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| Montana Administrative Register Notice 24-141-39 | No. 10 05/24/2024 | |
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BEFORE THE STATE ELECTRICAL BOARD DEPARTMENT OF LABOR AND INDUSTRY STATE OF MONTANA
TO: All Concerned Persons
1. On March 22, 2024, the State Electrical Board (board) published MAR Notice No. 24-141-39 regarding the public hearing on the proposed changes to the above-stated rules, at page 579 of the 2024 Montana Administrative Register, Issue No. 6.
2. On April 16, 2024, 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 board has thoroughly considered the comments received. A summary of the comments and the board's responses are as follows:
COMMENT 1: Commenters generally spoke in favor of the board's proposed rule changes.
RESPONSE 1: The board appreciates the comments.
COMMENT 2: Commenters spoke in favor of the removal of the minimum residential hours requirement for master electrician licensure, citing this requirement as a barrier for journeymen electricians to earn a master electrician's license in Montana. Commenters stated that the update brings licensure requirements more in line with current realities of electrical work in Montana.
RESPONSE 2: The board appreciates the comments.
COMMENT 3: A commenter spoke in favor of the amendments allowing applicants to retake the journeyman licensing examination after two failed attempts at passing the examination. The commenter stated that many applicants are excellent electricians, but they are not good test-takers.
RESPONSE 3: The board appreciates the comment.
COMMENT 4: A commenter stated that the rules do not specifically address how applicants can get certification of hours worked in order to apply for licensure. The commenter noted that some states do not require a certification of hours worked to apply for licensure. The commenter stated that states such as Alaska require certification of lifetime earnings from the Social Security Administration, and this process generally takes several weeks and delays applicants' ability to attain licensure and work. The commenter further stated that it can be difficult for applicants to get certification for work in the military or on Indian reservations.
RESPONSE 4: The board appreciates the comment. The board's statutes and rules contain specific requirements for written evidence of experience and hours worked to apply for licensure. Applicants for journeyman-level licensure must provide written evidence of "8,000 hours of legally obtained practical experience" or "work in the electrical maintenance field for at least 20,000 hours," under 37-68-305(1)(c) and (d), MCA. The board statute defines "practical experience" to mean
experience gained in the electrical construction industry consisting of layout, assembly, repairs, wiring, and connection and testing of electrical fixtures, apparatus, and control equipment in residential and nonresidential settings pursuant to the provisions of the national electrical code or pursuant to the requirements of another authority having jurisdiction.
Section 37-68-102(9), MCA. Furthermore, the board's rules define "legally obtained" to mean experience "obtained in accordance with the laws and rules of the jurisdiction in which an applicant obtained the experience and within the statutes and rules of the Montana State Electrical Board." ARM 24.141.301(3). Similarly, applicants for master-level licensure must show written evidence of having an electrical engineering degree and "a minimum of 2,000 hours of legally obtained practical electrical experience," or the applicant must have written evidence of "having at least 8,000 hours of legally obtained journeyman level experience in planning, laying out, or supervising the installation and repair of wiring, apparatus, or equipment for electrical light, heat, and power." 37-68-304(1)(a)-(b), MCA. "Journeyman level experience" is defined in statute to mean "being recognized as a journeyman electrician by a state or other legally authorized jurisdiction or having a minimum of 8,000 hours of practical experience." 37-68-102(7), MCA.
Practically speaking, the board typically accepts signed affidavits from employers as written evidence of experience and hours worked. If an applicant cannot provide an affidavit from a prior employer, the board's staff work with each applicant to find alternative documentation, such as tax records or other employment documentation, to verify the applicant's hours and experience. If an applicant is unable to provide documentation of the applicant's legally obtained experience and hours, the application is often deemed a "nonroutine application" under ARM 24.101.402(12). "Nonroutine applications" are defined by department rule as
an application that staff has determined requires board review, because it involves: (a) evidence of unprofessional conduct as defined by law or rule; (b) materials that require evaluation by the professional members of the board to determine compliance with qualifications for licensure; (c) missing documentation due to natural disaster, national emergency, or other good cause supported by reliable information; (d) a matter specifically defined by board or program rule or law as nonroutine; or (e) an issue staff deems necessary for the board to review.
ARM 24.101.402(12) (emphasis added). All applicants with a nonroutine application are given the opportunity to explain why they cannot provide standard written evidence of their experience and hours worked and why the applicant's experience should be accepted for licensure. Finally, the board notes that electrical work for government clients, including for the military and on Indian reservations, are often subject to federal or state Davis-Bacon laws. General contractors are required to provide certified payroll on a weekly basis to the applicable government agency to prove compliance with the Davis-Bacon laws, making the hours worked easier to verify than in other circumstances.
COMMENT 5: A commenter spoke against the board's decision to grant reciprocity for a master electricians license. The commenter cited an increase in out-of-state businesses bidding on projects in Montana at more competitive rates than local businesses because out-of-state businesses have lower labor costs than local Montana businesses. The commenter also cited instances of out-of-state businesses failing to properly pull permits for electrical work.
RESPONSE 5: The board appreciates the comment. The board is required to grant licensure to out-of-state master electricians due to the 2019 amendments to 37-1-304, MCA, which state that "the board shall issue a license to practice without examination to a person licensed in another state if the board determines that" the out-of-state license requirements are substantially similar to Montana's licensure requirements. The department carefully evaluates each state's requirements for all license types to determine if those requirements are substantially equivalent to Montana's license requirements before granting reciprocal licensure. Furthermore, the failure of any licensee to pull the necessary permit for any electrical work can and should be addressed through the board's complaint process by contacting the board to file a complaint or filing a complaint online at https://bsd.dli.mt.gov/filing-complaint.
COMMENT 6: A commenter spoke against the reduction of the license renewal fee due to the board's budget surplus and suggested hiring more department staff to process licenses and address compliance issues. The commenter cited an abundance of unlicensed electrical workers in Montana.
RESPONSE 6: First, the board appreciates the comment. Second, the board acknowledges the importance of licensure in the electrical field in Montana and that unlicensed electrical work is a threat to the public's health and safety. The board is proposing to reduce licensing fees because licensing fees contribute to the board's individual budget, and the board is not allowed to carry a budget balance that is more than two times the board's annual appropriation under 37-1-101(10), MCA. Furthermore, the board's budget cannot be used to hire staff under 37-1-121(1)(b), MCA. By statute, the department provides staff to the board under 37-1-101(1), MCA. The department's budget for hiring personnel, including staff for licensing boards, is determined every other year by the Montana Legislature as part of the executive branch's appropriation bill, known as House Bill 2. Therefore, any surplus to the board's budget cannot be used to hire additional staff to enforce licensing laws and rules.
COMMENT 7: A commenter spoke against the reduction of licensing fees and asked that the funds be used to support greater efforts by the department to verify licensure of individuals working at job sites.
RESPONSE 7: The board appreciates the comment. As stated in response to Comment 6, licensing fees that contribute to the board's budget cannot be directly applied to funding of the department's staff. The board again acknowledges the importance of licensure in the electrical field in Montana.
COMMENT 8: Commenters spoke against lowering the passing test score for journeyman licensure from 75 to 70 percent.
RESPONSE 8: The board appreciates the comments. The amendment to the passing test score for journeyman licensure brings Montana in line with the majority of states that require individual licensure for journeyman-level electrical work. The department, on behalf of the board, evaluated the journeyman-level licensing criteria for 32 states, and 23 of those states require a 70 percent passing score for the journeyman-level licensure exam, including 9 of the 12 states that are part of the National Electrical Reciprocal Alliance (NERA) of which Montana is a member. Furthermore, in calendar year 2023, 28 individuals with Montana addresses who took the journeyman's examination failed with a score between 70 and 74 percent. While several of the 28 individuals took the exam again and passed, every year applicants decide to stop pursuing licensure in Montana after failing the exam. The board believes that lowering the passing test score by five percentage points will allow more applicants to become licensed at the journeyman level without risking the health and safety of the public.
4. The board has amended ARM 24.141.301, 24.141.405, 24.141.502, 24.141.503, 24.141.504, 24.141.505, 24.141.509, 24.141.2102, and 24.141.2301 as proposed.
5. The board has adopted NEW RULE I (24.141.515), NEW RULE II (24.141.2305), and NEW RULE III (24.141.2405) as proposed.
6. The board has repealed ARM 24.141.403, 24.141.501, 24.141.507, 24.141.511, and 24.141.2401 as proposed.
Certified to the Secretary of State May 14, 2024.
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