BEFORE THE DEPARTMENT OF PUBLIC SERVICE REGULATION
OF THE STATE OF MONTANA
In the matter of the amendment of ARM 38.2.304 pertaining to the department's procedures for collecting fees and other charges
NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT
TO: All Concerned Persons
1. On October 27, 2021, at 10:00 a.m., the Department of Public Service Regulation will hold a public hearing in the Bollinger Room at 1701 Prospect Avenue, Helena, Montana, to consider the proposed amendment of the above-stated rule. The department will accommodate remote participation via video conference. Commenters seeking to participate in the hearing by video conference must contact the department at 1-800-646-6150 by 5 p.m., October 26, 2021, to receive the necessary call-in information for the hearing. The hearing will be livestreamed at http://psc.mt.gov/stream.
2. The Department of Public Service Regulation will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Public Service Regulation no later than 5:00 p.m. on October 25, 2021, to advise us of the nature of the accommodation that you need. Please contact Loryn Johnson, Department of Public Service Regulation, 1701 Prospect Avenue, Helena, Montana, 59620-2601; telephone (406) 444-6170; TDD/Montana Relay Service (406) 444-4212; or e-mail Loryn.Johnson@mt.gov.
3. The rule as proposed to be amended provides as follows, new matter underlined, deleted matter interlined:
38.2.304 FEES, COSTS, ACCOMPANYING FORMS, AND COLLECTIONS
(1) All application forms and fees or other charges required by law
shall be paid are due and must be submitted to the commission department at the time the application is filed with the commission 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 publication of notice shall be are due upon notice from the commission department.
(2) Any entity 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.
AUTH: 17-4-110, 69-1-110
(3), 69-2-101, 69-3-103, 69-12-201 (2), MCA
IMP: 17-4-110, 69-2-101, MCA
REASON: In the department's fiscal years 2019 and 2020 financial and compliance audit report, the Legislative Audit Division recommended that the department strengthen internal controls over collection of accounts receivable, including the recommendation to comply with a state policy requiring the transfer of unpaid receivables to a collections agency. To use the state of Montana's primary collection service—the Department of Revenue, Collections Bureau—the department must obtain a taxpayer identification number, which the IRS Forms W‑8 and W-9 provide. IRS Forms W-8 and W-9 are the generally accepted forms to obtain taxpayer identification numbers. The new language in (1) and (2) of the proposed amended rule is reasonably necessary to ensure the department receives taxpayer identification numbers with each proceeding.
New (4) is reasonably necessary to protect sensitive information contained in Forms W-8 and W-9. Types of taxpayer identification numbers include social security numbers and employer identification numbers. Although an employer identification number is not confidential, it may be exploited for fraudulent purposes. Currently, the department's electronic case management system does not allow the department to prevent the broad dissemination of Forms W-8 and W-9 when they are filed electronically. Unencrypted e-mail filing is similarly insecure. The department, therefore, finds it reasonably necessary to require the filing of taxpayer identification numbers through physical delivery or encrypted, electronic delivery. The department does not currently have an encrypted, electronic delivery service, but may implement one in the future. The department anticipates that some filers may have access to their own encrypted, electronic delivery services and intends to allow filing through those services.
New (5) is reasonably necessary to clarify which parties will be assessed the cost of publication of the notice. The department has determined that this language is reasonably necessary to provide advance notice of its longstanding practice.
New (6) is reasonably necessary to cover the costs associated with overdue accounts. The department estimates that processing costs, including staff time and mailing past-due reminders, are approximately $50 per month. The department has included a 60-day grace period to accommodate the dispute resolution process provided in (7).
New (7) allows individuals and entities to challenge an assessment within a reasonable period. This process is reasonably necessary to allow objections before the department begins assessing late fees.
New (8) is an enforcement mechanism for the department's fee assessments. The department does not intend to halt all proceedings when a party has overdue fees. Parties may continue to participate in a proceeding. However, the department will not consider any application, petition, motion, or other request submitted by a party owing overdue fees. The commission may waive this provision to prevent unjust or inequitable results.
The department anticipates the amendments to the rule will encourage parties to promptly pay fees and other charges, and thereby avoid the $50 late fee created in this rulemaking. The department anticipates that the late fee will affect approximately five parties each year, and the total fees collected will be approximately $500 per year.
4. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Loryn Johnson, Department of Public Service Regulation, 1701 Prospect Avenue, Helena, Montana, 59620-2601; telephone (406) 444-6170; TDD/Montana Relay Service (406) 444-4212; or e-mail Loryn.Johnson@mt.gov, and must be received no later than 5:00 p.m., November 3, 2021.
5. The Montana Consumer Counsel, 111 North Last Chance Gulch, Suite 1B, Helena, MT 59620-1703, telephone (406) 444-2771, is available and may be contacted to represent consumer interests in this matter.
6. The commission, a commissioner, or a duly appointed presiding officer may preside over and conduct the hearing.
7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in paragraph 2 above or may be made by completing a request form at any rules hearing held by the department.
8. An electronic copy of this proposal notice is available through the Secretary of State's website at http://sosmt.gov/ARM/Register.
9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
10. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rule will not significantly and directly impact small businesses.
/s/ Lucas Hamilton /s/ James Brown
Lucas Hamilton James Brown
Rule Reviewer Public Service Commission Chair
Department of Public Service Regulation
Certified to the Secretary of State September 14, 2021.