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| Montana Administrative Register Notice 24-17-253 | No. 22 11/26/2010 | |
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BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY STATE OF
TO: All Concerned Persons 1. On December 17, 2010, at 10:00 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 rules. 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 December 13, 2010, 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, 3. The rules proposed to be amended provide as follows, stricken material interlined, new material underlined: 24.17.103 DEFINITIONS As used in this subchapter, the following definitions apply, unless the context of the rule clearly indicates otherwise: (1) through (17) remain the same. (18) "Prevailing wage" or "standard prevailing rate of wages" means the standard prevailing rate of wages, as provided by 18-2-401, MCA, and as adopted by the department for work on public works (19) and (20) remain the same. AUTH: 18-2-409, 18-2-431, 39-3-202, MCA IMP: 18-2-402, 18-2-403, 18-2-422, 39-3-201 through 39-3-216, MCA REASON: There is reasonable necessity to amend ARM 24.17.103 while other prevailing wage rules are being amended, in order to make the wording of the definitions internally consistent. 24.17.107 PREVAILING WAGE DISTRICTS ESTABLISHED (1) Pursuant to 18-2-411, MCA, the commissioner has established ten districts for the purpose of setting the standard prevailing rate of wages for construction services (other than heavy construction or highway construction) and nonconstruction services. Heavy construction and highway construction rates are set (2) remains the same. REASON: There is reasonable necessity to amend ARM 24.17.107 to note that heavy construction and highway construction rates are now established pursuant to 18-2-414, MCA, rather than the prior statutory citation, and to amend the IMP citation accordingly. AUTH: 18-2-431, MCA 24.17.121 ESTABLISHING THE STANDARD PREVAILING RATE OF WAGES AND FRINGE BENEFITS (1) The commissioner shall establish the standard prevailing rate of wages and fringe benefits for the various occupations in each district. Except as used in (2) The standard prevailing rate of wages is based upon the following data sources: (a) with respect to building construction services, an annual survey of licensed electrical contractors, licensed plumbers, and registered construction contractors engaged in work performed to commercial building codes, as provided for by 18-2-413, MCA, who are licensed or registered on June 15 of the year in which the survey is being conducted; (b) with respect to heavy construction services, as provided for by 18-2-414, MCA, the applicable federal Davis-Bacon Act rates in effect for Montana on September 1 of that year; (c) with respect to highway construction services, as provided for by 18-2-414, MCA, the applicable federal Davis-Bacon Act rates in effect for Montana on September 1 of that year; and (d) with respect to nonconstruction services, an annual survey of employers pursuant to 18-2-415, MCA, as known to the department as of June 15 of the year in which the survey is being conducted. (a) If a minimum of five or more workers is reported for the occupation within the district, and 50 percent or more of those workers receive the same wage, that rate is the district prevailing wage rate, provided that the rate does not exceed the highest applicable collectively bargained rate for that occupation in that district. As provided by 18-2-402, MCA, the prevailing wage rate cannot exceed the highest applicable collectively bargained wage rate. (b) If five or more workers are reported for the occupation within the district, but 50 percent of those workers are not paid the same rate, the weighted average wage rate, weighted by the number of workers, is the district prevailing wage rate, provided that the rate does not exceed the highest applicable collectively bargained rate for that occupation in that district. As provided by 18-2-402, MCA, the prevailing wage rate cannot exceed the highest applicable collectively bargained wage rate. (c) If less than five workers are reported for the occupation within the district, the district prevailing wage rate is the highest applicable collectively bargained rate for that occupation in that district. (d) If a collective bargaining agreement does not exist for the occupation in that district, a weighted average wage rate for the district weighted by number of workers will be computed using data submitted from that district and all contiguous districts. Districts and their contiguous districts are as follows: (i) District 1 (Flathead, Lincoln, Sanders, and (ii) through (f) remain the same. (a) If a minimum of five or more workers is reported for the occupation within the district, and 50 percent or more of those workers receive the same dollar value of fringe benefits, that rate is the district prevailing fringe benefit rate, provided that the rate does not exceed the highest applicable collectively bargained rate for that occupation in that district. As provided by 18-2-402, MCA, the prevailing fringe benefit rate cannot exceed the highest applicable collectively bargained rate. (b) If five or more workers are reported for the occupation within the district, but 50 percent of those workers are not paid the same fringe benefit rate, the weighted average fringe benefit rate, weighted by the number of workers, is the district prevailing fringe benefit rate, provided that the rate does not exceed the highest applicable collectively bargained rate for that occupation in that district. As provided by 18-2-402, MCA, the prevailing fringe benefit rate cannot exceed the highest applicable collectively bargained rate. (c) If less than five workers are reported for the occupation within the district, the district prevailing fringe benefit rate is the highest applicable collectively bargained fringe benefit rate for that occupation in that district. (d) If a collective bargaining agreement does not exist for the occupation in that district, but a minimum of five workers are reported in the combined contiguous districts, a weighted average fringe benefit rate for the district, weighted by the number of workers, will be computed using data submitted from that district and all contiguous districts. Districts and their contiguous districts are the same as provided by (e) and (f) remain the same. (6) through (9) remain the same. AUTH: 18-2-409, 18-2-431, 39-3-202, MCA IMP: 18-2-401, 18-2-402, 18-2-403, 18-2-411, 18-2-413, 18‑2‑414, 18-2-415, MCA REASON: There is reasonable necessity to amend ARM 24.17.121 to update the rule to show that there are three statutory bases upon which prevailing wage rates are established, and to specify the time at which the employers to be surveyed are identified. In order to conduct the surveys, process the survey data, conduct a public hearing on proposed rates, and take final action on rates before the start of each year's construction season, the department believes that it is reasonably necessary to use June 15 as the cut-off date for identifying the employers that will be surveyed. Because heavy construction services and highway construction service rates are not currently being surveyed for, the later September 1 date is adequate to prepare the state rate publication in time for the annual ratemaking process. There is reasonable necessity to amend the rule to clarify that pursuant to 2009 amendments to 18-2-402, MCA, the prevailing wage rate cannot be set higher than the highest applicable collectively bargained rate. In addition, there is reasonable necessity to amend the contiguous district weighting provisions of the rule to clarify that the data from the original district, plus the contiguous districts, is included. The department notes that the contiguous district provision clarification does not change the department's methodology, but merely makes explicit the inclusion of the original district data. There also is reasonable necessity, while the rule is otherwise being amended, to make a minor technical amendment to ARM 24.17.121(3)(d)(i) and make the wording of that subsection consistent with the other subsections. Finally, there is reasonable necessity to update the list of statutes being implemented by the rule, following 2009 legislative changes. 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 (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 amend ARM 24.17.127 to update the various prevailing wage rates. Annual updates are required by 18-2-413 and 18-2-415, MCA, for building construction services and nonconstruction services, respectively. It is convenient to update the rates for heavy construction services and highway construction services at the same time, as many of the employers affected by the building construction service rates are also affected by the heavy and highway rates. Payment of prevailing wage rates is required in most public works contracts by 18-2-422, MCA. The department is proposing the rates at this time following completion of its wage surveys, in order to have as current a set of rates as is feasible. The proposed wage rates will apply to public works projects let for bid on or after the effective date of the rate changes. The department emphasizes that the proposed rates for building construction services and nonconstruction services are based upon survey responses and applicable collective bargaining agreements. The methodology for surveys and rate computations is described in ARM 24.17.121. The department relies upon the information provided by employers and labor organizations during the survey process to set the proposed rates. The final rates are based upon the preliminary rates, as modified by including any relevant information provided during the public comment period. 4. A copy of the proposed 2011 publications, identified as "preliminary building construction rates", "preliminary heavy 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 2011 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 6518, Helena, MT 59604-6518; 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 27, 2010. 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, 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 November 15, 2010
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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.
