BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY
OF THE STATE OF MONTANA
In the matter of the adoption of NEW RULES I through VIII pertaining to the operation of the underground facilities protection program
NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION
TO: All Concerned Persons
1. On July 13, 2018, at 10:00 a.m., a public hearing will be held in the Basement Conference Room #B-07, 301 South Park Avenue, Helena, Montana, to consider the proposed adoption of the above-stated rules.
2. The Department of Labor and Industry (department) will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact the Building Codes Program no later than 5:00 p.m., on July 6, 2018, to advise us of the nature of the accommodation that you need. Please contact Carrie Baker, Building Codes Program, 301 South Park Avenue, P.O. Box 200517, Helena, Montana 59620-0517; telephone (406) 841-2016; Montana Relay 1 (800) 253-4091; TDD (406) 444-2978; facsimile (406) 841-2050; or at CBaker@mt.gov.
3. GENERAL STATEMENT OF REASONABLE NECESSITY: The 2017 Montana Legislature enacted Chapter 326, Laws of 2017 (House Bill 365), an act revising laws regarding excavations near underground facilities, creating an underground facility protection advisory council (advisory council) allocated to the department, and establishing the council's and the department's relevant duties and responsibilities. The bill was signed by the Governor on May 4, 2017, and became effective July 1, 2017. The department determined it is reasonably necessary to adopt NEW RULES I through VIII to implement the legislation by establishing the processes to assess and collect the various fees, fines, and civil penalties provided by the bill.
In developing the initial draft rules, the department reviewed the rules and requirements of similar programs in other states, as well as the provisions of Montana law. The department also consulted with various stakeholders with respect to various technical issues as well as examining the department's proposed business processes regarding implementation of the program.
Pursuant to 69-4-521, MCA, the department obtained the input and advice of the advisory council established by 69-4-520, MCA. The advisory council is an appointed body consisting of various stakeholders, including facility owners of various sizes and in different sectors (gas, electricity, communications, water) and excavators. The advisory council met on April 12, 2018, and reviewed a draft version of the rules. Following discussion by its members and with department staff, the advisory council approved the draft rules. The rules proposed for adoption reflect modifications made in accordance with the comments and suggestions made by the advisory council.
Accordingly, the board believes that there is reasonable necessity to adopt NEW RULES I through VIII at this time to further implement the legislation.
4. The proposed new rules are as follows:
NEW RULE I DEFINITIONS For the purposes of this chapter, the following definitions apply:
(1) "Advisory council" means the underground facility protection advisory council provided for by 69-4-520, MCA.
(2) "Call center" means a notification center, as defined in 60-4-501, MCA, that serves a designated geographical region of Montana for purposes of allowing excavators to obtain the location of underground facilities in the location where an excavation is proposed to occur. A call center is also known as a "call before you dig" center, or an "811" center.
(3) "Department" means the Department of Labor and Industry, as provided by 69-4-501, MCA.
(4) "Excavator" has the same meaning as provided by 69-4-501, MCA.
(5) "Incident" has the same meaning as provided by 69-4-501, MCA.
(6) "Underground facility owner" has the same meaning as provided by 69-4-501, MCA.
AUTH: 69-4-522, MCA
IMP: 69-4-501, 69-4-520, MCA
NEW RULE II COLLECTION OF INCIDENT REPORTS (1) A call center must submit an incident report to the department within 30 days of learning of an incident.
(2) The department shall accept incident reports submitted by a call center:
(a) on a department-approved reporting form:
(i) via U.S. Mail to Underground Facility Protection Program, P.O. Box 200517, Helena, MT 59620-0517; or
(ii) via fax to (406) 841-2050; or
(i) via e-mail to firstname.lastname@example.org; or
(ii) via the internet to the department's web site at http:\\ebiz.mt.gov.
AUTH: 69-4-522, MCA
IMP: 69-4-522, 69-4-529, MCA
NEW RULE III ASSESSMENT AND COLLECTION OF CIVIL PENALTIES
(1) In order to determine when the last 100 locate requests were made, or the number of locate requests made in the past 12 months, the department shall contact each call center serving Montana to obtain that information. Each call center shall provide the requested information within seven days of the department's request.
(2) In order to timely issue civil penalties as required by 69-4-524 and 69-4-525, MCA, if both call centers do not respond within ten days of a request, the department may issue a civil penalty based solely on the number of locate requests identified by the call center in which the event or incident occurred.
(a) For good cause shown, a party to whom a civil penalty has been issued pursuant to (2) may seek a recalculation of the penalty based on information received from both call centers.
(b) The department may withdraw a civil penalty if the underground facility owner, pursuant to 69-4-529, MCA, timely notifies the department that the civil penalty is not required.
(3) A party aggrieved by the imposition of a civil penalty may contest the penalty as provided for in [NEW RULE VI].
(4) A civil penalty that has not been contested and which remains unpaid for more than 75 days after it was issued may be referred by the department for collection of the debt.
AUTH: 69-4-522, MCA
IMP: 69-4-522, 69-4-524, 69-4-525, 69-4-529, 69-4-530, MCA
NEW RULE IV COLLECTION OF FINES (1) The department shall, as required by 69-4-529, MCA, assess a fine of $100 on an underground facility owner for each report the underground facility owner fails to timely file.
(2) A party aggrieved by the imposition of a fine may contest the fine as provided for in [NEW RULE VI].
(3) A fine that has not been contested and which remains unpaid for more than 75 days after it was issued may be referred by the department for collection of the debt.
AUTH: 69-4-522, MCA
IMP: 69-4-522, 69-4-529, 69-4-530, MCA
NEW RULE V COLLECTION OF ANNUAL FEES (1) In order to collect the annual fees from underground facility owners, the department may, by contract or other agreement, have the annual billing performed by the call centers.
(2) An underground facility owner may receive a bill from any call center from which the underground facility owner has received locate requests.
(3) The annual fees must be paid by the underground facility owner within 30 days of the date of a bill for those fees.
(4) Annual fees which remain unpaid for more than 90 days after billing may be referred by the department for collection of the debt.
(a) The department, in its sole discretion, may allow an underground facility owner that is billed an annual fee of less than $50 to defer the payment of the annual fee until the following year. An underground facility owner whose annual fee payment is deferred will not be referred to collection during the period of deferral.
(b) The department may not allow a deferral of payment of annual fees more than once every two years.
(5) For the 2018 and 2019 billing cycle, the amount of the annual fee to be paid by an underground facility owner is $0.10 per outgoing locate request made by each call center.
AUTH: 69-4-522, MCA
IMP: 69-4-522, 69-4-530, MCA
NEW RULE VI DISPUTES REGARDING PENALTIES AND FINES – MEDIATION (1) A party that timely disputes a civil penalty or fine may, after first satisfying the mediation requirements of this rule, have a contested case with the department. The contested case must be held in accordance with the Montana Administrative Procedure Act and will be conducted by the department's Office of Administrative Hearings.
(2) The advisory council shall act as the mediator of disputed civil penalties or fines. The mediator shall attempt to bring the parties to mutually acceptable resolution of the dispute.
(3) Mediation is a private, mandatory, informal, and nonbinding proceeding. Statements made during the mediation process, and the recommendations of the mediator, are not admissible in any other proceeding, and may not be offered in evidence in any other proceeding.
(4) The department shall promptly notify the advisory council of disputes arising under 69-4-524, 69-4-525, or 69-4-529, MCA. The mediation must be conducted within 45 days of the council being notified.
(5) Mediation may be conducted by a majority of the advisory council, or it may be delegated by the council to a subset of the council to act as the mediator.
(6) Mediation is conducted by telephone, unless the parties and the mediator agree to in-person mediation, and the parties waive the 45-day requirement.
(7) The mediator shall issue a written report and recommendation to the parties within 15 days of the mediation.
(8) If the parties agree to a resolution of their dispute during mediation or within 20 days after the report and recommendation is sent to the parties, the department shall notify the advisory council that the matter has been resolved.
(9) If the party that disputes the civil penalty or fine does not agree to resolve the matter, it must notify the department within 20 days of the mediation report and recommendation being issued that the department must schedule a contested case.
(10) Failure of a party to timely notify the department to schedule a contested case acts as waiver of the right to a contested case.
(11) Mediation conducted under this rule may be guided by, but is not bound by, the mediation procedures and rules applicable to workers' compensation matters, pursuant to Title 39, chapter 71, part 24, MCA, and ARM Title 24, chapter 28.
AUTH: 69-4-522, MCA
IMP: 69-4-522, 69-4-526, 69-4-529, MCA
NEW RULE VII TRAINING AND EDUCATIONAL GRANTS (1) A call center that has received locate requests during the prior calendar year may apply for a training and educational grant.
(2) A grant application must be in writing, and:
(a) must address the following topics:
(i) the name of applicant;
(ii) the number of locate requests received by the applicant in the prior calendar year;
(iii) a description of each specific educational or training program that the applicant proposes to conduct;
(iv) the estimated cost or budget for each program identified in (iii); and
(v) a description of the audience each proposed program plans to target; and
(b) may provide such other information relevant to the applicant's existing or proposed programs, and should include an explanation of how the proposed programs will promote public safety with regards to underground facilities.
(3) A call center may submit only one grant application per year. The department will accept and review grant applications starting January 1, 2019.
(4) Grants are awarded annually on a state-fiscal-year basis. The amount available for distribution is dependent upon the balance in the grant account that exists on January 1 of the year in which the application is made.
(5) Grants will be awarded to call centers on an equitable basis, based upon the number of locate requests made in the prior year to all applicants. The equitable allocation may be affected by projected changes in the expected number of locate requests likely to occur during the next year.
(6) The department shall consult with the advisory council in determining how to distribute available grant funding, in light of the applications received. In making the grant distribution, the department will consider:
(a) whether the applicant has timely made reports as required by [NEW RULE VIII];
(b) the apparent effectiveness of the applicant's previous and existing educational and training programs, as judged by the frequency of incidents reported by the call center versus the number of locate requests made;
(c) whether the proposed programs integrate or coordinate with similar programs operated or proposed by other applicants;
(d) any trends or patterns of excavation activity that tend to show the need for a geographically targeted program to reach excavators and the public; and
(e) any other factors that the call center deems relevant to the grant application.
AUTH: 69-4-522, MCA
IMP: 69-4-522, 69-4-528, MCA
NEW RULE VIII REPORTS BY GRANT RECIPIENTS (1) The department will provide each grant recipient a report form, which may be electronic, upon which the grant recipient shall report:
(a) the amount of the actual expenditures of the grant funds;
(b) the details of what expenditures were made, such as the number of signs printed, the number of public service announcements produced, or the type and number of advertisements purchased; and
(c) the perceived effectiveness of the materials or projects funded via the grant.
(2) The grant recipient is encouraged, but not required, to provide information to the department regarding:
(a) any problems encountered in conducting the grant-funded program;
(b) any recommendations on how to improve the grant-making process or programs implemented under a grant;
(c) any suggestions as how to improve or better promote the "call before you dig" program; and
(d) any suggestions as how to improve or better provide public information regarding underground facilities.
(3) The report must be sent to the department within 12 months of the date the grant was awarded.
AUTH: 69-4-522, MCA
IMP: 69-4-522, 69-4-528, MCA
5. Fee impact analysis: Based on information provided by the proponents of House Bill 365, the department estimates that annual fees charged pursuant to NEW RULE V, at $0.10 per "locate" request, will total approximately $60,000 to $66,000 per year. The annual fees will fund the department's operation and administration of the underground facility program. The 2018 invoices for fees are expected to be sent to underground facility owners in or about July 2018, after the rules become effective. Invoices for subsequent years are expected to be issued in or about June or July.
The department is unable to estimate the annual income arising from civil penalties issued pursuant to NEW RULE III. There is no existing database upon which to project the number of instances that will give rise to a civil penalty, nor to estimate the amount of the penalties, which escalate with subsequent incidents. The department anticipates that excavators will incur the majority of civil penalties, with a lesser amount from underground facility owners. The department has no basis upon which to estimate the number of persons who may qualify as an "excavator" and who are potentially subject to a civil penalty. The department, based on information provided by the proponents of House Bill 365, estimates that there are approximately 700 entities that own underground facilities. Likewise, there is no basis upon which to estimate the amount that is likely to be generated from fines levied pursuant to NEW RULE IV. Fines are levied only against underground facility owners. The department notes that the income from all civil penalties and fines must be paid out annually as grants to call centers operating in Montana, as provided by statute. Presently, there are two call centers operating in Montana.
6. Concerned persons may present their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to the Building Codes Program, 301 South Park Avenue, P.O. Box 200517, Helena, Montana 59620-0517, by facsimile to (406) 841-2050, or e-mail to CBaker@mt.gov, and must be received no later than 5:00 p.m., July 20, 2018.
7. An electronic copy of this notice of public hearing is available at www.buildingcodes.mt.gov (department and program's web site). Although the department strives to keep its web sites accessible at all times, concerned persons should be aware that web sites may be unavailable during some periods, due to system maintenance or technical problems, and that technical difficulties in accessing a web site do not excuse late submission of comments.
8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this program. 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 that the person wishes to receive notices regarding all building codes administrative rulemaking proceedings or other administrative proceedings. The request must indicate whether e-mail or standard mail is preferred. Such written request may be sent or delivered to the Building Codes Program, 301 South Park Avenue, P.O. Box 200517, Helena, Montana 59620-0517; faxed to the office at (406) 841-2050; e-mailed to CBaker@mt.gov; or made by completing a request form at any rules hearing held by the agency.
9. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted on November 28, 2017, by telephone.
10. Regarding the requirements of 2-4-111, MCA, the department has determined that the adoption of NEW RULES I through VIII will not significantly and directly impact small businesses.
Documentation of the department's above-stated determination is available upon request to the Building Codes Program, 301 South Park Avenue, P.O. Box 200517, Helena, Montana 59620-0517; telephone (406) 841-2016; facsimile (406) 841-2050; or to CBaker@mt.gov.
11. Carrie Baker, Building Codes Program, has been designated to preside over and conduct this hearing.
/s/ DARCEE L. MOE
Darcee L. Moe
/s/ GALEN HOLLENBAUGH
Galen Hollenbaugh, Commissioner
DEPARTMENT OF LABOR AND INDUSTRY
Certified to the Secretary of State June 12, 2018.