BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY
STATE OF MONTANA
In the matter of the adoption of NEW RULES I through VI, the amendment of ARM 24.21.401, 24.21.411, and 24.21.421, and the repeal of ARM 24.21.101, 24.21.201, 24.21.301, and 24.21.425, all pertaining to apprenticeship training programs
NOTICE OF ADOPTION, AMENDMENT, AND REPEAL
TO: All Concerned Persons
1. On October 28, 2010, the Department of Labor and Industry (department) published MAR Notice No. 24-21-251 regarding the proposed adoption, amendment, and repeal of the above-stated rules at page 2466 of the 2010 Montana Administrative Register, Issue Number 20.
2. On November 19, 2010, the department held a public hearing in Helena at which time members of the public were invited to make comments. Thirteen members of the public attended the public hearing. Oral testimony and written comments were received during the comment period.
3. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:
Comment 1: A commenter noted that there was an apparent typographic error in NEW RULE II (4)(c), and that the word "contract" should be "contact."
Response 1: The department agrees with the comment and has made the correction as suggested.
Comment 2: Two commenters suggested that NEW RULE III be more specific regarding the composition, terms, and scope of the advisory committee.
Response 2: The department believes that it is constrained by the provisions of 2-15-122, MCA, regarding the creation of advisory bodies. The department notes that pursuant to 2-15-122, MCA, an advisory body established by an agency (as opposed to established in statute) is limited to a maximum two year's duration before it must be reestablished. Accordingly, the department believes that the advisory council terms will not last more than two years. Such a body must be established by an order of the agency head, in which the details of the body's duties and responsibilities are described. The department concludes that it is inappropriate, in light of 2-15-122, MCA, for greater detail to be provided in rule.
Comment 3: A commenter suggested that NEW RULE III provide for fewer than 25 advisory council members, in order to maximize efficiency in council business.
Response 3: The department expects that the Commissioner of Labor will likely appoint far fewer than 25 members to the advisory council, for reasons of efficiency and economy. However, the department concludes that there may come a time in the future where having more members serve on the advisory council will be appropriate in light of the size and diversity of the state, and that the Commissioner's ability to appoint willing volunteers should not be unduly constrained by the rule.
The department has recommended to the Commissioner of Labor that eight individuals be appointed to the advisory council: three people affiliated with employers (management); three people affiliated with workers; and two public members. One of the public members is intended to be a person involved with post-secondary education. The department believes that the Commissioner intends to follow those recommendations and appoint a fair and balanced advisory commission. See also Response 5.
Comment 4: A commenter suggested that the advisory council include members who were not affiliated with the building trades.
Response 4: The department has recommended to the Commissioner of Labor that two public members of the council be appointed. The department has suggested to the Commissioner that neither of the public members be affiliated with the building trades.
Comment 5: A commenter expressed concern that during the council member appointment process a disproportionate number of members may be affiliated with particular training programs, or under-represent non-building-trade occupations or independent training programs. The commenter urged that balance among council members not be sacrificed simply for the sake of reducing costs or perhaps improving meeting efficiency.
Response 5: As noted in Responses 3 and 4, the department believes that the Commissioner of Labor intends to appoint as balanced an advisory council as is feasible, given budgetary and other constraints. As an example, approximately 85% of the existing apprenticeship programs in Montana are related to the building trades. If two of the eight advisory council members are not affiliated with the building trades, non-building-trade affiliated members will be slightly overrepresented on the council. The department recognizes that the fewer council members there are the greater the likelihood that the membership will not be perfectly representative of various aspects of Montana's apprenticeship community, while at the same time recognizing that too large a group is not efficient. Through the appointment process, the Commissioner of Labor will be able to adjust the size and composition of the advisory council membership to address any substantial problems that may arise with the proposed eight member council.
Comment 6: A commenter objected to the language in NEW RULE III(4)(a) regarding the appointment of an equal number of representatives of employer and employee organizations, and suggested that the reference to "organizations" be deleted.
Response 6: The language proposed in NEW RULE III(4)(a) was specifically chosen to mirror the exact language used in 29 CFR 29.13(a)(2)(ii), to make it clear that the state rule was in conformity with federal rules. The department believes that deleting the word "organization" will unnecessarily increase the likelihood of the department failing to maintain federal recognition as the state registration agency. The department notes that if it loses federal recognition, Montana employers and apprentices wishing to be registered will have to apply to the U.S. Dept. of Labor, which will be applying the federal rules, including the objected-to language.
Comment 7: A commenter expressed concern that council members who are indirectly affiliated with apprenticeship programs will have an advantage in advising the member's affiliated programs, as compared to apprenticeship programs that do not have their advisors on the council.
Response 7: The department notes that because all of the advisory council meetings will be open to the public, with official minutes available, it is unlikely that any significant competitive advantage will accrue to select apprenticeship programs.
Comment 8: A commenter noted that proposed amendments to ARM 24.21.401(1) did not read correctly, and that they appeared to omit a verb.
Response 8: The department agrees that the verb "to" was inadvertently omitted from the first sentence, and has amended the rule accordingly.
4. The department has adopted the following rules as proposed:
NEW RULE I (24.21.102) DEFINITIONS
NEW RULE III (24.21.205) state apprenticeship advisory council to be established
NEW RULE IV (24.21.302) FEDERAL REGULATIONS INCORPORATED BY REFERENCE
NEW RULE V (24.21.431) INTERIM CREDENTIALS
NEW RULE VI (24.21.405) PERFORMANCE EVALUATIONS – WITHDRAWAL OF REGISTRATION
5. The department has adopted the following rule as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
NEW RULE II (24.21.202) STATE APPRENTICESHIP AND TRAINING PROGRAM
(1) through (4)(b) remain as proposed.
(c) The office
contract contact e-mail address is: email@example.com.
(d) remains as proposed.
AUTH: 39-6-101, MCA
IMP: 39-6-101, MCA
6. The department has amended the following rules as proposed:
24.21.411 MINIMUM GUIDELINES FOR REGISTRATION OF PROGRAMS
24.21.421 EQUAL EMPLOYMENT OPPORTUNITY
7. The department has amended the following rule as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
24.21.401 REGISTRATION POLICY AND PROCEDURES (1) In order that a standard of training be maintained and upheld for all apprenticeable occupations, before approval and registration will be granted to a program sponsor all provisions of the apprenticeship program must either meet or exceed those recognized in the immediate geographical or state wide area where applicable. These provisions apply to all those listed in ARM 24.21.411 Minimum Guidelines for Registration of Apprenticeship Programs, including wages.
(2) and (3) remain as proposed.
AUTH: 39-6-101, MCA
IMP: 39-6-101, 39-6-108, MCA
8. The department has repealed the following rules as proposed:
24.21.101 FUNCTIONS OF THE APPRENTICESHIP BUREAU
24.21.201 RULES OF THE BUREAU
24.21.301 RECORDS OF THE BUREAU
24.21.425 APPROVAL FOR APPRENTICESHIP PROGRAM WHEN EMPLOYER IS PARTICIPANT IN COLLECTIVE BARGAINING AGREEMENT
9. The rule changes described in this notice are effective December 24, 2010.
/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 December 13, 2010