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| Montana Administrative Register Notice 24-182-36 | No. 23 12/08/2023 | |
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BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY STATE OF MONTANA
TO: All Concerned Persons
1. On August 25, 2023, the Department of Labor and Industry (agency) published MAR Notice No. 24-182-36 regarding the public hearing on the proposed changes to the above-stated rules, at page 836 of the 2023 Montana Administrative Register, Issue No. 16.
2. On September 14, 2023, a public hearing was held on the proposed changes to the above-stated rules via the videoconference and telephonic platform. Comments were received by the deadline.
3. The agency has thoroughly considered the comments received. A summary of the comments and the agency responses are as follows:
COMMENT 1: A commenter said that without the board members' discretion and experience [in the private security industry] to decide non-routine applications, the department staff cannot determine if a probationary license should be granted. This raises a concern that more applications will be denied with a resulting adverse impact on employers.
RESPONSE 1: The Legislature passed Senate Bill (SB) 454 to move regulation of private security from a board to a program. The department has no rulemaking authority to reverse or modify this exercise of legislative power. Underlying SB 454 transferring a board to a department program is the fact that in Montana and across the United States, professional licensure regulation may occur by staff of state agencies or by a board composed of a combination of public members and private industry members. Some states do not regulate private security at all. To the commenter's concerns, the adjudication of nonroutine applications include both lack of qualifications and unprofessional conduct issues. Where it is necessary to prosecute a license denial or a discipline case, board members are conflicted out as expert witnesses before the administrative hearing office. The department prosecutors must hire expert witnesses. This is true for all programs and boards. Finally, the department anticipates faster processing of nonroutine applications from eliminating the delay for a quorum of the board to meet, with no impact on public safety.
COMMENT 2: A commenter said that repeal of inactive status will result in requiring companies and individuals to maintain expensive insurance if they are temporarily unable to work.
RESPONSE 2: As outlined in the reason for the change in the proposal notice, the burden of offering an at-will inactive to active status outweighs the benefit for only very few individuals. Even if the at-will inactive license is not available, licensees can achieve an inactive status by operation of law. A license that is not renewed will automatically lapse, expire, and terminate after two years. 37-1-141, MCA. The licensee is not required to carry insurance during this inactive time.
COMMENT 3: A commenter said that requiring companies, rather than the department, to produce photo identification cards could be burdensome on a smaller company.
RESPONSE 3: Larger companies are more likely to have more employees and more complex data management, security, or access features associated with their ID cards. The proposal notice referred to these complexities. Relieved of the burden to produce ID cards, the department will no longer pass on costs to all licensees for a redundant and obsolete process, even if the redundancy only applies to some companies. For companies having fewer employees and less complex ID cards, digital photos, laminating services, or laminating supplies are available at low cost.
COMMENT 4: A commenter said that without a template, photo identification cards created by companies will be inconsistent.
RESPONSE 4: The department will provide a template consistent with ARM 24.182.403.
COMMENT 5: A commenter urged the department to reinsert the term "law enforcement" in ARM 24.182.407(4) in reference to the prohibition on security uniforms, vehicles, or equipment inadvertently resembling those used by any "federal, state, or local agency." It is not clear in the statement of reasonable necessity what "other" agencies may be.
RESPONSE 5: The rule is intended to be broad to prevent confusion or misrepresentation and to ensure that a private security organization does not appear to be affiliated with or endorsed by a government agency when it is not. Government functions including fire protection, public welfare, or public health like law enforcement may have branding that may be confused with law enforcement branding. "Other" agencies may include other sovereign nations, for example tribal or Canadian agencies. Since this is not clear in the language of the proposed rule, the department will insert "any foreign, tribal, federal, state, or local law enforcement agency..." in the rule.
COMMENT 6: A commenter said that in ARM 24.182.512(1)(c)(iv), the term "any other" in reference to "investigative employment approved by the department..." when counting qualifying experience is vague.
RESPONSE 6: There is no substantive difference between the proposed language and former (5)(a) which recognizes "employment performing investigative related duties . . ." as qualifying experience hours. The department agrees that the phrase is vague and unnecessary and will strike the words "any other."
COMMENT 7: A commenter said that ARM 24.182.512 appears to allow for all 5,400 hours to be met through a college education without any investigative employment experience. This is inadequate to prepare private investigators, and work experience is necessary to serve the public interest.
RESPONSE 7: The department agrees with the comment and will reinsert the limit of 2,700 hours for which training hours may accumulate toward the 5,400-hour total requirement. This will allow for the remaining 2,700 hours to be obtained as a private-investigator trainee in (3) or by the investigative employment in (1).
COMMENT 8: A commenter said that in ARM 24.182.525, removing licensure of branch managers and branch offices may diminish public safety by allowing companies from other states to have employees in the state of Montana without also having a physical presence in the form of an office building or a manager.
RESPONSE 8: The Legislature passed Senate Bill (SB) 454 to deregulate licensure of branch managers and branch offices. The department has no rulemaking authority to reverse or modify this exercise of legislative power. It is likely that a security company would continue to require local offices and managers as practical necessities. Even if only the employee resides in the state, the business will continue to require to be registered with the Secretary of State and licensed by the department and is subject to disciplinary action for the conduct of its employees.
COMMENT 9: A commenter said that lacking a background in the private security industry, it is unreasonable to expect department staff to interpret provisions of unprofessional conduct at ARM 24.182.2301, e.g., (6), (9), and (10).
RESPONSE 9: Because the Legislature passed SB 454 to move regulation of private security from a board to a program, the issue raised by the commenter cannot be impacted by rulemaking. Department staff members have a duty to understand, apply, and interpret a profession's laws and rules in whole or in part to carry out their responsibilities. The department will rely on experts to prosecute cases of unprofessional conduct and elicit public comment in rulemaking.
COMMENT 10: Contrary to the department's statement that there will be no significant and direct impact on small businesses, the commenter thinks there will be significant and direct impact on all private security businesses, whether they are large, medium, or small. The commenter does not specify what, how, or why.
RESPONSE 10: The department's small business impact assumptions remain unchanged.
4. The agency has amended ARM 24.182.301, 24.182.401, 24.182.403, 24.182.405, 24.182.420, 24.182.501, 24.182.505, 24.182.507, 24.182.514, 24.182.516, 24.182.518, 24.182.520, 24.182.525, 24.182.801, 24.182.804, 24.182.807, 24.182.810, and 24.182.2301 as proposed.
5. The agency has repealed ARM 24.182.101, 24.182.201, 24.182.202, 24.182.421, 24.182.504, 24.182.508, 24.182.509, 24.182.510, 24.182.511, 24.182.513, 24.182.519, 24.182.523, 24.182.813, 24.182.2101, 24.182.2103, 24.182.2105, and 24.182.2108 as proposed.
6. The agency has amended ARM 24.182.407 and 24.182.512 with the following changes, stricken matter interlined, new matter underlined:
24.182.407 PRIVATE SECURITY GUARD UNIFORM AND PROPERTY BRANDING (1) through (3) remain as proposed. (4) Uniforms, vehicles, and equipment must not display any accessory, emblem, insignia, patch, seal, or term that is like any used by
AUTH: 37-60-407, MCA IMP: 37-60-407, MCA
24.182.512 PRIVATE INVESTIGATOR LICENSE QUALIFICATIONS – TRAINING PERMIT (1) through (1)(c)(iii) remain as proposed. (iv) (2) Applicants who do not meet the experience requirement in (1)(c) may (a) through (5) remain as proposed.
AUTH: 37-60-202, 37-60-303, MCA IMP: 37-60-202, 37-60-303, 37-60-304, MCA
Certified to the Secretary of State November 28, 2023.
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