LABOR AND INDUSTRIES

[Filed January 2, 2020, 9:51 a.m.]

Preproposal statement of inquiry was filed as WSR 19-07-015.

Title of Rule and Other Identifying Information: Landscape maintenance, chapter 296-127 WAC, Prevailing wage.

Hearing Location(s): On February 10, 2020, at 9:00 a.m., at the Department of Labor and Industries (L&I), 7273 Linderson Way S.W., Room S118, Tumwater, WA 98501. For directions https://lni.wa.gov/agency/contact/#office-locations.

Date of Intended Adoption: February 28, 2020.

Submit Written Comments to: Beverly Clark, L&I, Fraud Prevention and Labor Standards, P.O. Box 44400, Olympia, WA 98504-4400, email Beverly.Clark@Lni.wa.gov, fax 360-902-5292, by February 10, 2020.

Assistance for Persons with Disabilities: Contact Beverly Clark, phone 360-902-6272, fax 360-902-5292, email Beverly.Clark@Lni.wa.gov, by February 3, 2020.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule-making proposal amends chapter 296-127 WAC, Prevailing wage, to provide a new scope of work specific to landscape maintenance that is separate and unique from landscape construction. The landscape maintenance worker scope of work description involves the tending to and maintenance of an area of land that has been previously landscaped, when the work is not preparatory to construction. A description of specific activities that may be within the scope and activities that are not included in the scope are listed in the rule.

An initial emergency rule (WSR 19-07-014) and CR-101 Preproposal statement of inquiry (WSR 19-07-015) were filed on March 8, 2019. A second emergency rule making was filed on July 5, 2019 (WSR 19-15-004). A third emergency rule making was filed on November 1, 2019 (WSR 19-22-041).

Reasons Supporting Proposal: 2018's SSB 5493, effective June 7, 2018, revised RCW 39.12.015. Under the new law, the department is directed to "establish the prevailing rate of wage … established in collective bargaining agreements for those trades and occupations that have collective bargaining agreements." Where no collective bargaining agreement (CBA) exists, the department is to conduct wage and hour surveys. Other methods may be used where a survey is not sufficient.

The department implemented SSB 5493 in the prevailing rates published on August 1, 2018. As a result of the new law, the rates for landscape construction ("landscape laborer") significantly increased. On February 25, 2019, the department received a petition from the Association of Washington Cities (AWC) to create a separate landscape maintenance scope of work. Due to the increase in costs, cities are deferring or eliminating necessary maintenance to keep public areas safe, including: Preparing parks, athletic fields, trails and other recreational facilities for the spring and summer season; maintenance of critical vegetation on stormwater facilities like retention ponds; and storm related clean-up to remove dangerous debris from public spaces. Lack of adequate maintenance will result in unsafe facilities creating risks to the public and liability concerns for cities. The department has also heard from companies who contract with cities to do landscape maintenance work with concerns that contracts are not being renewed and workers will be laid off as result.

Under WAC 296-127-013, scope of work descriptions may be issued by the director or designee to determine the applicable prevailing wage and are created using authoritative sources including: Apprenticeship standards; CBAs; dictionaries of occupational titles; experts from organized labor, licensed contractors, and contractors' associations; and recognized labor and management industry practice. Under WAC 296-127-01346, the introductory paragraph of the landscape construction scope of work description is work involved in the beautification of a plot of land by changing its natural features through the addition or modification of lawns, trees, bushes, etc. Upon review of the scope of the work, the department determined that the separate scope for landscape maintenance worker is appropriate.

Statutory Authority for Adoption: Chapter 39.12 RCW.

Statute Being Implemented: Chapter 39.12 RCW.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: L&I, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Jim Christensen, Tumwater, Washington, 360-902-5330.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Beverly Clark, L&I, Fraud Prevention and Labor Standards, P.O. Box 44400, Olympia, WA 98504-4400, phone 360-902-6272, fax 360-902-5292, email Beverly.Clark@Lni.wa.gov.

The proposed rule does not impose more-than-minor costs on businesses. Following is a summary of the agency's analysis showing how costs were calculated. The proposed rule sets a separate scope of work resulting in appropriate prevailing rates of wage specific to landscape maintenance that are distinct from higher costs for landscape construction work. Since the proposed rule is expected to result in a cost savings, it does not impose more than minor cost costs.

A copy of the detailed cost calculations may be obtained by contacting Beverly Clark, L&I, Fraud Prevention and Labor Standards Division, P.O. Box 44400, Olympia, WA 98504-4400, phone 360-902-6272, fax 360-902-5292, email Beverly.Clark@Lni.wa.gov.

WAC 296-127-01345Landscape maintenance workers.

For the purpose of the Washington state public works law, chapter 39.12 RCW, landscape maintenance involves the tending to and maintenance of an area of land that has been previously landscaped, when the work is not preparatory to construction.

(1) Landscape maintenance includes:

(a) Mowing, weeding, and otherwise performing tasks associated with the maintenance of lawns, yards, gardens, athletic fields, golf courses, parks, trails, or other previously landscaped surfaces.

(b) Pruning, trimming, mulching, and composting.

(d) Incidental hauling or placement of top soil, plants, or other landscaping materials in trucks with only one rear axle.

(e) Reseeding, resodding, replanting, top dressing, aerification, and applying chemicals, fertilizers, and soil amendments.

(f) Use of power tools with a maximum of twenty horsepower such as line trimmers, edgers, mowers, and leaf blowers.

(g) Rehydroseeding using equipment with a maximum capacity of one hundred gallons.

(h) Use of riding mowers which do not exceed fifty horsepower.

(i) Minor, nonconstruction related repair and maintenance of existing irrigation systems.

(j) Debris removal, and clearing of storm drains, catch ponds, and drain grates.

(2) Landscape maintenance does not include:

(a) Any landscape or nonlandscape construction activity or work, other than incidental maintenance and repairs mentioned above.

(b) Any work that is:

(i) On land that has not been previously landscaped;

(ii) Preparatory to construction, alteration, repair, improvement, or demolition;

(iii) Included or required in the process of construction or as a part of a construction project; or

(iv) Required for the restoration of a surface area after construction.

(d) Clearing of trees;

(e) Construction or repair of existing irrigation systems other than the minor incidental work identified in subsection (1)(i) of this section;

(f) Tree falling or bucking;

(g) The use of power tools over twenty horsepower;

(h) The use of any other riding equipment regardless of horsepower, other than riding mowers which do not exceed fifty horsepower;

(i) Rehydroseeding using equipment that exceeds a one hundred gallon capacity; and

(j) Any work on backflow protection devices of any kind, when connected to a potable water system.