Montana Administrative Register Notice 24-11-264 No. 5   03/08/2012    
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In the matter of the amendment of ARM 24.11.462 and repeal of ARM 24.11.460, pertaining to unemployment insurance










TO: All Concerned Persons


1. On April 16, 2012, 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 10:00 a.m. on April 2, 2012, to advise us of the nature of the accommodation that you need. Please contact Don Gilbert, Department of Labor and Industry, P.O. Box 8020, Helena, MT 59624-8020; telephone (406) 444-4336; fax (406) 444-2993; TDD (406) 444-5549; or e-mail dgilbert@mt.gov.


3. The rule as proposed to be amended provides as follows, new matter underlined, deleted matter interlined.


            24.11.462 OFF-DUTY CONDUCT (1) While misconduct usually occurs during the claimant's normal working hours, "off-duty" conduct may constitute misconduct if it meets the criteria in ARM 24.11.460 39-51-201, MCA, and if such conduct:

            (a) through (3) remain the same.


AUTH: 39-51-301, 39-51-302, MCA

            IMP:    39-51-201, 39-51-2303, MCA


REASON: There is reasonable necessity to amend ARM 24.11.462 because Montana Legislature has adopted as statute the definition of "misconduct" found in ARM 24.11.460. That change was enacted as Sec. 1, Chap. 98, L. of 2011 (SB 342). The administrative rule definition of "misconduct" is now codified in 39-51-201(19), MCA (2011). There also is reasonable necessity to amend the IMP citation to add the reference to the statute which contains the definition that determines whether an employee engaged in misconduct.


4. The department proposes to repeal the following rule:




            AUTH: 39-51-301, 39‑51‑302, MCA

            IMP: 39-51-2303, MCA


REASON:  There is reasonable necessity to repeal ARM 24.11.460 because of the enactment of Sec. 1, Chap. 98, L. of 2011 (SB 342) by the Montana Legislature.  The criteria for determining whether an employee engaged in "misconduct," which was found in ARM 24.11.460, is now in statute, and thus the rule has become superfluous because it unnecessarily repeats language now in statute.


5. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to: Don Gilbert, Department of Labor and Industry, P.O. Box 8020, Helena, MT 59624-8020; telephone (406) 444-4336; fax (406) 444-2993; TDD (406) 444-5549; or e-mail dgilbert@mt.gov, and must be received no later than 5:00 p.m., April 6, 2012.


6. If persons who are directly affected by the proposed action 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 Don Gilbert at the above address no later than 5:00 p.m., April 6, 2012.


            7. 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.


            Ten percent of those directly affected by the proposed rule change has been determined by the department to exceed 25 claimants and employers, based on the U.S. Department of Labor's activity report for the past four completed calendar quarters (October 1, 2010 – Sept 30, 2011), which documents 8,377 employment discharge determinations issued for Montana unemployment insurance program.


            8. An electronic copy of this Notice of Public Hearing is available through the department's web site on the World Wide Web at http://dli.mt.gov/events/calendar.asp. The department 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 department strives 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, and that technical difficulties in accessing or posting to the e-mail address do not excuse late submission of comments.


            9. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by the department. 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 the person wishes to receive notices regarding all department 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 Department of Labor and Industry, Office of Legal Services, attn: Mark Cadwallader, 1315 E. Lockey Ave., P.O. Box 1728, Helena, Montana 59624-1728; faxed to the office at (406) 444-1394; e-mailed to mcadwallader@mt.gov; or made by completing a request form at any rules hearing held by the agency.


            10. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor, Senator Ed Buttrey, was contacted by telephone by Roy Mulvaney, Unemployment Insurance Division Administrator, on August 2, 2011, and informed that the department intended to begin the process amending the administrative rules in order to implement SB 342. The primary bill sponsor offered no comment on this proposed rule change.




/s/ MARK CADWALLADER                      /s/ KEITH KELLY                            

Mark Cadwallader                                        Keith Kelly

Alternate Rule Reviewer                              Commissioner

                                                                        Department of Labor and Industry


Certified to the Secretary of State February 27, 2012



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