who provide consumer assistance; administer telecommunications, transportation, and water and sewer dockets; and assist with regulatory compliance, public engagement, and administrative support.

(3) Information or Submissions. Information about the department and the Commission can be found at the following website: psc.mt.gov. General inquiries regarding the department and media inquiries should be addressed to the external affairs coordinator. Complaints related to regulated entities should be directed to the department's Consumer Assistance Program by emailing pschelp@mt.gov or phoning (800) 646-6150.

(4) Commissioner Roster:

Commissioner (District 1): Randy Pinocci, Sun River, MT

Commissioner (District 2): Brad Molnar, Laurel, MT

Commissioner (District 3): Jeff Welborn, Dillon, MT

Commissioner (District 4): Jennifer Fielder, Thompson Falls, MT

Commissioner (District 5): Annie Bukacek, Kalispell, MT

(5) Location. The department's main office is located at 1701 Prospect Ave, Helena, MT 59601, and its mailing address is P.O. Box 202601, Helena, MT 59620-2601. All staff are headquartered at the main office, except regionally placed railroad safety inspectors. Official mail and deliveries should be directed to the department's main office in Helena.

(6) Organizational Chart. The Department of Public Service Regulation's organizational chart is as follows:

Official policy figure

History

Authorizing statute(s): 2-15-2601, MCA
Implementing statute(s): 2-4-201, MCA
History: NEW, Eff. 12/31/72; AMD, Eff. 1/27/75; AMD, Eff. 6/6/77; AMD, Eff. 7/27/78; AMD, Eff. 7/2/79; AMD, Eff. 3/31/81; AMD, Eff. 1/3/83; AMD, Eff. 6/30/83; AMD, Eff. 9/30/84; AMD, Eff. 9/30/85; AMD, Eff. 12/31/85; AMD, Eff. 12/31/89; AMD, Eff. 7/9/90; AMD, Eff. 1/7/91; AMD, Eff. 9/10/91; AMD, Eff. 4/13/92; AMD, Eff. 1/4/93; AMD, Eff. 4/20/94; AMD, Eff. 1/3/95; AMD, Eff. 1/2/97; AMD, Eff. 1/1/13; AMD, Eff. 2/22/22; AMD, Eff. 9/22/23; AMD, Eff. 4/15/25.

Chapter 38.2 Procedural Rules

Subchapter 38.2.1 Model Procedural Rules

Mont. Admin. R. 38.2.101 Model Procedural Rules

(1) The Department of Public Service Regulation adopts and incorporates by reference the Attorney General's Model Procedural Rules ARM 1.3.226 through 1.3.229 concerning declaratory rulings.

(2) The referenced model rules may be reviewed at the department's business office or online at the Secretary of State's website, https://rules.mt.gov.

History

Authorizing statute(s): 2-4-201, MCA
Implementing statute(s): 2-4-501, MCA
History: Eff. 12/31/72; AMD, 1977 MAR p. 1200, Eff. 12/24/77; AMD, 2024 MAR p. 2302, Eff. 9/21/24.

Subchapter 38.2.3 General Provisions

Mont. Admin. R. 38.2.301 Procedure Governed

(1) These rules govern practice and procedure in contested cases before the public service commission of the state of Montana, in accordance with applicable laws of the state of Montana. Rules governing specialized proceedings will control in the event of a conflict with these rules.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.302 Nature of Proceedings

(1) The proceedings before the commission are investigative on the part of the commission, although they may be conducted in the form of adversary proceedings.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.303 Public Records; Copies

(1) All pleadings, petitions, applications, motions, communications, exhibits, or other documents shall become matters of public record as of the day and time of their filing, except as may be ordered by the commission pursuant to Montana Code Annotated, 69-3-105. The commission secretary, within reasonable limits of time and general expediency, shall permit interested parties and members of the public to examine any such public record.

(2) Copies of the contents of such public records may be made for any interested party at a cost to that party. Government agencies and non-profit organizations will be charged $.15 per page. Others will be charged $.15 per page if they perform any necessary research and present the material to be copied to the staff. If staff research assistance is required, the charge will be $.30 per page.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.304 Fees, Costs, Accompanying Forms, and Collections

(1) All application forms and fees or other charges required by law are due and must be submitted to the department at the time the application is filed with the department. Tariff fees are due no later than the 15th day of the month following the month of the filing. Fees for the issuance of certificates and costs associated with the publication of notice are due upon notice from the department.

(2) Any entity other than the Montana Consumer Counsel that initiates a proceeding before the commission must either:

(a) file a certified IRS Form W-9, Request for Taxpayer Identification Number and Certification, with its initial filing; or

(b) keep a current, certified IRS Form W-9 on file with the department.

(3) IRS Form W-9 and its instructions can be obtained from www.irs.gov/FormW9 . For the purposes of this rule, an IRS Form W-9 is considered "current" for a period of three years. Initial filings, including without limitation all applications, petitions, and formal complaints, will not be considered complete until the requirements of this rule have been satisfied. Foreign entities may satisfy this requirement with IRS Form W-8.

(4) All copies of IRS Forms W-8 and W-9 must be filed by physical delivery, postal or parcel delivery services, or encrypted, electronic delivery. IRS Forms W-8 and W-9 may not be filed by unencrypted e-mail or by electronic filing in the department's public case management system.

(5) Costs associated with the publication of notice in a proceeding shall be charged to the party or parties that initiated the proceeding, except in proceedings initiated by the department, commission, or Montana Consumer Counsel, in which case costs may, in the commission's discretion, be charged to any regulated entity named in the proceeding.

(6) Any fees and other charges not paid within 60 days of the date payment is due will be considered overdue. Overdue fees and other charges will accrue penalties at a rate of $50 per month.

(7) Any person or entity that believes a fee or other charge has been assessed in error may challenge the assessment by filing a motion for relief within 30 days of the date the fee or other charge is due. If the commission does not act on a motion for relief under this rule within 60 days of the date the fee or other charge is due, the motion shall be deemed denied.

(8) Any person or entity owing overdue fees or other charges will not be permitted to file or submit any application, petition, motion, or other request, however titled, with the commission. The commission, in its sole discretion, may waive this provision if a party has challenged an assessment through the process described in this rule.

History

Authorizing statute(s): 17-4-110, 69-1-110, 69-2-101, 69-3-103, 69-12-201, MCA
Implementing statute(s): 17-4-110, 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; AMD, 2021 MAR p. 1936, Eff. 12/24/21.

Mont. Admin. R. 38.2.305 Waiver of Rules

(1) As good cause appears and as justice may require, the commission or any hearing examiner may waive the application of any rule, except where precluded by statute.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.306 Construction and Amendment

(1) These rules, and any rules incorporated herein by reference, shall be so construed by the commissioners or any hearing examiner as to secure just and speedy determination of the issues. Amendments to these rules may be made periodically by the commission under its general rule making authority.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.307 Docket

(1) The secretary shall maintain dockets of all proceedings, and each new proceeding shall be assigned an appropriate docket number. The docket number will be assigned upon receipt. No document will be accepted, however, without payment of required fees and submission of required copies by the filing party.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.308 Calendar of Hearings and Commission's Agenda

(1) The secretary of the commission shall maintain a docket of all proceedings pending before the commission. The secretary shall also maintain a hearing calendar of all proceedings that are to receive a hearing. Both the docket and the hearing calendar are accessible to the public.

(2) The commission will post matters to be considered at their business meetings (agenda meetings) as soon as practicable prior to each meeting. The commission will post each agenda notice at the Commission Offices, 1701 Prospect Avenue, Helena, Montana 59620.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.309 Title and Docket Number

(1) All documents filed with the commission shall show the caption for the proceeding, the docket number and the title of the document. Documents initiating new proceedings shall leave a space for the docket number.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.310 Office Days and Hours

(1) The principal office of the commission is located at 1701 Prospect Avenue, Helena, Montana 59620. The office of the commission has regular hours from 8:00 a.m. to 5:00 p.m., Monday through Friday, holidays excepted.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.311 Identification of Communications

(1) Communications should contain the name and address of the communicator and an appropriate reference to commission files, if any there be, pertaining to the subject of the communication.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.312 Extensions of Time

(1) In the discretion of the commissioners or a hearing examiner, for good cause shown, any time limit prescribed by commission ruling or by these rules may be extended. All requests for extensions shall be made before the expiration of the period originally prescribed or as previously extended.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.313 Computation of Time

(1) Unless specifically dictated by the Montana Code Annotated:

(a) The time within which an act is to be done as provided in any rule or order promulgated by the commission, when expressed in days, shall be computed by excluding the first day and including the last, except that if the last day be Saturday, Sunday, or a legal holiday, the act may be done on the next succeeding regular business day.

(b) When a document is required to be filed or served on a particular day, the postmarking of the document on or before that day will satisfy this rule.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.314 Practice Before the Commission

(1) Any practice before the commission which constitutes the practice of law must be done in accordance with Montana laws governing the practice of law. Inquiries and applications for admission to practice law in Montana, which includes practice of law before the commission, may be made to the state bar of Montana.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; AMD, 2000 MAR p. 749, Eff. 3/17/00.

Mont. Admin. R. 38.2.315 Rejection of Documents

(1) Documents which are not in substantial compliance with commission rules, commission orders, or applicable statutes may be rejected, even if previously assigned a docket number. If rejected, such papers will be returned with an indication of the deficiencies therein, within 30 days of their receipt. Acceptance of a document for filing is not a determination that the document complies with all requirements of the commission and is not a waiver of such requirements.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.316 Transcripts

(1) Transcripts may be requested by any party, or their preparation may be directed by the commission. Any party, other than the commission or its staff, who requests and receives transcripts shall pay the specified costs therefor.

(2) An applicant may request that a court reporter other than the commission's staff reporter be retained, or upon being advised by the commission that its reporter is unavailable at the time desired, may request that another court reporter be retained. Such election shall be made at the time of the scheduled prehearing conference, or if a prehearing conference is not scheduled, no later than 20 days prior to hearing. If the applicant elects to request the services of a nonstaff court reporter, it shall pay the costs of the transcript, and shall pay any appearance fee for such reporter.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; AMD, 1981 MAR p. 1789, Eff. 12/18/81.

Mont. Admin. R. 38.2.318 Electronic Copy of Filings

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-1-110, 69-2-101, 69-3-103, MCA
Implementing statute(s): 69-1-110, 69-2-101, 69-3-103, MCA
History: NEW, 2002 MAR p. 398, Eff. 8/5/02; REP, 2009 MAR p. 1417, Eff. 8/14/09.

Subchapter 38.2.6 Definitions

Mont. Admin. R. 38.2.601 Definitions

(1) The definitions contained in 69-12-101, 69-1-101, 69-13-101, 69-3-101, and 69-14-101, MCA, shall be applicable to all rules and regulations of the commission, and unless otherwise defined the following terms shall have the following meanings:

(a) "Public utility or utility" means and includes any business which the commission is authorized to supervise, control and regulate.

(b) "Commission" means the public service commission of the state of Montana.

(d) "Commission staff" means all persons employed or retained by the commission.

(e) "Hearing" means any public meeting in a contested case on any matter that is noticed for "hearing" by the commission in accordance with applicable statutes at which an opportunity shall be given to all interested persons to present such written and/or oral testimony as the commission shall deem relevant and material to the issues.

(f) "Examiner" means a commissioner or a member of the commission staff, or other representative duly designated by the commission to take evidence and propose an appropriate order or decision.

(g) "Petition" means a request for relief filed with the commission pertaining to enforcement or alteration of any act, policy, order, or directive of the commission.

(h) "Application" means a request to the commission for the issuance of a certificate and/or authority to perform a service as a public utility or for the purpose of setting, increasing or lowering rates to be charged for such services.

(i) "Complaint" means a request for relief regarding anything done or omitted to be done by the commission or any per-son over whom it has jurisdiction in violation of any law, rule, regulation or order administered or promulgated by the commission, pertaining to matters over which it has jurisdiction.

(j) "Motion" means a request for relief filed with the commission.

(k) "Pleading" means any application, petition, complaint, answer, protest, motion or other formal written statement filed with the commission in any formal proceeding.

(l) "Document" means any other written submission at a formal proceeding which is not a pleading. This includes items such as reports, exhibits and studies.

(m) "Person" means any individual, partnership, corporation, association, governmental subdivision, or other identifiable public or private organization of any character who appears before the commission for any purpose, but who is not a party to the proceeding.

(n) "Party" means an individual, partnership, corporation, governmental body, or other identifiable group or organization, who initiates a commission proceeding by filing a complaint, application, protest or a petition with the commission; or who is named as a defendant or respondent; or who is named or admitted by the commission or hearings examiner to a formal proceeding and whose legal rights, duties and privileges will be determined by the commissioners' decision.

(o) "Tariff filing" means the submission of a document to the commission by a public utility seeking to increase or decrease rates currently in effect, or seeking to establish rates where none currently exist; or seeking to establish, cancel or amend rules in a tariff.

History

Authorizing statute(s): 69-1-110, 69-2-101, 69-2-103, 69-3-103, 69-12-201, MCA
Implementing statute(s): 69-2-101, 69-2-103, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; AMD, 2021 MAR p. 568, Eff. 5/15/21.

Subchapter 38.2.9 Parties

Mont. Admin. R. 38.2.901 Parties

(1) Parties to proceedings before the commission are known as applicants, petitioners, complainants, defendants, respondents, intervenors and protestants, identified as follows:

(a) "Applicant" means any party who files an application with the commission requesting;

(i) the issuance of a certificate and for authority to perform a service as a public utility, or

(ii) requesting authority to set, increase or lower rates

to be charged for such services.

(b) "Petitioner" means any party who files a petition with the commission requesting relief as pertains to enforcement or alteration of any act, policy, order or directive of the commission.

(c) "Complainant" means any party who complains of anything done or omitted to be done by the commission or any person over whom it has jurisdiction in violation of any law, rule, regulation or order administered or promulgated by the commission, pertaining to matters over which it has jurisdiction.

(d) "Defendant" means any party subject to the laws, rules, regulations and orders administered by the commission against whom any complaint is filed.

(e) "Respondent" means any party subject to the jurisdiction of the commission to whom the commission issues notice instituting a proceeding or investigation or inquiry of the commission; and any party in interest or person ordered before any pending proceeding of the commission.

(f) "Intervenor" means any party permitted by the commission to intervene in any proceeding.

(g) "Protestant" means any party who objects on the grounds of public or private interest to the approval, determination, consent, certification or authorization of any application or petition which the commission may have under consideration.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Subchapter 38.2.12 Pleadings

Mont. Admin. R. 38.2.1201 Pleadings

(1) Pleadings shall be in writing, shall state their purpose and shall be signed by the party seeking authorization or relief from the commission, or by his attorney or authorized representative. When no printed form is provided by the commission, the form to be followed in the filing of pleadings will vary to the extent necessary to provide for the legal rights, duties or privileges therein.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.1202 Applications and Petitions--Contents

(1) All applications or petitions shall include at least the following:

(a) A clear and concise statement of the authorization or other relief sought. The statement shall cite the statutory provisions under which the authority or other relief is sought.

(b) The exact legal name and post office address of each

party seeking the authorization or relief, the address or principal place of business of such party, and the name and post office address of such party's attorney, if any.

(c) A concise and explicit statement of the facts which said party is prepared to prove by competent evidence and upon which the commission is expected to rely in granting authorization or relief.

(d) Said petition or applications may also include other pertinent and relevant data and there may be attached to said petition exhibits, illustrations and sworn testimony.

(e) Nothing in this rule shall be construed as applying to tariff filings.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.1203 Form and Size

(1) All documents and pleadings shall be filed electronically in an accessible format. Text documents must be filed in PDF/A format. Spreadsheets must be filed with intact formulas and functions, preferably in Microsoft Excel format. This rule does not apply to documents or exhibits where an accessible format is not reasonably available.

(2) All pleadings shall be formatted for paper 8-1/2 inches wide and 11 inches long with 1-inch margins. All pleadings must be formatted in a proportionally spaced typeface at least 12-point or larger. Whenever reasonably possible, exhibits should be similarly formatted.

(3) The name of the attorney or party responsible for the pleadings, together with the email address, telephone number, and complete mailing address, shall be printed at the top of the first page of each pleading, aligned to the left margin.

History

Authorizing statute(s): 69-1-110, 69-2-101, 69-3-103, 69-12-201, MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; AMD, 2021 MAR p. 937, Eff. 7/24/21.

Mont. Admin. R. 38.2.1204 Title and Docket Number

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; REP, 2021 MAR p. 937, Eff. 7/24/21.

Mont. Admin. R. 38.2.1205 Service

(1) An initial pleading which begins a proceeding shall be filed electronically with the commission.

(2) All subsequent pleadings must be served either personally, electronically, or by first class mail on all identified parties by the pleading party, and a certificate of service shall be attached to the pleading.

(3) All pleadings shall be served on parties before or concurrently with their filing with the commission.

History

Authorizing statute(s): 69-1-110, 69-2-101, 69-3-103, 69-12-201, MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; AMD, 2021 MAR p. 937, Eff. 7/24/21.

Mont. Admin. R. 38.2.1206 Construction

(1) All pleadings and documents shall be liberally construed and errors or defects therein which do not mislead or affect the substantial rights of the parties involved shall be disregarded.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.1207 Amendments

(1) Any pleading or document may be amended prior to notice of the hearing. After notice of a hearing is issued, motion for leave to amend any pleading or document may be filed with the commission and may be authorized in the discretion of the commission or the hearing examiner. Any amendments filed shall contain a certificate of service upon all known interested parties. Post-notice amendments to any pleading or document shall not unduly broaden the scope of the issues originally filed with the commission, unless the commission shall in its discretion allow such amendments. If a post-notice amendment is approved, the commission shall afford the parties notice of the approval and adequate opportunity to prepare for hearing.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.1208 Responsive Pleadings

(1) Any responsive pleadings such as an answer or reply shall comply with the above rules relating to pleadings generally. An answer, if made, must be filed within 20 days, and a reply, if made, must be filed within 10 days, after the service of the pleading against which it is directed, unless otherwise provided in these rules or ordered by the commission: Provided, this rule shall not apply to proceedings brought on the commission's own motion for violation of the laws, rules or regulations governing public utilities. Whenever the commission believes the public interest requires expedited procedure it may shorten the time required for any answer or reply.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.1209 Copies

(1) Filing parties must provide physical copies of any electronically filed document or pleading upon the request of the commission or commission staff.

History

Authorizing statute(s): 69-1-110, 69-2-101, 69-3-103, 69-12-201, MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; AMD, 1982 MAR p. 410, Eff. 2/26/82; AMD, 2021 MAR p. 937, Eff. 7/24/21.

Subchapter 38.2.15 Motions

Mont. Admin. R. 38.2.1501 Motions

(1) Prior to the commencement of any hearing all motions must be made in writing to the commission or designated hearing examiner. Motions may be made orally during a hearing and, if the commission, or a hearing examiner requires, shall be submitted to the commission in writing. A motion may contain any matter relevant to the clarification of the proceeding before the commission. Motions filed with the commission will be promptly disposed of by the commission at the commission's or examiner's discretion. All motions shall comply in every manner and respect with the requirements for pleadings under this chapter.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Subchapter 38.2.18 Notice

Mont. Admin. R. 38.2.1801 Notice

(1) The commission shall give written notice, where required by statute, by first class mail of a hearing at least 20 days in advance thereof to the petitioner, to other parties of record, to parties required by statute to be notified and to such other additional persons as the commission shall direct. The commission shall give notice to the general public by means of legal publication in a newspaper having general circulation in the area affected by the filed pleadings or documents.

(2) Notice of motor carrier tariff establishments, revisions or changes shall be given pursuant to 69-12-504 , MCA.

(3) Notice of motor carrier applications for a certificate of public convenience and necessary shall be given pursuant to 69-12-322 , MCA.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.1802 Contents of Notice

(1) The notice shall contain the time, date, place and nature of the hearing. The notice shall also contain the docket number, the date of service of the notice, a statement of the legal authority and jurisdiction under which the hearing is to be held; a reference to the particular section of the statutes and rules involved; and a short and plain statement of the matters asserted and issues involved. Notices of all hearings shall be served upon the Montana consumer counsel.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.1803 Default Orders

(1) The commission may, in its discretion, issue a notice which complies with the foregoing rule, and which affords interested persons an opportunity to request a hearing within a specified time.

(2) If no hearing is requested within the specified time, the commission may enter a default order which sets forth the material facts before the commission upon which its action is based.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Subchapter 38.2.21 Filing of Complaints

Mont. Admin. R. 38.2.2101 Who May Complain

(1) Complaints may be made by the commission on its own motion or by any person, having a legal interest in the subject matter, or any public utility concerned. Any public utility or other person likewise may complain of anything done or omitted to be done by the commission or any person over whom the commission has jurisdiction in violation of any law, rule, regulation or order administered or promulgated by the commission, pertaining to matters over which the commission has jurisdiction.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.2102 Contents

(1) Complaints under this rule shall set forth in numbered paragraphs:

(a) The full name, post office address and telephone number of each complainant and his attorney or representative, if any.

(b) The full name, post office address and telephone number of each defendant against whom complaint is made.

(c) A clear, concise statement of the acts or things done or omitted to be done by any public utility, or the respects in which any rule, regulation, or charge fixed by or for any public utility is in violation of any provision of law or of any order or rule of the commission, or the respect in which any rate, charge, schedule, classification, rule, regulation, or practice is unjust and unreasonable.

(d) The particular relief desired.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.2103 Copies

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; REP, 2021 MAR p. 937, Eff. 7/24/21.

Mont. Admin. R. 38.2.2104 Procedure Upon Receipt of Complaint

(1) The commission as regards a complaint issued by the commission, or upon receipt of a formal written complaint which is in substantial compliance with these procedural rules and which appears to state a cause of action within the commission's jurisdiction, shall cause a copy thereof to be served upon each defendant, accompanied by a notice from the commission calling upon each defendant to satisfy the complaint, or to answer the same in writing, within such reasonable time as may be specified by the commission in such notice. Service in all hearings, investigations, and proceedings pending before the commission shall be made personally or by first class mail.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.2105 Amendments to Complaints

(1) Amendments to complaints shall comply with all requirements of a complaint as heretofore enumerated. The amendment may, in the discretion of the commission, be allowed.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.2106 Statement of Satisfaction of Complaint

(1) If the defendant desires to satisfy the complaint, he shall submit to the commission and to the complainant within the time allowed for satisfaction or answer a statement of satisfaction consisting of a recitation of the relief which he is willing to give. Complainant must, in writing, accept or reject defendant's statement of satisfaction within 15 days from the date the statement of satisfaction was postmarked or from the date complainant actually received defendant's statement of satisfaction (if personally served) . Upon acceptance of this offer by the complainant with the approval of the commission, no further proceeding need be taken.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.2107 Answers

(1) Time.

(a) Within 20 days of the date of service of the complaint by the commission, the defendant or defendants shall answer the complaint. The commission may require the filing of an answer within a different time.

(b) Requests for an enlargement of time to answer a complaint shall be directed to the commission, in writing, and a copy provided to the complainant. The request shall indicate complainant's acquiescence to said extension of time or the measures taken by the defendant in his unsuccessful effort to obtain such acquiescence. The commission shall notify the parties of its ruling.

(c) If an amendment to a complaint is filed before receipt of the answer, the defendant's time to answer the complaint shall be 20 days from the date of service of the amendment, unless otherwise directed by the commission. Amendments to a complaint made subsequent to the filing of an answer need not be answered by the defendant.

(2) Contents. The answer must admit or deny each material allegation of the complaint or allege insufficient information on which to admit or deny the same. It shall set forth any new matter relied upon as a defense and shall be so drawn as to fully advise the complainant and the commission of the particular grounds of defense. The filing of an answer will not be deemed an admission of the sufficiency of the complaint and shall be without prejudice to the rights of a defendant to thereafter file a motion to dismiss the complaint for failure to state a cause of action. In rate complaints against a utility, all averments will be deemed denied and the matter will be of issue if the utility files no answer.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Subchapter 38.2.24 Interventions

Mont. Admin. R. 38.2.2401 Contents of Petition

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; REP, 2023 MAR p. 362, Eff. 4/15/23.

Mont. Admin. R. 38.2.2402 Service of Petitions

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; REP, 2021 MAR p. 937, Eff. 7/24/21.

Mont. Admin. R. 38.2.2403 General Intervention

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; REP, 2023 MAR p. 362, Eff. 4/15/23.

Mont. Admin. R. 38.2.2404 Special Intervention

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; REP, 2023 MAR p. 362, Eff. 4/15/23.

Mont. Admin. R. 38.2.2405 Disposition of Petitions and Motions to Intervene

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; REP, 2023 MAR p. 362, Eff. 4/15/23.

Mont. Admin. R. 38.2.2406 Limitation on Intervention

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; REP, 2023 MAR p. 362, Eff. 4/15/23.

Mont. Admin. R. 38.2.2407 Intervention

(1) The Commission may establish a deadline for intervention in commission proceedings.

(2) The Montana Consumer Counsel (MCC) is a party to any proceeding upon filing a notice of intervention before the intervention deadline. After the deadline for intervention, the MCC may intervene by filing a late motion as described in (6).

(3) Except as provided in (2), any person seeking to intervene in a commission proceeding must file a motion to intervene. Motions must state:

(a) the movant's name and contact information, including telephone number, physical address, and electronic mail address;

(b) the name and contact information of the movant's attorney or authorized representative, including telephone number, physical address, and electronic mail address;

(d) the nature and extent of the movant's interest in the proceedings;

(e) to the extent known, the position taken by the movant and any issues the movant intends to raise in the proceedings; and

(f) any special knowledge or expertise of the movant that would assist the Commission in resolving the issues in the proceedings.

(4) Objections to any intervention must be filed within seven days of a motion for intervention. Objections must be in the form of a brief and contain a short and plain statement of the reasons why intervention should be denied or conditioned. Movants may file a response brief to an objection within seven days of the filing of an objection. No additional briefing is permitted without prior Commission approval. The Commission will render a decision on the motion and briefing.

(5) Timely motions for intervention will be deemed granted if no timely objection is filed and the Commission does not otherwise act on a motion within seven days of its filing.

(6) If a motion is filed after the deadline for intervention, any person seeking intervention must demonstrate why late intervention should be granted. When ruling on a motion for late intervention, the Commission or hearing examiner may consider whether:

(a) the movant had good cause for the failure to file a timely motion;

(b) any delay might result from granting intervention;

(d) granting intervention might result in prejudice to or undue burden upon existing parties; and

(e) the motion conforms to the requirements of (3).

(7) If it appears, after consideration, that a motion to intervene discloses a substantial interest in the subject matter of the proceeding, that participation of the movant will be in the public interest, or that the granting of the motion would not unduly broaden the issues in the proceeding, the Commission may grant the motion. Except in extraordinary circumstances, an untimely intervention will not be permitted to delay or defer any procedural schedule established before a party's late intervention.

(8) Any movant granted intervention under these rules shall be known as an "intervenor" and have the same rights and responsibilities as other parties to the proceeding.

(9) When necessary to avoid delay, unreasonable duplication of positions, prejudice to other parties, or upon a finding of good cause, the Commission or hearing examiner may impose appropriate conditions upon any intervenor's participation in the proceedings. The Commission or hearing examiner must provide notice and a reasonable opportunity to be heard.

History

Authorizing statute(s): 69-1-110, 69-2-101, 69-3-103, 69-12-201, MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 2023 MAR p. 362. Eff. 4/15/23.

Subchapter 38.2.27 Prehearing Conferences

Mont. Admin. R. 38.2.2701 General

(1) The commission may, in any proceeding, on its own motion or upon petition by any party, with reasonable notice, request all interested parties to attend one or more prehearing conferences for the purpose of determining the feasibility of settlement or of formulating the issues in the proceeding and to determine other matters to aid in its disposition. A commissioner, hearing examiner or designated staff member shall preside at such conference. The purposes of the conference may include: scheduling of discovery, and fixing of hearing dates; simplification of issues; the necessity or desirability of amendments to the pleadings; the possibility of obtaining admissions of fact and documents which will avoid unnecessary proof; limitations on the number and consolidation of the examination of witnesses; the procedure at the hearing; the distribution of written testimony and exhibits to the parties prior to the hearing; and such other matters as may aid in the disposition of the proceeding, or settlement thereof.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.2702 Procedural Orders

(1) Following a prehearing conference the commission may issue a procedural order which fixes any dates which are pertinent to the disposition of the case, and which sets out the procedures to be followed by the parties. Subsequent orders modifying the original procedural order may also be issued.

(2) The procedural order may include a description of the matters discussed at and the actions taken pursuant to the prehearing conference. A proposed form of notice for the hearing may be attached to the order. If objections to the proposed notice are not received within a specified time, it shall be deemed to be approved by the parties.

(3) If a procedural order is entered which specifies either procedures or times for the disposition of a case, such as the timing of discovery and data requests, which are different from the procedures and times set forth in these rules, the procedural order shall control.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.2703 Recessing Hearing for Conference

(1) In any proceeding the presiding officer may, in his discretion, call the parties together for a conference prior to the taking of testimony, or may recess the hearing for such a conference. The presiding officer may state on the record the results of such conference.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Subchapter 38.2.30 Voluntary Settlement

Mont. Admin. R. 38.2.3001 Voluntary Settlement

(1) Where the matter in controversy affects only the parties involved, and the period for intervention is closed, the parties to the proceedings may, with the approval of the commission, enter into a voluntary settlement of the subject matter of the proceeding or any issues contained therein prior or subsequent to the formal hearing. In furtherance of a voluntary settlement, the commission may, in its discretion, invite the parties to confer with it or with an examiner designated by it. Such conferences shall be informal and without prejudice to the rights of the parties, and no statement, admission, or offer of settlement made at such informal conference shall be admissible in evidence in any formal hearing before the commission, unless the same were contained in a procedural order.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Subchapter 38.2.33 Discovery Procedures

Mont. Admin. R. 38.2.3301 Investigation and Discovery

(1) Data requests and the additional issues process are the primary, though not exclusive, methods of pre-hearing investigation in commission proceedings.

(2) Data requests are a discovery tool, which may contain and combine elements of interrogatories, requests for production, request for admission, and deposition by written question, that provide an efficient means of gathering information where cases are presented primarily through pre-filed testimony with substantial supporting exhibits. Requests—by the commission, hearings examiners, or parties—must be used in good faith, and should avoid repeating previously requested information. Requests must:

(a) describe the topic and to what witness the request is directed;

(b) be consecutively numbered (e.g., the commission may issue PSC-001 through 008 to EWM, PSC-009 through 016 to the MCC, and PSC-017 through 019 again to EWM);

(d) have a separate page for each response; and

(e) substantially adhere to this format:

PSC-001 Regarding: Cost of Equity

Witness: Doe, JBD-4:10-25; As Appropriate

Request/Response:

(a) Please explain how the current market conditions impact the utility's cost of equity.

(b) Please explain why these market conditions are expected to occur in the future, justifying an increased cost of equity.

(3) When appropriate, the commission or hearing examiner will establish an additional issues deadline to identify issues that the parties have not sufficiently addressed. This deadline will typically occur after the submission of intervenor testimony and before submission of reply testimony. If the commission or hearing examiner identifies any additional issues, it will notify the parties indicating what the issues are, provide direction for how the parties shall address them, and modify the existing procedural schedule as necessary.

(4) Additional methods of discovery available under Montana Rules of Civil Procedure 26(a) are permitted with commission approval. The commission incorporates by reference Rule 26(b), excepting 26(b)(4)(C), which establishes the scope of discovery, and Rule 37, which governs discovery abuses, motions to compel, and sanctions. Nothing in this rule limits the commission's additional broad statutory investigation powers otherwise found in Title 69, MCA.

History

Authorizing statute(s): 2-4-602, 2-4-612, 69-1-110, 69-2-101, 69-2-102, 69-2-103, 69-3-103, 69-3-106, 69-3-203, 69-3-321, 69-12-201, MCA
Implementing statute(s): 2-4-602, 69-2-101, 69-2-103, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; AMD, 2021 MAR p. 568, Eff. 5/15/21.

Mont. Admin. R. 38.2.3302 Subpoenas for Witnesses and Documents

(1) Any party requiring the attendance of a witness from any place in the state to any designated place of hearing for the purpose of taking testimony of such witness in a proceeding before the commission, and any party requiring the production of books, way bills, papers, accounts, and other documents concerning material testimony or information shall make written application to the commission secretary requesting that a subpoena issue to compel attendance of such witnesses, or production of specific books, way bills, papers, accounts, or other documents. Such written application must set forth reasons supporting the issuance of the subpoena for the attendance of the witness or the production of specific books, papers, and other documents, as the case may be.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.3303 Who May Issue

(1) Subpoenas shall be signed and issued by the hearing examiner, a commissioner or the commission secretary. The name and address of the witness shall be inserted in the original subpoena and a copy of the return shall be filed with the secretary of the commission. Subpoenas shall show at whose instance the subpoena is issued.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.3304 Enforcement

(1) The commission by its counsel or the party seeking the subpoena may seek enforcement of the same by applying to a judge of any district court of the state of Montana, for an order upon any witness who shall fail to obey a subpoena to show cause why such subpoena should not be enforced.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.3305 Attendance of Witnesses -- Fee

(1) All subpoenas shall extend to all parts of the state, and may be served by any person authorized to serve process of courts of record or by any person of full age designated for that purpose by the commission. The person executing any such process and any witness shall receive the fees in the amount and in the manner as provided in civil cases in the district courts of this state.

(2) Whenever a subpoena is issued at the instance of a complainant, respondent or other party to any proceeding before the commission, the cost of service thereof and the fee of the witness shall be borne by the party at whose request the subpoena is issued.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Subchapter 38.2.36 Presiding Officer

Mont. Admin. R. 38.2.3601 Designation

(1) When evidence is to be taken in a proceeding before the commission, any commissioner or any examiner designated by the commission, may preside at the hearing.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.3602 Powers and Duties of Presiding Officer

(1) A presiding officer shall have the duty to conduct full, fair and impartial hearings; to take appropriate action to avoid unnecessary delay in the disposition of proceedings, and to maintain order; and he shall possess all powers necessary to that end, including the following:

(a) To administer oaths and affirmations;

(b) To order subpoenas issued and to provide for other methods of discovery.

(c) To receive evidence and rule upon all objections and motions which do not involve final determination of proceedings.

(d) To take such other action as may be necessary and appropriate to the discharge of his duties, consistent with the statutory authority or other authorities under which the commission functions and with the rules, regulations, and policies of the commission.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.3603 Disqualification of Examiners

(1) An examiner designated by the commission to preside at a hearing may, upon written request and approval of the commission, disqualify themself from presiding therein.

(2) Whenever any party shall deem the hearing examiner for any reason to be disqualified to preside, or to continue to preside, in a particular proceeding, such party may file with the secretary of the commission a motion to disqualify and remove by affidavit setting forth the alleged grounds for disqualification. A copy of the motion shall be served by the commission on the examiner whose removal is sought and the examiner shall have ten days from such service within which to reply. If the examiner does not disqualify themself within ten days, then the commission shall promptly determine the matter, and shall make its decision a part of the record in the case.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Subchapter 38.2.39 Hearings

Mont. Admin. R. 38.2.3901 General Provisions

(1) The time and place of holding hearings will be set by the commission and notice thereof served upon all parties not less than 20 days in advance of the hearing date, unless the commission finds that an emergency exists requiring the hearing to be held upon less notice. An effort will be made to set all hearings sufficiently in advance so that all parties will have a reasonable time to prepare their cases, and so that continuances will be reduced to a minimum. All hearings will be open to the public.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.3902 Rights and Responsibilities of Parties

(1) At any hearing, all parties shall be entitled to enter an appearance, introduce evidence, examine and cross-examine witnesses, make arguments, and generally participate in the conduct of the proceeding.

(2) All parties shall also comply with the requirements of any procedural order entered by the commission or by a presiding officer in a particular case. Examples of such requirements, although not exclusive, include the answering of discovery and data requests, and the prefiling of testimony.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.3903 Appearances

(1) Parties shall enter their appearances at the beginning of the hearing by giving their names and addresses in writing to the reporter who will include the same in the record of hearing. The presiding officer conducting the hearing may, in addition, require appearances to be stated orally, so that the identity and interest of all parties present will be known to those at the hearing. Any further notice, pleading, or order in the matter which is required to be served upon parties to the proceeding may be served upon the attorney or representative of a party so represented and such service shall be effective as service upon the party.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.3904 Termination of Party Status

(1) Notwithstanding any other provision of these rules pertaining to party status, and unless specifically authorized by order of the commission for good cause shown, no person shall be a party to any proceeding in which such person has failed to enter a written appearance and an oral appearance on request of the presiding officer at any hearing in the matter as prescribed in 38.2.3903. The party status of any person failing to enter a written appearance and an oral appearance on request of the presiding officer terminates at the close of the period of taking such appearances, unless otherwise ordered by the commission.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.3905 Contact Between Parties and Commission

(1) The commission declares its policy to be that after the giving of notice on a complaint, petition or application in a contested formal proceeding, or after notice of a tariff filing has been given and prior to the issuance of a final order thereon, no parties to the proceeding, or their counsel, shall discuss the merits of such matter or proceeding with the commissioners, or with the examiner involved, unless reasonable notice is given to all parties who have appeared therein, to enable such parties to be present at the conference.

(2) When, after notice and prior to the issuance of a final order, letters from parties are directed to the commission, or any member of its staff, regarding a formal proceeding, copies of such letters shall be mailed to all parties of record and proof of such service furnished to the commission.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.3906 Notice

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; REP, 2021 MAR p. 937, Eff. 7/24/21.

Mont. Admin. R. 38.2.3907 Continuance

(1) Any party who desires a continuance shall, immediately upon receipt of notice of the hearing, or as soon thereafter as facts requiring such continuance come to his knowledge, notify the commission of said desire, stating in detail the reasons why such continuance is necessary. The commission in passing upon a request for a continuance shall consider whether such request was timely made, and whether it is supported by good cause. The commission may grant such a continuance and may at any time order a continuance upon its own motion.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.3908 Failure to Appear

(1) At the time and place set for hearing, if an applicant, petitioner, or complainant fails to appear without having obtained a continuance in the manner specified above, the commission may dismiss the petition, application, or complaint with or without prejudice or may, upon good cause shown, recess such hearing for a further period to be set by the commission to enable said applicant, petitioner, or complainant to attend.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.3909 Transcripts

(1) Except as provided in (3) , a full and complete record of all proceedings before the commission or hearing examiner in any hearing and all testimony shall be taken down by a reporter appointed by the commission.

(2) Suggested corrections to the transcript of record must be offered by a party within ten days after the transcript is filed in the proceeding except for good cause shown, and such suggestion shall be in writing and served upon each party or his attorney, the official reporter, and the presiding officer.

(a) If no objection is made to the proposed corrections, the presiding officer, unless otherwise directed by the commission, may, in his discretion, direct that the corrections be made and the manner of making them.

(b) Objections shall be made in writing within ten days from the filing of the suggestions. The commission or examiner shall, with or without hearing, determine what changes, if any, shall be made in the record.

(3) Except when a stenographic record is demanded by a party pursuant to 2-4-614 , MCA, in the discretion of the commission or hearing examiner, a satellite hearing for the purpose of receiving public testimony may be recorded mechanically. For purposes of this rule a "satellite hearing" is any secondary hearing held at various points within the state for the convenience of the public and to encourage public comment and which is dependent on a primary hearing for technical evidence and argument.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; AMD, 1994 MAR p. 2010, Eff. 7/22/94.

Mont. Admin. R. 38.2.3910 Conduct at Hearings

(1) All parties to hearings, their counsel, and spectators shall conduct themselves in a respectful manner. Demonstrations of any kind at hearings shall not be permitted. Any disregard by parties, attorneys, or other persons of the rulings of the presiding officer on matters of order and procedure may be noted on the record, and where deemed necessary, be made the subject of a report to the commission. In the event that parties or attorneys conduct themselves in a disrespectful, disorderly or contumacious manner at any hearing, the presiding officer may submit immediately to the commission his report thereon, together with a recommendation.

(2) The presiding officer may, at his discretion, recess or continue any hearing in case the conduct of witnesses, spectators, or other persons interferes with the proper and orderly holding of such hearing or for any other cause or circumstance which may prevent the proper conduct of such hearing.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.3911 Consolidated Hearings

(1) The commission, upon its own motion, or upon motion by any party, may order two or more proceedings involving similar questions of law or fact to be consolidated for hearing where rights of the parties or the public interest will not be prejudiced by such procedure.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Subchapter 38.2.42 Rules of Evidence

Mont. Admin. R. 38.2.4201 General

(1) In the conduct of its hearings, the commission is bound to follow the common law and statutory rules of evidence, 2-4-612 (2) , MCA. The Montana rules of evidence, as adopted by the Montana supreme court, shall be applied in all contested cases.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.4202 Testimony Under Oath

(1) All testimony to be considered by the commission in its hearings, except matters officially noticed or entered by stipulation, shall be taken under oath or affirmation.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.4203 Stipulation as to Facts

(1) The parties to any proceeding or investigation before the commission may, by stipulation in writing filed with the commission or entered in the record, agree upon the facts or any portion thereof involved in the controversy, which stipulation shall be binding upon the parties thereto and may be regarded and used by the commission as evidence at the hearing. It is desirable that the facts be thus agreed upon wherever practical. The commission may, however, require proof by evidence of the facts stipulated to, notwithstanding the stipulation of the parties.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.4204 Supporting Evidence

(1) Parties commencing an action should file prepared testimony or a fact sheet to establish the facts necessary for the commission to grant the requested relief. If no prepared testimony is filed with an initial pleading, the commission may set a deadline for any party commencing an action to file prepared testimony. The failure to timely file prepared testimony may result in the dismissal of the matter.

(2) In the discretion of the presiding officer, a witness's prepared testimony may:

(a) be read into the record on direct examination;

(b) be copied into the record without reading; or

(3) Prepared testimony or fact sheets must be signed and verified by a competent witness. The verification must state that the prepared testimony or fact sheet is true and accurate to the witness's best knowledge, information, and belief. A witness's signature may be electronic and does not need to be notarized.

History

Authorizing statute(s): 69-1-110, 69-2-101, 69-3-103, 69-12-201, MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; AMD, 2021 MAR p. 937, Eff. 7/24/21.

Mont. Admin. R. 38.2.4205 Exhibits

(1) Size of exhibits. Whenever possible, exhibits offered as evidence shall be, when folded, 8-1/2 inches by 11 inches.

(2) Marking exhibits. All exhibits shall be marked as ordered by the presiding officer. Parties shall arrange in advance with the court reporter the manner of identifying their exhibits.

(3) Designation of part of document as evidence. When relevant and material matter offered in evidence by any party is embraced in a book, paper, or document containing other matter not material or relevant, the party offering the same must plainly designate the matter so offered. If other matter is in such volume as would necessarily encumber the record, such book, paper, or document will not be received in evidence, but may be marked for identification, and, if properly authenticated, the relevant or material matter may be read into the record, or, if the presiding officer so directs, a true copy of such matter in proper form shall be received as an exhibit, and like copies delivered by the party offering the same to all other parties or their attorneys appearing at the hearing, who shall be afforded an opportunity to examine the book, paper, or documents, and to offer in evidence in like manner other portions thereof if found to be material and relevant.

(4) Abstracts of documents. When documents are numerous, such as freight bills or bills of lading, and it is desired to offer in evidence more than a limited number of such documents as typical of the others, an abstract in an orderly manner of relevant data of such documents shall be prepared and offered as an exhibit, giving other parties to the proceeding reasonable opportunity to examine both the abstract and the document.

(5) Copies of exhibits. When exhibits are offered in evidence, the original and two copies shall be furnished to the reporter, and the party offering exhibits should also be prepared to furnish a copy to each commissioner or examiner sitting, each party, and the staff, unless such copies have previously been furnished or the presiding officer directs otherwise. Whenever practicable, the parties should interchange copies of exhibits before or at the commencement of the hearing.

(6) Exhibits for rate cases. In rate or other proceedings involving detailed and complicated accounting exhibits, the commission may require the applicant, respondent, any other party, or the commission staff, to file and serve copies thereof within a specified time in advance of the hearing in order to enable parties and protestants to study the same and prepare cross-examination with reference thereto. Data attempting to justify proposed tariff changes may be requested in a suspension order.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.4206 Additional Evidence

(1) At the hearing, the presiding officer may require the production of further evidence upon any issue. Upon agreement of the parties, he may authorize the filing of specific documentary evidence as a part of the record within a fixed time after submission, reserving exhibit numbers therefor.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.4207 Objections

(1) Any evidence offered in whatever form shall be subject to appropriate and timely objection. When objection is made to the admissibility of evidence, such evidence may be received subject to later ruling by the commission. The commission, in its discretion, either with or without objection, may exclude inadmissible, incompetent, cumulative, or irrelevant evidence, or order the presentation of such evidence discontinued. Parties objecting to the introduction of evidence shall briefly state the grounds of objection at the time such evidence is offered. The evidence to be admitted at hearing shall be material and relevant to the issue.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.4208 Offers of Proof

(1) An offer of proof for the record shall consist of a statement of the substance of the evidence to which objection has been sustained. The offer shall become a part of the record, but only for purpose of judicial review.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Subchapter 38.2.45 Proposed Findings and Conclusions; Briefs

Mont. Admin. R. 38.2.4501 Proposed Findings and Conclusions of Parties

(1) Notice. The presiding officer may require all parties of record to file proposed findings of fact and conclusions of law at the close of testimony in the proceeding. The presiding officer shall immediately fix the time in which such proposed findings and conclusions shall be filed. No decision, report or recommended order shall be made until after the expiration of the time so fixed.

(2) Contents. Each proposed finding of fact and conclusion of law shall be clearly and concisely stated and numbered. Each statement shall show specifically the testimony by appropriate transcript reference which supports that proposed finding of fact, if a transcript has been prepared.

(3) Copies required. An original and six copies accompanied by a certificate of service shall be filed with the commission and one copy shall be filed with each attorney of record or each party.

(4) Enlargement of time. Any party may petition the presiding officer for an enlargement of time in which to file proposed findings of fact and conclusions of law. Such petition shall state the reasons why the enlargement is required.

(5) Failure to file - dismissal. The commission may dismiss any proceeding where the party who initiated such proceeding fails to comply with this rule and the failure of any other party may be deemed a waiver of the right to participate further.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.4502 Briefs and Oral Argument: Right to File or Argue

(1) A party shall have the right to file a brief or present oral argument in any hearing before the commission. The presiding officer may require the filing of briefs or the presentation of oral argument or both by the parties. Requests for filing of briefs or oral argument shall be made before or at the close of the hearing and may be made in writing or orally on the record.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.4503 Time

(1) Briefs. Unless otherwise ordered by the presiding officer, when briefs are to be filed in any proceeding, the applicant or complainant shall have 20 days after close of hearing, or 20 days after the date the complete transcript of the hearings is filed with the commission if a transcript is prepared, in which to file its brief. Unless otherwise ordered, any other party shall have 20 days thereafter to file its brief. Reply briefs may be filed ten days thereafter. The secretary of the commission shall notify all parties of the date of the filing of the transcript.

(2) Enlargement. Petition for enlargement of time to file a brief must be filed prior to that time as set out in (1) above, and must set forth good cause for the granting of the enlargement.

(3) Oral argument. Unless otherwise ordered by the presiding officer the time allowed for oral argument shall be as follows:

(a) For an applicant or complainant, 60 minutes, which may be divided between the original argument and reply argument, but no more than 15 minutes shall be allowed for reply argument and

(b) For other parties 45 minutes each.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Mont. Admin. R. 38.2.4504 Filing and Service of Briefs

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; REP, 2021 MAR p. 937, Eff. 7/24/21.

Mont. Admin. R. 38.2.4505 Briefs, Contents

(1) Briefs shall be concise, and shall, when a transcript is prepared, include transcript citations for each statement of fact. Briefs exceeding 20 pages excluding appendices shall contain a subject index with page references and a list of authorities if any cited.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Subchapter 38.2.48 Commission Decisions and Orders, Exceptions, Rehearings and Reconsideration

Mont. Admin. R. 38.2.4801 Commission Decisions and Orders

(1) An order or decision in writing by the commission will issue in every proceeding. The order or decision shall contain separately stated findings of fact and conclusions of law. One copy of the order shall be served on each party.

History

Authorizing statute(s): 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; AMD, 2016 MAR p. 1966, Eff. 10/29/16.

Mont. Admin. R. 38.2.4802 Issuance of Presiding Officer or Examiner Proposed Decision

(1) A presiding officer or hearing examiner may issue a proposed decision. The decision shall be served on all parties to the proceeding. The proposed order shall contain separately stated findings of fact and conclusions of law.

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

(3) The commission may issue a decision which makes reference to the proposed decision and indicates disagreements with the presiding officer or examiner, and the commission may make further or modified findings and conclusions based on the record.

(4) If all parties stipulate and the commission does not disapprove of said stipulation, then a prepared order or decision may be considered a final order or decision of the commission.

History

Authorizing statute(s): 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; AMD, 2016 MAR p. 1966, Eff. 10/29/16.

Mont. Admin. R. 38.2.4803 Exceptions to Proposed Orders

(1) Briefs on exceptions may be filed by any party within 20 days after the proposed order is filed. Response briefs opposing exceptions may be filed within ten days thereafter. Enlargement of time may be granted for good cause shown with leave of a presiding officer or hearing examiner.

(2) Briefs on exceptions and response briefs must specifically set forth the precise portions of the proposed decision to which the exception is taken, the reason for the exception, authorities on which the party relies, and specific citations to the transcript, if prepared.

(3) An original of each brief on exceptions and response briefs shall be filed with the commission, and be accompanied by a certificate of service showing proof of service on each party's representative.

History

Authorizing statute(s): 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; AMD, 2016 MAR p. 1966, Eff. 10/29/16.

Mont. Admin. R. 38.2.4804 Oral Argument to Commission After Proposed Decision

(1) Any party may petition the commission for oral argument after the issuance of a proposed decision. Such request may be included in a brief on exceptions or response, but must be filed no later than the last day to file responses.

History

Authorizing statute(s): 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; AMD, 2016 MAR p. 1966, Eff. 10/29/16.

Mont. Admin. R. 38.2.4805 Rehearings

(1) Before issuance of a commission decision, or after the issuance of a proposed decision, a party to a proceeding may file with the commission an application to set aside submission and reopen the proceeding for the taking of additional evidence.

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

(3) Within ten days following the service of any petition to reopen, any other party may file a brief in opposition; if no brief is filed, a party’s objection shall be deemed waived.

(4) The commission on its own motion may reopen any proceeding after final submission when it has reason to believe that conditions of fact or law have so changed as to require, or that the public interest requires the reopening of such proceeding. The commission may limit the reopened hearing to matters alleged in the petition and proof thereof.

History

Authorizing statute(s): 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; AMD, 2016 MAR p. 1966, Eff. 10/29/16.

Mont. Admin. R. 38.2.4806 Reconsideration

(1) Within ten days after an order or decision has been made by the commission, any party may apply for a reconsideration in respect to any matter determined therein. Such motion shall set forth specifically the ground or grounds on which the movant considers said order or decision to be unlawful, unjust, or unreasonable.

(2) Motion for such a reconsideration shall not excuse any corporation or person or public utility from complying with or obeying any order or decision or any requirement of an order or decision of the commission, or operate in any manner to stay or postpone the enforcement thereof except as the commission may by order direct as provided by law.

(3) If, after such motion for reconsideration is filed, the commission is of the opinion that the original order or decision is in any respect unjust or unwarranted, or should be changed, the commission may abrogate, change, or modify the same.

(4) A motion for reconsideration shall not be well taken unless accompanied by a supporting brief.

(5) A motion for reconsideration shall be deemed denied when it has not been acted upon within 20 days of its filing.

(6) A commission order is final for purpose of appeal upon the entry of a ruling on a motion for reconsideration, or upon the passage of 20 days following the filing of such a motion, whichever event occurs first.

(7) Reconsideration is not available in regard to the granting of a motion for protective order.

(8) If and only if a party applies to a court for an injunction staying or suspending the operation of a commission order, within the applicable statutory deadlines, does the filing of a motion for reconsideration become optional for the purpose of finalizing a commission order for appeal.

History

Authorizing statute(s): 69-1-110(3), 69-2-101, 69-3-103, 69-12-201(2), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77; AMD, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2016 MAR p. 1966, Eff. 10/29/16.

Mont. Admin. R. 38.2.4807 Appeals

(1) Appeals of a commission decision are as provided by law.

History

Authorizing statute(s): 69-3-103, 69-2-101, 69-12-201(2) and 69-1-110(3), MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1977 MAR p. 1200, Eff. 12/24/77.

Subchapter 38.2.50 Protective Orders and Protection of Confidential Information

Mont. Admin. R. 38.2.5001 Definitions

Terminology used in these rules has the following meanings, except where the context clearly indicates otherwise:

(1) "Confidential information" means information that the commission may lawfully withhold from public disclosure by issuing a protective order in accordance with these rules;

(2) "Consumer counsel" means the Montana Consumer Counsel and staff of the Montana Consumer Counsel;

(3) "Information" includes knowledge, observations, opinions, data, facts, and the like, whether recorded or communicated in writing, orally, electronically, or otherwise, and whether provided through pleadings, reports, exhibits, testimony, work papers, or similar items or attachments to such items, or in response to discovery, subpoena, order, audit, investigation, or other request;

(4) "Legal counsel" means an individual authorized to practice law before the commission in a proceeding in which a protective order has been issued, and who represents a party to the proceeding;

(5) "Provider" or "providing party" means the person in possession of confidential or claimed confidential information who requests a protective order; and

(6) "Requesting party" means the person requesting access or granted access to confidential information.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2004 MAR p. 2592, Eff. 10/22/04; AMD, 2007 MAR p. 2135, Eff. 12/21/07.

Mont. Admin. R. 38.2.5002 Protective Orders and Rules--Relationship, Waiver, Special Provisions, Inapplicability

(1) If conflict exists between these rules and a protective order, the protective order controls.

(2) Requests for waiver of one or more of these rules will not be routinely granted, but may be granted for good cause. Requests for waiver must include a concise statement of the reasons for the request.

(3) Requests that special provisions or terms and conditions not provided by these rules be included in a protective order will not be routinely granted, but may be granted for good cause. Requests for special provisions or terms and conditions must include proposed language and a concise statement of the reasons for the request.

(4) These rules do not apply to all information in the possession of the commission which may be lawfully withheld from public disclosure. Generally, these rules apply to confidential information necessary to commission regulation and decision-making, normally but not exclusively in a contested case process. Information to which these rules do not apply includes agency personnel records or identities of certain informants or complainants. Also, these rules do not apply to information, access to which will create a risk of personal safety or impede law enforcement efforts.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2004 MAR p. 2592, Eff. 10/22/04; AMD, 2007 MAR p. 2135, Eff. 12/21/07.

Mont. Admin. R. 38.2.5003 Protection of Information--"90-Day Rule"

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; REP, 2004 MAR p. 2592, Eff. 10/22/04.

Mont. Admin. R. 38.2.5004 Term Protective Orders

(1) On the motion of a provider, the commission may issue a "term protective order," which is a protective order applicable to specific confidential information expected to be required periodically by the commission. An example of such information would be information supplied in response to routine or repetitive reporting requirements, such as commission annual reports or information required by special commission order. A term protective order may be effective for a period of not more than four years. The requirements for requesting, for issuing, and for gaining access to confidential information under a term protective order are the same as the requirements applicable to protective orders under these rules.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2004 MAR p. 2592, Eff. 10/22/04.

Mont. Admin. R. 38.2.5007 Protective Order--Requests, Timing of Requests, and Procedure

(1) Confidential information will be protected only on commission approval of a request by a provider.

(2) Prior to requesting a protective order, the provider must determine, following a thorough legal and factual examination, that all information claimed to be confidential is a trade secret or otherwise legally protectible.

(3) The facts and legal analysis contained in a request for protective order must make clear to the commission the basis for the request, and must make a prima facie showing of confidentiality. Unless the commission has granted a waiver pursuant to ARM 38.2.5002, the request for protective order must include:

(a) an identification of the person, including contact information (phone number and e-mail address) to whom communications from commission staff, parties, and interested persons may be made;

(b) a complete and specific nonconfidential identification, description, and explanation of the information, item by item or by category of items which are alike, of all information for which protection is requested, suitable for meaningful use in testimony, arguments, public discussion, orders, and the public record;

(c) a complete and specific factual basis, supported by affidavit of a qualified person, that supports the claim of confidential information; and

(d) a complete and specific legal analysis, explaining why the information is confidential information.

(4) Requests for a protective order must demonstrate the following:

(a) If the claimed basis for protection is individual privacy, that:

(i) the provider has made a reasonable effort to contact the individual to ascertain whether the individual waives the right to privacy for the information at issue;

(ii) the individuals with potential privacy interests have actual, subjective expectations of privacy in the information at issue;

(iii) society recognizes such expectations of privacy as reasonable; and

(iv) the demand of individual privacy clearly exceeds the merits of public disclosure.

(b) If the claimed basis for protection is trade secret, that:

(i) prior to requesting a protective order, the provider has considered that the commission is a public agency and that there is a constitutional presumption of access to documents and information in the commission's possession;

(ii) the claimed trade secret material is information;

(iii) the information is secret;

(iv) the secret information is subject to efforts reasonable under the circumstances to maintain its secrecy;

(v) the secret information is not readily ascertainable by proper means; and

(vi) the information derives independent economic value from its secrecy, or that competitive advantage is derived from its secrecy.

(5) If there are bases for confidential information other than individual privacy or trade secret, requests for protection must explain, and demonstrate compliance with, the legal standards required for protection.

(6) Prior to issuing a protective order the commission will review the demonstrations made pursuant to (4) and (5), and may question a provider on those demonstrations.

(7) A request for protective order must not include the claimed confidential information. Generally, claimed confidential information must not be filed at the commission before the issuance of a requested protective order. If it is necessary for the commission to access claimed confidential information prior to the issuance of a protective order, such access will be by special commission order.

(8) The commission will notice requests for protective orders, and the issuance of protective orders, on its weekly agenda.

(9) In the interests of preventing delays in proceedings, the commission encourages providers to make requests for protection of confidential information at the earliest possible time in a proceeding, including in anticipation of a proceeding if the provider knows that claimed confidential information will be submitted in the proceeding. Failure to heed this section may result in a commission conclusion that a filing is incomplete, which in turn may change the anticipated date on which a commission decision will issue.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2002 MAR p. 3330, Eff. 11/28/02; AMD, 2004 MAR p. 2592, Eff. 10/22/04; AMD, 2007 MAR p. 2135, Eff. 12/21/07.

Mont. Admin. R. 38.2.5008 Protective Order--Issuance, Challenge to Confidentiality, Burden on Provider, Notice of Change of Status of Protected Information

(1) Protective orders will include all or part of these rules by reference, will include a general nonconfidential description of the protected information, may waive certain of these rules and may include special terms and conditions.

(2) Challenges to a protective order must be in accordance with (3).

(3) Protective orders establish a procedure for handling confidential information. Issuance of a protective order means the commission has determined at least that the request for protective order conforms to these rules, and makes a prima facie showing that the information for which protection is requested is confidential information. A person with proper standing, or the commission on its own motion, may challenge a request for protective order or a protective order by using the following procedure:

(a) A motion and supporting memorandum challenging a protective order or a request for a protective order must be filed with the commission and served on the providing party. The providing party must file a response to the motion within ten business days of service. Service means physical delivery or deposit in the mail. If necessary, following receipt of the response the commission will set the challenge for hearing.

(b) If the commission determines that information should be removed from protection, the information will remain protected under the governing protective order for a reasonable period, to be established in the commission ruling, to allow the provider time to appeal the commission decision.

(4) A provider has the burden at all times of demonstrating that information is confidential information.

(5) On becoming aware that there is no longer a legal or factual basis to protect information covered by commission protective order, the provider must immediately notify the commission so that such information can be made public.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2002 MAR p. 3330, Eff. 11/28/02; AMD, 2004 MAR p. 2592, Eff. 10/22/04; AMD, 2007 MAR p. 2135, Eff. 12/21/07.

Mont. Admin. R. 38.2.5010 Protective Order--Extension to Additional Information, Extension to Other Providers

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; REP, 2004 MAR p. 2592, Eff. 10/22/04.

Mont. Admin. R. 38.2.5012 Nondisclosure Agreements--General

(1) All persons, including legal counsel, having a right pursuant to protective order to access confidential information, shall sign and file with the commission and serve on the provider a nondisclosure agreement, on a form as attached to each protective order, prior to receiving or reviewing the confidential information.

(2) Commissioners and commission staff shall sign a "commission nondisclosure agreement" which must certify, permanently and for all confidential information in all proceedings before the commission, in substantial compliance with the following:

"I understand that in my capacity as commissioner or commission staff, I may be called upon to access, review, and analyze, information that is protected as confidential information. I have reviewed all commission rules applicable to protection of confidential information and I am familiar with the standard terms and conditions of protective orders issued by the commission. I understand and will abide by my obligations in regard to confidential information.

"I agree that I will use confidential information only for commission purposes and I will discuss and disclose confidential information only with the provider and persons, including commissioners and commission staff, having also signed a nondisclosure agreement. I agree to be bound by the terms and conditions of protective orders and these rules. I will neither use nor disclose protected information except for lawful purposes in accordance with the governing protective order and these rules so long as such information remains protected.

"I understand that this nondisclosure agreement may become part of my permanent personnel file and the files of the division to which I am assigned and may be freely copied and distributed to other files and persons having interest in it, including the provider and other parties in proceedings before the commission."

(3) Counsel, expert witnesses, and others entitled to access confidential information for parties to a proceeding in which a protective order has been issued shall sign and file with the commission, and on the same day must serve on the provider, a nondisclosure agreement, on a form as attached to each protective order, certifying in substantial compliance with the following:

"I understand that in my capacity as counsel or expert witness for a party to this proceeding before the commission, or as a person otherwise lawfully so entitled, I may be called upon to access, review, and analyze information that is protected as confidential information. I have reviewed all commission rules and protective orders governing the protected information that I am entitled to receive. I fully understand, and agree to comply with and be bound by, the terms and conditions thereof. I will neither use nor disclose confidential information except for lawful purposes in accordance with the governing protective order and commission rules so long as such information remains protected.

"I understand that this nondisclosure agreement may be copied and distributed to any person having an interest in it and that it may be retained at the offices of the provider, commission, consumer counsel, or any party and may be further and freely distributed."

(4) Nondisclosure agreements must include the name, employer, and business address of the person signing and the name of the party represented by the person.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2004 MAR p. 2592, Eff. 10/22/04.

Mont. Admin. R. 38.2.5014 Protective Order--Standard Terms and Conditions --General

(1) Confidential information must not be provided to, disclosed to, discussed with, or accessed by any person, including legal counsel, who has not first signed a commission-approved nondisclosure agreement, thereby agreeing to access, maintain, use, and disclose confidential information in strict accordance with the governing protective order and these rules. All persons who are entitled to receive or access confidential information shall neither use nor disclose the confidential information for any purpose other than the purposes of preparation for and conduct of the proceeding before the commission in which the protective order has been issued, and then solely as contemplated in the governing protective order and these rules, and shall take reasonable precautions to keep the confidential information secure in accordance with the purposes and intent of the protective order and these rules.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2004 MAR p. 2592, Eff. 10/22/04; AMD, 2007 MAR p. 2135, Eff. 12/21/07.

Mont. Admin. R. 38.2.5015 Protective Order--Standard Terms and Conditions --Identification of Confidential Information

(1) Except as otherwise ordered by the commission, confidential or claimed confidential information must be provided and maintained at all times on yellow paper, and must be clearly marked and maintained as marked in a fashion substantially equivalent to "confidential – subject to protective order, [or provisional protective order] PSC Docket No. (insert docket number)" and may include additional markings not inconsistent with the governing protective order and these rules.

(2) On request and for good cause the commission will authorize the provision of confidential or claimed confidential information through a medium other than yellow paper.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2007 MAR p. 2135, Eff. 12/21/07.

Mont. Admin. R. 38.2.5016 Protective Order--Standard Terms and Conditions --Providing Confidential Information--Non-Confidential Written Summary

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2004 MAR p. 2592, Eff. 10/22/04; REP, 2007 MAR p. 2135, Eff. 12/21/07.

Mont. Admin. R. 38.2.5017 Protective Order--Standard Terms and Conditions --Providing Confidential Information--General

(1) On request of a requesting party, the provider shall provide confidential information pursuant to the governing protective order. The commission and all requesting parties having access to confidential information shall take appropriate action in good faith to mitigate the effect of provider errors in supplying confidential information, such as mismarking or misdirecting, upon discovery of the error or upon notice of the error by the provider or the commission.

(2) Except as described at ARM 38.2.5023 and below, confidential information is only available from the provider and only available in accordance with the governing protective order, and confidential information is not to be obtained from the commission or others, including the consumer counsel. However, the commission may allow inspection of confidential information maintained at the commission office, by any person having signed, filed with the commission, and served on the provider a nondisclosure agreement ten days before asking to inspect the confidential information.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2004 MAR p. 2592, Eff. 10/22/04; AMD, 2007 MAR p. 2135, Eff. 12/21/07.

Mont. Admin. R. 38.2.5020 Protective Order--Standard Terms and Conditions --Maintenance and Use of Confidential Information--General

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2004 MAR p. 2592, Eff. 10/22/04; REP, 2007 MAR p. 2135, Eff. 12/21/07.

Mont. Admin. R. 38.2.5021 Protective Order--Standard Terms and Conditions --Use of Confidential Information--General

(1) Where written or oral reference to confidential information is required, reference must be by general citation of title or exhibit number or by nonconfidential description and summary, such as the nonconfidential summary supplied by the provider pursuant to ARM 38.2.5007(3)(b). If further reference to confidential information is necessary, oral reference must be presented in camera and written reference must be separated, clearly marked, filed with the commission in a sealed envelope, and served only on legal counsel for each party.

(2) Where reference to confidential information is required in a commission decision, every effort will be made to make such reference through nonconfidential summary. If it is not possible to make such reference by nonconfidential summary, such reference must be separated, clearly marked, placed in a sealed envelope, and served only on legal counsel for each party.

(3) Where in camera proceedings are recorded, stenographically or otherwise, the recording and all transcription of the recording must be separated, clearly marked, sealed in an envelope, and served on the commission and legal counsel for each party who has ordered a record of the proceedings. The person recording the in camera proceeding and the person transcribing the recording of the in camera proceeding must comply with the governing protective order and must sign a nondisclosure agreement.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2004 MAR p. 2592, Eff. 10/22/04; AMD, 2007 MAR p. 2135, Eff. 12/21/07.

Mont. Admin. R. 38.2.5022 Protective Order--Standard Terms and Conditions --Access and Maintenance of Confidential Information--Commission

(1) Except as otherwise provided by the commission in a protective order, commissioners and commission staff, may have access to all confidential information made available pursuant to protective order, and shall be bound by the terms of the protective order.

(2) While in the custody of the commission or requesting parties, confidential or claimed confidential information must remain on yellow paper and remain marked with a clear indication that the information has been designated confidential information in a proceeding before the commission. Confidential or claimed confidential information maintained by the commission will be kept in a separate locked file cabinet, except when commissioners or commission staff are reviewing the information as part of their regulatory responsibilities. Requesting parties must similarly ensure that confidential information is kept separate and secure, and only accessible by individuals who are lawfully entitled to see the information by the terms of the protective order.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2004 MAR p. 2592, Eff. 10/22/04; AMD, 2007 MAR p. 2135, Eff. 12/21/07.

Mont. Admin. R. 38.2.5023 Protective Order--Standard Terms and Conditions --Access and Maintenance of Confidential Information--Parties

(1) The provider, and legal counsel for requesting parties who have been granted access to confidential information, must give confidential information to legal counsel for requesting parties, when legal counsel for requesting parties has signed a nondisclosure agreement pursuant to these rules. Access to confidential information may be authorized by legal counsel to expert witnesses of the requesting party. Except as otherwise agreed to by the provider, the designated expert may not be an officer, director, or employee of any party, or an officer, director, employee, stockholder, or member of an association or corporation of which any party is a member or affiliate. Prior to giving access to an expert, legal counsel shall deliver a copy of the governing protective order and these rules to the expert and the expert shall sign a nondisclosure agreement. A copy of the nondisclosure agreement must be served on the provider.

(2) When it is not feasible that confidential information be provided to counsel and experts, confidential information may be made available by the provider for inspection by legal counsel and experts at a place and a time mutually agreed on by the provider and the party, or as directed by the commission.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2004 MAR p. 2592, Eff. 10/22/04; AMD, 2007 MAR p. 2135, Eff. 12/21/07.

Mont. Admin. R. 38.2.5024 Protective Order--Standard Terms and Conditions --Access and Maintenance of Confidential Information--Employee Experts of Parties

(1) Legal counsel for a requesting party may propose access to confidential information by an employee expert of the requesting party in accordance with the following procedure.

(a) Legal counsel for the requesting party shall serve written notice on the legal counsel for the provider of the intent to provide confidential information to an employee expert of the requesting party. The notice must contain the name, title, job description, description of previous positions and experience, and area of expertise of the employee expert accessing the information.

(b) Within ten business days of service of notice, the provider must serve on the requesting party in writing either an objection or a statement indicating no objection.

(c) If the requesting party receives a statement of no objection, legal counsel for the requesting party may provide access to the information by the designated employee expert in accordance with the governing protective order.

(d) If the requesting party receives an objection within the time required, the requesting party and provider must attempt to resolve the objection. If the parties are unable to resolve the objection, the requesting party may apply to the commission for a ruling. Access to the information shall not be given to the designated employee expert pending ruling by the commission.

(e) The standard applied by the commission when determining a question of employee expert access to confidential information is whether access would be reasonably likely to jeopardize the confidential nature of the information.

(f) A party dissatisfied with a ruling by the commission may appeal to the district court, and, pending appeal, the information must not be disclosed to the designated employee expert.

(2) To avoid unnecessary delay, counsel for the requesting party proposing access to confidential information by an employee expert should commence the above procedure as early as possible in a proceeding.

(3) All written communication referred to in this rule must be served on the commission.

(4) Service of written communication means physical delivery or deposit in the mail.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2004 MAR p. 2592, Eff. 10/22/04; AMD, 2007 MAR p. 2135, Eff. 12/21/07.

Mont. Admin. R. 38.2.5027 Public Access to Confidential Information

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2004 MAR p. 2592, Eff. 10/22/04; REP, 2007 MAR p. 2135, Eff. 12/21/07.

Mont. Admin. R. 38.2.5028 Protective Order--Standard Terms and Conditions --Access and Maintenance of Confidential Information--Public

(1) A person not a party to a proceeding in which a protective order has been issued may request access to confidential information in accordance with the following procedure.

(a) The person shall serve a written request to access confidential information on the commission and legal counsel for the provider. The request must include the name and address of the person, an identification of the information for which access is requested, the reason access is requested, and the intended use of the information if access is granted.

(b) Within ten business days of service of the request the provider must either object in writing, clearly stating the reasons for the objection, or indicate in writing that the provider has no objection. An objection and statement of no objection must be served on the person and the commission.

(c) If the person and the commission receive a statement of no objection, the person may access the protected information in accordance with the governing protective order.

(d) If the person and the commission receive an objection, the person and the provider must attempt to resolve the objection. If unable to resolve the objection, either the person or the provider may apply to the commission for a ruling. Access to the information will not be given to the person pending ruling by the commission.

(e) The standard applied by the commission in determining a question of access to confidential information is whether access would be reasonably likely to jeopardize the confidential nature of the information.

(f) Dissatisfaction with a ruling by the commission may be appealed to the district court, and, pending appeal, the information must not be disclosed to the designated person.

(2) Written communications as used in this rule does not include electronic communications. Service of written communications means physical delivery or deposit in the mail.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00; AMD, 2004 MAR p. 2592, Eff. 10/22/04; AMD, 2007 MAR p. 2135, Eff. 12/21/07.

Mont. Admin. R. 38.2.5030 Confidential Information--Removal of Protection, Return to Provider

(1) Confidential information remains protected permanently, whether or not returned to the provider, unless:

(a) the commission otherwise orders following notice and opportunity to be heard;

(b) the provider agrees otherwise, in writing, communicated to each person having obtained access to the confidential information; or

(2) Removal of protection relieves all persons having access to the confidential information from ongoing compliance with the governing protective order and these rules.

(3) Except for the commission and consumer counsel and unless the provider agrees to another disposition, all persons having obtained confidential information will return the confidential information to the provider within 45 days of final action, including court action, in the proceeding in which the information was designated confidential, or, in instances where confidential information has been obtained outside a commission proceeding, confidential information shall be returned to the provider within 30 days of obtaining the confidential information. Return of confidential information does not relieve the receiving party or any person having access to the confidential information from ongoing compliance with the governing protective order and these rules. The commission and the consumer counsel may maintain confidential information permanently. The consumer counsel, in its discretion, may return confidential information to the provider. The commission may return or destroy confidential information, when no longer required to be maintained by the commission in accordance with laws governing records retention by state agencies.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-105, MCA
History: NEW, 2000 MAR p. 2037, Eff. 7/28/00.

Mont. Admin. R. 38.2.5031 Information Transparency Rule

(1) Any information held in the possession of the commission is open to the public for inspection and copying in accordance with 2-6-102, MCA, during regular business hours, as defined by 2-16-117, MCA, except for information listed in (2).

(a) Information includes: pleadings, petitions, applications, motions, communications, exhibits, reports, records, accounts, files, papers, and memoranda or other document(s) of every nature.

(2) The following information is not open to public inspection:

(a) information for which the commission has issued a protective order pursuant to 69-3-105(2), MCA; and

(b) internal commission non-utility information, or other information, required by law or requirements of personal privacy to remain confidential.

History

Authorizing statute(s): 69-3-103‚ MCA
Implementing statute(s): 69-3-102‚ 69-3-106‚ 69-3-201‚ 69-3-203‚ 69-3-330‚ MCA
History: NEW, 2010 MAR p. 2397, Eff. 10/15/10; AMD, 2014 MAR p. 508, Eff. 3/14/14.

Chapter 38.3 Motor Carriers

Subchapter 38.3.1 Definitions and General Rules

Mont. Admin. R. 38.3.101 Generally

(1) The rules in chapter 3 shall apply to the enforcement of and compliance with the Montana Motor Carrier Act ( 69-12-101, et seq., MCA). All statutory authority cited in chapter 3 is derived from the Montana Code Annotated, as amended, unless otherwise indicated.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-101, et seq. , MCA, Eff. 12/31/72.

Mont. Admin. R. 38.3.102 Definitions

(1) Definitions of terms as utilized under the Montana Motor Carrier Act generally shall be that meaning as utilized within the motor carrier industry or utilized by this commission in prior commission policy.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-101, et seq. , MCA, Eff. 12/31/72.

Mont. Admin. R. 38.3.103 Vicinity, Tributary, Radius, Between

(1) Unless otherwise specified the following words, terms and phrases used in the orders, certificates and permits issued by the commission shall be given the following meanings:

(a) The words, "adjacent to," "vicinity," "immediate vicinity" and "immediately tributary thereto" mean a distance not over ten miles from the point designated.

(b) The words "tributary thereto" mean a distance not over 50 miles from the point designated.

(c) The word "miles" means road miles and not straight line or "air miles," including when used in conjunction with "radius."

(d) The measure of "radius" or distance shall be by public roads and highways and not by straight line or by "air miles." All applications must be accompanied by maps showing distances by road or highway. The origin point of such "radius" is deemed to be the principal federal building in the municipality, town or community enumerated within the operating certificate. However, in the absence of such "principal federal building," the United States post office building of any municipality, town or community is deemed the origin point for determining the mileage of such "radius." In the event any "radius" arises from the geographical description of a county, then the origin point of such radius is deemed the point of intersection of the county line and the public highway being traversed.

(e) Unless otherwise specified, an order, certificate or permit granting authority to transport persons or property to or from places within a specified radius of distance tributary to a specified city, town or place does not authorize transportation within such radius or distance, unless either the point of origin or destination is the specified city, town or place.

(f) The word "between" in certificates authorizing common carrier regular route service between fixed termini, includes all intermediate points unless a specific exclusion or limitation appears in such certificates.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-101, et seq. , MCA
History: Eff. 12/31/72; AMD, 1992 MAR p. 2647, Eff. 12/11/92.

Mont. Admin. R. 38.3.104 "contract" Vs. "common" Carrier

(1) A "contract" carrier is one who hauls for six or less than six shippers under contract or special agreement.

(2) A "common" carrier is one who holds himself out to serve all the general public for business at regular rates and charges filed with this commission.

(3) A "contract" carrier may convert to a "common" carrier only through proper application and opportunity for hearing as provided in 69-12-312 and 69-12-321, MCA.

(4) A transportation network carrier is neither a contract carrier nor a common carrier.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-302, MCA
History: Eff. 12/31/72; AMD, 1990 MAR p. 1263, Eff. 6/29/90; AMD, 2015 MAR p. 1276, Eff. 8/28/15.

Mont. Admin. R. 38.3.105 Definition of Vehicles Delivered by Trailaway or Truckaway

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-101(7), MCA
History: Eff. 12/31/72; REP, 1996 MAR p. 1568, Eff. 6/7/96.

Mont. Admin. R. 38.3.106 Commercial, Area Exemption

(1) For the purposes of applying the exemption from the Montana Motor Carrier Act contained in 69-12-102(d) , MCA, the term "commercial areas" shall include all points within a distance not exceeding two miles from the post office of any city, town or village with a population of less than 500 persons, according to the latest United States census.

Rules 7

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-102(d), MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.116 Transporting for Hire on a Commercial Basis

(1) Every motor carrier as defined within the Montana Motor Carrier Act (69-12-101, MCA) is deemed to be in the business of transporting people or property for hire on a commercial basis upon the public highways of the state of Montana. Any business venture or business transaction inconsistent with the status of the carrier as providing common carriage, contract carriage, or transportation network carrier service, is deemed not within the interest of providing and maintaining a public transportation system and is prohibited. Such business ventures or transactions include transportation movements of private carriage, so-called "buy and sell" agreements, or operating under so-called "brokerage agreements," and are prohibited.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-106, MCA
History: Eff. 12/31/72; AMD, 2015 MAR p. 1276, Eff. 8/28/15.

Mont. Admin. R. 38.3.117 Identification of Vehicle

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-408, 12/31/72
History: REP, 1990 MAR p. 1263, Eff. 6/29/90.

Mont. Admin. R. 38.3.118 Lost or Misplaced Operating Authority

(1) When an original or copy of the certificate or permit is lost, the owner may have it replaced by making an affidavit of the facts surrounding the loss and applying to the commission for a duplicate.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-101, et seq. , MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.119 Copies of Commission Rules

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-101, et seq. , MCA
History: Eff. 12/31/72; REP, 1983 MAR p. 1735, Eff. 11/26/83.

Mont. Admin. R. 38.3.120 Failure of Any Owner, Driver or Operator to Comply with Rules

(1) Failure on the part of any owner, driver or operator of a motor vehicle to comply with chapter 3 and the requirements of the Montana Code Annotated and acts amendatory thereof and supplemental thereto covering motor vehicles, will be a sufficient cause for the commission in its discretion, to revoke a certificate or permit.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-327, 69-12-401 and 69-12-402, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.121 Filing Business Addresses and Telephone Numbers

(1) All intrastate and interstate motor carriers shall maintain current business mailing addresses and business telephone numbers on file with the commission at all times. Intrastate motor carriers shall also maintain on file with the commission at all times a current business address where the business records of the carrier are maintained and may be inspected by the commission or its personnel.

History

Authorizing statute(s): Secs. 69-12-201 and 69-12-204, MCA
Implementing statute(s): Secs. 69-12-201 and 69-12-204, MCA
History: NEW, 1983 MAR p. 1735, Eff. 11/26/83.

Mont. Admin. R. 38.3.122 Bona Fide Farmer, Rancher, or Raiser of Livestock

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-405, MCA
History: NEW, 1983 MAR p. 1735, Eff. 11/26/83; REP, 1996 MAR p. 1568, Eff. 6/7/96.

Mont. Admin. R. 38.3.124 Receipt Content

(1) For purposes of this rule, "receipt" has its common meaning and also includes a bill of lading, trip ticket, log sheet, and like documents or records evidencing a transportation movement.

(2) When a commission-regulated motor carrier provides a receipt to a shipper or a passenger or maintains a receipt for its own records, whether required by law to do so or does so as a matter of policy, the receipt shall include sufficient information that the commission can readily determine that charges are in accordance with the motor carrier's tariffs, if applicable, and that the movement is within the scope of the motor carrier's authority.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-11-421, 69-12-203, MCA
History: NEW, 1996 MAR p. 1567, Eff. 6/7/96; AMD, 2015 MAR p. 1276, Eff. 8/28/15.

Mont. Admin. R. 38.3.130 Meaning and Effect of Class D Landfill Closure Provision

(1) For purposes of this rule "landfill closure provision" means a provision within a Class D motor carrier authority which states "carrier is allowed to transport authorized commodities to certified landfills from the territory authorized," or a reasonable variation of that specific statement, and which has been inserted into a Class D authority on the commission's own motion or on request, and which has the purpose of preventing the underlying Class D authority from becoming meaningless in the event that, through closure or other restriction, a landfill within the territory authorized in the underlying Class D authority becomes unavailable to accept solid waste transported by the Class D carrier.

(2) A landfill closure provision does not negate or modify any origination point, termination point, or other point-specific terms, route-specific terms, or other specific terms and conditions of the underlying authority, such as "between" and "to-and-from" requirements, whether the terms are stated in the body of the Class D authority or in limitations attached to the Class D authority. A landfill closure provision merely allows a transportation movement, otherwise authorized by the underlying Class D authority and executed in strict compliance with the underlying Class D authority, which would have been a lawful transportation movement to a certified landfill but for closure or restriction of that landfill, to extend to and terminate at any certified landfill.

(3) In Class D motor carrier authorities which include a required termination point the landfill closure provision allows continuation of the movement from the termination point to a certified landfill if the movement to the termination point is otherwise authorized by and executed in strict compliance with the underlying Class D authority and regardless of whether a landfill existed within the termination point at any time.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-201, MCA
History: NEW, 1999 MAR p. 2455, Eff. 10/22/99; AMD, 2000 MAR p. 2047, Eff. 7/28/00.

Subchapter 38.3.2 Laws and Rules Applicable to Intrastate and Interstate Carriers

Mont. Admin. R. 38.3.201 Vehicle Registration Fee

(1) Class A and D motor carriers must pay an annual per vehicle registration fee for which a registration receipt will be issued, a copy of which shall be carried in each vehicle at all times.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-106, 69-12-108, 69-12-201, 69-12-325, 69-12-326, 69-12-401, 69-12-407, 69-12-421, 69-12-423, 69-12-501, 69-12-503, 69-12-504, 69-12-611, 69-12-612, MCA
History: Eff. 12/31/72; AMD, Eff. 11/5/74; AMD, 1984 MAR p. 1129, Eff. 8/17/84; AMD, 1985 MAR p. 2014, Eff. 12/27/85; AMD, 1994 MAR p. 964, Eff. 4/15/94; AMD, 2015 MAR p. 1276, Eff. 8/28/15; AMD, 2021 MAR p. 1556, Eff. 11/6/21; AMD, 2023 MAR p. 1625, Eff. 11/18/23.

Mont. Admin. R. 38.3.202 Interstate and Foreign Carriers

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-103, 69-12-201, 69-12-501, 69-12-502, 69-12-503, 69-12-504, 69-12-327, 69-12-401, 69-12-421, 69-12-423 and 69-12-106, MCA
History: Eff. 12/31/72; AMD, Eff. 11/5/74; AMD, 1984 MAR p. 1129, Eff. 8/17/84; AMD, 1985 MAR p. 2014, Eff. 12/27/85; AMD, 1994 MAR p. 964, Eff. 4/15/94; REP, 1996 MAR p. 1568, Eff. 6/7/96.

Mont. Admin. R. 38.3.203 Registration of Intrastate, Interstate, and Foreign Authorities

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Secs. 69-12-201 and 69-12-204, MCA
Implementing statute(s): Secs. 69-12-103, 69-12-401 and 69-12-402, MCA
History: NEW, Eff. 11/5/74; AMD, 1983 MAR p. 1736, Eff. 11/26/83; AMD, 1984 MAR p. 1129, Eff. 8/17/84; AMD, 1994 MAR p. 964, Eff. 4/15/94; REP, 1996 MAR p. 1568, Eff. 6/7/96.

Mont. Admin. R. 38.3.204 Interstate Commerce Commission Rules

(1) By reference, this commission hereby adopts the rules of the interstate commerce commission codified as part 1023 of title 49 of the code of federal regulations, as amended from time to time.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-101, et seq. , MCA
History: NEW, Eff. 11/5/74; AMD, 1994 MAR p. 964, Eff. 4/15/94.

Mont. Admin. R. 38.3.205 Trip Permits

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-201 and 69-12-421, MCA
History: NEW, 1988 MAR p. 276, Eff. 2/12/88; REP, 1994 MAR p. 964, Eff. 4/15/94.

Subchapter 38.3.3 Urban Transportation Districts

Mont. Admin. R. 38.3.301 Jurisdictional Policy

(1) It is declared to be the policy of the public service commission that urban transportation districts created in accordance with 7-14-201 et seq., MCA, are not under the regulatory jurisdiction of the public service commission as such districts are not persons or corporations as defined in 69-12-101 (8) and (4) , MCA, and therefore do not come within the meaning of motor carriers as defined in 69-12-201 , MCA, which are subject to public service commission regulation.

History

Authorizing statute(s): Sec. 2-4-501, MCA
Implementing statute(s): Sec. 69-12-101(4), (6) and (8), MCA
History: NEW, 1982 MAR p. 294, Eff. 2/12/82.

Subchapter 38.3.4 Applications for Motor Carrier Authority

Mont. Admin. R. 38.3.401 Completion of Applications

(1) Applications for operating authority shall be in conformity with the requirements of the Montana Motor Carrier Act.

(2) Application forms for operating authority must be submitted on a form supplied by this commission.

(3) The application form must be completed, signed by the proper party, and verified in accordance with 1-6-105, MCA.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-311, 69-12-314, 69-12-340, MCA
History: Eff. 12/31/72; AMD, 1991 MAR p. 1724, Eff. 9/13/91; AMD, 2015 MAR p. 1276, Eff. 8/28/15; AMD, 2024 MAR p. 2074, Eff. 8/24/24.

Mont. Admin. R. 38.3.402 Application and Protest Fees

(1) Every application for operating authority and every protest to application for operating authority must be accompanied by the appropriate filing fee:

(a) The application fee for a certificate of public convenience and necessity or for a certificate of compliance is $500, $300 to be refunded by the commission if the application does not proceed to hearing.

(b) The application fee for a certificate of public convenience and necessity or for a certificate of compliance under a federal or state contract, as provided under 69-12-324, MCA, is $100.

(c) The fee for a protest of an application for a certificate of public convenience and necessity or for a certificate of compliance is $500.

(d) If a written request for the withdrawal of a protest is received by the commission at least two business days before the scheduled hearing, the protest fee will be refunded by the commission.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-311, 69-12-312, 69-12-313, 69-12-314, 69-12-324, MCA
History: Eff. 12/31/72; AMD, 1977 MAR p. 137, Eff. 8/5/77; AMD, 1991 MAR p. 1724, Eff. 9/13/91; AMD, 2000 MAR p. 1668, Eff. 6/30/00; AMD, 2004 MAR p. 2931, Eff. 12/3/04; AMD, 2011 MAR p. 2420, Eff. 1/1/12; AMD, 2015 MAR p. 1276, Eff. 8/28/15.

Mont. Admin. R. 38.3.403 Possession of Certificates and Permit

(1) The original certificate and/or permit issued by the commission subsequent to commission order will be retained in the carrier's file in the commission office in Helena, Montana, with copies of the same forwarded to the carrier.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-101, et seq. , MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.404 Notice of Public Hearing on Application for Operating Authority

(1) If it is necessary to conduct a public hearing on the application of a motor carrier for a certificate of operating authority, individual notice of the public hearing will be provided to only the applicant and the protestants to the application, except as otherwise required by law.

History

Authorizing statute(s): 69-12-201 and 69-12-204, MCA
Implementing statute(s): 69-12-321 and 69-12-322, MCA
History: NEW, 1983 MAR p. 1735, Eff. 11/26/83.

Mont. Admin. R. 38.3.405 Completion of Protest to Application for Certificate of Public Convenience and Necessity

(1) Persons protesting an application for a certificate of public convenience and necessity must include in the protest:

(a) a statement that the application is being protested in whole or in part and, if being protested only in part, a statement of the limitations of the protest;

(b) an identification of the specific application-proposed service areas in which a protesting motor carrier perceives a service conflict;

(c) a statement of the protesting motor carrier's annual revenues received for services provided in the specific application-proposed service areas in which the protesting motor carrier perceives a service conflict.

(2) The protest must be signed by the protestant and verified in accordance with 1-6-105, MCA.

(3) In addition to filing before the commission, a copy of the protest must be served on the applicant.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-311, 69-12-314, 69-12-321, MCA
History: NEW, 2004 MAR p. 2931, Eff. 12/3/04; AMD, 2015 MAR p. 1276, Eff. 8/28/15; AMD, Notice No. 2025-14, Eff. 4/26/25.

Mont. Admin. R. 38.3.406 Completion of Protest to Application for Certificate of Compliance

(1) Persons protesting an application for a certificate of compliance must include in their protests a statement providing the basis of the protestant's belief that the applicant is not able to meet the requirements of 69-12-415, MCA.

(2) A protestant challenging the rebuttable presumption that an applicant who has demonstrated compliance with the commission's insurance, bonding, and security requirements meets the requirements of 69-12-415, MCA, will not be successful unless the protestant provides compelling evidence to the commission either:

(a) that, contrary to the evidence in the application, the applicant has not complied with the commission's insurance, bonding, and security requirements; or

(b) that the applicant, for other reasons, is not fit, willing, and able to perform the service. Other reasons may include, but are not limited to, the criminal history or driving record of the applicant if such history or record is relevant to the issue of public safety.

(3) The protest must be signed by the protestant and verified in accordance with 1-6-105, MCA.

(4) In addition to filing before the commission, a copy of the protest must be served on the applicant.

History

Authorizing statute(s): 69-12-201, 69-12-321, 69-12-415, MCA
Implementing statute(s): 69-12-201, 69-12-321, 69-12-415, MCA
History: NEW, 2015 MAR p. 1276, Eff. 8/28/15; AMD, Notice No. 2025-14, Eff. 4/26/25.

Subchapter 38.3.5 Temporary Operating Authority

Mont. Admin. R. 38.3.501 Statutory Authority

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-207, MCA
History: NEW, Eff. 2/5/74; REP, 2015 MAR p. 1276, Eff. 8/28/15.

Mont. Admin. R. 38.3.502 Applications for Temporary Operating Authority

(1) All temporary operating authority applications shall be in writing and filed with this commission at its offices in Helena, Montana.

(2) Any application for temporary operating authority must be filed in conjunction with an application for permanent operating authority.

(3) A separate application and application fee must be filed for each temporary operating authority sought.

(4) Fees applicable to permanent operating authority as provided in ARM 38.3.402(1) are applicable to requests for temporary operating authority and are to be paid as provided in ARM 38.3.801(2) .

(5) No particular form requesting temporary operating authority need be utilized, however, the specific commodity or commodities to be transported and the points or areas to be served should be expressly and clearly indicated.

History

Authorizing statute(s): 69-12-201 and 69-12-204, MCA
Implementing statute(s): 69-12-207, MCA
History: NEW, Eff. 2/5/74; AMD, 1983 MAR p. 1736, Eff. 11/26/83; AMD, 1984 MAR p. 1129, Eff. 8/17/84.

Mont. Admin. R. 38.3.503 Supporting Affidavits

(1) Each application for temporary authority must be accompanied by a supporting affidavit(s) designed to establish an immediate and urgent need for service which cannot be met by existing carriers.

(2) Each such shipper's affidavit must contain a certification of its accuracy and must be signed by the person (or an authorized representative thereof) having such immediate and urgent need for motor carrier service.

(3) Any such supporting affidavit must contain at least the following information:

(a) Description of the specific commodity or commodities to be transported (where the transportation of property is involved) .

(b) Points or areas to, from, or between which such commodities or passengers are to be transported. (If service is needed to or from a territory or area, rather than a specific point or points, clearly describe such territory or area and furnish evidence of a broad need to justify the territorial grant of authority requested.)

(d) How soon the service must be provided and the reasons for such time limit.

(e) How long the need for such service likely will continue, and whether the persons supporting the temporary application will support a permanent service application.

(f) Recital of the consequences if service is not made available.

(g) The circumstances which created an immediate and urgent need for the requested service.

(h) Whether efforts have been made to obtain the service from existing motor, rail, or water carriers, and the dates and results of such efforts.

(i) Names and addresses of existing carriers who have either failed or refused to provide the service, and the reasons given for any such failure or refusal.

(j) Name and address of motor carrier who will provide service and is filing application for temporary authority.

(k) If the person supporting the application has supported any prior application for permanent or temporary authority covering all or any part of the desired service, give the carrier's name, address, and motor carrier docket number, if known, and state whether such application was granted or denied and the date of such action, if known.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-207, MCA
History: NEW, Eff. 2/5/74.

Mont. Admin. R. 38.3.504 Notice to Interested Persons

(1) Notice of the filing of temporary authority applications shall be given by U.S. mail or in person to all persons the commission, in its opinion, believes would be interested.

(2) No notice is required prior to initially granting temporary authority for 30 days or less.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-207, MCA
History: NEW, Eff. 2/5/74.

Mont. Admin. R. 38.3.505 Filing of Protests

(1) Any interested person who can and will provide all or any part of the proposed service may file a protest against the application. Such protest must be specific as to the service which such protestant can and will offer and must consist of a signed original which must be filed with the commission in Helena, Montana within 15 calendar days after the service date shown on the notice. One copy of such protest must be served on the applicant or its authorized representative, if any, by U.S. mail or in person. Thereafter the commission may grant temporary authority with extensions, but in no case shall a grant of temporary authority exceed an aggregate of 120 days.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-207, MCA
History: NEW, Eff. 2/5/74.

Mont. Admin. R. 38.3.506 General Compliance with Montana Law

(1) A carrier may not lawfully perform transportation under a grant of temporary authority unless and until compliance has been made with all requirements of the Montana Motor Carrier Act and the rules and regulations promulgated thereunder.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-207, MCA
History: NEW, Eff. 2/5/74.

Subchapter 38.3.6 Requirements of Prompt and Continued Operation

Mont. Admin. R. 38.3.601 Operation Upon Granting of Certificate

(1) Every person or corporation who is granted a certificate of public convenience and necessity or a certificate of compliance to operate as a motor carrier by the commission must within 30 days after the date of the issuance of the order to grant the certificate comply with all rules and regulations of the commission and the laws of the state of Montana necessary to begin actual operations as a motor carrier.

(2) If a motor carrier fails to meet the necessary operating compliance within the required time period, the failure may result in the revocation of the certificate of public convenience and necessity or the certificate of compliance granted by the commission to the person or corporation.

History

Authorizing statute(s): 69-12-201, 69-12-204, MCA
Implementing statute(s): 69-12-101, et seq., 69-12-327, 69-12-401, 69-12-402, MCA
History: Eff. 12/31/72; AMD, 1983 MAR p. 1736, Eff. 11/26/83; AMD, 2009 MAR p.1417, Eff. 8/14/09; AMD, 2015 MAR p. 1276, Eff. 8/28/15.

Mont. Admin. R. 38.3.602 Operation After Sale or Transfer of Certificate

(1) Every person or corporation who, with the approval of the commission, procures any right, privilege, certificate of public convenience and necessity, or certificate of compliance as a motor carrier either by sale, assignment, lease, transfer, or inheritance must within 30 days after the mailing of the notice of such approval by the commission, comply with all rules and regulations of the commission and the laws of the state of Montana necessary to begin actual operations as a motor carrier.

(2) If a motor carrier fails to meet the necessary operating compliance within the required time periods, the failure may result in the revocation of the right, privilege or certificate held by the motor carrier.

History

Authorizing statute(s): 69-12-201, 69-12-204, MCA
Implementing statute(s): 69-12-101, et seq., 69-12-327, 69-12-401, 69-12-402, MCA
History: Eff. 12/31/72; AMD, 1983 MAR p. 1736, Eff. 11/26/83; AMD, 2009 MAR p. 1417, Eff. 8/14/09; AMD, 2015 MAR p. 1276, Eff. 8/28/15.

Mont. Admin. R. 38.3.603 Interruption and Discontinuance of Operations

(1) All temporary discontinuances or interruptions of regular scheduled passenger service shall be reported promptly in writing to the commission with a full statement of the cause thereof and their probable duration and, as soon as known to the carrier, shall be reported forthwith to all ticket agents of the carrier along the route affected who shall notify the public by posting same forthwith on their bulletin boards together with their probable duration.

(2) Discontinuance of Class A service for a period of five consecutive days without notice to the commission shall be deemed a forfeiture of all right secured under and by virtue of any order or permission to operate; provided, however, that the commission may permit the resumption of operation after such five days' discontinuance on proper showing that the carrier was not responsible for the failure to give service.

(3) No Class A motor carrier shall discontinue the service called for under its certificate, and time schedule filed thereunder, without first having given to the commission and to the public, at least ten days' notice in writing of its intention to discontinue such service, and having secured from the commission permission to do so.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-403, MCA
History: Eff. 12/31/72; AMD, 2021 MAR p. 1556, Eff. 11/6/21.

Subchapter 38.3.7 Insurance

Mont. Admin. R. 38.3.701 Evidence of Insurance Required

(1) Pursuant to the requirements of statute concerning insurance coverage (69-12-402, MCA), every intrastate motor carrier regulated by the Montana Motor Carrier Act must file with this commission evidence of insurance prior to any intrastate motor carrier operations upon the public highways of this state.

(2) Failure to file the appropriate insurance will prohibit any intrastate carrier from conducting a transportation movement on the highways of this state.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-402, MCA
History: Eff. 12/31/72; AMD, 1985 MAR p. 2014, Eff. 12/27/85; AMD, 2015 MAR p. 1276, Eff. 8/28/15.

Mont. Admin. R. 38.3.702 Bodily Injury and Property Damage Liability Insurance

(1) Every class A and D intrastate carrier must file with this commission evidence of complying with the minimum insurance requirements of this commission as applicable to bodily injury and property damage liability insurance.

(2) For the purposes of this subchapter, "bodily injury" shall include death.

(3) Every class E carrier must file with the commission evidence of compliance with the insurance requirements of 69-12-343, MCA.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-402, MCA
History: Eff. 12/31/72; AMD, 1979 MAR p. 487, Eff. 5/25/79; AMD, 1985 MAR p. 2014, Eff. 12/27/85; AMD, 1990 MAR p. 1263, Eff. 6/29/90; AMD, 1991 MAR p. 1724, Eff. 9/13/91; AMD, 1993 MAR p. 2966, Eff. 12/10/93; AMD, 2015 MAR p. 1276, Eff. 8/28/15; AMD, 2021 MAR p. 1556, Eff. 11/6/21; AMD, 2023 MAR p. 1625, Eff. 11/18/23.

Mont. Admin. R. 38.3.703 Cargo Insurance

(1) Each class A intrastate carrier must file with this commission evidence of complying with the minimum insurance requirements of this commission as applicable to cargo insurance.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-402, MCA
History: Eff. 12/31/72; AMD, 1979 MAR p. 487, Eff. 5/25/79; AMD, 2011 MAR p. 2420, Eff. 1/1/12; AMD, 2021 MAR p. 1556, Eff. 11/6/21.

Mont. Admin. R. 38.3.704 Authorized Insurance Companies and Certificates of Insurance

(1) Policies of insurance in regard to bodily injury and property damage liability and cargo insurance, proof of which are submitted to this commission by way of certificates of insurance must be written by insurance companies who are authorized to conduct business within the state of Montana, as required by the state commissioner of insurance.

(2) Insurance policies themselves need not be filed.

(3) Certificates of insurance must be filed with the commission. All certificates of insurance submitted by insurance companies on behalf of the respective carriers must be executed by an authorized company representative.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-402, MCA
History: Eff. 12/31/72; AMD, 1979 MAR p. 487, Eff. 5/25/79; AMD, 1987 MAR p. 1345, Eff. 8/14/87; AMD, 1990 MAR p. 1263, Eff. 6/29/90.

Mont. Admin. R. 38.3.705 Forms for Certificate of Insurance

(1) The following forms shall be utilized by the department and may be obtained from the commission:

(a) Form K. Uniform notice of cancellation of motor carrier insurance policies, stock form K.

(b) Form H. Uniform motor carrier cargo certificate of insurance.

(c) Form E. Uniform motor carrier bodily injury and property damage liability certificate of insurance for use by class A and D motor carriers.

(d) Form T. Uniform bodily injury and property damage liability certificate of insurance for use by class E transportation network carriers.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-402, MCA
History: NEW, 1979 MAR p. 487, Eff. 5/25/79; AMD, 1985 MAR p. 2014, Eff. 12/27/85; AMD, 1987 MAR p. 1345, Eff. 8/14/87; AMD, 2011 MAR p. 2420, Eff. 1/1/12; AMD, 2015 MAR p. 1276, Eff. 8/28/15; AMD, 2021 MAR p. 1556, Eff. 11/6/21; AMD, 2023 MAR p. 1625, Eff. 11/18/23.

Mont. Admin. R. 38.3.706 Endorsements

(1) All insurance policies issued by the insurance company to the carrier must include, at time of issuance, the terms, conditions, and requirements set forth in this rule and repeated on endorsement forms approved by the commission and identified as "Endorsement MV4," "Endorsement MV2," and "Endorsement MV-TNC" available from the commission.

(2) The following terms, conditions, and requirements are deemed a substantive part of all policies issued, and are incorporated therein:

(a) Casualty (liability) insurance for class A and D carriers (Endorsement MV4) shall be issued in an amount no less than:

(i) $100,000 for 7 passengers or less;

(ii) $500,000 for 8 to 15 passengers;

(iii) $750,000 for 16 to 26 passengers;

(iv) except any class A motor carrier, other than as provided in (a)(i), operating under a certificate of public convenience and necessity or certificate of compliance authorizing passenger operations only within a particular city or 10-mile radius is required to carry a minimum of $500,000 insurance regardless of size of vehicle used;

(v) $100,000 for transportation of nonhazardous freight in a vehicle designed, equipped, and primarily intended for transportation of seven passengers or less or a vehicle of manufacturer's GVW rating of 10,000 pounds or less designed, equipped, and primarily intended for transportation of cargo;

(vi) $500,000 for transportation of nonhazardous freight for all other vehicles.

(b) Liability insurance for class E carriers (Endorsement MV-TNC) shall be issued as specified in 69-12-343, MCA.

(3) These endorsements must be executed, countersigned, and attached to the original policy when issued.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-402, MCA
History: Eff. 12/31/72; AMD, 1990 MAR p. 1263, Eff. 9/1/90; EMERG, AMD, 1991 MAR p. 360, Eff. 3/29/91; AMD, 1997 MAR p. 1062, Eff. 6/24/97; AMD, 2011 MAR p. 2420, Eff. 1/1/12; AMD, 2012 MAR p. 1274, Eff. 6/22/12; AMD, 2015 MAR p. 1276, Eff. 8/28/15; AMD, 2021 MAR p. 1556, Eff. 11/6/21; AMD, 2023 MAR p. 1625, Eff. 11/18/23.

Mont. Admin. R. 38.3.707 Minimum Limits of Insurance Coverage - Bonds Unacceptable

(1) Minimum limits of insurance coverage for class A and D carriers as required by this commission are outlined in Endorsement MV-4 and Endorsement MV-2.

(2) Minimum limits of insurance coverage for class E carriers are specified in 69-12-343, MCA and outlined in Endorsement MV-TNC.

(3) Bonds in lieu of insurance coverage are not acceptable for carriers.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-402, MCA
History: Eff. 12/31/72; AMD, 2011 MAR p. 2420, Eff. 1/1/12; AMD, 2015 MAR p. 1276, Eff. 8/28/15; AMD, 2021 MAR p. 1556, Eff. 11/6/21; AMD, 2023 MAR p. 1625, Eff. 11/18/23.

Mont. Admin. R. 38.3.708 Self-Insurance

(1) An application for self-insurance shall be in writing and duly verified by the motor carrier making same.

(2) The application shall set forth a detailed statement of the financial assets and liabilities of the applicant and contain an express agreement on the part of the applicant motor carrier to the effect that if self-insurance is permitted, the motor carrier will promptly notify the commission of any material change thereafter occurring in the motor carrier's financial status.

(3) The privilege of self-insurance may be withdrawn at any time by the commission. The failure of a motor carrier to promptly notify the commission of any material change in the motor carrier's financial status or failure to correctly exhibit to the commission the motor carrier's financial status, either in an original application for self-insurance or in any subsequent report, shall be sufficient cause for revocation of the motor carrier's certificate of public convenience and necessity or certificate of compliance.

(4) Class E carriers may not provide self-insurance.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-402, MCA
History: NEW, Eff. 11/5/74; AMD, 2011 MAR p. 2420, Eff. 1/1/12; AMD, 2015 MAR p. 1276, Eff. 8/28/15.

Mont. Admin. R. 38.3.709 Annual Financial Reports Required for Self-Insurance

(1) All motor carriers permitted to furnish self-insurance shall annually, on or before April 1st, and at such other times as may be required by the commission, furnish a financial report setting forth a detailed statement of the assets and liabilities of the carrier.

(2) Failure of any carrier to furnish such annual report, or as required, shall be sufficient cause, within the discretion of the commission, for the immediate cancellation, without further notice, of such self-insurance and suspension or cancellation of such carrier's certificate of public convenience and necessity.

(3) This rule shall be supplemental to and not a revocation of any of the provisions of ARM 38.3.707.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-402, MCA
History: NEW, Eff. 11/25/74.

Mont. Admin. R. 38.3.712 Commercial Tow Truck Firms -- Proof of Required Insurance

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 61-8-905, 61-8-906, 69-12-102(2), 69-12-402, MCA
History: NEW, 1995 MAR p. 1422, Eff. 7/28/95; REP, 2011 MAR p. 2420, Eff. 1/1/12.

Subchapter 38.3.8 Fees and Reports

Mont. Admin. R. 38.3.801 Fees

(1) Fees due the commission are as contained in Title 38, chapter 3 of the Administrative Rules of Montana.

(2) All fees and compensation as provided for in the Montana Motor Carrier Act shall be made payable to the commission, by bank draft, post office money order or certified check.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-421 and 69-12-423, MCA
History: Eff. 12/31/72; AMD, 1984 MAR p. 1129, Eff. 8/17/84.

Mont. Admin. R. 38.3.805 Annual Reports

(1) As required in 69-12-407, MCA, class A and D motor carriers operating within the state of Montana are required to submit annual reports to the commission. Annual report forms are available on the commission's web site.

(2) The annual report form represents the uniform system of accounts the commission is required to prescribe by 69-12-407, MCA.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-407, MCA
History: Eff. 12/31/72; AMD, Eff. 1/3/77; AMD, 1984 MAR p. 1129, Eff. 8/17/84; AMD, 2000 MAR p. 1668, Eff. 6/30/00; AMD, 2015 MAR p. 1276, Eff. 8/28/15; AMD, 2021 MAR p. 1556, Eff. 11/6/21; AMD, 2023 MAR p. 1625, Eff. 11/18/23.

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-201, MCA
History: NEW, 1995 MAR p. 37, Eff. 1/13/95; REP, 1996 MAR p. 1568, Eff. 6/7/96.

Subchapter 38.3.10 Transportation Incidental to a Principal Business

Mont. Admin. R. 38.3.1001 Exclusion from the Definition of Motor Carrier for Transportation Incidental to Principal Business

(1) Except as may be limited by law or these rules, a person who is otherwise within the definition of "motor carrier" under section 69-12-101 , MCA, and related provisions, and not otherwise exempt from regulation under section 69-12-102 , MCA, or related or similar provisions, is not a "motor carrier" if the transportation activities of the person are incidental to a principal business of that person.

(2) Transportation is incidental to a principal business when the transportation is in furtherance of, in the scope of, and subordinate to that principal business, as provided in these rules.

(3) The evaluation used to determine whether transportation is incidental under these rules may be referred to as the "primary business test."

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-101, MCA
History: NEW, 1994 MAR p. 1711, Eff. 6/24/94.

Mont. Admin. R. 38.3.1002 Substantive Definition of Key Words and Phrases

(1) For the purposes of these rules, the following terms have the meanings assigned unless the context dictates otherwise:

(a) "Principal business" means a business which, in relation to the transportation which is purported to be incidental, is clearly the predominant undertaking or enterprise. It must have a clear economic purpose or objective, identifiable with certainty, in terms of supplying goods or services.

(b) "In the furtherance of" means directly benefiting the principal business by transporting materials, goods, or other property, personnel, customers, clients, or other passengers, when such transportation assists the principal business in achieving its economic purpose or objective. It does not include a benefit to the principal business through transportation merely generating additional profit or like thing.

(c) "In the scope of" means directly within the bounds of the economic purpose or objective of the business. It does not include a transportation activity that is merely a tangent or appendage.

(d) "Subordinate to" means lesser than, minor in comparison to, dependent on, existing because of, and controlled by. It can include transportation important to, even essential to, the principal business. It does not include transportation which is a significant enterprise itself.

(2) A determination on whether these definitions are met or not is a question of law,

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-101, MCA
History: NEW, 1994 MAR p. 1711, Eff. 6/24/94.

Mont. Admin. R. 38.3.1003 Factors

(1) When considering whether transportation is incidental to a principal business the com-mission may consider any and all factors that have a reasonable bearing on the required ultimate determination of whether a principal business actually exists and whether the transportation activities in question are actually in furtherance of, in the scope of, and subordinate to the principal business. Factors that may be considered include any that are relevant and material and not duplicative or established with more certainty by a more appropriate means.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-101, MCA
History: NEW, 1994 MAR p. 1711, Eff. 6/24/94.

Mont. Admin. R. 38.3.1004 Effect of Competition with Regulated Motor Carriers

(1) Transportation incidental to a principal business, as provided in these rules, remains not regulated even though it may compete with regulated motor carriage.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-101, MCA
History: NEW, 1994 MAR p. 1711, Eff. 6/24/94.

Mont. Admin. R. 38.3.1005 Exclusion Inapplicable in Certain Principal Businesses

(1) The exclusion for transportation incidental to a principal business, as provided in these rules, does not apply when:

(a) the principal business is waste landfilling and the transportation in question is transportation of waste; or

(b) the principal business is a transportation business (except nontransportation divisions of a principal transportation business) .

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-101, MCA
History: NEW, 1994 MAR p. 1711, Eff. 6/24/94.

Subchapter 38.3.11 Special Rules Concerning Household Goods and Buildings

Mont. Admin. R. 38.3.1101 Transportation of Household Goods

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-101, et seq. , MCA
History: Eff. 12/31/72; AMD, 1996 MAR p. 1568, Eff. 6/7/96; REP, 2021 MAR p. 1556, Eff. 11/6/21.

Mont. Admin. R. 38.3.1104 Statewide Authority for Transportation of Buildings

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-331, MCA
History: NEW, 1979 MAR p. 1390, Eff. 11/16/79; REP, 1996 MAR p. 1568, Eff. 6/7/96.

Subchapter 38.3.12 Minimum Operations Requirements for Class D Motor Carriers

Mont. Admin. R. 38.3.1201 Usual Business Operation

(1) A motor carrier who possesses a Class D motor carrier certificate conducts his Class D activities "as part of the motor carrier's usual business operation" as that requirement is set out in section 69-12-314 (2) , MCA, if the carrier actually transports Class D materials and holds itself out to the public as a common carrier willing to serve the public within the area authorized by the commission, provided the carrier offers the Class D service for the payment of charges intended to exceed the costs of providing such service and further provided that such service is not merely incidental to any other service provided to the customer by the carrier.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-314 and 69-12-407, MCA
History: NEW, 1980 MAR p. 1717, Eff. 6/27/80.

Mont. Admin. R. 38.3.1202 Regular Basis

(1) A motor carrier who possesses a Class D certificate conducts his Class D activities "on a regular basis" as that requirement is set out in Section 69-12-314 (2) , MCA, if the carrier actually transports Class D materials on a frequent or recurring basis.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-314 and 69-12-407, MCA
History: NEW, 1980 MAR p. 1717, Eff. 6/27/80.

Mont. Admin. R. 38.3.1203 Retaining Class D Certificate

(1) A motor carrier who possesses a Class D motor carrier certificate and who can show that its class D service is used by at least 20 customers per month during each month of the calendar year, or can show that its Class D service generates not less than $5,000 gross revenue per calendar year, is presumed to meet the requirements of actually engaging in the transportation of Class D materials on a regular basis as part of the motor carrier's usual business operation as those requirements are set out in Section 69-12-314 (2) , MCA, and is, therefore, further presumed to be entitled to possess a Class D motor carrier certificate. No further showing will be required from such carrier unless the Commission specifically requests additional information pursuant to ARM 38.3.1206.

(2) Failure of any Class "D" motor carrier to show either at least 20 customers per month or at least $5,000 in annual gross revenues raises no presumption either in favor of or against that carrier retaining its certificate in light of the requirements of Section 69-12-314 (2) , MCA. Rather, each such carrier will be evaluated on a case-by-case basis as set out in ARM 38.3.1204.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-314 and 69-12-407, MCA
History: NEW, 1980 MAR p. 1717, Eff. 6/27/80.

Mont. Admin. R. 38.3.1204 Other Circumstances Allowing Retention of Class D Certificate

(1) A motor carrier who possesses a Class D motor carrier certificate but who because of seasonal operations or other circumstances cannot meet either of the conditions stated in ARM 38.3.1203(1) , must submit to the Commission a signed and verified statement describing in detail those circumstances which lead the carrier to believe that it should be allowed to retain its Class D certificate consistent with the requirements of Section 69-12-314 (2) , MCA.

(2) Upon receipt of such a statement, the Commission will evaluate the circumstances described therein together with any other information it feels would be revealing and will make a determination as to whether the carrier is entitled to possess a Class D certificate pursuant to Section 69-12-314 (2) , MCA, based upon the criteria set out in ARM 38.3.1201 and 38.3.1202.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-314 and 69-12-407, MCA
History: NEW, 1980 MAR p. 1717, Eff. 6/27/80.

Mont. Admin. R. 38.3.1205 Reports

(1) In order to be entitled to retain its class D authority, on or before March 31st of each year, every class D carrier must submit with its annual report to the commission one of the following concerning its operations for the previous calendar year:

(a) A report on a form available from the commission office showing that the carrier's class D service was used by at least 20 customers per month during each month of the preceding calendar year,

(b) A report on a form available from the commission office showing that the carrier's class D service generated at least $5,000 gross revenue for the preceding calendar year, or

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-314 and 69-12-407, MCA
History: NEW, 1980 MAR p. 1717, Eff. 6/27/80.

Mont. Admin. R. 38.3.1206 Additional Information Required by the Com- Mission

(1) At any time, the commission may in its discretion require any class D carrier to submit additional supporting evidence beyond that received in accordance with ARM 38.3.1204 or ARM 38.3.1205.

(2) Upon refusal to submit additional evidence or receipt of additional evidence from the carrier or from any other source, the commission may in its discretion:

(a) Determine that the presumption in ARM 38.3.1203 has been rebutted,

(b) Reverse its earlier determination made under ARM 38.3.1204(2) ,

(d) Decide to conduct an investigation pursuant to sec- tion 69-12-206 , MCA.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): . 69-12-314 and 69-12-407, MCA
History: NEW, 1980 MAR p. 1717, Eff. 6/27/80.

Mont. Admin. R. 38.3.1207 Show Cause Order

(1) When under the provisions of this sub-chapter the commission determines that a class D carrier is not in compliance with section 69-12-314 (2) , MCA, the commission may issue an order to show cause why the certificate should not be revoked pursuant to section 69-12-327 , MCA.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-314 and 69-12-407, MCA
History: NEW, 1980 MAR p. 1718, Eff. 6/27/80.

Subchapter 38.3.13 Minimum Operations Requirements for Class C Motor Carriers

Mont. Admin. R. 38.3.1303 Class C Carrier Contracts -- Required Provisions, Summary

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-301, 69-12-302, 69-12-313, MCA
History: NEW, 1990 MAR p. 1263, Eff. 6/29/90; REP, 2023 MAR p. 1625, Eff. 11/18/23.

Mont. Admin. R. 38.3.1304 Class C Carrier -- Pickup and Delivery

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-302, MCA
History: NEW, 1990 MAR p. 1263, Eff. 6/29/90; REP, 1996 MAR p. 1568, Eff. 6/7/96.

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-315, MCA
History: NEW, 1991 MAR p. 1724, Eff. 9/13/91; REP, 1993 MAR p. 2966, Eff. 12/10/93.

Subchapter 38.3.15 Transportation of Passengers

Mont. Admin. R. 38.3.1501 "property" Certificates

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-101, et seq. , MCA
History: Eff. 12/31/72; REP, 1996 MAR p. 1568, Eff. 6/7/96.

Mont. Admin. R. 38.3.1502 Obligation to Carry

(1) No driver or operator of any class A motor vehicle used in the transportation of passengers shall refuse to carry any person offering himself or herself at any regular stopping place for carriage and who tenders the regular fare to any regular stopping place on the route of said motor vehicle, or between the terminals thereof, if allowed to carry passengers to such point under the certificate for such route, unless at the time of such offer the seats of said motor vehicle are fully occupied; provided, however, that the driver or operator of such motor vehicle may refuse transportation to any person who is in an intoxicated condition or conducting himself in a boisterous or disorderly manner.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-101, et seq. , MCA
History: Eff. 12/31/72; AMD, 2021 MAR p. 1556, Eff. 11/6/21.

Mont. Admin. R. 38.3.1503 Seating Capacity

(1) Pursuant to the terms of 69-11-203, MCA, concerning the number of vehicles to be provided and a seat to be provided every passenger, all class A common carriers authorized to transport passengers must provide a sufficient number of vehicles for that particular time schedule in order to provide every passenger tendering legal fare with a seat.

(2) Drivers and operators of any such vehicle must provide a seating accommodation to each paying passenger. No passenger may be transported by being required to stand in the aisle.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-11-203, MCA
History: Eff. 12/31/72; AMD, 2015 MAR p. 1276, Eff. 8/28/15; AMD, 2021 MAR p. 1556, Eff. 11/6/21.

Mont. Admin. R. 38.3.1504 Disabled Passenger Vehicle - Transportation of Passengers

(1) In case a motor vehicle carrying passengers pursuant to a class A certificate becomes disabled while en route and is unable to proceed, any passenger or passengers on such disabled vehicle shall have the privilege of proceeding upon any other passenger-carrying vehicle operating under a class A certificate from the commission on the same route or portion of route.

(2) It shall be the duty of the driver of any such passenger-carrying vehicle to stop on signal and receive such passengers to the extent of the unoccupied seating capacity of such vehicle and carry the same to destination or as near such destination as the route of the passing vehicle will permit.

(3) The transportation company whose passengers are thus relieved shall pay the second company a share of the transportation fee proportionate to the distance such passengers are transported by the relieving carrier.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-101, et seq., MCA, Eff. 12/31/72
History: AMD, 2015 MAR p. 1276, Eff. 8/28/15; AMD, 2021 MAR p. 1556, Eff. 11/6/21.

Mont. Admin. R. 38.3.1505 Motor Carrier Authority Recognition

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-201
History: NEW, 2010 MAR p. 2989, Eff. 12/24/10; AMD, 2015 MAR p. 1276, Eff. 8/28/15; REP, 2021 MAR p. 1556, Eff. 11/6/21.

Authorizing statute(s): Title 69, chapter 11, Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-501 et seq. , MCA
History: NEW, 1983 MAR p. 1735, Eff. 11/26/83; REP, 1996 MAR p. 1568, Eff. 6/7/96.

Subchapter 38.3.19 Safety Requirements

Mont. Admin. R. 38.3.1901 Transportation of Hazardous Materials

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-201(1) (c), MCA
History: Eff. 12/31/72; AMD, 1981 MAR p. 314, Eff. 3/27/81; ALSO TRANS, to Dept. of Justice, Ch. 686, L. 1985, Eff. 7/1/85; REP, 1996 MAR p. 1568, Eff. 6/7/96.

Subchapter 38.3.20 Leasing of Power Equipment, Interchange of Equipment and Lease of Authority

Mont. Admin. R. 38.3.2001 Leasing of Power Equipment - General

(1) The requirements for the leasing of power equipment by class A and D carriers operating within the state are as contained in 69-12-611, MCA.

(2) The purpose of these leasing regulations is to ensure that the primary responsibility for the conduct of regulated motor carrier operations remain with the certificated motor carrier, and that members of the public using motor carrier services are clearly advised of the identity of the responsible carrier, and that the leasing of equipment by an authorized motor carrier from the owner thereof, is not a subterfuge for leasing the carrier's certificate or permit to the owner-lessor.

(3) The leasing of power equipment by a certificated carrier to a noncertificated carrier is prohibited.

History

Authorizing statute(s): 69-12-201, 69-12-204, MCA
Implementing statute(s): 69-12-611, MCA
History: Eff. 12/31/72; AMD, 1983 MAR p. 1736, Eff. 11/26/83; AMD, 1991 MAR p. 1724, Eff. 9/13/91; AMD, 2015 MAR p. 1276, Eff. 8/28/15; AMD, 2021 MAR p. 1556, Eff. 11/6/21; AMD, 2023 MAR p. 1625, Eff. 11/18/23.

Mont. Admin. R. 38.3.2002 Approved Equipment Lease Agreement Form and Required Provisions

(1) Interested parties may contact the commission office for information concerning where an approved equipment lease agreement form may be obtained. In addition, any equipment lease conforming to the provisions of (2) below, may be submitted for approval in lieu of the above-mentioned approved lease agreement form.

(2) The following are required equipment lease provisions:

(a) The lease shall state the full names and addresses of the negotiating parties.

(b) The lease shall list a complete description of the equipment involved.

(c) The lease shall provide that the sole possession, responsibility, control and direction of the equipment and its driver shall reside with the lessee for the duration of the lease, and the lessee shall be considered as the owner of such equipment during the duration of the lease for all purposes, including public liability, insurance, all regulatory fees, and registration of equipment with the commission.

(d) The lease shall state the terms of the compensation to be paid for use of the vehicle while under lease and the method by which such compensation is determined. All methods for computing compensation must be realistic and cover entire compensation paid to lessor for total use of the vehicle by lessee. There may be no agreement or understanding between lessee and lessor other than that fully set forth in the lease agreement.

(e) The lease shall state the date of execution, the term length and renewal conditions, if any, of the lease.

(f) The lease may include the services of a driver, however, nothing in these regulations shall be construed to require that such driver be an employee of the motor carrier lessee.

(g) The parties to the equipment lease agreement may insert therein any other provisions not contrary to law, and not inconsistent with the rules and regulations of the commission.

History

Authorizing statute(s): Secs. 69-12-201 and 69-12-204, MCA
Implementing statute(s): Sec. 69-12-611, MCA, Eff. 12/31/72
History: AMD, 1983 MAR p. 1736, Eff. 11/26/83.

Mont. Admin. R. 38.3.2003 Duties and Obligations of Lessor and Lessee Under Equipment Lease

(1) The following are duties of the lessor and lessee:

(a) The lease shall be executed by the parties in three copies: One each for the lessor and lessee, and one copy to be carried in the leased equipment during the entire term of the lease.

(b) Power equipment so leased must display in a conspicuous place on both sides of the cab the identity and address of the lessor, and lessee, and the certificate number under which the power unit is operating.

(c) During the time the equipment under lease is operated by the lessee, there shall be carried in such vehicle, in addition to a copy of the lease; bills of lading, waybills, freight bills, manifests, or other papers identifying the lading, and which clearly indicates that the transportation of the property carried is under the responsibility of the lessee as the authorized carrier.

(d) It shall be the duty of the lessee-carrier, before taking possession of the equipment, to have the same inspected by a qualified person to insure that said equipment is in safe operating condition and in conformity with the motor carrier safety regulations of the commission. The person making the inspection shall certify the results thereof to the lessee, and a copy of such certification shall be carried in the equipment.

(e) All charges paid by a shipper or consignee for transportation services performed by use of leased equipment shall be paid to the lessee only, and the lessor shall exercise no control or dominion over such revenues. The driver of a leased vehicle may, when required, physically collect such charges from the shipper or consignee, but shall immediately deliver all said funds to the lessee.

(f) All arrangements for transportation services, solicitation therefore, claims settlement, and all other aspects of motor carrier service, shall be conducted by, and in the name of, the lessee only, and neither lessee, nor the lessor, shall by any representation or act whatsoever, represent or imply, or suggest to any shipper or consignee, that the motor carrier service being offered or rendered, is being offered or rendered by the lessor.

(g) No lease shall be assigned or re-leased by either party without the written consent of both parties signatory thereto.

(h) Nothing in these regulations shall be construed to relieve the lessee, the lessor or the driver of any leased equipment from compliance with the laws, rules and regulations pertaining to the operation of motor vehicles on Montana highways.

History

Authorizing statute(s): Secs. 69-12-201 and 69-12-204, MCA
Implementing statute(s): Sec. 69-12-611, MCA
History: Eff. 12/31/72; AMD, 1983 MAR p. 1736, Eff. 11/26/83.

Mont. Admin. R. 38.3.2004 Exemptions

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-611, MCA
History: Eff. 12/31/72; REP, 1983 MAR p. 1735, Eff. 11/26/83.

Mont. Admin. R. 38.3.2005 Status of Carrier -- Effect of Lease of Power Equipment

(1) Nothing in this rule shall permit the lease of power equipment from an authorized carrier to a noncertified carrier as the same is prohibited by section 69-12-611, MCA.

(2) In this rule, the term "lease" shall mean the lease of power equipment, whether or not including or accompanied by a provision for the services of an operator, and shall include sub-lease, rental agreement, and similar arrangements.

(3) In all cases, a lease shall be considered transportation "for hire" and thereby constitute the lessor a "motor carrier," except as may be otherwise permitted by law or provided herein.

(4) A lease permitted by law not to be transportation "for hire" and thereby constituting any party a "private carrier" shall be bona fide and in good faith, without guise, subterfuge, or have as its sole purpose to avoid or evade regulation.

(5) Unless otherwise required by law in any specific instance, any statute or rule providing that transportation "for hire" or "motor carrier" may arise from a lease shall not be construed to apply to any lease in which the following are observed, exist and are actually exercised:

(a) the lease shall be in writing, signed by the parties and it, or a true copy, shall be carried in the power equipment at all times during the period of the lease;

(b) there shall be no agreements or understandings between the parties pertaining to the lease of power equipment, operator or complete services, except as contained in the lease;

(c) the power equipment leased shall display, in a conspicuous place on both sides of the cab, the identity and adress of the lessee and may also display the same for the lessor;

(d) at all times there shall be carried in the power equipment, bills of lading, waybills, freight bills, manifests, and other papers identifying the lading, all of which shall clearly indicate that the transportation is under the responsibility of the lessee;

(e) the lessor shall relinquish and the lessee shall have and actually exercise the exclusive right and privilege of possession, directing and controlling the equipment and the transportation and all incidents of transportation;

(f) the lessee shall use the equipment in transportation of freight or passengers within the scope of furtherance of the lessee's primary nontransportation business enterprise, or other nonregulated transportation, and for no other purpose;

(g) the lessee shall substantially assume, carry, and bear the characteristic burdens of the transportation business such as expenses for fuel, maintenance, repairs, delays, breakdowns, detours, idle time for the power equipment and operator, and like matters;

(h) the lessee shall obtain and carry personal injury and property damage liability insurance in amounts no less than that required by law for motor carriers;

(i) the lease shall state the terms of compensation, the method by which it is calculated and determined, and must be realistic in covering the true and total lease of power equipment and complete services; and

(j) if the lease includes or is otherwise accompanied by the lessor's providing the services of an operator, the lease shall be for a duration no less than 30 days, during which time the power equipment and driver shall be used for no purpose independent of the lessee's exclusive rights identified in (e) above.

(6) Nothing in this rule shall be construed as limiting a lessor from actually directing, conducting, or performing maintenance or repair of power equipment or obtaining insurance of any type.

(7) Nothing in this rule shall be construed as limiting the terms of a lease, so long as no provision is inconsistent with this rule.

(8) Nothing in this rule shall be construed as relieving the lessor, lessee, or operator of any power equipment from compliance with the statutes and rules pertaining to the operation of motor vehicles.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-101, 69-12-106, 69-12-107 and 69-12-201, MCA
History: NEW, 1990 MAR p. 1263, Eff. 6/29/90.

Mont. Admin. R. 38.3.2011 Interchange of Power Equipment

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-12-201, 69-12-204, MCA
Implementing statute(s): 69-12-612, MCA
History: Eff. 12/31/72; AMD, 1983 MAR p. 1736, Eff. 11/26/83; REP, 2021 MAR p. 1556, Eff. 11/6/21.

Mont. Admin. R. 38.3.2014 Lease of Certificates of Operating Authority- General

(1) Leasing of Montana Public Service Commission operating certificates of public convenience and necessity or certificates of compliance may be authorized as required by 69-12-326, MCA.

(2) All leases of certificates shall be in writing. The leases shall be submitted to the commission for approval and shall not have any force or effect until approved by the commission.

(3) In the event a certificate lease is cancelled for any cause whatever or is terminated by expiration in accordance with the terms of the certificate lease, notice of such cancellation or expiration shall be given immediately to the commission in writing.

History

Authorizing statute(s): 69-12-201, 69-12-204, MCA
Implementing statute(s): 69-12-326, MCA
History: Eff. 12/31/72; AMD, 1983 MAR p. 1736, Eff. 11/26/83; AMD, 1984 MAR p. 1129, Eff. 8/17/84; AMD, 2000 MAR p. 1668, Eff. 6/30/00; AMD, 2015 MAR p. 1276, Eff. 8/28/15.

Mont. Admin. R. 38.3.2015 Compensation and Fees

(1) All leases approved by the commission in accordance with 69-12-326, MCA, must provide that payment of all compensation and fees as provided by 69-12-421 and 69-12-423, MCA, shall be made to the commission by the lessee in his own name as lessee and notwithstanding the failure of any such lease or agreement to so provide in express terms, this rule shall by reference be made a part thereof and read into said lease or agreement with the same force and effect as though expressly incorporated therein.

(2) The provisions of this rule shall not be construed and are not intended to any way relieve the owner of the certificate from the payment of any compensation and fees due the commission. Upon the failure of a lessee to pay any compensation and fees, the owner and holder of the certificate shall be responsible.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-323, 69-12-326, 69-12-421, 69-12-423, MCA
History: Eff. 12/31/72; AMD, 2015 MAR p. 1276, Eff. 8/28/15.

Mont. Admin. R. 38.3.2016 Continued Obligation of Owner

(1) A lease in no way relieves the owner or holder of the leased certificate from the laws of the state of Montana and the rules and regulations of the commission governing motor vehicle carriers. The owner shall be held responsible for all acts of the lessee with the same force and effect as though the operations were being carried on by the owner or holder of the certificate.

(2) Such certificate may be cancelled upon the failure of any lessee to abide by the laws of the state of Montana and rules and regulations of the commission governing motor carriers.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-326, MCA
History: Eff. 12/31/72; AMD, 2015 MAR p. 1276, Eff. 8/28/15.

Subchapter 38.3.21 Sale, Transfer or Encumbering of Certificate of Authority

Mont. Admin. R. 38.3.2101 Sale or Transfer of Certificate of Authority

(1) As authorized by 69-12-325, MCA, public service commission certificates may be sold or transferred. The application for sale or transfer shall be addressed to the commission, be sworn to, and contain the following information:

(a) the name and address of the owner and the number of the certificate, together with request that authority be granted such owner to sell or transfer all rights, title and interest under such certificate to the named vendee or purchaser.

(b) the name and main office address of the vendee or purchaser, that such vendee or purchaser is desirous of acquiring Certificate No. _____, that the operations to be conducted thereunder will be in accordance with the rules and regulations of the commission, and should the vendee or purchaser be a legal corporation, the officers of such corporation and their addresses.

(c) a list of equipment the vendee or purchaser intends to operate under such certificate, giving the state license number, year and name of the vehicle, the serial number, and seating capacity thereof; (In case the vehicles are to be used in transporting property, the maximum load to be carried must also be shown.)

(d) state that the vendee or purchaser will furnish before beginning operation, insurance, surety bond, or other approved security, covering all vehicles to be operated;

(e) if the vendee or purchaser desires to adopt the tariffs and time schedules, etc., of the vendor on file with the commission, it shall here so be stated and reference to each of such publications by number and effective date must be made;

(f) in case the vendee or purchaser does not desire to adopt the tariffs, time schedules, etc., of the vendor, it shall be so stated;

(g) in case the vendee or purchaser consists of more than one person (not incorporated) operating as a co-partnership under a trade name, then this item shall state that a certified copy of such partnership agreement is attached;

(h) shall set out the date on which it is desired that such sale or transfer shall become effective; no sale or transfer being retroactive, or effective until approved by the commission;

(i) shall state that the original certificate is attached, but if the original certificate issued by this commission has been lost, a statement showing the facts shall be inserted under this item or a separate affidavit reciting the loss of the certificate and accompanying the application;

(j) shall set forth that the sale or transfer is not for purpose of hindering, delaying or defrauding creditors;

(k) shall be accompanied by the vendee or purchaser's current financial balance sheet setting forth the assets, liabilities and equity of the transferee, if the purchaser is in motor carrier transportation business, then the vendee's or purchaser's current financial income statement setting forth operating revenues, operating expenses, and net operating income of the transferee if said transferee is presently in the motor carrier transportation business; and

(l) shall be signed by the owner and the purchaser and notarized.

(m) Forms for applications for sale or transfer are available on the commission's web site or upon request.

(2) It is required that full compliance and completion of sales and transfers be consummated within 30 days after the mailing of the notice of the commission's approval or suffer the revocation of such right to the certificate by the commission.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-325, MCA
History: Eff. 12/31/72; AMD, 1984 MAR p. 1129, Eff. 8/17/84; AMD, 1990 MAR p. 1263, Eff. 6/29/90; AMD, 2000 MAR p. 1668, Eff. 6/30/00; AMD, 2015 MAR p. 1276, Eff. 8/28/15; AMD, 2023 MAR p. 1625, Eff. 11/18/23.

Mont. Admin. R. 38.3.2102 Notice of Public Hearing on Application for Sale or Transfer of Certificate of Authority

(1) If it is necessary to conduct a public hearing on an application for the sale or transfer of a motor carrier operating authority, individual notice of the public hearing will be provided to only the seller, the purchaser and the protestants to the application, except as otherwise required by law.

History

Authorizing statute(s): Secs. 69-12-201 and 69-12-204, MCA
Implementing statute(s): Secs. 69-12-322 and 69-12-325, MCA
History: NEW, 1983 MAR p. 1735, Eff. 11/26/83.

Mont. Admin. R. 38.3.2106 Security Interest or Other Encumbrance

(1) Any Montana public service commission operating certificate or permit can be a subject of a security interest or other encumbrance by another party with commission approval. Such security interest or encumbrance must be imposed as provided for under the Uniform Commercial Code, Title 30, MCA, as amended.

(2) The filing of Form UCC-1 or 2 with the commission for filing in the carrier's public record will constitute notice of a preexisting security interest or encumbrance.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-325, MCA
History: Eff. 12/31/72.

Subchapter 38.3.24 Tariffs - Generally

Mont. Admin. R. 38.3.2401 Tariffs Generally

(1) Pursuant to 69-12-501 , MCA, the following rules shall govern the construction and filing of freight-rate publications and classifications with the public service commission of the state of Montana.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-501, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2402 Who Must File, Intrastate and Interstate

(1) Pursuant to the provisions of 69-12-501, MCA, all class A carriers must file tariffs of freight rates and charges with this commission.

(2) Carriers authorized to conduct interstate services in Montana are required to file with the commission one copy each of all tariffs applicable to such transportation for the information of the commission and general public.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-501, MCA
History: Eff. 12/31/72; AMD, 2021 MAR p. 1556, Eff. 11/6/21.

Mont. Admin. R. 38.3.2403 Public Inspection

(1) Copy of tariffs naming rates and fares to be charged, together with rules and regulations and time schedules shall be kept open for public inspection by every class A motor carrier at its principal office, and at the terminus of each route, and at the principal station thereon.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-501, 69-12-502, 69-12-503, 69-12-504, 69-12-505, 69-12-511, MCA
History: Eff. 12/31/72; AMD, 2021 MAR p. 1556, Eff. 11/6/21.

Mont. Admin. R. 38.3.2404 Assistance in Preparing Tariffs and Time Schedules

(1) Information regarding construction of freight, express, and passenger tariffs, including classifications required of class A carriers, will be furnished by the commission on application.

(2) Changes in such publications, or in any rule or regulation governing the same, must be made in accordance with the commission's "rules of practice."

(3) Samples of tariffs and time schedules, for use as guidelines in accomplishing tariffs, time schedules and revisions thereof, may be obtained, upon request from this commission. Assistance in preparing tariffs, time schedules, and revisions thereof shall be available.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-501, 69-12-502, 69-12-503, 69-12-504, 69-12-505, 69-12-511, MCA
History: Eff. 12/31/72; AMD, 2000 MAR p. 1668, Eff. 6/30/00; AMD, 2015 MAR p. 1276, Eff. 8/28/15; AMD, 2021 MAR p. 1556, Eff. 11/6/21.

Mont. Admin. R. 38.3.2405 Transmittal Form Letter - Sample

(1) Tariffs, time schedules and revisions or reissues thereof, may be filed accompanied by a letter or form of transmission. All transmittals shall be on 8 x 11 bond paper.

(2) The format of transmittal letter or form shall be as follows:

Corporate name of carrier in full.

, 19

Transmittal No.

PUBLIC SERVICE COMMISSION

HELENA, MONTANA 59620

There are enclosed for your approval copies of the following schedules,

in compliance with the requirements of the act:

Supplement No. to Mont. PSC No.

Tariff No. Effective 19 .

These schedules are issued in accordance with your Authorization No. MC-

of , 19 .

(signed)

(title)

NOTE: If receipt for accompanying schedule is desired the letter of transmittal must be sent in duplicate, and one copy showing the date of receipt by the Commission will be returned to the sender.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2406 Application of I.c.c. Tariff Rules

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72; REP, 2015 MAR p. 1276, Eff. 8/28/15.

Subchapter 38.3.25 Tariffs - Filing

Mont. Admin. R. 38.3.2501 Individual or Bureau Filing

(1) Carriers may elect either to file their own tariff or become a participating carrier in an authorized section 5(b) bureau.

(2) Tariffs may be filed with the commission by groups or bureaus.

(3) To obtain authorization to operate in intrastate commerce as a rate bureau, an application, which contains the items in 69-12-601 through 69-12-605, MCA, shall be made to the commission.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): Title 69, chapter 12, part 5, 69-12-601, 69-12-602, 69-12-603, 69-12-604, 69-12-605, MCA
History: Eff. 12/31/72; AMD, Eff. 12/6/76; AMD, 2015 MAR p. 1276, Eff. 8/28/15.

Mont. Admin. R. 38.3.2502 Number of Tariff Copies to Be Filed

(1) Carriers filing tariffs on their own behalf shall transmit to the commission the original and two copies of each tariff, supplement, revised page, classification, or other schedule of rates or regulations, original and both copies to be included in one package and under one letter of transmission.

(2) Bureaus, designated as carrier's agent, shall transmit to the commission two copies of each tariff, supplement, revised page, classification, or other schedule of rates or regulations, both copies to be included in one package and under one letter of transmission.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, chapter 12, part 5, MCA, Eff. 12/31/72.

Mont. Admin. R. 38.3.2503 Address for Tariffs

(1) Tariffs sent for filing must be addressed "Montana Public Service Commission, Transportation Division, 1701 Prospect Avenue, P.O. Box 202601, Helena, Montana 59620-2601."

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, chapter 12, part 5, MCA, Eff. 12/31/72.

Mont. Admin. R. 38.3.2504 Filing Fee Due

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, chapter 12, part 5 and Sec. 69-12-423, MCA, Eff. 12/31/72
History: REP, 1994 MAR p. 965, Eff. 4/15/94.

Mont. Admin. R. 38.3.2505 Who May File Tariffs

(1) Tariffs and supplements and revisions thereto shall be filed by proper officer or duly authorized agent of the carrier.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, chapter 12, part 5, MCA, Eff. 12/31/72.

Mont. Admin. R. 38.3.2506 Notice of Change

(1) Section 69-12-504 , MCA, requires that all changes in rates, or in rules that affect rates, shall be filed with the commission at least 45 days before the date upon which they are to become effective unless otherwise authorized by the commission.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Sec. 69-12-504, MCA, Eff. 12/31/72.

Mont. Admin. R. 38.3.2507 Notice Required and Notation on Tariff

(1) Unless otherwise specified in the decision or order in the case, such tariff or supplement must be made effective upon statutory notice to the commission and to the public.

(2) Whether made effective on less than statutory notice under special authority granted in the decision or order in the case, or upon statutory notice, when an entire tariff or supplement is issued in compliance with a decision or order, such tariff or supplement shall bear on its title page the notation: "In compliance with Authorization No. of the Montana Public Service Commission, date."

History

Authorizing statute(s): Sec. 69-12-201 MCA
Implementing statute(s): Sec. 69-12-504, MCA, Eff. 12/31/72.

Mont. Admin. R. 38.3.2508 Form Required for Modification of Tariffs, Time Schedules - Sample

(1) All revisions of tariffs and time schedules, including reissues thereof, shall be filed with this commission, as provided in ARM 38.3.2501 through 38.3.2507, provided however, that such revisions and reissues shall be accompanied by a letter or form of application describing the modifications sought and justification thereof.

(2) Application for modification of tariff, or time schedule, may be made in the following form:

______________________________________________________________

(Name of Carrier)

by ___________________________________________________________

(Name and Title of Traffic Officer)

does hereby petition the Public Service Commission of the State of Montana, for authority to file on

____________________________________________________________________________

___________________________________________________________________________

(Statutory or short notice publication)

the ________________________________________________________________ hereinafter

(Nature of Modification)

set forth.

(Commodity)
(Proposed rate and minimum weight, charge, rule or regulation.)
(Station from or to, or between. If joint application names of carriers interested and junction points.)
(Tariff reference in which proposed change will be published.)
(Present rate and minimum weight, charge, rule or regulation.)
(Tariff authority for present rate and minimum weight, charge, rule or regulation.)
(Reason for proposed change and name of shipper interested.)
(Basis for proposed change.)
(If short-notice publication, reason therefor.)
(State whether or not a proceeding is pending before Commission or if one has been adjudicated by it in which the matter involved in the application is or would be in any manner affected.)

Dated this _____ day of ________________________, 19 ___.

_________________________________

(Name of Carrier)

By ________________________________

(Name of Officer)

(Title)

(3) Copies, for use as samples, of the form described in this rule shall be available from the commission.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA, Eff. 12/31/72.

Mont. Admin. R. 38.3.2509 Commission May Reject Tariff Publications

(1) Tariffs, revised pages, or supplements which are in any way determined to be in improper form, not in accordance with provisions of the Montana Motor Carrier Act, or received for filing too late to give the commission the notice required by law are subject to rejection and return.

(2) No consideration will be given to telegraphic notices in computing the notice required, or to the time during which a tariff publication may be held by an express company or by the post office department.

(3) No tariff, revised page, or supplement will be received by the commission unless it is delivered to it free from all charges, including claims for postage.

(4) As to tariffs, revised pages, and supplements issued on less than statutory notice under permission, order or authorization of the commission, literal compliance with all of the requirements named in any such permission, decision, or order of the commission will be exacted.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA, Eff. 12/31/72.

Mont. Admin. R. 38.3.2510 Rejected Schedules

(1) When a schedule is rejected by the commission as unlawful, the number which it bears must not be again used. Such schedules must not thereafter be referred to as cancelled, amended, or otherwise, but publication that is issued in lieu of such rejected schedules must bear notation "In lieu of , rejected by Commission."

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA, Eff. 12/31/72.

Subchapter 38.3.26 Tariffs - Format

Mont. Admin. R. 38.3.2601 Form and Size

(1) All tariffs, time schedules and supplements thereto must be in book, pamphlet, or loose-leaf form of size 8 by 11 inches and must be plainly printed or typed on bond paper or other plain paper of durable quality. Xerox, mimiograph or other similar durable process may be used, provided copies posted and filed are clear and legible in all respects.

(2) Alterations in writing or erasures must not be made in tariffs filed with the commission.

(3) A margin of not less than five-eights of an inch without any printing thereon must be allowed at the binding edge of each tariff.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA, Eff. 12/31/72.

Mont. Admin. R. 38.3.2602 Tables of Rates to Be Ruled and Spaced

(1) When rates, rate basis numbers or numerals used for other purposes are shown in tables, the page shall be ruled from top to bottom.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA, Eff. 12/31/72.

Mont. Admin. R. 38.3.2603 Changes to Be Indicated in Tariff or Supplements

(1) All tariff publications and supplements thereto must indicate changes to existing rates or charges, rules, regulations or practices, or classifications by use of the appropriate symbols provided in the tariff's approved symbols page pursuant to ARM 38.3.2607(1) (g) .

(2) Explanation of such symbols must be provided in the approved symbols page and in the tariff or supplement in which used, and these symbols shall not be used for any other purpose.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA, Eff. 12/31/72
History: AMD, 1994 MAR p. 965, Eff. 4/15/94.

Mont. Admin. R. 38.3.2604 Alternate Form for Delineating General Changes

(1) When a change of the same character is made in all or in substantially all rates in a tariff or supplement or a page thereof, that fact and the nature of such change may be indicated in distinctive type at the top of the title page of such issue, or at the top of each page, respectively, in the following manner: "All rates in this issue are increases," or "All rates on this page are reductions except as otherwise provided in connection with the rates."

(2) Under this rule the appropriate symbol from the tariff's approved symbols page must be used to symbolize a rate in which no change has been made. This symbol must not be used for any other purpose.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA, Eff. 12/31/72
History: AMD, 1994 MAR p. 965, Eff. 4/15/94.

Mont. Admin. R. 38.3.2605 Omissions from Previous Tariffs

(1) When a tariff or supplement cancelling a previous issue omits points of origin or destination, or rates, ratings, rules or regulations, or routes which were contained in such previous issue, the new tariff or supplement shall indicate the cancellation, and if such omissions effect changes in charges or service that fact shall be indicated by the use of the appropriate symbol provided in the tariff's approved symbols page.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA, Eff. 12/31/72
History: AMD, 1994 MAR p. 965, Eff. 4/15/94.

Mont. Admin. R. 38.3.2606 Title Page

(1) The title page of every tariff and supplement shall show in the order named:

(a) On the upper left-hand corner of tariffs of less than five pages and on tariffs issued in loose-leaf form the words "No supplement to this tariff will be issued except for the purpose of cancelling tariff unless otherwise specifically authorized by the Commission."

(b) PSC number of tariff or supplement on upper right-hand corner and immediately thereunder the PSC number or numbers of tariffs or supplements cancelled thereby. If the number of cancelled publications is so large as to render it impracticable to thus enter them on the title page, they must be shown immediately following the table of contents, provided specific reference thereto is entered on the title page directly under the PSC number. Carriers' serial numbers, if desired, may be entered below the upper marginal line of title page. Separate series of PSC numbers must be used for freight and passenger tariffs.

(d) Whether tariff or supplement is local, joint, proportional, or a combination of same and whether class, commodity, or a combination of both.

(e) The territory or points from and to which the tariff or supplement applies, briefly stated by territories, counties, points, or carriers. Where the publication contains both specific and distance or mileage rates, the title page description must include the application of the distance or mileage rates as well as that of the specific rates.

(f) Reference by name and PSC and/or ICC number to the classification, exceptions thereto and/or rules circular, if any, governing the tariff or supplement. The following form shall be used:

Governed, except as otherwise provided herein, by the __________ classification ________ PSC (and ICC) No. ______ by exceptions thereto, __________ PSC (and ICC No. _____, and by rules circular ___________, PSC (and ICC) No. _________ and by supplements to or successive issues of said publications. A tariff is not governed by a classification, classification exceptions, or rules circular, except when and to the extent stated on or in the tariff.

(g) Date of issue and date effective. (For exceptions to general effective date see ARM 38.3.2507) . A provision in a tariff or supplement that the same or any part thereof, will expire on a given date, is not a guarantee that the tariff, or supplement, or such part of it, will remain effective until and including that date. Such provision, if used, will be held to mean that the tariff or supplement, or specified part of it, will expire with the date named, unless the date is changed on statutory notice, or under authority of special permission of the commission. In such tariffs or supplements the term, "Expires with (date) __________, unless sooner cancelled, changed or extended" must be used. The term "Expires with close of business" on a named date must not be used.

(h) On every tariff or supplement in which all the rates, rules, or regulations are made effective on less than 30 days' notice under authority of the commission, notation that it is issued on ______ days' notice under authority of _____________ (here show authority) . (See ARM 38.3.2506 and 38.3.2507) .

(i) Name, title and street address of officer or agent by whom tariff or supplement is issued.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA, Eff. 12/31/72.

Mont. Admin. R. 38.3.2607 Contents of Tariff

(1) Tariff shall contain in the order named:

(a) Table of contents: A full and complete statement, in alphabetical order, of the exact location where information under general headings, by subjects, will be found, specifying page or item numbers. If a tariff contains so small a volume of matter that its title page or its interior arrangements plainly discloses its contents, the table of contents may be omitted.

(b) Corporate name or names of issuing carriers, including carriers for which joint agent issues under power of attorney, when not shown on title page, and corporate names of carriers participating under concurrence, each alphabetically arranged, together with the form and number of power of attorney or certificate of concurrence.

(c) A complete index, alphabetically arranged, of all articles upon which commodity rates are named therein, together with reference to each item (or page) where such article is shown. When nouns are not sufficiently distinctive, articles shall also be indexed under their adjectives. All of the entries relating to different kinds or species of the same commodity shall be grouped together. For example, all items of coal "Coal," and descriptive word or words following, as "Coal, anthracite," "Coal, bituminous," etc.

(d) When articles are grouped together in one list under a generic heading, such generic heading shall be shown in the index and opposite thereto shall be shown reference to each item (or page) where the generic term is used. Each article in the list must be shown separately in its proper alphabetical order in the index, together with reference to each item (or page) where such article is shown by name, but reference to the items (or pages) containing rates applying on the complete list may be omitted provided reference is given to the generic heading as it appears in the index or to an item in that tariff which contains a complete list of the articles covered by the generic term or to the PSC (or ICC) number of a tariff which contains such list. If all of the commodity rates to each destination in a general commodity tariff or a combined class and commodity tariff are arranged in alphabetical order by commodities, the index of commodities may be omitted from that tariff.

(e) An alphabetical index of all points from which rates apply, and a separate alphabetical index of all points to which rates apply, together with the names of counties in which located, except that when the rates apply in both directions between all or substantially all of the stations, the points of origin and destination may be shown in one index. If there are not more than 12 points of origin or 12 points of destination, the name of each, if practicable, may be shown in alphabetical order on the title page of the tariff, and the index of such points of origin or destination, as the case may be, may be omitted.

(f) If points of origin or of destination are shown throughout the tariff of rates, or throughout one or more sections of such tariff, alphabetically, or if points of origin or of destination are shown throughout the tariff of rates in continuous alphabetical order no index of such points of origin or of destination will be required. But when such alphabetical arrangement in the tariff is used, the table of contents must refer to the pages on which points are shown.

(g) Explanation of symbols, reference marks, and abbreviations of technical terms used in the tariff or supplement, except that the explanation of a reference mark or symbol used only in connection with particular items or rates shall also be shown on the page on which used. The symbols shall be used for the purposes indicated and shall not be used for any other purpose in any tariff. Symbols will be a distinct single character, readily identifiable, and not unduly duplicative of common letters or numerals used to designate items or lines in the tariff. Industry standard symbols may be used. At the minimum, symbols will be developed for each of the following purposes:

(i) to denote reductions;

(ii) to denote increases;

(iii) to denote changes in wording which result in neither increases nor reductions in charges;

(iv) to denote no change in rate;

(v) to denote prepay stations or points;

(vi) to denote intrastate application only;

(vii) to denote reissued matter.

(h) Each tariff and subsequent reissue thereof, shall contain a listing of the scope of authority of each carrier's operations, as contained on the carrier's Montana intrastate certificate of public convenience and necessity. Where the tariff has both interstate and intrastate application, both authorities shall be shown. Except when changes have been authorized, the scope of authority need not be brought forward in supplements.

(i) List of exceptions, if any, to the classification or classification exception tariff or tariffs governing the tariff. Such explanatory statements are to be in clear and explicit terms regarding the rates and rules contained in the tariff as may be necessary to remove all doubt as to their proper application.

(j) Rules and regulations which govern the tariff, the title or subject of each rule or regulation to be shown in distinctive type. Under this head all of the rules, regulations, or conditions which in any way affect the rates named in the tariff shall be entered, except as otherwise provided in this section. A special rule affecting a particular item or rate must be specifically referred to in such item or in connection with such rate.

(i) Each rule or regulation should be given a separate number; portions which can be understandingly read without recourse to the whole may be published in separate paragraphs and such paragraphs be given sub-numbers or letters.

(ii) No rule or regulation shall be included which in any way or in any terms authorizes substituting for any rate named in the tariff a rate found in any other tariff, nor shall any rule be provided to the effect that traffic of any nature will be "taken only by special agreement" or other provision of like import.

(iii) Where it is not desirable or practicable to include the governing rules and regulations in the rate tariff, such rules and regulations may be separately published in tariffs filed by an individual carrier or by an agent.

(k) Tariffs which contain rates for the transportation of explosives and other dangerous articles must also contain the rules and regulations promulgated by the commission governing the transportation thereof, or must bear specific reference to the PSC (and/or ICC) number of the publication which contains such rules and regulations. When the latter plan is adopted the tariff referred to shall contain no matter other than the regulations promulgated by the commission or the interstate commerce commission.

(l) Rates and charges shall be published in the format provided in sub-chapter 27.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA, Eff. 12/31/72
History: AMD, 1994 MAR p. 965, Eff. 4/15/94.

Subchapter 38.3.27 Tariffs - Rate Provisions

Mont. Admin. R. 38.3.2701 Publication of Rates - Format

(1) An explicit statement of the rates, in cents or in dollars and cents, per 100 pounds, per ton, or other unit, together with the names or designation of the places from and to which they apply, are to be included, all arranged in a simple and systematic manner. Complicated plans or ambiguous terms must not be used.

(2) Insofar as possible such rates should be subdivided into small sections (by items, index numbers, or similar method) to each of which should be assigned an identifying number to facilitate reference thereto.

(3) If all rates in a tariff are stated in the same unit, that fact may be indicated on the title page immediately in connection with the application of the tariff. Tariffs containing rates per ton must state that rates apply per ton of 2,000 pounds or per ton of 2,240 pounds as the case may be. Where rates are stated in amounts per package definite specifications of the packages on which such rates apply must be shown or reference must be made to the PSC number of a publication containing such specifications.

(4) A tariff may provide rates from or to designated points by the addition or deduction of arbitraries or differentials from or to rates shown therein from or to base points, but provision for the addition or deduction of arbitraries or differentials must be shown either in connection with the base rate or in a separate item which must specifically name the base point.

(5) A tariff also may contain through rates made by combination on a base point when the factors are subject to different minimum weights or other conditions which affect the measure of the charge, provided the base point is named, the factors are shown immediately in connection with each other, and the conditions to which each factor is subject are shown in connection with each factor, except that each factor may refer to the governing classification or exceptions for such conditions. When all the conditions governing the separate factors are the same, this method of publication must not be used.

(6) When articles are made subject to percentages of class rates (for example, 110 percent of first class, 83 1/3 percent of fifth class, etc.) , whether in a tariff of rates, a classification or exceptions thereto, the rates applicable under such provisions must be shown in the class tariffs just as if those percentages were additional numbered or lettered classes, or reference may be made to an appropriate table, published in the tariff containing the class rates, or in the exceptions to the classification, which will show in one column the class rate and in succeeding columns the figures representing the various percentages of class rates. Unless this is done, specific commodity rates must be published.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2702 Provisions for Intermediate Points

(1) Rates to (or from) intermediate points not named will be the rate to (or from) the next more distant point to (or from) which rates are named in tariffs or revisions thereof.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2703 Provisions for Minimum Weights

(1) Minimum truckload weights must be specifically stated in commodity tariffs. When mixed truckload shipments of two or more articles in the same truck are authorized, the tariff must show the minimum weight to be applied and if the articles are not subject to the same rate the tariff must show how the minimum truckload charge will be determined.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2704 Grouping of Articles Under Generic Head - Rates Limited to Articles Taking Specific Rating Not Permitted

(1) A commodity item may provide rates on a number of articles by use of a generic heading without naming such articles, provided such commodity item contains reference to an item in the tariff which contains a complete list of such articles, or contains reference to the PSC (and/or ICC) number of a separate tariff (not a rate tariff) as authorized in ARM 38.3.2606(f) , containing such a list of articles. For example:

"Agricultural implements, as described in item ___________, or successive issues thereof," or "Packing house products, as described under heading 'Packing house products' in PSC (and/or ICC) No. ___, supplements thereto or successive issues thereof." Such reference to a separate item or tariff may not be made unless a definite and complete list of the articles under the same generic heading is shown in the item, tariff or classification so referred to; therefore it is not permissible for a commodity tariff to contain an item such as "Cotton Piece goods, N.O.I. in National Classification," or to contain reference to classification or classification exceptions for a list of articles upon which commodity rates apply when such reference is limited to articles taking a specified rating, such as "Agricultural implements, taking Class 100 rating in National Classification under the heading 'Agricultural implements'."

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2705 Local Tariff Must Contain All Local Rates on Same Commodities from Same Points of Origin

(1) A local tariff on a single commodity, or a few commodities, shall contain all of that carrier's local commodity rates, other than distance or mileage rates, on such commodity or commodities applying from the points of origin named in the tariff, except that when a joint agent also published local rates on the same commodity from the same points of origin reference by PSC number shall be made in the individual lines tariff to the agency publication.

(2) A joint commodity tariff on a single commodity, or a few commodities, shall contain all the commodity rates of the initial carrier or carriers, other than distance or mileage rates, on such commodity or commodities, applying from the named points of origin to any point in the same rate territory on the destination line named in the tariff via the route or routes authorized by the tariff.

(3) Such local or joint tariffs may contain distance or mileage commodity rates.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2706 Statement That Rates in One Tariff Take Precedence Over Rates in Another Tariff Not Permitted

(1) The publication of class or commodity rates which duplicate or conflict with the rates published in some other tariff via the same route is not permissible, and except as otherwise authorized, the publication of a statement in a tariff to the effect that the rates published therein take precedence over the rates published in some other tariff, or that the rates published in some other tariff take precedence over the rates published therein, is hereby prohibited.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2707 Commodity Rates Must Be Specific

(1) When commodity rates are established the description of the commodity must be specific and the rates thereon must not be applied to analogous articles. As far as possible uniform commodity descriptions should be used in all tariffs.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2708 Commodity Rate Displaces Class Rate

(1) Where a commodity rate, either distance or mileage, or specific, is named in a tariff from origin to destination such commodity rate, except. as otherwise provided, is the applicable rate and the only rate that may be used via the route or routes over which the commodity rate applies, even though a class rate, or some combination of rates may make a lower rate.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2709 Alternative Truckload Rates

(1) Different truckload commodity rates based on different minimum weights may be published on a given commodity between specific points, provided a lower rate is made applicable in connection with the higher minimum weight, by publishing such commodity rates in one and the same item or in different columns on the same page and by showing in connection with such item or columns a rule to the effect that the lower truckload charge obtainable under the different truckload rates and minimum weights must be applied. (See also ARM 38.3.2710.)

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2710 Mixed Truckloads

(1) Commodity rates may be established on different articles for shipment in mixed truckloads and will be the applicable rate for such mixtures.

(2) Minimum truckload weights should be specified together with a statement in connection with the commodity description that the rates apply when shipped in mixed truckloads.

(3) Such rates may also be made applicable upon straight truckloads of one or more or all of the articles by provision to that effect in connection with the commodity description.

(4) When more than one article is included in an item or commodity description, the tariff must specifically state whether or not the rates apply on straight or mixed truckloads or both.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2711 Alternative Use of Rates in Sectional Tariffs

(1) The alternative use of rates may be provided by publishing such rates in different sections of one and the same tariff. The first page of each section which shall be known as the title page of the section, shall contain the number of the section and, if desired, the application of the rates published in that section. The title page of each section containing alternating rates shall also contain the following rule:

(a) If the charge accruing under section _____ or ____ of this tariff is lower than the charge accruing under this section orgy the same shipment via the same route the charge accruing under section ______ or ______, whichever is lower, will apply.

(b) Each succeeding page of the section shall also bear the section number. As far as possible the rates in one section should be checked against those in other sections and proper cancellations made, thereby avoiding unnecessary alternation of rates. Alternating reference should not be given to another section unless that section in fact contains rates which do alternate.

(c) Each commodity tariff arranged in section for alternative use hereafter issued shall contain a nonalternating section, and each class and commodity tariff similarly arranged for alternative use shall contain a commodity section which alternates only with class rates in the manner prescribed below.

(d) When a strictly commodity tariff is issued under authority of this rule, section 1 of the tariff shall not have alternative application with other sections, but there shall be published in said section commodity rates which in all instances result in charges lower than would result from the commodity rates published in other sections of the tariff. Under the heading "Application of rates," the following shall appear:

(i) The rates in section 1 are specific commodity rates and do not alternate with rates in other sections of the tariff. See application of that section.

(e) The title page of section 1 shall contain the following notation:

(i) When rates are published in this section on the commodity transported from point of origin to destination, rates named in this section will apply regardless of rates between the same points published in other sections.

(f) The title page of each other section containing commodity rates shall contain the following notation preceding that prescribed in the first paragraph of this section:

(i) When rates are published in section 1, the rates named in this section on the same commodity from and to the same points, via the same route, will not apply.

(g) When publishing both class and commodity rates in sections of a tariff, under authority of this rule, the class rates shall be published in a section or sections preceding the commodity sections. Commodity rates which are lower than and do not alternate with the rates in other commodity sections shall be published in the first commodity section and may alternate only with rates in the class section or sections. Under the heading of "Application of rates," the following notation shall appear:

(i) The rates in section are specific commodity rates and do not alternate with commodity rates in other sections of the tariff. See application of that section.

(h) The title page of the nonalternating commodity section shall contain the following notation preceding that prescribed in the first paragraph of this section:

(i) When rates are published in this section on the commodity transported from point of origin to destination rates named in this section will apply regardless of rates between the same points published in other commodity sections.

(i) The title page of each other section containing commodity rates shall also contain the following notation preceding that prescribed in the first paragraph of this section:

(i) Where rates are published in section (here show the number of the nonalternating section) the rates named in this section on the same commodity from and to the same points, via the same route will not apply.

(2) The publication of alternative rates in sections of a tariff is subject to the following restrictions:

(a) That only one alternation of class rates against class rates, and not more than two alternations of commodity rates against commodity rates, will be permitted;

(b) That rates published in another tariff may not be reproduced for alternative purposes;

(d) That alternating sections may not be subdivided and except as otherwise authorized in ARM 38.3.2710, a rate in one section may not be alternated against a rate in the same section.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2712 Alternation of Class Rates in One Tariff with Commodity Rates in Another Tariff

(1) When because of differences in minimum weights, package requirements, mixed truckload provisions, or other conditions the charges accruing under commodity rates result in higher charges than those accruing under the class rates published in other tariffs, provision may be made in a tariff containing commodity rates only, for the alternation of such rates with class rates published in not more than three other tariffs containing class rates only, provided that the commodity tariff contains specific reference to the PSC number or numbers of the class tariffs and shows in connection with each PSC number a complete description of the origin and destination territory shown in that tariff. The following notation must be shown in the commodity tariff under the application of rates:

(a) If the charges accruing under the class rates published in the following tariffs, including supplements to or successive issues thereof, from and to the same points via the same routes are lower than the charges accruing under the commodity rates published in this tariff, the lower charges resulting from such class rates will apply. (Here show PSC numbers of the class tariffs and the required description of each.)

(2) If a commodity tariff contains only a few rates which result in higher charges than would accrue under the class rates the reference to the class tariffs prescribed herein should be shown immediately in connection with such commodity rates or may be shown in a separate item under an appropriate heading and reference to such item shown immediately in connection with the commodity rates.

(3) Great care should be exercised in describing the scope of the class tariffs in order that users of the commodity tariff may determine without examining the class tariffs, which of such class tariffs is to be used in connection with any commodity rate. It also should be understood that the alternative application of commodity rates in one tariff with class rates in another tariff should be resorted to only where there is real necessity therefore and that wherever possible the commodity rates should be revised so that they will not exceed the class rates between the same points.

(4) The continuance of the authority contained in this section will depend upon the progress made by carriers in revising commodity rates in order to avoid unnecessary alternations, and upon the accuracy used in describing the class.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2713 Transfer or Rates from One Tariff to Another

(1) If a tariff or supplement to a tariff or a revised page is issued which is to displace a part of another tariff which is in force at the time, and which tariff is not thereby cancelled in full, it shall specifically state the portion of such other tariff or such other supplement which is thereby cancelled, and such other tariff shall at the same time be correspondingly amended, effective on the same date, in the regular way; that is, by reissue if tariff is of four pages or less, by reissue or supplement if tariff is of more than four pages, and by revised pages if tariff is a loose-leaf tariff. (See ARM 38.3.2801(2) and 38.3.2802) . Such reissue, supplement, or revised page must state where rates will thereafter be found and must be filed at the same time and in connection with the tariff or supplement which contains the new rates. Cancellation may be indicated substantially as follows: "cancels PSC No. , to the extent shown in supplement No. thereto."

(2) A tariff cancelling more than one tariff in whole or in part must include a brief description of such tariffs. It will not be necessary to show on a commodity tariff or supplement reference to class tariffs that may be affected, nor to show on a class tariff or supplement reference to a commodity tariff.

(3) If a tariff is cancelled by the issuance of another tariff to take its place, cancellation notice must not be given by supplement, but by notice printed, in the new tariff, as provided in ARM 38.3.2606(1) (b) . (See ARM 38.3.2605.)

(4) Cancellation of a tariff also cancels supplements to such tariff, if any in effect.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2714 Transfer of Rates from Carriers' to Agents' and from Agents' to Carriers'

(1) An agent who acts under authority of power of attorney is fully authorized to act for the principals that have named him their agent and attorney, and therefore, when an agent publishes rates in his tariffs which are to displace the rates in his principals' tariff, the agent must cancel the rates in his principals' tariffs as per ARM 38.3.2713.

(2) A carrier must not publish in its individual tariff rates which are to displace the rates published in a tariff of a duly authorized agent unless the tariff is accompanied by a supplement issued by the agent cancelling the rates in his tariff effective on the same date, as per ARM 38.3.2713.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Subchapter 38.3.28 Tariffs - Cancellation, Amendment or Supplement

Mont. Admin. R. 38.3.2801 Cancellation, in Whole or in Part, of Tariff How Done

(1) If a tariff is cancelled with the purpose of cancelling entirely the rates named therein, or when, through error or omission, a later issue failed to cancel the previous issue and such tariff is cancelled for the purpose of perfecting the records, the cancellation notice must not be given a new PSC number, but must be issued as a supplement to the tariff (including loose-leaf tariffs) which it cancels. In the issuance of such supplement the provisions of ARM 38.3.2807 need not be observed.

(2) When a tariff is cancelled in whole or in part by a supplement there to, the supplement must show where the rates will thereafter be found or what rates will thereafter apply. When a tariff is cancelled by another tariff which does not contain all of the rates shown in the tariff to be cancelled the cancelling tariff must show where rates not shown therein will thereafter be found, or what rates will thereafter apply. For example: "Rates in PSC No. will apply," or "Class rates will apply," or "Combination rates will apply." (See ARM 38.3.2605.)

(3) When portions of a tariff (excepting a tariff in loose-leaf form or a classification) , or of a supplement to a tariff, are designated as items they must be given numbers and the cancellation of an item by supplement must be under the same item number with letter suffix. For example: Item 40-A cancels Item 40; Item 40-B cancels Item 40-A; and so on. If an item or any part thereof is transferred to another item of different number in the same tariff, the cancellation must be carried under the original item number and must show in what item or items the effective rates are to be found. If an item is withdrawn in its entirety, or expires by its own terms, leaving no rates or provisions in effect in that item, the cancellation or expiration must be brought forward in subsequent supplements as a reissued item. An item once lawfully eliminated by cancellation or expiration may not be reinstated except by republication under a new effective date.

(4) Such republication, except as provided in the second paragraph of this section, must be under the same item number, must cancel the former item and must be given the next letter suffix. For example: If the cancelling item is 40-A the newly published item should read "Item 40-B cancels Item 40-A."

(5) The items in each supplement to a classification must be numbered consecutively, commencing with Item 1 on each page, must cancel the previous item and must show where the cancelled item appeared. For example: Item 6 cancels Item 3, page of Supplement ; Item 10 cancels Item 1, page , of classification.

(6) When withdrawing a rule or item designated by an item number the cancelled matter need not be reproduced in connection with the item effecting the cancellation, except to the extent necessary to identify the item.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2802 Amendments and Supplements

(1) A change in or addition to a tariff shall be known as an amendment, and, excepting amendments to tariffs of less than five pages, and amendments to tariffs in loose-leaf form, shall be published in a supplement to the tariff. When an amendment is made in a numbered item, or other unit, such item, or other unit must be published in a supplement in its entirety as amended. When rates are published in numbered items, cancellation shall be made as prescribed in ARM 38.3.2801. When rates are published in numbered units other than item numbers, supplements changing matter must specifically provide for the cancellation of such matter by reference to the number of the item or other unit that it cancels. When such a change is made in matter published in a supplement in a numbered unit other than an item, the new supplement must also give reference by number to the previous supplement. In those instances where matter is not published in numbered units, the changed provision must be published in the supplement in its entirety and reference must be made to the page or pages of the tariff on which the matter to be cancelled is shown. If such matter has been cancelled by a previous supplement, specific cancellation must be made of the corresponding matter in the "tariff as amended" and specific reference shall be made by number to page or pages of the previous supplement containing the matter to be changed, and to the page or pages of the original tariff formerly containing such matter corresponding thereto.

(2) The matter contained in each supplement shall be arranged in the same general manner and order as in the tariff which it amends and when stations in a tariff are given index numbers the same index number must be assigned to the same station in all supplements to the tariff.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2803 Participating Carriers - How Shown in Supplements

(1) A supplement shall contain either a list of carriers participating therein, or shall state that the list of participating carriers is "as shown in tariff," or "as shown in tariff and effective supplements," to which may be added "except (here show corrections in, additions to, or eliminations from the original list that are affected by the supplement) ." Changes in or additions to the list of participating carriers in the tariff or previous supplements shall be listed alphabetically.

(2) When a participating carrier is eliminated by supplement such supplement must also provide for cancellation of rates in connection with that carrier. (See ARM 38.3.2801.) Reissue of effective changes shall be indicated as required by ARM 38.3.2806.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2804 Supplement Number and Cancellation

(1) Supplements to a tariff shall be numbered consecutively. Each supplement shall specify on its title page the supplement or supplements or tariff or tariffs which it cancels, and shall also show what supplements contain actual changes from the rates, rules, or regulations in the original tariff. In connection with the numbers of the supplements issued under these rules, reference marks must be used and explained on the title page to indicate the nature of the supplements filed under such authorities. The term "cancels conflicting portions" must not be used, but cancellations must be specific as required by ARM 38.3.2801(3) and 38.3.2802(1) .

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2805 Exception to General Effective Date

(1) Every publication which contains rates, rules or regulations effective upon a date different from the general effective date of such publication must show on its title page the following notation: "Effective

(a) Every publication which consists partly but not wholly of matter established upon less than statutory notice shall show in connection with each change made effective on less than statutory notice a notation that such matter is issued on

,19

(except as otherwise provided herein) " or "(except as provided in Item

) " or "(except as provided on page

) ."

days' notice under authority of , (here give specific reference to the special permission, decision, order, rule, or other authority.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.2806 Reissued Matter

(1) Matter brought forward without change from a tariff which has not been in effect 30 days, also matter brought forward without change from one supplement to another, must be designated "reissued" in distinctive type and must show the original effective date and the number of the supplement or tariff from which it is reissued; or must be uniformly indicated by the letter T followed by the symbol for "reissued" when reissued from another tariff or from a supplement to another tariff and by numerals commencing with 1 followed by the symbol for "reissued" when reissued from a prior supplement to the same tariff, printed in distinctive type and shown in a conspicuous manner, and the explanation thereof must be made in the tariff or supplement in which the symbols are used. Examples: "T

Reissued from PSC No.

, or (Supplement No.

to PSC No.

) , effective (date upon which item became effective in former tariff or supplement to another tariff)

, 19

"; "T

Reissued from Supplement No. 1, effective

, 19

," and so on numerically, the figures of the symbols always representing the number of the supplement to the same tariff from which the reissued item is brought forward. If items in a tariff or supplement are made effective on dates other than the general effective date shown on the title page, reissue of such items may be indicated in later publications by showing a letter suffix or other symbol in connection with, and as a part of, the letter T or the numerals followed by the symbol for "reissued" as herein authorized. When the reissued item became effective in a supplement to another tariff, the PSC number of that tariff must also be given. The letter T and numerals commencing with 1, both followed by the symbol for "reissued," shall not be used as reference marks or symbols for any other purpose in any tariff or supplement.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA, Eff. 12/31/72
History: AMD, 1994 MAR p. 965, Eff. 4/15/94.

Mont. Admin. R. 38.3.2807 Number of Supplements Effective at Any Time

(1) Except as authorized in ARM 38.3.2801 tariffs of 4 pages or less may have no supplement; not more than 1 supplement may be in effect at any time to a tariff containing 5 and not more than 16 pages; not more than 2 supplements may be in effect at any time to a tariff containing 17 and not more than 80 pages; not more than 3 supplements may be in effect at any time to a tariff containing 81 and not more than 200 pages; and not more than 4 supplements may be in effect at any time to a tariff containing more than 200 pages.

(2) Except as authorized in ARM 38.3.2801 and 38.3.3301, tariffs containing 5 and not more than 12 pages may have not more than 4 pages of supplemental matter, and tariffs containing more than 12 pages may have supplemental matter aggregating not more than 33 1/3 percent of the number of pages in the tariff except that if the number of pages in the supplement which brings the volume of matter up to that authorized by the rule is not evenly divisible by 4, it may exceed the volume authorized to the extent necessary to bring the number of pages of such supplement to the next multiple of 4. The smallest of 3 effective supplements to a tariff of more than 80, but not more than 200 pages shall contain not more than 8 pages, and the smallest of 4 effective supplements to a tariff of more than 200 pages shall contain not more than 16 pages.

(3) The provisions of the first and second paragraphs of this rule will also apply to tariffs filed prior to 12/31/72.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA, Eff. 12/31/72.

Mont. Admin. R. 38.3.2808 Index to Supplements

(1) A supplement of 5 or more pages must have an index of the matter which it contains, and a supplement of more than 23 pages must also contain a table of contents. In view of the provision of ARM 38.3.2801(3) which requires that cancellation of a numbered item must be made under the same item number in a supplement as that given to that item in the tariff, and the requirement of ARM 38.3.2802 which provides that the index number assigned to a station in a supplement must be the number assigned to that station in the tariff, the table of contents and indexes in a supplement of five or more pages need not contain therein entries which are shown in the table of contents or indexes in the tariff: Provided, that in connection with the index of points of origin (or destination) the following notation shall be shown:

(a) The index numbers of stations in this supplement correspond with the index numbers of the same stations shown on pages to , inclusive, of the tariff, with the following additions and exceptions:

(i) The table of contents and indexes in such a supplement may be omitted if ARM 38.3.2607 does not require the tariff, to which the supplement is issued, to contain a table of contents and indexes.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA, Eff. 12/31/72.

Mont. Admin. R. 38.3.2809 Supplement to Tariff That Is Filed and Not Yet Effective

(1) If a tariff is filed on statutory notice cancelling another tariff and after such filing a supplement to the tariff to be so cancelled should be issued effective prior to the general effective date of such new tariff, rates in such supplement could not continue in effect for the 30 days required by law because the cancellation of the former tariff also cancels supplements to it. In such a case, and confined to additions or to changes in rates or provisions which were brought forward in the new tariff without change, the provisions of ARM 38.3.2807 need not be observed as to the old tariff, and a supplement making the same changes in or additions to both tariffs may be issued as supplements both to the tariff in effect and to the tariff which will effect such cancellation, and be given both PSC numbers. In other words, such issue must be a supplement both to the old and the new tariffs and copies must be posted and filed accordingly. Only one such supplement may be in effect at any time.

(2) Rates or provisions which have been established in an old tariff and reproduced or reissued in a new tariff may be changed upon lawful notice by supplement to the new tariff, effective not earlier than the general effective date of the new tariff, by showing in the following manner in connection with the changed rates or provisions that the rates or provisions changed thereby have been in effect 30 days or more, in the former issue. Example: "Item 40-A cancels item 40.Item 40 effective , brought forward without change from Item No. of PSC No. (former issue) ."

(3) New rates or provisions which do not change rates or provisions in either the old or new tariff may be established upon lawful notice by supplement to the new tariff, effective not earlier than the general effective date of the new tariff, by showing in the following manner, in connection with the new rates or provisions that the rates or provisions previously applicable have been in effect 30 days or more in a former issue. Example: "Addition. Changes class rates which became effective in PSC No. ."Unless the provisions of this paragraph are complied with no supplement to a tariff that is on file and not yet effective may be made effective within 30 days from the effective date of the tariff with out special permission.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA, Eff. 12/31/72.

Subchapter 38.3.29 Tariffs - Loose-Leaf

Mont. Admin. R. 38.3.2901 Loose-Leaf Tariff Format

(1) Pages of loose-leaf tariffs shall be printed on thin paper of strong texture, on one side only; must be consecutively numbered and designated as "Original page 1," "Original page 2," etc. Each page must show at the top of the page the name of the issuing carrier or agent, the page number, and the PSC number of the tariff. At the bottom of the page shall be shown the date of issue, the effective date, and the name, title, and street address of the issuing officer or agent.

(2) Changes in and additions to loose-leaf tariffs shall be made by reprinting the page upon which change or addition is made, and such changed page shall be designated as a revised page. For example: "First revised page 1 cancels original page 1," or "Second page 2 cancels first revised page 2," etc. When a revised title page is issued the following notation shall be shown in connection with its effective date: Original tariff effective (here show effective date of the original tariff) except as hereinafter provided in (6) hereof.

(3) If on account of expansion of matter on any page it becomes necessary to add an additional page in order to take care of the additional matter, such additional page shall be given the same number with a letter suffix. For example:

"Original page 4-A," "Original page 4-B," etc. If it is necessary to change matter on original page 4-A it may be done by issuing first revised page 4-A, which shall provide for the cancellation of original page 4-A.

(4) When a revised page is issued which omits rates, rules, or regulations theretofore published on the page which it cancels, and such rates, rules, or regulations are published on another page, the revised page must make specific reference to the page on which the rates, rules, or regulations will be found, and the page to which reference is so made must contain the following notation in connection with such rates, rules, regulations, etc.:

(a) For (here insert rates, rules, regulations, etc., as case may be) in effect prior to the effective date hereof see page .

(b) Subsequently revised pages of the same number must omit this notation insofar as this particular matter is concerned.

(5) If after a tariff has been filed with the Commission it is desired to file additional pages, such pages may be subsequently filed to the tariff and numbered beginning with the next successive page number to the last page of the tariff, and must be designated as "Original page. ." For example, when the tariff filed has 150 pages, page 151 when filed must not be designated as an "Additional" page but should be designated as "Original page 151."' Such a page can be filed only for the purpose of adding new matter which does not change the rates, rules or regulations then in force on other pages of the tariff.

(6) Supplements shall not be issued to loose-leaf tariffs, except for the purposes authorized by the following:

(a) ARM 38.3.2901(7) . Conversion supplements to provide general rate changes.

(b) ARM 38.3.2713 and 38.3.2801. Transfer or cancellation of provisions.

(d) ARM 38.3.3302. Transfer of operations change in name and control.

(e) ARM 38.3.2713 and 38.3.2714. Takeover publications (transfer of agent) .

(7) A conversion table type supplement may be filed to any bound or loose-leaf tariff having not less than 20 pages (excluding supplements) to provide a general change in the level of all or substantially all the rates or charges, or all or substantially all the rates or charges in a described category (less-than-truckload, truckload, etc.) named in the tariff. The supplement shall be in clear, explicit, and simple terms, and be free of conflict and ambiguity. A conversion type supplement may be filed by a carrier or agent to a tariff of less than 20 pages (excluding supplements) provided it is filed at the same time as such supplements are filed by it to other of its tariffs which have 20 or more pages and provided the change is part of the same general rate adjustment.

(a) The conversion supplements shall contain an application provision reading substantially as follows:

Except as provided in [here identify location of listing of items, notes, or provisions not subject to

rate change in whole or in part, specifying what part] and in [specify whether supplements or

loose-leaf pages] issued subsequent to this supplement, all rates and charges published in this

tariff, as amended, or as may be amended in [specify whether supplements or loose-leaf pages]

issued subsequent to this supplement, are hereby or will on their effective dates be [specify

whether increased or reduced] as follows for the period this supplement is in effect.

Immediately following this statement, a clear and explicit application of each column of changes must be published. If the supplement does not contain exceptions to or any nonapplication or the rate changes, the reference in the statement to a listing of exceptions must be omitted. However, under no circumstances may the exception therein with respect to subsequent supplements or loose-leaf pages be omitted. If not all of the rates or charges in a tariff are being changed by the supplement, the statement must clearly and definitely state the exact category of rates or changes (any-quantity, less-than-truck-load, truckload, volume, or less-volume rates, minimum charges, etc.) being changed and/or the exact items, sections, etc., of the tariff in which they are contained. Reference to categories of rates may employ only terms used in the tariff or determinable through its published definitions.

(b) If the supplement does not include all the tariff rates and charges to be changed, it must provide a percentage formula or other basis for converting rates and charges which are higher than those shown or otherwise not shown in the conversion table. If this is necessary, the supplement must provide a method of disposing of resulting fractions. When multiple-factor rates or charges made by use of arbitraries or other means are being changed, the method of computing such changes shall be provided.

(c) The base and the converted rates or charges must be in the same monetary unit (in cents, in dollars and cents, etc.) used in the tariff. If the tariff names rates or charges in more than one monetary unit (for example, some in cents, others in dollars and cents) , the unit used must be the one employed in the greatest percentage of rates and charges to be changed, and a provision must be published stating how the change is to be applied in connection with the remainder, for example, if the conversion supplement is based on a monetary

unit of "in cents," it shall contain the following rule:

Where the rate or charge is stated in dollars or dollars and cents per 100 pounds, per ton, per

article, per piece, per package, per shipment, or per any other unit, first find the rate or charge

which is equivalent in cents under column [here show column containing base rates] of the

conversion table herein and then apply the changed rate or charge shown opposite thereto in

columns [here show numbers of columns containing changed rates or charges] in item [here

show number of item containing application of columns] herein.

(d) Each supplement may contain not more than ten columns of rates or charges including the base rate or charge column. As to any base rate or charge, application of only one column of changed rate or charge is permitted.

(e) Each conversion type supplement shall contain no other matter, be indicated to expire with a specific date not beyond one year from its effective date, and, as to a bound tariff, be exempted from the terms of ARM 38.3.2807. Each regular (not conversion type) supplement containing only republished class-rate tables and necessary related provisions forming a part of the same general rate adjustment and not made subject to a conversion table shall also be exempt from the terms of ARM 38.3.2807. Such a regular supplement need not show an expiration date.

(f) As to bound tariff, an exception item or note may be republished from the conversion supplement into a regular supplement in order to add, eliminate, or change provisions. As to a loose-leaf tariff, exceptions may be published in an item in the tariff proper to which the conversion supplement may refer, in which case the item may be republished in the regular manner in subsequent republications of the particular page. If the exceptions are published in the conversion supplement issued to a loose-leaf tariff, they may not be amended.

(g) The title page of the conversion supplement shall indicate, in the top margin, whether the changes are increases or are reductions. If the changes consist of some of both kinds, the notation must add "as indicated herein" and the different categories of changes must be indicated by use of the appropriate symbols for increase and reduction.

(h) All subsequent amendments (supplements or loose-leaf pages) to the tariff becoming effective during the effectiveness of the conversion supplement and naming rates or charges shall contain a notation indicating whether such amendments are or are not subject, as the case may be, to the provisions of the conversion supplement and/or an item, identifying such supplement and/or item.

(i) As to a tariff, only one conversion supplement may be in effect at any time. The duration of the application of published changes in a conversion supplement may not be extended by a like supplement providing the same increases or reductions. A conversion supplement may not be reissued with the same expiration date unless requested by the Commission.

(j) The provisions of this paragraph do not authorize the publication and filing of so-called master tariffs or "connecting link supplements."

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72; AMD, Eff. 8/5/76.

Mont. Admin. R. 38.3.2902 Check Sheets

(1) The page of every loose-leaf tariff next to the title page shall be designated as "Original page 1" and shall be known as a "check sheet." When the original tariff is filed the check sheet must show the number of pages contained in the tariff. For example: "Pages 1 to 150, inclusive, of this tariff are effective as of the date shown." When new pages numbered 151, 152, etc., are added, the above notation must be correspondingly revised to include the added pages. When pages are revised, when new pages (including pages with letter suffix) are added to the tariff, or when supplements are issued the check sheet must be revised accordingly and, in addition to the above notation, shall show under the heading "Original and revised pages as named below and supplement No. contained all changes from the original tariff that are in effect on the date hereof" in numerical order a list of all original pages that have been added to the tariff and the pages which have been revised, including the revision number. For example:

(2) Revised check sheets listing the added or revised pages must accompany such pages when forwarded to the Commission for filing.

(3) Changes shall be indicated as required by ARM 38.3.2603. Items which have been in effect 30 days or more need not be shown as reissued items on revised pages, but may be republished as effective on 30 days' notice. Items which have not been in effect 30 days when brought forward on revised page must be shown as reissued in the manner prescribed in ARM 38.3.2805.

(4) When protective covers for loose-leaf tariffs are used, only such information should appear thereon as will remain constant and in use during the life of the tariffs.

Number of revision

Page except as indicated

3........................................................................................................ 5th

5A..................................................................................................... Orig.

10..................................................................................................... 8th

151................................................................................................... Orig.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Subchapter 38.3.30 Tariffs - Suspension

Mont. Admin. R. 38.3.3001 Suspension of Tariffs

(1) Upon receipt of order of suspension of any publication in its entirety the carrier or agent who filed such publication shall immediately file with the Commission a supplement, which must not bear an effective date, quoting the pertinent portions of the Commission's order of suspension which describe the publication suspended and stating that such publication is under suspension and may not be used until such specified date as the suspension order of the commission may name and that rates, charges, classifications, rules, regulations, or practices theretofore in effect and which were to be changed by the suspended publication will remain in effect until lawfully changed. Such supplement shall state by PSC number or numbers the tariff or tariffs, or supplements thereto, or revised pages where rates, charges, classifications, rules, regulations, or practices so continued in effect will be found. The paragraph of the Commission's order prohibiting changes in the suspended matter shall be reproduced in the suspension supplement.

(2) Upon receipt of order of suspension of a part of a publication which, except as to such part, is allowed to become effective, the carrier or agent who filed such publication shall immediately file with the Commission a supplement, which must not bear an effective date, quoting the pertinent portions of the Commission's order of suspension which describe the matter suspended and stating that the part or parts of such publication specified in the order are under suspension and may not be used until such specified date as the suspension order of the Commission may name, and that rates, charges, classifications, rules, regulations, or practices theretofore in effect and which were to be changed by the suspended publication will remain in effect until lawfully changed. Such supplement shall also contain in reissued items the rates, charges, classifications, rules, regulations, or practices applicable during the period of suspension or shall give specific reference, by PSC number or numbers, to the tariff or tariffs, or supplements thereto, or revised pages where they will be found. The paragraph of the Commission's order prohibiting changes in the suspended matter shall be reproduced in the suspension supplement.

(3) When the Commission has suspended a supplement in whole or in part it frequently occurs that prior to the filing of the supplement announcing suspension a carrier or its agent files a later supplement which contains, as reissues, the matter suspended in the previous supplement. In such instances the suspension supplement required by this rule shall also specifically cancel from the later supplement such reissued matter, and by amendment to the title page of said later supplement shall eliminate the cancellation of the suspended supplement when the latter is suspended in full, and when a supplement is suspended in part shall provide that such later supplement cancels such previous supplement except portions under suspension. Tardiness in filing supplements announcing suspension may result in the rejection by the Commission of the supplement which cancels the suspended matter.

(4) When the Commission suspends an entire tariff, the previous tariff and effective supplements are continued in effect and will remain in force during the period of suspension or until lawfully cancelled or reissued. Except as to loose-leaf tariffs and tariffs of less than five pages, supplements containing additions and/or changes in rates, charges, classifications, rules, regulations, or practices which were not sought to be changed by the suspended tariff may be filed to the previous tariff without regard to the volume of supplemental matter which the effective supplements in the aggregate may contain. If the volume of supplemental matter permitted by ARM 38.3.2807 has been exceeded under authority of this paragraph and the Commission orders the cancellation of the suspended tariff, the volume of supplemental matter must be brought within the requirements of ARM 38.3.2807 by schedule filed within 90 days, or such tariff must be reissued in accordance with the following provisions: If consisting of less than 100 pages, by schedule filed within 90 days, and if consisting of 100 or more pages, by schedule filed within 120 days, from the date upon which the suspended tariff is cancelled.

(5) When the Commission suspends an entire supplement to a tariff, or portions of a tariff or of a supplement to a tariff, the Commission's rule as to the volume of supplemental matter which the effective supplements in the aggregate may contain is not waived, except that a supplement containing suspended matter will not be counted against the number of effective supplements or the volume of supplemental matter permitted to such tariff under ARM 38.3.2807, provided all matter in such supplement, except the suspended portions thereof, are reissued in or specifically cancelled by a sub- sequent supplement. When a tariff (or supplement) which is suspended in part is reissued, such reissue shall cancel the tariff (or supplement) containing the suspended matter "except portions under suspension in I. and S. docket No. ." When a tariff which is suspended in part is reissued, such reissue shall also cancel the tariff containing the matter which is contained in effect by the suspension. When a tariff, as to which a supplement is suspended in whole or in part, is reissued, the reissue shall cancel the tariff "except portions under suspension in supplement No. (or in item No. of supplement No. ) in I. and S. docket No. " and shall reissue the matter which is continued in effect by the suspension.

(6) A suspended rate, charge, classification, rule, regulation, or practice may not be changed or withdrawn or the effective date thereof further deferred except by order or special permission of the Commission, nor may any change be made in a rate, charge, classification, rule, regulation, or practice which is continued in effect as a result of such suspension except under order or special permission of the Commission.

(7) When the Commission vacates an order of suspension as of a date earlier than the date to which suspended, the carrier or agent who filed such suspended tariff, supplement, or revised page may file with the Commission, on not less than one day's notice, unless otherwise provided by the order, a supplemental stating the date upon which, under authority of the vacating order, the tariff supplement, revised page, item, rate, charge, classification, rule, regulation, or practice will become effective. Unless such supplement is filed naming an earlier date than the date to which suspended, the suspended schedule will become effective on the date to which suspended.

(8) When an order which suspended a tariff in its entirety is vacated, the vacating supplement filed under authority of this rule, if made effective on or before the date to which the tariff is suspended, may also include as reissues, changes or additions which have been lawfully established in supplements to the former tariff. If a new tariff has been filed during the period of suspension, cancelling the tariff proposed to be cancelled by the suspended tariff any changes or additions published in the new tariff which are not included in the suspended tariff may be included in the vacating supplement as reissued items, provided the vacating supplement also cancels such new tariff. No other matter may be included in vacating supplements. When reissued matter is published in a vacating supplement, the vacation notice must be printed in not less than 10-point type, either on the title page or immediately preceding the rate information.

(9) When a tariff containing suspended matter has been cancelled by a new tariff, except as to portions under suspension, and the Commission vacates its suspension order effective on a date subsequent to the effective date of the new tariff, a supplement must be filed to the new tariff effective on not less than one day's notice, republishing and establishing the suspended matter and cancelling the matter which was effective during the period of suspension, also cancelling the matter under suspension in the former issue. Unless this is done the matter which was suspended will not become applicable, as the effective matter in the new tariff remains in effect until cancelled. When the Commission vacates its suspension order effective on a date prior to the effective date of the new tariff, a vacating supplement, as prescribed in this section, should be filed to the old tariff and a supplement should also be filed to the new tariff on not less than one day's notice, establishing therein on the effective date thereof matter which was under suspension in the old tariff. A common supplement to both tariffs as authorized by ARM 38.3.2809 may be issued upon not less than one day's notice to accomplish this purpose.

(10) When the Commission orders the cancellation of a tariff, supplement, revised page, item, rate, charge, classification, rule, regulation, or practice theretofore suspended by it, the cancellation shall be effected by filing with the Commission upon not less than one day's notice, unless otherwise provided by the order, a supplement stating the date upon which in accordance with the commission's order said rate, charge, classification, rule, regulation, or practice is cancelled; except that, when desired, such cancellation may be accomplished in a new tariff cancelling the tariff containing the suspended matter. When an order of the Commission requires the cancellation of suspended matter on or before a date which is subsequent to the date to which suspended, carriers should endeavor to make the cancellation effective prior to the date to which the matter was suspended, in order to prevent the rates which have been found not justified from becoming effective. If the suspended matter is not cancelled on or before the date to which suspended it will be necessary, when cancelling the suspended matter, to republish and reestablish the matter continued in force during the period of suspension.

(11) Every suspension, vacating, and cancellation supplement issued under authority of this rule must bear on its title page the following notation: "Issued under authority of ARM 38.3.3001 and in compliance with order of the Montana Public Service Commission, Suspension Docket No. , of (date) ."

(12) Such supplements will not be counted against the number of effective supplements or the volume of supplemental matter permitted under ARM 38.3.2807, but must list effective supplements as required by ARM 38.3.2804.

(13) The provisions of this rule relating to suspension, vacating, and cancellation supplements will also govern in connection with tariffs issued in loose-leaf form, except that such supplements must not contain rates, charges, classifications, rules, regulations, or practices. All changes made in loose-leaf tariffs must be published on revised pages.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Subchapter 38.3.33 Tariffs - Special Provisions

Mont. Admin. R. 38.3.3301 Periodical Tariffs

(1) A tariff may provide that it will be reissued periodically at specified times, not more than nine months apart. Such tariff must bear on upper left-hand corner of title page the notation: This tariff will be reissued effective on or before , 19 .

(2) Supplements to such tariff may contain all amendments thereto without limit as to volume.

(3) Unless the date fixed for reissue of a particular tariff is strictly observed, future issues of that tariff may not be published under authority of this rule.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.3302 Adoption of Tariffs Upon Sale and Transfer or Lease

(1) Upon approval of sale and transfer, or lease, of certificate of authority from one carrier to another, currently existing tariffs and time schedules may be adopted, in whole, by the new entity. When carrier elects to adopt tariffs and time schedules of the old entity, the Commission shall be so advised in writing. Executed adoption notices, in triplicate, will be forwarded to applicant, for signature and approval. The Commission, at its discretion, may decline to approve adoption of tariffs not found to be in compliance with the rules, regulations or standards of this Chapter. The Commission may, however, for good cause, allow adoption of the old tariffs, subject to the requirement that new tariffs, complying with the provisions of this Chapter, be filed for approval, not later than 30 days after the issuance of certificate.

(2) In addition to filing the above-mentioned adoption notice, the new carrier shall file a supplement to each of the tariffs covered by the adoption notice reading as follows:

Effective (here insert date shown in the adoption notice) , this tariff

or as amended, insofar as it contains rates, rules, and or regulations applying from, to, at, or via

the following points (naming them) , became the tariff of the

corporate name of adopting carrier as per adoption notice) .

(3) Such supplements must contain no other matter, must bear reference to this rule, and may be issued without regard to the provision of ARM 38.3.2806.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.3303 Existing Tariffs

(1) Tariffs, time schedules and revisions thereof, filed with, and approved by the Commission, prior to 12/31/72, shall be deemed adequate, provided, however, that all future reissues and revisions to such tariffs shall comply with the rules, regulations, orders or standards established by this Chapter.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Mont. Admin. R. 38.3.3304 Powers of Attorney, Concurrence, Revocation

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72; REP, 2015 MAR p. 1276, Eff. 8/28/15.

Mont. Admin. R. 38.3.3305 Display of Rates - Taxis

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72; REP, 2021 MAR p. 1556, Eff. 11/6/21.

Mont. Admin. R. 38.3.3306 Aggregate and Intermediate Rates Vs. Through Rates

(1) No Class A motor carrier shall charge or receive any greater compensation in the aggregate for the transportation of persons, or of like kind of property, for a shorter than for a longer distance over the same line in the same direction, the shorter being included within the longer distance, nor charge any greater compensation as a through rate than the aggregate of the intermediate rates without commission approval. Upon a showing to the commission, after notice and hearing, a carrier may seek approval of such rate, and if supported by sufficient evidence, the commission may grant such greater rate for a shorter distance.

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): 69-12-501, 69-12-502, 69-12-503, 69-12-504, 69-12-505, 69-12-511, MCA
History: Eff. 12/31/72; AMD, 2021 MAR p. 1556, Eff. 11/6/21.

Mont. Admin. R. 38.3.3316 Waiver

(1) The Commission may, upon good cause shown waive, in whole or in part, compliance with any rule, regulation, order or standard established in Sub-Chapters 24 through 33.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, Chapter 12, Part 5, MCA
History: Eff. 12/31/72.

Subchapter 38.3.34 Minimum Filing Standards for Motor Carrier Rate Increases

Mont. Admin. R. 38.3.3401 Comparison of Present and Proposed Rates-- Definition, Permanence

(1) Unless the context otherwise requires, in this sub-chapter the meaning of the term "increase" shall include "decrease" and any other change or modification.

(2) No temporary rate increase shall be renewed or granted unless a carrier or bureau has demonstrated that the same should be done and is permitted by law.

(3) All rate increase tariff filings must be accompanied by a cover sheet setting forth the present rate, the proposed rate, and the percentage change for each affected item.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, chapter 12, part 5, MCA
History: NEW, 1978 MAR p. 1733, Eff. 12/29/78; AMD, 1990 MAR p. 1263, Eff. 6/29/90.

Mont. Admin. R. 38.3.3402 Requirements for Independent Carrier Filing

(1) Income statements and balance sheets must be submitted for the last calendar or fiscal year. Where possible, that year should run from January 1st through December 31st, or other established regulatory fiscal year (i.e., four 13-week periods) .

(a) A pro forma income statement must be submitted which includes all known expense increases, along with the revenue derived from the current requested increase.

(b) Written verified statement explaining the reason(s) or need(s) for the requested increase must be supplied.

(c) Back-up data on all significant expense increases must be included. In the verified statement an explanation will be offered for each increased expense item, along with supporting documents, attached for easy reference (i.e., labor contracts, fuel bills, etc.) .

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, chapter 12, part 5, MCA
History: NEW, 1978 MAR p. 1733, Eff. 12/29/78.

Mont. Admin. R. 38.3.3403 Requirements for Tariff Bureau Filings

(1) When submitting a bureau filing, all carrier's data must be submitted for the same time frame with no overlapping periods.

(a) A consolidated income statement for the last calendar or fiscal year must be submitted. A consolidated pro forma income statement must be submitted, including all known expense increases and the revenue to be derived from the requested increase.

(b) A verified statement must be supplied on a consolidated basis. Individual carrier's forms must be filed and verified and shall include all back-up data for significant expense increases.

(c) Bureaus will submit a listing of all carriers party to the affected tariff, along with the corresponding issue revenue for each carrier. This listing must be in descending order of issue revenue.

(d) The carriers submitting detailed information will account for at least 65 percent of the issue revenue.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, chapter 12, part 5, MCA
History: NEW, 1978 MAR p. 1733, Eff. 12/29/78.

Mont. Admin. R. 38.3.3404 Additional Requirement for Carriers That File with the I.c.c

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-12-201, MCA
Implementing statute(s): Title 69, chapter 12, part 5, MCA
History: NEW, 1978 MAR p. 1733, Eff. 12/29/78; REP, 2015 MAR p. 1276, Eff. 8/28/15.

Mont. Admin. R. 38.3.3405 Simultaneous Filing of Tariffs and Justification - Substantial Compliance

(1) All justification material should be filed at the same time the tariffs are deposited at the commission.

(2) For good cause shown substantial compliance with this sub-chapter will be considered sufficient.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Title 69, chapter 12, part 5, MCA
History: NEW, 1978 MAR p. 1733, Eff. 12/29/78.

Subchapter 38.3.36 Rates - Special Provisions

Mont. Admin. R. 38.3.3601 Fuel Cost Surcharge

(1) All intrastate motor carriers operating under commission approved tariffed rates or commission approved maximum rates may charge, in addition to such rates, a fuel cost surcharge as provided by this rule.

(2) The commission may grant approval for a surcharge upon written request by a qualifying carrier:

(a) establishing that the carrier's fuel costs (for like fuel purchases) have increased by more than 6 percent from the lowest average fuel cost in any seven consecutive day period within the preceding three months;

(b) identifying the percentage increase in fuel costs and the percentage increase in rates necessary to offset the increased fuel costs; and

(3) The commission may grant approval for decrease or increase to an existing surcharge upon written request by a qualifying carrier establishing that fuel costs have decreased or increased by more than 3 percent since the surcharge was approved.

(4) The surcharge or amendment to the surcharge becomes effective on the date approved by the commission and applies to all transportation after that date until expiring or being terminated by the commission.

(5) The surcharge shall be effective for 90 days from the date of approval by the commission, but may be extended for an additional 90 days. Amendments do not extend the effective period. Before or after the expiration of the times permitted by this rule, if the carrier determines that fuel cost increases are likely to remain permanent, an application for a permanent rate increase may be made.

(6) Fuel costs must be monitored by the motor carrier throughout the duration of the surcharge. If, at any time, it appears that fuel costs have decreased by more than 3 percent within a seven consecutive day period, the carrier shall then apply for a decrease in the surcharge.

(7) Upon complaint by any interested person or upon the commission's own motion a surcharge may be reviewed for accuracy and compliance with this rule in both application and implementation. If the surcharge is found to be excessive, in addition to all other remedies provided by law, the carrier must provide each affected shipper with a rebate of the excessive charge.

(8) As a condition to granting approval for a surcharge, the commission may impose any lawful terms it deems necessary restricting the application of this rule.

(9) The provisions of this rule are not applicable to rates charged by contract carriers unless the contract for carriage so allows.

(10) Nothing in this rule prohibits a motor carrier from filing an application for authority to increase rates on a permanent basis.

(11) The person or entity, whether agent or contractor or other, actually incurring the cost of the fuel shall receive the benefit of any fuel surcharge approved by the commission, subject to all other provisions of this rule.

(12) The commission determines that fuel cost increases and the surcharge relief provided herein are good cause for rate changes to be effective on less than 45 day's notice, pursuant to section 69-12-504, MCA.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-501 through 69-12-511, MCA
History: NEW, 1992 MAR p. 2647, Eff. 12/11/92.

Mont. Admin. R. 38.3.3605 Temporary Rate Reductions

(1) All intrastate motor carriers operating under commission approved tariffed rates may apply for temporary rate reductions under the provisions of this rule.

(2) The commission may grant approval for a temporary rate reduction upon written request by a qualifying carrier:

(a) establishing that seasonal demands or special circumstances appear to justify the rate reduction; and

(b) establishing that the rate should be allowed on an experimental basis to verify these appearances.

(3) No temporary rate shall be approved if found to be noncompensatory.

(4) The temporary rate becomes effective on the date approved by the commission and applies to all transportation after that date until expiring or being terminated by the commission.

(5) The temporary rate shall be effective for 90 days from the date of approval by the commission. After the expiration of the time permitted by this rule, if the carrier determines that temporary rates have verified the appearance that seasonal demands or special circumstances justify the reduction as being permanent, an application for a permanent rate reduction may be made.

(6) Temporary rates must be monitored by the motor carrier throughout their duration.

(7) Upon complaint by any interested person or upon the commission's own motion a temporary rate may be reviewed for accuracy and compliance with this rule in both application and implementation.

(8) As a condition to granting approval for a temporary rate, the commission may impose any lawful terms it deems necessary restricting the application of this rule.

(9) The provisions of this rule are not applicable to rates charged by contract carriers unless the contract for carriage so allows.

(10) Nothing in this rule prohibits a motor carrier from filing an application for authority to decrease rates on a permanent basis.

(11) The commission determines that temporary rates as provided herein are good cause for rate changes to be effective on less than 45 days notice, pursuant to 69-12-504 MCA.

History

Authorizing statute(s): Sec. 69-12-201, MCA
Implementing statute(s): Secs. 69-12-501 through 69-12-511, MCA
History: NEW, 1992 MAR p. 2647, Eff. 12/11/92.

Chapter 38.4 Railroads

Authorizing statute(s): Sec. 69-2-101, MCA
Implementing statute(s): Secs. 69-1-102, 69-14-111 and 69-14-301, MCA
History: NEW, 1987 MAR p. 699, Eff. 5/29/87; REP, 1998 MAR p. 1184, Eff. 5/1/98.

Subchapter 38.4.3 Discontinuance of Station Agents, Stations and Sidetracks

Mont. Admin. R. 38.4.301 Discontinuance of Station Agents, Stations and Sidetracks

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Secs. 69-1-110 and 69-2-101, MCA
Implementing statute(s): Secs. 69-1-102, 69-14-111, 69-14-117, 69-14-202, 69-14-813, and 69-14-1001, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78; REP, 1998 MAR p. 1184, Eff. 5/1/98.

Subchapter 38.4.4 Train Clearance; Platform Clearance

Mont. Admin. R. 38.4.401 General Provisions

(1) Subsequent to October 27, 1978, in all construction or reconstruction of tracks or structures adjacent thereto, on all railroads over which freight cars are transported or proposed to be transported, minimum clearances, hereinafter set forth, shall be allowed.

(2) A railroad company shall not operate freight cars, locomotives or other rolling equipment over tracks constructed subsequent to October 27, 1978, or tracks adjacent to buildings constructed or entirely reconstructed subsequent to that date, wherein the clearances are less than those prescribed in these regulations.

(3) Overhead clearances authorized in these regulations are applicable to tracks on which freight cars having a height to running board of fifteen (15) feet six (6) inches or less are transported. In the case of cars or loads exceeding fifteen (15) feet six (6) inches, ARM 38.4.416(1) and 38.4.417 must be complied with.

(4) Side clearances authorized in these regulations are applicable to tracks on which freight cars having an overall width not greater than ten (10) feet ten (10) inches are transported. In the case of cars or loads exceeding ten (10) feet ten (10) inches, ARM 38.4.416(2) and 38.4.417 must be complied with.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.402 Exemptions

(1) When the overhead or side clearances between a track and any building, structure or facility are less than the minimum prescribed in these regulations but where created prior to October 27, 1978, the minimum clearances prescribed herein shall be provided whenever the building, structure or facility is relocated or entirely reconstructed; however, the public service commission will consider specific requests for the future continuance of existing clearances at such reconstructed building, structure or facility when application thereof has been made as provided in (3) of this rule.

(2) Where restricted clearances are necessary nothing herein shall be construed as preventing the movement of material over tracks or placed adjacent to tracks when such material is necessary in the construction or maintenance of such tracks, nor in the movement of special work equipment used in the construction, maintenance or operation of the railroad, provided such movements shall be carried on under the conditions as are necessary to provide for the safety of all concerned; nor shall these rules be applicable, provided reasonable safety precautions are observed, during periods of actual emergency due to wrecks, derailments, washouts and like conditions.

(3) If in any particular case, exemption from any of the requirements herein is deemed necessary by the carrier concerned, the public service commission will consider the application of such carrier for such exemption when accompanied by a full statement of the conditions existing and the reason why such exemption is asked. Any exemption so granted will be limited to the particular case covered by the application.

(4) The public service commission reserves the right to modify after due notice to all interested parties any of the provisions of these regulations in specific cases, when, in its opinion, safety of railroad employees, public safety, convenience or necessity would be served by so doing.

(5) Locomotive terminal facilities and car shops are exempt from these regulations.

(6) It is not intended that ARM 38.4.401 is adopted for the purpose of regulating industries other than common carrier railroads and street railroads. The common carrier railroads are not required by this order to police properties of industries other than those owned and operated by the carriers.

(7) Restricted clearances in the case of new construction or reconstruction of loading platforms owned and operated by industries, other than the common carriers, shall not be cause to refuse delivery or shipping facilities but each separate case may be called to the attention of the public service commission whereupon each case of restricted clearance shall be treated upon its merits.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485; Eff. 10/27/78.

Mont. Admin. R. 38.4.403 Definitions

(1) "Overhead clearance" is that distance measured along a line which is perpendicular to and joins a horizontal plane passing through the top of the highest rail and the lowest point of the overhead structure or obstruction.

(2) "Side clearance" is the shortest distance from centerline of track to a structure or obstruction at the side of the track.

(3) "Track clearance" is the shortest distance between the centerlines of adjacent tracks.

(4) "Height of a freight car" is the distance between the top of rail and the top of running board.

(5) "Width of a freight car" is twice the distance from the centerline of the car to the extreme outside part thereof.

(6) "Icing platforms." The term "Icing Platform" shall include structures used in performing the service of icing, precooling, heating, ventilating and servicing of cars used in the handling of commodities requiring the above services.

(7) "Constituted authority" shall mean the Public Service Commission of the State of Montana.

(8) "Overcrossing" when used in this rule means any point or place where a highway crosses a railroad by passing above the same. Clearances shall be as specified in ARM 38.4.404 and ARM 38.4.406.

(9) "Undercrossing" when used in this rule means any point or place where a highway crosses a railroad by passing under the same. Existing laws pertaining to highways shall prevail.

(10) "Enforcement" shall be by the Public Service Commission of the State of Montana.

(11) "Crossing." An intersection of a railroad and a public crossing in the same place, the means by which one crosses from one side of the railroad to the other.

(12) "Sidetrack or spurtrack." A track which extends a short distance from a main line on branch line, may serve one or more industries.

(13) "Station." A point designated in tariffs and time tables where train(s) may stop for traffic, or to enter or to leave main tracks(s) , or from which fixed signals are operated, and where freight will be received from and delivered to the general public.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.404 Overhead Clearance in General

(1) Overhead clearance in general is required to be at least twenty-two (22) feet six (6) inches.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.405 Overhead Clearance in Buildings

(1) The overhead clearance inside of entirely enclosed buildings may be reduced to eighteen (18) feet, provided that this clearance shall apply only to tracks terminating within the building, and further provided, that when an overhead clearance of less than twenty-two (22) feet six (6) inches is established therein, all cars, locomotives or other equipment shall be brought to a stop before entering such enclosed building, the conditions provided to require such stop to be approved by constituted authority.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.406 Overhead Clearance in Tunnels and Bridges

(1) Minimum overhead clearance in tunnels and through bridges may be decreased to the extent defined by the half-circumference of a circle having a radius of eight (8) feet and tangent to a horizontal line twenty-two (22) feet six (6) inches over top of rail at a point directly over the centerline of track.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.407 Overhead Clearance -- All Other Structures

(1) Minimum overhead clearance as prescribed in ARM 38.4.404 may be decreased to the extent defined by the half-circumference of a circle having a radius of eight (8) feet six (6) inches and tangent to a horizontal line twenty-two (22) feet six (6) inches above top of rail at a point directly over the centerline of track.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.408 Overhead Clearance of Wires

(1) All wires in general shall have a minimum vertical clearance of not less than that specified by the National Electrical Safety Codes as published by the U.S. Department of Commerce, National Bureau of Standards, or any revisions or amendments thereto.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.409 Side Clearances in General

(1) Side clearance in general is required to be at least eight (8) feet six (6) inches.

(2) To further reduce operational hazards, it is recommended that, wherever practicable, all posts, pipes, warning signs and other small obstructions be given a side clearance of ten (10) feet.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.410 Side Clearance at Platforms

(1) Platforms eight (8) inches or less above top rail require at least four (4) feet eight (8) inches clearance.

(2) Platforms four (4) feet or less above top rail require at least five (5) feet nine (9) inches or seven (7) feet three (3) inches clearance. Whether the five (5) feet nine (9) inches or seven (7) feet three (3) inches clearance shall be used in any particular case shall be at the discretion of this Commission. Such determination will be made upon written application by the railroad setting forth the details of each particular installation.

(3) Platforms four (4) feet six (6) inches or less above top of rail--when used principally for loading or unloading refrigerator cars require at least eight (8) feet clearance.

(4) Icing platforms and supports require at least five (5) feet nine (9) inches clearance.

(5) Platforms other than as set out above require at least eight (8) feet six (6) inches clearance.

(6) Retractable platforms, either sliding or hinged, which are attached to a permanent structure shall be so designed that when not in use no part of such retractable platform shall fall within the clearance limits herein prescribed for a platform of that height above the top of the rail.

(7) Platforms defined under (1) above may be combined with either (2) or (3) provided that the lower platform present a level surface from a point not more than four (4) feet eight (8) inches from centerline of track to the face of the wall of the platform with which it is combined. No other combinations will be permitted.

(8) Platforms which were constructed prior to October 27, 1978, may be extended at existing clearances.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.411 Side Clearance -- Bridges and Tunnels

(1) The minimum side clearance for bridges and tunnels is eight (8) feet.

(2) For required clearance of upper section of bridges and tunnels see ARM 38.4.406.

(3) Side clearance in through bridges and tunnels may be decreased to the extent defined by the half circumference of a circle having a radius of eight (8) feet and tangent to a horizontal line twenty-two (22) feet six (6) inches above top of rail directly above centerline of track.

(4) Bridges--Lower section and structures four (4) feet high or less. Through bridges supporting track affected, hand rails, water barrels and refuge platforms on bridges and trestles, water columns, oil columns, block signals, cattle guards and cattle chutes, or portions thereof, four (4) feet or less above top of rail may have clearances decreased to the extent defined by a line extending diagonally upward from a point level with the top of rail and five (5) feet distant laterally from centerline of track to a point four (4) feet above top of rail and eight (8) feet distant laterally from centerline of track: Provided that the minimum clearance for hand rails and water barrels shall be seven (7) feet six (6) inches and the minimum clearance for fences of cattle guards shall be six (6) feet nine (9) inches.

(5) Clearances authorized in (4) , except as provided for hand rails and water barrels, shall not be permitted on any new or entirely reconstructed through bridges where the work of trainmen or yardmen requires them to be upon the decks of such bridges for the purpose of coupling or uncoupling cars in the performance of switching service on a switching lead.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.412 Side Clearance -- Material or Merchandise

(1) No merchandise, material or other articles shall be placed or stored on ground or platforms adjacent to any track at a distance less than eight (8) feet six (6) inches from the centerline of track, except in cases of maintenance or emergency when such material is to be used within a reasonable period of time or where local conditions make compliance with this note impossible.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.413 Side Clearance -- Miscellaneous

(1) Cattle guards and cattle chutes (see ARM 38.4.411 (4) and (5) .)

(2) Hand rails on bridges and trestles (see ARM 38.4.411(4) .)

(3) Switch boxes, switch operating mechanism necessary for the control and operation of signals and interlockers projecting four (4) inches or less above the top of the rail require a minimum clearance of three (3) feet.

(4) Mail cranes and train order stands when not in operative position require a minimum clearance of eight (8) feet six (6) inches.

(5) Oil columns require a minimum clearance of eight (8) feet (see ARM 38.4.411(4) and (5) .)

(6) Poles supporting trolley contact require a minimum clearance of eight (8) feet three (3) inches. Conductors supplying motive power to track affected--of bracket construction.

(7) Poles other than trolley poles require a minimum clearance of eight (8) feet six (6) inches.

(8) Signals and switch stands three (3) feet high or less when located between tracks where not practicable to provide clearances otherwise prescribed in this order require a minimum clearance of six (6) feet.

(9) Signals and switch stands other than in (8) above require a minimum clearance of eight (8) feet.

(10) Water barrels on bridges (see ARM 38.4.411(4) an (5) .)

(11) Water columns require a minimum clearance of eight (8) feet (see ARM 38.4.411(4) and (5) .)

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.414 Side Clearances on Curved Track

(1) Side clearances on all structures adjacent to curved track shall be increased as necessary to give the equivalent of tangent track clearances.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.415 Track Clearance

(1) The minimum distance between the centerlines of parallel standard gauge railroad tracks, which are used or proposed to be used for transporting cars, engines, motors or like equipment, shall be fourteen (14) feet, except as hereinafter prescribed.

(2) The centerline of any standard guage track, except a main track or a passing track, parallel and adjacent to a main track or a passing track, shall be at least fifteen (15) feet from the centerline of such main track or passing track; provided, however, that where a passing track is adjacent to and at least fifteen (15) feet distant from the main track, any other track may be constructed adjacent to such passing track with clearance prescribed in (1) of this rule.

(3) Minimum clearances between centerlines of parallel team, house or industry tracks shall be thirteen (13) feet.

(4) The centerline of any standard gauge ladder track constructed parallel to any other track, shall have a clearance of not less than twenty (20) feet from the centerline of such other track.

(5) Existing tracks may be extended at clearances existing prior to October 27, 1978.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.416 Marking of Cars of Excess Size

(1) Each car of a height exceeding fifteen (15) feet six (6) inches from top of rail to top of running board, the movement of which is hereby authorized, shall be marked, stenciled or placarded, and such markings maintained in a legible condition to read:

(2) Each car of a width exceeding ten (10) feet ten (10) inches, the movement of which is hereby authorized, shall be marked, stenciled or placarded and such markings maintained in a legible condition to read:

"THIS CAR

EXCESS

HEIGHT"

The words "EXCESS HEIGHT" to occupy the greater portion of a rectangular space 7" x 10" enclosed within a 3/4" solid border. The markings required shall be made permanent on owned cars as soon as practicable. Lettering and border of signs shall be of colors contrasting to that of the car body. All such required marking and placarding shall be placed on the side adjacent to the ladder or hand-holds near the floor line of the car at each of the four corners.

"THIS CAR

EXCESS

WIDTH"

The words "EXCESS WIDTH" to occupy the greater portion of a rectangular space 7" x 10" enclosed within a 3/4" solid border. The markings required shall be made permanent on owned cars as soon as practicable. Lettering and border of signs shall be of colors contrasting to that of the car body. All such required marking and placarding shall be placed on the side adjacent to the ladder or handholds near the floor line of the car at each of the four corners.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.417 Operation of Excess Dimension Loads

(1) Each open top car containing lading of a height exceeding fifteen (15) feet six (6) inches above top of rail, or which extends laterally more than five (5) feet five (5) inches from the centerline of the car, the movement of which is hereby authorized, shall be marked, stenciled or placarded, and such markings maintained in a legible condition to read:

(2) The movement of open top cars containing lading which extends laterally in excess of five (5) feet five (5) inches is hereby authorized only if the lading is of such a nature that it cannot practically be reduced in dimensions.

(3) The movement of all open top cars having lading in excess of fifteen (15) feet six (6) inches in height, or which extends laterally in excess of five (5) feet five and one half (5½) inches from centerline of car will be authorized by written notice stating the total number of such cars, and advising that no member of the train crew is required to ride on top of such high car or the side of any such wide car.

(4) A written notice shall be delivered to every train containing any car, the lading of which extends laterally in excess of 5'5½" from the centerline of the car or in excess of 15'6" in height above top of rails, informing the crew of the train that the train includes such car or cars, stating the total number thereof and advising that no member of the train crew is required to ride on the side of any such wide car or top of any such high car.

(5) Yard Supervisors shall be given notification sufficiently in advance of the arrival of such wide loads as described in (3) as to enable them to take necessary precautions to safeguard employees in yard.

(6) Open top cars containing lading having an overall height in excess of fifteen (15) feet six (6) inches above top of rail, if otherwise in compliance with these requirements, and the nature of which precludes the possibility of employees passing over the cars, are exempt from the provisions of (3) , (4) , and (5) , but written notice must be given to all members of train crew informing them of the presence of such loads.

(7) Exemptions. The common carrier railroads are hereby authorized to move excess height loads and width loads, as described in (1) over roads or portions thereof, without complying with the provisions of (1) , provided that clearances equivalent to the minimum herein prescribed for cars having a height of fifteen (15) feet six (6) inches and width of ten (10) feet ten (10) inches are maintained.

"THIS CAR "THIS CAR

EXCESS OR EXCESS

HEIGHT" WIDTH"

The words "EXCESS HEIGHT" or "EXCESS WIDTH" to occupy the greater portion of a space 7" x 10" enclosed within a 3/4" solid border. Letters and border to be of contrasting colors. All such required markings and placarding shall be placed on the side adjacent to the ladder or handholds near the floor line of the car at each of the four corners where practicable, and in addition one each of such signs shall be placed on each side of the load in a conspicuous position.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Subchapter 38.4.5 Sanitation and Adequate Shelter For Certain Railroad Employees

Mont. Admin. R. 38.4.501 Definitions

(1) The words and phrases used herein shall be construed as follows, unless the context shall otherwise require;

(a) The term "localized facilities," when used herein, shall mean those facilities of sanitation or shelter for the welfare and health of railroad employees, including but not limited to trainmen, enginemen, yardmen, maintenance of way employees, highway crossing watchmen, clerical, platform, freight house and express employees, station agents and telegraphers, which facilities are to be maintained at points where employees are required to report for duty or are relieved from duty.

(b) The term "highway crossing shanty," when used herein, shall mean a building at which public highway crossing watchmen are regularly stationed for performance of their duties.

(c) The term "running facilities," when used herein, shall mean those facilities of sanitation or shelter to be maintained on engines, trains or cabooses for the welfare and health of railroad trainmen, enginemen and yardmen.

(d) The term "camp facilities," when used herein, shall mean those facilities of sanitation or shelter for the welfare and health of maintenance of way employees, when such facilities are to be maintained at railroad camps of a permanent or seasonal nature, or are located in moveable cars when used for housing maintenance of way employees.

(e) The term "crossing watchmen," when used herein, shall include such employees, except members of train and yard crews, as are used in the flagging of public highway crossings or in the actual operation of manually controlled gates, public highway crossing signals, or other appurtenances having to do with the protection of such crossings.

(f) The term "tool house or shelter facilities," when used herein, shall mean the shelter facilities maintained for maintenance of way employees at points where such employees report for duty or are relieved from duty.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.502 Localized Facilities

(1) Adequate localized facilities, as defined in ARM 38.4.501(1) (a) hereof, consisting, as in each location may be necessary, of the following facilities, installed and maintained as specified, shall be furnished by all railroad companies under the jurisdiction of this Commission, if, in the judgment of the Commission, after hearing thereon, such facilities, or any of them, are necessary for the welfare and health of the above mentioned employees:

(a) There shall be provided a locker room where the employees may change their clothing, which shall be separated by solid partition from any toilet room then existing or which will be provided under the provisions of these regulations. The area of such room shall not be less than eighty (80) square feet of clear floor space for ten (10) employees, and adequate space to be added for additional employees. Necessary benches and tables shall be provided.

(b) Where lockers are not now provided, a sufficient number of lockers shall be provided, the dimensions of which shall not be less than seventy-two (72) inches high, twelve (12) inches wide and eighteen (18) inches deep, save that, in such locations where larger lockers shall be deemed necessary, they shall be provided as shall be agreed to between the Railroad Company and its employees. Said lockers shall be equipped on the inside with a top shelf, and not less than one clothes hook on each side, a hanger bar, and also sufficient openings in the door for the purpose of ventilation.

(c) Where running water and sewers are available under reasonable conditions, or where physical conditions and ordinances permit the use of septic tanks in lieu of sewers, sufficient wash bowls and flush toilets shall be provided.

(d) If practical, every toilet room shall be so located as to open to the outside light and air by windows or skylights.

(e) All inside toilet facilities shall be made of materials impervious and resistant to moisture, and shall be fitted with individual flush systems. In the case of urinals, the water may be allowed to run continuously.

(f) The walls of compartments or partitions between toilets may be less than room height, but the top shall not be less than five (5) feet from the floor and the bottom not more than one (1) foot from the floor.

(g) An adequate supply of cool, sanitary water, satisfactory for drinking purposes, shall be made available to all employees. When necessary, this water shall be provided in suitable, sanitary containers, conveniently placed for the use of the above mentioned employees, and each container will be equipped with a faucet or other dispenser. The Company shall furnish single service paper drinking cups.

(h) Locker and toilet rooms shall be adequately heated, ventilated, lighted, and provided with screens, and said facilities shall be kept reasonably clean by the employer.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.503 Running Facilities

(1) Cabooses and locomotives used in road service must be provided with toilet facilities, toilets to be of retention type, where a locomotive consists of one or more road diesel units, the lead unit shall be equipped with toilet facilities.

(a) All new road diesel units and cabooses intended for road service (not including yard switch engines or cabooses used entirely within yard service) contracted for and purchased subsequent to May 1, 1978, shall be equipped with toilet facilities. Such sanitary facilities shall be kept reasonably clean and in sanitary condition.

(b) All yard diesels shall have the floors cleaned and the windows washed at reasonable intervals.

(c) Cabooses shall be maintained in a clean and sanitary condition, provided that it shall be the duty of the employees to keep any assigned cabooses cleaned and sanitary and the employer shall offer such cleaning supplies as are reasonably necessary to maintain a clean and sanitary condition in such assigned cabooses.

(d) An adequate supply of cool, safe, water, satisfactory for drinking purposes shall be made available for the use of trainmen, enginemen and yardmen. Suitable sanitary containers, equipped with a faucet or other dispenser, shall be maintained on cabooses and locomotives, and single-service paper drinking cups shall be furnished by the company.

(e) Every caboose used in any train in this state, regardless of service, shall be provided with a stove or other adequate means of heating, properly ventilated. A sufficient amount of fuel for the trip or shift shall be made available.

(f) Cabooses contracted for and purchased after May 1, 1978, shall be equipped with washing facilities, for washing face and hands.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.504 Crossing Watchmen Facilities

(1) Adequate shelter shall be furnished for crossing watchmen, and said shelter shall be properly sealed and heated.

(2) If, in the judgment of the Commission, it is practical, toilet and washing facilities will be furnished as the commission may require, after inspection and agreement or hearing in the matter.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Mont. Admin. R. 38.4.505 Camp Facilities

(1) When employees are furnished meals in camp cars, as hereinbefore defined, adequate sanitary facilities and space shall be provided.

(2) Where cars, other than passenger coaches, are furnished for sleeping quarters, each occupant of said car shall have a minimum of 250 cubic feet of air space. Where passenger coaches are furnished, the Commission may designate the number of men to be housed in each coach.

(3) All camp cars will be properly heated, ventilated, sealed and lighted; where possible camp cars shall be electrically lighted and, during the period of the year in which insects are prevalent, the doors and windows will be screened.

(4) All extra and permanent gangs will be furnished with shower car, with running hot and cold water. Adequate toilet facilities will be furnished for all employees.

(5) Assignment of a camp man or janitor by the employer in all gangs over twenty (20) men will be made for the purpose of keeping the cars and grounds in a clean and sanitary manner.

(6) When extra and permanent gangs are furnished with kitchen car or cars, the same shall be well equipped with adequate kitchen facilities. Such kitchen cars shall be maintained in a clean and sanitary condition.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1486, Eff. 10/27/78.

Mont. Admin. R. 38.4.506 Tool House or Shelter Facilities

(1) Adequate shelter facilities, located in tool houses or other suitable buildings, consisting, as in the individual case may be necessary, of the following appliances, installed and maintained as specified, shall be furnished by all railroad companies under the jurisdiction of this Commission for regularly assigned maintenance of way employees, at points where such employees are required to report for duty or are relieved from duty, as, in the judgment of the commission, after investigation, and hearing, such facilities, or any of them, are necessary for the welfare and health of the above mentioned employees:

(a) There shall be provided space, adequate for the number of employees using said facilities, where employees may change their clothing, furnished with tables and benches or chairs in accordance with the number of employees using the facilities. Where lockers are not now provided, a sufficient number of metal lockers shall be provided to meet the requirements of said employees.

(b) During the period of the year in which insects are prevalent, screens will be furnished for the windows and doors.

(d) Where running water and sewerage facilities are reasonably available, flush toilets and washing facilities will be provided. Otherwise, an outside toilet will be furnished and maintained in accordance with the provisions of ARM 38.4.507, provided, however, the provisions of this sub-section shall not be applicable where toilets and washing facilities are otherwise made reasonably available for maintenance of way employees.

(e) If necessary, a sufficient supply of safe running or well water will be made reasonably available, and single service paper drinking cups will be furnished.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1486, Eff. 10/27/78.

Mont. Admin. R. 38.4.507 Construction and Maintenance of Outside Toilets

(1) The installation and maintenance of outside toilet facilities for use by employees coming under the provisions of 69-14-116 , MCA, will be permitted in those situations where it is found otherwise impractical to install inside toilet facilities.

(2) Where outside toilets are installed and maintained in accordance with the above paragraph, they shall be located on ground that is well drained and where their location will in no way endanger the public health.

(3) A suitable approach shall be provided.

(4) All windows, ventilators, and other openings, except doors, shall be screened to prevent the entrance of insects. A separate ventilator duct, with hood, shall be provided for the vault, and shall extend above the roof. The outside of the structure shall be banked to prevent the entrance of rodents.

(5) The entire installation must be kept clean and sanitary. Milk of lime (freshly slaked lime) , or other equally effective disinfectant, shall be used in the vault and in the urinal trough, in sufficient quantities and at frequent intervals. The floors, seats and urinals must be scrubbed as often as necessary. A self closing door must be provided and the structure must be of tight construction.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1486, Eff. 10/27/78.

Mont. Admin. R. 38.4.508 Existing Shelters and Sanitary Facilities

(1) Any shelter and sanitary facilities which have been constructed and are presently being maintained in accordance with an agreement heretofore entered into between the parties in interest, shall be deemed a complete compliance with these rules and regulations, until such time as a specific complaint is filed with the Commission claiming that, on account of changes made in the uses of the facilities, such facilities are inadequate. Provided, nothing herein shall be construed to abrogate or limit any agreement between the interested parties now in effect which provides for better or more adequate facilities, or to prevent the negotiation of such an agreement in the future.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1486, Eff. 10/27/78.

Mont. Admin. R. 38.4.509 Application for Relief from Enforcement

(1) Any railroad company being of the opinion that the application or enforcement of this order, or any part thereof, at any particular place, will be unjust or unreasonable, may apply to the commission for relief therefrom, and the commission may, by written order, after notice and hearing, relieve said railroad company from the application of this order, or any part thereof, at such place or modify the same in such manner and to such extent as shall be just and reasonable.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1486, Eff. 10/27/78.

Mont. Admin. R. 38.4.510 Reasonable Time to Comply Upon Determination of Inadequate Facilities

(1) In the absence of specific complaint, present facilities shall be deemed adequate. In the event of a complaint filed hereafter in respect of such facilities, and the commission shall find, after notice and hearing, the same inadequate, the railroad company involved shall have a reasonable time in which to complete the work required in the light of the then existing situation, circumstances and conditions.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1486, Eff. 10/27/78.

Mont. Admin. R. 38.4.511 Petition to Commission Upon Failure to Comply

(1) If a complaint within the purview of these rules is not satisfactorily adjusted after a period of thirty (30) days following the written notice thereof to the division superintendent by an authorized member of a legislative committee representing employees of a company to which these rules and regulations apply; or, in the absence of any legislative committee representative, some other properly authorized representative; the Montana public service commission, upon proper petition and hearing, may issue an order directing that conditions complained of be corrected. When a hearing on such petition and complaint is ordered held by such commission, due and proper notice shall be given to all interested parties, and the complaining and petitioning party will have the burden of establishing the fact of which it complains.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1486, Eff. 10/27/78.

Mont. Admin. R. 38.4.512 Commission Shall Have Authority to Interpret Rules

(1) In the event of any dispute or disagreement between any employee and any employer as to the intent, meaning and interpretation of any or all of the rules hereinabove set forth, the commission reserves unto itself the right to set a hearing thereon, and to issue appropriate order or orders, so as to effectuate and carry out the intent and purpose of said rules.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-116, MCA
History: NEW, 1978 MAR p. 1486, Eff. 10/27/78.

Subchapter 38.4.6 Wrecks and Accidents

Mont. Admin. R. 38.4.601 Wrecks and Accidents

(1) All railroad companies operating in the state of Montana are required pursuant to the provisions of section 69-14-252 , MCA, and the commission's minute entry of April 4, 1945 thereunder, to report to the public service commission, by wire, within 24 hours, any wreck or accident on its line.

(2) In addition to immediate notification, each company shall file a copy of the preliminary accident report form with the commission, for each such accident.

History

Authorizing statute(s): Sec. 69-14-116, MCA
Implementing statute(s): Sec. 69-14-252, MCA
History: NEW, 1978 MAR p. 1485, Eff. 10/27/78.

Subchapter 38.4.7 Fees

Mont. Admin. R. 38.4.701 Railroad Application and Petition Fees

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 69-14-111, MCA
Implementing statute(s): Sec. 69-14-111, MCA
History: NEW, 1984 MAR p. 1129, Eff. 8/17/84; REP, 2000 MAR p. 1668, Eff. 6/30/00.

Mont. Admin. R. 38.4.702 Annual Reports and Fees

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 69-14-111, MCA
Implementing statute(s): Sec. 69-14-251, MCA
History: NEW, 1984 MAR p. 1129, Eff. 8/17/84; REP, 2000 MAR p. 1668, Eff. 6/30/00.

Authorizing statute(s): 69-14-116, MCA
Implementing statute(s): 69-14-116, MCA
History: NEW, 1991 MAR p. 1843, Eff. 10/1/91; REP, 1993 MAR p. 3041, Eff. 12/24/93.

Chapter 38.5 Utility Division

Subchapter 38.5.1 Minimum Rate Case Filing Standards for Electric, Gas, and Private Water Utilities

Mont. Admin. R. 38.5.101 Letter of Transmittal

(1) The letter of an electric, natural gas, or private water utility transmitting a rate schedule or a part thereof to the commission for filing, to supersede, supplement or otherwise change the provisions of a rate schedule required to be on file, shall:

(a) List the documents submitted with the filing;

(b) State the names and addresses of those to whom copies of the rate schedule have been mailed;

(d) State the reasons for the proposed changes;

(e) State the estimated number of customers whose cost of service will be affected and annual amounts of either increases or decreases, or both, in cost of service to such customers.

(f) Name an employee of the utility who shall be responsible for answering questions concerning the application, or for referring inquiries to appropriate members of the utility staff.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.102 Applications for Rate Increases

(1) Applications for rate increases exceeding one hundred thousand dollars annually shall include the cost of service to be supplied and shall include the additional material required in ARM 38.5.103 to 38.5.175 and 38.5.179 to 38.5.183, inclusive, minimally. Further or additional materials may be supplied by the utility if the utility believes such materials are necessary.

(2) Three copies of the letter of transmittal and three copies of all materials required in ARM 38.5.103 to 38.5.175 and 38.5.179 to 38.5.183, inclusive, shall be filed with the commission at the time of application. Montana consumer counsel shall receive two copies of the same materials.

(3) All or any part of the requirements of these rules may be waived by a quorum of the commission upon a showing of good cause. Waiver of any requirements, however, shall not preclude the commission from requiring the filing of specific cost data and material sufficient to support the application.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77; AMD, 1993 MAR p. 1669, Eff. 7/30/93.

Mont. Admin. R. 38.5.103 Comparison of Sales, Services and Revenues

(1) The application for a rate increase shall include a statement comparing sales and services and the revenues therefrom under the rate schedules proposed to be superseded or supplemented and the proposed changed rate schedules. Such comparisons shall be applied to the transactions for the 12 months of the test period. Such comparisons should be made for each rate schedule.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.104 Comparison of Rates

(1) A billing comparison of the proposed rates with present rates of the filing public utility for similar sales or services shall be included in the application for a rate increase.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.105 Cost of Service Under the New Rates

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77; REP, 1993 MAR p. 1669, Eff. 7/30/93.

Mont. Admin. R. 38.5.106 Analysis of System Costs for a Twelve Month Historical Test Year

(1) The statement of the cost of service shall contain an analysis of system costs as reflected on the filing utility's books for a test period consisting of 12 months actual experience ending no earlier than 9 months prior to the date of filing of the data required by ARM 38.5.101 and 38.5.105, unless good cause be shown. This analysis shall include the return, taxes, depreciation, and operating expenses, and an allocation of such costs to the services rendered. The information submitted with the statement shall show the data itemized below for the test period, as reflected on the books of the filing public utility. Any proposed adjustments to book costs shall be explained in writing. Such adjustments shall be shown separately and shall be fully supported, including schedules showing their derivation, where appropriate. However, no adjustments shall be permitted unless based on changes in facilities, operations, or costs which are known with certainty and measurable with reasonable accuracy at the time of the filing. No adjustment will be entertained unless it will become effective within 12 months of the last month of the test period as used in this section.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.107 Reference Data to Be Provided

(1) If any of the data required by ARM 38.5.106 is submitted by reference, copies of such data shall be provided to the commission within 15 working days from receipt of any written request for such data made by the commission staff or an intervenor.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.108 Other Data Relied on

(1) If the public utility has relied on data other than those in Statements A through N (see ARM 38.5.121 through 38.5.180) in support of its rate increase, such other data, appropriately identified and designated as such and separately stated, shall be submitted in addition to the data required by Statements A through N.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.109 Working Papers to Be Filed

(1) In the statements described in ARM 38.5.121 to 38.5.180, inclusive, certain items are designated as "working papers." Three sets of such working papers are to be filed at the time the Statements A through N are filed with the commission whether filed pursuant to ARM 38.5.102 or 38.5.194. Such working papers shall be available to intervenors on request.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77; AMD, 1993 MAR p. 1669, Eff. 7/30/93.

Mont. Admin. R. 38.5.110 Naruc or Fpc Uniform System of Accounts to Be Generally Followed

(1) All statements and schedules shall be prepared in accordance with general classifications set forth in the NARUC or FPC Uniform Systems of Accounts for the respective types of public utilities, provided that such action does not conflict with Montana law and the commission's rules and orders. If the utility believes that the NARUC or FPC classifications are inconsistent with this commission's orders, the applicant's treatment and the inconsistency shall be stated on all related materials disclosing full particulars properly cross-referenced to the filing. Computations and other information related to the inconsistency shall be available for examination by the staff and intervenors. Working papers supporting such statements and schedules shall be detailed so as to allow identification of individual NARUC or FPC accounts relative to the books of record of the utility.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.111 Working Papers Sufficient to Support the Filing Shall Be Available on Commission Request

(1) Any utility filing a rate increase shall be responsible for preparing prior to filing and for maintaining after filing, work papers sufficient to support the filing. Any request for work papers other than those required in ARM 38.5.121 to 38.5.180, inclusive, shall be answered within 15 working days upon receipt of said request by the utility. In the event that there shall be a delay beyond said period the utility shall notify the commission and present a written explanation therefore. If such written explanation does not set forth good cause for refusal or delay response to the request, the commission shall so notify the utility in writing. If the utility then fails to answer the request promptly, the commission may issue such order as is reasonable under the circumstances. In addition to the working paper support, the following specific material normally prepared by the filing utility, related to the test period and subsequent periods, shall be available for the commission's verification and analysis:

(a) Copies of monthly financial report;

(b) Copies of accounting analyses of balance sheet accounts;

(c) Complete trial balances of all the balance sheet accounts at the beginning and end of the 12 months of actual experience used for the filing;

(d) Analyses of the various miscellaneous revenues;

(e) Analyses of surplus and capital surplus accounts.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.112 Testimony on Accounting Data

(1) The filing utility shall provide a witness to testify that the cost statements, working papers, and other supporting data submitted as a part of the filing or maintained by the filing public utility in support of the filing which purport to reflect the books of the public utility do, in fact, set forth the results shown by such books. Rules ARM 38.5.121 to 38.5.180, inclusive, contain a description of Statements A through N required to be filed.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.121 Statement a -- Balance Sheet

(1) Statement A shall include the balance sheets as of the beginning and end of the test period, and the most recently available balance sheet.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.122 Statement B -- Income Statements

(1) Statement B shall include an income statement for the test period, and the most recently available income statement.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.123 Statement C -- Utility Plant Accounts

(1) Statement C shall include a statement showing in summary form Utility Plant by functional category of electric, gas or water utility plant, as the case may be. Working papers shall also be supplied to show the change in additions and retirements with regard to balances on Statement C.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.124 Working Papers -- Plant Addition and Retirement for Test Period

(1) Working papers shall show major production and transmission plant addition and retirement projects for the test period, brief descriptions thereof, approximate dates of commercial operation or retirement from service, and cost.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.125 Working Papers -- Showing Plant Accounts on Average Basis for Test Period

(1) Working papers shall show plant balances on a beginning and end of period basis averaged for the test period representing functional classifications and total plant. The effect of proposed adjustments, if any, on the average balances shall also be shown.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.126 Working Papers on Capitalizing Interest and Other Overheads During Construction

(1) Working papers shall include a complete statement of methods and procedures followed in capitalizing interest during construction and other construction overheads, including any policy changes, effective dates and reasons therefore for the test year.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.127 Changes in Intangible Plant Working Papers

(1) Working papers shall show any significant changes in intangible plant for the test year.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.128 Working Papers on Plant Not Used and Useful

(1) Working papers shall set forth the cost and description of plant carried on the company's books as utility plant which was not used and useful.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.129 Property Records Working Papers

(1) Working papers shall set forth a description of the continuing property records maintained by the utility, including methods and procedures used to price retirements. Any data required by this section which has been previously submitted to the Commission by the utility, pursuant to these rules, may be incorporated by specific reference.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.133 Statement D -- Accumulated Depreciation, Depletion and Amortization

(1) Statement D shall include a statement of the accumulated provision for depreciation, depletion and amortization by functional classifications as of the beginning of the test period and as of the end of the test period. Any claimed adjustments to the book amounts shall be shown in adjoining columns. All adjustments shall be clearly and fully explained in the supporting material submitted.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.134 Working Papers on Recorded Changes to Accumulated Depreciation, Depletion and Amortization

(1) Working papers shall include a summary of the following with respect to the book changes in each functional classification set forth in Statement D.

(a) Starting balance;

(b) Annual provision;

(d) Salvage;

(e) Removal costs;

(f) Adjustments, including particulars of any significant items;

(g) Ending balance.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.135 Working Papers on Depreciation, Depletion and Amortization Method

(1) Working papers shall include a description of the methods and procedures followed in depreciating, depleting or amortizing plant and recording abandonments by the utility if any policy change has been made effective since the period covered by the last annual report on FPC Form No. 1 or FPC Form No. 2 as filed with the FPC, or the annual report as filed with this Commission.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.136 Working Papers on Allocation of Overall Accounts

(1) With respect to each allocation of an overall account to obtain the amounts applicable to various functional groups of plant, provide a complete explanation of the method, procedures and significant data used in making the allocation.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.141 Statement E -- Working Capital

(1) Statement E shall show the computation of the working capital claimed as part of the public utility's rate base using averages. The statement shall show the respective components of the claimed working capital and shall be in such detail as to show how the amount of each component was computed.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.142 Balances for Materials, Supplies, Fuel Stocks

(1) Working papers shall set forth balances at the beginning and end of the test period for materials, supplies, and fuel stocks in such detail as to disclose, either by subaccounts regularly maintained on the books or by analysis of the principal items included in the main account, the nature of the charges included therein.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.143 Data Used in Computing Working Capital

(1) Working papers shall show the computations, crossreferences and sources from which the data used in computing claimed working capital is derived.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.146 Statement F -- Rate of Return

(1) Statement F shall show the percentage rate of return claimed. The statement shall show the cost of debt capital, preferred stock capital and the return on the stockholder's equity resulting from the overall rate of return claimed, based upon the utility's capitalization. In addition, items required in ARM 38.5.147 to 38.5.152, inclusive, shall be submitted as part of Statement F. In such cases wherein 50 percent or more of the common stock of the public utility is not held by the public but is owned by another corporation, the information required by ARM 38.5.147 to 38.5.152, inclusive, shall also be submitted to the extent applicable with respect to the debt, preferred stock and common stock of the parent company.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.147 Debt Capital

(1) Statement F shall also show the weighted average cost of debt capital based upon the following data for each class and series of long-term debt outstanding according to the most recently available balance sheet:

(a) Title;

(b) Date of issuance and date of maturity;

(d) Principal amount of issue;

(e) Net proceeds;

(f) Amount currently outstanding;

(g) Cost of money and yield to maturity based on the interest rate and net proceeds per unit outstanding determined by reference to any generally accepted table of bond yields;

(h) If issue is owned by an affiliate, state name and relationship of owner. Furnish a copy of the latest prospectus issued by the public utility, any superimposed holding company or subsidiary companies.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.148 Preferred Stock Capital

(1) Statement F shall also show the weighted average cost of preferred stock capital based upon the following data for each class and series of preferred stock outstanding according to the most recently available balance sheet:

(a) Title;

(b) Date of issuance;

(d) Par value of stated amount of issue;

(e) Issuance expenses;

(f) Net proceeds;

(g) Cost of money, that is, the dividend rate divided by net proceeds per unit or share;

(h) Amount outstanding;

(i) If issue is owned by an affiliate, then provide the name and relationship of owner.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.149 Common Stock Capital Working Papers

(1) Working papers shall show for each sale of common stock during the five year period preceding the most recently available balance sheet:

(a) Number of shares sold;

(b) Gross proceeds at offering price;

(d) Proceeds to the filing utility;

(e) Amount of issuance expenses;

(f) Net proceeds;

(g) Offering price per share;

(h) Net proceeds per share;

(i) Whether issue was offered to stockholders through subscription rights or to the public.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.150 Working Papers -- Stock Dividends, Stock Splits or Changes in Par or Stated Value

(1) Working papers shall include information respecting any stock dividends, stock splits or changes in par or stated value during five-year period preceding the date of the most recently available balance sheet and by months for the 12 month test period.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.151 Working Papers -- Common Stock Information

(1) Working papers shall include the following information on outstanding common stock for the five calendar years preceding the end of the test period and by months for the 12 month test period:

(a) Average number of shares outstanding;

(b) Earnings per average share for only the five years preceding the test year;

(d) Annual dividend rate per share;

(e) Dividends listed as percent of earnings;

(f) Average market price based on the monthly high and low.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.152 Schedule F-1 -- Reacquisition of Bonds or Pre-Ferred Stock

(1) If any bonds or preferred stock have been reacquired by the utility during the 18 months prior to filing, show full details in schedule F-1, including:

(a) Title or series;

(b) Principal amounts or par value reacquired;

(d) Gain or loss on reacquisition;

(e) Income taxes, if any, allocable to the gain or loss, and basis of allocation.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): . 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.156 Statement G -- Operating and Maintenance Expenses

(1) Statement G shall show the utility's operation and maintenance expenses according to each account of the Uniform Systems of Accounts for public utilities. The expenses shall be shown under appropriate columnar headings as follows for each functional classification:

(a) Operation and maintenance expense as booked, for the test period and the total for the test period;

(b) Claimed adjustments, if any, to expenses as booked;

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.157 Working Papers -- Adjustments to Operating and Maintenance Expenses

(1) Working papers shall show the 12 months of actual test period experience and the claimed adjustments there to, if any, by functional classifications. In the event operation and maintenance expenses as presented per books reflect any special accrual accounting entries for internal purposes, the effect there of shall be fully disclosed and explained. Any amounts not currently payable, except depreciation charged through clearing accounts included in operation and maintenance expenses, shall be fully explained.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.158 Working Papers -- Cost of Power and Gas

(1) Working papers shall show the total annual cost of power or gas purchased for the 12 months test period of actual experience, the claimed adjustments thereof, if any, and the total adjusted cost for the test period detailed by major category. If any of the prices are effective subject to refund, there shall be shown by major category and by commission docket number for the test period, the rate and the amount paid subject to refund.

(2) If the utility purchases and sells power under exchange or pooling argeements, the method of recording on books, total gross receipts and deliveries exchanged, total gross dollar amounts involved for such receipts and deliveries and details of such exchanges shall be submitted.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.159 Working Papers for Listed Expense Accounts

(1) With respect to the following listed expense accounts, detail shall be furnished as designated for the 12 months of the test period and for claimed adjustments. This shall include analytical details which will clearly disclose for each account a classification of principal charges and credits with all minor items grouped.

(a) Advertising expenses shall be separated by media utilized and classification of message in accordance with applicable Montana statutes.

(b) All other Administrative and General Expense accounts shall be presented in sufficient detail to allow reasonable verification of the amounts and type of charges incurred during the test period.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.160 Working Papers for Interdepartmental Trans- Actions

(1) If the expense accounts contain charges or credits from associated companies or nonutility departments of the utility, submit for each such associated company or nonutility department work papers showing the following:

(a) The amount of the charges or credits during the test period;

(b) The account classification or classifications charged or credited;

(d) The basis used in determining the amounts of the charges or credits.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.164 Statement H -- Operating Revenues

(1) Statement H shall show the utility's operating revenues from sales with related units of sales and other operating revenues according to revenue classifications established by the uniform system of accounts.

(2) Statement H shall also show, by rate schedule, revenues under presently effective rate schedules as well as under the proposed rate schedules filed by the utility. Said statement shall show number of customers, amount of increase and percent increase. Working papers shall also be supplied showing:

(a) The reconciliation of book revenues of the test period if differing from present revenues as set forth in Statement H;

(b) Adjustments for material and nonrecurring changes which are known and measurable to actual period revenues and sales units if appropriate.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.165 Statement I -- Depreciation, Depletion and Amortization Expense

(1) Statement I shall show for the test period depreciation, depletion and amortization expense by functional classification. These expenses shall be shown in separate columns as follows:

(a) Expenses for the test period per books;

(b) Claimed adjustments, if any, to actual expense;

(2) The bases, methods, essential computation and derivation of unit rates for the calculation of depreciation, depletion and amortization expense for the test period and for the adjustments thereto shall be fully and clearly explained by working papers supporting the exhibited amount. The amounts of depreciable plant shall be shown by functions specified in the account "accumulated provisions for depreciation of plant in service" of the Uniform Systems of Accounts for public utilities.

(3) Any deviation from the rates used in disposing of the utility's last previous rate filing or determination by this Commission shall be explained, showing the rate or rates previously used together with supporting data for the new rate or rates used for this filing.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.166 Working Papers -- Expense Charged Other Than Prescribed Depreciation, Depletion and Amortization

(1) Working papers shall be included in support of Statement I as a reconciliation of the aggregate investment in utility plant shown in Statement C, and the expense thereon charged in the first instance to other than prescribed depreciation, depletion, and amortization expense accounts.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.169 Statement J -- Income Taxes

(1) Statement J shall show for the test period income taxes computed on the basis of actual taxable income and adjusted taxable income. All tax adjustments shall be completely described and the amounts thereof shown separately. Amounts of deferred taxes debited and credited shall be shown separately. There also should be shown the amounts and basis of assignments of income taxes attributed to other utility departments and nonutility operations, together with all tax savings affecting the total tax liability. Any abnormalities such as nonrecurring income, gains, losses and deductions affecting the income tax for the test period shall be explained and the tax effect therein set forth.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.170 Working Papers for Federal Income Taxes

(1) In support of federal income taxes, the utility shall submit a reconciliation of the book net income with taxable net income as reported to the federal Internal Revenue Service for the most recent year for which a tax return was filed. An explanation of all items in the reconciliation shall be submitted. In the event the tax allowances claimed give effect to omission of items appearing in the reconciliations for the most recent tax return for inclusion of items not appearing therein, the reasons for such omissions or inclusions shall be submitted.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.171 Differences in Book and Tax Depreciation

(1) Where tax depreciation differs from book depreciation, the utility shall file work papers showing the computation of the tax depreciation which will indicate the differences between book and tax depreciation.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.172 Working Papers for Claimed Allowances for State or Provincial Income Taxes

(1) In support of the claimed allowances for income taxes accrued for state governments or Canadian provinces, the utility shall submit work papers showing the income tax accrued for each state or province in the current or previous year covered by the test period, including the effect of liberalized depreciation on such taxes accrued.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.173 Statement K -- Other Taxes

(1) For the test period, other taxes shall be classified under appropriate headings of federal, state and local, with appropriate subclassifications showing kind of taxes. The statement shall show separately, by columns, the following:

(a) Tax expense per books for the test period;

(b) Claimed adjustments, if any, to amounts booked;

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.174 Working Papers for Adjusted Taxes

(1) Working papers shall show computations of adjusted taxes claimed in Statement K.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.175 Overall Cost of Service

(1) Working papers shall show for the test period the overall cost of service per books for the filing public utility's utility operations during the test period, including allowances for return and income taxes based upon the rate of return claimed, together with the operating revenues of the filing public utility for the test period. If the filing public utility claims any adjustments to book figures, the cost of service based upon the claimed adjustments shall be shown on a separate schedule. If the amount of the filing public utility's total utility operating revenue differs significantly from its overall cost of service, including allowances for claimed return and income taxes, the filing public utility shall show the amounts available for return and taxes on income and return expressed as a percentage of rate base.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.176 Statement L -- Allocated Cost of Service (acos)

(1) Statement L shall present the cost of service results in detail for every customer class. Written testimony shall describe the development of these cost of service results. Included shall be the following:

(a) A general discussion of the purpose of the filing with goals and objectives of the allocated cost of service proposals. Industry standard terminology shall be used to describe and define allocated cost of service proposals. Where unique terms are used, they shall be defined in a separate glossary to be included as part of the filing.

(b) A benchmark allocated cost of service comparing the last commission-approved filing to the current filing. Any substantive deviation in procedures and/or methods used to prepare the current filing compared to the last commission-approved filing will be summarized and explained in the cost of service testimony.

(c) A generic allocated cost of service model which provides a basic understanding of the allocated cost of service study. The public service commission currently recognizes allocated cost of service based on marginal cost principles. Any utility testimony and exhibits on allocated cost of service should follow the format of the generic marginal cost model as described below.

(2) A generic marginal cost model shall also be provided. Marginal cost of service shall be determined for each of the following functions:

(a) Generation, transmission, substation, distribution, and customer for electric filings.

(b) Supply, storage, transmission, distribution, and customer for natural gas filings.

(3) Marginal costs shall be determined using the following additional steps:

(a) Classify the functionalized costs as energy (commodity) , capacity, reactive power and/or customer related and compute the associated marginal unit costs.

(b) Multiply classified marginal unit costs by allocation factors to compute total marginal cost.

(4) Allocation factors, annualization factors, and adjustment factors (d) to (j) below, may be used at various times throughout the cost of service study. These do not necessarily apply to all utilities. An example is seasonal costs since not all utilities have seasonal differences in costs. Inputs and factors include:

(a) Select the relevant time periods and compute relevant allocation factors;

(b) Select methods to determine and then compute relevant seasonal and time-of-day costs;

(d) Select a loss method, compute loss percentages and then apply such loss estimates to energy and capacity cost estimates;

(e) Compute spatial energy and/or capacity transportation rates for the associated products;

(f) Select operation and maintenance marginal cost methods and compute factors;

(g) Select administrative and general marginal cost methods and compute factors;

(h) Select general and common plant marginal cost methods and compute factors; and

(i) Select price adjustments and indexes.

(5) The following models shall be followed when preparing a generic marginal cost model.

(a) Model 1. Generic electric marginal cost study model.

(b) Model 2. Generic natural gas marginal cost study model.

(6) In addition to the use of the generic model, the following allocated cost of service guidelines should be followed:

(a) Year's dollars for computing costs of service should reflect costs two years beyond January 1st of the year in which the filing is submitted. For example, if a cost of service study is filed any time in calendar year 1992, costs will be computed in January 1, 1994 dollars.

(b) Relevant market value sources should be reflective of opportunities available to the utility's system. For example, electric generation and gas supply cost functions ought to reflect a resource's highest foregone use in the markets opened up by transmission access.

(d) Carrying charges should be used for the development of the marginal costs.

(e) Capacity and energy losses reflective of the utility's system should be developed and used to adjust relevant marginal costs.

(f) Proxy cost estimates, as necessary and appropriate, may be used for the marginal costs.

(g) If a production cost model is used by the utility, it should be identified and explained and its relative merit justified (e.g., chronological versus probabilistic) .

(h) Distribution/customer costing should be reflective of the utility's system and included as appropriate. Line extension policies should be described and any changes explained.

(i) Administrative and general, operation and maintenance and general and common adders should be reflective of the utility's system and included as appropriate.

(j) Allocation of costs to customer classes should use allocation factors that reflect cost causation.

(k) Seasonal or time-of-day cost allocation should be supported in sufficient detail to fully analyze the result.

(l) The method of reconciliation used should be identified and explained. Official policy figure

History

Authorizing statute(s): Sec. 69-3-103, MCA
*Implementing statute(s): *
History: Sec. 69-2-101, MCA; NEW, Eff. 7/5/77; AMD, 1993 MAR p. 1669, Eff. 7/30/93.

Mont. Admin. R. 38.5.177 Statement M -- Rate Design

(1) Written testimony shall describe the development and results, and provide supporting workpapers for each customer class rate design. Included shall be a general discussion of the purpose of the filing with the overall goals and objectives of the rate design proposals. Industry standard terminology shall be used to describe rate design proposals. Where unique terms are used, they shall be defined in a separate glossary to be included as part of the filing.

(2) The billing impact for each customer class must be provided. This analysis must indicate how many customers on each tariff would receive bill increases or decreases of various percentages and dollar amounts.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77; AMD, 1993 MAR p. 1669, Eff. 7/30/93.

Mont. Admin. R. 38.5.178 Derivation of Incrrased Rates

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77; REP, 1993 MAR p. 1669, Eff. 7/30/93.

Mont. Admin. R. 38.5.179 Statement N -- Description of Utility Operations

(1) Statement N shall include a description of the utility's area and diversity of operations and a breakdown of sales between jurisdictional and nonjurisdictional operations.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.180 Work Papers -- Purchases from Affiliated Companies

(1) If any of the preceding statements cover major purchases or major transfers from an affiliate that is not regulated as to price, the applicant shall submit an explanation of the price associated with the purchases or transfers.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.181 Duplication of Testimony and Required Information

(1) To the extent that testimony and exhibits required to be filed pursuant to ARM 38.5.181 duplicate information required to be submitted pursuant to ARM 38.5.101 to 38.5.180, inclusive, such information need only be submitted with the testimony and exhibits pursuant to ARM 38.5.181.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.182 Testimony and Exhibits

(1) A utility filing for an increase in rates and charges shall be prepared to go forward at a hearing on reasonable notice on the data, testimony and exhibits which have been submitted pursuant to these rules and sustain the burden of proof of establishing that its proposed charges are just and reasonable and not unduly discriminatory or preferential or otherwise unlawful. Although ARM 38.5.121 through 38.5.180, inclusive, provide for an historical test period, the utility, in addition, may submit cost of service information for a nonhistorical test period commencing no later than nine months after the close of the historical test period contemplated by those rules.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.183 Commission May Seek Specific Cost Data

(1) If a rate schedule required to be on file with this Commission is not required to be supported by cost of service data as set forth in these rules, but such data may be needed for commission analysis, these rules contemplate that each filing public utility may be required, by letter from the Commission, to submit specified cost data.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.184 Deficient Filings

(1) The Commission shall, within 30 days of filing by the utility of an application for rate increases, notify the utility of any failure of the application to comply with requirements of these rules. The notice shall specify the deficiencies and grant the utility a reasonable period of time in which to supplement or correct the filing. If notice is not given within 30 days of filing, the application shall be deemed to comply with these rules. The date of the initial filing shall be preserved unless the utility fails to comply with any notice of deficiency or the initial filing patently fails to substantially comply with these rules. No filing shall be deemed to have patently failed to substantially comply with these rules if the Commission can reasonably judge the merits of the application. If the filing utility fails or refuses to provide information with respect to an expense, revenue, plant or other account item, but otherwise meets its burden of proof, the Commission may adjust the utility's revenue requirement to reflect the failure to meet the burden of proof as to the specific item.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, Eff. 7/5/77.

Mont. Admin. R. 38.5.190 Statement O -- Pictorial Exhibit Requirements

(1) Applicant utilities that submit information in accordance with the minimum rate case filing standards for electric, gas and private water utilities shall provide pictorial exhibits, as defined below, for those items which affect the unallocated utility results of operations and the allocated costs of service/rate designs pertaining to Montana operations. Applicant utilities may provide such other pictorial exhibits as will further understanding of their filing.

(a) Each adjustment that is identified in textual or numerical information and causes a ratemaking change to the actual unallocated test year results of operations shall be presented in a flow chart or decision matrix that depicts each factor that caused the adjustment. Alternatively, adjustments may be identified and explained in a report that summarizes each adjustment.

(b) The total revenue requirements requested, both interim and permanent, shall be depicted in graphs or charts which show actual unallocated test year results of operations and each adjustment referred to in subsection (a) .

(c) Each account, excluding subaccounts, which affects the adjusted unallocated results of operations shall be shown in tabular form. The tables shall include the test year adjusted account value, the test year actual account value, the account value most recently approved by the Montana public service commission in a final rate case order and the actual account values from the previous four years. Values for functionalized categories which are accumulated from various accounts such as the distribution expense category shall be presented as bar charts. Each chart shall include the actual test year value, the adjusted test year value, and the actual value for the year preceding the test year.

(d) Applicant utilities that submit testimony and exhibits which are in response to rebuttal testimony and exhibits of other parties shall include pictorial exhibits which show the effect that the rebuttal submissions have upon the original filings. The submitted testimony and exhibits of each rebutting party shall be depicted in graphs or charts which show the actual unallocated test year results of operations and each adjustment that causes a ratemaking change to the actual unallocated test year results. The allocated cost of service/ rate design study of each rebutting party shall be depicted in charts that show each item referred to in subsection (e) .

(e) Each component of an applicant's allocated cost of service/rate design study shall be depicted in pie charts or bar charts. The charts shall include values for functionalizations by customer class of all cost categories, classifications by customer class of each functionalized cost category, moderations and rate designs by customer classes, allocators that were most recently approved by the Montana public service commission in a final rate case order and that are proposed.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1992 MAR p. 1760, Eff. 8/14/92.

Mont. Admin. R. 38.5.194 Application for Allocated Cost of Service and Rate Design Changes

(1) Applications for allocated cost of service and rate design changes shall include the material required in ARM 38.5.103, 38.5.104, 38.5.109, 38.5.176 and 38.5.177, minimally.

(2) Each allocated cost of service and rate design application shall include an example and general explanation of each current bill format that is used by the utility for tariffed services. Copies of other billing information that are provided to large groups of customers should also be provided and briefly explained. Additional information may be provided at the discretion of the filing utility.

(3) Absent regular allocated cost of service and rate design filings, a marginal cost of service study shall be submitted to the commission for information purposes, minimally, every two years. If the utility files an integrated resource plan with the commission, cost information shall be submitted within six months following such filing, unless the cost information has been presented within the previous two years. At the time a marginal cost of service study is filed, the utility, at its own option, may submit an embedded cost of service study.

(4) A marginal cost of service study filed pursuant to this rule or in the context of a rate case must contain current allocation factors.

(5) Three copies of the letter of transmittal and three copies of all material required in ARM 38.5.176, 38.5.177 and 38.5.109 shall be filed with the commission at the time of application. Montana consumer counsel shall receive two copies of the same materials.

(6) All or any part of the requirements of these rules may be waived by the commission upon a showing of good cause. Waiver of any requirements, however, shall not preclude the commission from requiring the filing of specific cost data and material sufficient to support the application.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1993 MAR p. 1669, Eff. 7/30/93.

Mont. Admin. R. 38.5.195 Post-Filing Conference for Allocated Cost of Service and Rate Design Applications

(1) Within 20 days after receipt of an application for allocated cost of service and rate design changes, the commission may, on its own motion or upon petition by any party, request the utility and all other interested parties to attend a conference for the purpose of identifying and clarifying potential issues associated with said application. Such conference shall be informal and without prejudice to the rights of the parties, and no statement or admission made at such conference shall be admissible in evidence in any formal hearing before the commission.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1993 MAR p. 1669, Eff. 7/30/93.

Authorizing statute(s): Secs. 2-4-303 and 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 1980 MAR p. 586, Eff. 2/15/80; REP, 1983 MAR p. 1738, Eff. 11/26/83.

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-103, MCA
History: NEW, 1980 MAR p. 2280, Eff. 8/1/80; REP, 2004 MAR p. 2933, Eff. 12/3/04.

Subchapter 38.5.4 Radio Common Carriers

Mont. Admin. R. 38.5.401 Definitions

(1) For purposes of this subchapter "radio common carrier" means: any party providing or reselling communication services furnished through a general mobile radio base station, or a central office radio base station, between a radio subscriber station and a wire telephone, between a radio subscriber station and a mobile radio unit, or between two radio subscriber stations, where a radio subscriber station is a fixed radio telephone, which has been licensed by the federal communications commission, used by a subscriber for communications.

History

Authorizing statute(s): 69-3-103(2), MCA
Implementing statute(s): 69-3-103(2), MCA
History: NEW, 1981 MAR p. 1497, Eff. 11/13/81.

Mont. Admin. R. 38.5.402 Procedure Governed

(1) These rules (as well as the commission's procedural rules ARM Title 38, chapter 2) govern practice and procedure in rate cases involving radio common carriers before the public service commission of the state of Montana, in accordance with applicable laws of the state of Montana.

History

Authorizing statute(s): 69-3-103(2), MCA
Implementing statute(s): 69-3-103(2), MCA
History: NEW, 1981 MAR p. 1497, Eff. 11/13/81.

Mont. Admin. R. 38.5.403 Letter of Transmittal

(1) The letter of a radio common carrier transmitting a proposed new rate schedule to the commission shall:

(a) include a brief description of the proposed changes in service, rate, or charge; and

(b) name an employee of the carrier who shall be responsible for answering questions concerning the application.

History

Authorizing statute(s): 69-3-103(2), MCA
Implementing statute(s): 69-3-103(2), MCA
History: NEW, 1981 MAR p. 1497, Eff. 11/13/81.

Mont. Admin. R. 38.5.404 Notice

(1) Upon receipt of a properly completed application to alter the provisions of an existing rate schedule and letter of transmittal, the commission will publish this information in a notice of opportunity for public hearing.

(2) This notice shall also contain the following language: As the commission believes that competitive conditions prevail in this industry, your request for a hearing must contain a preliminary showing either that competitive conditions do not prevail with respect to this radio common carrier or that this application represents some other type of abuse by the applicant.

(3) If a request for a hearing is made that does not meet the requirements of ARM 38.5.404(2) , the commission staff will contact the person requesting the hearing to determine if either of the showings required by ARM 38.5.404(2) can be made. If the showings cannot be made, no hearing will be held.

(4) The commission shall liberally construe its rules of discovery (ARM 38.2.3301- 38.2.3305) in order to effectuate the goals of this rule.

History

Authorizing statute(s): 69-3-103(2), MCA
Implementing statute(s): 69-3-103(2), MCA
History: NEW, 1981 MAR p. 1497-1498, Eff. 11/13/81.

Subchapter 38.5.5 Interim Utility Rate Increases

Mont. Admin. R. 38.5.501 Definition

(1) An interim rate increase is an increase granted by the Commission prior to a hearing or after a hearing and before a final decision. Interim rate increases are designated "temporary" rate increases in the enabling statute, 69-3-304 , MCA.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-304, MCA
History: NEW, 1979 MAR p. 324, Eff. 3/30/79.

Mont. Admin. R. 38.5.502 Prerequisite to Interim Rate Increase Request

(1) Any application for an interim grant of authority to increase utility rates must be filed in conjunction with a permanent rate case proceeding.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-304, MCA
History: NEW, 1979 MAR p. 324, Eff. 3/30/79.

Mont. Admin. R. 38.5.503 Notice

(1) The utility will issue notice of all applications it makes for interim rate increases. The notice will be transmitted to the Montana Consumer Counsel, and all parties to the permanent rate case of which the request for temporary relief is a part, to media of general dissemination in the area affected by the increase in rates, and to interested parties that participated in the most recent general rate increase application of the particular utility. The notice shall emphasize that any response should be made speedily.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-304, MCA
History: NEW, 1979 MAR p. 324, Eff. 3/30/79; AMD, 1981 MAR p. 384, Eff. 6/12/81.

Mont. Admin. R. 38.5.504 Hearings

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-304, MCA
History: NEW, 1979 MAR p. 324, Eff. 3/30/79; REP, 1982 MAR p. 2150, Eff. 12/17/82.

Mont. Admin. R. 38.5.505 Supporting Material

(1) Any application for interim authority to increase utility rates sought as part of a general (other-than-tracking) rate increase shall only be deemed filed when all prefiled direct testimony and exhibits supporting the general rate increase request have been submitted.

(2) For every interim rate increase request, the applicant shall file the original and eight copies of the letter of transmittal, application exhibits, certificate of service for notice of the interim application and proposed order, with the Commission; two copies of the letter of transmittal, the application and any exhibits shall be simultaneously filed with the Montana Consumer Counsel; copies of the letter of transmittal, application, and any exhibits shall also be filed with all parties to any coincident permanent rate case.

(3) Any applications for interim authority to increase utility rates to meet increased costs of a single, clearly measurable expense item (tracking cases) shall be supported by the following:

(a) Letter of transmittal

(b) Application

(d) Detail of increased expense item

(e) Summary of base cost of expense item and proposed adjustment

(f) Statements showing effects of proposed adjustment, including operating income, rate of return, and return on average equity.

(g) Most recent 12 month balance sheet and income statement.

(4) Filings made under this rule and those contemplated by ARM 38.5.507 are not subject to the standards set forth in the Commission's Minimum Rate Case Filing Standards ARM 38.5.101 through 38.5.184.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-304, MCA
History: NEW, 1979 MAR p. 324, Eff. 3/30/79; AMD, 1981 MAR p. 384, Eff. 6/12/81.

Mont. Admin. R. 38.5.506 Criteria for Approval of Request

(1) Consideration of an application to increase rates on an interim basis in a general rate increase proceeding will be guided by generally established principles of utility rate regulation.

(2) The Commission shall calculate all interim rate increase requests in a general rate increase proceeding in the following manner:

(a) Test year booked net utility operating income and test year average rate base will be normalized and annualized, when such test year data is available.

(b) Any adjustments that were made in the most recent Commission general rate order of the utility will also be made using the methodology and rate of return on equity from that order, and applied to the filed test year amounts. These adjustments may be modified and other adjustments made as deemed appropriate by the Commission.

(3) Consideration of an application to increase rates on an interim basis in a tracking case will be guided by:

(a) A showing that the expense item concerned is a clearly identifiable cost to the utility;

(b) A clear showing that the proposed rate increase precisely matches the known increased expenses;

(d) Supporting material as enumerated in ARM 38.5.505(3) .

(4) All interim rate increase requests must be accompanied by a revenue increase figure calculated in accordance with ARM 38.5.506(2) .

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-304, MCA
History: NEW, 1979 MAR p. 324, Eff. 3/30/79; AMD, 1982 MAR p. 857, Eff. 4/30/82.

Mont. Admin. R. 38.5.507 Dependent Utilities

(1) In the case of utilities dependent on other regulated utilities for significant portions of their fuel supplies, any application for interim rate relief made in response to an interim increase granted another utility will not be subject to these rules.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-304, MCA
History: NEW, 1979 MAR p. 324, Eff. 3/30/79.

Mont. Admin. R. 38.5.508 Waiver

(1) The commission, in its discretion, may at any time, waive any or all of these rules.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-304, MCA
History: NEW, 1979 MAR p. 324, Eff. 3/30/79.

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-2-101, MCA
History: NEW, 1992 MAR p. 319, Eff. 2/28/92; REP, 2023 MAR p. 1626, Eff. 11/18/23.

Subchapter 38.5.7 Municipally Owned Utilities

Mont. Admin. R. 38.5.701 Jurisdictional Policy

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 69-3-102 and 69-3-103, MCA
Implementing statute(s): 69-7-101, 69-7-102, 69-7-113 and 69-7-201, MCA
History: NEW, 1982 MAR p. 293, Eff. 2/12/82; REP, 2004 MAR p. 2933, Eff. 12/3/04.

Mont. Admin. R. 38.5.702 Determination of Public Service Commission Jurisdiction

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 69-3-102 and 69-3-103, MCA
Implementing statute(s): 69-7-101, 69-7-102, 69-7-113 and 69-7-201, MCA
History: NEW, 1982 MAR p. 293, Eff. 2/12/82; REP, 2004 MAR p. 2933, Eff. 12/3/04.

Subchapter 38.5.8 Minimum Filing Requirements for Rate Adjustments for Taxes and Fees

Mont. Admin. R. 38.5.801 Applicability

(1) This subchapter is applicable to electric and natural gas public utilities.

(2) Except where otherwise provided, a utility shall comply with the minimum filing standards of this subchapter whenever it files for a rate schedule change pursuant to 69-3-302 or 69-3-308, MCA which incorporates changes in Montana state and local tax expense, except that this subchapter does not apply to rate schedules filed to adjust for the Public Service Commission tax or the Montana Consumer Counsel tax.

(3) Filings made pursuant to 69-3-308, MCA are exempt from the filing requirements of ARM 38.5.101 to 38.5.195.

History

Authorizing statute(s): 69-3-103, 69-3-310, MCA
Implementing statute(s): 69-3-302, 69-3-308, MCA
History: NEW, 2017 MAR p. 790, Eff. 6/10/17.

Mont. Admin. R. 38.5.802 Electronic Information – Letter of Transmittal

(1) The utility shall include with the request for a rate adjustment all files in an easily readable electronic format, which, if applicable, shall have all digital links intact.

(2) The letter of transmittal with respect to a filing for a new or existing tariff to provide for an adjustment of state and local taxes and fees under 69-3-308, MCA shall:

(a) list the documents submitted with the filing;

(b) state the names and addresses of those to whom copies of the rate schedule have been mailed;

(d) state the reasons for the proposed changes;

(e) state the estimated number of customers whose cost of service will be affected and annual amounts of either increases or decreases, or both, in cost of service to such customers;

(f) name an employee of the utility who shall be responsible for answering questions concerning the application, or for referring inquiries to appropriate members of the utility staff;

(g) include a clear statement of the relief requested;

(h) include a table or spreadsheet showing each rate affected by the rate adjustment, including the rate as it currently exists, the incremental change due to the tracker, the proposed total rate, and the portion of the rate attributable to tax; and

(i) propose revised tariffs that would be affected by the rate adjustment, including both clean and red-lined copies.

History

Authorizing statute(s): 69-3-103, 69-3-310, MCA
Implementing statute(s): 69-3-302, 69-3-308, MCA
History: NEW, 2017 MAR p. 790, Eff. 6/10/17.

Mont. Admin. R. 38.5.803 Pre-Filed Testimony

(1) The application made under 69-3-308, MCA, by a utility shall include the pre-filed testimony of a witness or witnesses. If the testimony of more than one witness is presented, the utility will identify one witness who is responsible for the completeness of the statements and work papers contained in the filing.

History

Authorizing statute(s): 69-3-103, 69-3-310, MCA
Implementing statute(s): 69-3-202, 69-3-205, 69-3-308, MCA
History: NEW, 2017 MAR p. 790, Eff. 6/10/17.

Mont. Admin. R. 38.5.804 Expense and Revenue Adjustment Work Papers

(1) The application for automatic adjustment for Montana state and local taxes and fees, excluding income taxation, provided for under 69-3-308, MCA shall include:

(a) the projected changes in taxes from the prior year;

(b) the true-up of the prior year's actual revenue attributable to taxes versus actual taxes; and

(2) Revenues attributable to the component of existing rates attributable to Montana state and local taxes and fees shall be calculated, including the revenues earned and projected to be earned by:

(a) rates authorized by the Montana Public Service Commission;

(b) rates authorized by the Federal Energy Regulatory Commission (FERC);

(c) rates authorized by other state utility commissions, to the extent that Montana state and local taxes and fees are allocated to those jurisdictions; and

(d) charges made by the utility, its affiliates, or its parent for services which are not regulated but on which the utility is assessed Montana state and local taxes and fees, including but not limited to non-regulated gas gathering and production activities.

History

Authorizing statute(s): 69-3-103, 69-3-310, MCA
Implementing statute(s): 69-3-201, 69-3-202, 69-3-308, MCA
History: NEW, 2017 MAR p. 790, Eff. 6/10/17.

Mont. Admin. R. 38.5.805 Jurisdictional Ferc Allocations for Taxes

(1) For Montana state and local taxes and fees, excluding income taxation, allocated to rates collected under FERC tariffs:

(a) the utility shall disclose and explain the present allocation methodology of the expense to retail and wholesale customers;

(b) the utility will identify in a table a list of all property which is subject to a jurisdictional allocation between retail and wholesale customers by:

(i) FERC account;

(ii) value in rate base, on an original cost less depreciation basis; and

(iii) the total amount of tax expense for each FERC account listed.

(c) if the taxing jurisdiction does not disclose or specifically identify the amount of tax expense allocated or assessed to property by type, the utility will disclose as such and will use an appropriate allocator consistent with prior commission orders or with its own internal practice;

(d) the utility will indicate the last time it has filed at FERC a general rate case or a case specific to a service offered under its open access transmission tariff, and describe how tax expense was incorporated into its rate proposal and, if specified, the FERC's final determination of rates;

(e) the utility will present information for allocation methodologies, regardless of which is proposed or adopted for current use. These shall include at a minimum:

(i) the revenue produced under FERC rates which is attributable to Montana state and local tax and fee expense, calculated on the basis of the percentage of the last-approved revenue requirement which was attributable to this expense; and

(ii) a calculation of the usage of the assets subject to state and local taxes and fees by retail customers and by wholesale customers, with an allocation of the associated tax expense to the wholesale and retail customers of the utility on a basis consistent with that usage employing a twelve-coincident-peak methodology.

(f) the commission may request an additional study to allocate this expense on another basis; and

(g) a utility that does not collect any revenues under FERC tariffs will file a statement certifying accordingly.

History

Authorizing statute(s): 69-3-103, 69-3-310, MCA
Implementing statute(s): 69-3-201, 69-3-202, 69-3-302, 69-3-308, MCA
History: NEW, 2017 MAR p. 790, Eff. 6/10/17.

Mont. Admin. R. 38.5.806 Jurisdictional Allocations for Taxes

(1) For Montana state and local taxes and fees and for other states' taxes, excluding income taxation, which are allocated to rates authorized by the commission and by other state utility commissions:

(a) the utility shall disclose and explain the allocation methodology of these expenses to Montana customers and to customers of other states; and

(b) the utility shall provide a statement including data for the last three years and for the coming year, which:

(i) discloses the actual tax expense attributable to each jurisdiction under the last approved allocation methodology of the commission; and

(ii) provides an estimate of the amount of revenue attributable to these taxes the utility had projected to earn based on the tax expense in rates of its last general rate case filings in those jurisdictions, inflated or deflated by the projected growth in sales volumes of units whose rates include tax-related expense.

(2) For the purposes of making findings on questions of jurisdictional separations for the purposes of including tax expense into rates, the commission, upon evaluating the information provided pursuant to this section and other information which it may possess, may find errors that lead to adjustments in rates for reasons including, but not limited to, the following:

(a) that an allocation methodology inaccurately allocates the expense or the revenue, or both, to customers of different jurisdictions; or

(b) that revenues from other jurisdictions' customers are sufficient to satisfy the utility's liability for Montana state and local taxes and fees.

History

Authorizing statute(s): 69-3-103, 69-3-310, MCA
Implementing statute(s): 69-3-201, 69-3-202, 69-3-302, 69-3-308, MCA
History: NEW, 2017 MAR p. 790, Eff. 6/10/17.

Mont. Admin. R. 38.5.807 Income Taxation

(1) To account for the deductibility of tax expense from the utility's income tax liability when filing for an automatic rate adjustment for Montana state and local taxes and fees, the utility will multiply the statutory income tax rate by the incremental change in Montana state and local tax expense. The product of this multiplication is the amount of the income tax benefit, positive or negative, that results from the automatic rate adjustment for Montana state and local taxes and fees.

(2) Together with an application for a change in rate schedules filed pursuant to 69-3-302, MCA the utility shall:

(a) provide its last three annual income tax filings for both the federal and Montana jurisdictions;

(b) file a request for a protective order no later than three weeks before such a rate filing is made, if the utility desires to exercise its right under federal law to keep its income tax filing confidential; and

(i) discloses the amount of revenue attributable to the component of existing commission rates attributable to federal and state income taxes;

(ii) identifies the total income tax expense associated with or allocated to the customers paying those commission rates;

(iii) indicates any amount of tax benefit or liability which is normalized pursuant to federal or state laws or regulations;

(iv) indicates any amount of tax benefit or liability which is normalized voluntarily, at the utility's option, and not because it is required pursuant to federal or state laws or regulations; and

(v) provides a spreadsheet or other information documenting a cost-benefit analysis for customers regarding the utility's election for a tax treatment that prohibits flow-through and requires normalization.

History

Authorizing statute(s): 69-3-103, 69-3-310, MCA
Implementing statute(s): 69-3-201, 69-3-202, 69-3-302, 69-3-308, MCA
History: NEW, 2017 MAR p. 709, Eff. 6/10/17.

Mont. Admin. R. 38.5.808 Attribution of Tax to Plant

(1) Together with an application for an automatic rate adjustment for Montana state and local taxes and fees under 69-3-308, MCA, a utility will identify an allocation of Montana state and local taxes and fees to plant by FERC account.

(2) In making the allocation of taxes to plant type, the utility will identify and explain its methodology, which may be informed by both the books and records of the utility company's capital investments and by the allocation of value to taxing jurisdictions by governmental authorities and by other factors the utility and the commission consider reasonable.

(3) The utility will provide FERC account balances for plant for the previous two years as of the lien date used by the Montana Department of Revenue for tax purposes.

History

Authorizing statute(s): 69-3-103, 69-3-310, MCA
Implementing statute(s): 69-3-109, 69-3-201, 69-3-202, 69-3-308, MCA
History: NEW, 2017 MAR p. 790, Eff. 6/10/17.

Mont. Admin. R. 38.5.809 Valuation and Protests

(1) A utility will file the past two years' tax valuations from the Montana Department of Revenue.

(2) The utility will describe any informal or formal protests for its valuation or its tax expense that it has filed with any jurisdiction.

(3) For the purposes of complying with 69-3-308(2)(a)(i)(C), MCA a utility will provide a statement or table of adjustments made for the resolution of property taxes paid under protest. If there are none, it will file a statement indicating as such.

History

Authorizing statute(s): 69-3-103, 69-3-310, MCA
Implementing statute(s): 69-3-106, 69-3-109, 69-3-302, 69-3-308, MCA
History: NEW, 2017 MAR p. 790, Eff. 6/10/17.

Mont. Admin. R. 38.5.810 Allocation of Taxes and Fees – Rate Design

(1) A utility's application under 69-3-308, MCA, must include testimony and work papers showing the allocation of an adjustment to Montana state and local taxes and fees to each of the utility's customer classes. Testimony must include a thorough description of and justification for the allocation method(s).

(2) A utility's application must include testimony and work papers showing the derivation of rate adjustments provided for in ARM 38.5.802(2)(i). Testimony must include a thorough description and justification for the requested rate design. Work papers must include an analysis showing customer bill impacts, by customer class, for various usage levels typical for the customer class.

History

Authorizing statute(s): 69-3-103, 69-3-310, MCA
Implementing statute(s): 69-3-201, 69-3-308, MCA
History: NEW, 2017 MAR p. 790, Eff. 6/10/17.

Mont. Admin. R. 38.5.811 Taxes Excluded

(1) A utility will disclose any taxes or fees assessed by taxing jurisdictions within the state of Montana which are not Montana state or local taxes or fees under 69-3-308, MCA, including, but not necessarily limited to, tribal taxes.

History

Authorizing statute(s): 69-3-103, 69-3-310, MCA
Implementing statute(s): 69-3-201, 69-3-202, 69-3-308, MCA
History: NEW, 2017 MAR p. 790, Eff. 6/10/17.

Mont. Admin. R. 38.5.812 Requirements for the Submission of Omitted Information

(1) For utility applications made pursuant to 69-3-308, MCA if a utility has not complied with the minimum filing standards of this subchapter or has otherwise failed to provide information as provided for in the proceeding to consider the filing, the commission may order within forty-five days of receipt of the utility's application that the utility address these omissions and continue the proceeding until they are addressed.

(2) For utility applications made pursuant to 69-3-302, MCA, a filing made by a utility which does not include the information required by this subchapter, the remedies provided for in ARM 38.5.184 apply.

(3) This rule does not affect the commission's ability to pursue the remedies provided for in 69-3-206 and 69-3-208, MCA.

History

Authorizing statute(s): 69-3-103, 69-3-310, MCA
Implementing statute(s): 69-3-202, 69-3-206, 69-3-208, 69-3-302, 69-3-308, MCA
History: NEW, 2017 MAR p. 790, Eff. 6/10/17.

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1983 MAR p. 1739, Eff. 11/26/83.

Subchapter 38.5.10 Service Requirements

Mont. Admin. R. 38.5.1001 Rates, Charges, and Service Requirements of Public Utilities

(1) Rates, charges and service requirements of each public utility under the jurisdiction of the commission ( 69-3-101 , MCA and following) are contained within the tariffs and files of each public utility as filed with and approved by the commission. Information relative to such rates, charges and service requirements in regard to each utility may be obtained from the commission office.

History

Authorizing statute(s): 69-3-104, MCA
Implementing statute(s): 69-3-105, 69-3-301, MCA
History: NEW, Eff. 12/31/72.

Mont. Admin. R. 38.5.1002 Undergrounding of Electric Distribution Lines in New Subdivisions

(1) Section 69-4-102 , MCA, requires a public utility furnishing electricity to install underground distribution lines in new subdivisions of five or more consumer units when undergrounding is technically and economically feasible.

(2) As used in this rule, "technically feasible" means that the trench through which the underground lines would run could be excavated by a conventional backhoe or trencher, with no blasting and minimal use of jackhammers or like equipment required, and the consumer unit is situated on a lot or parcel not larger than five acres.

(3) As used in this section, "economically feasible" means:

(a) If underground installation cost/unit does not exceed twice overhead installation cost/unit, underground installation is feasible and shall be constructed at the expense of the utility and the developer or the customer in accordance with the applicable rate schedule on file with the commission; and

(b) If underground installation cost/unit is more than twice overhead installation cost/unit, underground installation is economically infeasible within the meaning of 69-4-102 , MCA, and underground installation is not required in such cases.

(4) As used in the preceding subsection, "unit" means a residence or commercial structure in a new subdivision, as defined in 69-4-102 , MCA, and "distribution lines" mean all electrical lines in the subdivision used for the conveyance of electricity from a bulk power source to the consumer.

History

Authorizing statute(s): 69-4-102(3), MCA
Implementing statute(s): 69-4-102, MCA
History: NEW, Eff. 12/6/76.

Mont. Admin. R. 38.5.1010 Incorporation by Reference of National Electrical Safety Code

(1) Pursuant to 69-4-201, MCA, the commission is empowered to implement and enforce construction standards for utility lines and facilities and for that purpose the commission adopts and incorporates by reference the 2023 edition of the National Electrical Safety Code (NESC). A copy of the NESC may be obtained from the American National Standards Institute, 25 West 43rd Street, 4th Floor, New York, New York 10036, or may be reviewed at the Public Service Commission Offices, 1701 Prospect Avenue, Helena, Montana 59620-2601.

History

Authorizing statute(s): 69-4-201, MCA
Implementing statute(s): 69-4-201, MCA
History: NEW, 1993 MAR p. 3042, Eff. 12/24/93; AMD, 1997 MAR p. 317, Eff. 2/11/97; AMD, 1998 MAR p. 180, Eff. 1/16/98; AMD, 2004 MAR p. 339, Eff. 2/13/04; AMD, 2006 MAR p. 2966, Eff. 12/8/06; AMD, 2011 MAR p. 2829, Eff. 12/23/11; AMD, 2017 MAR p. 789, Eff. 6/10/17; AMD, 2023 MAR p. 524, Eff. 6/10/23.

Subchapter 38.5.11 Customer Deposit for Guarantee Payment

Mont. Admin. R. 38.5.1101 Establishment of Credit -- Residential

(1) An applicant for residential utility service may establish credit by demonstrating to the utility any one of the following factors:

(a) Prior service with utility in question within the previous 12 months during which for at least 6 consecutive months service was rendered and was not disconnected for failure to pay, and no more than one delinquency notice was served upon the customer.

(b) Prior service with a utility of the same type as that of which service is sought with a satisfactory payment record as demonstrated in (a) above, provided that the reference may be quickly and easily checked by the utility and the necessary information is provided.

(c) Full-time consecutive employment during the entire 12 months next previous to the application for service, with no more than two employers, and the applicant is currently employed or has a regular source of income.

(d) Ownership of significant legal interest in the premises to be served.

(e) Furnishing of a satisfactory guarantor to secure payment of bills for services requested in a specified amount not to exceed an estimated one year bill, such estimation to be made at the time the service is established.

(f) In the case of telephone utilities, the guarantee amount shall be for the total amount of the bill.

History

Authorizing statute(s): 69-3-306, MCA
Implementing statute(s): 1975 HJR 27
History: NEW, Eff. 4/5/77; AMD, 1978 MAR p. 721, Eff. 5/26/78.

Mont. Admin. R. 38.5.1102 Establishment of Credit -- Nonresidential

(1) An applicant for nonresidential service may be required to demonstrate that it is a satisfactory credit risk by reasonable means appropriate under the circumstances.

History

Authorizing statute(s): 69-3-306, MCA
Implementing statute(s): 1975 HJR 27
History: NEW, Eff. 4/5/77; AMD, 1978 MAR p. 721, Eff. 5/26/78.

Mont. Admin. R. 38.5.1103 Deposit Requirements

(1) A deposit may be required under the following circumstances:

(a) Where the applicant has failed to establish a satisfactory credit history as outlined above.

(b) In any event, a deposit may be required when within the 12-months prior to the application, the applicant's service of a similar type has been disconnected for failure to pay amounts owing, when due; where there is an unpaid, overdue balance owing for similar service from the utility to which application is being made or from any similar utility; or where two or more delinquency notices have been served upon the applicant by any other utility company during the 12-months previous to the application for service.

(c) Initiation or continuation of service to a residence where prior customer still resides and where any balance for such service to that prior customer is past due or owing.

(d) Where the customer has, in an unauthorized manner, interfered with the service of the utility situated or delivered on or about the customer's premises within the last five years, if the finding of unauthorized interference or use is made and determined after notice and opportunity for hearing is provided to the customer and is not in dispute.

History

Authorizing statute(s): 69-3-306, MCA
Implementing statute(s): 1975 HJR 27
History: NEW, Eff. 4/5/77; AMD, 1978 MAR p. 721, Eff. 5/26/78.

Mont. Admin. R. 38.5.1104 Prohibited Standards for Requiring Cash Deposit or Other Guarantee for Residential Service

(1) A utility shall not require a cash deposit or other guarantee as a condition of new or continued residential utility service based upon commercial credit standards (except as provided in these rules) , income, home ownership, residential location, race, color, creed, sex, age, national origin, or any other criteria not authorized by these rules. This rule does not prohibit a utility from ensuring that agreements with customers who may be incompetent, such as minors, are made in such a manner, and with such persons, as to be legally binding.

History

Authorizing statute(s): 69-3-306, MCA
Implementing statute(s): 1975 HJR 27
History: NEW, Eff. 4/5/77; AMD, 1978 MAR p. 721, Eff. 5/26/78.

Mont. Admin. R. 38.5.1105 Amount of Deposit

(1) In instances where a deposit may be required by the utility, the deposit shall not exceed one-sixth of estimated annual billings; provided that deposit of not more than 25% of the estimate may be required of applicants for non-residential service.

(2) In the case of telephone utilities, the deposit may be accordingly adjusted when the actual interchange service charges are subsequently found to be more or less than those estimated.

History

Authorizing statute(s): 69-3-306, MCA
Implementing statute(s): 1975 HJR 27
History: NEW, Eff. 4/5/77; AMD, 1978 MAR p. 721, Eff. 5/26/78.

Mont. Admin. R. 38.5.1106 Transfer of Deposit

(1) Where a customer of whom a deposit is required transfers his service to a new location within the same utility's service area, within the state of Montana, the deposit, less any outstanding balance, shall be transferable and applicable to the new service location.

(2) In the case of telephone utilities, the deposit is only transferable within the same exchange.

History

Authorizing statute(s): 69-3-306, MCA
Implementing statute(s): 1975 HJR 27
History: NEW, Eff. 4/5/77; AMD, 1978 MAR p. 721, Eff. 5/26/78.

Mont. Admin. R. 38.5.1107 Interest on Deposits

(1) Interest on deposits held shall be accrued at the rate of 6% per year. Interest shall be computed from the time of the deposit to the time of refund or termination, to the nearest whole month, without compounding. This rule is effective October 1, 2002, applies to deposits received on and after October 1, 2002, and applies to the remaining period of deposits existing before October 1, 2002.

History

Authorizing statute(s): 69-3-103, 69-3-306, MCA
Implementing statute(s): 1975 HJR 27
History: NEW, Eff. 4/5/77; AMD, 1978 MAR p. 722, Eff. 5/26/78; AMD, 1981 MAR p. 1791, Eff. 12/18/81; AMD, 2002 MAR p. 1995, Eff. 10/1/02.

Mont. Admin. R. 38.5.1108 Refund of Deposits

(1) Deposits plus accrued interest shall be refunded under the following circumstances and in the following form:

(a) Where the customer has for 12 consecutive months paid for service when due in a prompt and satisfactory manner as evidenced by the following:

(i) The utility has not initiated disconnection proceedings against the customer; and

(ii) No more than two notices of delinquency have been made to the customer by the utility.

(b) Upon termination of service the utility shall return to the customer the amount then on deposit plus accrued interest less any amounts due the utility by the customer for service rendered.

(c) Any deposit, plus accrued interest, shall be refunded to the customer in the form of a check issued and mailed to the customer no more than 30 days following the termination of service or completion of 12 months satisfactory payment as described above. Other methods of refund (e.g., cash) , if agreed to by the customer and the utility, are permitted. In the alternative, in the utility's discretion, unless the customer has specifically directed otherwise, the deposit may be applied to the customer's bill of service in the thirteenth and, if appropriate, subsequent months.

History

Authorizing statute(s): 69-3-306, MCA
Implementing statute(s): 1975 HJR 27
History: NEW, Eff. 4/5/77; AMD, 1978 MAR p. 722, Eff. 5/26/78; AMD, 2001 MAR p. 45, Eff. 1/12/01.

Mont. Admin. R. 38.5.1109 Record of Deposits

(1) A utility shall maintain a record of all deposits received from customers, showing the name of each depositor, the date and amount of the deposit made, the location of the premises occupied by the depositor at the time of making the deposit, and each successive location while the deposit is retained.

(a) Each customer posting a cash deposit shall receive in writing at the time of tender of the deposit a receipt as evidence thereof, which contains the following minimum information.

(i) Name of customer;

(ii) Address of customer;

(iii) Place of payment;

(iv) Date of payment;

(v) Amount of payment;

(vi) Identification of the employee receiving payment;

(vii) Statement of the terms and conditions governing the receipt, retention and return of deposit funds.

(b) A utility shall provide means whereby a customer entitled to a return of his deposit is not deprived of deposit funds even though he may be unable to produce the original receipt for the deposit. In such event company records shall be controlling.

History

Authorizing statute(s): 69-3-306, MCA
Implementing statute(s): 1975 HJR 27
History: NEW, Eff. 4/5/77; AMD, 1978 MAR p. 722, Eff. 5/26/78.

Mont. Admin. R. 38.5.1110 Uniform Application

(1) A utility shall apply deposit standards uniformly as condition of utility service to all residential customers.

History

Authorizing statute(s): 69-3-306, MCA
Implementing statute(s): 1975 HJR 27
History: NEW, Eff. 4/5/77.

Mont. Admin. R. 38.5.1111 Guarantee in Lieu of Deposit

(1) In lieu of a cash deposit required by these rules, a utility shall accept the written guarantee of a responsible party as surety for a customer service account. For the purpose of this rule, a "responsible party" shall mean:

(a) Any individual or business entity which has maintained service with the utility in question for the previous 24 months, and who has not had service disconnected for failure to pay, and has received no more than two delinquency notices.

(b) Any special fund approved by the commission.

History

Authorizing statute(s): 69-3-306, MCA
Implementing statute(s): 1975 HJR 27
History: NEW, Eff. 4/5/77; AMD, 1978 MAR p. 722, Eff. 5/26/78.

Mont. Admin. R. 38.5.1112 Guarantee Terms Conditions

(1) A guarantee accepted in accordance with these rules is subject to the following terms and conditions:

(a) It shall be in writing, and if necessary shall be renewed in a similar manner annually.

(b) It shall state the terms of guarantee, the maximum amount guaranteed (such maximum not to exceed an estimated one year bill, such estimation to be made at the time the service is established) , and that the utility shall not hold the guarantor liable for sums in excess thereof unless agreed to in a separate written instrument.

(c) Credit shall be established for the customer and the guarantor shall be released upon the satisfactory payment by the customer of all proper charges for utility service for a period of 12 successive months. For purposes of this subsection, payment is satisfactory if:

(i) The utility has not initiated disconnection proceedings against the customer.

(ii) No more than two notices of delinquency have been made to the customer by the utility.

(2) The utility may withhold the release of the guarantor pending the resolution of a disputed discontinuance.

History

Authorizing statute(s): 69-3-306, MCA
Implementing statute(s): 1975 HJR 27
History: NEW, Eff. 4/5/77; AMD, 1978 MAR p. 722, Eff. 5/26/78.

Subchapter 38.5.12 Standby Charges

Mont. Admin. R. 38.5.1201 Definitions

(1) "Standby charges" are defined for the purposes of this rule as charges different than those generally available for service under the utility's tariffs, imposed where utility service is either provided:

(a) only in the event of the nonavailability to the customer of any other form or source of energy from any supply, which other form of energy is predominately relied upon by the customer; or

(b) on a regular basis as the customer's predominate energy source but is subject to periodic partial or complete curtailment, at the customer's option, and replacement by another energy form or source.

History

Authorizing statute(s): Secs. 69-3-103, MCA
Implementing statute(s): 69-3-301, MCA
History: NEW, 1978 MAR p. 1735, Eff. 12/29/78.

Mont. Admin. R. 38.5.1202 "standby Charges" Not Allowed

(1) The Commission, in view of both the state energy conservation policy and the lack of cost impact data in this area, will not approve any "standby charges" at this time. Utilities shall supply "standby service" at presently authorized rates for all classes of customers. A hearing will be held under the Commission rules governing contested case proceedings prior to any Commission action on a request for standby charges.

History

Authorizing statute(s): Secs. 69-3-103, MCA
Implementing statute(s): 69-3-301, MCA
History: NEW, 1978 MAR p. 1735, Eff. 12/29/78.

Mont. Admin. R. 38.5.1203 Service to Standby Customers

(1) Utilities shall supply standby service to requesting customers, subject to limitations imposed by federal regulatory agencies. However, unless specifically required by order of a federal regulatory agency, no utility may refuse service to a requesting customer solely on the grounds that the request is for standby service.

History

Authorizing statute(s): Secs. 69-3-103, MCA
Implementing statute(s): 69-3-301, MCA
History: NEW, 1978 MAR p. 1736, Eff. 12/29/78.

Mont. Admin. R. 38.5.1204 Minimum Filing Requirements for Future Requests

(1) Any utility requesting "standby charges" before this Commission in the future shall provide adequate data supporting "standby service" costs incurred, including but not limited to:

(a) number of customers equipped with alternative, renewable energy sources who would be affected by such charges;

(b) current costs and payback periods of the major alternative energy systems with no standby charge; current costs and payback periods of the major alternative energy systems if the standby charge as requested is authorized;

(c) for proposed standby charges for electric utility service, time-of-day and load information for the various classes of customers; and for the various energy source systems employed by them;

(d) cost of service information, including incremental cost of service information broken down by cost of service to the class of customers with unlimited use backup systems and the class of customers with backup service restricted to off-peak replenishment of energy storage systems.

(2) In accordance with the information presented in response to (1) (d) proposed standby charges must distinguish between standby customers with unlimited use of the utility's service, and those with backup service restricted to off-peak replenishment of energy storage systems.

(3) Any utility requesting "standby charges" in the future must inform the Commission of the means by which the utility intends to determine which of its customers are to be subject to the standby charge if approved.

History

Authorizing statute(s): Secs. 69-3-103, MCA
Implementing statute(s): 69-3-301, MCA
History: NEW, 1978 MAR p. 1736, Eff. 12/29/78.

Mont. Admin. R. 38.5.1205 Exemption: Standby Charges for Industrial Customers

(1) These rules shall apply to all requests for standby charges for residential and commercial classes of customers; these rules shall not apply to requests for standby charges for industrial customers.

History

Authorizing statute(s): Secs. 69-3-103, MCA
Implementing statute(s): 69-3-301, MCA
History: NEW, 1978 MAR p. 1737, Eff. 12/29/78.

Subchapter 38.5.13 Telephone Extended Area Service Guidelines

Mont. Admin. R. 38.5.1301 Definition

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED) .

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-301, MCA
History: NEW, 1978 MAR p. 1553, Eff. 12/1/78; REP, 1995 MAR p. 2038, Eff. 9/29/95

Mont. Admin. R. 38.5.1302 Conditions for Approval

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED) .

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-301, MCA
History: NEW, 1978 MAR p. 1553, Eff. 12/1/78; REP, 1995 MAR p. 2038, Eff. 9/29/95

Mont. Admin. R. 38.5.1303 Procedure

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-301, MCA
History: NEW, 1978 MAR p. 1553, Eff. 12/1/78; REP, 1995 MAR p. 2038, Eff. 9/29/95.

Mont. Admin. R. 38.5.1305 Definitions

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-301, MCA
History: NEW, 1995 MAR p. 2038, Eff. 9/29/95; REP, 2015 MAR p. 1203, Eff. 8/14/15.

Mont. Admin. R. 38.5.1307 Eas -- General

(1) The repeal of these rules does not affect the status of any existing EAS arrangement.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-301, MCA
History: NEW, 1995 MAR p. 2038, Eff. 9/29/95; AMD, 2015 MAR p. 1203, Eff. 8/14/15.

Mont. Admin. R. 38.5.1309 Eas Procedure -- General

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-301, MCA
History: NEW, 1995 MAR p. 2038, Eff. 9/29/95; REP, 2015 MAR p. 1203, Eff. 8/14/15.

Mont. Admin. R. 38.5.1311 Eas Procedure -- Regions

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-301, MCA
History: NEW, 1995 MAR p. 2038, Eff. 9/29/95; REP, 2015 MAR p. 1203, Eff. 8/14/15.

Mont. Admin. R. 38.5.1313 Eas Procedure -- Phase I, Community of Interest Determination

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-301, MCA
History: NEW, 1995 MAR p. 2038, Eff. 9/29/95; REP, 2015 MAR p. 1203, Eff. 8/14/15.

Mont. Admin. R. 38.5.1315 Eas Procedure -- Phase Ii, Cost Analysis and Rate Design

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-301, MCA
History: NEW, 1995 MAR p. 2038, Eff. 9/29/95; REP, 2015 MAR p. 1203, Eff. 8/14/15.

Subchapter 38.5.14 Termination of Gas and Electric Service

Mont. Admin. R. 38.5.1401 Definitions

For purposes of this subchapter:

(1) "Appliances essential for maintenance of health" means any electric or gas energy-using device which is certified by a licensed physician as being essential to prevent or to provide relief from serious illness or to sustain the life of a member of the household and for which there is no reasonable alternative.

(2) "Customer" means any purchaser of gas or electric service supplied by a utility for residential purposes. A person who requests disconnection of service at his or her current address in order to move service to his or her new address with no break in the service is an existing customer, not an applicant for new service.

(3) "Delinquent account" means an account for residential service which remains unpaid for at least 30 days after the bill is rendered. The exact due date shall be printed on the face of the bill.

(4) "Elderly" means any residential electric or gas consumer aged 62 or older, who resides at the service address.

(5) "Handicapped" means any residential electric or gas consumer who resides at the service address and has any physicial or mental impairment which substantially limits one or more of such person's life activities, and such person:

(a) is certified as being physicially disabled by a licensed physician, or

(b) is certified as being mentally disabled by a licensed psychiatrist or registered psychologist, veterans administration, social security administration, or local board of health.

(6) "Landlord customer" means one or more individuals or an organization listed on a gas or electric utility's records as the party responsible for payment of the gas or electric service provided to one or more residential units of a building, which is occupied by a tenant.

(7) "Person unable to pay or to pay only in installments" means any purchaser of electric or gas service for residential purposes, who is a recipient of public assistance and/or has an income at or below federal poverty guidelines.

(8) "Residential building" means a building containing one or more dwelling units occupied by one or more tenants, but excluding hotels and motels not used primarily for residential purposes.

(9) "Tenant" means any person or group of persons whose dwelling unit in a residential building is provided natural gas or electricity, pursuant to a rental agreement, but who is not the customer of the utility which supplies said gas or electricity.

(10) "Termination of service" means a cessation of service effectuated by the utility and not voluntarily requested by a customer.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 641, Eff. 2/29/80; AMD, 2000 MAR p. 1080, Eff. 4/28/00.

Mont. Admin. R. 38.5.1402 Grounds for Termination of Service

(1) Subject to the requirements of these rules, a utility may terminate service to a customer for any of the following reasons:

(a) Nonpayment of a delinquent account;

(b) Misrepresentation of identity for the purpose of obtaining utility service;

(c) Unauthorized interference, diversion or use of the utility's service situated or delivered on or about the customers premises;

(d) Failure to comply with the terms and conditions of a deferred payment agreement made in accordance with these rules;

(e) Refusal to grant a duly authorized representative of a utility access to equipment upon the premises of the customer at reasonable times for the purpose of inspection, maintenance or replacement when the utility has given the customer reasonable notice of the need for such access and the time of visitation;

(f) Violation of other rules of the commission or utility which adversely affects the safety of the customers or other persons, or the integrity of the utility's delivery system.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 642, Eff. 2/29/80.

Mont. Admin. R. 38.5.1403 Prohibited Grounds for Termination of Service

(1) Neither of the following shall constitute grounds for a utility to terminate service:

(a) The failure of any person, other than the customer against whom termination is sought, to pay any charges due to the utility;

(b) The failure of a customer to pay for merchandise, appliances or other services not contained in tariffs approved by the commission.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 644, Eff. 2/29/80.

Mont. Admin. R. 38.5.1404 Statement of Termination Policy

(1) A current general statement of the utility's termination policy shall be posted in all local business offices of the utility, shall be made available upon request to all existing customers and shall be provided to all new customers when they initiate service. This statement must be written in clear and understandable language and must include the following information:

(a) The time allowed to pay outstanding bills;

(b) A statement that arrangements for installment payment of delinquent bills can be made at any time prior to termination of service;

(d) The time allowed to initiate a dispute;

(e) Instructions for designating a third party to receive a copy of termination notices;

(f) Instructions for designating elderly or handicapped status or a medical emergency;

(g) Instructions for designating the presence of special appliances essential for maintenance of health or safety.

(h) Details of the method of termination as described in ARM 38.5.1413.

(i) Availability of a copy of the Commission's rules on termination of service.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 644, Eff. 2/29/80.

Mont. Admin. R. 38.5.1405 Notice Prior to and at the Time of Termination

(1) A utility may not terminate service to any residential, firm, commercial, industrial or other customer unless written notice is served.

(2) Termination notice shall be served as follows:

(a) If no response to the first notice is received within ten days of mailing, the utility must send a second notice by first class or certified mail (return receipt requested) . The second notice must be sent by the utility or personally served on the customer at least ten days prior to the date of the proposed termination.

(b) A utility may terminate utility services upon serving written notice five business days prior to the proposed termination date when a customer:

(i) remits an insufficient funds check as payment to the utility after receiving the first notice of termination, or

(ii) breaches a payment agreement made pursuant to ARM 38.5.1415.

(c) The provisions of (a) shall govern notice of termination to landlord customers, except that the first notice must be sent at least 30 days prior to the date of the proposed termination.

(d) The utility shall give written notice of the proposed termination for nonpayment to each residential unit reasonably likely to be occupied by an affected tenant of a landlord customer subject to termination. Such notice shall not be rendered earlier than five business days following initial notification to the landlord customer. However, if the landlord customer disputes the amount owing, such notice shall not be rendered until the dispute has been resolved. In no event shall such notice be served upon the tenants less than 15 days prior to the termination of service to the landlord customer on account of nonpayment. Upon affidavit, the Commission may, for good cause shown by the utility, reduce the minimum time between notification of the landlord customer and notification of the tenants.

(e) Prior to termination of service the utility must make a diligent attempt to contact the customer, either in person or by telephone, to apprise him of the proposed action. If telephone or personal contact is not made, the utility employee shall leave notice in a place conspicuous to the customer that service will be terminated on the next business day unless the delinquent charges have been paid.

(3) When service is terminated, the utility employee terminating service shall leave notice upon the premises in a place conspicuous to the customer that service has been terminated which gives the address and telephone number of the utility where the customer may arrange to have service restored. The utility shall have personnel available after the time of termination and during normal business hours authorized to reconnect service if the conditions cited as grounds for termination are corrected to the utility's satisfaction and upon payment of any reconnection charge specified in the utility's filed tariffs.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 645, Eff. 2/29/80; AMD, 1982 MAR p. 2177, Eff. 12/31/82.

Mont. Admin. R. 38.5.1406 Contents of Written Notice

(1) The written notices required by these rules must contain:

(a) The utility's statement of termination policy;

(b) An identification of the customer and service account affected by the proposed termination;

(d) The date of proposed termination;

(e) The amount of the reconnection fee, if any;

(f) A summary of rights and remedies, including procedures to dispute the termination notice, provisions relating to elderly and handicapped consumers and those suffering a medical emergency, provisions for customers who are unable to pay their bills and steps necessary to make a claim of inability to pay, availability of installment payment arrangements and sources of financial assistance.

(g) Designation of the bill in question as actual or estimated;

(h) Except for notification of tenants, amount owed and time period over which amount was incurred;

(i) Instructions on how service can be restored;

(j) In the case of a landlord customer, the date on or after which the utility will notify tenants of the proposed termination.

(k) In the case of notification of tenants:

(i) The amount of an average monthly bill for utility service to the premises and the largest bill for utility service to the premises in the previous 12 months;

(ii) A statement that Commission procedures and the Laws of Montana may give the tenant certain rights with respect to which the tenant may wish to consult an attorney or Montana Legal Services.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 647, Eff. 2/29/80.

Mont. Admin. R. 38.5.1407 Grounds for Termination of Service Without Written Notice

(1) A utility may terminate service without prior notice only:

(a) If a condition immediately dangerous or hazardous to life, physicial safety or property exists;

(b) Upon order by any court, the Commission or any other duly authorized public authority;

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 648, Eff. 2/29/80.

Mont. Admin. R. 38.5.1408 Customer's Right to Dispute a Termination Notice

(1) Utilities must provide a reasonable procedure for customers to dispute the termination of service. If the utility decides such a dispute against the customer, it must do so in writing and must advise the customer that he or she may appeal the decision to the Commission. If the Commission is not able to resolve the complaint informally, formal complaint proceedings under ARM 38.2.2101, may be instituted by the customer.

(2) In its investigation of the proposed termination or during any hearing regarding the proposed termination, the Commission may make inquiry of the parties as to the following matters, among others:

(a) The extent to which the customer has control over their source of money for payments, including such matters as the lateness of public assistance checks;

(b) Weather conditions;

(d) The ages of the persons residing in the affected units;

(e) The existence of, or potential for, termination of service by other companies.

(3) The Commission may consider and give due weight to the above matters in any decision rendered on the appeal.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 648, Eff. 2/29/80.

Mont. Admin. R. 38.5.1409 Termination Notice for Nonpayment-When Prohibited

(1) A notice of termination of service may not be issued for nonpayment of a delinquent account if the entire amount is disputed by the customer and the customer is currently negotiating the dispute with the utility or has filed a complaint with the commission. A utility may, however, issue a notice of termination of service with respect to that portion of any delinquent account which is not disputed by the customer.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 649, Eff. 2/29/80.

Mont. Admin. R. 38.5.1410 Termination of Service During Winter Months

(1) During the period November 1st to April 1st and on any day when the reported ambient air temperature at 8:00 a.m. is at or below freezing or if the U.S. Weather Service forecasts a snowstorm or freezing temperatures for the succeeding 24-hour period, no termination of residential service may take place if the customer establishes that he or she is unable to pay, or able to pay only installments, that he or she or a member of the household is at least 62 years old or that he or she or a member of the household is handicapped.

(2) No termination of service may take place during the period of November 1st to April 1st except with specific prior approval of the Commission.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 650, Eff. 2/29/80.

Mont. Admin. R. 38.5.1411 Medical Exceptions

(1) Except as provided herein‚ service may not be terminated to a residence where a licensed health care professional certifies to the utility that the absence of service will aggravate an existing medical condition which would threaten the health of any permanent resident. A licensed health care professional means a licensed physician‚ physician assistant-certified‚ advanced practice registered nurse‚ or registered nurse provided for in ARM 37.106.2805 and Title 37, MCA. All certifications must be in writing and provide the name and address of the person with the medical condition that would be aggravated by a termination of service. The certification must include the printed name, signature‚ office address, and telephone number of the certifying licensed health care professional. A medical condition certificate is valid for 180 days from the date it is signed and dated by the licensed health care professional‚ and may be renewed on a semiannual basis.

(2) To avoid the accumulation of a substantial arrearage during the term of the medical certificate, the utility and the customer, or an authorized representative of the customer, shall negotiate an equitable payment arrangement that is reasonable and consistent with the customer's ability to pay. If the customer fails to make payments as established, resulting in an arrearage of $500 or more, the customer is required to enter into and comply with a monthly payment arrangement equal to the average of the last 12 months billing plus 1/12 of the arrearage. Failure to enter into a monthly payment arrangement and make payments will result in disconnection proceedings being initiated as set out in (3).

(3) The utility must provide written notice of the initiation of disconnection proceedings to the customer. If the missed payments are not received within ten days of mailing‚ the utility must send a second notice. From the date of the second notice the customer must pay at least one-third of the delinquent charges to avoid termination of service. The second notice must be sent by the utility at least ten days prior to the date of the proposed termination. All written notices must be sent by first class or certified mail. Prior to termination of service the utility must make a diligent attempt to contact the customer‚ either in person or by telephone‚ to apprise the customer of the proposed action. If telephone or personal contact is not made‚ the utility employee shall leave notice in a place conspicuous to the customer that service will be terminated on the next business day. If the required payment is made‚ a new payment arrangement will be recalculated consistent with (2). Under no circumstances shall disconnection proceedings occur on accounts with an arrearage of less than $500. Nothing in this rule prevents a utility from continuing service to a delinquent medically protected account.

(4) The utility must notify the commission in writing of the proposed termination at the beginning of the disconnection process. The commission may intervene and require a different payment arrangement or delay termination of services if the circumstances warrant. Before the commission will consider approving an alternate payment arrangement, the customer must apply, if eligible, for financial aid through organizations providing utility bill payment assistance and must respond to commission requests for information. The payment arrangement set by the commission is binding upon both the customer and the utility. Failure to comply with the payment arrangement may result in disconnection proceedings being initiated as set out in (3).

(5) From November 1 through March 31, the utility may not terminate a medical exception account protected from disconnection by the criteria established in ARM 38.5.1410.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 1980 MAR p. 651, Eff. 2/29/80; AMD, 2010 MAR p. 754, Eff. 3/26/10.

Mont. Admin. R. 38.5.1412 Time of Termination

(1) Service shall not be discontinued on a day, or a day immediately preceding a day, when the services of the utility are not available to the general public for the purpose of reconnecting terminated service. Service may be terminated only between the hours of 8:00 a.m. and 12:00 noon.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 652, Eff. 2/29/80.

Mont. Admin. R. 38.5.1413 Method of Termination

(1) Actual termination may not take place until one day after personal or telephone notice or, in the alternative, one business day after notice has been posted in a place conspicuous to the customer when the customer was not contacted personally or by phone.

(2) The utility's representative (employee) shall attempt to inform the occupant of the affected residence that service is to be discontinued. The employee shall present the occupant with a statement of charges due and shall request verification that the delinquent charges have not been paid or are not subject to a dispute previously registered with the utility or the Commission. Upon the presentation of evidence which reasonably indicates that the charge has been paid or is subject to a dispute previously registered with the utility or the Commission, service shall not be terminated.

(3) The employee shall be authorized to accept payment. If payment in full of all delinquent charges is tendered, service shall not be terminated.

(4) Payment may be tendered in any reasonable manner including personal check. Payment by personal check is not reasonable if the customer has paid the utility with checks returned for insufficient funds twice or more within the previous two years.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 653, Eff. 2/29/80.

Mont. Admin. R. 38.5.1414 Third-Party Notification

(1) If a customer designates a third person to receive customer notifications of termination of service, the utility shall forward a duplicate of such notices to the designated third party. The third party so notified will not be liable for the account of the customer, unless he or she has agreed to be a guarantor for the customer.

(2) Each utility shall promptly, and in no event later than 90 days after the effective date of these rules, devise procedures reasonably designed to provide a voluntary system of third party notification for all customers. Such procedures shall be submitted by each company in writing to the Commission. The Commission may require, by a written notification, such modifications of a utility's procedures as it considers reasonably necessary to carry out the purposes of this rule.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 654, Eff. 2/29/80.

Mont. Admin. R. 38.5.1415 Payment Arrangements

(1) When a customer cannot pay a bill in full, the utility may continue to serve the customer if the customer and the utility can agree on a reasonable portion of the outstanding bill to be paid immediately, and the manner in which the balance of the outstanding bill shall be paid.

(2) In deciding on the reasonableness of a particular agreement, the utility shall take into account the customer's ability to pay, the size of the unpaid balance, the customer's payment history, and the amount of time and reasons why the debt is outstanding.

(3) If a customer fails to make the payment agreed upon by the date that it is due, the utility may, but is not obligated to, enter into a second such agreement.

(4) No such agreement or settlement shall be binding upon a customer if it requires the customer to forego any right provided for in these rules.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 654, Eff. 2/29/80.

Mont. Admin. R. 38.5.1416 Identification of Landlord Customers

(1) Utilities shall determine, prior to termination, whether the residence subject to termination is occupied by a tenant.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 655, Eff. 2/29/80.

Mont. Admin. R. 38.5.1417 Notice to Commission of Terminations Affecting Tenants

(1) Notwithstanding anything contained elsewhere in these rules, prior to any termination for nonpayment which would affect tenants, the utility shall notify the Commission in writing of the proposed termination. Upon notice and investigation of such proposed termination, or during any hearing pursuant to the complaint procedures provided for in ARM 38.2.2101 et seq., the Commission may make inquiry of the parties as to the following matters, among others:

(a) The amount the tenants have paid to the utility in relation to the amount equal to one month's bill, and the arrearage on any earlier bill due from tenants;

(b) The number of vacant units in the building;

(c) The extent to which the tenants have control over their source of money for rent payments, including such matters as the lateness of public assistance checks, direct rent payments by the Welfare Department to the tenants' landlord, or participation by tenants in a leased housing or rental assistance program;

(d) Whether the tenants are engaged in rent withholding against their landlord;

(e) The amount of payments recently received by the utility from the landlord and the size of the past due bill of the landlord;

(f) Whether the utility has pursued collection remedies, other than threatened termination of service, against the landlord;

(g) Weather conditions;

(h) The existence of illness of persons residing in the affected units;

(i) The ages of the persons residing in the affected units;

(j) The availability of other housing to the tenants; and

(k) The existence of, or potential for, termination of service by other companies.

(4) The Commission may consider and give due weight to the above matters in any decision rendered on the complaint.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 657, Eff. 2/29/80.

Mont. Admin. R. 38.5.1418 Exemptions

(1) If hardships result from the application of any of these termination rules, or if unusual difficulty is involved in complying with any of these rules, application may be made by any utility to the Commission for permanent or temporary exemption from its provision, but such application shall be supported by full and complete justification for such action.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 658, Eff. 2/29/80.

Subchapter 38.5.15 Rate Information to be Provided by Electric Utilities

Mont. Admin. R. 38.5.1501 Existing Rate Information

(1) Each electric utility shall transmit to each of its consumers a clear and concise statement containing the existing rate schedule applicable to such consumer.

(2) The statement of existing applicable rate schedule shall be sent at least once each year to each consumer, the initial statement to be sent within 90 days of adoption of this rule, or within 60 days of commencement of service to new consumers, whichever is later. If the applicable rate schedule is changed during the course of any year, a statement of the new rate schedule shall be sent to each consumer concurrent with the bill which reflects for the first time the change in rate.

(3) Each electric utility shall transmit to each of its electric consumers not less frequently than once each year a clear and concise summary explaining the existing rate schedules applicable to each of the major classes of its electric consumers for which there is a separate rate and shall identify each class of consumer whose rates are not summarized.

(4) The summary may be transmitted with the consumer's bill or in such other manner that each electric utility deems appropriate.

History

Authorizing statute(s): Secs. 2-4-303 and 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 2497, Eff. 8/29/80.

Mont. Admin. R. 38.5.1502 Proposed Rate Changes Information

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Secs. 2-4-303 and 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 2497, Eff. 8/29/80; REP, 1998 MAR p. 2968, Eff. 11/6/98.

Mont. Admin. R. 38.5.1503 Optional or Alternative Rate Information

(1) Within 60 days of any establishment of optional or alternative rate schedules, and annually thereafter, the utility shall furnish each consumer who may be affected by them, a summary of the applicable rate schedules, together with a notice calling the attention of the consumer to the availability of alternative rate schedules for the consumer's particular class of service and stating that, upon request, the utility will assist the consumer in determining the billing for such service as is specified by the consumer under the various rate schedules.

History

Authorizing statute(s): Secs. 2-4-303 and 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 2498, Eff. 8/29/80.

Mont. Admin. R. 38.5.1504 Individual Consumption Information

(1) Each electric utility, upon request of a consumer, shall deliver to the consumer a clear and concise written summary of the actual consumption of electric energy by the consumer during each billing period of the previous 12 months if such data is reasonably ascertainable by the utility.

History

Authorizing statute(s): Secs. 2-4-303 and 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 2498, Eff. 8/29/80.

Mont. Admin. R. 38.5.1505 Information to Be Kept in Utility Offices

(1) Each electric utility shall keep on file in every office of the utility where payments are received, copies of its rate schedules and rules and regulations applicable thereto. Reasonable notice shall be given consumers as to where this information is available.

History

Authorizing statute(s): Secs. 2-4-303 and 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 2498, Eff. 8/29/80.

Mont. Admin. R. 38.5.1506 Billing Dispute Information

(1) Each electric utility shall assign to one or more of its personnel in each of its offices where it transacts business with the public, the duty of hearing, in person, any dispute by a consumer. Such personnel shall consider the consumer's allegations and shall explain the consumer's account and the utility's contentions in connection therewith. Such personnel shall be authorized to act on behalf of the utility in resolving the complaint and act on behalf of the utility in resolving the complaint and shall be available during all business hours for the duty hereinbefore described.

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History

Authorizing statute(s): Secs. 2-4-303 and 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 2498, Eff. 8/29/80.

Subchapter 38.5.16 Master Meters in New Buildings

Mont. Admin. R. 38.5.1601 Definitions

(1) For purposes of this rule:

(a) "New building" means:

(i) any building the construction of which commenced six months after the effective date of these rules; and

(ii) any existing building in which the replacement of the electrical system is commenced six months after the effective date of these rules, in which there are more than one unit and the occupant of each such unit has control over a portion of the electric energy used in such unit.

(b) "Construction" or "replacement" commences at the time physical labor involved with the erection of the building or the actual replacement of the electrical system begins.

History

Authorizing statute(s): Secs. 2-4-303 and 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 2502, Eff. 8/29/80.

Mont. Admin. R. 38.5.1602 Prohibition of Master Meters

(1) All electricity delivered to a new building shall be sold by the electric utility on the basis of individual meter measurement for each occupancy unit, except for:

(a) Electricity delivered to hotels, motels, hospitals, dormitories, and other similar transient lodging;

(b) Where the individual contractor or owner of a new building provides to the utility, in writing before commencement of construction or replacement, data showing that the contractor's or owner's costs of purchasing and installing facilities for separate metering, when added to the utility's costs of purchasing and installing separate meters, exceed the long run benefits.

(2) Each electric utility shall, by March 1, 1981, submit to the commission for approval the criteria by which the utility proposes to analyze utility and owner or contractor costs when a determination of whether the costs of purchasing and installing separate meters exceed the long-range benefits of separate metering is required.

History

Authorizing statute(s): Secs. 2-4-303 and 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 2502, Eff. 8/29/80.

Mont. Admin. R. 38.5.1603 Utilities to Assure Compliance-Appeal to Commission

(1) The affected electric utilities shall assure compliance with ARM 38.5.1602 and shall not furnish service to a new building that does not comply with ARM 38.5.1602. If a dispute arises between the utility and the builder or owner of a new building, either party may petition the commission to make a determination on the appropriateness of requiring individual meters for the building.

(2) The affected electric utilities shall submit to the public service commission, by March 1, 1981, and semi-annually thereafter:

(a) A list of the contractors or owners of new buildings who, during the reporting period, have submitted written data to the utility to establish exception status from ARM 38.5.1602; and

(b) A list of the contractors or owners of new buildings for which the utility has recognized such exception status during the reporting period.

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History

Authorizing statute(s): Secs. 2-4-303 and 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 2503, Eff. 8/29/80.

Subchapter 38.5.17 Automatic Adjustment Clauses

Mont. Admin. R. 38.5.1701 Definition

(1) As defined in the Public Utility Regulatory Policies Act of 1978, and for purposes of this rule:

(a) "Automatic adjustment clause" means a provision of a rate schedule which provides for increases or decreases (or both) , without prior hearing, in rates reflecting increases or decreases (or both) in costs incurred by an electric utility. Such term does not include an interim rate which takes effect subject to a later determination of the appropriate amount of the rate.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 2969, Eff. 11/29/80.

Mont. Admin. R. 38.5.1702 Automatic Adjustment Clauses Prohibited

(1) Section 69-3-303 , MCA, which requires notice and public hearing before the commission may approve increases in utility rates of general applicability, prohibits the use of automatic adjustment clauses.

(2) It is the policy of the Montana public service commission to preserve the hearing process demanded by section 69-3-307 , MCA, and by the Montana Administrative Procedure Act, and on that ground to deny the use of automatic adjustment clauses in utility rate schedules of general applicability.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1980 MAR p. 2969, Eff. 11/29/80.

Subchapter 38.5.18 Outdoor Lighting

Mont. Admin. R. 38.5.1801 Purpose and Object of Rules

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Secs. 69-3-101, 69-3-102, 69-3-103(1) and 69-3-106, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-103(1), MCA
History: NEW, 1980 MAR p. 3064, Eff. 5/15/81; REP, 1987 MAR p. 2161, Eff. 11/28/87.

Mont. Admin. R. 38.5.1802 Definitions (is Hereby Repealed)

Publisher status: INEFFECTIVE (not currently effective).

)

History

Authorizing statute(s): Secs. 69-3-101, 69-3-102, 69-3-103(1) and 69-3-106, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-103(1), MCA
History: NEW, 1980 MAR p. 3064, Eff. 5/15/81; REP, 1987 MAR p. 2161, Eff. 11/28/87.

Mont. Admin. R. 38.5.1803 Prohibitions (is Hereby Repealed)

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): Secs. 69-3-101, 69-3-102, 69-3-103(1) and 69-3-106, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-103(1), MCA
History: NEW, 1980 MAR p. 3064, Eff. 5/15/81; REP, 1987 MAR p. 2161, Eff. 11/28/87.

Mont. Admin. R. 38.5.1804 Exemptions (is Hereby Repealed)

Publisher status: INEFFECTIVE (not currently effective).

History

Authorizing statute(s): Secs. 69-3-101, 69 69-3-103(1) and 69-3-106, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-103(1), MCA
History: NEW, 1980 MAR p. 3065, Eff. 5/15/81; REP, 1987 MAR p. 2161, Eff. 11/28/87.

Mont. Admin. R. 38.5.1805 Exemptions Based on Historical Significance

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Secs. 69-3-101, 69-3-102, 69-3-103(1) and 69-3-106, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-103(1), MCA
History: NEW, 1980 MAR p. 3066, Eff. 5/15/81; REP, 1987 MAR p. 2161, Eff. 11/28/87.

Mont. Admin. R. 38.5.1806 Exemptions Based on Memorial Lighting

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Secs. 69-3-101, 69-3-102, 69-3-103(1) and 69-3-106, MCA
Implementing statute(s): . 69-3-102 and 69-3-103(1), MCA
History: NEW, 1980 MAR p. 3066, Eff. 5/15/81; REP, 1987 MAR p. 2161, Eff. 11/28/87.

Mont. Admin. R. 38.5.1807 Exemptions Based on Commercial Lighting of Traditional Significance

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Secs. 69-3-101, 69-3-102, 69-3-103(1) and 69-3-106, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-103(1), MCA
History: NEW, 1980 MAR p. 3067, Eff. 5/15/81; REP, 1987 MAR p. 2161, Eff. 11/28/87.

Mont. Admin. R. 38.5.1808 Exemption Based on Safety of Persons and Property

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Secs. 69-3-101, 69-3-102, 69-3-103(1) and 69-3-106, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-103(1), MCA
History: NEW, 1980 MAR p. 3067, Eff. 5/15/81; REP, 1987 MAR p. 2161, Eff. 11/28/87.

Mont. Admin. R. 38.5.1809 Temporary Exemption Based on Time Needed to Install Substitute Lighting

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Secs. 69-3-101, 69-3-102, 69-3-103(1) and 69-3-106, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-103(1), MCA
History: NEW, 1980 MAR p. 3068, Eff. 5/15/81; REP, 1987 MAR p. 2161, Eff. 11/28/87.

Mont. Admin. R. 38.5.1810 Exemption Based on Substantial Expense

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): Secs. 69-3-101, 69-3-102, 69-3-103(1) and 69-3-106, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-103(1), MCA
History: NEW, 1980 MAR p. 3068, Eff. 5/15/81; REP, 1987 MAR p. 2161, Eff. 11/28/87.

Mont. Admin. R. 38.5.1811 Exemption Based on the Public Interest

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

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History

Authorizing statute(s): Secs. 69-3-101, 69-3-102, 69-3-103(1) and 69-3-106, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-103(1), MCA
History: NEW, 1980 MAR p. 3068, Eff. 5/15/81; REP, 1987 MAR p. 2161, Eff. 11/28/87.

Subchapter 38.5.19 Cogeneration and Small Power Production

Mont. Admin. R. 38.5.1901 Definitions

(1) For purposes of these rules, the following definitions apply:

(a) "Avoided costs" is defined as provided in 18 CFR 292.101(b)(6).

(b) "Cogeneration facility" is defined as provided in 18 CFR 292.202(c).

(d) "FERC" means the Federal Energy Regulatory Commission.

(e) "Interconnection costs" is defined as provided in 18 CFR 292.101(b)(7).

(f) "Production profile" means the expected hourly generation output of a qualifying facility for a full year based on an engineering analysis of the qualifying facility’s power production capabilities and fuel use or availability.

(g) "Purchase" is defined as provided in 18 CFR 292.101(b)(2).

(h) "Qualifying facility" or "facility" means a cogeneration facility or small power production facility that meets the criteria established by FERC regulations in 18 CFR, Part 292, the requirements of 69-3-601, MCA, and has self-certified or been certified by FERC.

(i) "Rate" is defined as provided in 18 CFR 292.101(b)(5).

(j) "Resource plan" means the utility's integrated least cost resource plan, developed through the process described in Commission rules.

(k) "Sale" is defined as provided in 18 CFR 292.101(b)(3).

(l) "Small power production facility" is defined as provided in 18 CFR 292.204.

(m) "Standard rates" means those rates for qualifying facilities with a nameplate generating capacity of 3 megawatts or less established in a Commission-approved tariff that:

(i) in the case of purchases, are based on avoided costs to the utility, and are applicable to all contracts with qualifying facilities that do not choose to negotiate a different rate; or

(ii) in the case of sales by a utility to a qualifying facility, are the utility's tariff schedules in effect for members of the same class as the qualifying facility.

(n) "System emergency" is defined as provided in 18 CFR 292.101(b)(4).

(o) "Utility" means any public utility, as defined in 69-3-101, MCA, which provides electric service subject to the jurisdiction of the Montana Public Service Commission.

(2) The federal regulations referred to in this rule can be reviewed at the Commission's office or online at https://www.ecfr.gov/current/title-18/chapter-I/subchapter-K/part-292?toc=1 .

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 1981 MAR p. 459, Eff. 5/15/81; AMD, 2018 MAR p. 1298, Eff. 7/7/18; AMD, 2022 MAR p. 1919, Eff. 9/24/22.

Mont. Admin. R. 38.5.1902 General Provisions

(1) Any qualifying facility is eligible to participate, under these rules, in arrangements for purchases and sales of electric power with electric utilities regulated by the Commission.

(2) Any qualifying facility in Montana that produces electric energy or capacity, or both, available for purchase by any public utility regulated by the commission, shall not be considered a public utility within the meaning of 69-3-101, MCA, and shall be exempt from regulation by the commission as a public utility, except insofar as these rules or any other commission order, tariff, requirement, or rule governing the activities of public utilities may affect the facility in its dealings with such regulated utilities. Nothing in these rules is to be construed to limit the full powers of regulation, supervision, and control of public utilities vested by law in the commission.

(3) Nothing in these rules shall exempt any qualifying facility from the applicable licensing or permit requirements which may be imposed on facilities by Montana laws and regulations governing water use, land use, community development and planning, zoning, air quality, environmental protection, or any other existing pertinent law or regulation administered by state agencies other than the commission.

(4) All purchases and sales of electric power between a utility and a qualifying facility that is not eligible for standard rates shall be accomplished according to the terms of a written contract negotiated between the parties and/or terms set by the Commission pursuant to a petition under 69-3-603, MCA. The utility and the qualifying facility must attempt to negotiate an agreement, and if no agreement can be reached, either the utility or the qualifying facility may file a petition with the Commission pursuant to 69-3-603, MCA, to set the terms and conditions of the contract.

(5) All purchases and sales of electric power between a utility and a qualifying facility that is eligible for standard rates shall be accomplished according to the terms of a written contract between the parties or in accordance with the applicable standard rate tariff provisions and any applicable standard power purchase agreement approved by the Commission. The utility shall recompute avoided costs for standard rates following submission of its resource plan.

(6) All contracts between utilities and qualifying facilities shall specify:

(a) the nature of the purchases and sales;

(b) the applicable rate schedule or negotiated rates for the purchases and sales or the Commission-determined rates pursuant to 69-3-603, MCA;

(d) the means for measurement of the energy or capacity purchased or sold by the utility;

(e) the method of payment by the utility for purchases, and the method of payment by the facility for utility sales;

(f) any installation and performance obligations;

(g) the services to be provided or discontinued by either party during system emergencies;

(h) the term of the contract;

(i) applicable operating safety and reliability standards with which the qualifying facility must comply; and

(j) appropriate insurance indemnity and liability provisions.

(7) All purchases and sales of electric power between a utility and a qualifying facility shall be compatible with the goal of the commission's integrated least-cost resource planning and acquisition act, 69-3-1201 through 69-3-1209, MCA.

History

Authorizing statute(s): 69-3-103, 69-3-604, MCA
Implementing statute(s): 69-3-102, 69-3-602, 69-3-603, MCA
History: NEW, 1981 MAR p. 459, Eff. 5/15/81; AMD, 1992 MAR p. 2764, Eff. 12/25/92; AMD, 2007 MAR p. 2140, Eff. 12/21/07; AMD, 2013 MAR p. 2161, Eff. 11/15/13; AMD, 2015 MAR p. 2318, Eff. 12/25/15; AMD, 2022 MAR p. 1919, Eff. 9/24/22.

Mont. Admin. R. 38.5.1903 Obligations of Utilities to Qualifying Facilities

(1) Each utility shall purchase any energy and capacity made available by a qualifying facility, except that a utility is not obligated to make purchases from an interconnected qualifying facility:

(a) during system emergencies as allowed in 18 CFR 292.307;

(b) as agreed upon in the contract between the utility and the qualifying facility; or

(2) Except as provided in this rule, each utility shall purchase any energy and capacity made available by a qualifying facility at the rate established under ARM 38.5.1905.

(3) Each utility shall sell to any qualifying facility all electricity requested by the facility.

(4) Each utility shall make such interconnections with a qualifying facility in accordance with the provisions of ARM 38.5.1904.

(5) Each electric utility shall offer to operate in parallel with a qualifying facility provided that the qualifying facility complies with any applicable standards established by the Commission, as required by 18 CFR 292.303(e).

(6) Consistent with 18 CFR 292.303(d), any utility which is otherwise obligated to purchase energy or capacity from a qualifying facility may, if the affected qualifying facility agrees, transmit energy or capacity purchased from the facility to any other electric utility. Any electric utility subject to the commission's jurisdiction that receives this energy or capacity shall be subject to the pricing provisions contained in these rules. The rate for purchase by the electric utility to which such energy is transmitted shall be adjusted up or down to reflect line losses and shall not include any charges for transmission.

(7) Each utility shall, if required by the Commission, include installation and performance incentive provisions in any contract with a qualifying facility. Such provisions shall offer a maximum dollar amount per kw per month for any month in which the facility's energy output meets or exceeds specified levels of performance.

(8) Each utility shall, upon initial contact with a potential qualifying facility, provide the potential qualifying facility with one (1) copy of:

(a) these rules;

(b) if it appears the qualifying facility is eligible for the utility's Commission-approved standard rate tariff, a copy of that tariff and any applicable Commission-approved power purchase agreement;

(i) a list of all information required to provide an initial calculation of avoided costs pursuant to ARM 38.5.1910; and

(ii) upon the request of the qualifying facility and the receipt of all required information, an initial calculation of avoided costs pursuant to ARM 38.5.1910;

(d) the Commission's standard complaint procedure; and

(e) the utility's Commission-approved standard power purchase agreement, as applicable.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 1981 MAR p. 459, Eff. 5/15/81; AMD, 2022 MAR p. 1919, Eff. 9/24/22.

Mont. Admin. R. 38.5.1904 Obligations of Qualifying Facilities to Utilities

(1) A qualifying facility shall specify in its contract with a utility the nature of the purchases undertaken in the contract, including:

(a) The technology used in the production of energy or capacity by the qualifying facility;

(b) The qualifying facility's best estimate of the facility's energy and/or capacity supply characteristics, including its dispatchability and availability during utility system daily and seasonal peak periods and during system emergencies.

(2) A qualifying facility that sells all of its generation to the interconnecting utility shall be fully responsible for interconnection costs and shall:

(a) Submit, for written approval prior to actual installation equipment specifications and detailed plans to the utility for the installation of its interconnection facilities, control and protective devices, and facilities to accommodate utility meter(s) .

(b) Provide and install necessary meter socket and enclosure equipment at or near the point of interconnection, unless the utility has agreed to install the equipment and the facility has agreed to pay for this service; and

(c) Fund or reimburse the utility for interconnection costs, as defined in 18 CFR 292.101(b)(7). Such reimbursement may be accomplished by means of amortization over a reasonable period of time within the term of the contract and such costs must be reasonable according to industry standards.

(3) Interconnection costs undertaken by the utility shall be reimbursed by the qualifying facility on a nondiscriminatory basis with respect to other customers with similar load characteristics.

(4) A qualifying facility shall be required to provide power to a utility during a system emergency only to the extent specified in the contract between the facility and the utility, unless the qualifying facility is able to supply additional power and agrees to do so.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 1981 MAR p. 459, Eff. 5/15/81; AMD, 2022 MAR p. 1919, Eff. 9/24/22.

Mont. Admin. R. 38.5.1905 Rates for Purchases

(1) Each utility shall purchase available power from any qualifying facility at:

(a) the standard rate determined by the Commission to be appropriate for the utility;

(b) the rate determined following a petition pursuant to 69-3-603, MCA; or

(2) The rate paid by the utility for any purchase shall not exceed the utility's avoided costs. Avoided costs will be calculated as provided in this rule, unless the utility and the qualifying facility agree upon a different rate.

(a) For as-available purchases, the avoided cost of energy and capacity will be calculated at the time of delivery of the facility's energy or capacity.

(b) For purchases subject to an established legally enforceable obligation, the avoided cost of capacity will be calculated at the time the legally enforceable obligation was formed, and the avoided cost of energy will be calculated at the time of delivery of the facility's energy.

(3) When required by FERC regulation and to the extent practicable, the Commission's determination of avoided costs will take into account the factors described in 18 CFR 292.304(e).

(4) If a qualifying facility has provided in its contract with a utility that measurement of facility energy input to the utility system and measurement of facility load will be accomplished with one meter, the utility shall pay the purchase rate only for the facility's input to the system which is in excess of the facility's load.

(5) If the qualifying facility has agreed in its contract with a utility that measurement of facility input to the utility system shall be accomplished by metering separate from that measuring the facility load, the qualifying facility may receive payment for all of the energy it supplies to the utility according to the applicable schedule of standard rates for purchases. Unless the qualifying facility has contracted for a different rate, the standard rate is applicable regardless of whether the qualifying facility is simultaneously served by the utility for the facility's load, and regardless of the rate charged by the utility for such simultaneous sales.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 1981 MAR p. 459, Eff. 5/15/81; AMD, 1992 MAR p. 2764, Eff. 12/25/92; AMD, 2022 MAR p. 1919, Eff. 9/24/22.

Mont. Admin. R. 38.5.1906 Rates for Sales

(1) Each utility shall sell power delivered to a qualifying facility under the terms of the contract at the same rate applicable to the utility's nongenerating customers belonging to the same class as the qualifying facility or having similar load or other cost-related characteristics.

(2) The standard rates for sales of power to interconnected qualifying facilities shall be each utility's current applicable tariff schedules approved by the commission.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 1981 MAR p. 459, Eff. 5/15/81.

Mont. Admin. R. 38.5.1907 Operating Safety Provisions

(1) Each qualifying facility shall, in the design, installation, interconnection, maintenance, and operation of the facility, comply with the requirements of the National Electrical Safety Code, as incorporated by reference in ARM 38.5.1010.

(2) Each qualifying facility seeking parallel operation with any utility shall provide such control and protective devices as required by the utility for such operation.

(3) Each utility shall have the right:

(a) To enter the premises of the qualifying facility at reasonable times and with reasonable notice for inspection of the facility's protective devices; and

(b) To disconnect without notice if a hazardous condition exists in the generation or other equipment of the qualifying facility, and such immediate action is necessary to protect persons, utility facilities or other customers' facilities from damage or interference imminently likely to result from the hazardous condition.

(4) The Commission shall have the same power to investigate accidents occurring in the operation of any qualifying facility which result in death or serious injury to any person as it has under 69-3-107 , MCA, with respect to public utilities.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 1981 MAR p. 459, Eff. 5/15/81; AMD, 2006 MAR p. 2966, Eff. 12/8/06; AMD, 2022 MAR p. 1919, Eff. 9/24/22.

Mont. Admin. R. 38.5.1908 Information to Be Provided to the Commission

(1) Pursuant to initial contact with a potential qualifying facility, each utility shall provide the Commission with one electronic copy of the utility's initial written response.

(2) No later than July 1 of each even-numbered year, each utility shall file with the Commission the following cost data:

(a) the estimated avoided cost of energy as required by 18 CFR 292.302(b)(1);

(b) the electric utility's latest resource plan, including any supplements, as required by 18 CFR 292.302(b)(2); and

(c) the estimated capacity costs as required by 18 CFR 292.302(b)(3). These costs shall represent the avoidable resources in the utility's resource plan.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 1981 MAR p. 459, Eff. 5/15/81; AMD, 2022 MAR p. 1919, Eff. 9/24/22.

Mont. Admin. R. 38.5.1909 Creation of a Legally Enforceable Obligation

(1) For a proposed, qualifying facility that has not achieved commercial operation, a legally enforceable obligation is created when a qualifying facility has demonstrated, based on objective and reasonable criteria, commercial viability and a financial commitment to construct its facility. A qualifying facility has demonstrated commercial viability and a financial commitment when:

(a) It has obtained qualifying facility status from FERC pursuant to the certification procedures in 18 CFR part 292;

(b) It has provided to the utility the following:

(i) a description of the location of the project;

(ii) an estimate of the energy production for the project, produced through industry-accepted engineering methods, that includes the kilowatt-hours or megawatt-hours to be produced by the qualifying facility for each month and year of the entire term of the qualifying facility's anticipated power purchase agreement;

(iii) an interconnection application, including any application fees;

(iv) a signed, written statement committing to sell output from the qualifying facility to the utility over a proposed term of a power purchase agreement and stating the proposed term for the proposed power purchase agreement and the proposed avoided cost rate; and

(v) a deposit, paid in full, to cover the estimated costs for a system impact or facilities study;

(c) It has taken meaningful steps to obtain site control adequate to commence construction of the project at the proposed location and operate the facility, throughout the term of the contract;

(d) It has submitted applications, including filing fees, to obtain all necessary permits, licenses, and approvals necessary to construct and operate the facility, and has provided copies of the same to the utility; and

(e) If the qualifying facility seeks payment for an avoided cost of capacity, it has requested to be studied for interconnection as a network resource.

(2) For an existing qualifying facility that has achieved commercial operation, a legally enforceable obligation is created when the qualifying facility has, no more than three years prior to the start of a new power purchase agreement, provided to the utility documentation that includes the following:

(a) documents indicating qualifying facility status obtained pursuant to the certification procedures in 18 CFR part 292;

(b) an updated estimate of the energy production for the project, produced through industry-accepted engineering methods, that includes the kilowatt-hours or megawatt-hours to be produced by the qualifying facility for each month and year of the entire term of the qualifying facility's new power purchase agreement;

(c) a signed, written statement committing to sell output from the qualifying facility to the utility through a new power purchase agreement and stating the term for the proposed power purchase agreement and the proposed avoided cost rate;

(d) a signed, written statement attesting that the qualifying facility will continue to exercise site control adequate to operate the facility throughout the proposed term of the new power purchase agreement, or describing the actions the qualifying facility has taken for continued site control for the term of the new power purchase agreement; and

(e) a signed, written statement attesting that the qualifying facility will maintain all necessary permitting and zoning approvals for the term of the new power purchase agreement, or a description of any actions the qualifying facility has taken to obtain all necessary permitting and zoning approvals applicable for the term of the new power purchase agreement.

History

Authorizing statute(s): 69-3-103, 69-3-604, MCA
Implementing statute(s): 69-3-102, 69-3-604, MCA
History: NEW, 2018 MAR p. 1298, Eff. 7/7/18; AMD, 2022 MAR p. 1919, Eff. 9/24/22; AMD, 2025 MAR, Notice No. 38-5-263, Eff. 1/25/25.

Mont. Admin. R. 38.5.1910 Access to Avoided Cost Data and Modeling

(1) Upon a request from a qualifying facility, a utility shall provide the information required by ARM 38.5.1908(2).

(2) The utility must provide an initial avoided cost calculation within 21 days of receipt of a qualifying facility's resource information, including generating technology, size, location, and production profile, at no cost to the qualifying facility.

(3) Upon a request from a qualifying facility, the utility must provide all data, inputs, and assumptions it will use to calculate avoided costs. The utility must provide additional data and information that the qualifying facility may reasonably request to calculate avoided costs with the qualifying facility's preferred methodology.

(4) If any party uses a proprietary model to calculate avoided costs, the following rules apply:

(a) Each party may request one calculation using another party's model with customized inputs and assumptions, at no cost to the requesting party. The responding party must make the results accessible to the requesting party within 21 days of the request. The requesting party must have adequate access to the model to verify that the customized inputs and assumptions were used. Such access must be provided for at least 21 days.

(b) Each party must accommodate reasonable requests to conduct additional avoided cost calculations using the party's proprietary model and may charge the requesting party a reasonable price for the use of the model beyond the single avoided cost calculation identified in (4)(a).

(c) Nothing in this rule shall require a party that uses proprietary modeling software to provide copies of proprietary modeling software or source code to the requesting party.

(5) Any party may seek sanctions for failure to adhere to this rule, including fines pursuant to 69-3-206 and 69-3-209, MCA, as applicable.

History

Authorizing statute(s): 69-3-103, 69-3-604, MCA
Implementing statute(s): 69-3-102, 69-3-604, MCA
History: NEW, 2018 MAR p. 1298, Eff. 7/7/18; AMD, 2022 MAR p. 1919, Eff. 9/24/22.

Mont. Admin. R. 38.5.1911 Incorporation of Federal Rules

(1) The Commission adopts and incorporates by reference 18 CFR, Part 292, as effective August 5, 2022, which sets forth general requirements and criteria for cogeneration and small power production facilities which are eligible for consideration under section 201 and 210 of the federal Public Utility Regulatory Policies Act of 1978, Pub. L. 95-617. A copy of this incorporated material may be obtained from the Commission, 1701 Prospect Avenue, P.O. Box 202601, Helena, MT 59620-2601, or online at https://www.ecfr.gov/current/title-18/chapter-I/subchapter-K/part-292?toc=1 .

History

Authorizing statute(s): 69-3-103, 69-3-604, MCA
Implementing statute(s): 69-3-102, 69-3-603, 69-3-604, MCA
History: NEW, 2022 MAR p. 1919, Eff. 9/24/22.

Mont. Admin. R. 38.5.1912 Voluntary Mediation

(1) Before the filing of a petition, a utility and qualifying facility may mutually agree to request voluntary mediation through a Commission-appointed mediator. The utility and qualifying facility must equally share the cost of any contracted mediator. Requests for mediation must be signed by authorized representatives of the utility and qualifying facility and filed pursuant to ARM 38.2.1203.

(2) Upon receipt of a request for voluntary mediation, the Commission's presiding officer may appoint a mediator. The appointed mediator may not be a member of Commission staff.

(3) Requests for mediation must be served on the Montana Consumer Counsel.

(4) Unless the parties and appointed mediator otherwise agree, the voluntary mediation will proceed as follows:

(a) Within seven days of the appointment of the mediator, each party must submit to the mediator an opening mediation statement, including a complete copy of each party's proposed power purchase agreement and a list identifying each disputed contract term.

(b) Within seven days of the submission of an opening mediation statement, each party may submit to the mediator a response statement.

(c) The parties and mediator will use reasonable efforts to schedule mediation within 60 days from the date of the request for voluntary mediation.

(5) The filing of a request for voluntary mediation will not affect the formation of a legally enforceable obligation under ARM 38.5.1909.

History

Authorizing statute(s): 69-3-103, 69-3-604, MCA
Implementing statute(s): 69-3-102, 69-3-603, 69-3-604, MCA
History: NEW, 2022 MAR p. 1919, Eff. 9/24/22.

Subchapter 38.5.20 Resource Planning - Electric Utilities

Mont. Admin. R. 38.5.2001 Goal and Policy

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, 69-3-1204, 69-8-1006, MCA
Implementing statute(s): 69-3-102, 69-3-106(1), 69-3-201, 69-3-1202, 69-8-1004, 69-8-1005, MCA
History: NEW, 1992 MAR p. 2764, Eff. 12/25/92; AMD, 2006 MAR p. 1461, Eff. 6/2/06; REP, 2023 MAR p. 21, Eff. 1/14/23.

Mont. Admin. R. 38.5.2002 Definitions

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-106(1), 69-3-201, MCA, ARM 38.5.2001
History: NEW, 1992 MAR p. 2764, Eff. 12/25/92; REP, 2023 MAR p. 21, Eff. 1/14/23.

Mont. Admin. R. 38.5.2003 Environmental Externalities

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-106(1), 69-3-201, MCA, ARM 38.5.2001
History: NEW, 1992 MAR p. 2764, Eff. 12/25/92; REP, 2023 MAR p. 21, Eff. 1/14/23.

Mont. Admin. R. 38.5.2004 Uncertainty and Risk

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-106(1), 69-3-201, MCA, ARM 38.5.2001
History: NEW, 1992 MAR p. 2764, Eff. 12/25/92; REP, 2023 MAR p. 21, Eff. 1/14/23.

Mont. Admin. R. 38.5.2005 Initial Resource Screening

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-106(1), 69-3-201, MCA, ARM 38.5.2001
History: NEW, 1992 MAR p. 2764, Eff. 12/25/92; REP, 2023 MAR p. 21, Eff. 1/14/23.

Mont. Admin. R. 38.5.2006 Optimization of Supply and Demand-Side Resources

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-106(1), 69-3-201, MCA, ARM 38.5.2001
History: NEW, 1992 MAR p. 2764, Eff. 12/25/92; REP, 2023 MAR p. 21, Eff. 1/14/23.

Mont. Admin. R. 38.5.2007 Least Cost Resource Plans

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-106(1), 69-3-201, MCA, ARM 38.5.2001
History: NEW, 1992 MAR p. 2764, Eff. 12/25/92; REP, 2023 MAR p. 21, Eff. 1/14/23.

Mont. Admin. R. 38.5.2008 Rate Design

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-106(1), 69-3-201, MCA, ARM 38.5.2001
History: NEW, 1992 MAR p. 2764, Eff. 12/25/92; REP, 2023 MAR p. 21, Eff. 1/14/23.

Mont. Admin. R. 38.5.2009 Electric Utility Marketing Goals, Marketing Programs, and Competition for Large Discretionary Loads

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-106(1), 69-3-201, MCA, ARM 38.5.2001
History: NEW, 1992 MAR p. 2764, Eff. 12/25/92; REP, 2023 MAR p. 21, Eff. 1/14/23.

Mont. Admin. R. 38.5.2010 Competitive Resource Solicitations

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-106(1), 69-3-201, MCA, ARM 38.5.2001
History: NEW, 1992 MAR p. 2764, Eff. 12/25/92; REP, 2023 MAR p. 21, Eff. 1/14/23.

Mont. Admin. R. 38.5.2011 Regulatory and Market Barriers to Integrated Least Cost Planning and Acquisition of Demand-Side Resources

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103
Implementing statute(s): 69-3-102, 69-3-106(1), 69-3-201, MCA, ARM 38.5.2001
History: NEW, 1992 MAR p. 2764, Eff. 12/25/92; REP, 2023 MAR p. 21, Eff. 1/14/23.

Mont. Admin. R. 38.5.2012 Submitting Least Cost Plans

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-106(1), 69-3-201, MCA, ARM 38.5.2001
History: NEW, 1992 MAR p. 2764, Eff. 12/25/92; REP, 2023 MAR p. 21, Eff. 1/14/23.

Mont. Admin. R. 38.5.2016 Recovery of Abandonment Costs

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-1206, MCA
Implementing statute(s): 69-3-1206, MCA
History: NEW, 1997 MAR p. 78, Eff. 1/17/97; REP, 2023 MAR p. 21, Eff. 1/14/23.

Mont. Admin. R. 38.5.2020 Goal and Policy

(1) Integrated least-cost resource planning and acquisition is an ongoing, dynamic, and flexible process that:

(a) manages the consequences of risk and uncertainty;

(b) integrates demand-side, distribution-side, and power resources to minimize the long-term total cost of service;

(d) engages stakeholders and the public; and

(e) is transparent and reasonably understandable to stakeholders, the public, and the Commission.

(2) The goal of integrated least-cost resource planning and acquisition is to ensure public utilities meet their customers' needs for adequate, reliable, and efficient energy services at the lowest long-term total cost while managing risks and remaining financially sound. To achieve this goal, utilities shall plan to meet future customer demand and energy requirements through timely acquisition of a diverse mix of cost-effective resources and shall actively pursue and acquire all cost-effective demand-side resources. The cost-effectiveness of all resource acquisitions will be evaluated with respect to long-term total costs, including scenarios based on societal costs.

(3) These rules implement the policy of the State of Montana concerning integrated least-cost resource planning and acquisition. Electric utilities are required to file resource plans and conduct planning and acquisition processes as outlined in the rules.

(4) The rules implement the Commission's regulatory objective of ensuring an efficient allocation of society's resources to provide adequate, reliable electricity services and just and reasonable rates for consumers at the lowest long-term total cost. In furtherance of this objective, utilities shall operate existing resources and acquire new resources only when needed and in a manner consistent with these rules.

(5) The rules establish requirements for resource planning and acquisition processes but do not specify planning and acquisition outcomes or mandate investment decisions. The rules identify ways for utilities to reduce and manage the risk of resource acquisition to shareholders, customers, and society.

(6) Utilities shall acquire resources through transparent, competitive resource solicitations, subject to 69-3-1207, MCA. A utility shall engage a third-party administrator when a utility’s self-owned resource is a possible outcome of the solicitation.

(7) Integrated least-cost resource planning consistent with the rules may demonstrate that previously rate-based resources should be abandoned and replaced by new resources. If such situations occur, the Commission will determine the appropriate recovery of undepreciated, rate-based capital costs in separate, contested case proceedings.

(8) Evaluations of potential demand-side resources shall consider those resources cost-effective up to 110 percent of the utility's long-term avoided cost.

(9) Resource decisions have a significant impact on the public. Public utilities can best meet the respective goals of shareholders, customers, and society by meaningfully involving the public in resource planning and acquisition processes. The rules in this subchapter facilitate such involvement by requiring public utilities to conduct transparent planning and acquisition processes and thoroughly document the results of those processes in a manner that is reasonably understandable.

History

Authorizing statute(s): 69-3-1204, 69-3-1206, MCA
Implementing statute(s): 69-3-1204, 69-3-1205, 69-3-1206, 69-3-1207, 69-3-1209, MCA
History: NEW, 2023 MAR p. 21, Eff. 1/14/23; AMD, 2026 MAR, Notice No. 2026-298, Eff. 6/20/26.

Mont. Admin. R. 38.5.2021 Definitions

(1) "Action plan period" means the five-year period beginning with the calendar year after the filing of a resource plan.

(2) "Adequate" means, with respect to an electric system owned or controlled by a utility, the ability to supply the aggregate electrical demand and energy requirements of the utility's customers at all times, taking into account scheduled and reasonably expected unscheduled outages of system elements.

(3) "Affiliate" means, for purposes of this rule, a parent, subsidiary, division, or the like, regardless of designation, owning or controlling the utility, owned or controlled by the utility, under common ownership with the utility, or under common control with the utility.

(4) "Assessment" means a documented process used by a utility to make informed judgments regarding elements of a resource plan and action plan based on the careful consideration of quantitative and qualitative information and the input of stakeholders, the public, and the advisory committee required in 69-3-1208, MCA.

(5) “Broad-based” means, in the context of the advisory committee required in 69-3-1208(1), MCA, a balanced cross section of interests substantially affected by integrated least-cost resource planning, including, various classes/types of customers; state and local government agencies with responsibilities related to energy, environmental protection, or consumer protection; non-government organizations whose primary purpose is low- and fixed-income customer advocacy, environmental protection, conservation, regional market operations and development, or renewable energy advocacy; and individuals with relevant technical, economic, or public policy expertise in electric utility resource planning or related fields, who may also represent one of the other interests.

(6) "Cost" means the actual or forecasted costs incurred to own, operate, and manage existing and potential new resources sufficient to provide adequate and reliable services over the planning period including, but not limited to, costs for:

(a) capital recovery;

(b) shareholder returns;

(d) operations and maintenance;

(e) fuel and associated fuel delivery services or infrastructure;

(f) insurance;

(g) taxes, including tax credits;

(h) environmental remediation;

(i) permitting;

(j) land use and rights of way;

(k) decommissioning, abandonment, and securitization;

(l) contractual power purchases, however structured;

(m) incremental transmission and distribution, including losses and congestion;

(n) administration; and

(o) externalities.

(7) "Cost-effective" means that a project or resource is forecast:

(a) to be reliable and available within the time it is needed; and

(b) to meet or reduce the electric power demand of the intended consumers at an estimated incremental system cost no greater than that of the least-cost similarly reliable and available alternative project or resource, or any portion thereof.

(8) "Environmentally responsible" means explicitly recognizing and incorporating into resource plans, resource planning processes, and resource procurement the policy of the State of Montana to encourage utilities to acquire resources in a manner that will help ensure a clean, healthful, safe, and economically productive environment.

(9) "Externalities" has the meaning in 69-3-1203(6), MCA.

(10) “Independent evaluator” means an entity selected by the Commission and engaged by the utility to monitor and evaluate a competitive solicitation and ensure a fair and transparent competitive solicitation process, pursuant to 69-3-1207 and 69-3-1210, MCA, and the rules in this subchapter.

(11) "Long-term" means a time period at least as long as the planning period.

(12) "Planning period" has the meaning in 69-3-1203(9), MCA.

(13) "Reliable" means a power system that is adequate and can withstand sudden disturbances, such as electrical short circuits or unanticipated loss of system elements.

(14) "Resources" includes all of the following:

(a) "Demand-Side resources" means any material, device, technology, educational program, rate design, practice, or facility alteration designed to result in reduced peak demand, increased energy efficiency, energy conservation, or shifting or management of electricity demand and energy consumption and includes combined heat and power used to displace space heating, water heating, or another load.

(b) "Distribution-Side resources" means electrical generation or storage equipment located within a utility's distribution system, including real and personal property owned and controlled by utility customers and non-utility producers.

(c) "Power resources" means wholesale power transactions, including bilateral contracts, tolling agreements, and spot purchases, and plants and equipment, including storage equipment, owned, leased, or controlled, in whole or in part, by a utility.

(15) "Service" means required and optional electricity and/or electricity-related products or services provided by a utility to retail customers including metering, billing, distribution, transmission, generation, and generation-related services. Services include, but are not limited to, traditional electricity supply and delivery service, renewable energy-sourced offerings, interconnection and integration of distribution side and customer generators, net metering, demand and/or bill management programs, information-based services such as energy audits, transmission ancillary services, street lighting services, and other services for which a utility has filed or would be required to file a tariff.

(16) "Societal cost" means all costs to a utility plus externalities.

(17) "Stakeholder" means a member of the public (individual, corporation, organization, group, etc.) who may have an interest in, or may be affected by, these rules.

(18) “Third-party administrator” means an entity selected and engaged by the utility to conduct and manage a competitive solicitation for the purpose of assisting the utility in acquiring a resource that satisfies its resource needs. The third-party administrator may have operational responsibility in the competitive solicitation but does not make the final resource selection.

History

Authorizing statute(s): 69-3-1204, 69-3-1206, 69-3-1207, MCA
Implementing statute(s): 69-3-1204, 69-3-1205, 69-3-1206, 69-3-1207, 69-3-1208, 69-3-1209, 69-3-1210, MCA
History: NEW, 2023 MAR p. 21, Eff. 1/14/23; AMD, 2026 MAR, Notice No. 2026-298, Eff. 6/20/26.

Mont. Admin. R. 38.5.2022 Plan Contents

(1) Resource plans shall contain at least the following information:

(a) A description of any changes a utility has made to the content of its plan or its planning process in response to the Commission's comments on its last plan and how the changes affect the current plan, along with reasoned explanations for any Commission comment with which the utility disagrees. Cross-references shall be provided for all changes.

(b) Annual electricity demand and energy forecasts for each year of the planning period for each major rate or service class; an explanation of the forecasting method(s) and assumptions; and the historical customer counts, population data, load data, and end-use data used in the forecasting process, as applicable. Changes to the forecasting method(s) and assumptions used in the prior plan must be thoroughly explained.

(c) A description and graphical presentation of daily and seasonal electric demand and energy requirements for each major rate or service class, the variability of those requirements, and how the utility assessed historical trends, and the potential for future changes in the timing and variability of electric demand and energy requirements in the development of the plan.

(d) A description of the electric generating capability and characteristics of each of the utility's existing resources. The description must include the generator type and fuel source, nameplate capacity, effective load carrying capability or other probabilistic capacity contribution estimate, expected annual energy production, storage capability, capacity factor, forced outage rate, annual emissions of carbon dioxide, online date, and expected retirement date. The description must include any historical data used to develop the reported generating capabilities and characteristics. The description may be in table form with accompanying explanatory text, as necessary.

(e) A description of the current average annual variable cost or contract price for each of the utility's existing power resources, including storage resources, and the expected or projected average annual variable cost or contract prices at 5-year increments for the planning period. The description may be in table form with accompanying explanatory text, as necessary.

(f) A description of the aggregate load-serving capability and characteristics of existing programmatic demand-side resources within the utility's system and a forecast of aggregate capability over the planning period. The description must address each demand-side resource program offered and its total load-serving capabilities. The description may be in table form with accompanying explanatory text, as necessary. The description must provide the following historical information for each year since the utility's last plan:

(i) program expenditures;

(ii) incentive payments;

(iii) demand and energy savings and the methods and assumptions used to estimate the savings;

(iv) measures of the cost-effectiveness of the program, including avoided costs, and the techniques used to estimate those costs;

(v) annualized cost of saved energy and capacity and the techniques used to estimate those costs; and

(vi) estimates of the net economic benefit of the programs.

(g) A resource adequacy assessment based on existing resources and a description of the nature of the need for additional resources to achieve industry-standard adequacy standards or reserve margin requirements. The plan must completely and thoroughly describe the method(s) and assumptions used in the assessment, including the basis for the adequacy standard or reserve margin requirement and computer modeling and model validation procedures. The assessment must document energy and capacity deficits, their duration, frequency, and timing, given the energy and demand forecasts in (b) and resource capabilities in (d) and (f). In addition, the assessment must document energy and capacity deficits for scenarios that involve higher and lower forecasts of energy and demand requirements; alternative load profiles; and alternative performance levels for existing resources to account for the effects of, among other things, extreme weather events; demand-side and distribution-side resources; electrification; and price response.

(h) A description of a wide range of plausibly cost-effective resources that could be acquired to satisfy the need for additional resources identified in the results of the resource adequacy assessment in (g), including those that may become available through transmission system investments that enhance access to broader markets for power resources. The description shall include the electricity generating or load serving capabilities and characteristics of the resources including the technology; size; service life or contract length; performance attributes; costs including estimates of potential fuel delivery infrastructure and transmission system interconnection and network upgrade costs, and tax credits; and environmental impacts including water and land use and emissions. The description must explain the method(s) and assumptions used to identify potential resources and define their costs, generation or load serving capabilities, and other attributes. The description may be in table form with accompanying explanatory text, as necessary.

(i) An evaluation of the full range of cost-effective means of combining the resources in (h) with the continued or discontinued operation of existing resources to satisfy the need for additional resources identified in (g) at the lowest long-term total cost. The evaluation must consider a broad range of future customer electricity demand and energy requirements and risks related to uncertainty about future loads, resource costs and performance, and changes in public policy and environmental regulations. The evaluation must be designed to allow for a comparison of the long-term total costs and risks of acquiring alternative resources, or combinations of resources, to address the need identified in (g). The evaluation must include at least two scenarios that rely on increased renewable energy resources and demand-side resources pursuant to 69-3-1204(2)(a)(vi), MCA. The plan must completely and thoroughly describe the results of the evaluation and document and justify the method(s) and assumptions used in the evaluation, including method(s) and assumptions used to determine cost-effectiveness and computer modeling and model validation procedures.

(j) For computer modeling used to perform the evaluation in (i):

(i) a thorough description of the basic design and purpose of the model;

(ii) a thorough description of the inputs and how the model uses inputs to produce outputs;

(iii) a thorough description of the decisions that were informed by the modeling and questions that were examined or answered by the modeling;

(iv) comprehensive descriptions of and data for modeling outputs and results;

(v) comprehensive, understandable explanations of the modeling results; and

(vi) a thorough description of the process by which a stakeholder can obtain inputs electronically in order to conduct alternative modeling.

(k) A description of the utility's plan for demand-side resource acquisition over the planning period, to the extent such resources are not directly included in the evaluation in (i). The description must include the utility's assessment of the cost-effective demand-side resource potential on its system, including the method(s) and assumptions used to determine costeffectiveness.

(l) A description of the advisory committee required in 69-3-1208, MCA, a complete and thorough documentation of how the utility designated members and engaged the advisory committee to review and evaluate technical, economic, and policy issues related to the utility's system and the planning process, including all recommendations of the advisory committee and the utility's responses, and a copy of the work plan required in ARM 38.5.2023.

(m) A description of the public meetings conducted pursuant to 69-3-1205(1), MCA, including a summary of comments, concerns, or other input received and how the utility responded.

(n) A summary of and response to substantive comments received on the utility’s draft plan published pursuant to ARM 38.5.2023(5), including a thorough description of modifications made to the draft plan in response to comments or the reasons for making no modifications.

(o) A near-term action plan describing the steps the utility intends to take based on the results and conclusions of the planning process, including the evaluations in this rule. The action plan must describe the process the utility intends to use to acquire any resources or resource types, including the use of competitive solicitations.

(p) A description of how information about the mix of resources used to provide the demand and energy requirements of customers will be disseminated to them, including information about emissions and other environmental impacts, using itemized labeling, reporting, or other mechanisms as appropriate.

(q) An index that relates specific sections of the plan to compliance with the minimum filing requirements outlined in this rule.

(2) Plans that do not satisfy the requirements of this rule and 69-3-1204(2), MCA will be deemed deficient and returned to the utility pursuant to 69-3-1204(3)(c), MCA.

History

Authorizing statute(s): 69-3-1204, MCA
Implementing statute(s): 69-3-1204, 69-3-1205, 69-3-1206, 69-3-1207, 69-3-1208, 69-3-1209, MCA
History: NEW, 2023 MAR p. 21, Eff. 1/14/23; AMD, 2026 MAR, Notice No. 2026-298, Eff. 6/20/26.

Mont. Admin. R. 38.5.2023 Planning Process

(1) A utility shall designate and engage with a broad-based advisory committee according to 69-3-1208, MCA. The utility shall meet with the advisory committee on a regular basis as it prepares resource plans. Utilities shall open meetings with the advisory committee to the public but may close meetings or portions of meetings when proprietary information is discussed or when necessary to enable the committee to provide a more complete review, evaluation, or recommendation if a majority of committee members vote to close the meeting. A utility shall engage with the committee before deciding to close a meeting to the public.

(2) In addition to the advisory committee, a utility shall engage stakeholders and the public during the process of preparing a resource plan pursuant to 69-3-1205(1), MCA. A utility must publicly notice engagement events at least 14 days in advance and provide meeting materials in advance to the greatest extent possible. A utility shall present to stakeholders in a transparent, understandable manner the results of completed steps in the planning process and plans for subsequent steps and shall provide an opportunity to comment on or request items to be addressed in a plan. A utility may combine meetings with the public, stakeholders, and the advisory committee.

(3) A utility shall engage a broad cross-section of its customers (based on demographic, geographic, and service classification characteristics), including representatives of customer segments with low, moderate, and fixed incomes and highly impacted communities, on issues related to future service and resources that may be of interest to non-experts.

(4) At the start of each planning cycle, a utility shall engage with the advisory committee and stakeholders to develop a work plan and timeline, including the frequency of meetings with the advisory committee, for completing the assessments and preparing plan contents required in ARM 38.5.2022. The work plan must include a structured process for submission of written inquiries and comments to the utility during the planning process and written responses by the utility. The work plan shall also address procedures for access by the advisory committee to the utility's planning model during the planning process.

(5) A utility shall publish a draft of its resource plan at least 100 days before filing the resource plan with the Commission and accept comments on the draft resource plan for at least 70 days.

(6) A utility shall file a resource plan at least every three years.

History

Authorizing statute(s): 69-3-1204, MCA
Implementing statute(s): 69-3-1204, 69-3-1205, 69-3-1208, MCA
History: NEW, 2023 MAR p. 21, Eff. 1/14/23; AMD, 2026 MAR, Notice No. 2026-298, Eff. 6/20/26.

Mont. Admin. R. 38.5.2024 Resource Procurement

(1) A utility's resource procurement processes shall be guided by the policy in 69-3-1202, MCA, input from the public and the advisory committee provided for in 69-3-1208, MCA, and comments of the Commission on the utility's most recent resource plan.

(2) Utilities shall use transparent, competitive solicitations to acquire needed resources, subject to 69-3-1207, MCA, and the Commission's rules. Utilities shall document decisions regarding the types of procurement processes used for later submission in applications for rate recovery where the prudence of procurement processes and resource decisions is examined.

(3) An independent evaluator must be used to monitor and evaluate a utility’s competitive solicitation in accordance with 69-3-1207, MCA, and the Commission’s rules.

(4) A utility shall notify the Commission in advance of a decision to issue a competitive solicitation as soon as practicable so that the Commission may promptly select an independent evaluator. The notice shall precede release of a draft of the solicitation by at least 90 days. Before issuing the solicitation, the utility shall submit a draft of the solicitation to the Commission in accordance with 69-3-1207(2), MCA.

(5) The draft solicitation submitted pursuant to (4) shall include:

(a) a thorough description of the input and recommendations of the advisory committee regarding the solicitation process and how the utility modified the solicitation process in response to the advisory committee's input and recommendations or, alternatively, the basis for not modifying the process; and

(b) an index that relates specific sections of the solicitation to compliance with specific requirements of ARM 38.5.2024 and 38.5.2025.

(6) Upon notification of a utility's intent to issue a solicitation, the Commission will open a docket for purposes of receiving the draft solicitation and accepting public comment on the draft solicitation. The Commission shall provide notice to the public of the receipt of the draft solicitation and provide 45 days for interested persons to file written comments. The utility shall not issue the final solicitation until at least 70 days after submitting the draft solicitation. Upon issuing the final solicitation, the utility shall concurrently submit the solicitation to the Commission in the docket assigned to the draft solicitation.

(7) Prior to filing the draft competitive solicitation, the utility shall provide to the independent evaluator, all data, information, and models necessary for the independent evaluator to analyze and verify the models used in developing the draft competitive solicitation, as well as any other information necessary for the independent evaluator to fulfill its role.

(8) A utility shall provide all proposed and final scoring criteria and metrics in the draft and final competitive solicitations filed with the Commission.

(9) Competitive solicitations must allow bids from all resource types that may fill all or part of the characteristics or attributes of the resource need, including conservation and efficiency resources, demand response, or other distributed energy resources.

(10) Utilities shall consider the usefulness of competitive solicitations for identifying and acquiring demand-side and distribution-side resources but should also leverage their unique knowledge of their customers' demand characteristics to evaluate cost-effective resource potential and design programs for acquisition.

History

Authorizing statute(s): 69-3-1204, MCA
Implementing statute(s): 69-3-1204, 69-3-1205, 69-3-1207, 69-3-1208, 69-3-1209, 69-3-1210, MCA
History: NEW, 2023 MAR p. 21, Eff. 1/14/23; AMD, 2026 MAR, Notice No. 2026-298, Eff. 6/20/26.

Mont. Admin. R. 38.5.2025 Requirements for Competitive Solicitations

(1) A competitive solicitation issued by a utility shall treat similarly situated bidders similarly and fairly, use understandable processes, and result in decisions and outcomes that are transparent and understandable to bidders, stakeholders, and the Commission.

(2) A competitive solicitation issued by a utility shall contain:

(a) specific minimum bidder requirements for credit and capability;

(b) standard form contracts or contract provisions the utility intends to use;

(c) specific explanations of bidders' ability to negotiate mutually agreeable final contract terms that are different from the standard form contracts;

(d) clear and complete descriptions of the resources, products, and services the utility seeks to acquire to encourage bids from the broadest possible set of supply technologies;

(e) a description of how the solicitation aligns with a resource need shown by the utility's most recent resource plan or a subsequently identified need resulting from a change in circumstances;

(f) specific bid evaluation and bidder qualification standards and criteria including a sample evaluation rubric that quantifies, where possible, the weight the utility will give each criterion during the bid ranking procedure; and

(g) clear and complete descriptions of how the utility will share information about bid scores, including what information about the bid scores and bid ranking will be provided to bidders and when and how it will be provided.

(3) A utility's process for evaluating offers or bids in competitive solicitations shall:

(a) apply bidder qualification standards and bid evaluation criteria fairly and consistently;

(b) allow all bidders to adjust their bids in the event the utility or third-party administrator revises any evaluation standards or criteria;

(c) apply a transparent and systematic rating methodology to objectively rank bids with respect to price and, as appropriate, non-price factors. Non-price factors must be objectively quantifiable where practicable. The rating methodology shall be based on information and analyses from:

(i) a utility's most recent resource plan;

(ii) any Commission comments on the plan;

(iii) input from the advisory committee;

(iv) public comments on the utility's draft solicitation;

(v) input from an independent evaluator or third-party administrator; and

(vi) industry best practices;

(d) use the following approach to develop price and non-price scores:

(i) price scores must be based on the prices submitted by bidders and calculated using units that are appropriate for the resources, products, or services sought and technologies expected to be employed in responsive bids. A third-party administrator may adjust price scores on review of information submitted by bidders;

(ii) non-price scores must, when practicable, primarily relate to resource characteristics identified in the utility's most recent resource plan or supplement to the plan and may be based on conformance to standard form contracts. Non-price scoring criteria must be based on a clear, objective rubric that reasonably enables bidders to self-score;

(iii) non-price score criteria that seek to identify minimum thresholds for a successful bid and that may readily be converted into minimum bidder requirements must be converted into minimum bidder requirements;

(iv) scoring criteria may not be based on renewal or ownership options, except insofar as these options affect costs, revenues, benefits, or prices. Any criteria based on renewal or ownership options must be explained in sufficient detail in the solicitation to allow for public comment and Commission review of the justification for the proposed criteria;

(e) document subjective judgments of the utility or the third-party administrator regarding bid scoring and ranking with sufficient detail to enable the utility to demonstrate in a transparent, understandable manner the decision-making process in subsequent regulatory proceedings involving rate recovery;

(f) identify a shortlist of offers from bidders with which the utility will pursue contract negotiations. Due diligence regarding bidder qualifications, bidder credit worthiness and experience, and project feasibility shall be completed before selecting an offer for the shortlist. A bidder shall not be informed that its offer is being considered for the shortlist while the utility is performing due diligence. If any bidders on the shortlist are allowed to refresh or supplement their bids in any way, all bidders on the shortlist shall be allowed to do so;

(g) conduct and incorporate into the selection of a final short list a sensitivity analysis of bid rankings to evaluate the degree to which the rankings are sensitive to:

(i) changes in non-price scores; and

(ii) changes in assumptions used to compare bids or portfolios of bids, such as assumptions used to extend shorter bids for comparison with longer bids, or assumptions used to compare smaller bids or portfolios with larger ones;

(h) prevent the utility or bidders from reassigning or "flipping" offers from the original bidding entity to another entity;

(i) prevent public disclosure of information related to individual bids, including price, before the solicitation process is complete and contracts with the winning bidder(s) have been executed; and

(j) facilitate public disclosure of information about the solicitation that is not confidential as defined in ARM 38.2.5001.

(4) A utility shall obtain and consider input from the advisory committee regarding the appropriate use and selection of a third-party administrator in a competitive solicitation process, including whether the third-party administrator should be selected through a competitive solicitation. When using a third-party administrator in the competitive solicitation process, a utility shall:

(a) consult with the third-party administrator on preparation of the solicitation; and

(b) empower the third-party administrator to oversee the solicitation process to ensure that it is conducted fairly, transparently, and objectively. The utility is responsible for engaging the services of a third-party administrator and for all fees and expenses associated therewith. The utility may request recovery of fees and expenses associated with engaging a third-party administrator in customer rates.

(5) If a competitive solicitation allows bids by the utility or an affiliate of the utility, or bids that may result in a resource owned by the utility, the process must be administered by an independent third-party administrator. The third-party administrator must open, consider, independently evaluate, and score bids received in the solicitation.

(6) A utility shall inquire and determine whether a bidder is an affiliate or will contract with any affiliate. When an affiliate of a utility submits an offer in the utility's competitive solicitation, the following requirements shall be incorporated into the evaluation process:

(a) Information shall not be provided to an affiliate regarding bid evaluation criteria, bidder qualification criteria, due diligence, or any other relevant resource procurement information unless the same information is simultaneously provided to all other prospective bidders.

(b) Any individual who participates in the development of the solicitation or the evaluation or scoring of bids on behalf of the utility shall not be allowed to participate in the preparation of any offer by an affiliate or to discuss the solicitation process with an affiliate or its representatives in a non-public setting.

(c) A utility or third-party administrator shall not disclose the contents or results of a solicitation, including information about competing bids, to personnel involved in developing an offer by an affiliate unless such information has been disclosed to the public. Protections against improper disclosure of solicitation information shall be explained in solicitation documents.

(7) If a utility acquires resources involving affiliate transactions it shall be subject to the following filing requirements in any subsequent application regarding cost recovery under 69-3-301 through 69-3-310, MCA:

(a) a demonstration that the utility has not subordinated its service obligations in favor of an affiliate;

(b) a demonstration that all costs associated with any affiliate transactions are just and reasonable and in the public interest based on a lower of cost or market standard applied at the time of contract execution;

(c) a demonstration that costs and revenues are accurately and properly segregated between regulated and non-regulated affiliated entities;

(d) an affirmation that books of account and related records of any affiliate transacting business with the utility shall be available for audit and review by the Commission. As reasonable and necessary and when lawful, the Commission will protect affiliate information from public disclosure; and

(e) proof that a code of conduct has been implemented to guide management and other employees regarding standards for day-to-day business activities with affiliates and to guard against self-dealing, gaming, and resulting subsidies.

(8) When a utility acquires resources by means other than a competitive solicitation, it shall thoroughly document the alternative acquisition process, including the assumptions and methods used to assess cost-effectiveness and all factors considered in, and the rationale for, its decision not to use a competitive solicitation.

History

Authorizing statute(s): 69-3-1204, MCA
Implementing statute(s): 69-3-1204, 69-3-1205, 69-3-1207, 69-3-1208, 69-3-1209, MCA
History: NEW, 2023 MAR p. 21, Eff. 1/14/23; AMD, 2026 MAR, Notice No. 2026-298, Eff. 6/20/26.

Mont. Admin. R. 38.5.2026 Independent Evaluator – Evaluation and Selection

(1) At least every three years, the Commission shall open a docket for the purpose of developing a list of qualified independent evaluators. The notice initiating the docket will provide an opportunity for interested entities to submit a request for inclusion on the list of approved independent evaluators.

(2) An entity’s request to be included on the list of independent evaluators shall:

(a) demonstrate qualifications, expertise, and experience to perform all the functions of the independent evaluator contemplated by 69-3-1207, MCA, and these rules;

(b) demonstrate independence from utilities, third-party administrators used by utilities, if applicable, and potential bidders in utility solicitations;

(c) demonstrate qualifications and experience facilitating relevant communications with utilities, bidders, and public utility commissions;

(d) include the independent evaluator’s proposed fee structure;

(e) include a statement of interest that discloses:

(i) any contracts or other economic arrangements of any kind between the entity or its affiliates and any: utility(ies), utility affiliates, third-party solicitation administrators, or likely bidders that currently exist, that have existed within the past ten years, or that have been promised or are expected in the future; and

(ii) any memberships in trade organizations; and

(f) include a full copy of any type of agreement between the entity or its affiliates and any: utility(ies), utility affiliate, third-party solicitation administrators, or likely bidders that currently exist, that have existed within the past ten years, or that have been promised or are expected in the future. Orders protecting confidential information may be obtained pursuant to the Commission’s procedures in ARM Title 38, chapter 2, subchapter 50.

(3) The Commission will publish the list of independent evaluators requesting to be included on the Commission’s list and provide public and other interested parties an opportunity to comment on the inclusion or exclusion of entities from the Commission’s list of independent evaluators.

(4) The Commission will review the requests for inclusion and publish a list of approved independent evaluators in the docket based, in part, on consideration of:

(a) input received from utilities and interested, non-bidding parties;

(b) the independent evaluator’s independence from utilities and potential bidders;

(d) the independent evaluator’s experience and expertise; and

(e) the public interest.

(5) When updating the list, the Commission may disqualify or remove an independent evaluator from the list for any of the following reasons:

(a) discovery of a conflict of interest or failure to disclose such a conflict;

(b) noncompliance with commission rules;

(d) the independent evaluator no longer provides such services.

(6) Independent evaluators on the approved list must inform the Commission if any of the information provided to the Commission changes.

(7) When selecting an independent evaluator from the approved list, the Commission will consider the independent evaluator’s availability, proposed fees, and qualifications and issue a notice of the selection within 30 days after a utility files with the Commission that it intends to issue a competitive solicitation.

(8) The utility’s contract with the independent evaluator must require that:

(a) the independent evaluator fulfills its duties pursuant to the scope of work and duties prescribed by 69-3-1210(1) and (2), MCA, and applicable Commission rules; and

(b) the independent evaluator confers as necessary with the Commission and Commission staff on the independent evaluator’s duties.

(9) While performing services related to the competitive solicitation, the independent evaluator shall not accept employment from, nor communicate with, bidders or the utility regarding future employment or contract opportunities.

(10) At the time of selection, the selected independent evaluator shall verify its submitted information remains in compliance with this rule.

(11) Failure to comply with the requirements of this rule shall result in the disqualification of the selected independent evaluator and the Commission shall select a new independent evaluator from the list.

History

Authorizing statute(s): 69-3-1207, MCA
Implementing statute(s): 69-3-1207, 69-3-1210, MCA
History: NEW, 2026 MAR, Notice No. 2026-298, Eff. 6/20/26.

Mont. Admin. R. 38.5.2027 Independent Evaluator – Scope of Work

(1) The independent evaluator shall oversee the competitive solicitation process for any acquisition, construction, or purchase of an electricity supply resource pursuant to 69-3-1207, MCA, and perform all functions contemplated by statute and Commission rules, to ensure the competitive solicitation process is conducted fairly, transparently, and consistently.

(2) The functions of the independent evaluator shall include the following:

(a) evaluating the design of the competitive solicitation, including the draft solicitation;

(i) the independent evaluator shall complete an assessment of the draft solicitation design and submit its assessment of the draft to the Commission when the utility files its draft with the Commission;

(ii) the assessment shall review the adequacy, accuracy and completeness of all solicitation materials to ensure compliance with the Commission’s rules and consistency with accepted industry standards and practices;

(b) monitoring communications between the utility and/or a third-party administrator and bidders;

(c) reviewing and validating the assumptions, calculations, scoring, and ranking of any utility-owned resource options or resource portfolios containing utility-owned options;

(d) analyzing the unique risks and advantages of all utility-owned resource options compared to contractual alternatives considering the following factors:

(i) potential for construction delays and cost over-runs (considering contractual guarantees, cost and prudence of guarantees, remaining exposure to ratepayers for cost over-runs, and potential benefits of cost under-runs);

(ii) projected forced outage rates;

(iii) projected end effect values;

(iv) projected emissions costs;

(v) projected operation and maintenance costs;

(vi) projected capital additions costs; and

(vii) projected performance regarding output, heat rate, and power curve;

(e) analyzing, operating, and validating all important models, modeling techniques, assumptions and inputs utilized by the utility in the competitive solicitation process, including the evaluation of bids;

(f) independently scoring and ranking bids;

(g) providing input to the utility on:

(i) the development of bid screening and evaluation criteria and bid and portfolio scoring and ranking factors and evaluation methodologies that are reasonably designed to ensure the competitive solicitation process is fair, reasonable, and in the public interest, taking into consideration the assumptions included in the utility's most recent Least-Cost Integrated Resource Plan (IRP), any recently filed IRP supplement, any commission comments on the IRP or IRP supplement, and in any utility-owned resource options;

(ii) whether a bidder has met the criteria specified in any request for qualifications and whether to reject or accept non-conforming request for qualifications responses;

(iii) whether and when data and information should be distributed to bidders because it is necessary to facilitate a fair and reasonable competitive bidding process or has been reasonably requested by bidders;

(iv) negotiation of proposed contracts with successful bidders; and

(v) other matters as appropriate in performing the duties of the independent evaluator under the statute and commission rules;

(h) ensuring that all bids are treated in a fair and non-discriminatory manner;

(i) monitoring, observing, validating, and offering feedback to the utility, the commission, and the commission staff on all aspects of the competitive solicitation and competitive solicitation process, including:

(i) content of the solicitation;

(ii) evaluation and ranking of bid responses;

(iii) creation of a short list(s) of bidders for more detailed analysis and negotiation;

(iv) post-bid discussions and negotiations with, and evaluations of, short list bidders; and

(v) negotiation of proposed contracts with successful bidders;

(j) offering feedback to the utility on possible adjustments to the scope or nature of the competitive solicitation or requested resources in light of bid responses;

(k) soliciting additional information on bids necessary for screening and evaluation purposes;

(l) advising the commission at all stages of the process of any unresolved disputes or other issues or concerns that could affect the integrity or outcome of the competitive solicitation process;

(m) analyzing and attempting to mediate disputes that arise in the competitive solicitation process with the utility and/or bidders, and present recommendations for resolution of unresolved disputes to the commission;

(n) participating in future cost-recovery proceedings when the competitive solicitation results in resource selection.

(3) Communications between a utility and potential or actual bidders shall be monitored by the independent evaluator. Bidder questions and utility or third-party administrator responses shall be posted on an appropriate website.

(4) If at any time the independent evaluator becomes aware of any violation of any requirements of the solicitation process or Commission rules, the independent evaluator shall immediately notify the utility, the third-party administrator, if applicable, and the Commission. The independent evaluator shall report any actions taken by the utility and any other recommended remedies to the Commission.

(5) The independent evaluator shall document all substantive correspondence and communications with the utility and third-party administrator, if applicable, and shall make such documentation available to parties in any relevant proceedings upon proper request and subject to the terms of a protective order if the request contains or pertains to confidential information. Within 60 days after the end of the competitive solicitation process, the independent evaluator shall provide a copy of this documentation to the utility.

(6) The independent evaluator must file a report without confidential information in the docket opened pursuant to ARM 38.5.2024 after the utility has determined a final shortlist. The report must include analyses of the competitive solicitation process up to that point, including whether selected resources achieve the objective of minimizing costs to customers, considering risks, and whether the process was fair to all bidders.

(7) The independent evaluator must file a final closing report at the conclusion of the utility’s solicitation in the docket opened pursuant to ARM 38.5.2024. The closing report must include:

(a) analyses of the utility's evaluation and selection of short-listed bids and resources;

(b) the final results and whether the selected resource(s) are in the public interest;

(c) comments and recommendations with respect to changes or improvements for a future competitive solicitation process and;

(d) any other conclusions the independent evaluator deems appropriate.

(8) The closing report must explain any bid-ranking differences and why the independent evaluator and the utility were or were not able to reconcile the differences.

(9) The Commission may set a reasonable deadline for the independent evaluator’s completion of the closing report.

(10) All non-confidential information provided by the independent evaluator shall be considered for use in future prudency reviews or cost recovery proceedings placing the acquired resource into rates. All non-confidential information shall be contained in the docket open pursuant to ARM 38.5.2024.

(11) No stakeholder, including the utility, Commission, or Commission staff, shall have any editorial review or control over the independent evaluator's closing report.

History

Authorizing statute(s): 69-3-1207, MCA
Implementing statute(s): 69-3-1207, 69-3-1210, MCA
History: NEW, 2026 MAR, Notice No. 2026-298, Eff. 6/20/26.

Mont. Admin. R. 38.5.2028 Independant Evaluator — Utility Obligations

(1) The utility/third-party administrator shall provide the independent evaluator complete access to all documents, information, data, models, and resources utilized by the utility in conducting analyses of proposals submitted in response to the competitive solicitation, subject to necessary protective orders and non-disclosure agreement, to perform a thorough examination of the bidding process and responsive bids.

(2) The utility/third-party administrator shall post all bidder questions and utility/third-party administrator responses on a competitive solicitation website.

(3) The utility/third-party administrator shall provide timely and accurate responses to any request from the independent evaluator for information regarding any aspect of the competitive solicitation or the competitive solicitation process.

(4) The utility is responsible for contracting with and engaging the services of the independent evaluator and is responsible for all fees and expenses associated with engaging the independent evaluator’s services. The utility may request recovery of fees and expenses associated with engaging an independent evaluator in customer rates.

(5) The utility’s contract with the independent evaluator must require that the independent evaluator fulfill its duties pursuant to the scope of work and duties prescribed by 69-3-1210, MCA, and applicable Commission rules.

(6) The utility shall maintain a complete record of its analyses and evaluations, including spreadsheets and models materially relied upon by the utility, all materials submitted to the commission and all materials submitted in response to discovery requests. The utility shall retain such documentation for a period of at least five years.

History

Authorizing statute(s): 69-3-1207, MCA
Implementing statute(s): 69-3-1207, 69-3-1210, MCA
History: NEW, 2026 MAR, Notice No. 2026-298, Eff. 6/20/26.

Subchapter 38.5.21 Service Standards - Electric Utilities

Mont. Admin. R. 38.5.2101 Electric Utility Line and Facility Maintenance -- Minimum Standards

(1) Each public utility providing electric service subject to the jurisdiction of the commission shall, at the minimum, maintain its electric utility lines and facilities pursuant to the national electrical safety code as that code is identified in 69-4-201 , MCA, the effective edition of which is designated at ARM 38.5.1010.

(2) The edition of the code applicable at the time of maintenance shall be that in effect by statute or rule at the time of construction of the electric utility line or facility unless, without undue expense, the edition in effect by statute or rule at the time of maintenance can reasonably be complied with.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-108 and 69-4-201, MCA
History: NEW, 1993 MAR p. 1672, Eff. 7/30/93; AMD, 2004 MAR p. 339, Eff. 2/13/04.

Mont. Admin. R. 38.5.2102 Electric Utility Nominal Voltage and Permissible Range of Variance

(1) The standards of product and service for each public utility providing electric service subject to the jurisdiction of the commission shall, whether established by ordered tariff provision or administrative rule, allow for a nominal voltage and permissible range of variation as specified in American National Standards Institute (ANSI) C84.1 2020. A copy of ANSI C84.1 may be obtained from the American National Standards Institute, Operations, 25 West 43rd Street, 4th Floor, New York, New York 10036, or may be reviewed at the Public Service Commission Offices, 1701 Prospect Avenue, Helena, Montana 59620-2601.

(2) This rule shall not apply:

(a) to transmission systems not used to directly serve customers;

(b) where customers specifically request a voltage other than standard nominal system voltages as specified in ANSI C84.1; or

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-108, MCA
History: NEW, 1993 MAR p. 1672, Eff. 7/30/93; AMD, 1997 MAR p. 317, Eff. 2/11/97; AMD, 2004 MAR p. 339, Eff. 2/13/04; AMD, 2009 MAR p. 90, Eff. 1/30/09; AMD, 2015 MAR p. 309, Eff. 3/27/15; AMD, 2017 MAR p. 789, Eff. 6/10/17; AMD, 2022 MAR p. 243, Eff. 2/12/22.

Subchapter 38.5.22 Pipeline Safety

Mont. Admin. R. 38.5.2201 Statement of General Policy

(1) Pursuant to 69-3-207 , MCA, the commission is empowered to enforce the safety regulations and provisions adopted under the Natural Gas Pipeline Safety Act of 1968 (NGPSA) , as well as any amendments thereto. The rules of this subchapter 22 as well as the rules in subchapter 23 adopt regulations and provisions by reference where deemed necessary, identify the exceptions and qualifications applicable in Montana where deemed necessary, and describe the procedures and enforcement authority exercised by the commission for achieving and maintaining pipeline safety.

History

Authorizing statute(s): 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 1988 MAR p. 2569, Eff. 12/9/88; AMD, 1997 MAR p. 317, Eff. 2/11/97.

Mont. Admin. R. 38.5.2202 Incorporation by Reference of Federal Pipeline Safety Regulations

(1) The commission adopts and incorporates by reference the U.S. Department of Transportation (DOT) Pipeline Safety Regulations, Code of Federal Regulations (CFR), Title 49, chapter 1, subchapter D, parts 191, 192, and 193, including all revisions and amendments enacted by DOT on or before November 25, 2025. A copy of the referenced regulations may be obtained from United States Department of Transportation, Office of Pipeline Safety, Western Region, 12300 West Dakota Avenue, Suite 110, Lakewood, Colorado 80228, or may be reviewed at the Public Service Commission Offices, 1701 Prospect Avenue, Helena, Montana 59620-2601.

History

Authorizing statute(s): 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 1988 MAR p. 2569, Eff. 12/9/88; AMD, 1990 MAR p. 1897, Eff. 10/12/90; AMD, 1993 MAR p. 3043, Eff. 12/24/93; AMD, 1995 MAR p. 40, Eff. 1/13/95; AMD, 1995 MAR p. 2425, Eff. 11/10/95; AMD, 1997 MAR p. 317, Eff. 2/11/97; AMD, 1998 MAR p. 180, Eff. 1/16/98; AMD, 1999 MAR p. 153, Eff. 1/15/99; AMD, 2000 MAR p. 752, Eff. 3/17/00; AMD, 2001 MAR p. 47, Eff. 1/12/01; AMD, 2001 MAR p. 2467, Eff. 12/21/01; AMD, 2003 MAR p. 564, Eff. 3/28/03; AMD, 2004 MAR p. 339, Eff. 2/13/04; AMD, 2005 MAR p. 386, Eff. 3/18/05; AMD, 2006 MAR p. 231, Eff. 1/27/06; AMD, 2006 MAR p. 2966, Eff. 12/8/06; AMD, 2007 MAR p. 2145, Eff. 12/21/07; AMD, 2009 MAR p. 90, Eff. 1/30/09; AMD, 2010 MAR p. 226, Eff. 1/29/10; AMD, 2010 MAR p. 2992, Eff. 12/24/10; AMD, 2011 MAR p. 2829, Eff. 12/23/11; AMD, 2013 MAR p. 62, Eff. 1/18/13; AMD, 2014 MAR p.128, Eff. 1/17/14; AMD, 2015 MAR p. 308, Eff. 3/27/15; AMD, 2016 MAR p. 321, Eff. 2/20/16; AMD, 2017 MAR p. 789, Eff. 6/10/17; AMD, 2018 MAR p. 334, Eff. 2/10/18; AMD, 2019 MAR p. 179, Eff. 2/9/19; AMD, 2020 MAR p. 332, Eff. 2/15/20; AMD, 2021 MAR p. 580, Eff. 5/15/21; AMD, 2022 MAR p. 242, Eff. 2/12/22; AMD, 2022 MAR p. 1931, Eff. 9/24/22; AMD, 2024 MAR p. 87, Eff. 1/13/24; AMD, 2025 MAR, Notice No. 38-5-264, Eff. 2/8/25; AMD, 2026 MAR, Notice No. 2025-491, Eff. 1/24/26.

Mont. Admin. R. 38.5.2203 Commission's Procedural Rules to Apply

(1) Except as otherwise provided in these rules, the commission's procedural rules shall govern any proceedings under this subchapter.

History

Authorizing statute(s): 69-3-103, 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 1988 MAR p. 2569, Eff. 12/9/88.

Mont. Admin. R. 38.5.2204 Inspections, Investigations, and Reporting

(1) The commission, its employees, or authorized agents, have the power to investigate all methods and practices of pipeline owners and operators; to require the maintenance and filing of reports, records and other information in the form and detail as the commission may prescribe; to enter upon and to inspect the property, buildings, plants, and offices of pipeline owners and operators; and to inspect books, records, papers and documents relevant to enforcement responsibilities under the NGPSA.

(2) The commission, a staff member thereof, or some person appointed by it, may investigate and make inquiry into every incident occurring in the operation of any intrastate gas pipeline located in this state. The commission, in its discretion, may also investigate any other accident or event involving the operation of a pipeline.

History

Authorizing statute(s): 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 1988 MAR p. 2569, Eff. 12/9/88; AMD, 1997 MAR p. 317, Eff. 2/11/97; AMD, 1997 MAR p. 1215, Eff. 7/8/97.

Mont. Admin. R. 38.5.2205 Informal Report of Probable Violation

(1) If an inspection indicates that a pipeline owner or operator is not in compliance with the applicable pipeline safety regulations, the commission's inspector will issue a report of probable violation to the owner or operator following the inspection. This report shall include a citation of the law, regulation or order which the owner or operator appears to have violated, and a statement that the owner or operator is required to correct all cited violations within 60 days following issuance of the report. This report will also note any on-site corrective actions which were taken during the inspection. The inspector may informally discuss the report with the owner or operator and an informal conference may be requested with commission staff. When the owner or operator corrects a violation in the report to the satisfaction of the inspector, the correction and the date thereof shall be noted in the report.

History

Authorizing statute(s): 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 1988 MAR p. 2569, Eff. 12/9/88.

Mont. Admin. R. 38.5.2206 Formal Enforcement Procedure

(1) If the violations are not satisfactorily resolved within 60 days following issuance of the report of probable violation, through the informal procedure described in ARM 38.5.2205 above, the commission may issue an order to show cause to the pipeline owner or operator, based upon the inspector's report indicating that the owner or operator remains in probable violation of the regulations or provisions of the NGPSA.

(2) The order to show cause shall include a statement of the laws, regulations or orders which the pipeline owner or operator is alleged to have violated and a statement of the evidence upon which the allegations are based.

History

Authorizing statute(s): 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 1988 MAR p. 2569, Eff. 12/9/88.

Mont. Admin. R. 38.5.2207 Response to Order to Show Cause

(1) Within 30 days of the date of service of the order to show cause, or within such other reasonable period as may be set by the commission in the order to show cause, the pipeline owner or operator shall file a written response with the commission. The response shall be filed in accordance with the commission's procedural rules relating to the filing of answers, found generally at ARM 38.2.2107.

History

Authorizing statute(s): 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 1988 MAR p. 2569, Eff. 12/9/88.

Mont. Admin. R. 38.5.2208 Hearing

(1) Upon request of an interested party, or upon its own motion, the commission may schedule a hearing in furtherance of its investigation under these rules.

History

Authorizing statute(s): 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 1988 MAR p. 2569, Eff. 12/9/88.

Mont. Admin. R. 38.5.2209 Commission Decision

(1) After a hearing, or, if no hearing has been held, after the expiration of the response period allowed by the commission to the pipeline owner or operator, the commission may proceed to issue a decision in the form of an order.

(2) The order issued by the commission in any proceeding brought under these rules may direct compliance, or indicate an intention to seek judicial remedies, or both.

History

Authorizing statute(s): 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 1988 MAR p. 2569, Eff. 12/9/88.

Mont. Admin. R. 38.5.2220 Investigation and Reports of Incidents of Intrastate Gas Pipeline Operators

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 990 MAR p. 1897, Eff. 10/12/90; AMD, 1993 MAR p. 3043, Eff. 12/24/93; REP, 1997 MAR p. 317, Eff. 2/11/97.

Subchapter 38.5.23 Pipeline Safety - Drug Testing

Mont. Admin. R. 38.5.2301 Scope and Compliance

(1) This subchapter requires pipeline facilities subject to 49 Code of Federal Regulations (CFR) parts 192 and 193 to test employees for the presence of prohibited drugs and prohibited alcohol misuse and provide an employee assistance program.

History

Authorizing statute(s): 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 1990 MAR p. 1897, Eff. 10/12/90; AMD, 1995 MAR p. 2425, Eff. 11/10/95; AMD, 1997 MAR p. 317, Eff. 2/11/97.

Mont. Admin. R. 38.5.2302 Incorporation by Reference of Federal Pipeline Safety Regulations -- Drug and Alcohol Testing and Prevention Programs

(1) Except as otherwise provided in this subchapter, the commission adopts and incorporates by reference the DOT Pipeline Safety Regulations, Drug and Alcohol Testing, 49 CFR 199, including all revisions and amendments enacted by DOT on or before November 25, 2025. A copy of the referenced CFRs is available from the United States Department of Transportation, Office of Pipeline Safety, Western Region, 12300 West Dakota Avenue, Suite 110, Lakewood, Colorado 80228, or may be reviewed at the Public Service Commission Offices, 1701 Prospect Avenue, Helena, Montana 59620-2601.

History

Authorizing statute(s): 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 1995 MAR p. 2425, Eff. 11/10/95; AMD & TRANS, from ARM 38.5.2327, 1997 MAR p. 317, Eff. 2/11/97; AMD, 1998 MAR p. 180, Eff. 1/16/98; AMD, 1999 MAR p. 153, Eff. 1/15/99; AMD, 2000 MAR p. 752, Eff. 3/17/00; AMD, 2001 MAR p. 47, Eff. 1/12/01; AMD, 2001 MAR p. 2467, Eff. 12/21/01; AMD, 2003 MAR p. 564, Eff. 3/28/03; AMD, 2004 MAR p. 339, Eff. 2/13/04; AMD, 2005 MAR p. 386, Eff. 3/18/05; AMD, 2006 MAR p. 231, Eff. 1/27/06; AMD, 2006 MAR p. 2966, Eff. 12/8/06; AMD, 2007 MAR p. 2145, Eff. 12/21/07; AMD, 2009 MAR p. 90, Eff. 1/30/09; AMD, 2010 MAR p. 226, Eff. 1/29/10; AMD, 2010 MAR p. 2992, Eff. 12/24/10; AMD, 2011 MAR p. 2829, Eff. 12/23/11; AMD, 2013 MAR p. 62, Eff. 1/18/13; AMD, 2014 MAR p. 128, Eff. 1/17/14; AMD, 2015 MAR p. 308, Eff. 3/27/15; AMD, 2016 MAR p. 321, Eff. 2/20/16; AMD, 2017 MAR p. 789, Eff. 6/10/17; AMD, 2018 MAR p. 334, Eff. 2/10/18; AMD, 2019 MAR p. 179, Eff. 2/9/19; AMD, 2020 MAR p. 332, Eff. 2/15/20; AMD, 2021 MAR p. 580, Eff. 5/15/21; AMD, 2022 MAR p. 242, Eff. 2/12/22; AMD, 2022 MAR p. 1931, Eff. 9/24/22; AMD, 2024 MAR p. 87, Eff. 1/13/24; AMD, 2025 MAR, Notice No. 38-5-264, Eff. 2/8/25; AMD, 2026 MAR, Notice No. 2025-491, Eff. 1/24/26.

Mont. Admin. R. 38.5.2303 Definitions

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 1990 MAR p. 1897, Eff. 10/12/90; REP, 1997 MAR p. 317, Eff. 2/11/97.

Mont. Admin. R. 38.5.2304 Drug and Alcohol Testing -- Exceptions

(1) This subchapter does not apply to any pipeline or transportation activity to which the commission has not accepted jurisdiction.

(2) When applicable all drug and alcohol testing of employees shall be done in accordance with 39-2-205 through 39-2-211 , MCA. Nothing contained in this subchapter shall be construed or applied in a manner inconsistent with the provisions and requirements of 39-2-205 through 39-2-211 , MCA.

(3) In the event of any conflict in law, the substantive and procedural provisions of 39-2-205 through 39-2-211 , MCA, and the substantive and procedural provisions of the commission in this subchapter shall prevail over any federal provision adopted by the commission by reference.

History

Authorizing statute(s): 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 1997 MAR p. 317, Eff. 2/11/97; AMD, 1998 MAR p. 180, Eff. 1/16/98.

History

Authorizing statute(s): 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 1990 MAR p. 1897, Eff. 10/12/90; REP, 1997 MAR p. 317, Eff. 2/11/97.

Mont. Admin. R. 38.5.2321 Contractor Employees

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 1990 MAR p. 1897, Eff. 10/12/90; REP, 1997 MAR p. 317, Eff. 2/11/97.

Mont. Admin. R. 38.5.2323 Recordkeeping

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 1990 MAR p. 1897, Eff. 10/12/90; REP, 1997 MAR p. 317, Eff. 2/11/97.

Mont. Admin. R. 38.5.2325 Scope and Compliance -- Alcohol Misuse Prevention Program

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-207, MCA
Implementing statute(s): 69-3-207, MCA
History: NEW, 1995 MAR p. 2425, Eff. 11/10/95; REP, 1997 MAR p. 317, Eff. 2/11/97.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-4-602 and 69-4-603, MCA
History: NEW, 2004 MAR p. 340, Eff. 2/13/04.

Mont. Admin. R. 38.5.2414 Charges for Raising or Cutting of Wires or Cables or Moving Poles to Accommodate the Movement of Structures

(1) By April 1 of each year all utilities owning or controlling wires, cables, or poles in a location which may impede the movement of structures must file a cost schedule for commission review. The cost schedule must be accompanied by a narrative explaining the bases for each of the costs in the cost schedule and work papers demonstrating calculation of each of the costs in the cost schedule. Costs within cost schedules must be on a per unit of time basis (e.g., per hour) unless the particular cost is unsuitable to that basis (e.g., parts, materials) .

(2) Cost schedules will become effective on an interim (temporary) basis no later than 30 days following the date filed with the commission unless the commission rejects the cost schedule on the basis that it appears the schedule includes costs that are above cost. The commission may notice cost schedules to the public and interested persons, allowing for intervention, discovery, opposing testimony, and hearing.

(3) The person moving the structure is not responsible for costs resulting from delays caused by a utility crew, a government crew, or force majeure.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-4-602 and 69-4-603, MCA
History: NEW, 2004 MAR p. 340, Eff. 2/13/04.

Subchapter 38.5.25 Privately Owned Water Utilities

Mont. Admin. R. 38.5.2501 General Rules for Privately Owned Water Utilities

(1) The following general rules shall be effective for all privately owned water utilities subject to the regulatory jurisdiction of the Public Service Commission. For the purposes of these rules, where the term "utility" is used, it shall mean privately owned water utilities, and where the term "commission" is used, it shall mean the Montana Public Service Commission.

(2) Certain of the following general rules allow a utility to adopt, subject to the approval of the commission, special rules to fit the utility's local conditions. If a utility adopts any special rules, and an apparent conflict arises between the special rules and these general rules, the general rules shall govern.

(3) All privately owned water utilities must have commission-approved tariffs filed with the commission, pursuant to Title 69, MCA, and its corresponding administrative rules, including penalties as provided by statute.

(4) All privately owned water utilities must file a rate application in accordance with the minimum rate case filing standards of ARM 38.5.101, et seq., or in accordance with the simplified regulatory treatment options rules of ARM 38.5.2527.

(5) As good cause appears and as justice may require, a utility may petition the commission to waive the application of any rule, pursuant to ARM 38.2.305.

(6) Nothing contained in these rules shall be construed to limit the statutory and constitutional authority of the Montana Consumer Counsel to participate and represent the interests of the utility ratepayers in these proceedings.

History

Authorizing statute(s): 69-3-102, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 1982 MAR p. 861, Eff. 4/30/82; AMD, 2018 MAR p. 1289, Eff. 7/7/18.

Mont. Admin. R. 38.5.2502 Application for Water Service

(1) All consumers wanting water service must make an application with the utility. Except as provided in ARM 38.5.2502(2) , the utility may require consumers make a service application at the utility office on printed application forms, which shall set forth all purposes for which the water will be used upon the premises, or the utility may allow the consumer to apply for service via the telephone. A copy of the utility's printed application form and any subsequent modifications shall be submitted to the Commission to become part of the utility's tariff. A deposit for guarantee of payment for water service may be required by the utility of the consumer applying for service pursuant to the deposit rules of the Commission, Title 38, Chapter 5, Sub-chapter 11.

(2) All applications for the original introduction of water service to any premises must be made on printed application forms furnished by the utility and described in ARM 38.5.2501(1) above, and must be signed by the property owner of those premises. When the ownership of the premises changes, the new property owner must make a new application for water service with the utility. A property owner is liable for payment for water service as a consumer, unless ARM 38.5.2502(3) applies.

(3) Where the consumer is a renter, a leasee, or is not the property owner, the application for water service shall be made in the consumer's own name, and that consumer shall be liable for payment for the water service. In such instances, the utility shall indicate the name of the consumer and the date that the consumer began to receive water service on the original written service application that was signed by the property owner of the premises.

(4) Upon the utility's acceptance of the application for water service, the consumer shall have the right to take and receive a supply of water for the particular premises for the purposes specified in the application subject to compliance by the consumer with these rules and any special rules promulgated by the utility.

(5) When an application for new water service has been accepted, the utility at its own expense will tap the main and furnish corporation cock, and clamp when necessary, and any other material used or labor furnished in connection with the tapping of the main. All expense of laying and maintaining the service pipes from the mains to the premises of the consumer must be borne by the consumer. The utility shall assist consumers and/or excavation contractors in locating water service mains and lines prior to the consumer beginning excavation in order to avoid water service interruptions due to broken mains and lines. The service pipe must be laid below street grade, on the premises of the consumer and at a standard depth designated by the utility to prevent freezing. A curb cock and curb box of approved pattern must be installed by the consumer at a point designated by the utility. Whenever a tap is made through which regular service is not immediately desired, the consumer will bear the entire expense of tapping, subject to a refund whenever regular service is begun.

(6) No charge may be made for turning on the water to a new consumer during the regular working hours of the utility.

(7) Contractors, builders or owners are required to apply for permit for the use of water for building and other purposes in construction work. Consumers are warned not to allow the use of their water fixtures unless the contractors, the builders or the owners produce a permit issued by the utility specifying the premises on which the water is to be used. Water will not be turned on at any new building until all water used during construction has been paid for.

History

Authorizing statute(s): Sec. 69-3-102 and 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1982 MAR p. 862; Eff. 4/30/82; AMD, 1987 MAR p. 2162, Eff. 11/28/87; AMD, 1998 MAR p. 3220, Eff. 12/4/98.

Mont. Admin. R. 38.5.2503 Provision of Water Service

(1) Service pipes. Service pipes shall be so arranged that the supply of each separate building, house or premises, may be controlled by a separate curb cock, placed within or near the line of the street curb, under rules established by the utility or civil authorities, except as provided in ARM 38.5.2509(3) . This curb cock and box must be easily accessible and must be kept in repair by the owner of the premises.

(2) Stop and waste cock. A stop and waste cock must be placed at some convenient point inside of the building located where it cannot freeze, and where water from the building can be readily shut off, and the water pipes drained to prevent freezing.

(3) Waste of water. Waste of water is prohibited, and consumers must keep their fixtures and service pipes in good working order at their own expense, and keep all waterways closed when not in use. Leaky fixtures must be repaired at once without waiting for notice from the utility. If reasonable notice is given by the utility and the repair is not made, the water will be shut off by the utility without further notice.

(4) Limitations on connections. No plumber or other person will be allowed to make connection with any conduit, pipe or other fixture or to connect pipes when they have been disconnected, or to turn water off or on, on any premises without permission from the utility.

(5) Mains. Before a utility is required to provide water service to a consumer, the utility's system of service mains must presently be in place at the point where service is desired.

(6) Extension of mains.

(a) Before a utility commences construction of a new water system or major alteration or extension of an existing public water system, an engineering report along with necessary plans and specifications for the public water system shall be submitted to the department of health and environmental sciences, water quality bureau, for review and approval pursuant to section 75-6-112(4) , MCA, and the rules of the department of health and environmental sciences.

(b) The utility shall make provisions in its tariff for the extension of service mains through special rules to be approved by the commission.

(7) Lawn sprinkling. A utility may require permits for lawn sprinkling which may be secured at the office of the utility. When necessary, the utility may impose lawn sprinkling restrictions.

(8) Billing errors. Where an error in billing has occurred, the utility shall go back in time as far as is necessary to cover and/or reconcile the erroneous billing, but no further than the most recent of either the date of the service application of the current consumer or the date of the most recent meter test, or as directed by the commission. When over collection occurs because of a fast meter, ARM 38.5.2513(2) will apply.

History

Authorizing statute(s): Sec. 69-3-102, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1982 MAR p. 863, Eff. 4/30/82.

Mont. Admin. R. 38.5.2504 Consumer Discontinuance of Service

(1) Permanent Discontinuance. A consumer who, for any reason, including the vacating of the premises, wishes to have the water service permanently discontinued, shall give the utility at least 24 hours' notice and shall specify the date that service be discontinued. Until the utility has received such notice, the consumer shall be held responsible for all service rendered to the premises.

(2) Temporary Discontinuance. If a consumer wants to temporarily discontinue the water service, as in instances of seasonal use, the consumer shall notify the utility of the request. The utility may, subject to approval of the Commission, adopt special rules to fit local conditions for temporary discontinuance. The utility may assess the consumer a reconnection charge as provided in ARM 38.5.2505(2) .

History

Authorizing statute(s): Sec. 69-3-102, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1982 MAR p. 864; Eff. 4/30/82.

Mont. Admin. R. 38.5.2505 Utility Discontinuance of Service

(1) Notice of Discontinuance.

(a) No utility shall discontinue service to any consumer for violation of rules or for nonpayment of bills, without first having tried diligently to induce the consumer to comply with its rules, or to pay outstanding bills. A record of these efforts must be maintained by the utility.

(b) A utility may not terminate service to any consumer unless written notice is sent by first class mail to the consumer that bills are ten or more days delinquent, or that the violation of the rules must cease. If no response to the first notice is received within ten days of mailing, the utility must send a second notice by first class or certified mail, or personally serve the customer at least ten days prior to the date of the proposed termination. If no response to the second notice is received within ten days of mailing or service, the utility shall leave notice in a place conspicuous to the consumer that service will be terminated on the next business day unless the delinquent charges have been paid or the violation of the rules have ceased.

(c) A utility may terminate water service without advance notice to the consumer when the utility's regulating or measuring equipment has been tampered with, or where the fraudulent use of water service by an unauthorized person is detected. The utility may assess a reconnection charge as provided in ARM 38.5.2505(2) before service is recontinued.

(d) All disconnections shall be performed by the utility between the hours of 8:00 a.m. and 12:00 noon, and in no case shall the utility discontinue service on Friday, Saturday, Sunday, or a day prior to holiday except as provided in ARM 38.5.2505(1) (c) .

(2) Charge for Reconnection.

(a) Whenever the supply of water is discontinued for violation of these general rules or the utility's special rules, nonpayment of bills, or as provided in ARM 38.5.2505 (1) (c) , the utility may make a reconnection charge as set forth in its tariff for the reestablishment of service.

(b) After service has been turned off because of nonpayment, service shall not be turned on again until all delinquent water bills and a reconnection charge as set forth in the utility's tariff have been paid or an agreeable pay arrangement has been made between the consumer and the utility.

(c) If a consumer requests that water service be discontinued and then requests service be recontinued any time within eight months following the discontinuance, the utility may require the consumer first pay a reconnection charge as set forth in the utility's tariff.

(3) Temporary Service Failure. Any temporary failure on the part of the utility to supply service by reason of accident or otherwise for a period in excess of 24 hours shall not render the utility liable beyond a pro rata abatement of service charges during such interruption.

(4) Emergency Service Disruption. Notice will be given, whenever possible, prior to shutting off water, but consumers are warned that owing to unavoidable accidents or emergencies their water service may be shut off at any time. In the event of such accidents or emergencies, consumers are advised to take the necessary precautions to prevent damage to their fixtures and premises.

History

Authorizing statute(s): Sec. 69-3-102, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1982 MAR p. 864-866; Eff. 4/30/82.

Mont. Admin. R. 38.5.2506 General Flat Rate and Meter Rate Rules

(1) The

following general flat rate and meter rate rules shall not be construed to mean that any utility must have both flat rates and meter rates. A utility may adopt, subject to the approval of the Commission, either a flat rate or a meter rate schedule, or both. In addition to the general flat rate and meter rate rules, a utility may adopt, subject to the approval of the Commission, other rules to be designated as special rate rules, to fit local conditions.

History

Authorizing statute(s): Sec. 69-3-102, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1982 MAR p. 866; Eff. 4/30/82.

Mont. Admin. R. 38.5.2507 Flat Rates

(1) Water Uses. The flat rate will cover the use of water for domestic, commercial and industrial uses, lawn sprinkling and any other purposes enumerated on the rate sheet covering flat rate services.

(2) Additional Fixtures. If a consumer on a flat rate schedule wants to install additional fixtures or wants to apply the water to purposes not stated in the original application, written notice must be given the utility prior to such installation or change of use. If a consumer places new fixtures on the premises without notifying the utility, when such fixtures are discovered, a charge will be made for the extra fixtures at schedule rates for the length of time such fixtures have been installed.

History

Authorizing statute(s): Sec. 69-3-102, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1982 MAR p. 866-867; Eff. 4/30/82.

Mont. Admin. R. 38.5.2508 Meter Rates

(1) Meter rates will apply to all water services as indicated on the utility's tariff schedule. Any consumer wanting to receive water by meter measurement may have a meter placed by the utility under the following meter rules. Meters may be installed on any service when they become necessary to prevent waste of water.

History

Authorizing statute(s): Sec. 69-3-102, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1982 MAR p. 867; Eff. 4/30/82.

Mont. Admin. R. 38.5.2509 Utility to Provide Meters

(1) Unless otherwise authorized by the Commission, each utility shall provide and install at its own expense and shall continue to own, maintain, and operate all equipment necessary for the regulation and measurement of water, in accordance with tariff or contract provisions, to its consumers. Where additional meters are requested by the consumer and are furnished by the utility for the convenience of the consumer, a charge for such meters may be made to the consumer.

(2) The utility will not make collections for any secondary meters, and all water rents of any single meter must be paid by one consumer when supplied by meter measurement from one service. The utility, however, may enclose the readings of secondary meters with the bill for the single meter service.

(3) In no case will the utility furnish water from one meter to two or more connections, except where master metering is being used.

(4) The utility may install or replace any meter at such time as it may see fit and shall determine the size of any meter installed.

History

Authorizing statute(s): Sec. 69-3-102, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1982 MAR p. 867; Eff. 4/30/82.

Mont. Admin. R. 38.5.2510 Location of Meters

(1) In all cases where a meter is installed the consumer must furnish proper protection from frost or other damage, and the meter must be located where it is easily accessible for reading purposes and repairs. Where necessary for protection, a standard form of meter box will be placed by the utility. The actual cost of the box shall be paid by the consumer. After such protective receptacle is placed the utility will furnish and connect the meter, and maintain the same in good condition.

(2) Remote Meters. When a meter is located inside a home or building, the utility may install, at utility's expense, a remote register or dial on the exterior of a home or building accessible for meter reading.

History

Authorizing statute(s): Sec. 69-3-102, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1982 MAR p. 867; Eff. 4/30/82.

Mont. Admin. R. 38.5.2511 Meter Reading

(1) The utility shall normally read meters for all urban consumers at monthly or bimonthly intervals and for all rural consumers at regular intervals up to six months. The day of the month for reading any meter as determined by the utility shall as closely as practicable be the same for each reading. The utility at its option, subject to the approval of the Commission, may read the meters at less frequent intervals if in the opinion of the utility such procedure tends to result in operating economies, but in no instance shall a meter be read less than once in six months.

(2) In months when meters are not read, the utility may provide the consumer with a postcard and request the consumer to read the meter and return the card to the utility. If such postcard is not received by the utility in time for billing, the utility may estimate the meter reading and render a bill accordingly.

(3) The consumer shall allow the utility reasonable access to the premises receiving water service for the reading of meters.

History

Authorizing statute(s): Sec. 69-3-102, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1982 MAR p. 867-868; Eff. 4/30/82.

Mont. Admin. R. 38.5.2512 Meter Accuracy

(1) Accuracy Dispute. In case of a dispute as to the accuracy of a meter, the consumer, may demand that the meter be removed, and tested as to accuracy, in his presence. If the meter is found to be registering correctly or in favor of the consumer, the cost of such testing and replacing of the meter shall be borne by the consumer. If the meter is found to be recording incorrectly and against the consumer, the cost of such testing and replacing of the meter shall be borne by the utility. A meter registering not in excess of plus or minus two percent of accuracy shall be deemed to be registering correctly.

(2) If an over collection or under collection error in billing has occurred due to an inaccurate meter, the utility shall follow ARM 38.5.2503(8) .

History

Authorizing statute(s): Sec. 69-3-102, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1982 MAR p. 868; Eff. 4/30/82.

Mont. Admin. R. 38.5.2513 Meter Tests

(1) Sample Tests. The utility shall select a sample of five percent of all of its meters in service each year for testing the accuracy of its registration.

(2) Fast Meters. If, upon test of any meter, the meter is found to have an average error of more than two percent fast, the utility shall follow ARM 38.5.2505(8) to reconcile the billing error.

(3) Dead Meters. If a meter is found not to register for any period, the utility shall compute the water used by taking the average of the water used for the meter-reading period preceding and the meter-reading period following the date when the meter was found to be dead, which amount shall be assumed to be the amount of water used by the customer during the billing period in which the meter was found dead. Exceptions will be made to this rule if the facts clearly show that the above method does not give the correct consumption for the period.

History

Authorizing statute(s): Sec. 69-3-102, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1982 MAR p. 868, Eff. 4/30/82.

Mont. Admin. R. 38.5.2514 Meter Billing

(1) Where an overcollection or undercollection error in billing has occurred, the utility shall follow ARM 38.5.2503(8) .

(2) Water consumers are not permitted to interfere in any way with the meter after it is set in place. In case the meter seal is broken or the working parts of the meter have been tampered with or the meter damaged, the utility may render a bill for the current month, based on an average of the last two months, together with the full cost of such damage as has been done to the meter, and may refuse to furnish water until account is paid in full as provided in ARM 38.5.2505 (1) (c) .

History

Authorizing statute(s): Sec. 69-3-102, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1982 MAR p. 868, Eff. 4/30/82.

Mont. Admin. R. 38.5.2526 Definitions

(1) "Contribution in aid of construction" means any money, services, or property received by a water or sewer utility to fund capital investments at no cost to the company with no obligation to repay.

(2) "Customer" means any individual or entity supplied with water or sewer service by means of a water or sewer line that connects a single building or living unit to the utility's water or sewer system. For purposes of these rules, each single building or living unit connected to the utility's system is one customer.

(3) "Operating ratio" means the ratio of a utility's operating expenses to operating revenues. For purposes of ARM 38.5.2529, a small water or sewer utility's operating ratio will be determined based on the expense and revenue information required to be submitted by the utility on the department's operating ratio methodology form referred to in ARM 38.5.2529(2).

(4) "Small water or sewer utility" means a water or sewer utility subject to the commission's jurisdiction that serves fewer than 500 customers.

History

Authorizing statute(s): 69-2-101, 69-3-103, 69-3-301, MCA
Implementing statute(s): 69-2-101, 69-3-103, 69-3-301, MCA
History: NEW, 2014 MAR p. 394, Eff. 2/28/14.

Mont. Admin. R. 38.5.2527 Simplified Regulatory Treatment Options

(1) Two simplified regulatory treatment options are available to a small water or sewer utility that allow it to propose rates by a method other than filing a rate application in accordance with the minimum rate case filing standards of ARM 38.5.101, et seq. Option (b) is only available to establish a utility's initial tariff rates with the commission; a utility that has previously had rates on file with the commission is not eligible for this rate. The options are:

(a) filing an operating ratio rate application in accordance with the operating ratio methodology as described in ARM 38.5.2529; or

(b) filing a standard rate application requesting adoption of the Montana Department of Natural Resources and Conservation's most recent water and sewer rate study's monthly water average and/or monthly wastewater average for populations less than 500.

(2) A small water or sewer utility is not required to elect any of the simplified regulatory treatment options. It may elect to file a rate application in accordance with ARM 38.5.101, et seq.

(3) If a utility's election of either of the two simplified regulatory options described in ARM 38.5.2527(1)(a) or (1)(b) would result in increased rates to customers, it may request, or the commission may require the utility to implement the rates in increments over a reasonable time period.

(4) A simplified regulatory treatment option rate application shall contain, at a minimum, the following information:

(a) The full legal name and title of the owner of the utility, its principal place of business and mailing address, the date that it began providing service to customers, and contact information (i.e., name, address, telephone number and email) of the individual(s) representing the utility before the commission;

(b) A detailed description of the utility system and its potential for expansion, including the number of wells, feet of main, and filtration system;

(c) The total number of existing water service connections and meters and existing sewer service connections and meters, and the billing frequency for each type of service;

(d) The total number of potential water service connections and meters and potential sewer service connections and meters;

(e) The number of existing and potential multi-residence dwellings (e.g., apartments or condos) served by a single service connection or meter, and the number of units in each multi-residence dwelling;

(f) The current rates being charged for each type of service, when the current rates went into effect, and whether the current rates have been approved by the commission;

(g) The rates proposed for each type of service;

(h) If known, the date that utility assets were first placed in service, the date of any sales or transfers that have occurred since utility assets were first placed in service, and the full legal name and title of any previous owner(s);

(i) In the event that the utility is not a new utility, two years of income statements and balance sheets, separately for water and sewer utilities, indicating how these statements were prepared (i.e., cash basis or accrual basis) and who prepared them;

(j) In the event that the utility is not a new utility, a list of any revenue generated during the two years referenced in (i) from sources other than the rates charged to customers, including the source and amount of revenue;

(k) In the event that a utility is not a new utility, a list of each transaction that occurred with an affiliate or related party during the two years referenced, involving more than $750, the amount paid, service(s) provided, and counterparty;

(l) If a utility is requesting the standard rate tariff, it must file an annual report with the commission; if the utility is requesting the operating ratio tariff, it must file a copy of each annual report for the last three calendar years;

(m) Copies of any water rights owned or leased by the utility, percentage usage of the available water right, and any documentation from the Department of Natural Resources and Conservation involving water right usage or violations;

(n) An affidavit from an owner or manager of the utility attesting to the accuracy of the information provided;

(o) The original cost of utility plant in service, an accounting of any capital improvements made, the amount of depreciation that has been taken on plant in service, and the depreciation schedule(s) used for the different utility asset accounts; and

(p) A complete copy of the information regarding the utility's financial capacity that the utility provided to the Montana Department of Environmental Quality as part of that agency's public water system review process.

(5) Minimum filing requirement forms are available from the commission upon request or on the commission's web site at www.psc.mt.gov .

(6) The commission will determine whether a simplified regulatory treatment option application satisfies the minimum filing requirements in (4)(a) through (p) of this rule, no later than 30 days after it is received by the commission. If the commission determines that the rate application satisfies the minimum filing requirements, it will notice the public for comment or protest.

(7) The commission may deny a rate application requesting simplified regulatory treatment or only grant it in part if the commission determines, based on comments or protest that it would be unjust or unreasonable to allow simplified regulatory treatment or approve the rates proposed by the utility.

(8) A small water or sewer utility's simplified regulatory treatment tariffs may be revoked if the utility is not in compliance with the commission's annual report requirement.

History

Authorizing statute(s): 69-2-101, 69-3-103, 69-3-301, MCA
Implementing statute(s): 69-2-101, 69-3-103, 69-3-301, MCA
History: NEW, 2014 MAR p. 394, Eff. 2/28/14; AMD, 2018 MAR p. 1289, Eff. 7/7/18.

Mont. Admin. R. 38.5.2528 Standard Rate Tariff

(1) A small water or sewer utility may file an application to establish its initial commission-approved standard rates for small water or sewer utilities or by adopting its own rates if they are lower than the applicable standard rates. If the utility has previously had rates on file with the commission it is not eligible for initial standard rates. The standard rate application and tariff forms to be submitted for commission review are available from the commission upon request or by obtaining them from the commission's web site at www.psc.mt.gov .

(2) The standard rates for small water and sewer utilities are set pursuant to ARM 38.5.2527(1)(b), as calculated by the commission staff.

(3) Other terms and conditions of service are those provided in the commission’s standard rate tariff forms and in ARM 38.5.2501, et seq.

(4) Within ten days of filing its application with the commission, a small water or sewer utility that files a standard rate application must notify every customer in writing and file a copy of the customer notification with the commission.

(5) The customer notification must be mailed to each customer’s billing address. The notification must inform customers of the proposed rates, provide information that shows the typical bill impact of the proposed rates to the utility’s average level of customer usage, and provide contact information for the utility, the Montana Consumer Counsel, and the commission.

(6) If either the Montana Consumer Counsel or 20 percent of the utility's customers protest the application, the commission will make a decision on the application following any additional process established by the commission.

(7) A standard rate tariff approved by the commission expires three calendar years after its initial effective date, which begins at the time the commission grants any portion of the standard rate, even if the rate is implemented in increments pursuant to ARM 38.5.2527(3). At least three months prior to the expiration of the standard rate tariff, the utility must file a rate application in accordance with the minimum rate case filing standards of ARM 38.5.101, et seq., or an application in accordance with the operating ratio methodology pursuant to ARM 38.5.2529. A utility may request an extension of the standard rate in limited circumstances and for good cause shown, including for an extension of time to allow the utility to meet its annual report requirements under these rules.

(8) Standard rates shall be considered interim or temporary rates subject to rebate or surcharge pending a decision made in a rate application in accordance with the minimum rate case filing standards of ARM 38.5.101, et seq. or in accordance with the operating ratio methodology pursuant to ARM 38.5.2529.

History

Authorizing statute(s): 69-2-101, 69-3-103, 69-3-301, MCA
Implementing statute(s): 69-2-101, 69-3-103, 69-3-301, MCA
History: NEW, 2014 MAR p. 394, Eff. 2/28/14; AMD, 2018 MAR p. 1289, Eff. 7/7/18.

Mont. Admin. R. 38.5.2529 Operating Ratio Methodology

(1) This option is available only to a small water or sewer utility that has been operating under commission-approved tariffed rates for at least three years. A small water or sewer utility electing this simplified option must file a rate application with the commission using the operating ratio methodology to determine the appropriate rates to be charged by the utility.

(2) The commission will make available the forms and schedules to calculate the operating ratio which must be completed and included by the utility in the rate application. The forms are available upon request from the commission or by obtaining them from the commission's web site at www.psc.mt.gov .

(3) The commission will determine whether an increase or decrease in operating revenues is justified by dividing the utility's reasonable and legitimate operating expenses by the target operating ratio of 80 percent, and subtracting that amount from the operating revenues. A positive difference will result in a rate decrease; a negative difference will result in a rate increase.

(4) No later than ten days after filing the application, the utility must notify its customers in writing of the application and the proposed rate changes. The notice shall provide, at a minimum:

(a) the filing date of the rate application;

(b) a statement that the utility filed its application without the necessary costs of preparing for a hearing; however, a formal public hearing will be held if at least 20 percent of the utility's customers or the Montana Consumer Counsel submits a written request for hearing;

(d) a statement that customers may contact the utility, the Montana Consumer Counsel, or the commission regarding the application and contact information for the utility, the Montana Consumer Counsel, and the commission.

(5) A copy of the notice and the mailing list of customers to whom the notice was, or will be mailed, must be submitted to the commission with the rate application.

(6) There will be no hearing on the application unless 20 percent or more of the utility's customers or the Montana Consumer Counsel request it, or the commission schedules a hearing on its own motion. Upon request for hearing, the commission will use a contested case procedure to conduct its review of the application. In any event, an individual commissioner may schedule a hearing to obtain public comment on the application.

(7) In the event a hearing is held, the utility may elect to designate its application to serve as its prefiled evidence; however, the utility is not precluded from filing additional evidence.

(8) Rates approved pursuant to the operating ratio methodology are subject to periodic review to ensure their continued justness and reasonableness.

History

Authorizing statute(s): 69-2-101, 69-3-103, 69-3-301, MCA
Implementing statute(s): 69-2-101, 69-3-103, 69-3-301, MCA
History: NEW, 2014 MAR p. 394, Eff. 2/28/14.

Mont. Admin. R. 38.5.2530 Purchased Water Cost Pass-Through Option

(1) A small water or sewer utility may file an application for authorization to pass through price changes (increases and decreases) relating to the cost of purchased water obtained from a local municipality or from other entities which are not affiliated interests.

(2) Following commission approval of the establishment of a purchased water cost pass-through mechanism, the utility shall timely revise and refile its pass-through rate tariff as its costs of purchased water change.

(3) A purchased water cost pass-through tariff shall be revised and refiled within 60 days of a decrease in purchased water costs, and shall be designed to pass through to customers the entire reduction in purchased water costs from the date the reduction becomes effective. A purchased water cost pass-through tariff may be revised and refiled at any time after an increase in purchased water costs, and shall be designed to recover cost increases prospectively from the date of filing only.

History

Authorizing statute(s): 69-2-101, 69-3-103, 69-3-301, MCA
Implementing statute(s): 69-2-101, 69-3-103, 69-3-301, MCA
History: NEW, 2014 MAR p. 394, Eff. 2/28/14.

Mont. Admin. R. 38.5.2531 Reserve Account

(1) The commission may authorize a small water or sewer utility to establish a reserve account. A reserve account is funded by customer contributions collected through rates for the purpose of making capital improvements to a utility plant pursuant to a long-range plan approved by the commission, or as required to assure compliance with state or federal safe drinking water statutes or regulations. The burden of demonstrating that actual or proposed expenditures are reasonable and in the public interest shall be borne by the utility.

(2) The amounts to be allocated to the reserve account will be determined by the commission after review of the utility's proposed capital budget and the justification for that budget.

(3) Funds in the reserve account shall be kept in a separate interest-bearing cash account. Interest accrued shall be credited to the reserve account and shall become part of the corpus of the reserve account.

(4) The utility must deposit all funds collected from customers for the reserve account at the close of each customer billing period and, in any event, no less frequently than quarterly.

(5) Funds from the account shall not be employed for a purpose other than those permitted under this section. Disbursements from the fund shall not be made without written authorization by the commission upon petition, shall be restricted to the uses in (1), and shall be made in accordance with a capital budget submitted with the initial rate filing or as modified with the consent of the commission.

(6) The utility shall report all disbursements from the reserve account by written notice to the commission and to other persons as the commission may direct within ten days of disbursement. In addition, the utility must provide by March 1 of each year a verified statement from the financial institution that houses the reserve account that shows all account transactions for the preceding calendar year. Disbursements from the reserve account which are found by the commission to have been made improperly, or in violation of any statute, regulation, or order of the commission shall be returned to the account or be refunded to ratepayers as the commission may direct. A person who makes, authorizes, or directs an improper or illegal disbursement of reserve funds shall be subject to the provisions of 69-3-209, MCA.

(7) Plant capitalized by means of the reserve account shall be accounted for as a contribution in aid of construction.

(8) In the event of a change of ownership of the small water or sewer utility, all funds in the reserve account must remain the property of the utility to be used for commission-approved purposes.

History

Authorizing statute(s): 69-2-101, 69-3-103, 69-3-301, MCA
Implementing statute(s): 69-2-101, 69-3-103, 69-3-301, MCA
History: NEW, 2014 MAR p. 394, Eff. 2/28/14.

Mont. Admin. R. 38.5.2532 Ratebase Treatment of Subdivision-Related Water or Sewer Utility Assets – Presumption of Recovery

(1) When a small water or sewer utility that has been built in connection with a subdivision elects to file a rate application pursuant to the commission's minimum rate case filing standards, ARM 38.5.101, et seq., or pursuant to one of the simplified regulatory treatment options, there is a rebuttable presumption that the value of original utility plant and assets has been recovered in the sale of lots in a development to be served by the small water or sewer utility.

History

Authorizing statute(s): 69-2-101, 69-3-103, 69-3-301, MCA
Implementing statute(s): 69-2-101, 69-3-103, 69-3-301, MCA
History: NEW, 2014 MAR p. 394, Eff. 2/28/14.

Subchapter 38.5.26 Additional Utility Requirements

Mont. Admin. R. 38.5.2601 Rate Tariff Filing

(1) Every utility which changes its tariff sheets for rates, tolls and charges, pursuant to 69-3-302, MCA, shall file the tariff sheets with the commission.

(2) Every utility which changes its price list sheets for rates, tolls and charges or its detariffed service sheets, shall file the sheets with the commission.

(3) All tariff, price list and detariffed service sheet filings shall be accompanied by a letter of transmittal describing the type of filing and including the information required in ARM 38.5.2801.

(4) An original and ten copies of all tariff filings which propose a rate increase shall be filed with the commission. An original and three copies of all price lists and other types of filings, shall be filed.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-204, 69-3-301, 69-3-302 and 69-3-304, MCA
History: NEW, 1984 MAR p. 1129, Eff. 8/17/84; AMD, 1993 MAR p. 1336, Eff. 6/25/93; AMD, 2000 MAR p. 1668, Eff. 6/30/00.

Mont. Admin. R. 38.5.2602 Annual Reports

(1) Every utility is required to file an annual report with the commission pursuant to 69-3-203, MCA.

Rules

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-203 and 69-3-204, MCA
History: NEW, 1984 MAR p. 1129, Eff. 8/17/84; AMD, 2000 MAR p. 1668, Eff. 6/30/00.

Mont. Admin. R. 38.5.2603 Advanced Metering Opt-Out Provisions

(1) Electric and natural gas utilities shall provide customers with the option to remove an installed advanced metering device and replace it with an alternative meter approved by the commission, or to decline installation of an advanced metering device and retain the existing meter, as guided by a cost-based opt-out service tariff. An advanced metering device or advanced meter shall be defined as set forth in Montana Code Annotated. As used in this rule, "alternative meter" means all other meters that do not satisfy the definition of advanced metering device or advanced meter.

(2) Prior to installation of an advanced metering device, the utility shall give written notice to the customer at least 60 days in advance. Such notice shall clearly describe the opt-out process available to the customer and must include the following language: "Montana law allows customers to opt-out of the use of advanced metering devices according to terms and conditions set by the Montana Public Service Commission. No utility company can require the use of an advanced metering device. If you have questions about your opt-out rights, please contact the Montana Public Service Commission at 1-800-646-6150."

(3) The utility shall notify the customer of the following if a customer expresses interest in using an alternative meter:

(a) The customer will be required to pay the amount of the approved tariff charge determined by the commission, if applicable.

(b) The utility shall explain the facts concerning advanced meters and attempt to address any customer concerns prior to signing up a customer for opt-out service. To the extent that the utility offers multiple options for the customer to obtain or retain either an advanced meter or an alternative meter, the utility shall explain each option and the allowable charges, if any, and allow the customer to choose from the options available.

(4) Any utility whose deployment of advanced metering devices commenced prior to the effective date of this rule must submit a schedule and a proposed tariff within 180 days of the effective date of this rule. No utility may begin deploying advanced metering devices after the effective date of this rule without a commission-approved schedule and tariff for opt-out service.

(5) When applying for approval of an opt-out service tariff, the utility shall address circumstances unique to the utility in its tariff application, including what fees, if any, should be charged to recover costs, such as the cost of removing an existing advanced meter and the subsequent installation of an alternative meter, or costs associated with providing meter reading and billing services associated with the use of an alternative meter. Every initial or revised tariff submitted pursuant to this rule must describe all alternative meters available to customers and provide a reasonable estimate of costs associated with each alternative meter.

(6) To promote customer choice, every utility must identify at least one alternative to an advanced meter in every tariff submitted pursuant to this rule, for commission approval. Utilities should include at least one alternative type of meter that does not use radio waves or internet technology to measure, record, or send a customer's utility usage information. If a utility cannot provide such an alternative, the utility must state the reasons why, and the commission will examine all viable alternative meter reading options available.

History

Authorizing statute(s): 69-2-101, 69-2-102, 69-3-103, 69-3-203, 69-3-321, 69-4-1001, 69-4-1002, 69-4-1003, 69-4-1004, MCA
Implementing statute(s): 69-4-1004, MCA
History: NEW, 2021 MAR p. 1792, Eff. 12/11/21.

Mont. Admin. R. 38.5.2610 Utility Notice to Consumers

(1) Public utilities, transmission service providers, distribution service providers, and other providers of utility services regulated by the commission, on filing with the commission an application for approval of a proposed initial tariffed rate or change in existing tariffed rates, must notify each current utility consumer subscribing to services which may be affected by the proposed change. Proposed changes in rates which are exempt from this notice requirement and a waiver procedure for proposed changes not specifically exempt are identified below.

(2) Notice required by this rule must be in writing and provided to each affected consumer within 60 days following the filing of the application for a proposed change with the commission. Notice may be through a bill message, bill insert, or separate mailing. A copy of the notice sent to consumers must be provided to the commission when utility notice to consumers is complete. In the event circumstances would otherwise allow the commission to issue a final order on an application for a proposed change, the commission will not issue a final order until at least 10 days following utility notice to the affected consumers.

(3) The notice shall inform consumers:

(a) of the effect the proposal may have on rates;

(b) of the amount of the change proposed, in percentage change compared to the existing rate or in dollars and cents per measured service or commodity unit supplied and per month or other billing cycle per unmeasured service or rate component;

(d) that, if required by law or permissible in the commission's discretion, a hearing on the proposal may be held before the commission upon request to the commission by any person directly affected;

(e) that the time and location of any hearing on the proposal will be available from the commission (telephone number included) as soon as a hearing is scheduled; and

(f) that the consumer counsel (telephone number included) is available to represent consumer interests regarding the proposal.

(4) Except as the commission may otherwise direct the utility within 60 days of the filing of an application for approval of a proposed rate, the following proposals are exempt from the requirements of this rule:

(a) rate decreases;

(b) initial tariffed rates for new non-basic services which are optional to consumers;

(d) rate increases based on commission-approved commodity cost tracking and adjustment procedures;

(e) changes not required by law to be made only after hearing or an opportunity for hearing;

(f) detariffed services;

(g) pass throughs of federal- or state-mandated initial rates or rate increases;

(h) rates of small telecommunications providers, defined at 69-3-901, MCA, proceeding pursuant to 69-3-903, MCA;

(i) interLATA interexchange rates; and

(j) carrier to carrier (wholesale) rates.

(5) A public utility, transmission service provider, distribution service provider, or other provider of utility services regulated by the commission, may request the commission grant a one-time or permanent waiver for other specific types of initial tariffed rates and changes which may be proposed to existing tariffed rates. The request shall clearly identify the type of change for which waiver is requested and the reason why it should not be subject to this rule. The request must be filed no less than 60 days prior to an application for a change to which the waiver would apply. All waivers granted, whether the grant expressly states or not, are subject to the commission otherwise directing within 60 days of the filing of an application to which the waiver applies.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1998 MAR p. 2968, Eff. 11/6/98.

Subchapter 38.5.27 Telecommunications Act

Mont. Admin. R. 38.5.2701 Purpose

(1) The purpose of these rules is to implement the policy of the state of Montana to maintain universal basic telecommunications service at affordable rates and, to the extent that it is consistent with maintaining universal service to encourage competition in the telecommunications industry, thereby allowing access by the public to advances in telecommunications technology.

(2) Regulatory jurisdiction exists over two-way switched, voice grade access and transport of communications originating and terminating in this state and nonvoice grade access and transport if intended to be converted to or from voice-grade access and transport. The commission retains the power to protect ratepayer interests by totally regulating the rates for telecommunication services that are provided on a monopoly basis.

(3) These rules, adopted pursuant to the Montana Telecommunications Act and in accordance with the Montana Administrative Procedure Act, may be cited as the Montana Telecommunications Act Rules.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Sees. 69-3-801 and 69-3-802, MCA
History: NEW, 1986 MAR p. 799, Eff. 5/16/86.

Mont. Admin. R. 38.5.2702 Definitions

(1) "Regulated telecommunications service" means two-way switched, voice grade access and transport of communications originating and terminating in this state and nonvoice grade access and transport if intended to be converted to or from voice-grade access and transport including any service, terms, charges or condition associated with or imposed to acquire or maintain regulated telecommunications service .

(2) Regulated telecommunications service does not include the provision of:

(a) terminal equipment used to originate or terminate regulated telecommunications service;

(b) private telecommunications service as defined at 69-3-804, MCA;

(d) one-way transmission of television signals;

(e) cellular communication; or

(f) radio paging or mobile radio service.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Secs. 69-3-803 and 69-3-804, MCA
History: NEW, 1986 MAR p. 799, Eff. 5/16/86.

Mont. Admin. R. 38.5.2703 Notice

(1) Any person, corporation or organization wishing to be on a commission telecommunications mailing list shall submit their name and address, in writing, to the Assistant Administrator, Utility Division, Montana Public Service Commission, 1701 Prospect Avenue, P.O. Box 202601,Helena, Montana 59620-2601, and clearly indicate, by reference to this rule, that they want to be on a telecommunications mailing list. A yearly fee may be charged to recover the cost of this service.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Secs. 69-3-803(3) and 69-3-807, MCA
History: NEW, 1986 MAR p. 807, Eff. 5/16/86; AMD, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.2704 Service Presumed to Be Basic Telecommunications Service

(1) All telecommunications service is presumed to be regulated telecommunications service except the services listed in 69-3-803 (3) , MCA. The rules applicable to the regulation of public utilities continue to apply to regulated telecommunications service. Telecommunications services regulated at the date of adoption of these rules continue to be regulated unless deregulated by statute and the tariff withdrawal approved by this commission.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Secs. 69-3-803(3) and 69-3-807, MCA
History: NEW, 1986 MAR p. 800, Eff. 5/16/86.

Mont. Admin. R. 38.5.2705 Information Required to Determine Status of Service as Regulated or Not Regulated

(1) A telecommunications service provider may assert that a service it offers is not regulated by informing the commission of its intent to offer the service as not regulated no later than 90 days prior to offering the service as not regulated. The following information shall be provided to the commission:

(a) the name and address of the provider;

(b) a complete description of the service asserted to be not regulated, including an engineering description;

(d) the type, and an estimate of the number, of existing and potential customers offered the service; and,

(e) an affidavit that all persons and organizations on the telecommunications mailing list have been notified as required in ARM 38.5.2706.

(f) within 10 days of filing the information requested in (a) through (e) , an affidavit that all customers of the service, if any, have been appropriately informed of the provider's intent to offer the service as not regulated;

(g) The commission may require additional information from the provider.

(2) Any interested party may assert that a telecommunications service should be offered as not regulated telecommunications. The burden of proof is on the party attempting to establish that the service is not regulated. Such a request will be considered a complaint subject to the requirements of ARM 38.2.2101 through 38.2.2107.

(3) The commission may initiate an inquiry regarding whether a regulated telecommunications service should be offered as not regulated.

History

Authorizing statute(s): Sec. 69-3-822. , MCA
Implementing statute(s): Secs. 69-3-803(3) and 69-3-807, MCA
History: NEW, 1986 MAR p. 800, Eff. 5/16/86.

Mont. Admin. R. 38.5.2706 Notice of Filing to Interested Persons and Providers

(1) When a telecommunications service provider files its intent to offer a service as not regulated as required by ARM 38.5.2705, it must notify all persons and entities on the telecommunications mailing list that it asserts that the service is not regulated. The notification shall contain the name and address of the provider, a description of the service asserted to be not regulated and the mailing date.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Secs. 69-3-803(3) and 69-3-807, MCA
History: NEW, 1986 MAR p. 801, Eff. 5/16/86.

Mont. Admin. R. 38.5.2707 Commission Primary Jurisdiction

(1) The commission shall have primary jurisdiction to determine if a telecommunications service is regulated. The commission may make its determination using contested case procedure or, if no hearing is requested, may act without a hearing.

(2) Any interested party may comment in writing on the assertion that a telecommunications service is not basic telecommunications service by filing comments with the commission within 20 days of the mailing date of the notification required in ARM 38.5.2706 or, if a hearing is scheduled, within 10 days of the hearing. The commission may consider these comments in making its determination.

(3) If the commission makes its determination without a hearing it shall inform the provider that it has accepted or rejected the assertion that the service is not regulated within 60 days of the filing of the information required in ARM 38.5.2705. If the commission takes no action within 60 days, the provider may consider the service not regulated.

(4) If a hearing is required:

(a) The commission must promptly schedule the hearing and must give written notice as required in ARM 38.2.1801.

(b) The commission must inform the telecommunication provider that it has accepted or rejected its assertion that the service is not regulated within 60 days of the hearing.

(5) Not less than 20 days prior to offering the service as not regulated the telecommunications provider shall inform current customers, if any, that the service will no longer be regulated.

History

Authorizing statute(s): Secs. 69-3-822 and 69-1-110(3), MCA
Implementing statute(s): Secs. 69-3-803(3) and 69-3-807, MCA
History: NEW, 1986 MAR pp. 801-802, Eff. 5/16/86.

Mont. Admin. R. 38.5.2708 Additional Information That May Be Required from Regulated Providers

(1) If the commission determines that a service is not regulated and the telecommunications provider also provides regulated telecommunications service the commission may require information regarding:

(a) the revenues of and the cost of providing the not regulated service;

(b) the loss, if any, in net expected contribution to the revenue requirement of regulated service caused by the deregulation; and

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Secs. 69-3-803(3) and 69-3-807, MCA
History: NEW, 1986 MAR p. 802, Eff. 5/16/86.

Mont. Admin. R. 38.5.2709 Prohibition Against Cross-Subsidization

(1) No provider of regulated telecommunications service may use current revenues earned or expenses incurred in conjunction with a regulated service to subsidize a not regulated service. The accounting records of the provider shall be kept in a manner that provides adequate information to detect cross-subsidization. The commission has the authority to determine the proper assignment or allocation of revenues, expenses and common investment between regulated and not regulated service.

(2) Commission review to determine the proper allocation between regulated and not regulated service may be in a rate case or the commission may initiate an investigation.

(3) A fully allocated cost accounting or tracking system shall be implemented by each telecommunications provider to separate all revenues and costs that are regulated by this commission.

(a) If the commission finds it necessary it may require a telecommunications provider to maintain entirely separate records and accounts of regulated telecommunications service.

(4) On finding that a regulated service is subsidizing a not regulated service the commission may eliminate the subsidy by any method it deems appropriate.

(5) Nothing in Title 69, Chapter 3, Part 8 precludes the commission from exercising its authority under 69-3-202, MCA.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Secs. 69-3-806 and 69-3-202, MCA
History: NEW, 1986 MAR p. 803, Eff. 5/16/86.

Mont. Admin. R. 38.5.2710 Manner of Regulation of Telecommunication Service

(1) All regulated telecommunications service providers shall file a statement of provision of telecommunications service with the commission. All current providers shall file within six months of the enactment of these rules. Thereafter any telecommunications provider shall inform the commission of any change within 30 days of the change.

(2) The statement shall contain the information required in 69-3-805(1) (a) -(c) , MCA, and:

(a) a description of the facilities used;

(b) tariffs for the regulated telecommunications service, if not on file, or a request that tariffs not be required by the commission.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Sec. 69-3-805, MCA
History: NEW, 1986 MAR p. 803, Eff. 5/16/86.

Mont. Admin. R. 38.5.2711 Regulation of Rates and Charges

(1) All regulated telecommunications service may be subject to this rule. Nothing in these rules authorizes the detariffing of any ser- vice for which there is no alternative provider of such service.

(2) The commission may initiate a determination of whether alternatives to rate setting are appropriate or the telecommunications provider or an interested party may request a determination. If the commission initiates the determination it must notify all parties on the telecommunications mailing list that it intends to consider alternatives to rate setting and may give any additional notice it deems appropriate. If a telecommunications provider or an interested party petitions the commission for an alternative to rate setting it shall notify all parties on the telecommunications mailing list.

(3) To make its determination the commission may use contested case procedure, or if no hearing is requested, act without a hearing.

(4) A petition for an alternative to specific rates, tariffs or fares pursuant to 69-3-807(2) (a) through (e) , MCA, shall contain the following information:

(a) a complete description of the service proposed to be detariffed;

(b) the number and type of customer affected;

(d) the name and address of alternative service providers offering the service in the territory;

(e) the justification for detariffing the service; and

(f) an affidavit that all persons and entities on the telecommunications mailing list have been notified as required in part (3) of this rule.

(g) the commission may require additional information to make its determination.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Sec. 69-3-807, MCA
History: NEW, 1986 MAR pp. 803-804, Eff. 5/16/86.

Mont. Admin. R. 38.5.2712 Alternative to Rate Setting

(1) To determine if any of the alternatives to rate setting listed in part (2) of this rule are appropriate, the commission shall consider the factor listed in 69-3-807(3) (a) -(e) , MCA.

(2) If the commission determines that an alternative to rate setting is appropriate for the telecommunications service the commission may act as allowed in 69-3-807(2) (a) -(e) , MCA.

(3) Twenty days prior to offering the service at a rate not set by this commission, the telecommunications provider shall inform current customers that the service will no longer be tariffed.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Sec. 69-3-807, MCA
History: NEW, 1986 MAR pp. 804-805, Eff. 5/16/86.

Mont. Admin. R. 38.5.2713 Filing Requirement of Detariffed Services

(1) Any telecommunications provider offering regulated telecommunications service detariffed under ARM 38.5.2712 shall maintain sufficient internal documentation to demonstrate that the revenues from detariffed operations are in excess of the incremental cost of providing the service. To the extent that detariffed operations do not cover incremental costs the commission will not allow those costs to be recovered through the rates of regulated services.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Sec. 69-3-807, MCA
History: NEW, 1986 MAR p. 807, Eff. 5/16/86.

Mont. Admin. R. 38.5.2714 Procedures to Require Re-Tariffing

(1) The commission retains the right to retariff. A determination that a service should be retariffed is dependent on the factors listed in 69-3-807(3) (a) -(e) , MCA.

(2) Any interested party may petition the commission for a redetermination of whether an alternative to rate setting is appropriate. The burden of proof is on the party attempting to establish that the service should be retariffed. Such a request will be considered a complaint subject to the requirements of ARM 38.2.2101 through 38.2.2107.

(3) If the commission intends to reconsider whether alternatives to rate setting are appropriate, it shall notify the telecommunication provider and all those on the telecommunications mailing list. Any interested party may file written comments within 20 days of notification that the commission intends to reconsider whether alternatives to rate setting are appropriate. If there is no material factual question the commission may make its determination without a hearing.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Sec. 69-3-807, MCA
History: NEW, 1986 MAR p. 805, Eff. 5/16/86.

Mont. Admin. R. 38.5.2715 Forbearance

(1) Any telecommunications provider may apply to the commission for forbearance of regulation for purposes of negotiating an individual customer contract pursuant to 69-3-808, MCA, in accordance with the procedures set forth in this rule. The procedures specified herein must be satisfied before a telecommunications provider may offer an individual customer contract containing rates which differ from the provider's applicable tariffs or price lists.

(2) A telecommunications provider requesting forbearance approval for a particular customer must file an application with the commission containing all of the following information:

(a) the name and address of the telecommunications provider requesting forbearance;

(b) the name, address and telephone number of the customer;

(c) a description of the telecommunications service(s) to be offered the customer, including specific references to the provider's tariffs and price lists, and the market area to be served.

(d) A statement that either:

(i) Another telecommunications provider has given the customer an oral or written competitive offer to provide the same or similar service(s) for which forbearance is requested; or

(ii) The customer has requested a quotation of prices from another telecommunications provider having tariffs or price lists for similar services on file with the commission.

(e) the name, address and telephone number of the alternative provider referred to in (d) , if known.

(3) The forbearance application containing the information required by subsection (2) shall:

(a) be verified under oath in accordance with Montana law, 1-6-101 et seq., MCA;

(b) be served by mail on all persons and entities on the commission's forbearance mailing list, on the same day that it is filed with the commission; and

(4) If a complete application is filed and served in full compliance with the above requirements, the application shall be deemed automatically granted one (1) day after the date of filing, without the necessity of formal commission action. Approval shall authorize the provider to negotiate rates with the customer without regard to its tariffs or price lists.

(a) The application shall be deemed automatically denied if it is incomplete, inaccurate or fraudulent.

(b) The automatic approval provided above shall be deemed void if it is demonstrated at a later date that the application was incomplete, inaccurate or fraudulent at the time it was filed.

(5) The commission reserves the right to investigate, request additional information or hold hearings at any time regarding forbearance applications, negotiations, contracts or the service and rates provided to forbearance customers. The commission may amend the terms or adjust the rates of any forbearance contract; or order such other relief as may be appropriate. If the commission determines that the rates charged under forbearance contracts were or are below costs, it may issue appropriate orders to ensure that the provider's shareholders, and not ratepayers, are responsible for any costs not recovered through the contract rates.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Sec. 69-3-808, MCA
History: NEW, 1986 MAR p. 807, Eff. 5/16/86; AMD, 1992 MAR p. 57, Eff. 12/27/91; AMD, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.2716 Forbearance Contracts

(1) After forbearance is granted the telecommunications provider may negotiate with the customer for the provision of the service(s) without regard to its filed tariffs or price lists. Within ten days after reaching a final contract or agreement, the telecommunications provider shall file with the commission:

(a) A copy of the final contract or agreement; and

(b) The charges and conditions of service.

(2) For the term of the contract, the telecommunications provider may provide service pursuant to the contract rates, without regard to the rates in its tariffs or price lists. However, the provider remains bound by all other service terms and conditions in its tariffs and price lists, and all other applicable provisions of law.

(3) If a contract or agreement is not finalized with the customer within sixty (60) days after the forbearance application is granted, the provider shall immediately file a status report with the commission, indicating whether negotiations are continuing or whether the customer has reached an agreement with an alternative provider. Additional reports shall be filed every 60 days thereafter, if any change has occurred.

History

Authorizing statute(s): 69-3-822, MCA
Implementing statute(s): 69-3-808, MCA
History: NEW, 1986 MAR p. 807, Eff. 5/16/86; AMD, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.2717 Billing

Publisher status: INEFFECTIVE (not currently effective).

(IS HEREBY REPEALED)

History

Authorizing statute(s): 69-3-822, MCA
Implementing statute(s): 69-3-102 and 69-3-201, MCA
History: NEW, 1986 MAR p. 805, Eff. 5/16/86; REP, 1989 MAR p. 1515, Eff. 9/29/89.

Mont. Admin. R. 38.5.2720 Flexible Pricing for Regulated Telecommunications Service -- General

(1) "Flexible pricing" is a regulatory procedure which permits regulated rates for certain regulated telecommunications services to be changed quickly to meet market conditions. Rates resulting from flexible pricing are sometimes referred to as "market retention rates" or "competitive response rates." Flexible pricing may include a fixed alternative rate or a permissible range of rates with fixed minimum and maximum rates.

(2) Flexible pricing is not detariffing (i.e., total or partial detariffing of rates as provided at 69-8-807, MCA) . A flexible pricing rate and operating rules related to such rate remain regulated and tariffed. Flexible pricing does not include forbearance (i.e., forbearance of rate regulation as provided at 69-3-808, MCA) or promotions (i.e., promotional pricing, market trials, and sales-related activities as provided at 69-3-305, MCA) . Detariffing, forbearance, and promotional pricing are separate and distinct from flexible pricing.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-807, MCA
History: NEW, 2001 MAR p. 48, Eff. 1/12/01.

Mont. Admin. R. 38.5.2721 Flexible Pricing for Regulated Telecommunications Service -- Procedure

(1) Except at provided in (2) , applications for flexible pricing must include:

(a) a statement that the application is for flexible pricing in accordance with these rules and a statement that the application is not for detariffing, forbearance, or promotional pricing;

(b) an identification of the tariffed rate and the tariffed operating rules related to such rate which will be affected by or implemented in the flexible pricing, accompanied by a proposed tariff page reflecting all proposed tariff changes, through interlining of material to be deleted and underlining of material to be added, that will result if the application for flexible pricing is approved;

(i) an identification of the number, size, and distribution of alternative providers of the service to be flexibly priced and, as of the date of application, the number, size, and distribution of each alternative provider actually providing the service to be flexibly priced;

(ii) documentation of the entry of each alternative provider into the area affected;

(iii) the extent to which services are available from these alternative providers;

(iv) the ability of these alternative providers to make functionally equivalent or substitute service readily available;

(v) the present market share of each alternative provider for the service; and

(vi) an estimate of the number of customers who have chosen service from the alternative providers;

(d) a description of the overall impact of the flexible pricing on the continued availability of existing services at just and reasonable rates, including the continued maintenance of basic service at affordable rates;

(e) a description of the overall impact of the proposed flexible pricing on the continued encouragement of competition in the provision of telecommunications services; and

(f) verification that the alternative lower price or the minimum price in a proposed range of prices cover all relevant incremental costs for each specific geographical area and product mix for which the flexible pricing is proposed.

(2) If the applicant does not have access to one or more of the information items required in (1) (c) (i) through (vi) , including through being prohibited by law from accessing the information, the applicant shall so state in its application, explain in reasonable detail why access is not available, and request that the commission waive the requirement to provide the information.

(3) Applications for flexible pricing will be noticed to the public and processed as contested cases in accordance with commission procedural rules.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-807, MCA
History: NEW, 2001 MAR p. 48, Eff. 1/12/01.

Mont. Admin. R. 38.5.2722 Flexible Pricing for Regulated Telecommunications Service -- Approval

(1) The commission will approve or deny flexible pricing on a case-by-case basis considering all relevant factors.

(2) Rate changes required to offset any reduction in revenues resulting from implementation of flexible pricing will only be considered in the context of a general rate proceeding.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-807, MCA
History: NEW, 2001 MAR p. 48, Eff. 1/12/01.

Mont. Admin. R. 38.5.2730 Applicability

(1) ARM 38.5.2730 through

(a) the commission's detariffing rules, ARM 38.5.2711 through 38.5.2712, and § 69-3-807(2) and (3) , MCA, or

(b) the standards set forth in § 69-3-807(4) , MCA. Nothing in ARM 38.5.2730 through 38.5.2750 precludes a carrier from otherwise introducing a new telecommunications service on a tariffed basis, pursuant to an application filed and approved by the commission. The provisions of ARM 38.5.2730 through 38.5.2750 are not applicable to new services offered on a tariffed basis.

38.5.2750 apply to applications by carriers, as defined in ARM

38.5.3302(3) ,for the approval of a new detariffed telecommunications service introduced pursuant to § 69-3-810, MCA. As alternatives to the procedures in ARM 38.5.2730 through 38.5.2750, carriers may elect to request that a new telecommunications service be detariffed pursuant to:

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Sec. 69-3-810, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.2732 Definitions

(1) For purposes of ARM 38.5.2730 through 38.5.2750, "new service" means any service that is introduced separately or in combination with other services, and:

(a) Is not functionally required to provide local exchange service;

(b) Is not a repackaged current service; and

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Sec. 69-3-810, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.2735 Filing Requirements

(1) A carrier must file an application with the commission requesting approval of a new service pursuant to 69-3-810, MCA, in accordance with the following filing requirements. The carrier must file an application containing the following information:

(a) A description of the service;

(b) The proposed terms and conditions under which the service would be offered;

(d) The proposed price list sheets for the service, containing the information required in ARM 38.5.2747(2) .

(e) Detailed answers to the following:

(i) Is the service functionally required to provide local exchange service? Explain.

(ii) Is the service, or any component thereof, similar to any past or present service offered by any carrier in Montana (including the applicant) ? The applicant must provide details, including a list of such services, the name(s) of such carrier(s) , and a description of the differences between the services.

(iii) If any service is identified in (ii) , explain why the proposed new service:

(A) is not a repackaged current service, and

(B) is not a direct replacement for a regulated telecommunications service.

(f) The relevant incremental cost of providing the service, including supporting work papers and analysis. Cost information may be filed on a proprietary basis pursuant to 69-3-105, MCA;

(g) Identify any products or services offered by unregulated firms, or firms other than carriers, which could compete with the proposed new service, describe their availability in Montana, and describe the differences between those products or services and the proposed new service;

(h) A statement on the first page of the application containing the following: "Notice: This application for approval of a new telecommunications service is being filed with the Montana public service commission pursuant to 69-3-810, MCA. Interested parties which appear on the commission's new services telecommunications mailing list are receiving a copy of this application pursuant to ARM 38.5.2735; and should file any comments they have regarding this filing within 10 days after this application was filed with the commission, at the following address:

Mr. Dennis Crawford

Montana Public Service Commission

P.O. Box 202601

1701 Prospect Avenue

Helena, MT 59620-2601 The commission may take action on this filing after the ten day comment period elapses. If the commission has not acted on this filing within 30 days following issuance of this notice, the applicant may proceed to offer the new service on a detariffed basis (i.e. with reduced regulatory oversight of rate changes and maximum rates) . This application is governed by ARM 38.5.2730 through 38.5.2750."

(2) The complete application must be served by first class mail on the parties listed on the commission's new services telecommunications mailing list, on the same day that it is filed with the commission. The complete application must also be served in the same manner and at the same time on all persons or entitles who have requested or inquired about the provision of such service from the carrier within the previous six (6) months. Certification of such service must be filed by the carrier with the commission no later than one day after the application is filed and served.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Sec. 69-3-810, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.2740 Approval Process

(1) The 10 day period immediately following the filing and service of the application constitutes a comment period for interested parties. However, nothing herein shall be interpreted to preclude interested parties from filing comments or requesting a hearing more than 10 days after filing and service of the application.

(2) Following the 10 day comment period, the commission may:

(a) Approve the application,

(b) Deny the application,

(d) Grant interim approval of the offering of the service.

(3) If the commission has not acted within 30 days following the filing and service of the application, the carrier may proceed to offer the service.

(4) Regardless of the form of approval, disapproval or suspension, the commission may conduct further investigations, hold hearings or public meetings, and take other appropriate actions at any time.

(5) In deciding whether to approve a new service as detariffed, the commission may consider:

(a) whether the service falls within the definition of "new service," § 69-3-808, MCA and ARM 38.5.2732;

(b) whether approval is consistent with the purposes of the Montana Telecommunications Act, § 69-3-802, MCA;

(d) whether approval would violate any other provisions of the Montana Telecommunications Act, 69-3-801 et seq., MCA or Title 69, MCA; and

(e) any other information or factor relevant to the public interest.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Sec. 69-3-810, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.2742 Provision of New Service

(1) A new service which has been approved as provided above, may be offered on a "detariffed" basis. For purposes of this rule, "detariffed" means that the rates for the service may be changed without commission approval (above a minimum rate) , but the service otherwise remains fully regulated.

(2) At the time the service is offered to the public, the carrier must file a compliance price list with the commission containing:

(a) The terms, conditions and description of the service;

(b) The minimum rate for the service; and

(3) The compliance price list filed pursuant to subsection (2) must be consistent with the conditions of commission approval. If approval occurred automatically following the passage of 30 days, pursuant to ARM 38.5.2740(3) , the compliance price list must contain the same terms, conditions, description and minimum price that were contained in the application.

(4) The rate charged for the service must be above the minimum rate and above relevant incremental costs at all times.

(5) The minimum rate in the price list cannot be changed without subsequent commission approval.

(6) The service must be offered in accordance with the terms, conditions and description contained in the price list.

(7) The terms, conditions and description of the service cannot be changed without subsequent commission approval.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Sec. 69-3-810, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.2744 Price List Revisions

(1) A carrier may request a change in a price list rate for a new service by filing a proposed new price list with the commission which complies with the provisions of these rules, and mailing a copy to the commission's new services telecommunications mailing list at least seven (7) days prior to the proposed effective date of the new price list rate. The carrier must concurrently file a certificate of service which affirms compliance with this rule.

(2) Proposed new price list rates become automatically effective for services rendered seven (7) days after filing and service is completed pursuant to subsection (1) ; no commission action or approval is necessary.

(3) If a carrier designates an effective date more than seven (7) days after a filing made pursuant to subsection (1) , the new price list rate becomes automatically effective for services rendered after such designated date.

(4) The automatic approval process described in this rule is only available to change a price list rate to another rate which is also above the minimum rate in the current price list. Formal explicit commission approval is required to alter the minimum rate or the terms, conditions and description contained in the price list.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Sec. 69-3-810, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.2750 Retariffing

(1) The commission retains the

(2) The commission may initiate a proceeding, or an interested party may petition, for the retariffing of a detariffed new service in accordance with the procedure described in ARM 38.5.2714.

right to retariff a detariffed new service.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): 69-3-810, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.2760 Withdrawal

(1) A carrier may request withdrawal of a current telecommunications service pursuant to § 69-3-810(4) , MCA, in accordance with the following procedure. This rule shall not preclude a carrier from requesting withdrawal of a service pursuant to other procedural methods which are consistent with the Montana Administrative Procedure Act and other applicable provisions of law.

(2) An application requesting commission approval of withdrawal of a current service must contain the following information:

(a) The name and address of the applicant;

(b) The name and description of the service, including specific reference to tariffs and/or price list sheets;

(d) The names of other carriers capable of offering the same or similar service to the applicant's current customers, if known;

(e) The current price for the service;

(f) An explanation of the reasons why the applicant is requesting withdrawal of the service; and

(g) Any disadvantages, adverse effects or hardships which may be incurred by customers due to withdrawal of the service, if known.

(3) The complete application must be filed with the commission and copies served on the same day by first class mail, to all current subscribers of the service and the Montana consumer counsel. The applicant may request approval by the commission of an alternative method of subscriber notification. Certification of such service must be filed with the commission no later than one day after the application is filed and served.

(4) The withdrawal of the service shall be deemed automatically approved without commission action 30 days after a complete application is filed and served in accordance with the requirements of this rule. However, the commission may suspend withdrawal on its own motion or upon request of an interested party. During the suspension period, the applicant must continue to offer the service on the same terms and conditions. The commission may conduct such investigations or hearings as it deems appropriate during suspension, and may enter an order approving or denying the withdrawal, or take such further action as may be appropriate.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Sec. 69-3-810, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Subchapter 38.5.28 Minimum Rate Case Filing Requirements for Telephone Utilities

Mont. Admin. R. 38.5.2801 Letter of Transmittal

(1) The letter accompanying a telecommunications utility rate case filing to the commission shall contain a minimum of the following:

(a) A list of documents submitted with the filing;

(b) A list of names and addresses of those to whom copies of the rate case have been mailed;

(d) Reasons for the proposed changes;

(e) Estimated number of customers whose rates will be effected;

(f) List of names and phone numbers of utility employees or consultants who shall be responsible for answering questions concerning the rate case;

(g) List of names and addresses of utility employees or consultants who should be included on the service list.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1986 MAR p. 805, Eff. 5/16/86.

Mont. Admin. R. 38.5.2802 Applications for Rate Increases

(1) Applications for rate increases exceeding $500,000 annually shall include, minimally, the information required in ARM 38.5.2808 through 38.5.2820. Applications for rate increases not exceeding $500,000 annually shall contain such information the utility feels will allow the commission to adequately evaluate the request for an increase in rates. Additional information may be required by the commission or its staff subsequent to the time of filing.

(2) The original and ten copies of the letter of transmittal, the application, all testimony, and all statements required in ARM 38.5.2808 through 38.5.2820 inclusive shall be submitted to the commission at the date of filing. Montana consumer counsel shall receive two copies of the same materials.

(3) One copy of all of the material required in these rules shall be submitted on computer diskettes compatible with either IBM personal computers or an IBM System 36 where possible.

(4) All or any part of the requirements of these rules may be waived by a quorum of the commission upon a showing of good cause. Waiver of any requirements, however, shall not preclude the commission from requiring the filing of specific cost data and material sufficient to support the application.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1986 MAR pp. 805-806, Eff. 5/16/86.

Mont. Admin. R. 38.5.2803 Analysis of Total System Costs for a Twelve Month Historical Test Year

(1) The application shall contain an analysis of total Montana costs as reflected on the filing utility's books for a test period consisting of 12 months actual experience ending no earlier than 9 months prior to the date of the filing of the application to increase rates. Any proposed adjustments to book costs shall be explained in writing. Such adjustments to book costs shall be shown separately and shall be fully supported, including schedules showing their derivation, where appropriate. However, no adjustments shall be permitted unless based on changes in facilities, operations, or costs which are known with certainty and measurable with reasonable accuracy at the time of the filing. No adjustment will be entertained unless it will become effective within 12 months of the last month of the test period.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1986 MAR p. 807, Eff. 5/16/86.

Mont. Admin. R. 38.5.2804 Other Data Relied on

(1) If the applicant has relied on data other than those in statements A to I in support of its rate increase, such other data, appropriately identified and designated as such and separately stated, shall be submitted in addition to the data required in statements A to I.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1986 MAR p. 807, Eff. 5/16/86.

Mont. Admin. R. 38.5.2805 Working Papers to Be Filed

(1) Three sets of all detailed working papers or documentation supporting the filing and/or the statements described in these rules shall be submitted at the time the application is filed with the Commission. Such working papers shall be supplied by the applicant to intervenors on request.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1986 MAR p. 807, Eff. 5/16/86.

Mont. Admin. R. 38.5.2806 Uniform System of Accounts to Be Generally Followed

(1) All statements and schedules shall be prepared in accordance with the Federal Communications Commission Uniform System of Accounts, provided that such action does not conflict with Montana law and the commission's rules and orders. If the applicant believes that the FCC classifications are inconsistent with this commission's orders, the applicant's treatment and the inconsistency shall be stated on all related materials disclosing full particulars properly cross-referenced to the filing. Computations and other information related to the inconsistency shall be available for examination by the staff and intervenors. The treatment of any expense, rate base or revenue item that is not in conformance with, or is inconsistent with, prior commission orders is to be clearly identified and explained.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1986 MAR p. 806, Eff. 5/16/86.

Mont. Admin. R. 38.5.2807 Cost of Service Data

(1) With the initial application for a rate increase under these rules, the applicant shall submit a complete cost of service study supporting the services and customer classes receiving proposed rate increases and a clear showing that revenues from services or customer classes proposed to be excluded from a rate increase are covering costs.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1986 MAR p. 808, Eff. 5/16/86.

Mont. Admin. R. 38.5.2808 Statement a -- Balance Sheet

(1) Statement A shall include the balance sheets on a total company basis as of the beginning and end of the test period, and the most recent balance sheet.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-2-101, 69-3-821 and 69-3-822, MCA
History: NEW, 1986 MAR p. 808, Eff. 5/16/86.

Mont. Admin. R. 38.5.2809 Statement B -- Income Statements

(1) Statement B shall include an income statement for the test period

(a) Total company;

(b) Total state;

(d) Regulated intrastate.

set forth as follows:

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-2-101, 69-3-821 and 69-3-822, MCA
History: NEW, 1986 MAR p. 808, Eff. 5/16/86.

Mont. Admin. R. 38.5.2810 Statement C -- Rate Base

(1) Statement C shall include the average rate base proposed by the applicant set forth in a manner similar to the format shown in Statement B.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1986 MAR p. 808, Eff. 5/16/86.

Mont. Admin. R. 38.5.2811 Statement D -- Plant Not Used and Useful

(1) Statement D shall set forth the cost and description of plant carried on the company's books as utility plant which is not used and useful.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-2-101 and 69-3-109, MCA
History: NEW, 1986 MAR p. 808, Eff. 5/16/86.

Mont. Admin. R. 38.5.2812 Statement E -- Allocation of Overall Accounts

(1) Statement E shall set forth the allocation of all overall accounts to separate the amounts applicable to regulated service and not regulated services and shall provide a complete explanation of the method, procedures, and significant data used in making the allocations. All allocation factors shall be provided. Any method or procedure for allocating revenues or costs that has changed since the prior rate case must be specifically set forth and explained.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-821 and 69-3-822, MCA
History: NEW, 1986 MAR p. 806, Eff. 5/16/86.

Mont. Admin. R. 38.5.2813 Statement F -- Affiliated Interest Transactions

(1) If the expense or capital accounts contain charges or credits from associated entities of the applicant, submit for each such associated entity work papers showing the following:

(a) The amount of the charges or credits during the test period;

(b) The account classification or classifications

charged or credited;

(d) The basis used in determining the amounts of the charges or credits.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-2-101 and 69-3-821, MCA
History: NEW, 1986 MAR p. 808, Eff. 5/16/86.

Mont. Admin. R. 38.5.2814 Statement G -- Income Taxes

(1) Statement G shall include a reconciliation between booked taxes and actual taxes paid. All adjustments shall be completely described and the amounts thereof shown separately. Amounts of deferred taxes debited and credited shall be shown separately. There also should be shown the amounts and basis of assignments of taxes attributed to not regulated operations. Any abnormalities such as nonrecurring gains, losses and deductions affecting the income tax for the test period shall be explained and the tax effect set forth.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1986 MAR pp. 806-807, Eff. 5/16/86.

Mont. Admin. R. 38.5.2815 Statement H -- Rate of Return

(1) Statement H shall show the percentage rate of return claimed. The statement shall show the cost of debt capital, preferred stock capital, and common stock capital and the overall rate of return claimed based on the utilities capitalization. In addition, items required in ARM 38.5.2816 through 38.5.2819, inclusive, shall be submitted as part of Statement H. In such cases where 50 percent or more of the common stock of the public utility is not held by the public but is owned by another corporation, the information required in Statement H shall also be submitted to the extent applicable with respect to the parent company.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1986 MAR p. 807, Eff. 5/16/86.

Mont. Admin. R. 38.5.2816 Debt Capital

(1) Statement H shall include the weighted average cost of debt capital based upon the following data for each class and series of long-term debt outstanding according to the most recently available balance sheet:

(a) Title;

(b) Date of issuance and date of maturity;

(d) Principal amount of issue;

(e) Net proceeds;

(f) Amount currently outstanding;

(g) Cost of money and yield to maturity based on the interest rate and net proceeds per unit outstanding determined by reference to any generally accepted table of bond yields;

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1986 MAR p. 808, Eff. 5/16/86.

Mont. Admin. R. 38.5.2817 Preferred Stock Capital

(1) Statement H shall also show the weighted average cost of preferred stock capital based upon the following data for each class and series of preferred stock outstanding according to the most recently available balance sheet:

(a) Title;

(b) Date of issuance;

(d) Par value of stated amount of issue;

(e) Issuance expenses;

(f) Net proceeds;

(g) Cost of money, that is, the dividend rate divided by net proceeds per unit or share;

(h) Amount outstanding;

(i) If issue is owned by an affiliate provide the name and relationship of owner.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1986 MAR p. 808, Eff. 5/16/86.

Mont. Admin. R. 38.5.2818 Common Stock Capital

(1) Statement H shall include the following for each sale of common stock during the two year period preceding the most recently available balance sheet:

(a) Number of shares sold;

(b) Gross proceeds at offering price;

(d) Proceeds to the filing utility;

(e) Amount of issuance expenses;

(f) Net proceeds;

(g) Offering price per share;

(h) Net proceeds per share;

(i) Whether issue was offered to stockholders through subscription rights or to the public.

(2) Statement H shall also include the following information on outstanding common stock for the five calendar years preceding the end of the test period and by months for the 12 month test period:

(a) Average number of shares outstanding;

(b) Earnings per average share for only the five years preceding the test year;

(d) Annual dividend rate per share;

(e) Dividends listed as percent of earnings;

(f) Average market price based on the monthly high and

low.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1986 MAR p. 807, Eff. 5/16/86.

Mont. Admin. R. 38.5.2819 Statement H-1 -- Reacquisition of Bonds or Preferred Stock

(1) If any bonds or preferred stock have been reacquired by the utility during the 18 months prior to the date of filing, show full details in Schedule H-1, including:

(a) Title or series;

(b) Principal amounts or par value reacquired;

(d) Gain or loss on reacquisition.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1986 MAR p. 807, Eff. 5/16/86.

Mont. Admin. R. 38.5.2820 Statement I -- Comparison of Sales and Revenues

(1) The application for a rate increase shall include a statement comparing rates, sales, and the revenues there from under the currently approved rate schedules and the rate schedules proposed to be superseded or supplemented. Such comparisons shall be applied to the sales levels for the 12 months of the test period. Such comparisons should be made for each rate schedule.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1986 MAR p. 808, Eff. 5/16/86.

Mont. Admin. R. 38.5.2821 Deficient Filings

(1) The commission shall, within 30 days of the filing by the utility of an application for rate increases, notify the utility of any failure of the application to comply with requirements of these rules. The notice shall specify the deficiencies and grant the utility a reasonable period of time in which to supplement or correct the filing. If notice is not given within the 30 days of filing, the application shall be deemed to comply with these rules. The date of the initial filing shall be preserved unless the initial filing patently fails to substantially comply with these rules. No filing shall be deemed to have patently failed to substantially comply with rules if the commission can reasonably judge the merits of the application and any deficiencies in the filing are corrected within 30 days. If the filing utility fails or refuses to provide information with respect to an expense, revenue, plant or other account item, but otherwise meets its burden of proof, the commission may adjust the utility's revenue requirement to reflect the failure to meet the burden of proof as to the specific item.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-2-101, MCA
History: NEW, 1986 MAR p. 808, Eff. 5/16/86.

Subchapter 38.5.29 Guidelines for Calculating the Amount of Contribution in Aid of Construction to be Collected From a Utility Customer

Mont. Admin. R. 38.5.2901 Purpose

(1) This sub-chapter's purpose is to provide guidelines for calculating the amount of contribution in aid of construction to be collected from a utility customer. Utilities with operating revenue of less than $25,000 are not subject to this sub-chapter.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1988 MAR p. 731, Eff. 4/15/88.

Mont. Admin. R. 38.5.2902 Definition

(1) The term contribution in aid of construction refers to all money or other property received by a public utility that it must include in its taxable income as a result of the repeal of IRC Sec. 118 (b) . It includes money or other property received by a regulated public utility to pay for the cost of additional plant or to pay the cost of modifying existing plant.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1988 MAR p. 731, Eff. 4/15/88.

Mont. Admin. R. 38.5.2903 Calculation of Contribution

(1) The amount a regulated utility collects from a customer making a contribution in aid of construction must include:

(a) The contribution in aid of construction, and

(b) An amount equal to the utility's increased income tax expense that is caused by including the contribution in income, less the present value of estimated future tax savings from depreciation of the additional plant.

(i) To calculate the present value of future tax savings a utility must determine a reasonable discount rate using the following criteria:

(A) The discount rate may not exceed the overall rate of return established in the utility's last rate case.

(B) The discount rate must apply for no less than 12 months. All changes in the discount rate must be filed to be effective on January 1.

(2) A utility may be exempt from the requirement of ARM 38.5.2903 (1) (b) that it collect from the customer the tax expense and discounted present value of future tax savings associated with the contribution in aid of construction if:

(a) The additional tax expense is borne by the shareholders as a "below the line" expense, and

(b) All consumer's contributions in aid of construction are calculated in the same manner as regards responsibility for the tax expense; and

(c) The utility agrees to maintain its policy of treating the additional tax expense as shareholder expense until authorized to change by the commission.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1988 MAR p. 731, Eff. 4/15/88.

Mont. Admin. R. 38.5.2904 Effect on Rates

(1) Contributions in aid of construction are not included in income for ratemaking purposes. Ratepayers are not responsible for any effects associated with the inclusion of contribution in aid of construction in taxable income.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-102, MCA
History: NEW, 1988 MAR p. 731, Eff. 4/15/88.

Authorizing statute(s): 69-3-822, MCA and Ch. 349, sec. 37, L. 1997
Implementing statute(s): 69-3-856 through 69-3-860, MCA
History: NEW, 1998 MAR p. 181, Eff. 10/21/97; REP, 2003 MAR p. 2085, Eff. 9/26/03.

Subchapter 38.5.31 Inter-carrier Compensation

Mont. Admin. R. 38.5.3101 Types of Records to Be Made Available

(1) "Transit record" is defined as telecommunications network transit traffic usage data and wireless telecommunications network transit traffic usage data pertaining to telecommunications traffic that an originating carrier delivers to a transiting carrier or carriers for delivery to a terminating carrier.

(a) The term does not mean traffic carried by interlocal access transport area carriers or providers of intralocal access transport area toll services.

(b) Such network usage data must be compiled in accordance with current telecommunications industry guidelines and in compliance with current ordering and billing forum (OBF) standards.

(2) To the extent the information has been transmitted by the originating carrier to the transiting carrier, transit records shall enable terminating carriers to identify originating carriers and other call information by means of a Category 11 or Category 11 type format record as defined in the EMR Bellcore Practice BR010 - 200 - 010, or a successor record adopted by the OBF, which enables a terminating carrier to identify each originating carrier's operating company number (OCN) , or carrier identification code (CIC) , or other call detail information necessary to identify, measure and appropriately charge for traffic that terminates on terminating carriers' networks.

(3) To the extent the information has been transmitted by the originating carrier to the transiting carrier, Category 11 or Category 11 type format records must provide terminating carriers with necessary call identification data such as the:

(a) the calling party number, including area code and number prefix;

(b) the called party number, including area code and number prefix;

(d) the billed to number, including area code and number prefix;

(e) area code and number prefix; and

(f) related information associated with originating telecommunications traffic to enable the terminating carrier to identify, measure and appropriately charge the originating carrier for termination of local telecommunications service.

(4) Any transiting carrier shall deliver telecommunications traffic to a terminating carrier by means of facilities that enable the terminating carriers to receive from the originating carrier any and all information that the originating carrier or the interlocal access transport area carrier or intralocal access transport area toll provider of nonlocal telecommunications traffic transmits that enables the terminating carrier to identify, measure, and appropriately charge the originating carrier or the interlocal access transport area carrier or intralocal access transport area toll provider of nonlocal telecommunications traffic for the termination of its telecommunications traffic.

History

Authorizing statute(s): 69-3-803 and 69-3-815, MCA
Implementing statute(s): 69-3-815, MCA
History: NEW, 2004 MAR p. 85, Eff. 1/16/04.

Mont. Admin. R. 38.5.3102 Cost of the Transit Records

(1) The rate for the transit records shall be the transit record rate set forth in qwest corporation's most recent Statement of Generally Available Terms on file with the commission or such other rate as the commission may establish.

(2) Nothing in this rule precludes two carriers from mutually agreeing in writing to any other arrangement pertaining to recovery of costs associated with acquiring transit or billing records from the transiting carrier or from the originating carrier.

History

Authorizing statute(s): 69-3-803 and 69-3-815, MCA
Implementing statute(s): 69-3-815, MCA
History: NEW, 2004 MAR p. 85, Eff. 1/16/04.

Mont. Admin. R. 38.5.3103 Party Responsible for the Payment of Transit Records to the Transiting Carrier

(1) A transiting carrier must pass to the terminating carrier, unaltered, all information the transiting carrier receives in the signaling stream of the call from the originating carrier.

(2) Where a carrier requests transit records from a transiting carrier, the transiting carrier shall provide the transit records.

(3) The requesting carrier shall pay the transiting carrier for the records provided.

(4) Rates of compensation are as set forth in 38.5.3102, MCA.

History

Authorizing statute(s): 69-3-803 and 69-3-815, MCA
Implementing statute(s): 69-3-815, MCA
History: NEW, 2004 MAR p. 85, Eff. 1/16/04.

Mont. Admin. R. 38.5.3104 Audits and Verification

(1) No more than twice a year, a transiting carrier required to provide transit records to a terminating carrier upon request shall permit the terminating carrier to independently verify through an audit that the records provided by the transiting carrier to the terminating carrier reasonably account for all the information the transiting carrier has received from the originating carrier and that the transiting carrier delivers to the terminating carrier.

(2) No more than twice a year, an originating carrier shall permit a terminating carrier to independently verify through an audit that the information provided by the originating carrier to the terminating carrier reasonably accounts for all the traffic the originating carrier delivers to the terminating carrier.

History

Authorizing statute(s): 69-3-803 and 69-3-815, MCA
Implementing statute(s): 69-3-815, MCA
History: NEW, 2004 MAR p. 85, Eff. 1/16/04.

Mont. Admin. R. 38.5.3105 Responsibilities of Originating Carrier

(1) An originating carrier shall transmit to the terminating carrier or to the transiting carrier as part of the call transaction, information that permits the terminating carrier to:

(a) identify the originating carrier;

(b) measure the call (if appropriate) ; and

(2) At a minimum, the call transaction information set forth in (1) must include:

(a) the originating carrier's OCN or CIC or other call detail information necessary to identify the source of traffic that terminates on terminating carriers' networks;

(b) the calling party number (CPN) , including area code and number prefix;

(d) the date, time and duration of the call;

(e) the billed to number, including area code and number prefix;

(f) the jurisdictional identification parameter (JIP) or equivalent identifying parameter; and

(g) related information associated with originating telecommunications traffic to enable the terminating carrier to identify, measure and appropriately charge the originating carrier for termination of local telecommunications service.

History

Authorizing statute(s): 69-3-803 and 69-3-815, MCA
Implementing statute(s): 69-3-815, MCA
History: NEW, 2004 MAR p. 85, Eff. 1/16/04.

Mont. Admin. R. 38.5.3106 Expedited Resolution of Complaints

(1) Complaints that are filed pursuant to this rule shall be designated as a complaint filed under the interconnection statutes, 47 USC Sections 251 and 252 and 69-3-831 , 69-3-832 , 69-3-833 , 69-3-834 , 69-3-835 , 69-3-836 , 69-3-837 , 69-3-838 and 69-3-839 , MCA, or as a complaint filed under 69-3-815 (6) , MCA.

(2) Where a complaint filed with the commission is designated a complaint filed under the relevant interconnection agreement statutes, the commission shall follow the procedures set forth in those statutes.

(3) Complaints that are filed under 69-3-815 (6) , MCA, shall be expedited according to a procedural schedule that will be implemented on a case-by-case basis in accordance with commission rules.

History

Authorizing statute(s): 69-3-803 and 69-3-815, MCA
Implementing statute(s): 69-3-815, MCA
History: NEW, 2004 MAR p. 85, Eff. 1/16/04.

Subchapter 38.5.32 Eligible Telecommunications Carriers and Lifeline/Link-Up

Mont. Admin. R. 38.5.3201 Purpose and Scope of Rules

(1) Federal and Montana laws include provisions that apply to commission designation of eligible telecommunications carriers and also to commission review of the status of existing eligible telecommunications carriers. The rules in this sub-chapter are minimum standards and must be read and applied in conjunction with federal and Montana law applying to designation of eligible telecommunications carriers and maintenance of eligible telecommunications carrier status.

(2) Eligible telecommunications carrier applications will be evaluated to determine whether the commission's public interest standard is met.

(3) Waiver of a rule in this sub-chapter will not be routinely granted, but may be granted, in the commission's discretion, for clearly demonstrated good cause.

History

Authorizing statute(s): 69-3-822, MCA
Implementing statute(s): 69-3-840, MCA
History: NEW, 2005 MAR p. 653, Eff. 4/29/05.

Mont. Admin. R. 38.5.3203 Burden in Proceedings

(1) An applicant for designation as an eligible telecommunications carrier has the burden of demonstrating in fact and law that the requirements for designation as an eligible telecommunications carrier have been met. An eligible telecommunications carrier, in any annual or other process involving certification as an eligible telecommunications carrier or maintenance of status as an eligible telecommunications carrier, has the burden of demonstrating in fact and law that the requirements for certification or maintenance of status have been met.

(2) Applicants in designation proceedings shall include, with the application for designation, prefiled testimony and supporting analysis establishing a prima facie case for designation.

History

Authorizing statute(s): 69-3-822, MCA
Implementing statute(s): 69-3-103 and 69-3-840, MCA
History: NEW, 2005 MAR p. 653, Eff. 4/29/05.

Mont. Admin. R. 38.5.3206 Designation and Maintenance -- Compliance with Conditions

(1) The commission may revoke eligible telecommunications carrier status if the eligible telecommunications carrier is unable to establish that it meets commission compliance directives and conditions, provisions of federal and Montana laws including these rules, or assurances that have been provided by the eligible telecommunications carrier to the commission.

History

Authorizing statute(s): 69-3-822, MCA
Implementing statute(s): 69-3-840, MCA
History: NEW, 2005 MAR p. 653, Eff. 4/29/05.

Mont. Admin. R. 38.5.3209 Designation and Maintenance -- Minimum Additional Requirements

(1) An applicant for eligible telecommunications carrier status must demonstrate the requirements for designation will be met upon designation or within a reasonable time following designation, and, on request by the commission, existing eligible telecommunications carriers must demonstrate the requirements for designation are being met or will be met within a reasonable time following a review of status proceeding.

(2) The minimum requirements for designation and maintenance of status as an eligible telecommunications carrier include:

(a) offering the services that are supported by the federal universal service support mechanisms as required by 47 CFR 54.201(d) (1) and identified in 47 CFR 54.101 and 47 USC 254(c) ;

(b) advertising the availability of the supported services and the charges for those services using media of general distribution as required by 47 CFR 54.201(d) (2) ;

(c) providing the supported services throughout the designated service area to all customers making a reasonable request for service, including low-income, low-density, rural, insular, and high-cost customers, and, for service in rural areas, in a manner reasonably comparable and at a rate reasonably comparable to similar services offered in urban areas;

(d) satisfying applicable consumer protection and service quality standards;

(e) offering a local usage plan comparable to the one offered by the incumbent local exchange carrier; and

(f) demonstrating eligible telecommunications carrier status is in the public interest.

History

Authorizing statute(s): 69-3-822, MCA
Implementing statute(s): 69-3-840, MCA
History: NEW, 2005 MAR p. 653, Eff. 4/29/05.

Mont. Admin. R. 38.5.3210 Designation and Maintenance -- Public Interest

(1) Consideration of the public interest will apply in all eligible telecommunications carrier designation and maintenance of status proceedings.

(2) The commission is not required to designate additional eligible telecommunications carriers in any service area, nonrural or rural. The commission may determine designation of an eligible telecommunications carrier in any service area, rural or nonrural, is not in the public interest.

(3) Consideration of the "public interest" means the commission will consider all known factors regarding the designation of an eligible telecommunications carrier and the maintenance of status as an eligible telecommunications carrier that clearly demonstrate a public benefit or a public detriment, including, but not limited to:

(a) the ability of the eligible telecommunications carrier to provide the supported services in the manner required;

(b) the ability and willingness of the eligible telecommunications carrier to comply will all laws governing eligible telecommunications carriers;

(d) the effect designation of an additional eligible telecommunications carrier will have on an existing eligible telecommunications carrier, primarily in regard to the provision of services and cost as relates to density, terrain, service, and so forth;

(e) whether the eligible telecommunications carrier technology platform is compatible with broadband and other advanced service offerings and facilitates availability of advanced telecommunications and information services in the areas served;

(f) the ability of the eligible telecommunications carrier to provide equal access to interexchange carriers in the event no other eligible telecommunications carrier is providing equal access in the service area;

(g) the extent to which the eligible telecommunications carrier is able to provide service to customers throughout the service area using the eligible telecommunications carrier's own network;

(h) the effect that designation or maintenance of status will have on the availability of universal service funds;

(i) the effect that designation or maintenance of status will have on the principles of universal service;

(j) the public convenience, including things such as mobility, quality of service, availability of competition, and market choices; and

(k) public necessity, including factors such as public safety, reliability of service, ability to operate in emergencies.

(4) Any one public interest factor, identified in (3) or otherwise relevant for consideration, is unlikely to be determinative in and of itself, regarding the designation of an eligible telecommunications carrier or the maintenance of status as an eligible telecommunications carrier. A determination of public interest will generally include a consideration and balancing of all relevant factors.

History

Authorizing statute(s): 69-3-822, MCA
Implementing statute(s): 69-3-840, MCA
History: NEW, 2005 MAR p. 653, Eff. 4/29/05.

Mont. Admin. R. 38.5.3213 Designation and Maintenance -- Coverage

(1) Applications for designation as a competitive eligible telecommunications carrier and, upon request by the commission, existing eligible telecommunications carriers must provide a plan demonstrating the manner in which customers in the service area for which designation is sought or exists have or will have access to service. The plan for coverage must be in terms of percentage of customers served, minimum of 98%, within designated periods of time in years, up to five years. The commission may approve the plan or modify the plan if the circumstances demonstrate modification is in the public interest.

(2) For purposes of this rule "access to service" means that the indicated percentage of residences and businesses must be able to utilize the designated carrier's services from their residence or business locations. In the case of a wireless eligible telecommunications carrier, "access to service" also means that customers within the maximum required coverage for the period designated shall not be required to purchase any equipment, beyond a typical handheld mobile phone, that may be required to enhance the ability to transmit or receive the wireless communications service.

History

Authorizing statute(s): 69-3-822, MCA
Implementing statute(s): 69-3-840, MCA
History: NEW, 2005 MAR p. 653, Eff. 4/29/05.

Mont. Admin. R. 38.5.3216 Maintenance -- Investigations, Audits, Reporting, Notices

(1) The commission may conduct investigations and audits of any or all designated eligible telecommunications carriers in Montana. The investigations and audits will be limited to compliance with eligible telecommunications carrier requirements.

(2) The commission may require reporting by any or all eligible telecommunications carriers in Montana. Upon commission notification, eligible telecommunications carriers shall submit reports to the commission in a format prescribed by the commission, which may require affidavits in support. The reports will be limited to compliance with eligible telecommunications carrier requirements.

(3) Eligible telecommunications carriers receiving or intending to receive federal universal service funding for services provided by means other than customary wireline or mobile wireless service (e.g., satellite, internet, voice over internet protocol, cable, power line, and so forth ) must file with the commission notification of receipt or notification of intent to seek funding. During an annual certification procedure or upon commission request, such carriers must demonstrate that the provision of basic exchange service by means other than customary wireline or mobile wireless (e.g., satellite, internet, voice over internet protocol, cable, power line, and so forth ) satisfies all of the requirements of federal and Montana law, including the requirements of these rules.

History

Authorizing statute(s): 69-3-822, MCA
Implementing statute(s): 69-3-840, MCA
History: NEW, 2005 MAR p. 653, Eff. 4/29/05.

Mont. Admin. R. 38.5.3218 Maintenance -- Annual Certifications

(1) The process for the annual certifications of eligible telecommunications carriers will be designed to meet all federal and Montana requirements for annual certification. The process will be as prescribed by commission notice to all Montana eligible telecommunications carriers, with necessary reference to federal and Montana law, including these rules. The notice will be provided to all Montana eligible telecommunications carriers in advance of the annual certification deadline. Each eligible telecommunications carrier will receive the same notice, or, if certification distinctions are necessary, each nonrural eligible telecommunications carrier will receive an identical notice and each rural eligible telecommunications carrier will receive an identical notice.

History

Authorizing statute(s): 69-3-822, MCA
Implementing statute(s): 69-3-840, MCA
History: NEW, 2005 MAR p. 653, Eff. 4/29/05.

Mont. Admin. R. 38.5.3230 Eligible Telecommunications Carriers -- Certification and Verification of Subscriber Eligibility for Federal Lifeline/Link-Up on Tribal Lands

(1) Each eligible telecommunications carrier providing federal lifeline/link-up service to a qualifying low-income subscriber who is an eligible resident of tribal lands, as defined at 47 CFR 54.400, must obtain that subscriber's signature on a document certifying under penalty of perjury that:

(a) the subscriber receives benefits from one of the qualifying low-income programs designated by the federal communications commission at 47 CFR 54.409 and related provisions, and identifying the program or programs from which that subscriber receives benefits; or

(b) the subscriber's household income is at or below 135% of the federal poverty guidelines and that the subscriber's presented documentation of income accurately represents the subscriber's household income; and

(c) the subscriber will notify the carrier if the subscriber ceases to participate in the qualifying low-income program or programs or if the subscriber's income exceeds 135% of the federal poverty guideline.

(2) If a subscriber is qualifying for the federal lifeline/link-up program under the criterion of household income below 135% of the federal poverty guidelines, an eligible telecommunications carrier must require the subscriber to present documentation of the subscriber's income prior to the subscriber's enrollment in the program that is in accordance with the requirements adopted by the federal communications commission at 47 CFR 54.410 and related provisions.

(3) In order to verify subscribers' continued eligibility for the federal lifeline program on tribal lands, each eligible telecommunications carrier must annually survey a statistically valid sample of subscribers who have qualified either as recipients of one of the qualifying low-income programs designated by the federal communications commission or under the criterion of household income under 135% of federal poverty guidelines. A subscriber contacted in the eligible telecommunications carrier's survey must either certify, under penalty of perjury, that the consumer continues to participate in the qualifying program (program based eligibility) , or prove continued eligibility and self-certify continued eligibility in accordance with the requirements adopted by the federal communications commission, at 47 CFR 54.410 and related provisions (income-based eligibility) . A subscriber's failure to respond to a survey will be deemed a negative response for purposes of continued eligibility and, upon proper notice, the subscriber will be removed from the federal lifeline program.

(4) In lieu of the above statistically valid sample, an eligible telecommunications carrier may do annual notice to all subscribers requiring each subscriber to establish continued eligibility for support.

History

Authorizing statute(s): 69-3-822, MCA
Implementing statute(s): 69-3-840, MCA
History: NEW, 2005 MAR p. 820, Eff. 5/27/05.

Subchapter 38.5.33 Telecommunications Service Standards

Mont. Admin. R. 38.5.3301 Purpose

(1) Section 69-3-201 , MCA, requires every public utility to furnish reasonably adequate service and facilities. The purpose of these rules is to establish certain minimum standards for determining if regulated telecommunications service provided on a retail basis is adequate. The commission will liberally construe these rules and may require additional standards when necessary to provide adequate service.

(2) Except as may be otherwise provided in a specific rule, these service rules apply to any carrier operating in Montana and subject to the commission's jurisdiction.

(3) If the application of any rule results in an unreasonable hardship to a carrier or a customer, either may apply for waiver of the rule.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3302 Definitions

In the interpretation of these rules, the following definitions shall be used:

(1) "Billing aggregator" has the meaning as provided in 69-3-1302 (2) , MCA.

(2) "Calls" means customers' telecommunications messages attempted.

(3) "Carrier" means any local exchange carrier, interexchange carrier, operator service provider, inmate calling provider, or other telecommunications provider which provides regulated telecommunications services pursuant to 69-3-803 , MCA. The term does not include a rural cooperative carrier or a wireless carrier.

(4) "Central office" means a switching unit which may provide local access lines in a telecommunications system providing service to the general public, having the necessary equipment and operating arrangements for terminating and interconnecting customer lines and trunks or trunks only. There may be more than one central office in a building.

(5) "Channel" means a path for telecommunications between two or more customers or central offices.

(6) "Competitive local exchange carrier" means a carrier providing regulated local exchange service through any means, but is not the incumbent local exchange carrier.

(7) "Customer" means any person, firm, partnership, corporation, municipality, cooperative, organization, governmental agency, or other legal entity which has applied for, been accepted, and is currently receiving telecommunications service.

(8) "Customer trouble report" means any oral or written report from a customer or user of telecommunications services relating to a physical defect or to difficulty or dissatisfaction with the operation of the utility's facilities.

(9) "Exchange" means a service area established by an incumbent localexchange carrier for the administration of telecommunications services in a specified area for which a separate local rate schedule is provided. It may consist of one or more central offices together with associated plant facilities used in furnishing telecommunications services in that area. An exchange has one point designated for the purpose of rating toll calls for all subscribers in the exchange.

(10) "Facilities-based carrier" for purposes of these rules means a carrier that owns a majority of the facilities by which the carrier provides telecommunications service in Montana.

(11) "Incumbent local exchange carrier" means, with respect to an area, the local exchange carrier that:

(a) on February 8, 1996, provided telephone exchange service in the area; and

(b) on February 8, 1996, was considered to be a member of the Exchange Carrier Association pursuant to 47 CFR 69.601(b) or is a person or entity that, after that date, became a successor or assign of a member of the Exchange Carrier Association.

(12) "Installation order" means a request for new or transferred primary or additional residential or business service, but does not include change orders or requests for features to be added to existing service.

(13) "Interexchange carrier" means a telecommunications carrier that carries telecommunications services between exchanges, whether inter- or intra-LATA.

(14) "Interoffice" means between central offices.

(15) "Local access line" means a facility, totally within one exchange, providing a telecommunications channel between a customer's service location and the serving central office or remote switch.

(16) "Local exchange carrier" means a carrier that provides local exchange service.

(17) "Local exchange service" means telecommunications service provided within local exchange service areas. It includes the use of facilities required to establish connections between customer locations within the exchange and between customer locations and interexchange trunks serving the exchange.

(18) "Network interface device (NID) " means a device which establishes a point of demarcation between the telecommunications utility facilities and a customer's premises wiring and equipment, permits the disconnection of all customer premises wiring from the exchange carrier network, and for testing purposes, provides for direct network access through an industry registered jack of a type provided for in Part 68 of the Federal Communications Commission (FCC) rules.

(19) "Out of service trouble report" means a trouble report concerning no dial tone, an inability to make or receive calls, or a deterioration of transmission quality to the point that communication is not workable.

(20) "Service provider" has the meaning as provided in 69-3-1302 (7) , MCA.

(21) "Tariff" means the entire body of rates, tolls, rentals, charges, classifications, and rules filed by the carrier and approved by the commission.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 1991 MAR p. 2631, Eff. 12/27/91; AMD, 1993 MAR p. 1336, Eff. 6/25/93; AMD, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3320 Data to Be Filed with the Commission

(1) In addition to tariffs as required by 69-3-301 , MCA, each incumbent local exchange carrier must file with the commission a map showing the boundaries of the local exchange service area and showing base rate area and zone boundaries from which all customer locations can be determined and mileage or zone charges quoted for each exchange within the state. Boundary lines must be located by appropriate measurement to an identifiable location if not otherwise located on section lines, waterways, railroads, roads, etc. Maps must include location of highways, section lines, geographic township and range lines, railroads, and waterways outside municipalities and show the map scale and other detail. An exchange map and the applicable rates for local service must be available at the business office serving the exchange area.

(2) Each carrier must furnish to the commission, at such times and in such form as the commission requires, the results of any service-related tests, summaries, or records in its possession. The carrier must also furnish the commission with any information concerning the utility's facilities or operations which may be requested.

(3) Each facilities-based carrier must report promptly to the commission and to the nearest radio station or other local news media any specific occurrence or development which disrupts the service of a substantial number of its customers (the smaller of 25 percent or 100 customers) for a time period in excess of two hours. This rule shall not apply to interexchange carriers in the case of an outage affecting local service.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3330 Rate and Special Charges Information

(1) A carrier must provide all information and assistance needed by applicants, customers, or others to determine the lowest cost telecommunications service available from the carrier that meets their stated needs. The carrier must provide written rate information at the request of customers and as otherwise required by the commission.

(2) Each carrier whose tariff or price list is filed with the commission must have its tariff or price list available for viewing at each business office. If the carrier has no local business office in Montana, the Montana tariff or price list must be posted on its web site.

(3) Prior to taking any action or offering any service, the local exchange carrier must notify customers of any connection charge or other charge and must provide an estimate of the initial bill for flat monthly services and other applicable charges. The local exchange carrier shall inform the customer whether or not taxes and other fees are included in the estimate.

(4) The local exchange carrier must offer to give an applicant a written estimate of special charges for services not established by tariff, such as construction charges, which are levied on an actual cost basis.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3331 Business Offices and Toll-Free Telephone Information

(1) Each carrier, billing aggregator, and service provider must have at least one business office to provide customers and others with access to personnel who can provide information on services and rates, accept and process service applications, explain customers' bills, adjust errors, and generally represent the entity. If one business office serves several exchanges or states, toll-free calling to that office must be provided and the office must be staffed during Montana business hours.

(2) Local exchange carriers which provide billing services for other carriers, billing aggregators, or service providers shall include in such bills the toll-free telephone numbers of such carriers or service providers or alternatively, the toll-free numbers of their billing aggregators, which are provided to the local exchange carriers in accordance with (3) .

(3) Carriers, billing aggregators, or service providers which bill through local exchange carriers are required to provide the toll-free telephone numbers required in (1) to all such local exchange carriers.

(4) Local exchange carriers and billing aggregators must provide a carrier's or service provider's toll-free number to a customer, upon request, at no charge, for any entity for which it bills.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 1993 MAR p. 1336, Eff. 6/25/93; AMD, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3332 Customer Billing

(1) Carriers and billing aggregators are required to bill in accordance with the following procedures:

(a) Bills must be issued monthly, unless the carrier has obtained the customer's consent for bills to be issued on an alternative billing schedule.

(b) Residential and single-line business bills must itemize the charges for all services and products. The bill must clearly provide the following information:

(i) payment due date;

(ii) total amount due, including taxes;

(iii) the toll-free telephone number of the company's business office serving the customer;

(iv) a statement that local exchange service may not be disconnected for nonpayment of unregulated services, toll services, or services provided by other carriers, except when a local exchange carrier's local, toll, or unregulated services are combined into one service package at a single rate;

(v) the address and telephone number of the commission.

(c) If a local exchange carrier bills and collects for any interexchange carrier, including itself, all toll calls must be itemized showing the date, the time, the length in minutes, discounts if applicable, and the destination of the call, unless the customer has subscribed to a service option which does not require itemization of each call. For collect and/or third party calls, the point of origin and the telephone number of origin must be stated.

(d) Upon request, a carrier must notify the commission of the name and address of all entities for which it provides billing and collection services. If a local exchange carrier bills and collects for another carrier or service provider, the local exchange carrier must, upon request, provide the customer with the name, address, and telephone number of the other carrier's or service provider's department responsible for customer dispute resolution.

(e) Charges contained in telephone bills must be accompanied by a brief, clear, nonmisleading, plain-language description of the service rendered. If the bill includes charges from an entity that did not bill the customer for service during the customer's previous billing cycle, the name of the new provider and the charges billed must be printed in a clear and conspicuous manner.

(f) If a customer has subscribed to local measured service, the bill must detail any and all charges in excess of the basic local measured service monthly charge, including, at a minimum, the total minutes and total charges in each rate category.

(2) If telecommunications service has been underbilled because of the carrier's error, omission, or negligence and the amount owed exceeds $25, the carrier must offer the customer a reasonable payment arrangement. If telecommunications service has been overbilled, the carrier must credit the customer's future bills for the amounts overbilled, unless the customer requests a cash refund of the credit balance. In either case (underbilling or overbilling) , the carrier shall abide by the applicable statute of limitations, and 69-3-221 , MCA.

(3) If a customer's service is interrupted for any reason other than the customer's negligence or willful act and service remains out for more than 24 hours after being reported, appropriate adjustments shall be made to the customer's bill upon determination of the outage. For the purpose of administering this rule, every month is considered to have 30 days.

(4) The carrier may require the customer to pay the undisputed portion of the bill to avoid discontinuance of service for nonpayment. The carrier must investigate the dispute and report the result to the customer. If the billing dispute is not resolved, the carrier must advise the customer that the commission is available for review and disposition of the matter.

(5) Local exchange service cannot be denied or terminated because of nonpayment of unregulated services, toll services, or services provided by other carriers, except when a local exchange carrier's local, toll, or unregulated services are combined into one service package at a single rate. A carrier's bill to its customer shall clearly distinguish between regulated and unregulated service.

(6) Undesignated partial payments of a bill shall be applied first to local exchange carrier regulated local exchange services and then to service other than local exchange carrier regulated local exchange services in such percentage as each other service provider's charges represent of the total charges. When a local exchange carrier's local, toll, or unregulated services are combined into one service package at a single rate, undesignated partial payments shall be applied first to the service package, then to other services as described above.

(7) If a carrier bills a customer for a service more than 60 days after the service is provided and the customer contacts the carrier (or its billing agent) to question or dispute the late-billed charges, the carrier (or its billing agent) must offer the customer a payment plan that allows an equal period of time to pay the late-billed charges as it took the carrier to bill the customer. During this period, late payment charges must not be assessed on the late-billed service charges, and the carrier is prohibited from taking any collection actions against the customer other than monthly notice by mail of the unpaid charges. Any such monthly notice must not threaten any further collection action, and must inform the customer that the carrier will arrange a payment plan in accordance with this rule upon customer request.

(8) All carriers are prohibited from charging any amount for unanswered calls.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-221, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 1990 MAR p. 593, Eff. 3/30/90; AMD, 1991 MAR p. 2631, Eff. 12/27/91; AMD, 1993 MAR p. 1336, Eff. 6/25/93; AMD, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3333 Public Information

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; REP, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3334 Customer Deposits for Telecommunications Services

(1) Deposit requirements for business and residential service must comply with ARM 38.5.1101, et seq. A carrier may not collect a deposit in order to initiate local exchange service to a subscriber who participates in the Montana Telephone Assistance Program and who has also subscribed to toll blocking, except that a deposit may be required for optional local calling features and services subscribed to by the program participant.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3335 Complaints and Appeals

(1) All carriers must promptly investigate customer complaints and inform the customer of proposed action. If requested, the carrier must provide a written statement of its action on the complaint.

(2) A carrier must inform a customer that a review by supervisory personnel of an unfavorable action on a bill or complaint is available. If requested, the carrier must provide a written statement of the supervisor's action on the complaint. The written statement must also inform the customer that commission review is available and provide the commission's telephone number and address.

(3) Upon receipt of a complaint, either orally or in writing, from the commission or its staff on behalf of a customer or applicant, the carrier shall make a suitable investigation and advise the commission or its staff of the results thereof. Initial response to the commission or its staff shall be provided within five working days.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3336 Directories

(1) An incumbent local exchange carrier must provide its customers telephone directories at regular intervals (not to exceed 18 months) , listing all customers' names, addresses, and telephone numbers, except public telephones, addresses, and telephone service not published at the customer's request.

(2) Each local exchange carrier must list its customers (except those customers requesting otherwise) with the directory assistance operators within three business days of service connection. If directory assistance (DA) is provided by another company, the local exchange carrier must submit the DA listing updates to the DA provider within three business days and the DA provider must update its listings within the following three business days.

(3) Upon issuance, a copy of each directory shall be distributed free to all customers served by that directory. Free copies shall also be made available to any public library in the state requesting a directory.

(4) Information pertaining to emergency calls, such as for the police and fire departments, must be conspicuously printed on the inside front cover of the directory.

(5) The directory must contain instructions on placing local and long distance calls, calls to repair and directory assistance services, and locations and telephone numbers of exchange carrier business offices within the appropriate service area.

(6) Incumbent local exchange carriers shall make available at a reasonable charge space in the front part of the directory for other carriers' information and rates.

(7) Each directory must contain, in the instructional section, the commission's address and telephone number and an explanation of the customer's right to bring complaints and inquiries to the commission.

(8) Except when the number listed in error is in use by another customer or is assigned to a different carrier, if there is an error in the directory listing for a customer, the local exchange carrier must intercept all calls to the listed number at no charge, for six months or until a new directory is published, whichever occurs first. Alternatively, the local exchange carrier may forward all calls to the listed number to the correct number. If there is an error or omission in the name listing of a customer, the correct name and telephone number must be placed in the files of the directory assistance and/or intercept operators and the correct number furnished the calling party upon request or interception. Competitive local exchange carriers are exempt from this requirement if technically unable to comply with it.

(9) When additions or changes in plant or changes to any other local exchange carrier operations necessitate changing telephone numbers to a group of customers, reasonable notice must be given to all affected customers.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3337 Pay Telephones

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 1993 MAR p. 1336, Eff. 6/25/93; REP, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3338 Automatic Dialing - Announcing Devices

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 1993 MAR p. 1336, Eff. 6/25/93; REP, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3339 Termination of Service

(1) A carrier may interrupt service without notice only in emergency situations, if the service has been abandoned by the customer, or if the service was obtained without the carrier's authorization.

(2) Subject to the requirements of these rules, telecommunications services may be discontinued, after notice, as provided in (5) , for the following reasons:

(a) Failure to make a security deposit or guarantee.

(b) Nonpayment of undisputed past due bills for regulated services.

(d) Violation of relevant laws, ordinances, commission rules or carrier tariffs, or

(e) Refusal to allow reasonable access to facilities or equipment.

(3) A carrier may neither terminate nor refuse to provide regulated local exchange service based on the following:

(a) The failure of any person, other than the customer against whom termination is sought, to pay any charges due to the carrier.

(i) Failure to pay for business service at a different location and with a different telephone number is not grounds for disconnecting residential service and vice versa.

(b) Failure to pay an amount in dispute pending before the commission.

(c) Failure to pay for unregulated service or service provided by other carriers, except when the unregulated service was part of a local exchange carrier's service package that combined its local, toll, or unregulated services at a single rate.

(4) All exchange carriers must establish a system of third party notification. That is, if a customer requests that a third party such as a social service, minister, responsible adult, etc., be notified of nonpayment, the exchange carrier must provide such a service, free of charge.

(5) Notice of termination of service must comply with the following:

(a) Written notice of termination must be sent at least seven days prior to service disconnection and must contain the following:

(i) The reason for disconnection.

(ii) Corrective actions the customer may take.

(iii) Appeal actions the customer may take.

(iv) Cost of reconnection, deposit requirements and any other costs associated with reconnecting the service.

(b) On the business day prior to disconnection a carrier representative must make a reasonable effort to contact and notify the customer of the information in the written notice. The carrier must keep a record showing the name of employee, date and hour of attempted contact and whether the customer was orally notified of disconnection.

(c) If a customer, to avoid disconnection, enters into a deferred payment agreement with a carrier, then fails to comply with the terms of the agreement, the carrier may terminate service to the customer without further notice.

(6) Excessive toll usage accompanied by a risk of nonpayment justifies an exception to the seven-day notice requirement. The seven-day notice requirement shall be excused when service is to be terminated for excessive toll usage and an identifiable risk of nonpayment exists, as defined herein.

(a) For purposes of this rule, "toll usage" includes regulated toll charges whether already billed or as yet unbilled, but excludes all amounts owed or owing for unregulated services or services provided by other carriers, except for other carriers' regulated services that cannot be disconnected or discontinued separate from local service.

(b) For purposes of this rule, "excessive toll usage" is toll usage for an estimated one month billing period that:

(i) exceeds 200 percent of the monthly average of the customer's toll charges, if any, from the preceding six months; and

(ii) is greater than $100.

(i) there is no customer deposit and ARM 38.5.1103 permits the requirement of such a deposit; or

(ii) during the preceding 12 months, any of the following conditions existed:

(A) the customer's telephone service was disconnected for failure to timely pay amounts owing;

(B) two or more delinquency notices were served on the customer; or

(d) The carrier shall not terminate service under the provisions of this rule without first contacting or making a diligent effort to contact the customer. Such contact will be for the purposes of:

(i) notifying the customer of the excessive toll usage;

(ii) notifying the customer of the possibility that service can be terminated on an expedited basis; and

(iii) providing the customer with the opportunity to supply adequate assurance of payment. In no event shall a diligent effort consist of less than three distinct attempts to contact the customer, either in person or by telephone. The carrier must keep a record showing the name of the employee, date, hour and type of each attempted contact.

(e) For purposes of this rule, "adequate assurance of payment" includes:

(i) the establishment of satisfactory credit as defined by ARM 38.5.1101;

(ii) the existence of a deposit, such deposit being consistent in amount with ARM 38.5.1105; or

(iii) any other form of assurance mutually agreed upon by the customer and the carrier, including an oral or written promise to pay. If the customer supplies adequate assurance as defined herein, no further action may be taken to terminate service.

(f) If the carrier is unable to contact the customer, the carrier may terminate service three days (not including those days when there is no mail delivery) after the mailing of a notice consistent in form with the requirements of (5) . If the carrier is able to contact the customer and no adequate assurance is supplied, the carrier may terminate service not less than 24 hours after such contact.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 1991 MAR p. 2631, Eff. 12/27/91; AMD, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3340 Alternative Operator Services

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; REP, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.3341 Unanswered Calls

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, 69-3-822, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-802, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93; REP, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3343 Emergency Call Routing

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, 69-3-822, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-802, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93; REP, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3345 Change in Customer's Interexchange Carrier

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, 69-3-822, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1991 MAR p. 2631, Eff. 12/27/91; AMD, 1992 MAR p. 1400, Eff. 6/26/92; REP, 1993 MAR p. 3044, Eff. 12/24/93.

Mont. Admin. R. 38.5.3350 Construction

(1) In determining standard engineering and construction practice, the commission will be guided by provisions of the American National Standards Institute, the National Electrical Code, the National Electrical Safety Code, the Exchange Carriers Standards Association, the Rural Electrification Administration, and such other codes and standards as are generally accepted by the industry, except as modified by this commission or by municipal regulations within their jurisdiction. The telecommunications plant shall be designed, constructed, maintained, and operated in accordance with these standards, and in such manner to best accommodate the public, and to prevent interference with and from service furnished by other public utilities insofar as practical. The carrier shall design and construct the telecommunications facilities to reduce or prevent electromagnetic interference from AC power systems. The carrier shall engage in prior coordination with power utilities in the area before placing new plant or making major changes in existing plant likely to be impacted by the power utility's facilities. Such coordination shall be governed by the latest issue of ANSI/IEEE 776 Guide for Inductive Coordination of Electric Supply and Communications Lines.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3351 Emergency Operation

(1) Carriers shall make reasonable provisions to meet emergencies resulting from failures of lighting or power service, unusual and prolonged increases in traffic, illness of personnel, or from fire, storm, or other acts of God and inform its employees as to procedures to be followed in the event of emergency in order to prevent or minimize interruption or impairment of telecommunications service.

(2) Each central office and interexchange toll switching office or access tandem shall contain as a minimum four hours of battery reserve.

(3) In central offices exceeding 5,000 lines and in all interexchange toll switching offices or access tandems, a permanent auxiliary power unit shall be installed. In central offices without permanently installed emergency power facilities, there shall be a mobile power unit available which can be delivered and connected on short notice.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89.

Mont. Admin. R. 38.5.3352 Construction Work Near Exchange Carrier Facilities

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; REP, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3353 Network Interface

(1) Each facilities-based local exchange carrier shall establish a point of demarcation between the carrier facilities and a customer's premises wiring and equipment. It shall be the responsibility of the utility to install and maintain a network interface device (NID) in accordance with commission guidelines, the local exchange carrier's tariff, and with rules established by the Federal Communications Commission.

(2) The NID shall be located outside the customer's premises unless such location is impractical or the customer requests an inside location. If the NID is located inside, it should be at a point close to the protector and convenient to the customer.

(3) If a customer requests that an NID be placed in a location other than that selected by the utility, and which conforms to the criteria set forth herein, the company may charge the customer for any extra associated work.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3360 Customer Trouble Reports

(1) Each carrier shall provide for the receipt of customer trouble reports at all hours and make a full and prompt investigation of and response to all complaints. The carrier shall maintain an accurate record of trouble reports made by its customers for a period of two years. This record shall include appropriate identification of the customer or service affected, the time, date, and nature of the report, the action taken to clear trouble or satisfy the complaint, and the date and time of trouble clearance or other disposition. This record shall be available to the commission or its authorized representatives upon request at any time within the period prescribed for retention of such records. Trouble reports shall be cleared in accordance with service objectives listed in ARM 38.5.3371(7) .

(2) Provision shall be made to clear all out of service trouble of an emergency nature at all hours, consistent with the bona fide needs of customers and the personal safety of utility personnel. All out of service trouble reports shall be cleared and service restored in accordance with ARM 38.5.3371(7) of these rules.

(3) If unusual repairs are required, or other factors preclude clearing of reported trouble promptly, reasonable efforts shall be made to notify affected customers. Commitments to customers for repair service shall be met in accordance with ARM 38.5.3371(7) (c) of these rules.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3361 Inspections and Tests

(1) Each carrier providing services by means of its own facilities shall adopt a program of periodic tests, inspections, and preventive maintenance aimed at achieving efficient operation of its system and the rendition of safe, adequate, and continuous service.

(2) Each facilities-based carrier shall maintain or have access to test facilities enabling it to determine the operating and transmission capabilities of all equipment and facilities, both for routine maintenance and for trouble location. The actual transmission performance of the network shall be monitored in order to determine if the carrier's established objectives and operating requirements are met. This monitoring function shall consist of, but not be limited to, circuit order tests prior to placing trunks in service, routine periodic trunk maintenance tests, tests of actual switched trunk connections, periodic noise tests of a sample of customer loops in each exchange, and transmission surveys of the network.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3362 Service Interruptions

(1) In the event that a facilities-based local exchange service must be interrupted for over four hours for planned work on the facilities or equipment, the work shall be done at a time which will cause minimal inconvenience to customers. In the event that local exchange service must be so interrupted, the facilities-based local exchange carrier shall attempt to notify each affected customer at least 24 hours in advance of the interruption.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3370 General

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; REP, 2006 MAR p. 2967, Eff. 12/8/06.

Mont. Admin. R. 38.5.3371 Service Requirements

(1) These rules establish service quality requirements for facilities-based local exchange carriers. The carrier shall be expected to meet generally accepted industry standards for quality on any service provided by the carrier that is not covered by these rules.

(2) Based on commission receipt of increasing consumer complaints or other relevant information about the level of service being provided by a carrier to which these service quality requirements apply, the commission may require the carrier to begin documenting its compliance with any or all of these service requirements and providing periodic service quality reports containing such documentation to the commission. If a carrier is required by the commission to provide records or documentation regarding its compliance, the records or documentation must be reported on individual exchange and statewide aggregate bases.

(3) Regarding installation of local exchange service, the carrier shall complete 95 percent of its installation orders within five business days of the application date, excluding those orders where the customer specifically requests a later due date. Ninety-five percent of the orders where the customer specifically requested a later due date must be completed on the customer-requested due date.

(a) The carrier shall complete 100 percent of all orders for service installation, excluding those orders where the customer specifically requested a later due date, within 180 calendar days of the application date.

(b) Each carrier shall make commitments to customers as to the date of installation of all service orders.

(c) Violations of the installation requirements do not exist if the carrier is unable to comply due to customer reasons, or work stoppages directly affecting provision of service in Montana, or other circumstances outside the carrier's control that can be documented by the carrier. A carrier may not exclude orders from this measurement in those instances where the installation required access to the customer's location and no access was available, but the carrier either did not schedule an installation appointment with the customer for on-premises access or did schedule an appointment, which may not exceed a four-hour appointment window, but did not arrive at the customer's premises at the appointed time.

(d) A carrier shall not cancel customer installation orders at its own discretion. An installation order received by a carrier shall remain a pending order until the installation is completed or the customer requests cancellation at his or her own initiative or in response to the carrier's inquiry. An installation order may be cancelled if the carrier has made a good faith effort to contact the customer and the customer has not responded to the carrier's inquiries.

(4) Calls requiring timing shall be accurately timed. Each carrier shall maintain adequate personnel to provide an average operator answering performance on a monthly basis as follows:

(a) Eighty-five percent of toll and/or local assistance operator calls answered within ten seconds (equivalent measurements as approved by the commission may be used) .

(b) Eighty percent of directory assistance and intercept calls shall be answered within ten seconds (equivalent measurements as approved by the commission may be used) .

(5) Sufficient central office and interoffice channel capacity and equipment shall be provided by the carrier to meet the following requirements during the average busy season, busy hour without encountering blockages, or equipment irregularities:

(a) Dial tone within three seconds on 98 percent of calls.

(b) Proper completion of 97 percent of correctly dialed intraoffice calls.

(d) Proper completion of 97 percent of correctly dialed interexchange toll calls.

(6) All facilities shall meet accepted industry design standards and shall conform to the following transmission and noise design parameters:

(a) Newly constructed and rebuilt subscriber lines shall be designed for no more than 8 dB transmission loss at 1000 + 20 Hz from the serving central office to the customer premises network interface. Subscriber lines shall be maintained so that transmission loss does not exceed 8 dB. Subscriber lines shall be designed and constructed so that metallic noise does not exceed 25 dB above reference noise level ("C" message weighting) on 90 percent of the lines. Subscriber lines shall be maintained so that metallic noise does not exceed 30 dB above reference noise level ("C" message weighting) .

(7) Customer trouble reports regarding local exchange service must meet, at the minimum, the following requirements:

(a) Service shall be maintained by the carrier in such a manner that the monthly rate of all customer trouble reports, excluding reports concerning interexchange calls or nonregulated customer premises equipment, does not exceed six per 100 local access lines per month per exchange.

(b) Ninety percent of out of service trouble reports shall be cleared within 24 hours, excluding Sunday (except where access to the customer's premises is required but not available, or where interruptions are caused by unavoidable causalities and acts of God affecting large groups of customers) .

(d) Carriers may charge customers for investigating trouble reports only when:

(i) dispatch of carrier personnel to the customer site is required;

(ii) the customer has been notified, prior to the dispatch, that a charge may apply;

(iii) the carrier is able to identify the exact nature of the problem that prompted the trouble report; and

(iv) the problem exists on the customer side of the service.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, 69-3-201, MCA
History: NEW, 1989 MAR p. 1515, Eff. 9/29/89; AMD, 2006 MAR p. 2967, Eff. 12/8/06.

Subchapter 38.5.34 Operator Service Providers

Mont. Admin. R. 38.5.3401 Definitions

(1) The provisions of this subchapter shall apply to all operator service providers which provide intrastate "regulated telecommunications services" in Montana as defined in the Montana Telecommunications Act, 69-3-801 , et seq., MCA. Operator service providers must comply with all provisions of these rules on all intrastate telephone calls. Federal laws are applicable to interstate calls.

(2) Except as context may otherwise demand, terms used in these rules have the following meanings:

(a) "Call blocking" means prohibiting or restricting a consumer's access to a carrier which offers service in the same local exchange area by means of equal access or an access code, including but not limited to 1-800, 950-XXXX, and 10-10XXX-0+ dialing sequences.

(b) "Call splashing" means the transfer of a telephone call from an operator service provider to another operator service provider or carrier in such a manner that the subsequent provider or carrier is unable or unwilling to determine the location of the origination of the call and, because of such inability or unwillingness is prevented from billing the call on the basis of such location.

(c) "Inmate operator service provider" means a carrier or operator service provider that provides regulated telecommunications services for the use of inmates in correctional facilities.

(d) "Operator service provider" means any person, company, or entity that provides automated or live assistance to a customer to arrange for billing or completion, or both, of an intrastate telephone call through a method other than:

(i) automatic completion with billing to the telephone from which the call originated; or

(ii) completion through an access code used by the customer, with billing to an account previously established with a telecommunications carrier by the customer.

History

Authorizing statute(s): 69-3-103, 69-3-822 and 69-3-1103, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-802, 69-3-1102 and 69-3-1103, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93; AMD, 1999 MAR p. 2081, Eff. 9/24/99.

Mont. Admin. R. 38.5.3403 Allowable Rate

(1) Pursuant to 69-3-1102 and 69-3-1105 , MCA, an operator service provider may not charge more than an allowable rate, which is a rate for intrastate calls, inclusive of the call rate, aggregator surcharge, and all other calling fees, established by the commission for each category and type of service provided by an operator service provider.

(2) Except for cost-based allowable rates provided in ARM 38.5.3404 the allowable rate for each category and type of service provided by operator service providers will be established by the commission annually. The allowable rate for each category and type of service will be the average of the intrastate rates charged for each category and type of operator service provider service by AT&T, MCI, and CenturyLink, plus 50%.

(3) The categories and types of service for which allowable rates will be established are:

(a) assisted calls including operator dialed calling card; collect call; third party billed; person to person; operator dialed called number; and customer dialed calling card, non-company;

(b) message telecommunications service interLATA calls per minute (if the operator service provider has more than one per minute rate, e.g., distance, time of day, and so forth, "per minute" will be the average per minute); and

(c) message telecommunications service intraLATA calls per minute (if the operator service provider has more than one per minute rate, e.g., distance, time of day, and so forth, "per minute" will be the average per minute).

(4) Before an operator service provider may provide a service not identified in this rule, a cost-based allowable rate must be established for that service in accordance with ARM 38.5.3404.

History

Authorizing statute(s): 69-3-103, 69-3-1103, MCA
Implementing statute(s): 69-3-201, 69-3-1101, 69-3-1102, 69-3-1105, MCA
History: NEW, 1999 MAR p. 2081, Eff. 9/24/99; AMD, 2004 MAR p. 2934, Eff. 12/3/04; AMD, 2015 MAR p. 1508, Eff. 9/25/15.

Mont. Admin. R. 38.5.3404 Cost-Based Allowable Rate

(1) An operator service provider, determining an allowable rate established in ARM 38.5.3403 will not permit adequate revenues, may apply to the commission for cost-based allowable rates. Operator service provider applications for cost-based allowable rates must be made in accordance with commission procedural and substantive rules pertaining to telecommunication rate case filings. The cost-based allowable rates established in the resulting proceeding will be specific to the applicant operator service provider, including if the record demonstrates that the cost-based allowable rates should be lower than the allowable rates established in accordance with ARM 38.5.3403.

History

Authorizing statute(s): 69-3-103, 69-3-822 and 69-3-1103, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-1102 and 69-3-1105, MCA
History: NEW, 1999 MAR p. 2081, Eff. 9/24/99.

Mont. Admin. R. 38.5.3405 General Requirements

(1) An operator service provider shall:

(a) Identify itself, audibly and distinctly, to the customer at the beginning of each telephone call and before the customer incurs any charges. Each operator service provider shall also identify itself to the called party on collect calls and the billed party when verifying third-party billed calls.

(b) Disclose, audibly and distinctly to the customer, at no charge and before connecting any intrastate call, how to obtain the total cost of the call, including any aggregator surcharge, or the maximum possible total cost of the call, including any aggregator surcharge, before providing further advice to the customer on how to proceed to make the call. The voice disclosure required in this subsection must instruct each customer that the customer may obtain applicable rate and surcharge amounts by dialing not more than two digits or by remaining on the line.

(c) Upon request, fully and immediately disclose to the customer, at no charge, the operator service provider's method of collecting its charges, a description of the operator service provider's method of resolving customer complaints, a toll-free telephone number that can be used to report complaints to or contest charges of the operator service provider, and all other requested information pertinent to the customer's use of the operator service provider's services. The provisions of this subsection apply to the called party on collect calls.

(d) Permit the customer to terminate the telephone call at no charge before the call is connected to the called party.

(e) Obtain an affirmative response from the called party on willingness to accept charges for collect calls.

(2) All operator service providers must connect the consumer to the local exchange company operator or explain dialing instructions for such access upon request and at no charge.

(3) Unless otherwise specifically provided by commission rule or order, all operator service providers must comply with all regulatory requirements imposed by Montana state statutes and rules, including but not limited to the Montana Telecommunications Act ( 69-3-801 , et seq., MCA) , the Montana telecommunications service standards (ARM 38.5.3301, et seq.) and the Montana Telecommunications Act rules (ARM 38.5.2701, et seq.) .

History

Authorizing statute(s): 69-3-103, 69-3-822 and 69-3-1103, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-802 and 69-3-1104, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93; AMD, 1999 MAR p. 2081, Eff. 9/24/99.

Mont. Admin. R. 38.5.3407 Billing Disclosure

(1) Telecommunications carriers providing billing services for an operator service provider must disclose on customer bills:

(a) the operator service provider billed amount, clearly distinguished from the carrier's billed amount;

(b) the name of the operator service provider; and

(c) the toll-free telephone number of the operator service provider or the operator service provider's billing agent, if the billing agent has authority to resolve disputes and the operator service provider and billing agent have established an effective method of resolving customer disputes.

(2) Upon request of a customer, the billing telecommunications carrier must provide the exact legal name of the operator service provider, the toll-free telephone number of the operator service provider, the current and complete street address of the operator service provider, and the mailing address of the operator service provider.

History

Authorizing statute(s): 69-3-103, 69-3-822 and 69-3-1103, MCA
Implementing statute(s): 69-3-102 and 69-3-1106, MCA
History: NEW, 1999 MAR p. 2081, Eff. 9/24/99.

Mont. Admin. R. 38.5.3410 Posting Requirements

(1) Each operator service provider must post on or near each telephone instrument subscribed to its service, in plain view of consumers:

(a) the name, address, and toll-free telephone number of the operator service provider;

(b) a written disclosure that its rates are available upon request;

(c) dialing instructions detailing operator service provider dialing procedures as well as instructions for accessing the local exchange company operator; and

(d) emergency dialing information.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102 and 69-3-201, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.3412 Call Blocking Prohibited

(1) Except as otherwise provided in these rules, all agreements or contracts between an operator service provider and an owner of a pay telephone instrument or private telecommunications system must contain a provision which prohibits call blocking as defined in these rules. This requirement applies to all contracts or agreements entered into after the effective date of this rule; however, all operator service providers must comply with (2) of this rule at all times, including during the remaining term of all existing contracts and agreements.

(2) Operator service providers are prohibited from requiring or providing call blocking at any telephone instrument. Operator service providers are prohibited from offering service at any telephone instrument where call blocking exists.

(3) This rule does not prohibit the blocking of 101xxxx-1+ or 101xxxx-011+ calls.

History

Authorizing statute(s): 69-3-103, 69-3-822 and 69-3-1103, MCA
Implementing statute(s): 69-3-102, 69-3-201 and 69-3-802, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93; AMD, 1999 MAR p. 2081, Eff. 9/24/99.

Mont. Admin. R. 38.5.3414 Call Splashing Prohibited

(1) Call splashing is prohibited, except as provided in subsection (2) .

(2) Call splashing is only permitted after:

(a) The consumer requests to be transferred to another carrier or provider,

(b) The consumer is informed prior to incurring any charges that the rates for the call may not reflect the rates from the actual originating location, and

(3) Operator service providers shall not bill for a call that does not reflect the location of the origination of the call, except for calls completed pursuant to subsection (2) .

History

Authorizing statute(s): Secs. 69-3-103 and 69-3-822, MCA
Implementing statute(s): Secs. 69-3102, 69-3-201 and 69-3-802, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.3416 Emergency Call Routing

(1) Upon receipt of any emergency telephone call, an operator service provider must immediately provide emergency call routing service in accordance with ARM 38.5.3343(5) .

History

Authorizing statute(s): Secs. 69-3-103 and 69-3-822, MCA
Implementing statute(s): Secs. 69-3-102, 69-3-201 and 69-3-802, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.3420 Duty to Inform

(1) All operator service providers must inform the owners of telephone instruments where they provide service of the requirements of this subchapter and ARM 38.5.3341 and 38.5.3343.

History

Authorizing statute(s): Secs. 69-3-103 and 69-3-822, MCA
Implementing statute(s): Secs. 69-3-102, 69-3-201 and 69-3-802, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.3424 Denial of Service

(1) If an operator service provider subscriber, such as a pay telephone owner, motel, hotel, hospital, university, public transportation facility, or any private telecommunications system, operates a telephone instrument which fails to comply with any provision of ARM 38.5.3401 through 38.5.3416, 38.5.3341 or 38.5.3343, the local exchange company which provides the subscriber with originating telephone service must refuse to provide service, after notice, until the subscriber's telephone instruments are in full compliance.

History

Authorizing statute(s): Secs. 69-3-103 and 69-3-822, MCA
Implementing statute(s): Secs. 69-3-102, 69-3-201 and 69-3-802, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.3440 Inmate Calling Providers

(1) Inmate operator service providers are not subject to the prohibition on call blocking at ARM 38.5.3412.

(2) Inmate operator service providers may not block collect calls to a called party number, except on request by the called party or following seven days written notification to the called party, or for reasons of individual or public safety.

(3) Inmate operator service providers may not require a deposit from a called party unless requiring the deposit is in compliance with the commission customer deposit rules at ARM 38.5.1101 through 38.5.1112.

History

Authorizing statute(s): 69-3-103, 69-3-822 and 69-3-1103, MCA
Implementing statute(s): 69-3-102, 69-3-201 and 69-3-802, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93; AMD, 1999 MAR p. 2081, Eff. 9/24/99.

Subchapter 38.5.37 Interexchange Carrier Regulatory Requirements

Mont. Admin. R. 38.5.3701 Applicability

(1) The rules in this subchapter govern the adjustment of rates and set other regulatory requirements for intrastate interexchange carriers subject to the jurisdiction of the Montana public service commission.

(2) For purposes of this subchapter, "interexchange carriers" include AT&T, MCI, Sprint, Touch America, American Sharecom and all other common carriers which provide intraLATA or interLATA regulated telecommunications service, but do not also provide local exchange service.

(3) Unless otherwise specifically provided by commission rule or order, interexchange carriers must comply with all regulatory requirements imposed by Montana state statutes and rules, including but not limited to the Montana Telecommunications Act § 69-3-801 et seq., MCA) , the Montana telecommunications service standards (ARM 38.5.3301 et seq.) and the Montana Telecommunications Act Rules (ARM 38.5.2701 et seq.) .

History

Authorizing statute(s): Secs. 69-3-103 and 69-3-822, MCA
Implementing statute(s): Secs. 69-3-102, 69 and 69-3-801 et seq. , MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.3705 Tariffs and Maximum Allowable Rates

(1) All interexchange carriers must maintain tariffs on file with the commission that have been approved by the commission. The tariffs must include "maximum allowable rates" and terms, conditions and descriptions of all intrastate regulated telecommunications services offered by the interexchange carrier in Montana. The "maximum allowable rate" which shall be listed in the tariff for each service, is the maximum rate which can be charged pursuant to a price list filed pursuant to ARM 38.5.3707.

(2) Tariffs can only be changed by commission order, following the applicable notice and procedural requirements of Title 69, MCA, and the Montana Administrative Procedure Act, Title 2, chapter 4, MCA.

(3) Tariffs must be filed and maintained as "schedules"

in § 69-3-301 , MCA.

History

Authorizing statute(s): Secs. 69-3-103 and 69-3-822, MCA
Implementing statute(s): Secs. 69-3-102, 69-3-201, 69-3-301 and 69-3-801 et seq. , MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.3707 Price Lists

(1) In addition to the tariffs required in ARM 38.5.3705, interexchange carriers must maintain a separate set of price lists on file with the commission, which contain the names of all intrastate regulated telecommunications services offered in Montana, a reference to the section or page number where the service is located in the tariff, and the actual rate charged consumers.

(2) The rate in the price list can never exceed the "maximum allowable rate" contained in the approved tariff for the service. The price list rates shall be the only rates lawfully charged consumers.

(3) Price lists cannot alter the terms and conditions contained in the tariff for the service.

(4) Price lists must be filed and maintained as "schedules" in Sec. 69-3-301 , MCA.

History

Authorizing statute(s): Secs. 69-3-103 and 69-3-822, MCA
Implementing statute(s): Secs. 69-3-102, 69-3-201 and 69-3-801 et seq. , MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.3709 Pricing Flexibility

(1) Interexchange carriers may revise a price list by filing a proposed new price list with the commission which complies with the provisions of this subchapter, and mailing a copy to the commission's interexchange carrier mailing list at least seven (7) days prior to the proposed effective date of the new price list. The interexchange carrier must simultaneously file a certificate of service which affirms compliance with this rule.

(2) A proposed new price list becomes automatically effective for services rendered seven (7) days after filing and service is completed pursuant to subsection (1) ; no commission action or approval is necessary.

(3) If an interexchange carrier files a proposed new price list which designates an effective date more than seven (7) days after a filing made pursuant to subsection (1) , the new price list becomes automatically effective for services rendered after such designated date.

History

Authorizing statute(s): Secs. 69-3-103 and 69-3-822, MCA
Implementing statute(s): Secs. 69-3-102, 69-3-201 and 69-3-801 et seq. , MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.3715 Access Charge Flow-Through

(1) All interexchange carriers are required to flow-through any changes to local exchange company access charges to the maximum allowable rates in their tariffs.

(2) Whenever a Montana local exchange company's carrier access charges increase or decrease, all interexchange carriers must make a filing with the commission, requesting approval of a commensurate change in maximum allowable rates for appropriate services. All interexchange carriers must make such a filing with the commission no later than thirty (30) days after the effective date of the change in local exchange company access charges.

(3) The exact nature and appropriate distribution of the access charge flow-through is subject to commission review, and must be approved by the commission.

History

Authorizing statute(s): Secs. 69-3-103 and 69-3-822, MCA
Implementing statute(s): Secs. 69-3-102, 69-3-201 and 69-3-801 et seq. , MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.3720 Rates Above Costs

(1) All interexchange carrier rates must be above relevant costs.

History

Authorizing statute(s): Secs. 69-3-103 and 69-3-822, MCA
Implementing statute(s): Sec. 69-3-811, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.3725 Relaxed Forbearance

(1) Interexchange carriers may deviate from the rates in their price lists for individual customer contracts, pursuant to the relaxed forbearance procedure set forth in ARM 38.5.2715 and 38.5.2716.

History

Authorizing statute(s): Sec. 69-3-822, MCA
Implementing statute(s): Sec. 69-3-808, MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.3730 Annual Reports

(1) Interexchange carriers are required to file annual reports with the commission, in a form prescribed by the commission, as required by 69-3-203 , MCA.

History

Authorizing statute(s): Secs. 69-3-103, 69-3-821 and 69-3-822, MCA
Implementing statute(s): Secs. 69-3-102, 69-3-201, 69-3-203 and 69-3-801 et seq. , MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Mont. Admin. R. 38.5.3732 Market Data Filing Requirements

(1) Interexchange carriers are required to file market data information in the form and manner as may be prescribed by commission action.

History

Authorizing statute(s): Secs. 69-3-103, 69-3-106, 69-3-202, 69-3-203, 69-3-206, 69-3-208, 69-3-821 and 69-3-822, MCA
Implementing statute(s): Secs. 69-3-102, 69-3-201, 69-3-203 and 69-3-801 et seq. , MCA
History: NEW, 1993 MAR p. 1336, Eff. 6/25/93.

Subchapter 38.5.38 Unauthorized Change of Provider

Mont. Admin. R. 38.5.3801 Change in Telecommunications Provider

(1) A telecommunications carrier may not initiate or effect a change in a customer's primary interexchange carriers or local exchange company except:

(a) When the carrier initiating the change has obtained the customer's written or electronic signature authorization in a form that meets the letter of agency form and content requirements (as referenced below) ; or

(b) When the carrier initiating the change has obtained a customer's electronic authorization placed from the telephone number(s) on which the carrier is to be changed, to submit the order that confirms the information described in the letter of agency form and content (as referenced below) . Carriers electing to confirm customer authorizations electronically shall establish one or more toll-free telephone numbers exclusively for that purpose. Calls to the number(s) will connect a customer to a voice response unit, or similar mechanism, that records the required information regarding the carrier change, including automatically recording the originating ANI (automatic number identification) ; or

(c) When a qualified and independent third party operating in a location physically separate from the carrier's telemarketing representative has obtained a customer's verbal authorization to submit the carrier change, providing the third party verification includes:

(i) A statement that the purpose of the call is to verify the customer's intent to switch to the newly requested telecommunications carrier. The newly requested interexchange or local exchange telecommunications carrier must be clearly identified to the customer. Reference to use of another telecommunications carrier's network or facilities, if stated, must be secondary in nature to the prominent identification of the interexchange or local exchange carrier which will be providing service and setting the rates with the customer's consent for the customer's service.

(ii) Confirmation that the person whose authorization for a carrier change is being verified is the subscriber on the account or a person authorized by the subscriber to make decisions regarding the telephone account on behalf of the subscriber.

(iii) Verification data unique to the customer (e.g., the customer's date of birth or social security number) .

(iv) The name and toll free telephone number of the newly requested telecommunications carrier.

(d) When the customer affected by the change initiates the contact with the carrier in order to request the change.

(2) The independent third party may not be owned, managed, controlled, or directed by the carrier or the carrier's marketing agent; and may not have any financial incentive to confirm preferred carrier change orders for the carrier or the carrier's marketing agent; and must operate in a location physically separate from the carrier or the carrier's marketing agent. Any letter of agency, electronic authorization or verbal authorization verified by an independent third party that does not conform with this rule is invalid. Documentation of valid verbal authorization must demonstrate compliance with each element required by (1) (c) above.

(3) An executing carrier shall not verify the submission of a change in a subscriber's selection of a provider of telecommunications service received from a submitting carrier. For an executing carrier, compliance with the procedures prescribed in this rule shall be defined as prompt execution, without any unreasonable delay, of changes that have been verified by a submitting carrier. The submitting carrier shall maintain and preserve records of verification of subscriber authorization for a minimum period of two years after obtaining such verification.

(4) Where a telecommunications carrier selling more than one type of telecommunications service (e.g., local exchange, intraLATA/intrastate toll, interLATA/interstate toll, and international toll) that carrier must obtain separate authorization from the subscriber for each service sold, although the authorizations may be made within the same solicitation. Each authorization must be verified separately from any other authorizations obtained in the same solicitation. Each authorization must be verified in accordance with the verification procedures prescribed in this rule.

History

Authorizing statute(s): 69-3-822, 69-3-1301, 69-3-1302, 69-3-1303 and 69-3-1304, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-1303 and 69-3-1304, MCA
History: NEW, 1997 MAR p. 2088, Eff. 11/18/97; EMERG, AMD, 1999 MAR p. 1523, Eff. 7/2/99; AMD, 2003 MAR p. 2085, Eff. 9/26/03.

Mont. Admin. R. 38.5.3802 Letter of Agency Form and Content

(1) A telecommunications carrier initiating a change in a subscriber's primary interexchange carrier or local exchange carrier shall obtain any necessary written or electronically signed authorization from a subscriber by using a letter of agency as specified in this rule. Any letter of agency that does not conform with this rule is invalid.

(2) The letter of agency shall be a separate document (or an easily separable document) or located on a separate screen or webpage containing only the authorizing language described in (5) , the sole purpose of which is to authorize a telecommunications carrier to initiate a primary interexchange carrier or local exchange carrier change. The letter of agency must be signed and dated by the subscriber to the telephone line(s) requesting the change in carrier.

(3) The letter of agency shall not be combined on the same document screen or webpage with inducements of any kind.

(4) Notwithstanding (2) and (3) of this rule, the letter of agency may be combined with checks that contain only the required letter of agency language prescribed in (5) of this rule and the necessary information to make the check a negotiable instrument. The letter of agency check shall not contain any promotional language or material. The letter of agency check shall contain, in easily readable, bold-face type on the front of the check, a notice that the consumer is authorizing a primary interexchange carrier change or local exchange carrier change by signing the check. The letter of agency language also shall be placed near the signature line on the back of the check.

(5) At a minimum, the letter of agency must be printed with a readable type of sufficient size to be clearly legible and must contain clear and unambiguous language that confirms:

(a) the subscriber's billing name and address and each telephone number to be covered by the change order;

(b) the decision to change the primary interexchange carrier or local exchange carrier from the current interexchange carrier or local carrier to the prospective carrier;

(c) that the subscriber designates the carrier to act as the subscriber's agent for the primary interexchange carrier or local exchange carrier change;

(d) that the subscriber understands that only one interexchange carrier may be designated as the subscriber's primary interLATA interexchange carrier and that only one local exchange carrier may be designated as the subscriber's local telecommunication provider for any one telephone number. To the extent that a jurisdiction allows the selection of additional primary interexchange carriers (e.g., for intraLATA, intrastate or international calling) , the letter of agency must contain separate statements regarding those choices. Any carrier designated as a primary interexchange carrier or local exchange carrier must be the carrier directly setting the rates for the subscriber. One carrier can be a subscriber's interLATA primary interexchange carrier, a subscriber's intraLATA primary interexchange carrier, and a subscriber's local carrier; and

(e) that the subscriber understands that any primary interexchange carrier selection or local exchange carrier selection the subscriber chooses may involve a charge to the subscriber for changing the subscriber's primary interexchange carrier or local exchange carrier.

(6) Letters of agency shall not suggest or require that a subscriber take some action in order to retain the subscriber's current primary interexchange carrier or local exchange carrier.

(7) If any portion of a letter of agency is translated into another language, then all portions of the letter of agency must be translated into that language

(8) Letters of agency submitted with an electronically signed authorization must include the consumer disclosures required by Section 101(c) of the Electronic Signatures in Global and National Commerce Act (October 2000) which is adopted and incorporated by reference. A copy of this section may be obtained from the Commission, 1701 Prospect Avenue, P.O. Box 202601, Helena, Montana 59620-2601.

(9) A carrier shall submit a carrier change order on behalf of a subscriber within no more than 60 days of obtaining a written or electronically signed letter of agency. However, letters of agency for multi-line and/or multi-location business customers that have entered into negotiated agreements with carriers to add presubscribed lines to their business locations during the course of a term agreement shall be valid for the period specified in the agreement.

History

Authorizing statute(s): 69-3-822, 69-3-1301, 69-3-1302, 69-3-1303 and 69-3-1304, MCA
Implementing statute(s): 69-3-102, 69-3-201 and 69-3-1304, MCA
History: NEW, 1997 MAR p. 2088, Eff. 11/18/97; EMERG, AMD, 1999 MAR p. 1523, Eff. 7/2/99; AMD, 2003 MAR p. 2085, Eff. 9/26/03.

Mont. Admin. R. 38.5.3803 Complaints of Unauthorized Switch in Carriers

(1) Upon receipt of a complaint alleging an unauthorized switch in a customer's telecommunications carrier, either orally or in writing, from the customer, the customer's original pre-subscribed telecommunications carrier, the customer's local exchange company, or from the commission or its staff on behalf of a customer or applicant, the telecommunications carrier that initiated the change shall make a suitable investigation and advise the party requesting the investigation of the results. When advising the customer or party requesting the investigation of the results, the carrier that initiated the change shall provide documentation in accordance with ARM 38.5.3801 and 38.5.3802 that confirms the customer's valid authorization to switch telecommunications carriers. The burden is on the carrier that initiated the change to produce documentation that valid authorization was obtained from the customer. If a carrier fails to provide the documentation, the carrier change will be deemed invalid. A telecommunications carrier, upon receipt of a complaint from the commission or its staff alleging unauthorized switching, shall issue an initial response within five working days.

History

Authorizing statute(s): 69-3-1304, MCA
Implementing statute(s): 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 2088, Eff. 11/18/97.

Mont. Admin. R. 38.5.3804 Telecommunications Carrier Liability

(1) An entity that is not the customer and that initiates a change in the customer's telecommunications carrier in violation of these rules, or cannot provide documentation that the change was initiated in compliance with these rules, is liable:

(a) to the customer for all intrastate long distance charges, interstate long distance charges, monthly service charges, carrier switching fees, and other relevant charges billed by the unauthorized carrier or its agent to the customer during the period of the unauthorized change; and

(b) to the customer's original telecommunications carrier for all charges related to reinstating service to the customer.

History

Authorizing statute(s): 69-3-1304, MCA
Implementing statute(s): 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 2088, Eff. 11/18/97.

Mont. Admin. R. 38.5.3805 Refund of Charges

(1) A telecommunications carrier which initiates a carrier change without authorization from the customer in accordance with these rules shall issue to the customer full credit or refund the entire amount of such customer's telephone charges attributable to telephone service from the telecommunications carrier for up to six continuous months of unauthorized service and any charges from another telecommunications carrier to re-establish service or to change the customer's pre-subscribed carrier. The appropriate credit or refund must be issued within a period not to exceed 60 days from the date of the initial complaint from the customer, commission, or staff.

History

Authorizing statute(s): 69-3-1304, MCA
Implementing statute(s): 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 2088, Eff. 11/18/97.

Mont. Admin. R. 38.5.3810 Violations

(1) The commission may refer violations of the prohibition against unauthorized change of a customer's telecommunications carrier to the appropriate law enforcement authority for prosecution.

History

Authorizing statute(s): 69-3-1304, MCA
Implementing statute(s): 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 2088, Eff. 11/18/97.

Mont. Admin. R. 38.5.3812 True and Complete Carrier Communications Pertaining to Customer Authorization for Change of Carriers

(1) When soliciting, obtaining, or verifying a customer's authorization for a change of telecommunications carriers, neither the carrier, its agent, nor the independent third party verifier may make false, misleading, or deceptive statements or fail to disclose material information.

(2) Authorization obtained under circumstances in which the carrier, its agents, or the third party verifier has made false, misleading, or deceptive statements or has failed to disclose material information is invalid and will not qualify as authorization for purposes of validating a change in carriers.

History

Authorizing statute(s): 69-3-1304, MCA
Implementing statute(s): 69-3-1303, MCA
History: NEW, 2001 MAR p. 1648, Eff. 8/24/01.

Mont. Admin. R. 38.5.3815 Definitions

For the purpose of this subchapter, the following definitions are applicable:

(1) "Electronic signature" has the meaning as provided in 30-18-102 (8) , MCA.

(2) "Executing carrier" means generally any telecommunications carrier that effects a request that a subscriber's telecommunications carrier be changed. A carrier may be treated as an executing carrier if it is responsible for any unreasonable delays in the execution of carrier changes or for the execution of unauthorized carrier changes, including fraudulent authorizations.

(3) "Submitting carrier" means generally any telecommunications carrier that:

(a) requests on the behalf of a subscriber that the subscriber's telecommunications carrier be changed; and

(b) seeks to provide retail services to the end user subscriber. A carrier may be treated as a submitting carrier if it is responsible for any unreasonable delays in the submission of carrier change request or for the submission of unauthorized carrier change request, including fraudulent authorizations.

History

Authorizing statute(s): 69-3-822 and 69-3-1304, MCA
Implementing statute(s): 69-3-102, 69-3-201 and 69-3-1303, MCA
History: EMERG, NEW, 1999 MAR p. 1523, Eff. 7/2/99; AMD, 2003 MAR p. 2085, Eff. 9/26/03.

Mont. Admin. R. 38.5.3816 Preferred Carrier Freeze

(1) A preferred carrier freeze (or freeze) prevents a change in a subscriber's preferred carrier selection unless the subscriber gives the carrier from whom the freeze was requested his or her express consent. All local exchange carriers who offer preferred carrier freezes must comply with the provisions of this rule.

(2) All local exchange carriers who offer preferred carrier freezes shall offer freezes on a nondiscriminatory basis to all subscribers, regardless of the subscriber's carrier selections.

(3) Preferred carrier freeze procedures, including any solicitation, must clearly distinguish among telecommunications services (e.g., local exchange, intraLATA /intrastate toll, interLATA /interstate toll, and international toll) subject to a preferred carrier freeze. The carrier offering the freeze must obtain separate authorization for each service for which a preferred carrier freeze is requested.

History

Authorizing statute(s): 69-3-822 and 69-3-1304, MCA
Implementing statute(s): 69-3-102, 69-3-201 and 69-3-1303, MCA
History: EMERG, NEW, 1999 MAR p. 1523, Eff. 7/2/99.

Mont. Admin. R. 38.5.3817 Solicitation and Imposition of Preferred Carrier Freezes

(1) All carrier-provided solicitation and other materials regarding preferred carrier freezes must include:

(a) an explanation, in clear and neutral language, of what a preferred carrier freeze is and what services may be subject to a freeze;

(b) a description of the specific procedures necessary to lift a preferred carrier freeze, including an explanation that:

(i) these steps are in addition to the commission's verification rules in ARM 38.5.3801 and 38.5.3802 for changing a subscriber's preferred carrier selections; and

(ii) the subscriber will be unable to make a change in carrier selection unless he or she lifts the freeze; and

(2) No local exchange carrier shall implement a preferred carrier freeze unless the subscriber's request to impose a freeze has first been confirmed in accordance with one of the following procedures:

(a) the local exchange carrier has obtained the subscriber's written and signed authorization in a form that meets the requirements of (3) ; or

(b) the local exchange carrier has obtained the subscriber's electronic authorization, placed from the telephone number(s) on which the preferred carrier freeze is to be imposed, to impose a preferred carrier freeze. The electronic authorization should confirm appropriate verification data (e.g., the subscriber's date of birth or social security number) and the information required by (3) (b) (i) through (iv) . Telecommunications carriers electing to confirm preferred carrier freeze orders electronically shall establish one or more toll-free telephone numbers exclusively for that purpose. Calls to the number(s) will connect a subscriber to a voice response unit, or similar mechanism that records the required information regarding the preferred carrier freeze request, including automatically recording the originating automatic numbering identification; or

(c) an appropriately qualified independent third party has obtained the subscriber's oral authorization to submit the preferred carrier freeze and confirmed the appropriate verification data (e.g., the subscriber's date of birth or social security number) and the information required by (3) (b) (i) through (iv) . The independent third party must:

(i) not be owned, managed, or directly controlled by the carrier or the carrier's marketing agent;

(ii) not have any financial incentive to confirm preferred carrier freeze requests for the carrier or the carrier's marketing agent; and

(iii) operate in a location physically separate from the carrier or the carrier's marketing agent. The content of the verification must include clear and conspicuous confirmation that the subscriber has authorized a preferred carrier freeze.

(3) A local exchange carrier may accept a subscriber's written and signed authorization to impose a freeze on his or her preferred carrier selection. Written authorization that does not conform with this rule is invalid and may not be used to impose a preferred carrier freeze.

(a) The written authorization shall comply with ARM 38.5.3802(2) , (3) and (7) concerning the form and content for letters of agency.

(b) At a minimum, the written authorization must be printed with a readable type of sufficient size to be clearly legible and must contain clear and unambiguous language that confirms:

(i) the subscriber's billing name and address and the telephone number(s) to be covered by the preferred carrier freeze;

(ii) the decision to place a preferred carrier freeze on the telephone number(s) and particular service(s) . To the extent that a jurisdiction allows the imposition of preferred carrier freezes on additional preferred carrier selections (e.g., for local exchange, intraLATA/intrastate toll, interLATA/interstate toll service, and international toll) , the authorization must contain separate statements regarding the particular selections to be frozen;

(iii) that the subscriber understands that she or he will be unable to make a change in carrier selection unless she or he lifts the preferred carrier freeze; and

(iv) that the subscriber understands that any preferred carrier freeze may involve a charge to the subscriber.

History

Authorizing statute(s): 69-3-822 and 69-3-1304, MCA
Implementing statute(s): 69-3-102, 69-3-201 and 69-3-1303, MCA
History: EMERG, NEW, 1999 MAR p. 1767, Eff. 7/2/99.

Mont. Admin. R. 38.5.3818 Procedures for Lifting Preferred Carrier Freezes

(1) All local exchange carriers who offer preferred carrier freezes must, at a minimum, offer subscribers the following procedures for lifting a preferred carrier freeze:

(a) A local exchange carrier administering a preferred carrier freeze must accept a subscriber's written and signed authorization stating her or his intent to lift a preferred carrier freeze; and

(b) A local exchange carrier administering a preferred carrier freeze must accept a subscriber's oral authorization stating her or his intent to lift a preferred carrier freeze and must offer a mechanism that allows a submitting carrier to conduct a three-way conference call with the carrier administering the freeze and the subscriber in order to lift a freeze. When engaged in oral authorization to lift a preferred carrier freeze, the carrier administering the freeze shall confirm appropriate verification data (e.g., the subscriber's date of birth or social security number) and the subscriber's intent to lift the particular freeze.

History

Authorizing statute(s): 69-3-822 and 69-3-1304, MCA
Implementing statute(s): 69-3-102, 69-3-201 and 69-3-1303, MCA
History: EMERG, NEW, 1999 MAR p. 1523, Eff. 7/2/99.

Mont. Admin. R. 38.5.3819 Sale or Transfer of Subscriber Bases

(1) A carrier may acquire, through a sale or transfer, either part or all of another carrier's subscriber base without obtaining each subscriber's authorization and verification in accordance with ARM 38.5.3801, provided that the acquiring carrier complies with the following procedures. A carrier may not use these procedures for any fraudulent purpose, including any attempt to avoid liability for violations under ARM 38.5.3801.

(a) No later than 30 days before the planned transfer of the affected subscribers from the selling or transferring carrier to the acquiring carrier, the acquiring carrier shall file with the commission a letter of notification providing the names of the parties to the transaction, the types of telecommunications services to be provided to the affected subscribers, and the date of the transfer of the subscriber base to the acquiring carrier. In the letter notification, the acquiring carrier also shall certify compliance with the requirement to provide advance subscriber notice in accordance with the obligations specified in that notice, and with other commission requirements that apply to this process. In addition, the acquiring carrier shall attach a copy of the notice sent to the affected subscribers.

(b) If, subsequent to the filing of the letter notification with the commission required by (2) (a) , any material changes to the required information should develop, the acquiring carrier shall file written notification of these changes with the commission no more than 10 days after the transfer date announced in the prior notification. The commission may require the acquiring carrier to send an additional notice to the affected subscribers regarding such material changes.

(c) Not later than 30 days before the transfer of the affected subscribers from the selling or transferring carrier to the acquiring carrier, the acquiring carrier shall provide written notice to each affected subscriber of the information specified. The acquiring carrier is required to fulfill the obligations set forth in the advance subscriber notice. The following information must be included in the advance subscriber notice:

(i) The date on which the acquiring carrier will become the subscriber's new provider of telecommunications service;

(ii) The rates, terms, and conditions of the service(s) to be provided by the acquiring carrier upon the subscriber's transfer to the acquiring carrier, and the means by which the acquiring carrier will notify the subscriber of any change(s) to these rates, terms, and conditions;

(iii) The acquiring carrier will be responsible for any carrier change charges associated with the transfer;

(iv) The subscriber's right to select a different preferred carrier for the telecommunications service(s) at issue, if an alternative carrier is available;

(v) All subscribers receiving the notice, even those who have arranged preferred carrier freezes through their local service providers on the service(s) involved in the transfer, will be transferred to the acquiring carrier, unless they have selected a different carrier before the transfer date; existing preferred carrier freezes on the service(s) involved in the transfer will be lifted; and the subscribers must contact their local service providers to arrange a new freeze;

(vi) Whether the acquiring carrier will be responsible for handling any complaints filed, or otherwise raised, prior to or during the transfer against the selling or transferring carrier; and

(vii) The toll-free customer service telephone number of the acquiring carrier.

History

Authorizing statute(s): 69-3-1301, 69-3-1302 and 69-3-1303, MCA
Implementing statute(s): 69-3-1304, MCA
History: NEW, 2003 MAR p. 2085, Eff. 9/26/03.

Subchapter 38.5.39 Unauthorized Product or Service Charges on Telephone Bills

Mont. Admin. R. 38.5.3901 Customer Authorization Required Prior to Placement of Charges on Customers' Telephone Bill

(1) A telecommunications carrier or other entity that is neither the customer's selected provider of local exchange service nor selected provider of interexchange service may not initiate the placement on a customer's telecommunications bill of charges for services or products except:

(a) When the service is a customer initiated and controlled selection or approval of a calling method, such as dial-around or acceptance of a collect call, or a customer initiated and controlled selection of an available service which will facilitate completing a call, such as directory assistance or operator assistance, if the charges for such calling-method and call-facilitation services are assessed on a per-use basis only and no further obligation of any kind extends to the customer;

(b) When the telecommunications provider or other entity initiating the placement of charges has obtained the customer's written or electronic signature authorization in a form that meets the letter of agency form and content requirements in ARM 38.5.3904;

(c) When the telecommunications provider or other entity initiating the placement of charges has obtained the customer's electronic authorization to submit the order for the product or service that confirms the information described in the letter of agency form and content in ARM 38.5.3904. Carriers or other entities electing to confirm customer authorizations electronically shall establish one or more toll-free telephone numbers exclusively for that purpose. Calls to the number(s) will connect a customer to a voice response unit, or similar mechanism, that records the required information regarding the authorization for services or products, including automatically recording the originating automatic number identification; or

(d) When a qualified and independent third party operating in a location physically separate from the carrier's or other entity's telemarketing representative has obtained a customer's verbal authorization for the product or service, providing the third party verification includes:

(i) a statement that the purpose of the call is to verify the customer's intent to order the product or service. The product or service and all charges applicable to the product or service must be clearly identified to the customer;

(ii) confirmation that the person whose authorization for a product or service is being verified is the subscriber on the billed telecommunications account or a person authorized by the subscriber to make decisions regarding the billed telephone account on behalf of the subscriber;

(iii) verification data unique to the customer (e.g., the customer's date of birth or social security number) ; and

(iv) the name and toll free telephone number of the provider of the requested product or service.

(2) The independent third party:

(a) may not be owned, managed, controlled, or directed by the carrier or other entity or their marketing agent;

(b) may not have any financial incentive to confirm product or service orders for the carrier, other entity, or their marketing agent; and

(3) Any letter of agency, electronic authorization or verbal authorization verified by an independent third party that does not conform with this rule is invalid. Documentation of valid verbal authorization must demonstrate compliance with each element required by (1) (c) above.

(4) The submitting carrier or other entity shall maintain and preserve records of verification of subscriber authorization for a minimum period of two years after obtaining such verification.

(5) Where a telecommunications carrier or other entity is selling more than one type of product or service, that carrier or other entity must obtain separate authorization from the subscriber for each product or service ordered, although the authorizations may be made within the same solicitation. Each authorization must be verified separately from any other authorizations obtained in the same solicitation. Each authorization must be verified in accordance with the verification procedures prescribed in this rule.

History

Authorizing statute(s): 69-3-1301, 69-3-1302, 69-3-1303 and 69-3-1304, MCA
Implementing statute(s): 69-3-1301, 69-3-1303 and 69-3-1304, MCA
History: NEW, 1999 MAR p. 2086, Eff. 9/24/99; AMD, 2003 MAR p. 2085, Eff. 9/26/03.

Mont. Admin. R. 38.5.3904 Letter of Agency Form and Content

(1) A telecommunications carrier or other entity initiating a product or service charge to be placed on a customer's telecommunications bill shall obtain any necessary written or electronically signed authorization from a subscriber by using a letter of agency as specified in this rule. Any letter of agency that does not conform with this rule is invalid.

(2) The letter of agency shall be a separate document (or an easily separable document) or located on a separate screen or webpage containing only the authorizing language described in (5) , the sole purpose of which is to authorize a charge to be placed on the customer's telecommunications bill for a product or service. The letter of agency must be signed and dated by the subscriber to the telecommunications account being authorized for the billing.

(3) The letter of agency shall not be combined on the same document, screen or webpage with inducements of any kind.

(4) Notwithstanding (2) and (3) of this rule, the letter of agency may be combined with checks that contain only the required letter of agency language prescribed in (5) of this rule and the necessary information to make the check a negotiable instrument. The letter of agency check shall not contain any promotional language or material. The letter of agency check shall contain, in easily readable, boldface type on the front of the check, a notice that the consumer is ordering a product or service and, by signing the check, is authorizing the billing for product or service on his telephone bill. The letter of agency language also shall be placed near the signature line on the back of the check.

(5) At a minimum, the letter of agency must be printed with a readable type of sufficient size to be clearly legible and must contain clear and unambiguous language that confirms:

(a) the subscriber's billing name and address and the telephone number on which the charge for the product or service will be billed;

(b) the decision to authorize the placement of the charge for the service or product on the subscriber's telephone bill; and

(6) Letters of agency shall not suggest or require that a subscriber take some action in order to prevent the placement of the charge for the product or service on the customer's telephone bill.

(7) If any portion of a letter of agency is translated into another language, then all portions of the letter of agency must be translated into that language.

(9) A carrier or other entity shall submit an order for placement of the charge for the product or service on the subscriber's telephone bill within no more than 60 days of obtaining a written or electronically signed letter of agency authorizing the charge from the subscriber. However, letters of agency for multi-line and/or multi-location business customers that have entered into negotiated agreements with carriers to add presubscribed lines to their business locations during the course of a term of agreement shall be valid for the period specified in the term agreement.

History

Authorizing statute(s): 69-3-1301, 69-3-1302, 69-3-1303 and 69-3-1304, MCA
Implementing statute(s): 69-3-1301, 69-3-1303 and 69-3-1304, MCA
History: NEW, 1999 MAR p. 2086, Eff. 9/24/99; AMD, 2003 MAR p. 2085, Eff. 9/26/03.

Mont. Admin. R. 38.5.3907 Complaints of Unauthorized Charges for Products or Services Being Placed on a Customer's Telephone Bill

(1) Upon receipt of a complaint alleging an unauthorized charge for a product or service being placed on a customer's telephone bill, either orally or in writing, from the customer, the customer's local exchange company, or from the commission or its staff on behalf of a customer or applicant, the telecommunications carrier or other entity that initiated placement of the charge for the product or service on the customer's telephone bill shall make a suitable and documented investigation and advise the party requesting the investigation of the results. The results of the investigation need not be in writing, unless otherwise directed by the commission or requested by a customer. When advising the customer or party requesting the investigation of the results, the carrier or other entity that initiated the placement of the charge for the product or service on the customer's telephone bill shall provide documentation in accordance with ARM 38.5.3901 and 38.5.3904 that confirms the customer's valid authorization for placement of the charge for the product or service on the telephone bill. The burden is on the carrier or other entity that initiated the placement of the charge for the product or service on the customer's telephone bill to produce documentation that valid authorization was obtained from the customer. If a carrier or other entity fails to provide the documentation, all charges for the products or services that the customer did not authorize or that were not provided to the customer will be deemed invalid. A telecommunications carrier or other entity, upon receipt of a complaint alleging unauthorized placement of charges for products or service on a customer's telephone bill, shall issue an initial response within five working days.

(2) The carrier or other entity shall maintain and preserve records of complaints for a minimum period of two years after receipt of the complaint. Records of complaints must include the complaint, documentation of the investigation of the complaint, and documentation of the response or responses to the complaint. Records of complaints must include the customer's name, address, and telephone number, the date of the complaint, a summary of the complaint, the date the complaint was resolved, and the resolution reached. Records of complaints must be provided to the commission within 20 days of request by the commission.

History

Authorizing statute(s): 69-3-1304, MCA
Implementing statute(s): 69-3-1301 and 69-3-1303, MCA
History: NEW, 1999 MAR p. 2086, Eff. 9/24/99.

Mont. Admin. R. 38.5.3910 Telecommunications Carrier or Other Entity Liability

(1) An entity that initiates a placement of a charge for a product or service on a customer's telephone bill in violation of these rules, or that cannot provide documentation that the billing for the product or service was initiated in compliance with these rules, is liable to the customer for all customer-paid charges and fees related to the product or service being billed on the customer's telephone bill by a telecommunications carrier, other entity, or agent of either, during the period of the unauthorized billing, not to exceed six continuous months of unauthorized billing.

(2) Penalties for violation are as provided in 69-3-1305, MCA.

History

Authorizing statute(s): 69-3-1304, MCA
Implementing statute(s): 69-3-1301 and 69-3-1303, MCA
History: NEW, 1999 MAR p. 2086, Eff. 9/24/99.

Mont. Admin. R. 38.5.3913 Credit or Refund of Charges

(1) A telecommunications carrier or other entity which initiates a placement of a charge for a product or service on the customer's telephone bill without authorization from the customer in accordance with these rules shall issue to the customer a full credit or a refund of the entire amount of such customer's charges for the product or service attributable to the telecommunications carrier or other entity. The required credit and refund are limited to six continuous months of unauthorized charges. The appropriate credit or refund must be issued within a period not to exceed 60 days from the date of the initial complaint.

(2) If the customer has not paid the charges placed on the customer's telephone bill without authorization in accordance with these rules, the telecommunications carrier or other entity which initiated the unauthorized charge will make appropriate arrangements to adjust the telephone bill to remove the unauthorized charges and any interest or penalty that is attributable to the unauthorized charges. Adjustment to the bill must be within 60 days from the date of the initial complaint.

History

Authorizing statute(s): 69-3-1304, MCA
Implementing statute(s): 69-3-1301 and 69-3-1303, MCA
History: NEW, 1999 MAR p. 2086, Eff. 9/24/99.

Subchapter 38.5.40 Interconnection

Mont. Admin. R. 38.5.4001 Scope and Purpose of Rules

(1) This subchapter governs all hearings and other proceedings before the Montana public service commission which relate to agreements between carriers seeking to provide competitive local exchange services in Montana. This subchapter shall be construed to secure the just, speedy and inexpensive determination of every action. All rules promulgated by the commission with regard to other adjudicative proceedings are superseded by this subchapter in proceedings governed by them to the extent they conflict with this subchapter.

(a) All references made in state or federal statutes and regulations to state commission proceedings for dispute resolution and approval of negotiated or arbitrated agreements for interconnection, services or network elements shall be governed by this subchapter.

(b) All matters before the Montana public service commission relating to negotiated or arbitrated agreements for interconnection, services or network elements shall be governed by this subchapter.

(c) Proceedings referred to in the Federal Telecommunications Act of 1996 (1996 Act) will be governed by this subchapter. The commission may waive, suspend or modify these rules for good cause to expedite a decision, prevent manifest prejudice to a party, assure a fair hearing, afford substantial justice, or fulfill its obligations under the 1996 Act.

(d) All controversies arising under provisions of state and federal law pursuant to negotiated or arbitrated agreements for interconnection, services or network elements involving the interpretation and application of such agreements shall be governed by this subchapter, except that parties to an agreement for interconnection, services or network elements may include methods allowed by applicable federal or state law for resolving disputes over the interpretation and application of terms and conditions in their agreement.

(2) The purpose of this subchapter is to provide guidelines and procedures for the commission to carry out its duties pursuant to the 1996 Act. The commission imposes this subchapter for competition within local service areas in order to encourage competitive entry, preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers while ensuring that the rates charged and services rendered by telecommunications services providers are just and reasonable.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4002 Terms and Definitions

Terms used in this subchapter have the following meanings:

(1) "Arbitrated agreement" means an agreement between telecommunications carriers for interconnection, services or network elements pursuant to the 1996 Act, which is reached through arbitration or a combination of negotiation and arbitration.

(2) "Arbitration" means an alternative dispute resolution process in which a neutral third party decides a matter in dispute. Arbitration is an investigatory contested case proceeding under the Montana Administrative Procedure Act. The term arbitration as used in the 1996 Act is not arbitration under either the United States Arbitration Act, 9 USC 1, et seq., or the Montana Uniform Arbitration Act, 27-2-401, MCA, et seq.

(3) "CMRS" is commercial mobile radio service.

(4) "Commission" refers to the Montana public service commission.

(5) "Contested case" means any proceeding in which a determination of legal rights, duties or privileges of a party is required by law. Such proceedings are required by law whenever the Montana legislature has so provided or where constitutional due process requires a hearing.

(6) "FCC" is the federal communications commission.

(7) "Incumbent LEC" means, with respect to an area, the LEC that on February 8, 1996, provided telephone exchange service in that area.

(8) "Interconnection" is the physical linking of two networks for the mutual exchange of traffic. This term does not include the transport and termination of traffic.

(9) "Local exchange carrier (LEC) " is any person or entity that is engaged in the provision of telephone exchange service or exchange access but does not include CMRS providers.

(10) "Mediation" means an alternative dispute resolution process in which a neutral third party assists the disputants in reaching their own agreement but does not have the authority to make a binding decision.

(11) "Meet point" is a point of interconnection between two networks, designated by two telecommunications carriers, at which one carrier's responsibility for service begins and the other carrier's responsibility ends.

(12) "Meet point interconnection arrangement" is an arrangement by which each telecommunications carrier builds and maintains its network to a meet point.

(13) "Network element" is a facility or equipment used in the provision of a telecommunications service. Such term also includes, but is not limited to, features, functions, and capabilities that are provided by means of such facility or equipment, including but not limited to, subscriber numbers, databases, signaling systems, and information sufficient for billing and collection or used in the transmission, routing or other provision of a telecommunications service.

(14) "Negotiated agreement" means a voluntary agreement between telecommunications carriers for interconnection, services or network elements pursuant to the 1996 Act.

(15) "The 1996 Act" means the Telecommunications Act of 1996, Public Law No. 104-104, amending the Telecommunications Act of 1934, 47 USC 151, et seq.

(16) "Number portability" means the ability of users of telecommunication services to retain, at the same location, existing telecommunications numbers without impairment of quality, reliability or convenience when switching from one telecommunications carrier to another.

(17) "Open issues" means any unresolved difference(s) arising in the negotiations.

(18) "Physical collocation" is an offering by an incumbent LEC that enables a requesting telecommunications carrier to:

(a) place its own equipment to be used for interconnection or access to unbundled network elements within or upon an incumbent LEC's premises;

(b) use such equipment to interconnect with an incumbent LEC's network facilities for the transmission and routing of telephone exchange service, exchange access service or both or to gain access to an incumbent LEC's unbundled network elements for the provision of a telecommunications service;

(c) enter those premises, subject to reasonable terms and conditions, to install, maintain, and repair equipment necessary for interconnection or access to unbundled elements; and

(d) obtain reasonable amounts of space in an incumbent LEC's premises, as provided in this subchapter, for the equipment necessary for interconnection or access to unbundled elements, allocated on a first-come, first-served basis.

(19) "Premises" refers to an incumbent LEC's central offices and serving wire centers, as well as all buildings or similar structures owned or leased by an incumbent LEC that house its network facilities, and all structures that house incumbent LEC facilities on public rights-of-way, including but not limited to vaults containing loop concentrators or similar structures.

(20) "Rural LEC" is an entity that:

(a) provides common carrier service to any LEC study area that does not include either:

(i) any incorporated place of 10,000 inhabitants or more, or any part thereof, based on the most recently available population statistics of the bureau of the census; or

(ii) any territory, incorporated or unincorporated, included in an urbanized area, as defined by the bureau of the census as of August 10, 1993;

(b) provides telephone exchange service, including exchange access, to fewer than 50,000 access lines;

(d) has less than 15 percent of its access lines in communities of more than 50,000 on February 8, 1996.

(21) "Statement of generally available terms and conditions" means a statement by a bell operating company (BOC) of the terms and conditions that such company generally offers within a particular state to comply with the requirements of section 251 of the 1996 Act and the regulations thereunder and the standards applicable under section 252 of the 1996 Act.

(22) "Telecommunications carrier" is any provider of telecommunications services, except that such term does not include aggregators of telecommunications services, which are persons that, in the ordinary course of operations, make telephones available to the public or to transient users of their premises, for interstate telephone calls using a provider of operator services.

(23) "Virtual collocation" is an offering by an incumbent LEC that enables a requesting telecommunications carrier to:

(a) designate or specify equipment to be used for interconnection or access to unbundled network elements to be located within or upon an incumbent LEC's premises, and dedicated to such telecommunications carrier's use;

(b) use such equipment to interconnect with an incumbent LEC's network facilities for the transmission and routing of telephone exchange service, exchange access service or both or for access to an incumbent LEC's unbundled network elements for the provision of a telecommunications service; and

(24) The meaning of undefined terms used in this subchapter shall be consistent with their general usage in the telecommunications industry unless specifically defined by other applicable Montana or federal law.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4006 Negotiation

(1) The commission encourages the voluntary negotiation of agreements for interconnection, services or network elements. In order to facilitate the streamlined processes mandated by the 1996 Act, negotiating parties should resolve as many terms and conditions in their agreements as possible prior to making a request for the commission to mediate or arbitrate unresolved terms. Parties should continue negotiating unresolved terms after petitioning the commission to arbitrate open issues and shall notify the arbitrator expeditiously when any open issue is resolved voluntarily.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4009 Mediation

(1) Any party negotiating an agreement under section 252 of the 1996 Act may, at any point in the negotiation, ask the commission to participate in the negotiation and to mediate any differences arising in the course of the negotiation. Parties need not seek mediation by the commission and are free to employ the services of a private mediator.

(2) If a party requests mediation by the commission, the commission will consider the type of mediation requested by the parties and will use one of the following processes:

(a) The commission may appoint a staff member to mediate. Employees acting as mediators will not participate in the arbitration or approval process for the same agreement, unless the parties consent.

(b) The commission may appoint a commissioner to mediate. A commissioner acting as a mediator will not participate in the arbitration or approval process for the same agreement, unless the parties consent.

(c) The commission may use a co-mediation process involving both a commissioner or a commission staff member and a neutral professional mediator from outside the agency. If co-mediation is chosen, the negotiating parties shall jointly retain the services of a professional mediator acceptable to all parties and shall share the costs of the mediator equally. The parties shall secure the mediation services and identify the professional mediator to the commission not later than five business days after the request for mediation, unless more time is allowed by the commission. The commission will appoint a commissioner or a staff member to serve as a co-mediator. The parties may recommend the area of expertise required by a commission staff mediator, who may provide technical or other related information and advice to the professional mediator as needed throughout the mediation process.

(3) The mediator shall have discretion to regulate the course of the mediation, including scheduling of mediation sessions, in consultation with the parties. The following general procedures apply:

(a) the mediator may not impose a settlement but can offer proposals for settlement;

(b) the mediator may meet individually with the parties or attorneys during mediation;

(c) only the parties to the negotiation may attend the mediation session(s) , unless all parties consent to the presence of others;

(d) parties shall provide the mediator with a brief statement of position and relevant background information prior to the first mediation session, including a list of all issues raised in the negotiation on which mediation is sought and a list of all issues the parties have resolved through negotiation;

(e) the mediator may not provide legal advice to the parties, nor are any mediator's statements as to law or policy binding on the commission, unless later adopted by the commission;

(f) the mediation process is considered to be a private resolution process and is confidential to the extent permitted by law; and

(g) no stenographic record will be kept.

(4) Although mediation is generally a voluntary process, section 252(a) (2) of the 1996 Act requires all parties to participate in a commission mediation, once requested, unless disputes are otherwise resolved. The mediator may terminate the mediation if it appears that the likelihood of agreement is remote . Ordinarily, a mediation should not be terminated prior to the completion of at least one mediation session.

(5) Parties may indicate their preference for the skills desired in a mediator and may indicate a preference for the preferred mediation process as set forth in ARM 38.5.4009(2) .

(6) For good cause, the commission may refuse to mediate negotiations between parties.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4012 Petition for Arbitration of Open Issues

(1) Any party to the negotiation of an interconnection agreement may, during the period from the 135th to the 160th day (inclusive) after the date on which a LEC receives a request for negotiation, petition the commission to arbitrate any open issues.

(2) To petition the commission for arbitration, a party to the negotiation shall file 10 copies of the request with the commission. On the same day it files its petition for arbitration with the commission, the petitioner shall serve a copy of the petition and all supporting documentation on any other party to the negotiation and the Montana consumer counsel. A docket number will be assigned and appropriate notice will be provided. The petition shall include the following information:

(a) the name, address, telephone number, fax number, and e-mail address of the party to the negotiation making the request;

(b) the name, address, telephone number, fax number, and e-mail address (if known) of the other party to the negotiation;

(c) the name, address, telephone number, fax number, and e-mail address (if known) of the parties' representatives who are participating in the negotiation and to whom inquiries should be made;

(d) the general negotiation history;

(e) all relevant nonproprietary documentation and arguments concerning unresolved issues and the position of each party on the unresolved issues;

(f) all relevant nonproprietary documentation on any other issue discussed and resolved by the parties; and

(g) a statement identifying information needed to resolve open issues or information which has been requested during negotiations but not yet provided.

(3) Copies of the petition for arbitration shall be directed to Program Manager, Utility Division, Montana Public Service Commission, 1701 Prospect Avenue, PO Box 202601, Helena, Montana 59620-2601.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4013 Opportunity to Respond to Petition

(1) A nonpetitioning party to a petition for arbitration shall file a response to the other party's petition and provide additional information within 25 days after the petition to arbitrate is filed. The response should identify information needed to resolve open issues, including information identified in the other party's petition for arbitration as information which has been requested during negotiations but not yet provided and must address each issue presented in the petition for arbitration. The response shall also present any additional issues for which the respondent seeks resolution and provide additional information and evidence necessary for the arbitrator's review. On the same day that it files its response with the commission, the respondent shall serve a copy of the response, and all supporting documentation, on any other party to the negotiation and the Montana consumer counsel.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4016 Commission Responsibility

(1) Upon receipt of a timely and complete petition for arbitration, the commission shall appoint an arbitrator pursuant to ARM 38.5.4017. It is the function of the commission to approve a resolution of the issues in dispute if the parties cannot reach a voluntary agreement. The commission may not approve an arbitrator's resolution of issues that have not been identified by the parties as open issues.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97

Mont. Admin. R. 38.5.4017 Appointment of Arbitrator

(1) Arbitrations will be conducted by arbitrators appointed by the commission. The commission may appoint a single commissioner, a commission staff member, an internal arbitration panel which may be comprised of the commission or an independent arbitrator. The commission will not appoint an independent arbitrator unless it has insufficient resources with which to arbitrate the matter. The commission may permit parties to comment on the selection of the arbitrator prior to the appointment.

(2) The commission will appoint an arbitrator within 10 days of receiving a petition for arbitration.

(3) The arbitrator, if the commission does not act as such, shall be considered a hearings examiner under the Montana Administrative Procedure Act.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4018 Authority of Arbitrator

(1) The arbitrator will exercise all authority reasonable and necessary for the conduct of the arbitration subject to the provisions of this subchapter, the commission's procedural order on arbitration, and other provisions of law. If the commission is not the arbitrator, the arbitrator appointed by the commission shall have all the powers and duties of hearings examiners as set forth in the Montana Administrative Procedure Act.

(2) If the commission acts as the arbitrator, it may appoint a staff member to act as a hearings officer for procedural matters. The hearings officer may conduct scheduling and procedural conferences and decide procedural issues as necessary and reasonable to promote the speedy resolution of arbitration proceedings as mandated by the 1996 Act.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4019 Prehearing Conferences

(1) Within 10 days after the respondent files its response to the petition for arbitration, the arbitrator or hearings officer will hold a conference to discuss a procedural schedule for the proceeding that conforms to the deadlines set forth in section 252 of the 1996 Act. The parties and the arbitrator will also attempt to identify, simplify and limit the issues to be resolved and discuss the scope and timing of discovery. The arbitrator or hearings officer may schedule other prehearing conferences as reasonable and necessary to ensure a timely resolution of open issues as required by the 1996 Act.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4020 Other Responsibilities of the Arbitrator

(1) The arbitrator must limit the arbitration process to the resolution of issues raised by the negotiating parties in the petition and response. The arbitrator, in resolving these issues must ensure that their resolution meets the requirements of the 1996 Act.

(2) The arbitrator shall resolve each issue raised by the parties by imposing appropriate conditions as required to implement section 252(b) (4) (C) of the 1996 Act upon the parties to the agreement, and shall conclude the resolution of any unresolved issues not later than nine months after the date on which the LEC received the request to negotiate. If any party refuses or fails unreasonably to respond on a timely basis to any reasonable request from the arbitrator, the arbitrator may proceed on the basis of the best information available to the arbitrator from whatever source derived.

(3) In resolving open issues by arbitration and imposing conditions upon the parties to the agreement, the arbitrator shall:

(a) ensure that such resolution and conditions meet the requirements of section 251 of the 1996 Act;

(b) establish any rates for interconnection, services or network elements according to the pricing standards in section 252(d) of the 1996 Act as enacted on February 8, 1996; and

(4) The arbitrator may decide whether any written statements shall be required from the parties or whether any written statements, pleadings or motions other than the petition and response shall be required from the parties or may bepresented by them and shall fix the period of time for submission of suchstatements, pleadings or motions.

(5) The arbitrator shall supervise discovery, including the setting of limits on the timing of discovery and the number of questions.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4030 Intervention and Participation by Interested Parties

(1) The addition of other parties to an arbitration would jeopardize the commission's ability to complete the arbitration within the limited time frame imposed by the 1996 Act and ARM 38.5.4020 by lengthening the proceeding and detracting from the arbitrator's ability to move forward expeditiously on the merits of the petition for arbitration. Intervention shall be limited to the Montana consumer counsel, the sole statutory intervenor, who shall have the rights and duties as directed under Montana law. The Montana consumer counsel, if he requests intervention, shall intervene as early as practicable and no later than 25 days after the petitioner files a request for arbitration.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4033 Proprietary Information

(1) Trade secret and proprietary information will be treated as provided for in the commission's rules of practice and procedure. The arbitrator or hearings officer may, at any time during the proceeding, enter a protective order to govern the treatment of information of a trade secret nature. Parties should request a protective order at the earliest possible time and may file a motion for protective order with the petition or response.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4036 Consolidation of Arbitratton Proceedings

(1) The commission may, to the extent practical, consolidate multiple proceedings for rural telephone company exemptions, eligible telecommunications carrier designations, arbitrations, and removal of barriers to entry in order to reduce administrative burdens on telecommunications carriers, other parties and the commission in carrying out its responsibilities under the 1996 Act. The commission may consolidate multiple arbitration proceedings with consent of all the parties.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4039 Arbitration Hearing

(1) The arbitrator may require the parties to substitute closing arguments in lieu of post-hearing briefing. If briefs are submitted, the arbitrator may require filing of briefs as reasonable and necessary to allow for sufficient time to issue the recommended arbitration decision.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4042 Motions

(1) The filing of motions will not relieve a party of any requirements during the arbitration proceeding and must not delay the proceeding. The arbitrator will act promptly to consider all motions so as not to prejudice any party to the proceeding.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4048 Arbitrator's Decision

(1) Unless the commission is the arbitrator the arbitrator shall issue a recommended decision on all the issues submitted for arbitration no later than 30 days before the date established for the commission's final decision on arbitration.

(2) The arbitrator's recommended decision shall set forth the recommended resolution of each issue submitted for arbitration and provide a recommended schedule for implementation by the parties. The decision shall provide a written rationale for each recommended resolution, including any necessary findings and relevant citations to law or the record.

(3) Parties may file exceptions to the recommended decision and request oral argument with the commission no later than 10 days after the arbitrator issues the recommended decision.

(4) The issues presented shall be resolved to ensure compliance with the requirements of sections 251 and 252 (d) of the 1996 Act, applicable FCC regulations, relevant state law and applicable rules or orders of the commission.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4051 Other Duties of Incumbent Local Exchange Carriers

(1) Within 10 days after receiving a petition for arbitration, the incumbent LEC shall provide notification of the filing in writing to all other telecommunications carriers requesting interconnection, services or network elements from it and with whom it has not negotiated a binding agreement.

(2) Upon filing a petition for approval of a negotiated or arbitrated agreement, the incumbent LEC shall provide notification of the filing in writing to all other telecommunications carriers requesting interconnection, services or network elements from it pursuant to section 252 of the 1996 Act.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4054 Approval of Negotiated and Arbitrated Agreements; Preexisting Agreements

(1) An interconnection agreement shall be submitted to the commission for approval under section 252 (e) of the 1996 Act after the issuance of the final arbitration order by the commission. The time for submitting the agreement shall be determined by the arbitrator on a case-by-case basis. The nine month time line for arbitration under section 252(b) (4) (C) and ARM 38.5.4020 is not applicable to the approval process.

(2) Petitions for approval of agreements and all relevant accompanying documents shall be filed with the commission in the manner provided for in ARM 38.5.4012. Along with the petition for approval of an arbitrated agreement, the parties shall file a proposed notice of the application and opportunity to comment for the commission to serve on its general telecommunications mailing list. Any party to the agreement may submit a petition for approval. Unless filed jointly by all parties, the petition for approval and any accompanying materials should be served on the other signatories by delivery on the day of filing. Any filing not containing the required materials will be rejected and must be refiled when complete. The statutory time lines shall be deemed not to begin until the petition for approval has been properly filed.

(3) Documents which must accompany the petition to constitute proper filing include the following:

(a) In the case of negotiated agreements:

(i) a complete copy of the signed agreement, including any attachments or appendices;

(ii) a brief or memorandum summarizing the main provisions of the agreement, setting forth the party's position on whether the agreement should be adopted or modified, including a statement on why the agreement does not discriminate against nonparty carriers, is consistent with the public interest, convenience, and necessity, and is consistent with applicable state law requirements; and

(iii) a proposed order containing findings and conclusions.

(b) In the case of arbitrated agreements:

(i) a complete copy of the signed agreement, including any attachments or appendices;

(ii) a brief or memorandum summarizing the main provisions of the agreement, setting forth the party's position on whether the agreement should be adopted or modified; a separate explanation of the manner in which the agreement meets each of the applicable specific requirements of section 251 of the 1996 Act, including the FCC regulations there under, and applicable state requirements;

(iii) complete and specific information to enable the commission to make the determinations required by section 252 (d) of the 1996 Act regarding pricing standards, including supporting information on the cost basis for rates on interconnection and network elements and the profit component of the proposed rate, transport and termination charges, and wholesale prices; and

(iv) a proposed order containing findings and conclusions.

(c) In the case of combined agreements containing both arbitrated and negotiated provisions, the request for approval shall include the foregoing materials as appropriate, depending on whether a provision is negotiated or arbitrated. The memorandum or brief should clearly identify which sections were negotiated and which arbitrated.

(4) The commission interprets the 1996 Act to require approval of agreements as follows:

(a) arbitrated agreements must be approved within 30 days after filing the executed agreement;

(b) negotiated agreements must be approved within 90 days after filing the executed agreement; and

(c) agreements containing both arbitrated and negotiated terms must be approved within 30 days after filing the executed agreement.

(5) Commission review of agreements:

(a) Upon the filing by one or more parties of an agreement adopted under the arbitration process, the parties involved in the arbitration may file written comments supporting or opposing the proposed agreement within 10 days. Responses to the comments may be filed within five days following the filing of the comments.

(i) The commission will review agreements adopted through arbitration and will approve or reject an agreement by issuing an order with written findings as to any deficiencies within 30 days after filing of the agreement.

(ii) The commission may only reject an arbitrated agreement if it finds that the agreement does not meet the requirements of section 251 of the 1996 Act, including FCC regulations under section 251 or the standards set forth in section 252 (d) of the 1996 Act.

(b) Upon the filing of an agreement resulting from voluntary negotiations, including mediation, interested persons may file written comments supporting or opposing the proposed interconnection agreement within 21 days following notice by the commission. Responses to the comments may be filed within 10 days following the filing of comments.

(i) The commission will review agreements resulting from voluntary negotiations and will approve or reject an agreement by issuing an order with written findings as to any deficiencies within 90 days after filing of the agreement. If the commission has not issued such order within 90 days, the agreement shall be deemed approved on the 91st day.

(ii) The commission may reject the agreement if it finds that the agreement or any portion of the agreement, discriminates against a telecommunications carrier not a party to the agreement; or if it finds the implementation of the agreement or portion is not consistent with the public interest, convenience, and necessity.

(6) The commission may review requests for approval and comments submitted pursuant to those requests at a public meeting and may schedule oral arguments to be presented at a public meeting. The commission does not interpret the approval process required by the 1996 Act as requiring a contested case type hearing. However, if reasonable or necessary, the commission may hold a hearing under the contested case procedures outlined in the Montana Administrative Procedure Act.

(7) Within 30 days of the commission's rejection of an agreement resulting from negotiation or arbitration or both, the parties may:

(a) file an application for reconsideration for the commission's consideration; or

(b) resubmit the agreement for commission approval if the parties have remedied the deficiencies found by the commission in its order.

(8) The commission may approve a negotiated interconnection agreement even if the terms of the agreement do not comply with the requirements of this subchapter as long as the agreement fully complies with section 252 (c) of the 1996 Act.

(9) The commission may not approve a BOC statement of generally available terms and conditions unless such statement complies with sections 251 and 252(d) of the 1996 Act. In approving such statement, the commission shall consider applicable state law and commission rules, including requiring compliance with telecommunications service quality standards or requirements.

(a) Within 60 days after a BOC statement of generally available terms and conditions is filed with the commission, the commission shall:

(i) complete the review of the statement, including reconsideration of the statement (unless the BOC agrees to an extension of the period for the review) ; or

(ii) permit the statement to take effect.

(b) If the commission has permitted the statement of generally available terms and conditions to take effect pursuant to ARM 38.5.4054(9) (a) (ii) , the commission may continue its review of such statement and may approve or reject the statement upon completion of its review.

(10) All interconnection agreements between an incumbent LEC and another telecommunications carrier, including those negotiated before February 8, 1996, shall be submitted by the parties to the commission for approval pursuant to section 252 (e) of the 1996 Act. Interconnection agreements negotiated before February 8, 1996, between class A carriers as defined in FCC regulations, shall be filed with the commission by June 30, 1997, unless the commission determines that earlier submission is necessary and reasonable in carrying out its functions under the 1996 Act.

(a) If the commission approves a preexisting agreement, it shall be made available to other parties upon request.

(b) The commission may reject a preexisting agreement on the grounds that it is inconsistent with the public interest or for other reasons set forth in section 252 (e) (2) of the 1996 Act.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4055 Approved Agreements

(1) The commission retains continuing jurisdiction and will maintain regulatory oversight of the approved interconnection agreements to the extent permitted by law.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4065 Unbundling of Local Exchange Network Elements

(1) Each incumbent LEC and interconnecting facilities based new exchange carrier shall unbundle its local network elements. Network elements shall be unbundled at technically feasible points upon the bona fide request of a LEC. The requirement to fulfill all bona fide requests for the purchase of unbundled network elements by other LECs applies equally to incumbent LECs and new exchange carriers.

(2) At a minimum LECs shall unbundle the local loop, network interface device, switching, transport, databases and signaling systems. Unbundling of networks shall include access to necessary customer databases, such as, but not limited to, 9-1-1 databases, billing name and address, directory assistance, local exchange routing guide, line information database and 800 databases. Unbundling shall also include operator services, directory assistance, and signaling system functionalities. If a LEC receives a bona fide request for the purchase of a network element, the LEC receiving the request for unbundling shall have the burden of proving that the provision of the network element is not technically feasible.

(3) The commission may decline to unbundle a network element if it determines the network element is proprietary and the proposed telecommunication service can be provided through the use of other, nonproprietary unbundled network elements.

(4) Unbundled network element rates, terms and conditions should be established through negotiation between LECs upon receipt of a bona fide request for interconnection or through arbitration. A LEC may, however, provide unbundled network element rates, terms and conditions through tariffs or other arrangements approved by the commission. The commission, at its discretion, may order the filing of tariffs establishing unbundled network element rates, terms and conditions.

(5) Once an unbundled network element has been made available to an interconnecting carrier, on a contractual basis, the providing carrier shall make that unbundled network element available for purchase for all similar requests to the extent that technical compatibility exists between the LEC and the interconnecting carrier.

(6) Unbundled network elements shall be priced at cost based rates pursuant to the pricing standards in section 252 (d) of the 1996 Act as enacted on February 8, 1996.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 651, Eff. 2/11/97.

Mont. Admin. R. 38.5.4068 Exemptions, Suspensions and Modifications from Interconnection Requirements

(1) The incumbent LEC interconnection requirements in section 251(c) of the 1996 Act shall not apply to a rural LEC until:

(a) the rural LEC has received a bona fide request for interconnection, services or network elements; and

(b) the commission terminates the exemption according to (2) .

(2) The party making a bona fide request of a rural LEC for interconnection, services, or network elements shall submit a notice of its request to the commission. The commission shall conduct an inquiry to determine whether to terminate the exemption. Within 120 days of receiving notice of the request, the commission shall terminate the exemption if the request is not unduly economically burdensome, is technically feasible, and is consistent with 47 USC 254 as it existed on February 8, 1996, except subsections (b) (7) and (c) (1) (D) . Upon termination of the exemption, the commission shall establish an implementation schedule for compliance with the request that is consistent in time and manner with the federal communications commission's regulations.

(3) A LEC with fewer than 2 percent of the nation's subscriber lines installed in the aggregate nationwide may petition the commission for a suspension or modification of the application of a requirement or requirements of section 251(b) or (c) of the 1996 Act to telephone exchange service facilities specified in the petition. The commission shall grant the petition for the suspension or modification to the extent and for the duration that the commission determines is necessary

(a) to avoid a significant adverse economic impact on users of telecommunications services generally;

(b) to avoid imposing a requirement that is unduly economically burdensome; or

(4) The commission shall act upon any petition filed under (3) above within 180 days after receiving the petition. Pending such action, the commission may suspend enforcement of the requirement to which the petition applies with respect to the petitioning carrier or carriers.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4071 Telephone Number Portability

(1) All facilities-based LECs shall provide number portability so that end users may retain the same telephone number as they change from one service provider to another as long as they remain at the same location or if moving, retain the same NXX code.

(2) A facilities-based LEC not offering permanent number portability shall provide interim number portability. Interim number portability shall be provided using remote call forwarding, direct inward dialing or any other comparable and technically feasible method. Prices for interim number portability using remote call forwarding or direct inward dialing shall be set at a level that recognizes the relative inferior quality of the service.

(3) Pursuant to FCC regulations, beginning January 1, 1999, all facilities-based LECs that control the provision of numbers shall provide permanent number portability within six months after receiving a specific request by another telecommunications carrier.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4074 Minimum Service Standards

(1) All regulated LECs shall comply with this commission's Telecommunication Service Standards, ARM 38.5.3301 through 38.5.3371, as these currently exist and as may be modified by this commission.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Mont. Admin. R. 38.5.4085 Severability

(1) If any rule in this subchapter is held invalid or any part of any rule in this subchapter is held invalid, the remainder or its application to other situations or person(s) , shall not be affected.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102 and 69-3-201, MCA
History: NEW, 1997 MAR p. 319, Eff. 2/11/97.

Subchapter 38.5.41 IntraLATA Equal Access Implementation

Mont. Admin. R. 38.5.4101 Scope and Purpose of Rules

(1) This subchapter governs the implementation of intraLATA dialing parity in Montana. This subchapter shall be construed to secure the just, speedy and inexpensive determination of every action. All matters before the Montana public service commission relating to dialing parity implementation on or after the date of adoption of these rules shall be governed by this subchapter.

(2) The purpose of this subchapter is to provide guidelines and procedures for the commission to carry out its duties pursuant to the Federal Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996) . The 1996 Act imposes on all local exchange carriers the duty to provide dialing parity to competing providers of telephone toll service. 47 USC 251(b) (3) . The commission imposes this subchapter for competition within intraLATA areas in order to encourage competitive entry, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers while ensuring that the rates charged and services rendered by telecommunications services providers are just and reasonable.

History

Authorizing statute(s): 69-3-103, 69-3-822, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-834, MCA
History: NEW, 1998 MAR p. 983, Eff. 4/17/98.

Mont. Admin. R. 38.5.4102 Definitions

(1) "Bona fide request," for purposes of this subchapter, is a written request submitted by a telecommunications carrier, other than the primary intraLATA toll carrier, to a local exchange carrier (LEC) for intraLATA equal access presubscription service in an exchange or exchanges.

(2) "IntraLATA equal access" or "intraLATA dialing parity" means that all toll carriers are able to provide telecommunications services in such a manner that customers have the ability to route intraLATA calls automatically without the use of any access code, to the telecommunications services provider of the customer's designation from among two or more telecommunications services providers, including the incumbent local exchange carrier. From a customer perspective, this means that the local exchange carrier shall provide all telecommunications carriers operating in an intraLATA equal access presubscription office with dialing arrangements and other service characteristics that are equivalent in type and quality to that provided to the primary toll carrier in its provision of toll service.

(3) "Letter of agency" or "letter of authorization" means an authorization which meets the requirements of ARM 38.5.3802 and 69-3-1303 , MCA.

(4) "Local exchange carrier" means any carrier that is engaged in the provision of telephone exchange service or exchange access, but does not include carriers that provide commercial mobile radio service under 47 USC 332(c) unless the Federal Communications Commission (FCC) makes a specific finding that such service should be included in the definition of local exchange carrier.

(5) "Presubscription" is customer preselection of the carrier to handle 1+/0+ toll calls without having to dial an access code (i.e. 10XXX or 101XXXX) .

(6) "Primary toll carrier" means the current provider of intraLATA long distance service. In certain instances, the primary toll carrier is the current local exchange carrier.

(7) "Primary (or presubscribed) interexchange carrier" or "PIC" means the telecommunications carrier with whom a customer may presubscribe to provide 1+/0+ toll service without the use of access codes, following equal access presubscription implementation.

(8) "Registered local exchange carrier" means a carrier that has registered with the commission to provide local exchange service within Montana using its own facilities or those of another carrier or entity.

(9) "2-PIC" is the equal access presubscription option that affords customers the opportunity to select one telecommunications carrier for all interLATA 1+/0+ toll calls, and at the customers' options, to select another telecommunications carrier for all intraLATA 1+/0+ toll calls.

History

Authorizing statute(s): 69-3-103, 69-3-822, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-834, MCA
History: NEW, 1998 MAR p. 983, Eff. 4/17/98.

Mont. Admin. R. 38.5.4103 Equal Access Presubscription Implementation

(1) US West Communications, Inc. is required to implement intraLATA equal access presubscription in its Montana territory when it begins providing in-region interLATA services pursuant to 47 USC 271 or on February 8, 1999, whichever is earlier. US West Communications, Inc. shall file an intraLATA dialing parity implementation plan consistent with the requirements of ARM 38.5.4120. Any grant of authority to US West Communications, Inc. to provide in-region interLATA services pursuant to 47 USC 271 will not affect the timing requirements applied to other carriers in the provision of intraLATA dialing parity. None of the provisions of (2) below apply to US West Communications, Inc.

(2) Other local exchange carriers shall, either in response to a bona fide request or on their own initiative, provide intraLATA dialing parity where technically and economically feasible using the 2-PIC method. A carrier that begins providing facilities-based local services after adoption of these rules must have on file a commission-approved plan for the implementation of intraLATA equal access before the carrier begins providing local exchange service.

(a) Within six months after receipt of a bona fide request pursuant to (2) , local exchange carriers shall complete implementation of intraLATA dialing parity.

(b) Local exchange carriers may negotiate implementation schedules that differ from the requirements in this rule with the agreement of all interexchange carriers that make bona fide requests pursuant to (2) within 90 days of the first bona fide request.

(c) A local exchange carrier may petition the commission for a waiver of the requirement to provide intraLATA dialing parity consistent with (2) on the grounds that a request it has received is not bona fide, that compliance is unduly economically burdensome or is technically infeasible, and that the waiver is consistent with the public interest. The commission, after notice and opportunity for hearing, may grant a waiver upon such a showing.

(d) A local exchange carrier may petition for an extension of the timing requirements of (2) on the grounds that equal access presubscription implementation cannot reasonably be provided in the given exchange(s) within the required time frame. The commission, after notice and opportunity for hearing, may grant such extension(s) for a reasonable period of time upon such a showing.

(e) A local exchange carrier may require a performance bond be established, in an amount approved by the commission, which would be forfeited by the requesting company in the event such company fails to provide intraLATA toll services to the particular exchange within the six months following implementation of equal access and the commission finds good cause exists for forfeiture.

History

Authorizing statute(s): 69-3-103, 69-3-822, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-834, MCA
History: NEW, 1998 MAR p. 983, Eff. 4/17/98.

Mont. Admin. R. 38.5.4104 Customer Education and Presubscription Procedures

(1) In exchanges with existing interLATA dialing parity, the local exchange carrier shall provide written information to customers, at least 30 days prior to its scheduled implementation, describing intraLATA dialing parity and explaining presubscription procedures. Written information provided to customers pursuant to this rule shall advise customers with existing interLATA toll freezes on their account that their freeze will also apply to their existing intraLATA toll carrier until they take action to change it. Any customer commencing service after that mailing, but before implementation of equal access presubscription, shall also receive a copy of the written information from the local exchange carrier providing service.

(2) In exchanges without interLATA equal access presubscription, the local exchange carrier shall furnish customers with information at least 60 days prior to implementation of dialing parity. The information must provide clear directions and forms to allow customers to presubscribe to their selected primary intraLATA carrier.

(3) Customers who commence service after the initial intraLATA equal access presubscription implementation is completed in their end office shall be informed of their carrier selection options at the time that service is requested and may select both their primary interLATA and intraLATA carriers or be assigned no PIC status and be required to use access codes to place toll calls until a PIC(s) is selected.

(4) Informational materials, forms and scripts developed for use in compliance with this rule shall be complete, clear, and unbiased. US West Communications, Inc. shall file these materials, forms, and scripts with the commission as part of its implementation plan pursuant to ARM 38.5.4120. For implementation of presubscription in all other exchanges, the local exchange carriers or primary toll carriers shall file these materials, forms, and scripts with the commission not more than 60 days after the receipt of a bona fide request, denial of waiver, or the expiration of the waiver, for intraLATA equal access presubscription so that they can be reviewed by the commission prior to commission approval or modification. The carrier shall promptly make any changes required by the commission before using the materials, forms or scripts.

History

Authorizing statute(s): 69-3-103, 69-3-822, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-834, MCA
History: NEW, 1998 MAR p. 983, Eff. 4/17/98.

Mont. Admin. R. 38.5.4105 Notice and Implementation

(1) Not more than 15 days after receipt of a bona fide request for implementation of intraLATA dialing parity, unless an implementation waiver is requested consistent with ARM 38.5.4103(2) (c) , the local exchange carrier or primary toll carrier shall provide notice of such request to the commission. The notice shall include information concerning the scheduled implementation dates as well as the ordering procedures, terms and conditions for an interexchange carrier to participate. If the local exchange carrier intends to seek a waiver, the notice shall include a brief description of the rationale for such. A copy of the notice shall be served on the person requesting dialing parity and on the Montana Consumer Counsel. The commission will provide notice using its general procedures.

(2) Not more than 45 days after receipt of a bona fide request for implementation of intraLATA equal access, if no waiver has been sought, or, not more than 45 days after filing its dialing parity implementation plan in the case of US West Communications, Inc., the local exchange carrier or primary toll carrier shall make available to all registered carriers that intend to offer intraLATA equal access presubscription a complete list, upon request, which may be provided electronically, of the primary toll carrier's customers by name, telephone number and address. The primary toll carrier shall also update the list upon request. Any charges for such lists shall be cost-based and nondiscriminatory. The registered carrier shall use such lists only for purposes of presubscription solicitation exclusively to its own end user subscribers of record and no longer than 180 days after implementation of dialing parity.

History

Authorizing statute(s): 69-3-103, 69-3-822, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-834, MCA
History: NEW, 1998 MAR p. 983, Eff. 4/17/98.

Mont. Admin. R. 38.5.4110 Balloting

(1) In exchanges with existing interLATA dialing parity, balloting will not be used to determine each customer's primary intraLATA carrier.

(2) In exchanges where interLATA dialing parity is not in place prior to receipt of a bona fide request for intraLATA equal access presubscription, balloting for both interLATA and intraLATA equal access presubscription shall be conducted concurrently. The balloting shall be carried out in accordance with the requirements for interLATA equal access presubscription established by the Federal Communications Commission in CC Docket 83-1145, Phase I.

(3) Interexchange carriers intending to be included in all informational materials of ballots furnished to customers in advance of initial implementation of intraLATA and interLATA equal access presubscription to be implemented concurrently in any exchange shall advise the local exchange carrier or primary toll carrier in writing at least 90 days prior to the scheduled implementation date. The local exchange carrier or primary toll carrier shall then include the interexchange carrier in all materials and forms listing providers.

History

Authorizing statute(s): 69-3-103, 69-3-822, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-834, MCA
History: NEW, 1998 MAR p. 983, Eff. 4/17/98.

Mont. Admin. R. 38.5.4111 Charges

(1) No charge shall be imposed for a customer's initial selection of a primary intraLATA carrier. Each local exchange carrier shall allow customers to change their selection of a primary intraLATA carrier one time only at no charge within 90 days following implementation of intraLATA dialing parity in an exchange. Any charges for subsequent changes shall be the same as those imposed for changing interLATA carriers.

(2) In cases in which customers change both their intraLATA PIC and their interLATA PIC at the same time to either the same carrier or to separate carriers, only one of the following PIC change charges shall apply:

(a) the associated intraLATA PIC change charge;

(b) the associated interLATA PIC change charge; or

(c) the total of one-half of the associated intraLATA PIC change charge plus one-half of the associated interLATA PIC change charge.

(i) Each one-half charge may be shown separately on the customer bill.

(3) No PIC change order shall be submitted to a local exchange carrier unless and until the order has been confirmed in accordance with 69-3-1303 , MCA and the rules adopted by the commission in ARM 38.5.3801 through 38.5.3810.

History

Authorizing statute(s): 69-3-103, 69-3-822, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-834, MCA
History: NEW, 1998 MAR p. 983, Eff. 4/17/98; AMD, 2006 MAR p. 232, Eff. 1/27/06.

Mont. Admin. R. 38.5.4112 Scope of Intralata Equal Access Presubscription

(1) 0-, N11 type calls (e.g. 411, 611 and 911) , and 976 calling will continue to be processed by the local exchange carrier following the implementation of intraLATA equal access presubscription in any exchange. IntraLATA 0+ and 1+ calls will be routed to the customer's primary intraLATA carrier. Calls using dialing protocols such as 500, 700, 800 or 900 to route them to the appropriate carrier are not subject to intraLATA presubscription.

(2) Customers' intraLATA calling shall continue to be provided by their current primary intraLATA carrier until the customer selects a different primary intraLATA carrier.

(3) The application of intraLATA equal access presubscription shall extend to semi-public and public payphones within the converting exchanges and the payphone location provider shall be responsible for the selection of the intraLATA PIC(s) for payphones.

History

Authorizing statute(s): 69-3-103, 69-3-822, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-834, MCA
History: NEW, 1998 MAR p. 983, Eff. 4/17/98.

Mont. Admin. R. 38.5.4115 Equal Access Presubscription Cost Recovery

(1) Each local exchange carrier may recover through its switched access rates the additional costs it incurs to provide intraLATA equal access presubscription. Such charge shall be calculated on an annual basis by dividing the intraLATA equal access presubscription costs incurred by the local exchange carrier by the projected annual total of all switched intraLATA originating minutes of use (including the local exchange carrier's) to arrive at a per minute of use rate. The per minute of use rate can be recovered on switched intraLATA minutes carried by interexchange carriers through the local exchange carrier's switched access rates. Local exchange carriers must impute the equal access implementation costs attributable to its own intraLATA minutes of use in its end user rates. Costs recoverable by the local exchange carrier for the implementation of intraLATA equal access presubscription include initial incremental expenditures for hardware and software related to the provision of equal access presubscription that would not be required to upgrade the switching capabilities of the office absent the provision of equal access presubscription. Those costs also may include administrative costs incurred in the approved customer education and presubscription efforts, training costs related to intraLATA dialing parity, modifications to information billing systems to accomplish intraLATA dialing parity, and the cost of capital for the duration of the recovery period.

(2) The costs of intraLATA equal access presubscription implementation shall be recovered over a three-year period, or at the option of the local exchange carrier and approval of the commission, some costs may be recovered over the three-year period and some costs may be expensed in the current year if they can be reasonably expected to occur only in the first year.

(3) The costs of intraLATA equal access presubscription implementation shall be recovered from all providers of intraLATA toll service in the exchange(s) through a charge and imputation of such charge applicable to all switched intraLATA minutes of use originating in the exchange(s) which are subject to intraLATA presubscription.

(4) The cost recovery process shall use periodic true-ups, based upon actual local exchange carrier incurred presubscription implementation costs and actual traffic volumes subject to the presubscription surcharge, to ensure against either overcollection or undercollection of recoverable costs.

History

Authorizing statute(s): 69-3-103, 69-3-822, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-834, MCA
History: NEW, 1998 MAR p. 983, Eff. 4/17/98.

Mont. Admin. R. 38.5.4116 Safeguards

(1) In order to insure that the development of intraLATA competition will not be impeded following intraLATA equal access presubscription the following practices shall be observed by the local exchange carrier toll service provider:

(a) Customers who initiate service in an exchange following the implementation of presubscription should be provided with information concerning their carrier selection options at the time they sign up for service. The material and procedures employed in this process must be competitively neutral and approved by the commission prior to their use.

(b) When handling customer-initiated contacts regarding local service matters such as a change in service, local exchange carrier business office personnel may not engage in promotional efforts for the local exchange carrier's toll service offerings.

(c) When a customer contacts a local exchange carrier's business office to change their PIC from the local exchange carrier to a competitor, the transaction must be handled in a neutral manner (i.e., in the same manner as a PIC change from one competitor to another) .

(d) Bills rendered to the customer shall identify the customer's presubscribed carrier(s) in a neutral manner.

(e) Letters of authorization (LOAs) submitted by a competitor prior to intraLATA presubscription implementation shall be accepted no earlier than 60 days prior to implementation. In case of multiple submission of LOAs, the last dated LOA shall be processed. LOAs must conform to ARM 38.5.3801 through 38.5.3810 and 69-3-1304 , MCA.

(f) The local exchange carrier shall assume that customers who have an interLATA PIC freeze on their account prior to implementation of intraLATA presubscription wish to have the freeze extend to intraLATA toll service following intraLATA presubscription implementation.

History

Authorizing statute(s): 69-3-103, 69-3-822, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-834, MCA
History: NEW, 1998 MAR p. 983, Eff. 4/17/98.

Mont. Admin. R. 38.5.4120 Dialing Parity Plans

(1) Local exchange carriers shall file their toll dialing parity plans carrying out the intraLATA equal access presubscription implementation rules set forth in ARM 38.5.4101 through 38.5.4116. US West Communications, Inc. shall file its implementation plan six months in advance of its expected entry into the interLATA market and no later than August 8, 1998. All other local exchange carriers shall file their implementation plans within 60 days of receiving a bona fide request for intraLATA equal access presubscription or within 60 days of termination of waiver, whichever is later. Interested parties who wish to comment upon a local exchange carrier's toll dialing parity plan shall have a reasonable opportunity to comment on the plan.

(2) The local exchange carrier's toll dialing parity plan must describe how ARM 38.5.4101 through 38.5.4116 will be carried out and include the following:

(a) detailed information explaining how and when carriers will be notified of the local exchange carrier's implementation schedule;

(b) include the language to be used in, and the manner of distribution of, the customer notification letter;

(c) describe the local exchange carrier's anticipated cost of implementation, including the local exchange carrier's specific intraLATA presubscription costs, the vehicle that the local exchange carrier intends to use to recover implementation costs, and the cost recovery time frame; and

(d) describe the proposed incumbent local exchange carrier business office practices and sample scripts that demonstrate how local exchange carrier business office personnel will handle customer-initiated business office contacts with the incumbent local exchange carrier in its role as a local exchange service provider in a competitively neutral manner following implementation.

(3) The implementation plan must provide notice to registered interexchange carriers operating in Montana of the implementation schedule no less than 120 days prior to the actual implementation date. The notice must include the implementation schedule, terms and conditions of participation, and ordering procedures. Following such notification, carriers wishing to participate in the process must respond to the local exchange carrier within 30 days. Only registered telecommunications providers may participate in the implementation.

History

Authorizing statute(s): 69-3-103, 69-3-822, MCA
Implementing statute(s): 69-3-102, 69-3-201, 69-3-834, MCA
History: NEW, 1998 MAR p. 983, Eff. 4/17/98.

Subchapter 38.5.42 Registration Requirements and Obligations of Service Providers, Billing Aggregators, and Billing Agents

Mont. Admin. R. 38.5.4201 Registration Requirements and Obligations of Service Providers, Billing Aggregators, and Billing Agents

(1) A service provider may not offer a product or service to a customer, the charge for which appears on the bill of a billing agent, nor forward such a charge to a billing agent, unless the service provider is registered with the commission pursuant to this rule.

(2) A billing aggregator may not forward to a billing agent charges for a service or product offered by a service provider unless:

(a) the billing aggregator is registered with the commission pursuant to this rule; and

(b) the service provider is properly registered pursuant to these rules.

(3) A billing agent may not directly bill on behalf of a service provider or billing aggregator who is required to be registered, and who is not properly registered, under this rule.

(a) the commission will add new registrants to its list of service providers and billing aggregators within two business days of the effective date of the registration and said list will be posted to the commission's internet website.

(b) the commission will remove from its list within two business days of the revocation being final registrants whose registration has been revoked.

(c) a billing agent that directly bills on behalf of a service provider that has not properly registered with the commission must remove the charge from the customer's bill and will be liable to the customer for reimbursement of charges paid by the customer, subject to the limitations of ARM 38.5.3910.

(4) Each billing aggregator shall submit to the commission no later than April 1 of each year a list of service providers and other entities for which the billing aggregator provides billing services. The billing aggregator's initial list will be submitted when the billing aggregator completes the registration form. The billing aggregator's annual list of service providers shall include:

(a) the name and address of the service provider and every name under which the service provider's products will be billed by the aggregator; and

(b) a signed and notarized statement that the billing aggregator has verified that each service provider on the list is registered with the commission.

History

Authorizing statute(s): 69-3-1305, 69-3-1308, 69-3-1309, 69-3-1310, 69-3-1311, 69-3-1315 and 69-3-1316, MCA
Implementing statute(s): 69-3-1304, MCA
History: NEW, 2003 MAR p. 2085, Eff. 9/26/03.

Mont. Admin. R. 38.5.4202 Registration Procedures for Service Providers and Billing Aggregators

(1) Billing aggregators and service providers must register on a form provided by the commission that is notarized and signed by two officers of the applicant. A copy of the application form is available from the commission or on the commission's internet website.

(2) Each applicant must file an original application, two paper copies and a copy in an electronic format specified by the commission.

(3) The applicant shall inform the commission of any change in the information provided in the application during the pendency of the application.

(4) When correspondence sent by the commission to a registered billing aggregator or service provider by mail or electronic mail to the mailing and electronic mailing addresses provided by the registrant is returned as undeliverable, the registrant will be removed from the list of registered providers and will no longer be registered. The commission will notify all registered billing aggregators and telecommunications carriers of the removal of the billing aggregator's or service provider's registration within two business days of the removal.

(5) The commission may reject a registration request if the commission finds that:

(a) the application is incomplete and the applicant does not take reasonable steps to provide the missing information; or

(b) the applicant has knowingly misrepresented or omitted a material fact on the application.

(6) After notice and an opportunity for a hearing, the commission may revoke a registration in accordance with this rule.

(7) The commission may revoke the registration of a service provider who has:

(a) knowingly or repeatedly billed one or more customers for unauthorized service, provided that for the purposes of these rules, a service provider knowingly billed for unauthorized charges if it cannot verify the customer's authorization for such charges, pursuant to these rules; or

(b) engaged in any other false or deceptive billing practices.

(8) The commission may revoke the registration of a billing aggregator who has:

(a) knowingly or repeatedly forwarded the charge for a service or product to a billing agent on behalf of a service provider who was required to be registered with the commission under these rules and who was not registered, provided that:

(i) for purposes of these rules, a billing aggregator acted knowingly if it forwarded a charge and if the service provider's name was not on the commission's list of registered service providers at the time the charge was forwarded to the billing agent; or

(ii) if the service provider's registration had been revoked and properly noticed pursuant to these rules at the time the charge was forwarded to the billing agent; or

(b) engaged in any other false or deceptive billing practices.

(9) The commission shall provide notice of the revocation of a registration under this rule to all registered telecommunications carriers and billing aggregators doing business in Montana within two business days of the revocation becoming final.

History

Authorizing statute(s): 69-3-1305, 69-3-1308, 69-3-1309, 69-3-1310, 69-3-1311, 69-3-1315 and 69-3-1316, MCA
Implementing statute(s): 69-3-1304, MCA
History: NEW, 2003 MAR p. 2085, Eff. 9/26/03.

Subchapter 38.5.43 Montana Energy Impact Assistance Financing

Mont. Admin. R. 38.5.4303 Montana Energy Impact Assistance Financing

(1) If an electric utility applies to the commission to approve a financing order pursuant to the Montana Energy Impact Assistance Act, the electric utility's application to the commission must describe how such financing satisfies or follows from a plan developed pursuant to 69-3-1201 et seq., MCA, and any responsive commission comments.

(2) An application for a Montana Energy Impact Assistance Act financing order must be consistent with the relevant statutory requirements in 69-3-1601 through 69-3-1623, MCA, and include the following minimum filing requirements:

(a) testimony and workpapers providing an estimated schedule for the retirement or replacement of the electric infrastructure or facilities subject to the application;

(b) testimony and workpapers specifying the electric infrastructure or facilities to be retired or replaced, and the effects of the proposed financing on the retirement or replacement, including a description and calculation of the applicable electric infrastructure or facilities' contribution to the electric utility's revenue requirement including operating expenses, taxes, depreciation, rate base, and the return on rate base, plus the effect on the electric utility's cost-tracking adjustment for electricity supply and the applicable reduction to rates upon the inception of the collection of Montana energy impact assistance charges;

(c) testimony and workpapers describing the amount and terms of the proposed securitization, including the Montana energy impact assistance costs and financing costs associated with the retirement or replacement;

(d) testimony and workpapers describing the proposed methodology for allocating the revenue requirement for the Montana energy impact assistance charge among customer classes;

(e) testimony and workpapers describing the nonbypassable Montana energy impact assistance charge required to be paid by customers within the electric utility's service area for the recovery of the Montana energy impact assistance costs;

(f) testimony and workpapers estimating the net present value of electric utility customer savings expected to result if the financing order is issued using a net present value comparison between the costs to customers that are expected to result from the financing of the undepreciated balances of electric infrastructure or facilities with Montana energy impact assistance bonds and the costs that would result from the application of traditional electric utility financing mechanisms to the same undepreciated balances;

(g) testimony and workpapers demonstrating one or more alternative financing scenarios in addition to the preferred scenario contained in the application. The alternative scenarios shall include various bond lengths with sensitivity analyses of associated interest rates, and compare electric utility customer savings under each scenario;

(h) testimony and workpapers describing the proposed billing mechanism to collect the Montana energy impact assistance charges from the electric utility customers, including proposed tariff sheets;

(i) a copy of the proposed Montana energy impact assistance bonds;

(j) testimony and workpapers describing the proposed true up mechanism to adjust for any over/undercollections of Montana energy impact assistance charges;

(k) testimony and workpapers describing the proposed method to remove the applicable electric infrastructure or facilities from the electric utility's revenue requirement, including rate base, upon the inception of the collection of Montana energy impact assistance charges; and

(l) if approval for the use of any remaining Montana energy impact assistance bond proceeds is not requested in the application, testimony providing a general description and timeframe of the electric utility's anticipated use of such proceeds in compliance with 69-3-1623, MCA.

(3) The commission may assess a penalty for violations of 69-3-1616, MCA. A penalty must be reasonable based on the facts and circumstances presented for each violation, including the amount in controversy, and be sufficient to deter future noncompliance. Penalty amounts must be determined after providing parties an opportunity to appear and be heard. Penalties must be in amounts authorized by 69-3-206(1), MCA, and recovered from electric utilities under the procedure required by 69-3-206(2), MCA.

History

Authorizing statute(s): 69-3-1604, MCA
Implementing statute(s): 69-3-1604, MCA
History: NEW, 2022 MAR p. 1087, Eff. 6/25/22.

Subchapter 38.5.60 Electric and Natural Gas Utility Restructuring Consumer Information and Protection

Mont. Admin. R. 38.5.6001 Definitions

(1) "Residential customer" means a residential customer of a distribution utility.

(2) "Small customer" means a residential customer or a small natural gas commercial customer of a distribution utility.

(3) "Small natural gas commercial customer" means a commercial natural gas customer with usage per year on an individual account which averages under 500 dekatherm units (dkts) or 500 mcf (each mcf unit is one thousand cubic feet) or a new commercial customer whose individual account is estimated to average a monthly usage under 500 dkts or mcf per year.

History

Authorizing statute(s): 69-3-1404, MCA
Implementing statute(s): 69-3-1404, MCA
History: NEW, 1999 MAR p. 1233, Eff. 6/4/99; AMD, 2008 MAR p. 575, Eff. 3/28/08.

Mont. Admin. R. 38.5.6002 Verification of Small Customer Choice of Supplier

(1) A supplier may not initiate or effect a change in a small customer's choice of supplier except when the supplier initiating the change has obtained the customer's written authorization in a form that meets the requirements in this rule. The supplier must retain this authorization for at least 12 months from the date of initiation of service.

(2) The letter of authorization shall be a separate document (or an easily separable document) that is delivered to the prospective customer along with the service contract. The letter of authorization shall contain the authorizing language described in (4), the sole purpose of which is to authorize a natural gas supplier to initiate a change in the customer's choice of supplier. The letter of authorization must be signed and dated by the customer who is responsible for payment of the natural gas account.

(3) The letter of authorization shall not be a part of any sweepstakes, contest or similar promotional program.

(4) At a minimum, the letter of authorization must be printed with a readable type of sufficient size to be clearly legible and must contain clear and unambiguous language that confirms:

(a) The customer's billing name and address and each account number to be covered by the change order;

(b) The decision to change the customer's choice of supplier from the current supplier to the prospective supplier;

(d) The customer's understanding that by authorizing a change in supplier he or she authorizes access by that supplier to his or her usage and account information; and

(e) The customer's acknowledgement of receipt of the supplier's service contract and agreement to its terms and conditions.

History

Authorizing statute(s): 69-3-1404, MCA
Implementing statute(s): 69-3-1404, MCA
History: NEW, 1999 MAR p. 1233, Eff. 6/4/99; AMD, 2008 MAR p. 575, Eff. 3/28/08.

Mont. Admin. R. 38.5.6003 Complaints of Unauthorized Supplier Switches

(1) Upon receipt of a complaint alleging an unauthorized switch in a customer's supplier, or from the commission or its staff on behalf of a customer, the supplier that initiated the change shall produce the letter of authorization required by ARM 38.5.6002. If the supplier fails to provide the letter of authorization or if it provides documentation that does not conform to the requirements of ARM 38.5.6002, the supplier change will be deemed invalid.

(2) A supplier which initiates a supplier change without authorization from the customer in accordance with these rules shall issue to the customer full credit or refund the entire amount of such customer's supply charges attributable to the supplier's service for the period during which the unauthorized service was provided. In addition, any charges incurred by the customer to re-establish supply service or to change the customer's supplier after the unauthorized switch shall be refunded or credited to the customer by the unauthorized supplier. The appropriate credit or refund must be issued within a period not to exceed 60 days from the date of the initial complaint from the customer, commission, or staff.

History

Authorizing statute(s): 69-3-1404 and 69-8-403, MCA
Implementing statute(s): 69-3-1404 and 69-8-410, MCA
History: NEW, 1999 MAR p. 1233, Eff. 6/4/99.

Mont. Admin. R. 38.5.6004 Small Customer Service Contract

(1) All rates, terms, and conditions for supply service must be provided to a small customer in a service contract, written in plain language. The service contract must include the letter of authorization required by ARM 38.5.6002 and the letter of authorization must be returned by the customer to the supplier before any supply service is provided. The front page of a service contract shall prominently and clearly disclose in a uniform information label prescribed by the commission and as available on the commission's internet web site:

(a) the length of time the contract will be in effect;

(b) the effective price for supply service, in price per either dekatherm or mcf, whichever billing unit is used by the distribution services provider, for various levels of consumption typical for the customer's customer segment;

(c) whether the price is fixed or variable and, if variable, a general description of the potential range and possible causes of price variations and the pricing formula or index, as applicable; and

(d) the toll-free telephone number for customer inquiries and the hours during which the customer can contact the supplier at that number.

(2) The service contract must include the information required to appear on the information label and:

(a) an explanation of conditions under which the supplier will terminate the supply agreement;

(b) a prominent identification and explanation of any and all charges, fees and penalties; and

(c) a conspicuous disclosure that there is a 3-day grace period during which the customer may rescind the contract without penalty and explicit information how to do so.

(3) No supplier, regulated distribution utility, transmission service provider, energy service provider, metering service provider, billing service provider, or other company or individual involved in the sale or delivery of natural gas, may disclose individual customer information to others without prior written consent from the customer except as provided by commission rule or order.

(4) Small customers shall have a 3-day grace period from the time of entering into a service contract to notify the supplier of termination of the contract without incurring liability for supply services not consumed or taken under the contract. A supplier may not inform the distribution utility of the customer's decision to change suppliers until after the 3-day grace period elapses.

(5) Small customers may terminate a service contract without incurring liability for supply services not consumed or taken under the contract by notifying the supplier that the customer is relocating outside the geographic area served by the supplier, or is moving to a location where the customer is not responsible for payment of the service consumed.

(6) A supplier must notify its affected customers, the commission and the distribution companies in writing at least 60 days prior to ceasing business under an existing license or terminating service to an entire customer segment.

(7) The contract must clearly explain that distribution and transmission charges remain regulated, are not provided by the supplier, and shall identify which entity, the distribution utility or the supplier, will bill the customer for distribution and transmission charges.

(8) Each supplier must provide its service contract to a customer upon request.

(9) At least 60 days prior to the expiration date of the customer's service contract, the supplier must provide written notice to the customer of either:

(a) the existence and operation of an automatic renewal provision present in the customer's contract; or

(b) the need for the customer to affirmatively renew to retain service from the supplier at the end of the contract term.

(10) If the service contract contains an automatic renewal provision, the supplier may not change the terms and conditions of the contract upon the renewal date unless the customer has been provided with written notice of the changes at least 60 days in advance of their effective date and of his or her right to change suppliers rather than renew the contract. With the written notice of contract changes, the supplier must provide the customer a letter of authorization approving the contract changes to return to the supplier. Without a signed letter of authorization, the supplier may not renew the contract.

History

Authorizing statute(s): 69-3-1404, MCA
Implementing statute(s): 69-3-1404, MCA
History: NEW, 1999 MAR p. 1233, Eff. 6/4/99; AMD, 2008 MAR p. 575, Eff. 3/28/08.

Mont. Admin. R. 38.5.6005 Supplier Termination of Small Customer Contract Due to Customer's Nonpayment

(1) A supplier terminating a small customer's service contract because of nonpayment shall provide written notice to the customer and the customer's distribution services provider at least 14 days in advance of termination. The notice of contract termination to the customer must clearly state:

(a) the reasons for termination;

(b) the name, address and telephone number of the supplier representative or department who can address questions concerning the contract termination; and

(2) A supplier's notice to a customer that the supplier is terminating the contract shall inform the customer that a default provider will continue providing the customer's electric or natural gas supply in the event of contract termination.

(3) The notice of contract termination to the customer must be mailed or provided separately from the bill.

(4) The supplier must notify the distribution utility at least one day in advance of the scheduled contract termination date if the customer and the supplier make arrangements which void or otherwise alter the scheduled termination.

History

Authorizing statute(s): 69-3-1404 and 69-8-409, MCA
Implementing statute(s): 69-3-1404 and 69-8-409, MCA
History: NEW, 1999 MAR p. 1233, Eff. 6/4/99.

Mont. Admin. R. 38.5.6006 Bills to Small Customers

(1) If charges for unregulated supply and energy services are combined with regulated charges on a single bill, the unregulated charges must be identified as unregulated and presented as separate line items.

(2) Bills must prominently identify the name of each company for which charges are billed in close proximity to each company's charges. Bills for small customers must provide each company's toll-free telephone number for billing inquiries.

(3) The commission's address and toll-free telephone number for customer complaints must appear on all bills for small customers.

(4) The payment due date must appear on all bills.

(5) Natural gas distribution utilities may enter into agreements with natural gas suppliers for billings and collections. The two companies must establish an efficient method of resolving customer inquiries and disputes. The billing entity must be able to provide the customer with the name, address, and telephone number of an employee or department responsible for customer dispute resolution.

(6) Bills for natural gas services must clearly itemize each service component and the charge associated with each service component, including:

(a) electricity supply;

(b) transmission and distribution;

(i) if charges for transmission and ancillary services are paid by a supplier and passed on to a retail customer in electricity supply charges, the supplier must identify the transmission portion of the charges;

(d) universal system benefits.

(7) Bills must separately subtotal charges for regulated and unregulated services. Bills combining charges for both electric and natural gas services must separate the electricity-related portion of the bill from the natural gas-related portion and separately subtotal the regulated and unregulated charges for each.

(8) Bills must provide the actual cents per mcf/dkt charged to the customer for the customer's usage of natural gas supply for the current billing period, calculated by dividing the total charge for supply service by the customer's usage for the current billing period.

(9) Undesignated partial payments of a bill must be applied first to regulated service, then to service other than regulated service in the percentage of each service provider's charges to the total charges to the customer for services other than regulated service. Regulated service may not be affected by billing disputes over unregulated service or service provided by other companies.

(10) A for-profit affiliate of a cooperative utility that uses a regulated distribution utility's facilities to supply natural gas to customers outside the cooperative utility's distribution service territory must satisfy the billing provisions of this rule.

History

Authorizing statute(s): 69-3-1404, MCA
Implementing statute(s): 69-3-1404, MCA
History: NEW, 1999 MAR p. 1233, Eff. 6/4/99; AMD, 2008 MAR p. 575, Eff. 3/28/08.

Mont. Admin. R. 38.5.6007 Default Supplier

(1) The regulated natural gas distribution utility shall serve as the default supplier in its distribution service territory when a small customer is without supply service because the customer has not selected a competitive supplier or due to contract termination by a natural gas supplier, including termination for nonpayment.

(2) A customer receiving default supply service must remain in that service until his account is cleared with the default supplier. Once a customer's past due account is cleared, the customer may select a competitive service option from an alternative supplier. A default supplier may disconnect service to a customer who has not paid for its distribution services or default natural gas supply services. The deposit and termination rules of the commission apply to a default supplier (see ARM 38.5.1101 through 38.5.1112 and ARM 38.5.1401 through 38.5.1418).

(3) After a competitive bid solicitation, a regulated natural gas distribution utility may contract with a third-party supplier to acquire the necessary natural gas supply to allow the distribution provider to meet its default supplier obligations. The regulated natural gas distribution utility is responsible for ensuring compliance with the commission's deposit and termination rules.

History

Authorizing statute(s): 69-3-1404, MCA
Implementing statute(s): 69-3-1404, MCA
History: NEW, 1999 MAR p. 1233, Eff. 6/4/99; AMD, 2008 MAR p. 575, Eff. 3/28/08.

Mont. Admin. R. 38.5.6008 Service Disconnection

(1) A regulated natural gas distribution utility may not shut off or deny regulated natural gas distribution service to a customer due to the customer's failure to pay for unregulated service or service provided by another entity.

(2) Regulated distribution utilities may offer agreements to landlord small customers to allow them to authorize the utility to switch a rental unit's natural gas service to the default supplier or to a specified competitive supplier in the event of a tenant customer's service termination.

History

Authorizing statute(s): 69-3-1404, MCA
Implementing statute(s): 69-3-1404, MCA
History: NEW, 1999 MAR p. 1233, Eff. 6/4/99; AMD, 2008 MAR p. 575, Eff. 3/28/08.

Mont. Admin. R. 38.5.6009 Supplier Complaint Procedure

(1) Each licensed supplier shall have an internal customer complaint procedure which allows for complete, fair and timely decisions and responses regarding complaints by customers. Suppliers shall keep a record of customer complaints.

(2) The commission shall resolve disputes among suppliers and small customers regarding the provisions of this rule according to the following procedures:

(a) Each supplier must provide at least one employee, (whose duties need not be limited to this obligation) during business hours to respond to questions and resolve complaints from customers and to work with the commission and its staff on complaint resolution;

(b) When a supplier becomes aware of a complaint by a customer, the supplier must investigate the complaint, report the results of its investigation to the customer and attempt in good faith to resolve the complaint; and

(c) If the supplier cannot resolve the dispute with the customer, the supplier must orally inform the customer of his or her right to file an informal complaint with the commission and provide the commission's toll-free consumer complaints telephone number.

History

Authorizing statute(s): 69-3-1404 and 69-8-403, MCA
Implementing statute(s): 69-3-1404 and 69-8-403, MCA
History: NEW, 1999 MAR p. 1233, Eff. 6/4/99.

Mont. Admin. R. 38.5.6010 Claims Made in Marketing Natural Gas

(1) A supplier shall include in its license application and in its annual reports sufficient documentation to substantiate any claims made to customers in advertising, marketing, promoting, or representing that natural gas purchased from the supplier is environmentally beneficial, environmentally benign, preserves or enhances environmental quality, is produced primarily with renewable energy sources, or is produced with specific resources or technologies.

(2) The commission may, on its own motion or in response to a complaint from a customer or another supplier, initiate a proceeding to investigate any claims made by a supplier in advertising, marketing, promoting, and representing its services to customers. On determining that a supplier's claims are misleading, deceptive, false, or fraudulent, the commission may apply appropriate penalties, including license revocation, pursuant to 69-3-1405, MCA.

History

Authorizing statute(s): 69-3-1404, MCA
Implementing statute(s): 69-3-1404, MCA
History: NEW, 1999 MAR p. 1233, Eff. 6/4/99; AMD, 2008 MAR p. 575, Eff. 3/28/08.

Subchapter 38.5.70 Natural Gas Utility Restructuring Provider Conduct, Supplier Licensing, Universal System Benefits Program

Mont. Admin. R. 38.5.7001 Context and Definitions

(1) These rules implement Montana's Natural Gas Utility Restructuring and Customer Choice Act, 69-3-1401 through 69-3-1409, MCA, and shall be construed in that context. Except in administration of 69-3-1408, MCA (universal system benefits program) , the commission does not intend these rules to apply to a "natural gas utility" as defined at 69-3-1401, MCA, so long as the utility does not restructure as described at 69-3-1403, MCA, or become a "natural gas supplier" as defined at 69-3-1401, MCA. Unless otherwise provided through rule or through order of the commission, these rules shall apply in all gas utility restructurings, including in periods of transition to customer choice and pilot programs which may be a part of a restructuring plan.

(2) Words used in these rules shall have the meanings assigned in 69-3-1402, MCA, and, if not defined there, shall have their common meanings in the context of gas utility and gas pipeline regulation and restructuring. Words used in these rules also have the meanings assigned by this rule, unless the context otherwise clearly demands:

(a) "affiliate" means a parent, subsidiary, division, or the like, regardless of designation, owning or controlling the provider, owned or controlled by the provider, under common ownership with the provider, or under common control with the provider;

(b) "provider" means a system services provider;

(c) "service" generally includes all incidents to service (e.g., applying for service, communicating in regard to service) ;

(d) "supplier" means "natural gas supplier," as defined at 69-3-1402, MCA, which includes any person offering to sell gas to end-use customers but not if the offering is by a public utility as a public utility and in accordance with commission-approved tariffs;

(e) "supply service" means providing natural gas for enduse, whether or not regulated by the commission;

(f) "system services" includes gas transmission services, distribution services, storage services, and all other gas services regulated by the commission, directly or indirectly, excluding supply services;

(g) "utility" means a "public utility" as defined at 69-3-101, MCA.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-103, 69-3-1402, 69-3-1404, 69-3-1405, 69-3-1408, MCA
History: NEW, 1998 MAR p. 1506, Eff. 6/12/98.

Mont. Admin. R. 38.5.7002 General -- Procedures in General -- Proprietary Information

(1) Compliance, enforcement, and other administrative proceedings before the commission which may result from implementation of these rules or the statutes upon which they are based shall be in accordance with applicable statutes (e.g., Title 2, chapter 4, MCA (Montana Administrative Procedure Act) ) and rules (e.g., ARM Title 38, chapter 2) governing proceedings before the commission.

(2) In accordance with 69-3-105, MCA, supplier license applicants, supplier licensees, and others who may be participating in any procedure before the commission arising from these rules, may request that qualifying trade secret information submitted to the commission (e.g., through licensing, annual report, compliance, or investigation procedures, or other requirements of statute, rule, or order) be protected by the commission from public disclosure through protective order. Requests for a protective order must clearly identify the information to be protected and, in detail, identify the factual and legal basis upon which the information is asserted to qualify as trade secret and be entitled to protection.

History

Authorizing statute(s): Secs. 69-3-103, 69-3-1405, MCA
Implementing statute(s): Secs. 69-3-105, 69-3-1405, MCA
History: NEW, 1998 MAR p. 1506, Eff. 6/12/98.

Mont. Admin. R. 38.5.7005 Service Providers -- Standards of Conduct

(1) Except as provided in (2) , a commission-regulated system services provider shall:

(a) apply all discretionary tariff provisions in the same manner to all persons to whom the tariff provisions apply;

(b) process all similar requests for service in the same manner and period of time;

(d) prevent any discrimination in favor of its own supply, other services, divisions, or affiliates;

(e) prevent all forms of self-dealing that could result in noncompetitive prices to consumers;

(f) grant others (e.g., consumers, suppliers) access to retail transmission, storage, and distribution on a nondiscriminatory basis at rates, terms, and conditions comparable to that which its affiliates have;

(g) disclose no service or market information received from a non-affiliate to others, including an affiliate (information received from an affiliate may be treated in the same fashion, unless otherwise required by these rules) ;

(h) disclose at the same time to all non-affiliates all service and market information disclosed to an affiliate (a non-affiliate may agree to limit the scope of information to be provided by the system services provider and may agree that information need be provided only on request) ;

(i) for customers requesting information on available supply, if identifying any supplier, identify all licensed gas suppliers serving in the service area in which the customer resides, and, in providing information to customers on behalf of any supplier, offer to provide information on behalf of all other suppliers on the same terms;

(j) make known to non-affiliates at the same time any discounts offered to an affiliate, the terms and conditions under which the discount is offered, and the means through which the non-affiliates can obtain a comparable offer (affiliates may be advised in the same fashion, unless otherwise prohibited by these rules) ; and

(k) function independently of its affiliate suppliers and cause its employees and employees of its affiliate suppliers to function independently, to the maximum extent practicable.

(2) A commission-regulated system services provider having or applying for commission-approved standards of conduct to be tariffed in accordance with 69-3-1404, MCA, may request that a tariffed standard depart from the standards in this rule. The commission may grant a waiver of the requirements in this rule upon a showing of good cause and circumstances unique to the provider's operations which justify the waiver.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-1404, MCA
History: NEW, 1998 MAR p. 1506, Eff. 6/12/98.

Mont. Admin. R. 38.5.7006 Service Providers -- Standards of Conduct -- Review of Service Policies

(1) Through request by the system services provider, or complaint by any other provider, supplier, customer, or other interested person, or on its own motion, the commission may review a system service provider's service rule or policy, tariffed or otherwise, to determine whether the rule or policy as applied is just and reasonable under the circumstances, including in regard to whether it results in abusive or anticompetitive practices.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Sec. 69-3-1404, MCA
History: NEW, 1998 MAR p. 1506, Eff. 6/12/98.

Mont. Admin. R. 38.5.7010 Gas Suppliers -- Application for License

(1) The application to the commission for a natural gas supplier license shall include the following provisions, complete and in detail (except as provided in (5) ) :

(a) the business name of the applicant;

(b) the street address and the mailing address of the applicant;

(d) a description of the applicant's business organization (e.g., sole proprietorship, partnership, corporation) , including a diagram of organization, an identification of the state in which organized, and a statement as to whether the applicant owns or operates gas distribution, transmission, or storage facilities, where those facilities are located, and whether those facilities are open and accessible on a nondiscriminatory basis to all gas suppliers, a list of the applicant's affiliates, a description of each affiliate's business activities and purposes, a statement as to whether any affiliate owns or operates gas distribution, transmission, or storage facilities, and an explanation of where those facilities are located and whether the facilities are open and accessible on a nondiscriminatory basis to all gas suppliers;

(e) the name, address, and telephone number of the supplier representative to be contacted regarding the application;

(f) the name, address, and toll-free telephone number of the supplier representative or office that may be contacted by consumers in regard to supply;

(g) the name, mailing address, street address, and telephone number of the applicant's agent for service of process in Montana, if required by law to designate such agent;

(h) information demonstrating the gas supply offered or to be offered by the applicant will be provided as offered;

(i) information demonstrating the gas supply offered or to be offered by the applicant will be adequate in terms of quality, safety, and reliability;

(j) information demonstrating the applicant's financial integrity as a gas supplier, including a current and detailed balance sheet, income and profit and loss statement, statement of cash flows, and the most recent of the applicant's annual reports to owners (e.g., stockholders) ;

(k) information demonstrating adequate firm deliverability (including supply, pipeline capacity, and interconnection agreements) to meet load requirements;

(l) a brief description of all federal and state judicial and administrative actions pending against the applicant (including on appeal) in which judgment is sought in an amount of 10 percent or more of the applicant's net worth; and

(m) identification of all federal and state judicial and administrative actions, if any, whether pending at the time of application (including on appeal) or concluded within 5 years prior to the time of application, which involve the applicant's authority to supply, market, and broker natural gas.

(2) Applicants shall also file a sample of each type of contract intended to be used in the providing of supply to residential and small commercial consumers.

(3) At the time of making application to the commission for a supplier license, applicants shall notify distribution services providers in accordance with 69-3-1405, MCA.

(4) All information provided by the applicant in regard to the application shall be updated by the licensee each time any change in that information occurs.

(5) Some of the above requirements may not apply to certain types of suppliers. If an applicant believes that to be the case in regard to an application, the applicant shall clearly state that and the reason supporting such determination, in lieu of the information requested.

History

Authorizing statute(s): Secs. 69-3-103, 69-3-1405, MCA
Implementing statute(s): Sec. 69-3-1405, MCA
History: NEW, 1998 MAR P. 1928, Eff. 6/12/98.

Mont. Admin. R. 38.5.7011 Gas Supplier -- Electronic Registration

(1) All applicants and licensed suppliers must complete and maintain an electronic registration established by the commission on its internet web site as a condition of becoming and remaining licensed. Applicants and suppliers must provide the following information electronically:

(a) a complete business name, and all other names (complete) that may be used when marketing natural gas and other unregulated energy services to consumers;

(b) the complete street address and mailing address of the principal office;

(c) the name, address, direct telephone number, fax number, and e-mail address of the supplier representative or office to be contacted regarding the license application and the license; and

(d) a listing of customer segments served.

(2) If residential and small commercial customers are solicited or served, applicants and suppliers must also provide the following information:

(a) a toll-free customer service telephone number; and

(b) a listing of the principal geographic areas served, including a list of Montana cities where residential and small commercial customers are solicited and served.

History

Authorizing statute(s): Secs. 69-3-103, 69-3-1405, MCA
Implementing statute(s): Sec. 69-3-1405, MCA
History: NEW, 1998 MAR p. 1506, Eff. 6/12/98.

Mont. Admin. R. 38.5.7012 Gas Supplier -- Licenses

(1) Except as otherwise allowed or required by operation of law or order of the commission, gas suppliers may commence operations in the Montana service areas of restructured utilities, and those areas otherwise allowing a competitive supply, upon issuance of a license by the commission.

(2) Upon issuance of a license, the gas supplier shall notify all distribution service providers serving in the area of the gas supplier's intended operations.

History

Authorizing statute(s): Sec. 69-3-103, 69-3-1405, MCA
Implementing statute(s): Sec. 69-3-1405, MCA
History: NEW, 1998 MAR p. 1506, Eff. 6/12/98.

Mont. Admin. R. 38.5.7014 Gas Supplier -- Annual Reports

(1) Annual

(2) Annual reports shall be on a form approved by the commission and include the following information (the commission may require that information from suppliers be filed more frequently, if deemed necessary) :

(a) a descriptive list of all services offered during the year and at the end of the year;

(b) quality and reliability-of-service reports (e.g., Btu content, outages, customer quality and reliability-of-service complaints) , itemized by month; and

reports must be filed by each licensee at calendar year end.

History

Authorizing statute(s): Sec. 69-3-103, 69-3-1405, MCA
Implementing statute(s): Sec. 69-3-1405, MCA
History: NEW, 1998 MAR p. 1506, Eff. 6/12/98.

Mont. Admin. R. 38.5.7016 Gas Supplier -- License Revocation

(1) The commission may revoke the license of a gas supplier if the gas supplier:

(a) violates any federal or state law which has as its purpose, directly or indirectly, fair competition among suppliers;

(b) violates any federal or state law which has as its purpose, directly or indirectly, protection of consumers;

(d) provides false information or materially incomplete information to the commission in regard to licensing or reporting;

(e) fails to file an annual report;

(f) otherwise fails to abide by the laws of the United States and the state of Montana which pertain to business, business structure, antitrust, trade, contracts, truth in labeling, consumer protection, privacy, and like laws which are applicable, generally or specifically, to the provision of gas supply;

(g) fails to supply gas in accordance with its agreements with customers and representations to the commission; or

(h) engages in anticompetitive or abusive practices.

History

Authorizing statute(s): Secs. 69-3-103, 69-3-1405, MCA
Implementing statute(s): Sec. 69-3-1405, MCA
History: NEW, 1998 MAR p. 1506, Eff. 6/12/98.

Mont. Admin. R. 38.5.7020 Universal System Benefits Program

(1) Pursuant to 69-3-1408, MCA, natural gas utilities shall implement a universal system benefits program (USBP) , a public purpose program for cost-effective local energy conservation, low-income weatherization, and low-income energy bill assistance ( 69-3-1402, MCA) . The USBP shall be funded through a universal systems benefit charge (USBC) , a nonbypassable rate or charge to be imposed on each customer ( 69-3-1402, MCA) .

(2) The USBC shall be an amount, per dekatherm or Mcf of natural gas delivered to each end user, whether by utility, distribution services provider, or transmission services provider (if for end use) , collected through a rate or charge (per dekatherm or Mcf) to each end user, and, except as provided in ARM 38.5.7021, established so as to generate, system-wide, an annual amount no less than 1.12 percent of the utility's, distribution services provider's, or transmission services provider's annual revenues derived from natural gas services to end users. From the amount collected system wide an amount at least equal to .42 percent of the annual revenues must be applied to low-income weatherization and bill assistance.

(3) The USBP may be administered by each utility, distribution services provider, or transmission services provider implementing a USBP or by another on its behalf. A USBP may be done in coordination with a federal, state, or local government agency or otherwise. Examples of acceptable USBPs include energy share and low income energy assistance program.

History

Authorizing statute(s): Secs. 69-3-103, 69-3-1408, MCA
Implementing statute(s): Sec. 69-3-1408, MCA
History: NEW, 1998 MAR p. 1506, Eff. 6/12/98.

Mont. Admin. R. 38.5.7021 Universal System Benefits Program -- Procedure

(1) Each utility, distribution services provider, and transmission service provider (if delivering gas for end-use) shall file with the commission a USBP plan no later than August 5, 1998.

(2) The filing shall include:

(a) a description of the proposed USBP plan, with supporting testimony;

(b) proposed tariffs reflecting changes to rates, if required, to fund the USBP at no less than the minimum annual amount (percentage of annual revenues) established in ARM 38.5.7020;

(c) if the utility objects to the minimum annual amount established in ARM 38.5.7020, the utility may also file, in addition the requirements of (2) (a) and (b) , above, an alternative proposal, with supporting testimony; and

(d) a description of the utility's or provider's USBP, formal or informal, in place for the period May 2, 1997, to August 5, 1998, identifying the amount (in percentage of annual revenues) at which the program was funded and the amount (in percentage of annual revenues) which was applied to low-income weatherization and bill assistance, and a proposal for implementing (4) , if applicable.

(3) The commission may approve the plan on an interim basis and commence contested case proceedings to determine whether the plan should be approved on a final basis, and, if the utility has objected to minimum annual amount pursuant to (2) (c) , above, whether good cause has been shown to adjust that amount.

(4) Utilities and providers not having a program in place on May 2, 1997, and thereafter, funded to at least .42 percent of annual revenues and from which at least .42 percent of annual revenues was applied to low-income weatherization and bill assistance shall, in the USBP filing and in addition to establishing a USBC to generate, system-wide, an annual amount as established in ARM 38.5.7020, establish USBP accounting reserve computed by applying .42 percent of annual revenues from May 2, 1997, to August 5, 1998. The reserve will be allocated to approved ongoing USBPs, one time USBPs, USBP start-up expenses for new programs, and like expenses, all relating to low-income weatherization and bill assistance. At such time as these are implemented recovery of the reserve will be allowed over a one year period.

History

Authorizing statute(s): Secs. 69-3-103, 69-3-1408, MCA
Implementing statute(s): Sec. 69-3-1408, MCA
History: NEW, 1998 MAR p. 1506, Eff. 6/12/98.

Subchapter 38.5.71 Minimum Filing Requirements for Restructured Gas Utility Applications for Approval of Natural Gas Production or Gathering Resources

Mont. Admin. R. 38.5.7101 Minimum Filing Requirements for Restructured Gas Utility Applications for Approval of Natural Gas Production or Gathering Resources

(1) An application by a utility for approval of the acquisition of a natural gas production or gathering resource that is not yet procured must include, as applicable:

(a) a statement explaining fully the type and nature of the acquisition;

(b) testimony and supporting work papers describing the resource and stating the facts (not conclusory statements) that show that acquiring the resource is in the public interest and is consistent with the requirements in 69-3-201 and 69-3-1413 through 69-3-1416, MCA, the utility's most recent natural gas supply procurement plan, if applicable, and these rules;

(c) testimony and supporting work papers demonstrating the utility's analysis of the cost of the acquired production or gathering resource over the short and long term compared to the market cost of natural gas and to all other potential production or gathering resources evaluated by the utility;

(d) a copy of any contract(s) or agreement(s) related to the acquisition, including all appendices and attachments;

(e) testimony providing a thorough explanation and justification for any terms in any contract or ownership agreement for which the utility is requesting approval;

(f) testimony and work papers describing all of the utility's due diligence related to the acquisition;

(g) a copy of any request for proposals issued in connection with acquisition of the natural gas production or gathering resource;

(h) testimony and supporting work papers comparing all bids received in connection with any request for proposals;

(i) testimony and supporting work papers concerning the utility's bid evaluation in connection with any request for proposals, including the ranking of bids and reliance on management judgment;

(j) a complete description of each aspect and all infrastructure of the production or gathering resource for which the utility requests approval;

(k) if the application concerns acquisition of an existing natural gas production resource, records demonstrating the production history of the resource;

(l) an attestation as to the accuracy of the potential gas reserves being considered for acquisition from a licensed petroleum engineer or a licensed petroleum geologist;

(m) financial statements of the utility demonstrating adequate financial capacity to support the acquisition of the natural gas production or gathering resource, and information concerning any proposed financing arrangements necessary to finance the proposed assets;

(n) the estimated effect of the transaction on current and future utility rates and charges, including specific tariff rate impacts; and

(o) other information as the commission may require.

History

Authorizing statute(s): 69-3-1415, MCA
Implementing statute(s): 69-3-1415, MCA
History: NEW, 2010 MAR p. 653, Eff. 3/12/10.

Authorizing statute(s): 69-8-403, MCA
Implementing statute(s): 69-8-404, 69-8-408, 69-8-409 and 69-8-410, MCA
History: NEW, 1998 MAR p. 1929, Eff. 7/17/98; REP, 1999 MAR p. 1233, Eff. 6/4/99.

Subchapter 38.5.81 Electric Utility Restructuring Default Supplier Licensing

Mont. Admin. R. 38.5.8101 Definitions

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-8-403, MCA
Implementing statute(s): 69-8-203, 69-8-416, MCA
History: NEW, 1999 MAR p. 2770, Eff. 12/3/99; REP, 2008 MAR p. 575, Eff. 3/28/08.

Mont. Admin. R. 38.5.8102 Application for Eligibility to Be a Default Supplier

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-8-403, MCA
Implementing statute(s): 69-8-203, 69-8-416, MCA
History: NEW, 1999 MAR p. 2770, Eff. 12/3/99; REP, 2008 MAR p. 575, Eff. 3/28/08.

(b) a statement explaining whether the application pertains to a power purchase agreement with an existing generating resource, a lease or acquisition of an equity interest in a new or existing generating resource, or a power purchase agreement for which approval will result in construction of a new generating resource;

(c) testimony and supporting work papers describing the resource and stating the facts (not conclusory statements) that show that acquiring the resource is in the public interest and is consistent with the requirements in 69-3-201 and 69-8-419, MCA, the utility's most recent long-term resource plan (as modified by (2)(a)), and these rules;

(d) testimony and supporting work papers demonstrating the utility's estimates of the cost of the resource compared to the cost of each alternative resource the utility considered and all relevant functional differences between each alternative;

(e) testimony and supporting work papers demonstrating the implementation of cost-effective carbon offsets for a electricity supply resource fueled primarily by natural or synthetic gas constructed after January 1, 2007;

(f) testimony and supporting work papers demonstrating the capture and sequestration of 50% of the carbon dioxide produced by a electricity supply resource fueled primarily by coal constructed after January 1, 2007;

(g) a copy of the proposed power purchase agreement, including all appendices and attachments;

(h) a copy of any request for proposals issued in connection with acquisition of the electricity supply resource;

(i) testimony and supporting work papers comparing all bids received in connection with any request for proposals with respect to price and nonprice factors;

(j) testimony and work papers describing all due diligence and bid evaluation in connection with any request for proposals, including the ranking of bids and reliance on management judgment;

(k) thorough explanation and justification for any terms, other than price, quantity, and contract duration, in a power purchase agreement for which the utility is requesting approval;

(l) a complete description of each aspect of the resource for which the utility requests approval; and

(m) testimony and supporting documentation describing all pre-filing communication.

History

Authorizing statute(s): 69-8-403, 69-8-419, MCA
Implementing statute(s): 69-8-403, 69-8-419, MCA
History: NEW, 2003 MAR p. 2894, Eff. 12/25/03; AMD, 2008 MAR p. 575, Eff. 3/28/08.

Mont. Admin. R. 38.5.8229 Consultant Fees

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-8-403, MCA
Implementing statute(s): 69-1-114, 69-8-421, MCA
History: NEW, 2003 MAR p. 2894, Eff. 12/25/03; AMD, 2008 MAR p. 575, Eff. 3/28/08; REP, 2023 MAR p. 21, Eff. 1/14/23.

Subchapter 38.5.83 Renewable Energy Resource Standard

Mont. Admin. R. 38.5.8301 Renewable Energy Resource Standard – Public Utilities

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, 69-3-2006, 69-8-1006, MCA
Implementing statute(s): 69-3-2003, 69-3-2004, 69-3-2005, 69-3-2006, 69-8-1004, 69-8-1005, 69-8-1006, 69-8-1007, MCA
History: NEW, 2006 MAR p. 1461, Eff. 6/2/06; AMD, 2007 MAR p. 2146, Eff. 12/21/07; REP, 2022 MAR p. 538, Eff. 4/16/22.

Mont. Admin. R. 38.5.8302 Renewable Energy Standard -- Electricity Suppliers

Publisher status: INEFFECTIVE (not currently effective).

(REPEALED)

History

Authorizing statute(s): 69-3-103, 69-3-2006, MCA
Implementing statute(s): 69-3-2003, 69-3-2004, 69-3-2005, 69-3-2006, MCA
History: NEW, 2007 MAR p. 2146, Eff. 12/21/07; REP, 2022 MAR p. 538, Eff. 4/16/22.

Subchapter 38.5.84 Small Generator Interconnection

Mont. Admin. R. 38.5.8401 Definitions

Terminology used in these rules has the following meanings, except where the context clearly indicates otherwise:

(1) "Applicant" means a person or entity that has filed an application to interconnect a customer-generator facility to an EDS. An applicant may include a third party who owns and operates a small generator facility under agreement with a customer or leases a small generator facility to a customer.

(2) "Area Network" means a type of electric system served by multiple transformers interconnected in an electrical network circuit.

(3) "Commission" means the Montana Public Service Commission.

(4) "Customer" means any entity connected to the utility system for the purpose of receiving electric power from the EDS.

(5) " Customer-generator" means a customer that generates electricity, typically on the customer's side of the meter.

(6) "Electric Distribution System" or "EDS" (i) means the infrastructure constructed and maintained by an EDC. (ii) Electric Distribution System has the same meaning as the term Area EPS, as defined in 3.1.6.1 of IEEE Standard 1547-2003.

(7) "Electric Distribution Company" or "EDC" means an electric utility that distributes electricity to end users within Montana and is subject to regulation by the commission.

(8) "Export" means power flows past the point of interconnection onto the EDS.

(9) "Good Standing" means a customer's account is not in arrears.

(10) "IEEE" means the Institute of Electrical and Electronics Engineers.

(11) "IEEE Standards" means the standards published by the Institute of Electrical and Electronics Engineers.

(12) "Interconnect" means to connect a utility customer's generator to the EDS.

(13) "Interconnection" is the result of connecting a utility customer's generator to the electric distribution company's electric distribution system.

(14) "Interconnection Customer" means an applicant that has entered into an interconnection agreement with an EDC to interconnect a small generator facility and has interconnected that small generator facility.

(15) "Line Section" means the portion of a radial distribution circuit to which an applicant seeks to interconnect and is bounded by automatic sectionalizing devices or the end of a distribution line.

(16) "Nameplate Capacity" means the maximum rated output of a generator, prime mover, or other electric power production equipment under specific conditions designated by the manufacturer and is usually indicated on a nameplate physically attached to the power production equipment.

(17) "Nationally Recognized Testing Laboratory" or "NRTL" means a testing laboratory that is recognized by the United States Occupational Safety and Health Administration to test and certify interconnection equipment pursuant to the relevant codes and standards.

(18) "Premises" means the customer-generator's service address that is identified in a utility's billing system and that, in the case of net metering systems, is limited to one net metering system, with a maximum nameplate capacity of 50 kW, for each classification of electric service that is provided by the utility at that service address.

(19) "Radial Distribution Circuit" means a circuit configuration in which independent feeders branch out radially from a common source of supply. From the standpoint of a utility system, the area described is between the generating source or intervening substations and the customer's electric service entrance equipment. In a radial distribution system, power flows in one direction from the utility to the load.

(20) "Small Generator Facility" means an energy resource(s) for the production and/or storage of electricity that has an aggregate nameplate capacity that does not exceed 10 MW, and is designed to operate in parallel with the electric distribution system.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 2010 MAR p. 1801, Eff. 8/13/10; AMD, 2020 MAR p. 2147, Eff. 11/21/20.

Mont. Admin. R. 38.5.8402 Applicability

(1) The interconnection procedures set forth in this subchapter apply to applicants proposing to install and interconnect a small generator facility to an EDC's system that satisfies the following criteria:

(a) The small generator facility must be sited on the utility customer's premises;

(b) The customer installing the small generator facility must be in good standing with the utility;

(d) The power produced from the small generator facility must be contained on the EDS and not flow onto the transmission system; and

(e) The power exported by an interconnection customer can only be sold to the EDC.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 2010 MAR p. 1801, Eff. 8/13/10.

Mont. Admin. R. 38.5.8403 Interconnection Requests

(1) Applicants seeking to interconnect a small generator facility shall submit an interconnection request using a standard form filed with the commission by the EDC that owns the electric distribution system to which interconnection is sought. All fees for processing interconnection requests must be paid prior to acceptance of the interconnection request by the utility.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 2010 MAR p. 1801, Eff. 8/13/10.

Mont. Admin. R. 38.5.8404 Agreements, Forms, and Fees

(1) The EDC shall file standard applications for interconnection requests, standard agreements required by the interconnection rules, a schedule of fees for processing interconnection requests, and a schedule of rates for performing the various studies required by these rules with the commission.

(2) All agreements, forms, fees, and rates must be filed with and approved by the commission after public notice and opportunity for comment.

(3) Utilities may not deviate from the standard agreements and fees filed with the commission without commission approval.

(4) A customer may petition the commission to require the utility to amend its agreements, forms, fees, and rates.

(5) The commission on its own, may require the utility to amend its agreements, forms, fees, and rates.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 2010 MAR p. 1801, Eff. 8/13/10.

Mont. Admin. R. 38.5.8405 Certified Equipment

(1) An interconnection request may be eligible for expedited interconnection review as determined under ARM 38.5.8404 if the small generator facility uses certified interconnection equipment. Interconnection equipment shall be deemed certified upon establishment of all of the following:

(a) The interconnection equipment has been labeled and is publicly listed by a NRTL at the time of the interconnection application;

(b) The NRTL testing the interconnection equipment makes readily available for verification all test standards and procedures it utilized in performing such equipment certification, and, with consumer approval, the test data itself. The NRTL may make such information available on its web site and by encouraging such information to be included in the manufacturer's literature accompanying the equipment;

(c) The applicant verifies that the intended use of the interconnection equipment falls within the use or uses for which the interconnection equipment was labeled, and listed by the NRTL.

(2) If the interconnection equipment is an integrated equipment package such as an inverter, then the applicant must show that the generator or other electric source being utilized is compatible with the interconnection equipment and is consistent with the testing and listing specified for this type of interconnection equipment.

(3) If the interconnection equipment includes only interface components (switchgear, multifunction relays, or other interface devices), then the applicant must show that the generator or other electric source being utilized is compatible with the interconnection equipment and is consistent with the testing and listing specified for this type of interconnection equipment.

(4) Interconnection equipment must be evaluated by a NRTL in accordance with the following codes and standards:

(a) IEEE 1547-2003 Standard for Interconnecting Distributed Resources with Electric Power Systems (including use of IEEE 1547.1-2005 testing protocols to establish conformity); and

(b) UL 1741 Inverters, Converters, and Controllers for Use in Independent Power Systems.

(5) Certified interconnection equipment shall not require further design testing or production testing, as specified by IEEE Standard 1547-2003 Sections 5.1 and 5.2, or additional interconnection equipment modification to meet the requirements for expedited review; however, nothing herein shall preclude the need for an interconnection installation evaluation, commissioning tests or periodic testing as specified by IEEE Standard 1547-2003 Sections 5.3, 5.4, and 5.5, or for a witness test that may be conducted by the EDC.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 2010 MAR p. 1801, Eff. 8/13/10.

Mont. Admin. R. 38.5.8406 Review Procedures

(1) An EDC shall review interconnection requests using one or more of the following review procedures:

(a) An EDC shall use Level 1 procedures for evaluation of all interconnection requests to connect inverter-based small generation facilities if:

(i) The small generator facility has a nameplate capacity of 50 kW or less; and

(ii) The customer interconnection equipment proposed for the small generator facility is certified.

(b) An EDC shall use Level 2 procedures for evaluating interconnection requests if:

(i) The small generator facility has a nameplate capacity of 2 MW or less; and

(ii) The interconnection equipment proposed for the small generator facility is certified; or

(iii) The small generator facility was reviewed under Level 1 review procedures but not approved and the applicant has submitted a new interconnection request for consideration.

(d) An EDC shall use the Level 4 study procedures for evaluating interconnection requests if:

(i) The interconnection request was not approved under a Level 1, Level 2, or Level 3 expedited review and the applicant has submitted an interconnection request for consideration under a Level 4 study review; or

(ii) The interconnection request does not meet the criteria for expedited review under Level 1, Level 2, or Level 3 review procedures.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 2010 MAR p. 1801, Eff. 8/13/10.

Mont. Admin. R. 38.5.8407 Technical Standards

(1) Unless otherwise provided in these rules, IEEE Standard 1547-2003 is to be used in evaluating all interconnection requests under Level 1, Level 2, Level 3, and Level 4 reviews. IEEE Standard 1547.1-2005 is to be used for testing interconnection equipment to ensure it complies with IEEE 1547-2003.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 2010 MAR p. 1801, Eff. 8/13/10.

Mont. Admin. R. 38.5.8408 Additional Requirements

(1) The interconnection applicant is responsible for construction of all generator facilities and obtaining any necessary local code official approval.

(2) To assist customers in the interconnection process, the EDC must:

(a) Maintain all interconnection related documents on their proprietary web site;

(b) Designate an employee or office from which basic information on the application can be obtained through an informal process and prominently display the contact information on the proprietary web site required in (a); and

(c) Upon the customer's request, meet with the customer prior to submission of an application for expedited interconnection.

(3) When an interconnection request for a small generator facility includes multiple energy production devices at a site for which the applicant seeks a single point of interconnection, the interconnection request shall be evaluated on the basis of the aggregate nameplate capacity of multiple devices.

(4) When an interconnection request is for an increase in capacity for an existing small generator facility, the interconnection request shall be evaluated on the basis of the new total nameplate capacity of the small generator facility.

(5) When an interconnection request is deemed complete, any modification that is not agreed to in writing by the EDC shall require submission of a new interconnection request.

(6) Small generator facilities shall be capable of being isolated from the EDC by means of a lockable, visible-break isolation device accessible by the EDC. The isolation device shall be installed, owned, and maintained by the owner of the small generation facility and located between the small generation facility and the point of interconnection.

(7) Any metering necessitated by a small generator interconnection shall be installed, operated, and maintained in accordance with applicable tariffs. Any such metering requirements must be clearly identified as part of the standard generator interconnection agreement executed by the interconnection customer and the EDC.

(8) EDC monitoring and control of a small generator facility is permitted only if the nameplate capacity rating of the small generator facility interconnecting to the EDS, or the aggregate nameplate capacity of all small generator facilities on the line section in combination with the small generator facility interconnecting to the EDS, is greater than 15% of the line section annual peak load as most recently measured at the substation or exceeds the annual minimum load of the line section. Any monitoring and control requirements shall be consistent with the EDC's written and published requirements and must be clearly identified as part of an interconnection agreement executed by the interconnection customer and EDC.

(9) The EDC shall have the option of performing a witness test to verify the small generator facility complies with the standards listed in ARM 38.5.8407 after construction of the small generator facility is completed. The applicant shall provide the EDC at least 20 business days notice of the planned commissioning test for the small generator facility. If the EDC elects to perform a witness test, it shall contact the applicant to schedule the witness test at a mutually agreeable time within ten business days of the scheduled commissioning test. If the EDC does not perform the witness test within ten business days of the commissioning test, the witness test is deemed waived. If the witness test is not acceptable to the EDC, the EDC must document all deficiencies and provide a written report identifying the deficiencies to the applicant within five business days of the witness test. The applicant shall be granted a period of 30 business days to address and resolve any deficiencies. If the applicant fails to address and resolve the deficiencies to the satisfaction of the EDC, the interconnection request shall be deemed withdrawn. If a witness test is not performed by the EDC or an entity approved by the EDC, the applicant must still satisfy the interconnection test specifications and requirements set forth in IEEE standard 1547-2003 Section 5. The applicant shall, if requested by the EDC, provide a copy of all documentation in its possession regarding testing conducted pursuant to IEEE Standard 1547.1-2005.

(10) Once an interconnection has been approved under this rule, the EDC may not require a customer-generator to test its facility except for the following:

(a) For Levels 2 and 3, an annual test in which the customer-generator's facility is disconnected from the EDC's equipment to ensure that the generator stops delivering power to the grid, and any manufacturer recommended testing; and

(b) For Level 4, all interconnection related protective functions and associated batteries shall be periodically tested according to the following:

(i) Intervals specified by the manufacturer; or

(ii) Intervals agreed upon by the EDC and customer-generator; and

(11) An EDC shall have the right to inspect a customer-generator's facility before and after interconnection approval is granted, at reasonable hours and with reasonable prior notice provided to the customer-generator. If the EDC discovers the customer-generator's facility is not in compliance with the requirements of IEEE Standard 1547-2003, and the noncompliance adversely affects the safety or reliability of the electric system, the EDC may require disconnection of the customer-generator's facility until it complies. Immediately upon disconnection of the customer-generator's facility, the EDC shall provide a written report detailing how the customer-generator's facility is not complying with IEEE Standard 1547-2003 or these rules.

(12) Each utility subject to these rules must file with the commission an annual report detailing:

(a) the number of interconnection requests from each request described in ARM 38.5.8409 through 38.5.8412;

(b) the number of interconnections approved, failed, or withdrawn/abandoned at each level;

(c) the total amount of generation exported to the utility's system for the twelve-month period ending December 31 of the prior year, including amount of distributed energy resource generation exported to the utility's system, tabulated by resource type; and

(d) the average time of approval for small generator interconnection requests at Level 1.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 2010 MAR p. 1801, Eff. 8/13/10; AMD, 2020 MAR p. 2147, Eff. 11/21/20.

Mont. Admin. R. 38.5.8409 Level 1 Expedited Review

(1) An EDC shall use the Level 1 interconnection review procedure for an interconnection request that meets the criteria in 38.5.8406(1)(a). An EDC shall not impose additional requirements for Level 1 reviews not specifically authorized under this rule unless the EDC and the applicant mutually agree to do so.

(2) The EDC shall evaluate the potential for adverse system impacts using the following screens which must be satisfied:

(a) For interconnection of a proposed small generator facility to a radial distribution line section, the aggregated generation on the line section, including the proposed small generator facility, may not exceed:

(i) 15% of the line section annual peak load as most recently measured at the substation; or

(ii) the annual minimum load of the line section.

(b) For interconnection of a proposed small generator facility to a spot network circuit where the generator or aggregate of total generation exceeds 5% of the spot network's maximum load, the generator must utilize a protective scheme that will ensure that its current flow will not affect the network protective devices, including reverse power relays or a comparable function;

(c) When a proposed small generator facility is to be interconnected on a single-phase shared secondary line section, the aggregate generation capacity on the shared secondary line, including the proposed small generator facility, may not exceed 20 kilovolt-amps (kVA);

(d) When a proposed small generator facility is single-phase and is to be interconnected on a center tap neutral of a 240 volt service, its addition may not create an imbalance between the two sides of the 240 volt service of more than 20% of the nameplate rating of the service transformer;

(e) The generator cannot exceed the capacity of the customer's existing electrical service; and

(f) Construction of facilities by the EDC on its own system is not required to accommodate the small generator facility.

(3) The Level 1 interconnection review must be conducted in accordance with the following procedures:

(a) An EDC shall, within ten business days after receipt of the interconnection request, inform the applicant that the interconnection request is complete or incomplete and what materials are missing;

(b) When an interconnection request is complete, the EDC shall assign a line section queue position if there is more than one interconnection request pending for the same line section. The line section queue position of the interconnection request shall be used to determine the potential adverse system impact of the small generator facility based on the relevant screening criteria. The EDC shall notify the applicant about other higher line section queued applicants on the same line section or spot network for which interconnection is sought. Line section queue position shall not be forfeited or otherwise impacted by any pending dispute submitted under the provisions of ARM 38.5.8413;

(c) The EDC shall, within 15 business days after the end of the ten business days noted in (3)(a), verify that the small generator facility equipment can be interconnected safely and reliably using Level 1 screens;

(d) Unless the EDC determines and demonstrates that a small generator facility cannot be interconnected safely or reliably to its system and provides a letter to the applicant explaining its reasons for denying an interconnection request, the EDC shall provide the applicant with a small generator interconnection agreement within five business days and approve the interconnection request subject to the following conditions:

(i) The small generator facility has been approved by local or municipal electric code officials with jurisdiction over the interconnection;

(ii) A certificate of completion has been returned to the EDC. Completion of local inspections may be designated on inspection forms used by local inspecting authorities;

(iii) The witness test has been successfully completed or waived; and

(iv) The applicant has signed a standard small generator interconnection agreement. When an applicant does not sign the agreement within 30 business days after receipt from the EDC, the interconnection request shall be deemed withdrawn.

(e) If the small generator facility is not approved under a Level 1 review, the EDC shall provide the applicant a letter explaining its reasons for denying the interconnection request. The applicant may submit a new interconnection request for consideration under a Level 2, Level 3, or Level 4 interconnection review; however, the line section queue position assigned to the Level 1 interconnection request shall be retained provided the request is made within 15 business days after notification that the current interconnection request has not been approved.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 2010 MAR p. 1801, Eff. 8/13/10.

Mont. Admin. R. 38.5.8410 Level 2 Expedited Review

(1) An EDC shall use the Level 2 interconnection review procedure for an interconnection request that meets the criteria in ARM 38.5.8406(1)(b). An EDC shall not impose additional requirements for Level 2 reviews not specifically authorized under this section unless the EDC and the applicant mutually agree to do so.

(2) The EDC shall evaluate the potential for adverse system impacts using the following screens which must be satisfied:

(a) For interconnection of a proposed small generator facility to a radial distribution circuit, the aggregated generation on the circuit, including the proposed small generator facility, may not exceed:

(i) 15% of the line section annual peak load as most recently measured at the substation; or

(ii) the annual minimum load of the line section.

(c) For interconnection of a proposed small generator facility that utilizes inverter-based protective functions to an area network, the generator facility, in aggregate with other exporting generator facilities interconnected on the load side of network protective devices, will not exceed the lesser of 10% of the minimum annual load on the network or 500 kW. For a photovoltaic generator facility without batteries, the 10% minimum shall be determined as a function of the minimum load occurring during an off-peak daylight period;

(d) For interconnection of generators to area networks that do not utilize inverter-based protective functions or inverter-based generators that do not meet the requirements of (2)(c), the generator must utilize reverse power relays or other protection devices and/or methods that ensure power is not exported from the customer's site including any inadvertent export (e.g. under fault conditions) that could adversely affect protective devices on the network circuit;

(e) The proposed small generator facility, in aggregation with other generation on the distribution circuit, may not contribute more than 10% to the distribution circuit's maximum fault current at the point on the primary line nearest the point of interconnection;

(f) The proposed small generator facility, in aggregate with other generation on the distribution circuit, may not cause any distribution protective devices and equipment (including substation breakers, fuse cutouts, and line reclosers), or other customer equipment on the electric distribution system to be exposed to fault currents exceeding 90% of the short circuit interrupting capability including X/R effects;

(g) When a customer-generator facility is to be connected to 3-phase, three wire primary EDC distribution lines, a 3-phase or single-phase generator will be connected phase-to-phase;

(h) When a customer-generator facility is to be connected to 3-phase, four wire primary EDC distribution lines, a 3-phase or single phase generator will be connected line-to-neutral and will be effectively grounded;

(i) When the proposed small generator facility is to be interconnected on single-phase shared secondary line, the aggregate generation capacity on the shared secondary line, including the proposed small generator facility, shall not exceed 20 kVA;

(j) When a proposed small generator facility is single-phase and is to be interconnected on a center tap neutral of a 240 volt service, its addition may not create an imbalance between the two sides of the 240 volt service of more than 20% of the nameplate rating of the service transformer;

(k) A small generator facility, in aggregate with other generation interconnected to the distribution side of a substation transformer feeding the circuit where the small generator facility proposes to interconnect, may not exceed 10 MW in an area where there are known or posted transient stability limitations to generating units located in the general electrical vicinity (for example, three or four distribution busses from the point of interconnection);

(l) The generator cannot exceed the capacity of the customer's existing electrical service; and

(m) Construction of facilities by the EDC on its own system is not required to accommodate the small generator facility.

(3) The Level 2 interconnection review must be conducted in accordance with the following procedures:

(c) Within 20 business days after the EDC notifies the applicant it has received a completed interconnection request, the EDC shall:

(i) Evaluate the interconnection request using the Level 2 review criteria;

(ii) Review the applicant's analysis, if provided by applicant, using the same criteria; and

(iii) Provide the applicant with the EDC's evaluation, including a comparison of the results of its own analyses with those of applicant, if applicable. When an EDC does not have a record of receipt of the interconnection request and the applicant can demonstrate that the original interconnection request was delivered, the EDC shall expedite its review to complete the evaluation of the interconnection request within 20 business days of the applicant's resubmission of the interconnection request; but

(iv) The EDC shall not be obligated to meet the timeline for reviewing the interconnection request as provided for in (3)(c) until such time as the EDC has completed the review of all other interconnection requests that have a higher line section queue position.

(4) When an EDC determines that the interconnection request passes the Level 2 screening criteria, or fails one or more of the Level 2 screening criteria but determines that the small generator facility can be interconnected safely and reliably, it shall provide the applicant a standard small generator interconnection agreement within five business days after the determination.

(5) Additional review may be appropriate when a small generator facility has failed to meet one or more of the Level 2 screens. An EDC shall offer to perform additional reviews to determine whether minor modifications to the electric distribution system would enable the interconnection to be made consistent with safety, reliability, and power quality criteria. The EDC shall provide the applicant with a nonbinding, good faith estimate of the costs of additional review and minor modifications. The EDC shall undertake the additional review only after the applicant consents to pay for the review. If the review identifies the need for modifications, the EDC shall make the necessary modifications only if the interconnection customer agrees to pay for them.

(6) An applicant shall have 30 business days after receipt of an interconnection agreement to sign and return the agreement. When an applicant does not sign the agreement within 30 business days, the interconnection request shall be deemed withdrawn. If construction is required under the provisions of (5), the interconnection of the small generator facility shall proceed according to any milestones agreed to by the parties in the standard small generator interconnection agreement. The standard small generator interconnection agreement may not become final until:

(a) The milestones agreed to in the standard small generator interconnection agreement are satisfied;

(b) The small generator facility is approved by electric code officials with jurisdiction over the interconnection;

(c) The applicant provides a certificate of completion to the EDC. Completion of local inspections may be designated on inspection forms used by local inspecting authorities; and

(d) There is a successful completion of the witness test, unless waived.

(7) If the small generator facility is not approved under a Level 2 review, the EDC shall provide the applicant a letter explaining its reasons for denying the interconnection request. The applicant may submit a new interconnection request for consideration under a Level 3 or Level 4 interconnection review; however, the line section queue position assigned to the Level 2 interconnection request shall be retained provided the request is made within 15 business days after notification that the current interconnection request has not been approved.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 2010 MAR p. 1801, Eff. 8/13/10.

Mont. Admin. R. 38.5.8411 Level 3 Expedited Review

(1) An EDC shall use the Level 3 interconnection review procedure for an interconnection request that meets the criteria in ARM 38.5.8406(1)(c). An EDC shall not impose additional requirements for Level 3 reviews not specifically authorized under this section unless the EDC and the applicant mutually agree to do so.

(2) Once the interconnection request is deemed complete by the EDC, the EDC shall assign a line section queue position based upon the date and time the interconnection request is determined to be complete if there is more than one interconnection request pending for the same line section. The line section queue position of each interconnection request shall be used to determine the potential adverse system impact of the small generator facility based on the relevant screening criteria. The applicant will proceed under the timeframes of this section. The EDC shall notify the applicant about other higher line section queued applicants on the same radial line or area network that the applicant is seeking to interconnect to. Line section queue position shall not be forfeited or otherwise impacted by any pending dispute submitted under the provisions of ARM 38.5.8413.

(3) For interconnection requests to the load side of an area network, the following criteria must be satisfied:

(a) The nameplate capacity of the small generator facility is less than or equal to 50 kW;

(b) The proposed small generator facility utilizes a certified inverter-based equipment package;

(c) The small generator utilizes reverse power relays and/or other protection functions that prevent the export of power into the area network;

(d) The aggregate of all generation on the area network does not exceed the smaller of 5% of an area network's maximum load or 50 kW; and

(e) No construction of the facilities by the electric distribution company shall be required to accommodate the small generator facility.

(4) Interconnection requests meeting the requirements set forth in ARM 38.5.8411(3) for small generator facilities interconnecting to an area network shall be presumed to be appropriate for interconnection. The EDC shall process the interconnection request to area networks using the following procedures:

(a) The EDC shall evaluate the interconnection request under Level 2 interconnection review procedures as set forth in ARM 38.5.8410(3) except that the EDC may have 25 business days to conduct an area network impact study to determine any potential adverse system impacts of interconnecting to the EDC's area network; however, the EDC shall not be obligated to meet the timeline for reviewing the interconnection request as provided for herein until such time as the EDC has completed the review of all other interconnection requests that have a higher line section queue position;

(b) In the event the area network impact study identifies potential adverse system impacts, the EDC may determine at its sole discretion that it is inappropriate for the small generator facility to interconnect to the area network in which case the interconnection request shall be denied; however, the applicant may elect to submit a new interconnection request for consideration under Level 4 procedures in which case the line section queue position assigned to the Level 3 interconnection request will be retained provided the request is made within 15 business days after notification that the current application is denied; and

(c) In the event the EDC denies the interconnection request, the EDC shall provide the applicant with a copy of its area network impact study and written justification for denying the interconnection request.

(5) For interconnection requests to a radial distribution circuit, the following criteria must be satisfied:

(a) The aggregated total of the nameplate capacity of all of the generators on the circuit, including the proposed small generator facility, is 10 MW or less;

(b) The small generator will use reverse power relays or other protection functions that prevent power flow onto the electric distribution system;

(d) No construction of facilities by the EDC on its own system shall be required to accommodate the small generator facility.

(6) For an interconnection request meeting the requirements of ARM 38.5.8411(5) for small generator facilities interconnecting to a radial distribution circuit, the EDC shall evaluate the interconnection request under the Level 2 expedited review in ARM 38.5.8410. The EDC shall approve the interconnection request if all of the applicable screens in ARM 38.5.8410(2) are satisfied.

(7) For a small generator facility that satisfies the criteria in (4) or (5) of this rule, the EDC shall approve the interconnection request and provide a standard interconnection agreement for the applicant to sign within five business days.

(8) The applicant shall have 30 business days after receipt of an interconnection agreement to sign and return the standard small generator interconnection agreement. If the applicant does not sign the standard small generator interconnection agreement within 30 business days, the request shall be deemed withdrawn. After the standard small generator interconnection agreement is signed by the parties, interconnection of the small generator facility shall proceed according to any milestones agreed to by the parties in the standard small generator interconnection agreement.

(9) The interconnection agreement will not be final until:

(a) Any milestones agreed to in the standard small generator interconnection agreement are satisfied;

(b) The small generator facility is approved by electric code officials with jurisdiction over the interconnection;

(d) There is a successful completion of the witness test, if conducted by the EDC.

(10) If the small generator facility is not approved under a Level 3 review, the applicant may submit a new interconnection request for consideration under the Level 4 procedures specified in ARM 38.5.8406(1)(d) without sacrificing the original line section queue position provided the revised interconnection request is submitted within 15 business days of notice that the current request has not been approved.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 2010 MAR p. 1801, Eff. 8/13/10.

Mont. Admin. R. 38.5.8412 Level 4 Study Review

(1) An EDC shall use the Level 4 study review procedure for an interconnection request that meets the criteria in ARM 38.5.8406(1)(d).

(2) Within ten business days from receipt of an interconnection request, the EDC shall notify the applicant whether the request is complete. When the interconnection request is not complete, the EDC shall provide the applicant a written list detailing information that shall be provided to complete the interconnection request. The applicant shall have ten business days to provide appropriate data in order to complete the interconnection request or the interconnection request shall be considered withdrawn. The interconnection request shall be deemed complete when the required information has been provided by the applicant.

(3) When an interconnection request is complete, the EDC shall assign a line section queue position if there is more than one interconnection request pending for the same line section. The line section queue position of an interconnection request shall be used to determine the cost responsibility necessary for the facilities to accommodate the interconnection. The EDC shall notify the applicant about other higher line section queued applicants. Any required interconnection studies shall not begin until the EDC has completed its review of all other interconnection requests that have a higher line section queue position. Line section queue position shall not be forfeited or otherwise impacted by any pending dispute submitted under the provisions of ARM 38.5.8413.

(4) The following procedures shall be followed in performing a Level 4 study review:

(a) By mutual agreement of the parties, the scoping meeting, interconnection feasibility study, interconnection impact study, or interconnection facilities studies provided for in a Level 4 review and discussed in this section may be waived;

(b) If agreed to by the parties, a scoping meeting will be held within ten business days after the EDC has notified the applicant that the interconnection request is deemed complete, or the applicant has requested that its interconnection request proceed after failing the requirements of a Level 2 review or Level 3 review. The purpose of the meeting must be to review the interconnection request, existing studies relevant to the interconnection request, and the results of the Level 1, Level 2, or Level 3 screening criteria;

(c) If the parties agree at a scoping meeting that an interconnection feasibility study shall be performed, the EDC shall provide to the applicant, no later than five business days after the scoping meeting, an interconnection feasibility study agreement, including an outline of the scope of the study and a nonbinding good faith estimate of the cost to perform the study;

(d) If the parties agree at a scoping meeting that an interconnection feasibility study is not required, the EDC shall provide to the applicant, no later than five business days after the scoping meeting, an interconnection system impact study agreement, including an outline of the scope of the study and a nonbinding good faith estimate of the cost to perform the study; or

(e) If the parties agree at the scoping meeting that an interconnection feasibility study and system impact study are not required, the EDC shall provide to the applicant, no later than five business days after the scoping meeting, an interconnection facilities study agreement including an outline of the scope of the study and a nonbinding good faith estimate of the cost to perform the study.

(5) The following guidelines shall be followed in conducting all required interconnection studies:

(a) An interconnection feasibility study shall include any of the following analyses necessary for the purpose of identifying a potential adverse system impact to the EDC's electric distribution system that would result from the interconnection:

(i) Initial identification of any circuit breaker short circuit capability limits exceeded as a result of the interconnection;

(ii) Initial identification of any thermal overload or voltage limit violations resulting from the interconnection;

(iii) Initial review of grounding requirements and system protection; and

(iv) Description and nonbinding estimated cost of facilities required to interconnect the small generator facility to the EDC's electric distribution system in a safe and reliable manner.

(b) If an applicant requests that the interconnection feasibility study evaluate multiple potential points of interconnection, additional evaluations may be required. Additional evaluations shall be paid by the applicant.

(c) An interconnection system impact study is not required if the interconnection feasibility study concludes there is no adverse system impact, or if the study identifies an adverse system impact, but the EDC is able to identify a remedy without the need for an interconnection system impact study.

(d) The parties shall use a form of interconnection feasibility study agreement approved by the commission.

(e) An interconnection system impact study shall evaluate the impact of the proposed interconnection on both the safety and reliability of the EDC's electric distribution system. The study shall identify and detail the system impacts that result when a small generator facility is interconnected without project or system modifications, focusing on the adverse system impacts identified in the interconnection feasibility study, or potential impacts including those identified in the scoping meeting. The study shall consider all generating facilities that, on the date the interconnection system impact study is commenced, are directly interconnected with the EDC's system, have a pending higher line section queue position to interconnect to the system, or have a signed a standard small generator interconnection agreement. As part of its impact study, the EDC shall agree to evaluate and consider any separate studies prepared by the applicant that evaluate alternatives for interconnecting the small generator facility including the applicant's assessment of potential impacts of the small generator facility on the electric distribution system. The EDC shall provide the applicant with the EDC's final impact study evaluation including a comparison of the results of its own analyses with those provided by the applicant.

(i) A distribution interconnection system impact study shall be performed when a potential distribution system adverse system impact is identified in the interconnection feasibility study. The EDC shall send the applicant an interconnection system impact study agreement within five business days of transmittal of the interconnection feasibility study report. The agreement will include an outline of the scope of the study and a good faith estimate of the cost to perform the study. The impact study shall include any necessary elements from among the following:

(A) A load flow study;

(B) Identification of affected systems;

(D) A protection coordination study;

(E) Voltage drop and flicker studies;

(F) Protection and set point coordination studies;

(G) Grounding reviews; and

(H) Impact on system operation.

(ii) An interconnection system impact study shall consider any necessary criteria from among the following:

(A) A short circuit analysis;

(B) A stability analysis;

(D) Voltage drop and flicker studies;

(E) Protection and set point coordination studies; and

(F) Grounding reviews.

(iii) The final interconnection system impact study must provide the following:

(A) The underlying assumptions of the study;

(B) The results of the analyses;

(D) Required distribution upgrades; and

(E) A nonbinding good faith estimate of cost and time to construct any required distribution upgrades.

(iv) The parties shall use an interconnection impact study agreement as approved by the commission.

(f) The interconnection facilities study shall be conducted as follows:

(i) Within five business days of completion of the interconnection system impact study, a report shall be transmitted to the applicant with an interconnection facilities study agreement, which includes an outline of the scope of the study and a nonbinding good faith estimate of the cost to perform the study.

(ii) The interconnection facilities study shall estimate the cost of the equipment, engineering, procurement and construction work, including overheads, needed to implement the conclusions of the interconnection feasibility study and the interconnection system impact study to interconnect the small generator facility. The interconnection facilities study shall identify:

(A) The electrical switching configuration of the equipment, including transformer, switchgear, meters, and other station equipment;

(B) The nature and estimated cost of the EDC's interconnection facilities and distribution upgrades necessary to accomplish the interconnection; and

(iii) The parties may agree to permit an applicant to separately arrange for a third party to design and construct the required interconnection facilities. The EDC may review the design of the facilities under the interconnection facilities study agreement. When the parties agree to separately arrange for design and construction, and to comply with security and confidentiality requirements, the EDC shall make all relevant information and required specifications available to the applicant to permit the applicant to obtain an independent design and cost estimate for the facilities, which must be built in accordance with the specifications.

(iv) In the event that distribution upgrades are identified in the impact study that must be added only in the event that higher line section queued customers not yet interconnected eventually complete and interconnect their generation facilities, an applicant may elect to interconnect without paying for such upgrades at the time of the interconnection under the condition that the customer shall pay for such upgrades at the time the higher line section queued customer is ready to interconnect. If the customer does not pay for such upgrades at that time, the EDC will require the customer to immediately disconnect its generating facility so that the higher line section queued customer can be accommodated.

(v) The parties shall use an interconnection facility study agreement approved by the commission.

(6) When an EDC determines, as a result of the studies conducted under a Level 4 review, that it is appropriate to interconnect the small generator facility, the EDC shall provide the applicant with a standard small generator interconnection agreement. If the interconnection request is denied, the EDC shall provide the applicant a written explanation.

(7) An applicant shall have 30 business days after receipt of an interconnection agreement to sign and return the agreement. When an applicant does not sign the agreement within 30 business days, the interconnection request shall be deemed withdrawn. When construction is required, the interconnection of the small generator facility shall proceed according to milestones agreed to by the parties in the standard small generator interconnection agreement. The standard small generator interconnection agreement may not be final until:

(a) The milestones agreed to in the standard small generator interconnection agreement are satisfied;

(b) The small generator facility is approved by electric code officials with jurisdiction over the interconnection;

(c) The applicant provides a certificate of completion to the EDC. Completion of local inspections may be designated on inspection forms used by local inspecting authorities; and

(d) There is a successful completion of the witness test, unless waived by the EDC.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 2010 MAR p. 1801, Eff. 8/13/10.

Mont. Admin. R. 38.5.8413 Dispute Resolution

(1) A party shall attempt to resolve all disputes regarding interconnection as provided in ARM 38.5.8401 through 38.5.8412 promptly, equitably, and in a good faith manner.

(2) When a dispute arises, a party may seek immediate resolution through complaint procedures available through the commission, or an alternative dispute resolution process approved by the commission, by providing written notice to the commission and the other party stating the issues in dispute. Dispute resolution shall be conducted in an informal, expeditious manner to reach resolution with minimal costs and delay. When available, dispute resolution may be conducted by phone.

(3) When disputes relate to the technical application of this section, the commission may designate a technical master to resolve the dispute. Upon commission designation, the parties shall use the technical master to resolve disputes related to interconnection. Costs for a dispute resolution conducted by the technical master shall be established and allocated by the technical master, subject to review and approval or disapproval by the commission.

(4) Pursuit of dispute resolution may not affect an applicant with regard to consideration of an interconnection request or an applicant's line section queue position.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-102, MCA
History: NEW, 2010 MAR p. 1801, Eff. 8/13/10.

Subchapter 38.5.86 Energy Utility Service Standards

Mont. Admin. R. 38.5.8601 Definitions

In this subchapter the following definitions shall apply unless the context otherwise clearly demands:

(1) "Interruption" means a loss of service to one or more customers.

(2) "Interruption duration" means the period of time, in minutes, between the time an electric utility first becomes aware of a service interruption and the time of restoration of service to the customer(s).

(3) "Major event" means a catastrophic event that:

(a) for regulated electric utilities that have adopted the Institute of Electrical and Electronic Engineers Guide for Electric Power Distribution Reliability Indices, meets the definition of "major event day," standard 1366-2003; or

(b) for regulated electric utilities that have not adopted the Institute of Electrical and Electronic Engineers Guide for Electric Power Distribution Reliability Indices:

(i) exceeds the design limits of the electric power system;

(ii) causes extensive damage to the electric power system; and

(iii) results in a simultaneous sustained electric service interruption to more than 10% of the customers in an operating area.

(4) "Operating area" means a geographical subdivision of an electric utility's Montana service territory that is a distinct area for administration, operation, or data collection. These areas may also be referred to as regions, divisions, or districts.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-201, MCA
History: NEW, 2005 MAR p. 1404, Eff. 7/29/05.

Mont. Admin. R. 38.5.8604 Energy Utility Service Interruption Notification

(1) Each energy utility shall report promptly to news media that are capable of timely dissemination of information on any specific occurrence or development which interrupts or is likely to interrupt the utility's natural gas and/or electric service to 500 or more of its customers for a time period longer than two hours.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-201, MCA
History: NEW, 2005 MAR p. 1404, Eff. 7/29/05.

Mont. Admin. R. 38.5.8607 Energy Utility Planned Outages

(1) In the event that service must be interrupted for more than two hours for planned work on utility facilities or equipment, the work shall be done at a time which will cause minimal inconvenience to customers, including consideration of weather conditions. The utility shall attempt to notify each affected customer at least 24 hours in advance of the interruption, either personally or, when personal notification would be impractical, by advance notice in local media outlets.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-201, MCA
History: NEW, 2005 MAR p. 1404, Eff. 7/29/05.

Mont. Admin. R. 38.5.8610 General Obligations of Energy Utilities

(1) Each energy utility shall make reasonable efforts to avoid and prevent interruptions of service. However, when interruptions occur, service shall be reestablished within the shortest time practicable, consistent with safety and good utility practices.

(2) Each energy utility's transmission and distribution facilities shall be designed, constructed, maintained, reinforced, and supplemented as required to reliably perform the natural gas and power delivery burden placed upon them in the storm and traffic hazard environment in which they are located.

(3) Each energy utility shall carry on an effective preventive maintenance program and shall be capable of emergency repair work on a scale which its storm and traffic damage record indicates as appropriate to its scope of operations and to the physical condition of its transmission and distribution facilities.

(4) In appraising the reliability of the electric utility's transmission and distribution system, the commission will consider the condition of the physical property and the size, training, supervision, availability, equipment, and mobility of the maintenance forces, all as demonstrated in actual cases of storm and traffic damage to the facilities.

(5) Each energy utility shall keep records of interruptions of service on its primary distribution system and shall make an analysis of the records for the purpose of determining steps to be taken to prevent recurrence of such interruptions.

(6) Each energy utility shall make reasonable efforts to reduce the risk of future interruptions by taking into account the age, condition, design, and performance of transmission and distribution facilities and providing adequate investment in the maintenance, repair, replacement, and upgrade of facilities and equipment.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-201, MCA
History: NEW, 2005 MAR p. 1404, Eff. 7/29/05.

Mont. Admin. R. 38.5.8613 Electric Utility System Reliability

(1) The following service reliability indices measure the frequency and duration of service interruptions. They are recognized as standard reliability indices for the electric utility industry and may be applied to entire distribution systems and operating areas. For purposes of this rule, "interruption" means the loss of service for more than five minutes.

(a) "Customer average interruption duration index" is the average interruption duration for those customers of electricity service who experience interruptions during the year. It is calculated by dividing the annual sum of all customer interruption durations by the total number of customer interruptions.

(b) "System average interruption duration index" is the average interruption duration per customer served during the year. It is calculated by dividing the sum of the customer interruption durations by the total number of customers served during the year.

(c) "System average interruption frequency index" is the average number of interruptions per customer during the year. It is calculated by dividing the total annual number of customer interruptions by the total number of customers served during the year.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-201, MCA
History: NEW, 2005 MAR p. 1404, Eff. 7/29/05.

Mont. Admin. R. 38.5.8616 Recordkeeping Requirements for Electric Utilities

(1) Each electric utility shall maintain and record complete records of service interruptions on the distribution system as a whole and for each operating area on the distribution system. These records shall enable the utility to calculate the customer average interruption duration index, system average interruption duration index, and system average interruption frequency index, both with and without the data associated with major events.

(2) An electric utility shall retain the records required by this rule for a minimum of five years and shall provide them to the commission upon request.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-201, MCA
History: NEW, 2005 MAR p. 1404, Eff. 7/29/05.

Mont. Admin. R. 38.5.8619 Annual Electric Reliability Report

(1) Each electric utility shall submit to the commission on or before March 1 of each year an annual reliability report for the previous calendar year for the Montana jurisdiction. The report shall include the following information:

(a) aggregate system reliability performance, comprised of customer average interruption duration index, system average interruption duration index, and system average interruption frequency index for the previous calendar year for the Montana service territory and each defined Montana operating area. These indices shall be calculated twice, once with the data associated with major events and once without. This assessment should contain tabular and graphical presentations of the trend for each index as well as the trends of the major causes of interruptions; and

(b) the customer average interruption duration index, system average interruption duration index, and system average interruption frequency index reliability average values for the previous three calendar years for the Montana service territory and each defined Montana operating area. These average values shall be calculated twice, once with the data associated with major events and once without.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-201, MCA
History: NEW, 2005 MAR p. 1404, Eff. 7/29/05.

Chapter 38.6 Energy Conservation

Subchapter 38.6.1 Conservation Loans by Utilities

Mont. Admin. R. 38.6.101 Definition

(1) The term "energy conservation materials" as used in section 15-32-107 , MCA, includes the following materials:

(a) Caulking and weatherstripping of doors and windows;

(b) Furnace efficiency modifications including:

(i) Replacement burners, furnaces or boilers of any combination thereof which, as determined by the secretary of energy of the United States, substantially increase the energy efficiency of the heating system;

(ii) Devices for modifying flue openings which will increase the energy efficiency of the heating system; and

(iii) Electrical or mechanical furnace ignition systems which replace standing gas pilot lights;

(d) Ceiling, attic, wall and floor insulation;

(e) Water heater insulation;

(f) Storm windows and doors, multiglazed windows and doors, heat-absorbing or heat-reflective glazed windows, door materials and window replacement; and

(g) Outside air combustion sources.

History

Authorizing statute(s): Sec. 15-32-107(3), MCA
Implementing statute(s): Sec. 15-32-107, MCA
History: NEW, 1979 MAR p. 586, Eff. 6/15/79.

Mont. Admin. R. 38.6.102 Prevailing Interest Rate

(1) The term "prevailing average interest rate for home improvement loans" as used in section 15-32-107 , MCA means and is determined to be 12.50 percent per annum.

History

Authorizing statute(s): Sec. 15-32-107(3), MCA
Implementing statute(s): Sec. 15-32-107, MCA
History: NEW, 1979 MAR p. 588, Eff. 6/15/79.

Mont. Admin. R. 38.6.103 Modifications of Prevailing Interest Rate

(1) The rate stated in the preceding section will be modified, as necessary, to reflect changes in the interest rate for home improvement loans made by lending institutions in Montana. The procedure for modification shall be that prescribed by the Administrative Procedure Act, section 2-4-305 , MCA and section 2-4-315 , MCA. .

History

Authorizing statute(s): Sec. 15-32-107(3), MCA
Implementing statute(s): 15-32-107, MCA
History: NEW, 1979 MAR p. 588, Eff. 6/15/79

Subchapter 38.6.2 Gas Energy Conservation Plans

Mont. Admin. R. 38.6.201 Gas Energy Conservation Plans

(1) The natural gas utilities in Montana shall prepare individually with their major industrial and commercial natural gas users, (all customers who use over 50,000 mcf of gas a year) energy conservation plans aimed at improving the efficiency of energy usage, especially with regard to natural gas by those users.

(2) The commission authorizes a reasonable cost incurred by regulated utilities in compliance with this request to be included in the operating costs for rate making purposes.

(3) Specifically, the commission requires that itemized instances of energy savings be noted in such a way that they can be proven. For example, a user may not consume as much natural gas in a year as previously, but this would not necessarily indicate an energy savings if an alternative fuel were employed.

(4) Each regulated gas utility and large user, shall jointly submit these plans to the commission by September 15, 1975. These plans shall be detailed and shall include time tables and deadlines for the order, installation and operation, or faze out, of any equipment needed to effect the plan or for any other changes to be made in the operation of the gas user. These deadlines will then constitute part of a binding contract or stipulation and will be made part of this commission's rate tariff regarding that user.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102, 69-3-203, 69-3-108, 69-3-306 and 69-3-106, MCA
History: EMERG. , NEW, Eff. 1/3/76.

Mont. Admin. R. 38.6.202 Gas Energy Waste Curtailment; Order to Show Cause

(1) A public utility customer who does not file an emergency conservation plan by the due date or any such customer whose plan is not sufficient on the due date, or one that is not meeting conservation goals will face a gas energy waste service curtailment equivalent to ten (10) percent of the total natural gas delivered to that customer during the month, twelve months prior to the month, in which the violation occurred for each month its energy plan or compliance therewith is insufficient. The curtailments shall be monthly and shall begin the month after the findings of insufficiency.

(2) Each month after a finding of insufficiency, the utility serving a customer with an insufficient plan shall curtail the gas supplied to that customer according to the procedure expressed above. The waste curtailment will be assessed only after a hearing, conducted under the Montana Administrative Procedure Act contested case provisions, to determine what efforts have been made toward constructing or complying with an acceptable plan.

(3) If it is found that the utility is not assisting the customer in a sufficient good-faith manner to comply with this order, the utility will be issued an order to show cause why it is not complying with this order.

History

Authorizing statute(s): Sec. 69-3-103, MCA
Implementing statute(s): Secs. 69-3-102, 69-3-203, 69-3-108, 69-3-306 and 69-3-106, MCA
History: EMERG. , NEW, Eff. 1/3/76.

Subchapter 38.6.3 Conservation Accounting

Mont. Admin. R. 38.6.301 Proper Accounting Treatment for Acceptable Conservation Expenditures

(1) Gas and electric utilities operating in Montana shall account for acceptable conservation expenditures in the following manner:

(a) Conservation costs in the following categories will be deferred in a subaccount of account 186, miscellaneous deferred debits, and subsequently amortized to a subaccount of account 557, other expenses (other power supply expenses) :

(i) Costs of conservation assets:

(A) Customer loans;

(B) Cash payments to customers;

(D) Customer conservation investment decision assistance.

(ii) Asset acquisition costs:

(A) Specific acquisition program development, promotion, and labor costs;

(B) Associated general supervision rents, leases, overheads.

(b) Weatherization loan balances would continue to be reflected in account 124, other investments.

(i) Administrative costs:

(A) Conservation planning: supply curve, demand side

modeling;

(B) On-going research and development;

(D) Program tracking and reporting;

(E) General training and staff development;

(F) Associated general supervision, rents, leases, overheads.

(ii) Other:

(A) Uncollectible accounts;

(B) Customer service activities: high bill complaints,

other inquiries;

(2) AFUDC-like carrying charges will be allowed to accrue on deferred balances of conservation investments.

(3) Ratemaking may modify charges and balances made to and contained in the above accounts.

History

Authorizing statute(s): Sec. 69-3-102, MCA
Implementing statute(s): Sec. 69-3-103, MCA
History: NEW, 1991 MAR p. 466, Eff. 4/12/91.

Chapter 38.7 Pipe Line Companies

Subchapter 38.7.1 Pipe Line Company Reports

Mont. Admin. R. 38.7.101 Monthly Reports

(1) Each intrastate common carrier pipe line company shall file with the commission at its office in Helena, Montana, monthly reports to be filed not later than the 25th day of the month, following the calendar month for which the report is rendered, verified under oath by the reporting carrier showing the following information:

(a) The total number of barrels of crude petroleum gathered by each gathering system.

(b) The total number of barrels of crude petroleum received from other transporters.

(d) The total number of barrels of crude petroleum held in storage by the reporting carrier for others.

(e) The total amount of unfilled storage capacity (tankage) held by the reporting carrier.

(f) Total loss due to leakage, evaporation, or other causes.

(2) The information required under ARM 38.7.101(d) and (e) shall be as of the last day of the calendar month for which the report is rendered. It is expressly provided by law that no publicity shall be given by the commission as to the stock of crude petroleum on hand of any particular pipe line.

(3) The above stated requirements in ARM 38.7.101 may be fulfilled by submission of the Oil and Gas Conservation Commission of the State of Montana Form No. 7 supplemented to provide for the requirements in ARM 38.7.101.

History

Authorizing statute(s): 69-13-301, MCA
Implementing statute(s): 69-13-301, MCA
History: NEW, 1982 MAR p. 2097, Eff. 11/25/82.

Mont. Admin. R. 38.7.102 Annual Reports

(1) Each intrastate common carrier pipe line company shall file with the commission, at its office in Helena, Montana, an annual report for each calendar year. The report shall be filed not later than the 30th day of April next following the year for which the report is made. The report shall show the names of officers, directors and the residence of each; amount of capital stock and bonded indebtedness outstanding; capital investment with additional investments made during the year; assets and liabilities; revenues and expenditures; depreciation; and statistical data as to petroleum delivered and lost during transportation.

(2) The Annual Report shall be made to the commission on such forms as may be prescribed and furnished by the commission. The above stated ARM 38.7.102 may be fulfilled by submission of Federal Energy Regulatory Commission (FERC) Form No. 6 Annual Report of oil pipe line companies, supplemented by such other forms as the commission may prescribe. The supplemental forms shall be duly verified under oath by an officer of the company.

History

Authorizing statute(s): Sec. 69-13-301, MCA
Implementing statute(s): Sec. 69-13-301, MCA
History: NEW, 1982 MAR p. 2098, Eff. 11/25/82.

Chapter 38.8 Cost of Service Information

Subchapter 38.8.1 Information Requirements for Electric Utilities

Mont. Admin. R. 38.8.101 Cost of Service Information

(1) The department of public service regulation hereby adopts and incorporates by reference Title 18, part 290, CFR as they exist on January 30, 1983, which sets forth requirements for collection of information regarding cost of service for electric utilities whose total sales exceed 500 million kilowatt-hours per year. A copy of Title 18, part 290, CFR may be obtained from the Department of Public Service Regulation, 1701 Prospect Avenue, P.O. Box 202601, Helena, Montana 59620-2601.

History

Authorizing statute(s): 69-3-103, MCA
Implementing statute(s): 69-3-202, MCA
History: NEW, 1983 MAR p. 181, Eff. 2/25/83.

Chapter 38.9 Transportation of Radioactive and Transuranic Waste

Subchapter 38.9.1 Transportation of High-Level Radioactive and Transuranic Waste

Mont. Admin. R. 38.9.101 Purpose, Scope, and Limitations

(1) The following rules implement provisions of the Montana High-Level Radioactive Waste and Transuranic Waste Transportation Act, 10-3-1301 through 10-3-1310 , MCA, that are not self-implementing or otherwise require rules.

(2) The rules are supplemental to the act and must be read, interpreted, and applied in conjunction with the act itself.

(3) Under certain circumstances the administration and implementation of one or more provisions of the act or these rules may be affected by preemptive national and state security concerns.

History

Authorizing statute(s): 10-3-1309, MCA
Implementing statute(s): 10-3-1302 and 10-3-1309, MCA
History: NEW, 2004 MAR p. 1628, Eff. 7/23/04.

Mont. Admin. R. 38.9.102 Definitions

Terminology used in these rules have the meanings assigned in the act and this rule, unless the context clearly dictates otherwise:

(1) "Account" means the radioactive waste transportation monitoring, emergency response, and training account as provided in 10-3-1304, MCA.

(2) "Act" means the Montana High-Level Radioactive Waste and Transuranic Waste Transportation Act, codified at 10-3-1301 through 10-3-1310, MCA.

(3) "Department of Transportation" means the Montana Department of Transportation as provided at 2-15-2501, MCA.

(4) "Disaster and emergency services division" means the Disaster and Emergency Services Division of the Montana Department of Military Affairs as referenced in 10-3-1304, MCA.

(5) "Highway patrol" means the Montana Highway Patrol as provided at 44-1-101, MCA.

(6) "Local authority" means Montana counties, incorporated cities, and Indian nations and associated qualifying local emergency response entities.

(7) "Originating shipper" means the owner or the person designated by the owner or by law to arrange for transportation of the radioactive waste.

(8) "Owner" means the person who owns the radioactive waste.

(9) "Public safety answering point" means a communications facility operated on a 24-hour basis that first receives 911 calls from persons in a 911 service area and that may, as appropriate, directly dispatch public or private safety services or transfer or relay 911 calls to appropriate public safety agencies.

(10) "Public service commission" means the Transportation and Centralized Services Division of the Montana Department of Public Service Regulation, Public Service Commission, as referenced at 2-15-2601, 2-15-2602 , and 69-1-101 , MCA.

(11) "Radioactive waste" means high-level radioactive waste, spent nuclear fuel, or transuranic waste as defined at 10-3-1303, MCA.

(12) "State authority" includes the Disaster and Emergency Services Division, Department of Transportation, Highway Patrol, and Public Service Commission.

(13) "Transporter" means a railroad or motor carrier transporting radioactive waste.

History

Authorizing statute(s): 10-3-1309, MCA
Implementing statute(s): 10-3-1309, MCA
History: NEW, 2004 MAR p. 1628, Eff. 7/23/04.

Mont. Admin. R. 38.9.103 Primary Contact Point

(1) The primary contact point regarding administration and implementation of the act and these rules is: administrator, disaster and emergency services division, telephone (406) 841-3911, fax (406) 841-3965, street address 1900 Williams Street, Helena, Montana, and mailing address P.O. Box 4789, Helena, Montana 59604.

History

Authorizing statute(s): 10-3-1309, MCA
Implementing statute(s): 10-3-1309, MCA
History: NEW, 2004 MAR p. 1628, Eff. 7/23/04.

Mont. Admin. R. 38.9.104 Responsibilities of Owner, Originating Shipper, and Transporter

(1) The responsibilities of the owner and originating shipper (if not the owner) are as provided in 10-3-1305 and 10-3-1306 , MCA. The responsibilities include elements such as notification, accompanied by information and proofs prescribed, to the disaster and emergency services division, department of transportation, and the transporter. In addition to the information prescribed within 10-3-1305 , MCA, the owner and originating shipper (if not the owner) shall provide:

(a) the identity (name, address, telephone number, contact person) of the transporter;

(b) the identity (name, address, telephone number, contact person) of the entity responsible for payment of fees; and

(c) a certification that the disaster and emergency services division, department of transportation, and the transporter have been properly notified and provided all required information.

(2) The owner and originating shipper (if not the owner) shall personally verify that notification and the required information have actually been received by the disaster and emergency services division, department of transportation, and the transporter, prior to transportation of radioactive waste within or through Montana.

(3) In addition to the requirements of the act and these rules, the owner, originating shipper (if not the owner) , and the transporter shall be fully compliant with all other applicable state and federal motor carrier and rail regulations, including providing of notifications, payment of fees, and securing of permits, prior to transportation of radioactive waste within or through Montana.

History

Authorizing statute(s): 10-3-1309, MCA
Implementing statute(s): 10-3-1305, 10-3-1306 and 10-3-1309, MCA
History: NEW, 2004 MAR p. 1628, Eff. 7/23/04.

Mont. Admin. R. 38.9.105 Responsibilities of Disaster and Emergency Services Division

(1) The disaster and emergency services division is the lead Montana authority regarding the act and these rules and is the primary Montana point-of-contact by the owner, originating shipper, and transporter of radioactive waste within or through Montana by motor vehicle or rail and by affected state authorities and local authorities.

(2) The disaster and emergency services division shall verify the owner and originating shipper (if not the owner) have provided all information as required by 10-3-1305 and 10-3-1306 , MCA, and these rules. The disaster and emergency services division shall verify that those required to receive notification and information as required by 10-3-1305 and 10-3-1306 , MCA, have received the notification and information.

(3) Upon approval of the notification and information provided, the disaster and emergency services division shall provide notification to the state and local authorities affected. Notification must include all essential information.

(4) Notification to the department of transportation must affirm the number of casks approved for transportation and the identity (name, address, and telephone number) of contact persons, including the person responsible for payment of fees as provided in 10-3-1307 , MCA.

History

Authorizing statute(s): 10-3-1309, MCA
Implementing statute(s): 10-3-1306 and 10-3-1309, MCA
History: NEW, 2004 MAR p. 1628, Eff. 7/23/04.

Mont. Admin. R. 38.9.106 Responsibilities of Department of Transportation

(1) The responsibilities of the department of transportation are as provided at 10-3-1306 , MCA.

(2) Upon receipt of notification of approval by the disaster and emergency services division, the department of transportation shall contact the owner, originating shipper, transporter, or other to collect the required fees for transportation of radioactive waste by motor carrier or rail, issue permits as contemplated by the act, and deposit fees paid into the account.

(3) The department of transportation, in coordination with the highway patrol, will inspect motor carriers transporting radioactive waste within or through Montana.

(4) Compliance with the act and rules regarding fees, permits, and inspections related to transportation of radioactive waste does not relieve a motor carrier from general federal and Montana motor carrier regulations (e.g., weight, length, width, and height regulations) .

History

Authorizing statute(s): 10-3-1309, MCA
Implementing statute(s): 10-3-1306, 10-3-1307 and 10-3-1309, MCA
History: NEW, 2004 MAR p. 1628, Eff. 7/23/04.

Mont. Admin. R. 38.9.107 Responsibilities of Highway Patrol

(1) The responsibilities of the highway patrol are as provided at 10-3-1308 , MCA.

(2) Upon receipt of notification of approval by the disaster and emergency services division, the highway patrol shall coordinate with the disaster and emergency services division and the department of transportation regarding specific information pertaining to the transportation of radioactive waste.

(3) Based on information received, the highway patrol shall initiate the appropriate level of response and either escort the shipment or otherwise monitor progress of the shipment along the route within or through Montana. Highway patrol response plans must be maintained and updated as necessary.

History

Authorizing statute(s): 10-3-1309, MCA
Implementing statute(s): 10-3-1308 and 10-3-1309, MCA
History: NEW, 2004 MAR p. 1628, Eff. 7/23/04.

Mont. Admin. R. 38.9.108 Responsibilities of Public Service Commission

(1) The responsibilities of the public service commission are as provided at 10-3-1309 , MCA.

(2) The public service commission shall monitor transportation of radioactive waste by rail within or through Montana. Following notice of transportation of radioactive waste by rail within or through Montana, the public service commission shall coordinate with appropriate state authorities, agencies of the federal government, and the governments of states and nations bordering Montana, and to the extent necessary, governments of other states, in or through which the radioactive waste is being transported.

(3) The objective of public service commission monitoring is to ensure that necessary inspections, whether done by federally certified inspectors of the public service commission, federal government, or other states, demonstrate that track and rolling stock used for or affected by the transportation of radioactive waste by rail within or through Montana meet and will adhere to all federal and state conditions, serviceability, and operational requirements related to public safety.

History

Authorizing statute(s): 10-3-1309, MCA
Implementing statute(s): 10-3-1309, MCA
History: NEW, 2004 MAR p. 1628, Eff. 7/23/04.

Mont. Admin. R. 38.9.109 State Authorities: Notification by Disaster and Emergency Services Division

(1) Disaster and emergency services division notification to the state authorities shall be by fax and telephone.

History

Authorizing statute(s): 10-3-1309, MCA
Implementing statute(s): 10-3-1306 and 10-3-1309, MCA
History: NEW, 2004 MAR p. 1628, Eff. 7/23/04.

Mont. Admin. R. 38.9.110 Local Authorities: Notification by Disaster and Emergency Services Division

(1) The disaster and emergency services division will provide specific notification through the public safety answering point of all Montana local authorities directly affected by the intended route, and known or likely alternative (emergency) routes of transportation of radioactive waste within or through Montana.

(2) Notification by the disaster and emergency services division will be in accordance with federal department of energy minimum notification guidelines, to the extent circumstances allow. Notification may be modified for security purposes as determined or required by federal or state authorities.

History

Authorizing statute(s): 10-3-1309, MCA
Implementing statute(s): 10-3-1309, MCA
History: NEW, 2004 MAR p. 1628, Eff. 7/23/04.

Mont. Admin. R. 38.9.111 Responsibilities of Local Authorities

(1) Local authorities must convey the disaster and emergency services division notification to the public safety answering point to the appropriate local authority offices, officers, and personnel according to the structure and response plans of the local authority's disaster and emergency services unit and its relationship with essential persons and entities (e.g., county sheriff, county road and bridge department, municipal police chief, municipal street department, etc.) .

History

Authorizing statute(s): 10-3-1309, MCA
Implementing statute(s): 10-3-1309, MCA
History: NEW, 2004 MAR p. 1628, Eff. 7/23/04.

Mont. Admin. R. 38.9.112 Process and Qualifications for Local Governments and Local Emergency Response Entities to Receive Training

(1) The disaster and emergency services division shall provide training for local jurisdiction emergency responders as part of normal disaster and emergency training programs. Local jurisdictions must be notified of the available training programs. Priority in training must be assigned to local jurisdictions on prescribed radioactive waste transportation routes.

History

Authorizing statute(s): 10-3-1309, MCA
Implementing statute(s): 10-3-1309, MCA
History: NEW, 2004 MAR p. 1628, Eff. 7/23/04.

Mont. Admin. R. 38.9.113 Collection of Fees, Accounting, and Disbursement of Funds

(1) The department of transportation shall collect fees in accordance with the act. Fees collected must be deposited in the account administered by the disaster and emergency services division.

(2) The disaster and emergency services division shall disburse amounts from the fund for the purpose of reimbursements in accordance with the act and as follows:

(a) Local governments may receive reimbursement for training. Local governments shall determine the costs incurred for training and submit a bill to the disaster and emergency services division for reimbursement. Reimbursable costs incurred for local authority training are limited to training provided by or approved by the disaster and emergency services division and state approved rates for mileage, meals, and lodging associated with that training.

(b) Local governments may receive reimbursement for emergency response pertaining to transportation of radioactive waste. Local governments shall determine the costs incurred for an emergency response and submit a bill to the disaster and emergency services division for reimbursement.

(c) The highway patrol may receive reimbursement for monitoring or providing escorts of shipments of radioactive waste. The highway patrol shall determine the cost incurred and submit a bill to the disaster and emergency services division. Reimbursable costs for highway patrol monitoring or providing escorts are limited to state approved rates for mileage, meals, and lodging and that part of salaries properly designated overtime, if applicable.

(3) As an advisory rule pending legislative action in accordance with 10-3-1304 , MCA, priority of reimbursement to local governments and the highway patrol, if funds available from the account are limited, must be as follows:

(a) costs of local government emergency response activities;

(b) costs of highway patrol escort and monitoring activities;

END OF TITLE 38

History

Authorizing statute(s): 10-3-1309, MCA
Implementing statute(s): 10-3-1304, 10-3-1306 and 10-3-1309, MCA
History: NEW, 2004 MAR p. 1628, Eff. 7/23/04.