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Montana Administrative Register Notice 24-16-303 No. 3   02/12/2015    
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BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 24.30.102, 24.30.104, 24.30.105, 24.30.106, 24.30.107 workplace safety, and the repeal of 24.16.101, 24.16.1001, 24.16.1003, 24.16.1509, 24.16.1510, 24.16.2511, 24.16.2545 wage protection, 24.21.1001, 24.21.1011, 24.21.1501 workforce services, and 24.30.1301, 24.30.1303 workplace safety

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NOTICE OF PROPOSED AMENDMENT AND REPEAL

 

NO PUBLIC HEARING CONTEMPLATED

 

TO: All Concerned Persons

 

1. On March 16, 2015, the Department of Labor and Industry proposes to amend and repeal 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 February 26, 2015, to advise us of the nature of the accommodation that you need. Please contact Bryan Page, Department of Labor and Industry, P.O. Box 1728, Helena, Montana, 59624; telephone (406) 444-1605; fax (406) 444-9396; TDD (406) 444-5549; or e-mail bpage@mt.gov.

 

3. GENERAL REASONABLE NECESSITY: In 2009, the Montana Legislature passed House Bill 138 and enacted the Montana Occupational Safety and Health Act, codified at 50-71-112, MCA, et seq. The bill also repealed the Montana Safety Act, codified at 50-71-301, et seq. The department determined it is reasonably necessary to amend the workplace safety rules to reflect the current title of the Montana Occupational Safety and Health Act, correct statutory citations, and update the federal regulations adopted by reference in accordance with the 2009 statutory changes.

            Authority and implementation citations are being amended to accurately reflect all statutes implemented through the rules, to provide the complete sources of the department's rulemaking authority, and delete references to repealed statutes.

The department has also determined that reasonable necessity exists to repeal several unnecessary rules concerning wage protection, workforce services, and workplace safety.  Where additional specific bases for a proposed action exist, the department will identify those reasons immediately following that rule.

 

4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            24.30.102 OCCUPATIONAL SAFETY AND HEALTH CODE FOR PUBLIC SECTOR EMPLOYMENT (1) Section 50-71-311 50-71-114, MCA, of the Montana Occupational Safety and Health Act provides that the Department of Labor and Industry may adopt, amend, repeal, and enforce rules for the prevention of accidents to be known as "safety codes" in every employment and place of employment, including the repair and maintenance of such places of employment to render them safe. The federal Occupational Safety and Health Act of 1970 does not include safety standards coverage for employees or political subdivisions of this state. It is the intent of this rule that public sector employees and political subdivisions of this state shall be protected to the greatest extent possible by the same safety standards for employments covered by the federal Occupational Safety and Health Act of 1970. The department is therefore adopting by reference certain occupational safety and health standards, adopted by the United States Secretary of Labor under the federal Occupational Safety and Health Act of 1970. The department has determined, with the assent of the Secretary of State, that publication of the rules would be unduly cumbersome and expensive. Copies of the rules adopted by reference are available and may be obtained at cost from the Montana Department of Labor and Industry, P.O. Box 1728, Helena, Montana 59624-1728, or the Superintendent of Documents, United States Government Printing Office, 941 North Capitol Street, Washington, D.C. 20401.

            (2) remains the same.

            (a) "Act" means the Montana Occupational Safety and Health Act (50-71-101 50-71-111 through 50-71-334 50-71-123, MCA).

            (b) through (d) remain the same.

            (3) The Department of Labor and Industry adopts a safety code for every place of employment conducted by a public sector employer. This safety code adopts by reference the following occupational safety and health standards found in the Code of Federal Regulations, as of July 1, 2008 2014:

            (a) and (b) remain the same.

            (4) All sections adopted by reference are binding on every public sector employer even though the sections are not separately printed in a separate state pamphlet and even though they are omitted from publication in the Montana Administrative Register and the Administrative Rules of Montana. The safety standards adopted above and printed in the Code of Federal Regulations, Title 29, as of July 1, 2008 2014, are considered under this rule as the printed form of the safety code, and shall be used by the department and all public sector employers, employees, and other persons when referring to the provisions of the safety code. All the provisions, remedies, and penalties found in the Montana Occupational Safety and Health Act apply to the administration of the provisions of the safety code adopted by this rule.

            (5) remains the same.

 

            AUTH: 50-71-311 50-71-114, MCA

            IMP:     50-71-112, 50-71-114, 50-71-115, 50-17-118 50-71-311, 50-71-312, MCA

 

            24.30.104 INSPECTIONS AND CITATIONS (1) remains the same.

            (a) Each employer shall post and keep posted a notice or notices, to be furnished by the department's Safety Bureau, informing employees of the protections and obligations provided for in the Montana Occupational Safety and Health Act. Such notice or notices shall be posted by the employer in each public entity in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to ensure that such notices are not altered, defaced, or covered by other material.

            (b) Any representative of the safety bureau appearing at any place of employment including, but not limited to, any field operation, for the purpose of carrying out the intent and purpose of the Montana Occupational Safety and Health Act, shall be allowed entry without delay and at reasonable times.

            (c) Any safety bureau representative may consult with employees concerning matters of occupational safety and health to the extent the representative deems necessary for the conduct of an effective and thorough inspection. During the course of an inspection, any employee shall be afforded an opportunity to bring any violation of the Montana Occupational Safety and Health Act which the employee has reason to believe exists in the workplace to the attention of the safety bureau representative.

            (d) Upon receipt of any citation under the Montana Occupational Safety and Health Act, the employer shall immediately post an unedited legible copy in a prominent place where it will be readily observable by all affected employees. A copy of the completed Mandatory Inspection Response form(s) shall be posted at the same location the citations were posted no later than the time the original Mandatory Inspection Response form is submitted to the safety bureau. It shall remain posted for 30 days or until all abatement action has been approved by the safety bureau, whichever period is longer.

 

            AUTH:  50-71-114, 50-71-311, MCA

            IMP:     50-71-118, 50-71-119, 50-71-123, 50-71-311, 50-71-312, MCA

 

            24.30.105 RECORDING AND REPORTING OCCUPATIONAL INJURIES AND ILLNESSES:  PURPOSE AND SCOPE (1) Pursuant to 50-71-311 50-71-117, MCA of the Montana Occupational Safety and Health Act and to supplement ARM 24.30.102 24.30.107, the Department of Labor and Industry establishes this rule with the purpose of providing a vehicle for recording of all occupational accidents, injuries, and illnesses involving public sector employees covered under the act as necessary or appropriate. Further, this rule provides for developing information regarding the causes and prevention of occupational accidents and maintaining a program of collection, compilation, and analysis of occupational safety and health statistics.

 

            AUTH:  50-71-114, 50-71-301, 50-71-311, MCA

            IMP:     50-71-117, 50-71-119, 50-71-301, 50-71-311, 50-71-312, MCA

 

            24.30.106 RECORDING AND REPORTING OCCUPATIONAL INJURIES AND ILLNESSES: DEFINITIONS As used in this rule, unless the context clearly requires otherwise:

            (1) through (5) remain the same. 

 

            AUTH:  50-71-114, 50-71-311, MCA

            IMP:     50-71-117, 50-71-312, MCA

 

            24.30.107 RECORDING AND REPORTING OCCUPATIONAL INJURIES AND ILLNESSES: LOG AND SUMMARY (1) through (7) remain the same.

 

            AUTH:  50-71-114, 50-71-301, 50-71-311, MCA

            IMP:     50-71-112, 50-71-113, 50-71-117, 50‑71-301, 50-71-311, 50-71-312, MCA

 

            5. The department proposes to repeal the following rules:

 

            24.16.101  GENERAL STATEMENT found at ARM page 24-937.

 

            AUTH:  39-3-402, MCA

            IMP:     39-3-401, MCA

 

REASON: The department is repealing this rule because it unnecessarily restates 39-3-401, MCA, which sets forth the policy to establish and safeguard the minimum wage and overtime laws.

 

            24.16.1001 INTRODUCTORY STATEMENT found at ARM page 24-1005.

 

            AUTH:  39-3-403, MCA

            IMP:     39-3-404, 39-3-405, MCA

 

REASON: The department is repealing this unnecessary rule as it broadly restates minimum wage and overtime provisions adequately addressed in 39-3-404 and 39-3-405, MCA.

 

            24.16.1003 JUDICIAL CONSTRUCTION found at ARM page 24-1005.

 

            AUTH:  39-3-403, MCA

            IMP:     39-3-404, 39-3-405, MCA

 

REASON: This rule is being repealed as it merely describes antiquated case law related to the definition of "employment" and "workweek," both of which are currently defined by Montana law.

 

            24.16.1509 PROCEDURE FOR DETERMINING MINIMUM WAGE found at ARM page 24-1039.

 

            AUTH:  39-3-403, MCA

            IMP:     39-3-409, MCA

 

REASON: The department is repealing this unnecessary rule because it merely references outdated state and federal acts containing the procedures to establish minimum wage levels. These provisions are adequately addressed in statute at 39-3-409, MCA.

 

            24.16.1510 MINIMUM WAGE RATE found at ARM page 24-1039.

 

            AUTH:  39-3-403, MCA

            IMP:     39-3-409, MCA

 

REASON: The department is repealing this unnecessary rule that lists outdated minimum wage levels. This information is adequately addressed in statute at 39-3-409, MCA.

 

            24.16.2511 GENERAL STANDARD FOR OVERTIME PAY found at ARM page 24-1075.

 

            AUTH:  39-3-403, MCA

            IMP:     39-3-404, 39-3-405, 39-3-406, MCA

 

REASON: This rule is being repealed as the provisions on overtime pay are sufficiently addressed in statute at 39-3-405, MCA.

 

            24.16.2545 AGREEMENTS OR PRACTICES IN CONFLICT WITH STATUTORY REQUIREMENTS ARE INEFFECTIVE found at ARM page 24-1111.

 

            AUTH:  39-3-403, MCA

            IMP:     39-3-405, MCA

 

REASON: The department is repealing this rule as it unnecessarily restates 39-3-405, MCA, which guarantees payment of minimum wage and overtime compensation for most employment.

 

            24.21.1001  ON JOB TRAINING REGISTRATION POLICY found at ARM page 24-1385.

 

            AUTH:  39-6-101, MCA

            IMP:     39-6-101, MCA

 

REASON: The department apprenticeship policy is set forth by statute in Title 39, Chapter 6, MCA, and by federal regulation at 29 CFR Part 29. The federal regulations governing apprenticeship programs were issued in 2010. Therefore, this rule is superfluous.

 

            24.21.1011 MINIMUM GUIDELINES FOR PROGRAMS found at ARM page 24-1387.

 

            AUTH:  39-6-101, MCA

            IMP:     39-6-101, MCA

 

REASON: The general guidelines for apprenticeship programs are set forth by federal law and regulation at 29 CFR Part 29, in conjunction with industry standards. The department is repealing this rule as it unnecessarily repeats criteria set forth more explicitly in law.

             

            24.21.1501 VETERANS APPROVAL found at ARM page 24-1395.

 

            AUTH:  39-6-101, MCA

            IMP:     39-6-101, MCA

 

REASON: No criteria for approval of veterans' apprenticeship programs are established by administrative rule, but instead federal law and regulation outline the criteria at 29 CFR Part 29. The Office of Public Instruction has been the approving agency for many years regarding the registration of apprentices who are veterans. Consequently, there is no need for this rule.

 

            24.30.1301 METAL AND NONMETALLIC MINING found at ARM page 24-2713.

 

            AUTH:  50-71-311, 50-72-101 through 50-72-210, MCA

            IMP:    50-71-311, 50-72-101 through 50-72-210, MCA

 

REASON: The department is repealing this rule because ARM 24.30.1311 adequately incorporates the U. S. standards for safety in mines other than coal mines. Therefore, this rule is not necessary.

 

            24.30.1303 CERTIFICATION OF COAL MINE FOREMAN found at ARM page 24-2715.

 

            AUTH:  50-71-103, MCA

            IMP:     50-71-103, MCA

 

REASON: Because the department no longer provides testing for coal mine foremen, this rule is unnecessary. The statute formerly implemented through this rule was repealed in 2009.

 

6. Concerned persons may submit their data, views, or arguments concerning the proposed actions in writing to: Bryan Page, Department of Labor and Industry, P.O. Box 1728, Helena, Montana, 59624; telephone (406) 444-1605; fax (406) 444-9396; TDD (406) 444-5549; or e-mail bpage@mt.gov, and must be received no later than 5:00 p.m., March 13, 2015.

 

7. If persons who are directly affected by the proposed actions wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to Bryan Page at the above address no later than 5:00 p.m., March 13, 2015.

 

8. If the agency receives requests for a public hearing on the proposed action from either 10 percent or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register.  Based on the number of employers and employees in Montana, 25 affected persons would be the lesser number.

 

9. 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 6 above, or may be made by completing a request form at any rules hearing held by the department.

 

10. 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 this 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.

 

11. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor, Rep. Chuck Hunter, was contacted by Bryan Page by telephone on October 20, 2014, and informed of the proposed rulemaking process. Representative Hunter had no comments to offer at that time.

 

12. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment and repeal of the above-referenced rules will not significantly and directly impact small businesses.

 

 

/s/ DARCEE L. MOE                                 /s/ PAM BUCY

Darcee L. Moe                                         Pam Bucy, Commissioner

Rule Reviewer                                          DEPARTMENT OF LABOR AND INDUSTRY

           

Certified to the Secretary of State February 2, 2015

 

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