49-05 Procedure on Regulation of Public Utilities
Loading PDF...
forth any fact or thing done or omitted to be done by any public utility, including any rule,
regulation, or rate established or fixed by or for any public utility, in violation or claimed violation
of any provision of law or any order or rule of the commission.49-05-02.Right to make certain complaints limited.No complaint as to thereasonableness of any rates or charges of any heat, gas, electrical, water, or telecommunications
utility shall be entertained by the commission except when made upon its own motion, unless the
same is signed by the governing body of the county or city, if any, within which the alleged
violation occurred, or by not less than ten percent of the consumers or purchasers of such heat,
gas, electrical, water, or telecommunications service.49-05-03.Hearing on complaint.The commission shall fix the time and place ofhearing upon any complaint and shall serve notice thereof upon the complainant and the utility
affected thereby. Such notice shall be given and proceedings shall be conducted as provided by
chapter 28-32.49-05-04. Application for increase of rates - Information required - Fee. Any publicutility requesting an increase in its rates above the maximum approved or prescribed by the
commission shall furnish the commission:1.The original cost of all its property.2.The date of the acquisition of said property.3.The amount of money invested in said property.4.The amount of stock outstanding.5.The amount of bonds outstanding against said property.6.All books, papers, and memoranda of the utility showing the financial condition
thereof.7.Its total monthly salaries and wage expense for such time as the commission may
request.8.An itemized statement of its expenditures.9.The details of its profit and loss account.10.All other books, papers, vouchers, and accounts which the commission shall ask to
have produced as evidence at the hearing.11.An application fee in the amount of one hundred twenty-five thousand dollars. Upon
request of the commission and with the approval of the emergency commission, the
applicant shall pay such additional fees as are reasonably necessary for completion
of the application process by the commission.The commission shall pay theexpenses of investigating a rate increase application under this section from the
application fee paid by the public utility in accordance with section 49-02-02. The
commission may waive or reduce the fee.49-05-04.1. Test year - Public utility rate filings.Page No. 11.A public utility, at its option, may use any one of the following twelve-month periods
as its test year for rate filings with the commission:a.A historical test year, which may be either the latest twelve-month period for
which actual data is available at the time of filing new schedules or the latest
calendar or fiscal year for which actual data is available at the time of filing new
schedules.b.A current test year, which is any consecutive twelve-month period ending not
later than twelve months after the date new schedules are filed. A public utility
selecting a current test year also shall file data for the twelve-month period
immediately preceding the current test year selected and that period is the
"historical period" for the public utility.c.A future test year, which is any consecutive twelve-month period ending no
later than twenty-four months after the date new schedules are filed. A public
utility selecting a future test year must file data for the twelve consecutive
months immediately preceding the future test year and that period is the
"current period" for the public utility.2.A public utility selecting a current or future test year shall present the following
information:a.A comparison of forecast data to historical period data to demonstrate the
reliability and accuracy of the utility's forecast including a comparison of the
prior years' forecast or budgeted data to actual data for those periods.b.A statement that the public utility's forecast is reasonable, reliable, and was
made in good faith and that all basic assumptions used in making or supporting
the forecast are reasonable, evaluated, identified, and justified to allow the
commission to test the appropriateness of the forecast.c.A statement that the accounting treatment that has been applied to anticipated
events and transactions in the forecast is the same as the accounting treatment
to be applied in recording the events once they have occurred.3.The public utility may update its filing for material changes as actual data becomes
available up to thirty days before the hearing. Except for good cause shown, a
public utility may not submit more than one updated filing before the hearing. In the
absence of an updated filing by the public utility, the commission may require a
public utility to update its filing when the commission staff introduces evidence that a
material change has occurred.4.A public utility may propose estimated or calculated adjustments to the selected
historical or current test year for all known and measurable changes in operating
results as measured in the test year. The adjustments must be made in the same
context and format as the information was provided in the original filing.Theadjustments may reflect material changes in plant investment, operating revenues,
expenses, and capital structure if the changes occurred during the selected historical
or current test year or are reasonably certain to occur subsequent to the selected
test year within twelve months from the date of the rate filing.49-05-04.2. Rate adjustment - Federal environmental mandate costs.1.The commission may approve, reject, or modify a tariff filed under section 49-05-06,
which provides for an adjustment of rates to recover jurisdictional capital costs and
associated operating expenses incurred by a public utility to comply with federal
environmental mandates on existing electricity generating stations. For purposes of
this section, federal environmental mandates are limited to any requirements underPage No. 2the Clean Air Act, the Clean Water Act, or any other federal law or rule designed to
protect the environment. Associated operating expenses are costs incurred by the
public utility to comply with the environmental mandate. The tariff must:a.Allow the public utility to recover on a timely basis its investment in capital costs
and associated operating expenses incurred to meet federal environmental
mandates not reflected in the utility's general rate schedule.b.Allow a return on the public utility's investment made to meet federal
environmental mandates at the level approved in the utility's most recent
general rate case.c.Provide a current return on construction work in progress to meet federal
environmental mandates provided the cost recovery from retail customers of
the allowance for funds used during construction is not sought through any
other means.d.Terminate cost recovery after the public utility's costs and expenses to meet
federal environmental mandates have been recovered fully or have been
reflected in the utility's general rate tariffs.2.Rate adjustments filed under the tariff must be accompanied by:a.A description and quantification of the costs and expenses incurred by the
public utility to meet federal environmental mandates which are subject to
recovery;b.A schedule for implementation of the applicable projects;c.Calculations to establish that the rate adjustment is consistent with the terms of
the tariff; andd.An application fee in the amount of fifty thousand dollars. Upon request of the
commission and with the approval of the emergency commission, the applicant
shall pay such additional fees as are reasonably necessary for completion of
the application process by the commission. The commission may waive or
reduce the fee.3.Upon receipt of a rate adjustment filed under the tariff, the commission shall approve
the rate adjustment to become effective unless, after notice and opportunity for
hearing and comment, the commission determines the rate adjustment does not
comply with the tariff or the incurred costs and expenses to meet federal
environmental mandates are not reasonable and prudent. The commission shall
pay the expenses of investigating a rate adjustment to meet federal environmental
mandates under this section from the application fee paid by the public utility in
accordance with section 49-02-02. The public utility has the burden of proving that
the rate adjustment complies with the tariff and that the costs and expenses incurred
to meet federal environmental mandates are reasonable and prudent.49-05-04.3. Rate adjustment - Transmission facility costs.1.The commission may approve, reject, or modify a tariff filed under section 49-05-06
which provides for an adjustment of rates to recover jurisdictional capital and
operating costs incurred by a public utility for new or modified electric transmission
facilities. For purposes of this section, an electric transmission facility includes an
electric transmission line as defined in chapter 49-21.1 and other transmission line
equipment, including substations, transformers, and other equipment constructed to
improve the power delivery capability or reliability of the electric transmission
system; and operating costs include federally regulated costs charged to or incurredPage No. 3by the public utility to increase regional transmission capacity or reliability. The tariff
must:a.Allow the public utility to recover on a timely basis its investment and
associated costs for new or modified electric transmission facilities not reflected
in the utility's general rate schedule;b.Allow a return on the public utility's investment made for new or modified
electric transmission facilities at the level approved in the utility's most recent
general rate case;c.Provide a current return on construction work in progress for new or modified
electric transmission facilities, provided the cost recovery from retail customers
of the allowance for funds used during construction is not sought through any
other means; andd.Terminate cost recovery after the public utility's costs for new or modified
electric transmission facilities have been recovered fully or have been reflected
in the utility's general rate tariffs.2.Rate adjustments filed under the tariff must be accompanied by:a.A description and quantification of the costs incurred by the public utility for new
or modified electric transmission facilities which are subject to recovery;b.A schedule for implementation of the applicable transmission facility projects;c.Calculations to establish that the rate adjustment is consistent with the terms of
the tariff; andd.An application fee in the amount of fifty thousand dollars. Upon request of the
commission and with the approval of the emergency commission, the applicant
shall pay such additional fees as are reasonably necessary for completion of
the application process by the commission. The commission may waive or
reduce the fee.3.Upon receipt of a rate adjustment filed under the tariff, the commission shall approve
the rate adjustment to become effective unless, after notice and opportunity for
hearing and comment, the commission determines the rate adjustment does not
comply with the tariff or the incurred costs for new or modified electric transmission
facilities are not reasonable and prudent. The commission shall pay the expenses of
investigating a rate adjustment for recovery of transmission facility costs under this
section from the application fee paid by the public utility in accordance with section
49-02-02.49-05-05. Changes in tariff rates - Notice to commission - Filing fee. No changeshall be made by any public utility in any tariffs, rates, joint rates, fares, tolls, schedules,
classifications, or service which have been filed and published by any public utility, except after
thirty days' notice to the commission. The notice shall state plainly the changes proposed and
except for services must be accompanied by a fifty dollar filing fee. The commission, for a good
cause shown, may allow changes upon less than the notice herein specified, either in particular
instances or by a general order applicable to special or peculiar circumstances or conditions.49-05-06. Hearing by commission on proposed change of rates.1.Whenever a notice or any schedule stating an individual or joint rate, classification,
contract, practice, or rule, increasing or decreasing, or resulting in an increase or
decrease in any rate, is filed with the commission, the commission may suspend by
motion the rate, classification, contract, practice, or rule but the period of suspensionPage No. 4may not extend more than six months beyond the time when it otherwise would go
into effect.Upon complaint or upon its own initiative without complaint thecommission may order a hearing, upon due notice, concerning the propriety of the
rate, classification, contract, practice, or rule.On such hearing, the commissionshall establish the rates, classifications, contracts, practices, or rules proposed, in
whole or in part, or others in lieu thereof, which it finds to be just and reasonable. At
any such hearing, the burden to show that the increased rate or proposed change of
rate, classification, rule, or practice is just and reasonable is upon the public utility
applying for the increase.All such rates, classifications, contracts, practices, orrules, not suspended, on the expiration of thirty days from the time of filing with the
commission, or of such lesser time as the commission may grant, become effective
rates, classifications, contracts, practices, or rules, subject to the power of the
commission, after a hearing had on its own motion or upon complaint, to alter or
modify the same.2.Notwithstanding that the commission may suspend a filing and order a hearing, a
public utility may file for interim rate relief as part of its general rate increase
application and filing. If interim rates are requested, the commission shall order that
the interim rate schedule take effect no later than sixty days after the initial filing date
and without a public hearing. The interim rate schedule must be calculated using
the proposed test year cost of capital, rate base, and expenses, except that the
schedule must include:a.A rate of return on common equity for the public utility equal to that authorized
by the commission in the public utility's most recent rate proceeding;b.Rate base or expense items the same in nature and kind as those allowed by a
currently effective commission order in the public utility's most recent rate
proceeding; andc.No change in existing rate design.3.In ordering an interim rate schedule, the commission may require a bond to secure
any projected refund required by subsection 4. The terms of the bond, including the
amount and surety, are subject to the commission's approval.4.As ordered by the commission, the utility shall promptly refund to persons entitled
thereto all interim rate amounts collected by the public utility in excess of the final
rates approved by the commission plus reasonable interest at a rate to be
determined by the commission.49-05-07. Immunity from prosecution for self-incrimination. No person subpoenaedor ordered shall be excused from attending and testifying or from producing books, records,
correspondence, documents, or other evidence in any investigation or inquiry by or hearing
before the commission or any commissioner upon the ground that the testimony or evidence
required of the person may tend to incriminate the person or subject the person to a penalty or
forfeiture. No person shall be prosecuted or subjected to any penalty or forfeiture for or on
account of any act, transaction, matter, or thing concerning which the person is compelled, after
having claimed the privilege against self-incrimination, to testify or produce evidence.Theprovisions of this section shall not exempt any person from prosecution or punishment for
perjury. Nothing herein contained shall be construed as in any manner giving to any public utility
immunity of any kind.49-05-08. Orders and decisions of commission - Conclusive. In all collateral actionsor proceedings, the orders and decisions of the commission which have become final shall be
conclusive.49-05-09. Decisions of commission - Rescission or amendment. The commission,at any time, upon due notice to the public utility affected and after opportunity to be heard asPage No. 5provided in the case of complaints, may rescind, alter, or amend any decision made by it. Any
order rescinding, altering, or amending a prior order or decision, when served upon the public
utility affected, shall have the same effect as an original order or decision.49-05-10. Improper action taken by utility - Damages - Who may sue - Recovery. Incase any public utility shall do, cause to be done, or permit to be done, any act, matter, or thing
prohibited, forbidden, or declared to be unlawful, or shall omit to do any act, matter, or thing
required to be done, either by the constitution, any law of this state, or any order or decision of
the commission, such public utility shall be liable to the persons, corporations, or limited liability
companies affected thereby for all loss, damages, or injury caused thereby or resulting
therefrom. If the court shall find that the act or omission was willful, the court, in addition to the
actual damages, shall award damages for the sake of example and by way of punishment. An
action to recover for such loss, damage, or injury may be brought in any court of competent
jurisdiction by any corporation, limited liability company, or person.No recovery under thissection in any manner shall affect a recovery by the state of the penalties provided in this title or
the power to punish for contempt.49-05-11. Orders issued by commission - Period remaining in force. Every orderentered by the commission shall continue in force until the expiration of the time, if any, named
by the commission in such order or until revoked or modified by the commission, unless the
same is suspended, modified, or revoked by order or decree of a court of competent jurisdiction.49-05-12. Appeal from decision of commission. Any party to any proceeding heardby the commission feeling aggrieved by the decision or by the entry of any final order of the
commission therein may appeal therefrom to the district court in the manner prescribed in
chapter 28-32.49-05-13.Suspension of order on appeal only by order of court.Repealed byomission from this code.49-05-14. Stay on appeal - Suspending bond - Impounding excess charges. In casethe order or decision of the commission is stayed or suspended, the order of the court shall not
become effective until a suspending bond first shall have been executed and filed with and
approved by the district court, payable to the state of North Dakota, and sufficient in amount and
security to ensure the prompt payment, by the party appealing, of all damages caused by the
delay in the enforcement of the order or decision of the commission and of all the moneys which
any person, corporation, or limited liability company may be compelled to pay, pending the
appeal, for transportation, transmission, product, commodity, or service in excess of the charges
fixed by the order or decision of the commission, in case said order or decision is sustained. The
district court, in case it stays or suspends the order or decision of the commission in any matter
affecting rates, also by order shall direct the public utility affected to pay into court, from time to
time, there to be impounded until the final decision of the case, or into some bank or trust
company paying interest on deposits, under such conditions as the court may prescribe, all sums
of money which it may collect from any corporation, limited liability company, or person in excess
of the sum which such corporation, limited liability company, or person would have been
compelled to pay if the order or decision of the commission had not been stayed or suspended.
Upon a final determination of an appeal, the court shall make an appropriate order disposing of
the impounded funds in accordance with such determination. In the event the public utility shall
fail to comply with the conditions of the stay bond, the commission may sue thereon for the use
and benefit of the patrons or others who have suffered damage by reason of the stay.49-05-15.Appeals to supreme court.The commission, the public utility, thecomplainant, or any other interested person, after the entry of judgment in the district court upon
an appeal from the order of the commission, may prosecute an appeal to the supreme court of
this state. Such appeal shall be taken as prescribed in chapter 28-32.49-05-16. Advance determination of prudence. A public utility proposing to construct,lease, or make improvements to an energy conversion facility, renewable energy facility,
transmission facility, or proposed energy purchase contract from another entity or person for thePage No. 6purpose of ensuring reliable electric service to its customers may file an application with the
commission for an advance determination of prudence regarding the proposal. The commission
shall pay the expenses associated with investigating the application made by the public utility for
prudence of a resource addition from the application fee paid by the public utility in accordance
with section 49-02-02.1.The commission may issue an order approving the prudence of an electric resource
addition if:a.The public utility files with its application a projection of costs to the date of the
anticipated commercial operation of the electric resource addition;b.The public utility files with its application a fee in the amount of one hundred
twenty-five thousand dollars. Upon request of the commission and with the
approval of the emergency commission, the applicant shall pay such additional
fees as are reasonably necessary for completion of the application process by
the commission. The commission may waive or reduce the fee.c.The commission provides notice and holds a hearing, if appropriate, in
accordance with section 49-02-02; andd.The commission determines that the resource addition is reasonable and
prudent. For facilities located or to be located in this state the commission, in
determining whether the resource addition is reasonable and prudent, shall
consider the benefits of having the energy conversion facility, renewable energy
facility, transmission facility, or facility generating the energy to be purchased
located in this state.2.The commission order must be rendered no later than seven months after the public
utility files its application requesting a prudence determination of an electric resource
addition.3.A resource addition approved by the commission is subject to annual reporting
requirements until commercial operation of the resource addition.4.The commission's order determining prudence of the resource adjustment is binding
for ratemaking purposes.5.If at any time following an initial commission order, the commission, following a
subsequent hearing, determines that continuation of a project is no longer prudent or
that its prior order should be modified, the public utility may recover in its rates, and
in a timely manner consistent with the public utility's financial obligations, the
amounts the public utility already has expensed, incurred, or obligated on a project,
including interest expense and a return on equity invested in the project up to the
time the new order is entered even though the project may never be fully operational
or used by the public utility to serve its customers.6.There is a rebuttable presumption that an energy conversion facility, renewable
energy facility, transmission facility, or facility generating the energy to be purchased
which is located in the state is prudent.Page No. 7Document Outlinechapter 49-05 procedure on regulation of public utilities