BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY
OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On March 21, 2014, at 9:00 a.m., the Department of Labor and Industry will hold a public hearing in the Second Floor Conference Room of the Walt Sullivan Building, at 1315 Lockey Avenue, Helena, Montana, to consider the proposed amendment of the above-stated rules.
2. The Department of Labor and Industry 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 Department of Labor and Industry no later than 5:00 p.m. on March 19, 2014, to advise us of the nature of the accommodation that you need. Please contact Jordon Dyrdahl-Roberts, Department of Labor and Industry, P.O. Box 1728, Helena, Montana, 59624; telephone (406) 444-4493; fax (406) 444-1394; Montana Relay Service at 711; or e-mail firstname.lastname@example.org.
3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
24.22.301 DEFINITIONS (1) remains the same.
(2) "Conference" means a meeting, seminar, discussion, or other similar event where the principal presentation, in the format of a lecture or similar presentation, is the primary purpose, and participation by attendees is a secondary purpose.
(2) through (6) remain the same but are renumbered (3) through (7).
(8) "Skills-based training" means a training program which increases the quality of tasks an employee is able to perform or increases the number of types of tasks an employee is able to perform. One must have the ability to demonstrate that an employee be able to execute new tasks, or old tasks in new ways, as a direct result of the training. The term does not refer to increasing generally an employee's knowledge of a topic area or areas.
AUTH: 53-2-1220, MCA
IMP: 53-2-1215, 53-2-1216, MCA
REASON: Reasonable necessity exists to include these definitions because of apparent confusion to this point about the types of trainings allowable under the Incumbent Worker Training Program. In concert with the definition of "skills-based training," reasonable necessity exists to define "conference" to allow employers ample understanding of what sorts of trainings are or are not available for funding under this program. The addition of a definition for "skills-based training" is designed to clarify the purpose of the Incumbent Worker Training Program by defining a term used throughout the regulations. Further, the definition allows a closer alignment of the regulations with the intention of the creating acts, by increasing the regulation's particularity.
24.22.307 GENERAL REQUIREMENTS (1) The department provides grant funding on a first-come, first-served basis, in accordance with the
day date of receipt of an application for funding by the department. Facsimile transmissions are accepted.
(2) The department shall review the expenditures of the incumbent worker training program throughout the fiscal year.
One-fourth of the total annual grant funds shall be available during each quarter-year of the program. When funds allotted for a quarter are depleted before the end of the quarter fiscal year, the department may suspend the grant program until the beginning of the next quarter and consider pending applications at the start of the next quarter fiscal year. The department shall carry-over to the next quarter any funds not expended by the end of a quarter.
(3) The department shall accept only those grant applications and approval recommendations for incumbent worker training submitted to the department by a recommending entity. Only those grant applications that have been
approved recommended to receive grant funding by a recommending entity are eligible for funding.
(4) remains the same.
(5) The department shall enter into funding agreements for incumbent worker training with the employers upon grant application approval. Funding agreements must contain the following:
(a) the terms of the grant;
(b) a schedule for direct payment to the eligible training provider, when applicable;
(c) a schedule for
pre-payment or reimbursement of approved costs to the employer, when applicable; and
(d) the grant reporting requirements of the employer.
(6) remains the same.
(7) Matching share paid by the employer may include:
(a) cost of tuition, fees for certified education, or skills-based training;
(b) employee wages for the time of actual training and travel time to and from training;
(c) direct employee benefits for actual training and travel time, excluding mandatory payroll taxes, premiums for workers compensation, and unemployment insurance;
(d) cost of educational materials, training supplies, or lab fees required for training; and
travel transportation and lodging costs required for training, calculated at the current state of Montana rate. A minimum of 50 percent of out-of-state travel costs, if any, must be paid by the employer as matching share.
(8) Incumbent worker training grant funds may pay for:
(a) certified education or skills-based training for permanent employees;
(b) educational materials, training supplies, or lab fees required for training; and
travel transportation and lodging costs required for training, calculated at the current state of Montana reimbursement rate for state employees. Grant funds may pay for no more than 50 percent of out-of-state travel costs.
AUTH: 53-2-1220, MCA
IMP: 53-2-1217, 53-2-1218, MCA
REASON: There is reasonable necessity to change ARM 24.22.307(1) to prevent confusion for applicants that facsimile might be the only way to submit applications, when, in fact, a number of transmission possibilities exist. Reasonable necessity exists to change the allocation timing of funding because the purpose of the Incumbent Worker Training Program is to provide training funding on an as-needed basis. The changes to the remaining sections are semantic, designed to clarify wording. The changes are necessary to avoid confusion about the purpose of the program and the way in which funding is allocated. Section (3) changes reflect that recommending entities merely recommend, rather than approve funding. The change to (5) better reflects the current reality that funding is available by reimbursement, rather than prepayment. The changes in (7) and (8) reiterate that funding is available only for training, not for general purposes. Finally, changes to (7)(e) and (8)(c) clarify that funding is available only for transportation, not all travel-related costs. This has been a source of confusion for applicants.
24.22.311 GRANT APPLICATION PROCEDURES (1) The department shall make available the incumbent worker training grant application form(s), which a business entity
and recommending entity must complete in conjunction with a recommending entity for the purpose of applying for a grant award.
(2) The fiscal year for this program is from July 1 through June 30. A business entity may submit an application to a recommending entity during the fiscal year for eligible training that will begin during that same fiscal year. The recommending entity shall verify that the business entity is an employer that meets the definition of ARM 24.22.301 and that the information contained in the application is accurate and complete. The recommending entity shall evaluate the application based upon the incumbent worker training program grant award criteria provided in 53-2-1218, MCA, and makes a recommendation as to:
(a) and (b) remain the same.
(3) Applications submitted to the department for grant funding must be signed and dated by both the employer and an authorized representative of the recommending entity, and address at a minimum the following:
(a) the goals of the proposed training of incumbent workers; and
(b) the anticipated economic benefits from the training.
(4) The recommending entity shall submit a recommendation for approval or denial
cover letter to the department with each completed grant application. The cover letter must address, at a minimum, an analysis of the following:
(a) the goals of the proposed training of incumbent workers;
(b) the anticipated economic benefits from the training; and
(c) the recommendation for a specific amount of grant funding.
(5) If the grant application seeks funding for a conference, the application must be accompanied by additional justification as required by the department.
AUTH: 53-2-1220, MCA
IMP: 53-2-1217, 53-2-1218, MCA
REASON: There is reasonable necessity to change ARM 24.22.311(1) because multiple forms exist which applicants are required to complete. This change is designed to prevent the confusion that presently exists with that issue. The second change is necessary to create additional clarity as to which entity must complete the forms. There is reasonable necessity to change (2) to stop confusion about when applications may be submitted to receive funding under the program. Changes to (3) and (4) require applicants to include goals and benefits of funding within the application itself. Additionally, the changes to (4) reflect the reality that recommending entities must recommend approval or denial of applications. This recommendation need not be in the form of a cover letter, and is currently on the application itself, to be completed by the recommending entity. The addition of (5) reflects the need of the department to limit funding to skills-based training based upon the goals in the statute. The submission of additional justification will allow the department to evaluate fully whether a conference meets the requirements of the Incumbent Worker Training Program. Much of the information sought has previously been obtained piecemeal by administrators of the fund. By requesting the materials in the application, the administrator and employer burden of the current process should be lessened.
24.22.316 EVALUATION CRITERIA AND LIMITATIONS (1) The department shall award incumbent worker training grants to employers in accordance with the grant award criteria set forth by 53-2-1218, MCA, and the
approval recommendation of a recommending entity.
(2) remains the same.
(3) The department shall award grant funding only to employers who have demonstrated that incumbent worker training is an integral part of a plan for worker retention, skill improvement,
and or wage enhancement.
(4) remains the same.
(5) Conferences generally do not meet the requirements of the program. Applications for conferences must be submitted with additional justification as required by the department. If a conference application is submitted without such justification, it will be rejected. Employers should err on the side of submitting justification if they are not sure whether the event for which funding is requested is a conference or not. This justification provides employers the opportunity to make a compelling case that a conference will advance the worker and his or her skill level. Justification must be accompanied by all documents relevant to answer the questions thereon. Employers must submit information about the conference including, but not limited to:
(a) justification that the proposed training will advance the worker and his or her skill level;
(b) justification that the conference is skills-based training; and
(c) which specific sessions of the conference the worker will attend.
AUTH: 53-2-1220, MCA
IMP: 53-2-1217, 53-2-1218, MCA
REASON: The change to ARM 24.22.316(1) provides consistency in noting that recommending entities merely recommend grant awards, rather than approve them. There is reasonable necessity to clarify for employers that conferences often do not meet the requirements of the Incumbent Worker Training Program, which has caused confusion in recent applications. Currently, administrators of the program have been required to conduct extensive reviews of conferences to determine whether they meet the requirements of the program. These reviews cost a great deal of administrative time, as well as the time of employers who must continue to provide information throughout the review. Through the submission of conference justifications, employers and fund administrators will be able more efficiently to evaluate whether conferences can be funded. The submission of additional justification will also ensure that the program meets the criteria set forth in 53-2-1218, MCA.
24.22.321 APPEAL PROCEDURE (1) remains the same.
(2) Within 30 calendar days of the date the determination letter was issued, the employer may appeal a funding recommendation and subsequent determination. The employer first must seek informal administrative review of a funding recommendation by submitting a written request for review, a copy of the grant application, and a copy of the notice letter to the appropriate entity, as follows:
decisions recommendations of a BEAR program must be submitted for review to the Montana Economic Development Developers Association, MEDA-BEAR Working Group, 118 E. Seventh Street, Suite 2A, Anaconda, MT 59711; (406) 563-5259;
decisions recommendations of an SBDC must be submitted for review to the Department of Commerce, SBDC Lead Center, Business Resources Division, Room 116, P.O. Box 200505, Helena, MT 59620-0505; (406) 841-2769; and
decisions recommendations of MMEC must be submitted for review to the Montana Manufacturing Extension Center, P.O. Box 174255, Bozeman, MT 59717; (406) 994-3876.
(3) The entity providing administrative review shall evaluate the funding decision and send a written notice of findings and recommendations to the employer and the department within 30 calendar days of receipt of the request for review.
(4) Within 20 calendar days of the mailing of the notice of findings and recommendations by the entity providing administrative review, the department shall consider the findings and recommendations and make a final decision on the grant application and notify the parties in writing.
(5) Within 20 calendar days of the mailing of the notice of the final decision of the department, the employer may submit a written request to the department for a contested case proceeding, pursuant to Title 2, chapter 4, MCA, to challenge a department action to deny a grant application or to provide less grant funding than requested.
(6) and (7) remain the same.
AUTH: 2-4-201, 53-2-1220, MCA
IMP: 2-4-201, 53-2-1218, MCA
REASON: Reasonable necessity exists to amend ARM 24.22.321(2) because of the need for disputes to be resolved before money for a fiscal year has been used. A thirty-day appeal period allows employers ample opportunity to review an application recommendation and dispute any problems found while also ensuring that funding can be used. The remaining changes merely clarify that other entities make funding recommendations rather than decisions, and clarify that days within this part are intended to be calendar days. Additionally, the change in (2)(a) of "Development" to "Developers" merely corrects a typographical error.
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: Pam Watson, Workforce Services Division, Department of Labor and Industry, P.O. Box 1728, Helena, Montana, 59624; fax (406) 444-3037; Montana Relay Service at 711; or e-mail email@example.com, and must be received no later than 5:00 p.m., March 28, 2014.
5. The department's Hearings Bureau has been designated to preside over and conduct this hearing.
6. 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 or areas of law 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 Department of Labor and Industry, Attention: Mark Cadwallader, 1315 E. Lockey Avenue, P.O. Box 1728, Helena, Montana 59624-1728, faxed to the department at (406) 444-1394, e-mailed to firstname.lastname@example.org, or may be made by completing a request form at any rules hearing held by the agency.
7. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.
8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
9. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses. The Incumbent Worker Training Program is designed to provide limited funding on a first-come first-served basis to small businesses based upon applications submitted each year. As such, the limited changes to these rules do not significantly change the ongoing operations or costs for businesses.
10. The department proposes to make the above amendments effective on July 1, 2014, in order to coincide with the start of the state fiscal year. The department believes that there is reasonable necessity to propose the amendments now, so that businesses have sufficient notice of the changes prior to the changes becoming effective. The department reserves the right to make the proposed amendments effective on a different date, or to not make the proposed changes.
/s/ Mark Cadwallader /s/ Pam Bucy
Mark Cadwallader Pam Bucy
Rule Reviewer Commissioner
Department of Labor and Industry
Certified to the Secretary of State February 18, 2014.