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| Montana Administrative Register Notice 24-144-2 | No. 1 01/15/2021 | |
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BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY STATE OF MONTANA
TO: All Concerned Persons
1. On February 11, 2021, at 10:00 a.m., a public hearing will be held via remote conferencing to consider the proposed amendment and repeal of the above-stated rules. Because there currently exists a state of emergency in Montana due to the public health crisis caused by the coronavirus, there will be no in-person hearing. Interested parties may access the remote conferencing platform in the following ways: a. Join Zoom Meeting, https://mt-gov.zoom.us/j/92728672482, Meeting ID: 927 2867 2482, Passcode: 051763; or b. Dial by telephone, +1 406 444 9999 or +1 646 558 8656, Meeting ID: 927 2867 2482, Passcode: 051763.
The hearing will begin with a brief introduction by department staff to explain the use of the videoconference and telephonic platform. All participants will be muted except when it is their time to speak.
2. The Department of Labor and Industry (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 February 4, 2021, to advise us of the nature of the accommodation that you need. Please contact Carrie Baker, Fire Protection License Program, 301 South Park Avenue, P.O. Box 200513, Helena, Montana 59620-0513; telephone (406) 841-2004; Montana Relay 1 (800) 253-4091; TDD (406) 444-2978; facsimile (406) 841-2305; or e-mail [email protected].
3. GENERAL REASON: Following a January 2020 internal transfer of the Fire Protection License Program (program) from the Building Codes Program to the Professional Licensing Bureau, department staff performed an in-depth review of the program's statutes and administrative rules. The department determined it is reasonably necessary to amend several program rules at this time to align with and gain efficiencies from standardized department procedures, remove conflicts between statutes and the implemented rules, and streamline the rules for better organization and ease of use for the reader. Additionally, staff discovered a large number of rules are out-of-date with industry standards and the licensure pathway via the National Institute for Certification in Engineering Technologies (NICET) requires updating. Where a more specific reason for a proposed amendment exists, the department will identify those reasons immediately following that rule. Authority and implementation citations are being amended to accurately reflect all statutes implemented through the rule, provide the complete sources of the department's rulemaking authority, and delete references to repealed statutes.
4. The rules proposed to be amended are as follows, stricken matter interlined, new matter underlined:
24.144.301 DEFINITIONS The following definitions apply to the use of the listed terms in Title 50, chapter 39, part 1, MCA, and in these rules: (1) remains the same. (2) "ESA/NTS" means the Electronic Security Association/National Training School. (2) and (3) remain the same but are renumbered (3) and (4). (5) "National testing agency" means a certifying organization that has been approved by the department as having qualifications that are at least substantially equivalent to the requirements of this state for licensing. (4) remains the same but is renumbered (6).
AUTH: 50-39-107, MCA IMP: 50-39-101, 50-39-102, 50-39-103,
REASON: The department determined it is reasonably necessary to add the definitions of Electronic Security Association/National Training School (ESA/NTS) and national testing agency to align with changes proposed to ARM 24.144.502.
24.144.402 DUTY TO REPORT NAME, (2) An entity licensed shall report a change of ownership to the department within 15 days of the change.
AUTH: IMP:
REASON: It is reasonably necessary to change "person" to "individual" in (1) to address questions by clarifying that business entities may be licensed, and individuals may obtain endorsements. The department is adding (2) to require notification of ownership changes within 15 days of the change. The public and local fire marshals rely on the accuracy of the department's records in determining which fire protection entities are licensed and competent to service, sell, or install fire protection equipment. Additionally, failure to promptly notify the department of ownership changes can result in confusion and delays at renewal. This requirement is consistent with ownership change reporting for other division boards and programs and will help the department maintain accurate records and ensure more timely follow-up if an ownership change seems suspect.
24.144.403 PROOF OF INSURANCE (1) through (5) remain the same.
AUTH:
24.144.411 FEES (1) through (4) remain the same. (5) Fireworks wholesaler permit 45
regardless of the number of endorsements held by an individual 100
AUTH: 50-37-104, 50-39-107, MCA IMP: 50-37-104, 50-39-102, MCA
REASON: The department is relocating the fireworks wholesaler permit fee from ARM 24.144.701 to (5) so all program fees are in a single rule. Following the internal transfer, department staff analyzed the program's budget over the past five years. It was determined that the fees are not commensurate with the costs of administering the program as the program is nearing the statutory cash limit of twice the program's annual appropriation at 17-3-302, MCA. Staff also found that no other licensing program has "one-time processing fees" and could not determine a need for the Fire Protection License Program to retain these fees. Further, the method of charging renewal fees per endorsement is consistently confusing to licensees and causes additional work for staff to collect the correct fees. The department determined it is reasonable to amend (6) to change to a flat renewal fee, regardless of the number of endorsements an individual holds. The department determined it is reasonably necessary to amend and eliminate certain fees to comply with 50-37-104, MCA, which requires that program fees are commensurate with costs of administering the licensure program. In analyzing the program's budget, the department concluded that unless the fees are decreased as proposed, the program will violate the statutory cash limit in 17-3-302, MCA. The department estimates that the proposed fee changes will affect approximately 100 applicants and license/permit holders and reduce annual revenue by $3,655. The department is amending (8) to align with terminology used in (4) regarding the business entity license.
24.144.501 WHO MUST OBTAIN AN ENDORSEMENT (1) and (2) remain the same. (a) remains the same but is renumbered (3).
AUTH: IMP:
REASON: The department is amending this rule to remove the provisions regarding registered apprentices since the program no longer administers apprenticeship standards and individual apprenticeship agreements. The department's Workforce Services Division, Registered Apprenticeship Program, is the registration agency approved by the U.S. Department of Labor, Office of Apprenticeship, to develop and administer apprenticeship standards for all apprenticeable occupations, sponsor qualifications, and individual apprentice agreements. The department is striking (6)(b) because it unnecessarily duplicates 50-39-101(4), MCA, providing that licensed electricians may install fire protection equipment if the work is inspected and approved by someone endorsed to sell, service, or install the fire protection equipment. The department is striking (6)(c) following staff advice that the provision may exceed the scope of the program's statutes at Title 50, chapter 39, part 1, MCA, which contain no licensing exceptions for owner/occupants of single-family residences.
24.144.502 EXAMINATION FOR ENDORSEMENT (1) The department shall issue an endorsement for both non-pre-engineered and pre-engineered fire alarm systems, special fire agent suppression systems, or fire extinguishing systems to an individual who pays the required fee and submits satisfactory documentation that the applicant satisfies one of the following: (a) remains the same. (b) has been issued a letter of certification, specific to the endorsement being sought (i) of NICET Level II or higher (ii) from ESA/NTS as a certified alarm technician level II or higher for a fire alarm systems endorsement; or (iii) from any national testing agency approved by the department per ARM 24.144.301; or (d) remains the same but is renumbered (c). (2) remains the same.
AUTH: IMP:
REASON: In reviewing current licensure examinations, department staff concluded that the Electronic Security Association/National Training School (ESA/NTS) examination for a Certified Alarm Technician Level II (CAT II) effectively measures an applicant's knowledge of fire alarm systems and passage of the examination demonstrates licensure competency. It is reasonably necessary to clarify in (1)(b)(ii) that this certification is acceptable for a fire alarm systems endorsement. It is reasonably necessary to add (1)(b)(iii) to clarify the acceptance of endorsement certification from national testing agencies. Section 50-39-102, MCA, requires the department to issue endorsements to applicants certified in the area of the endorsement by any department-approved national testing agency. With more testing agencies becoming available, the department is defining "national testing agency" in ARM 24.144.301 and amending this rule to allow the department to consider applicants' certification from any qualified testing agency and without having to maintain a list of agencies in rule. The department is amending this rule to remove the list of specific elements in the NICET (National Institute for Certification in Engineering Technologies) examination. NICET has changed the examination numbers and titles for many of these examination elements and therefore the list is not current or accurate. Because the approved NICET credentials are set forth in (1)(b), it is not necessary to list the specific examination elements. The department is striking (1)(c) to align with the repeal of ARM 24.144.415 in this notice as the program no longer administers apprenticeship standards and individual apprenticeship agreements. The department will continue to review ESA/NTS, national testing agencies, and NICET credentials for continued acceptance and other national testing entities for possible acceptance.
24.144.701 (1) Applicants for fireworks wholesaler permits must submit an application
AUTH: 50-37-104, MCA IMP: 50-37-104, MCA
REASON: The board is amending this rule to align with the requirement of 2-4-305, MCA, that administrative rules may not unnecessarily repeat statutory language. Following amendment, the rule will simply reference the statute containing the qualifications for fireworks wholesaler permits. The board is striking (2) because the department administers standardized application procedures for all professional and occupational licensing boards and programs, and it is not necessary to repeat procedural provisions in program rule. These standardized procedures use consistent means of proving qualifications to streamline and expedite application processing time, such as attestations and questions on prior discipline.
24.144.2101 CONTINUING EDUCATION (1) Continuing education (CE) is (2) The department will not pre-approve CE programs or sponsors. It is the responsibility of the endorsee to select quality programs that are (4) The department may randomly audit up to 50 percent of renewed endorsees. (5) Endorsees shall retain documentation of CE completion for three years from the date of completion and provide such documentation to the department upon request. (6) Continuing education hours or credits may not be carried over to any subsequent reporting period. (7) Endorsees found to be in noncompliance with CE requirements may be subject to administrative suspension. (a) remains the same. (b) courses in specialized programs (c) correspondence course work (d) (e) any (f) college or vocational school course work (i) remains the same. (ii) one semester credit shall equal 15 hours of (iii) one quarter credit shall equal 10 hours of (g) teaching courses that are germane to the profession. Credit units may be applied in this category based on a report by the endorsed individual. For a one-hour presentation, the presenter will be awarded two hours of (i) documentation must be submitted showing the (ii) the course must be addressed to endorsed individuals (iii) remains the same. (iv) instruction of any course may be submitted for
AUTH: IMP: 37-1-141, 37-1-321, 37-1-420, 50-39-102, MCA
REASON: The department is amending this rule to align with and further facilitate the department's standardized renewal, administrative suspension, and audit procedures, and streamline the rule for better organization and ease of use for the reader. As part of the standardization, the department is placing the responsibility on endorsees to select quality continuing education (CE) programs that contribute to their knowledge and competence. Following amendment, the department will no longer approve sponsors or courses as endorsees must choose CE that meets the education objectives described in this rule. Following a recommendation by legal staff, the department is amending (3) to align the affirmation of CE requirements at renewal with the provisions of 37-1-420, MCA. The amendments fall within standardized department procedures that endorsees with mandatory CE affirm an understanding of their CE requirements as part of a complete renewal application, instead of affirming CE completion. The department is reducing the annual CE requirement from eight hours to four hours. There have been only been two disciplinary actions against endorsees in the last five years, demonstrating that endorsee noncompliance and unprofessional conduct have been very minimal. Additionally, several other neighboring states do not require CE for fire alarm and fire extinguishing or suppression system professionals. Therefore, the department determined it is reasonably necessary to reduce the number of CE hours to be more consistent with these states while still ensuring continued competency of endorsees. The department is eliminating the ability for endorsees to carry over CE credits to a subsequent reporting period. Because the required hours are being reduced from eight to four, it is not necessary to allow CE carryover. The department is adding (4) to allow flexibility in conducting random CE audits. This amendment will allow the department to respond to staffing and budget issues by adjusting the number of endorsees audited, while remaining consistent with the statutory maximum of 50 percent in 37-1-420, MCA. To facilitate the standardized audit procedures, the department is specifying at (5) that endorsees must maintain their CE records for three years and provide them upon department request. The department is clarifying in (7) that endorsees not in compliance with CE may be subject to administrative suspension per 37-1-321, MCA, and in accordance with standardized department audit processes.
5. The rules proposed to be repealed are as follows:
24.144.404 DUPLICATE LICENSE OR ENDORSEMENT
AUTH: 50-3-102, MCA
REASON: It is reasonably necessary to repeal this rule since licensees/endorsees are able to access licenses/endorsements online and print them at any time. Very few requests for duplicate licenses/endorsements are received and there is no standard fee for duplicates.
24.144.415 APPRENTICES-APPROVED PROGRAMS
AUTH: 50-39-107, MCA IMP: 50-39-101, MCA
REASON: The department proposes to repeal this rule because the Fire Protection License Program no longer administers apprenticeship standards and individual apprenticeship agreements. The department's Workforce Services Division, Registered Apprenticeship Program, is the registration agency approved by the U.S. Department of Labor, Office of Apprenticeship, to develop and administer apprenticeship standards for all apprenticeable occupations, sponsor qualifications, and individual apprentice agreements.
24.144.503 APPLICATION PROCEDURE
AUTH: 50-39-107, MCA IMP: 50-39-102, 50-39-103, 50-39-105, MCA
REASON: The department administers standardized application procedures for all professional and occupational licensing boards and programs to streamline and expedite application processing. It is reasonably necessary to repeal this rule as it is not necessary to duplicate these procedures in program rule.
24.144.702 CONTENTS OF FIREWORKS WHOLESALE PERMIT
AUTH: 50-37-104, MCA IMP: 50-37-104, MCA
REASON: The department is repealing this rule as unnecessary. There is no requirement to post fireworks wholesale permits and the content of a department-issued permit is at the department's discretion.
24.144.2102 RENEWALS
AUTH: 37-1-141, 50-39-107, MCA
REASON: The department is repealing this rule because the department administers a standardized renewal process for all professional and occupational licensure boards and programs, and it is not necessary to repeat the procedural provisions in this program rule.
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 the Fire Protection License Program, 301 South Park Avenue, P.O. Box 200513, Helena, Montana 59620-0513, by facsimile to (406) 841-2305, or e-mail to [email protected], and must be received no later than 5:00 p.m., February 12, 2021.
7. An electronic copy of this notice of public hearing is available at http://boards.bsd.dli.mt.gov/fpl (department and program's web site). Although the department strives to keep its web sites accessible at all times, concerned persons should be aware that web sites may be unavailable during some periods, due to system maintenance or technical problems, and that technical difficulties in accessing a web site 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 program. 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 that the person wishes to receive notices regarding all program administrative rulemaking proceedings or other administrative proceedings. The request must indicate whether e-mail or standard mail is preferred. Such written request may be sent or delivered to the Fire Protection License Program, 301 South Park Avenue, P.O. Box 200513, Helena, Montana 59620-0513; faxed to the office at (406) 841-2305; e-mailed to [email protected]; or 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. Regarding the requirements of 2-4-111, MCA, the department has determined that the amendment of ARM 24.144.301, 24.144.402, 24.144.403, 24.144.411, 24.144.501, 24.144.502, 24.144.701, and 24.144.2101 will not significantly and directly impact small businesses. Regarding the requirements of 2-4-111, MCA, the department has determined that the repeal of ARM 24.144.404, 24.144.415, 24.144.503, 24.144.702, and 24.144.2102 will not significantly and directly impact small businesses. Documentation of the department's above-stated determinations is available upon request to the Fire Protection License Program, 301 South Park Avenue, P.O. Box 200513, Helena, Montana 59620-0513; telephone (406) 841-2004; facsimile (406) 841-2305; or to [email protected].
11. Carrie Baker, Program Manager, has been designated to preside over and conduct this hearing.
Certified to the Secretary of State December 30, 2020.
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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 [email protected].
