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| Montana Administrative Register Notice 24-17-269 | No. 21 11/08/2012 | |
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BEFORE THE DEPARTMENT OF LABOR OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On November 30, 2012, at 10:30 a.m., the Department of Labor and Industry (department) will hold a public hearing to be held in the second floor conference room (conference rooms A and B), 1805 Prospect Avenue, Helena, Montana, to consider the proposed amendment of the above-stated rule.
2. The 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 department no later than 5:00 p.m., on November 26, 2012, to advise us of the nature of the accommodation that you need. Please contact the Labor Standards Bureau, Employment Relations Division, Department of Labor and Industry, Attn: Mike Smith, P.O. Box 201503, Helena, MT 59620-1503; telephone (406) 444-1741; fax (406) 444-7071; TDD (406) 444-0532; or e-mail mikesmith@mt.gov.
3. The rule as proposed to be amended provides as follows, new matter underlined, deleted matter interlined:
24.17.127 ADOPTION OF STANDARD PREVAILING RATE OF WAGES (1) through (1)(d) remain the same. (e) The current building construction services rates are contained in the (f) The current nonconstruction services rates are contained in the (g) The current heavy construction services rates are contained in the 2011 (h) The current highway construction services rates are contained in the (2) and (3) remain the same.
AUTH: 2‑4‑307, 18‑2‑409, 18‑2‑431, MCA IMP: 18‑2‑401, 18‑2‑402, 18‑2‑403, 18‑2‑406, 18‑2‑411, 18‑2‑412, 18‑2‑413, 18‑2‑414, 18‑2‑415, 18‑2‑422, 18‑2‑431, MCA
REASON: There is reasonable necessity to update the prevailing wage rates for building construction services and nonconstruction services following the annual survey of wages that is provided for in 18-2-413 and 18-2-415, MCA, respectively. The department surveys employers and applies the methodologies provided by ARM 24.17.124 to determine those prevailing wage rates.
There is reasonable necessity to amend the prevailing wage rates for highway construction services in order to track with the most recently adopted federal Davis-Bacon Act wage rates, as provided by 18-2-414(2)(b), MCA. The department, in informal consultation with public agencies, employers, and labor organizations, has historically not surveyed for highway construction wage rates, and adopted by reference federal rates.
The department also believes that there is reasonable necessity not to amend at this time the heavy construction services rates provided for in ARM 24.17.127(1)(g). The department, following informal consultation with a number of interested parties, determined in spring 2012 that many users of prevailing wage rates for heavy construction services were not in favor of the department surveying employers and labor organizations for wage rates for heavy construction services. At that time, the department's customers generally appeared to prefer that the department follow its historic practice of adopting federal wage rates for heavy construction, as permitted by 18-2-414, MCA. There is, however, reasonable necessity to amend ARM 24.17.127(1)(g) to correct the reference to the edition of the 2011 heavy construction services publication. The reference to a revised edition is erroneous, as a revised version of the heavy construction rates was neither proposed nor adopted in 2011. See 2011 MAR issue no. 9, page 725, and 2011 MAR issue no. 12, page 1136.
Since that time, however, the federal Davis-Bacon Act wage rates for heavy construction services have been issued by the U.S. Department of Labor in a format that unexpectedly significantly varied from the historic form and format. As an example, the revised federal rates do not identify generally recognized work classifications in several occupations (such as equipment operators and laborers). The new federal rates do not appear to provide contracting agencies and employers a readily understandable basis for classifying workers. The new federal rates likewise do not appear to provide rates for certain occupations that the department knows are used in the heavy construction industry.
Additionally, the new federal rates have been issued on a county-by-county basis, rather than on a statewide basis. Section 18-2-414(3), MCA, appears to require that heavy construction rates be determined and adopted on a statewide basis. Accordingly, the department concludes that it cannot adopt the present federal rates for heavy construction. Section 18-2-414(2), MCA, allows the department a choice of either surveying for wage rates or of adopting the most recent federal rates. The department believes that under the circumstances, it should not propose a change to the heavy construction services rates until such time as the department can survey wages paid by employers on heavy construction projects in Montana. The department recognizes that not amending the heavy construction services rates will have the effect of maintaining the 2011 rates in effect, but concludes that is a better alternative than adopting federal rates that will not meet the needs of Montana employers, workers, and contracting agencies, and that will not comply with statutory requirements.
4. A copy of the proposed 2013 publications, identified as "preliminary building construction rates", "preliminary highway construction rates", and "preliminary nonconstruction rates", are available and can be accessed on-line via the internet at: www.mtwagehourbopa.com.
5. A printed version of the proposed 2013 publications is also available by contacting Mike Smith at the address, e-mail, or telephone numbers listed in paragraph 2 of this notice.
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: Labor Standards Bureau, Employment Relations Division, Department of Labor and Industry, Attn: Mike Smith, P.O. Box 1503, Helena, MT 59620-1503; fax (406) 444-7071; TDD (406) 444-0532; or e-mailed to mikesmith@mt.gov, and must be received no later than 5:00 p.m., December 7, 2012.
7. An electronic copy of this Notice of Public Hearing is available through the department's web site at http://dli.mt.gov/events/calendar.asp, under the Calendar of Events, Administrative Rules Hearings Section. The department strives to make the electronic copy of this Notice of Public Hearing 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 a person's difficulties in sending an e-mail 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 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 mcadwallader@mt.gov, or may be 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, do not apply.
10. The department's Hearings Bureau has been designated to preside over and conduct this hearing.
/s/ MARK CADWALLADER /s/ KEITH KELLY Mark Cadwallader Keith Kelly, Commissioner Alternate Rule Reviewer DEPARTMENT OF LABOR AND INDUSTRY
Certified to the Secretary of State October 29, 2012.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact sosarm@mt.gov.
