16-21-076

WSR 16-21-076

PROPOSED RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[Filed October 18, 2016, 9:39 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 16-17-132.

Title of Rule and Other Identifying Information: Chapter 296-17A WAC, Classifications for Washington workers' compensation insurance; WAC 296-17A-0217 Concrete flatwork, 296-17A-0301 Landscape construction, and 296-17A-0302 Masonry.

Hearing Location(s): Labor and Industries (L&I), 7273 Linderson Way S.W., Room S119, Tumwater, WA 98501, on December 5, 2016, at 10:00 a.m.

Date of Intended Adoption: January 17, 2017.

Submit Written Comments to: Karen Chamberlain, P.O. Box 44140, Tumwater, WA 98501, e-mail [e-mail], fax [phone], by December 5, 2016, 5:00 p.m.

Assistance for Persons with Disabilities: Contact office of information and assistance by November 28, 2016, TTY [phone].

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is proposing, effective April 1, 2017, to reclassify firms that perform paver stone installation work to classification 0301, Landscape construction. Paver stone installation work is currently reported in 0302, Masonry.

.	Reclassifying paver firms from 0302, Masonry, to 0301, Landscape construction, would create a more fair playing field between specialty paver firms and landscape contractors who also perform paver stone installation. Currently, specialty paver installation firms report in risk classification 0302, Masonry, which carries a higher base rate than landscape construction.
.	Paver stone installation companies and landscape construction companies have similar risk exposure to injury due to the similar work processes performed.
.	The department proposes revising wording and formatting of the affected classifications to make the rules easier to understand and apply; and updating references in the classifications to ensure the rule language reflects that paver installation work is to be classified in classification 0301, Landscape construction.

Reasons Supporting Proposal: Will create a more fair playing field between specialty paver firms and landscape contractors who also perform paver stone installation. This rule will better align these two industries as they have like degrees of hazard.

Statutory Authority for Adoption: RCW 51.16.035.

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: Karen Chamberlain, Tumwater, [phone]; Implementation: Chris Bowe, Tumwater, [phone]; and Enforcement: Victoria Kennedy, Tumwater, [phone].

No small business economic impact statement has been prepared under chapter 19.85 RCW. Since the proposed rules set or adjust fees or rates pursuant to legislative standards described in RCW 34.05.310 (4)(f) and do not change current coverage options for employers and workers, they are exempted from a small business economic impact statement.

A cost-benefit analysis is not required under RCW 34.05.328. Since the proposed rules do not change any existing coverage options for employers or workers, and adjust fees pursuant to legislative standards, they are exempted by RCW 34.05.328 (5)(b)(vi) from the requirement for a cost-benefit analysis.

October 18, 2016

Joel Sacks

Director

AMENDATORY SECTION (Amending WSR 13-11-128, filed 5/21/13, effective 7/1/13)

WAC 296-17A-0217 Classification 0217.

((0217-00 Concrete flatwork - Construction and/or repair: N.O.C.

Applies to contractors engaged in the construction and/or repair of concrete flatwork not covered by another classification (N.O.C.) such as, but not limited to, walkways, pathways, fences, and curbing. Work in this classification includes the set-up and tear down of forms, placement of reinforcing steel and wire mesh, and the pouring and finishing of concrete.

This classification excludes land clearing and excavation which is to be reported separately in classification 0101; concrete work performed on or in connection with highway, street, or roadway projects including sidewalks, curbs, gutters, median or retaining walls, sawing, drilling, or cutting operations which is to be reported separately in classification 0214; concrete work contained within a concrete, masonry, iron or steel frame building or structure such as the foundation, floor slabs, precast or poured in place bearing floors or wall panels, columns, pillars, metal erection or any other portion of the building or structure itself which is to be reported separately in classification 0518; and the installation of preformed concrete or stone pavers which is to be reported separately in classification 0302.

0217-01 Concrete foundation and flatwork construction and repair: Wood structural buildings

Applies to contractors engaged in the construction and/or repair of concrete foundation and flatwork for wood structural buildings not to exceed three stories in height. This classification includes the set-up and tear down of forms, placement of reinforcing steel and wire mesh, pouring, and finishing of concrete footings, stem walls, floor pads, cellar or basement floors, garage floors, swimming pools and ponds. This includes incidental concrete work such as walkways or driveways when performed by a foundation contractor.

This classification excludes land clearing and excavation which is to be reported separately in classification 0101; concrete work performed on or in connection with highway, street, or roadway projects including sidewalks, curbs, gutters, median or retaining walls, sawing, drilling, or cutting operations as part of the roadway which is to be reported separately in classification 0214; concrete landscape curbing which is included in classification 0301-08; concrete work contained within a concrete, masonry, iron or steel frame building or structure such as the foundation, floor slabs, precast or poured in place bearing floors or wall panels, columns, pillars, metal erection or any other portion of the building or structure itself which is to be reported separately in classification 0518; and the installation of preformed concrete or stone pavers which is to be reported separately in classification 0302.

0217-02 Concrete sawing, drilling and cutting, N.O.C.

Applies to contractors engaged in concrete sawing, drilling and cutting not covered by another classification (N.O.C.), including repairs. Work contemplated by this classification includes concrete sawing, drilling and cutting operations in connection with wood frame and nonwood frame buildings or structures, including flatwork, which may or may not be part of the building structure, such as, but not limited to, foundations, walkways, driveways, patios and swimming pools which may or may not be part of the building or structure. Activities include, but are not limited to, the sawing, cutting and drilling for ventilation boxes in the footings or stem walls, cutting out for windows or door ways, preparing to mount brackets for stairways or interior bearing walls, cutting interior walls as part of a building renovation project, cutting out for electrical and switch boxes, and repairing defective areas.

This classification excludes concrete sawing, drilling, and cutting operations performed on or in connection with highway, street, or roadway projects including sidewalks, curbs, gutters, median or retaining walls as part of roadways which are to be reported separately in classification 0214; bridge construction which is to be reported separately in classification 0201; and new dam construction which is to be reported separately in classification 0701.)) Applies to:

Contractors engaged in the construction and/or repair of:

. Concrete flatwork not covered by another classification (N.O.C.);

. Concrete foundations and flatwork for wood structural buildings;

. Concrete sawing, drilling and cutting not covered by another classification (N.O.C.).

Work contemplated by this classification includes, but is not limited to:

. Set-up and tear down of forms;

. Placement of reinforcing steel and wire mesh;

. Pouring and finishing of concrete;

. Concrete sawing, drilling and cutting operations in connection with wood frame and nonwood frame buildings and structures.

Projects could include, but are not limited to:

. Walkways, pathways, patios, fences and curbing;

. Concrete footings, stem walls, floor pads, cellar or basement floors, garage floors;

. Swimming pools and ponds;

. Sawing, cutting and drilling for ventilation boxes in the footings or stem walls;

. Cutting out for windows or doorways;

. Preparing to mount brackets for stairways or interior bearing walls;

. Cutting interior walls as part of a building renovation project;

. Cutting out for electrical and switch boxes;

Repairing defective areas.

Excluded phases of work:

. Worker hours engaged in land clearing or excavation work for a land clearing or excavation contract, which are classified in 0101;

. Worker hours engaged in concrete work contained within a building or structure made of concrete, masonry, iron or steel frame, such as the foundation, floor slab, precast or poured in place bearing floors or wall panels, columns, pillars, metal erection or any other portion of the building or structure itself, which are classified in 0518;

. Worker hours engaged in paver stone installation projects such as, but not limited to: Driveways, walkways, patios and pool decks, which are classified in 0301;

. Worker hours engaged in concrete work performed on or in connection with projects on highways, streets, or roadways, including sidewalks, curbs, gutters, median or retaining walls, or sawing, drilling or cutting operations as part of the roadway which are classified in 0214;

. Worker hours engaged in bridge construction which are classified in 0201;

. Worker hours engaged in new dam construction which are classified in 0701;

. Worker hours engaged in concrete landscape curbing which are classified in 0301.

For administrative purposes, classification 0217 is divided into the following subclassifications:

0217-00 Concrete flatwork - Construction and/or repair: N.O.C.

0217-01 Concrete foundation and flatwork construction and repair: Wood structural buildings

0217-02 Concrete sawing, drilling and cutting, N.O.C.

AMENDATORY SECTION (Amending WSR 14-17-085, filed 8/19/14, effective 9/19/14)

WAC 296-17A-0301 Classification 0301.

((0301-04 Lawn type sprinkler systems: Installation, service or repair

Applies to contractors engaged in the installation, service or repair of lawn type sprinkler systems. This type of activity is performed by landscaping contractors, plumbing contractors, and irrigation specialist contractors. Generally, lawn type sprinkler systems are installed at private residences or commercial businesses. The process involves identifying the area of land to be covered to determine the size and amount of pipe and sprinkler heads needed for the job. The installation involves cutting a trench in the ground (twelve to eighteen inches deep and wide enough to accommodate the pipe) with a vibrating plow or pipe pulling machine. Next, pipe is laid in the trench, glued, or otherwise joined, heads and canisters are installed, and the timer is hooked up. The system is checked for leaks, needed adjustments are made, and the pipe and heads are buried.

This classification excludes open canal type irrigation systems which are to be reported separately in classification 0108; the installation, service or repair of above or below ground agricultural/irrigation systems which is to be reported separately in classification 0301-06; and maintenance and cleaning of lawn sprinkler system pipes and heads done in connection with a landscape maintenance contract which is to be reported separately in classification 0308.

0301-06 Agricultural sprinkler/irrigation systems, N.O.C.: Installation, service or repair

Applies to contractors engaged in the installation, service or repair of above or below ground agricultural sprinkler and irrigation systems not covered by another classification (N.O.C.). The more common types of systems include below ground, fixed or movable, and wheel or impulse. Generally, these types differ from lawn sprinkler systems in that the size of pipes and pumps installed are much larger to produce the water pressure needed to irrigate large areas of land. Installation of below ground systems involves the use of trenching equipment to dig trenches, which are usually more than two feet deep to lay pipe. The above ground systems are laid out and assembled based on the need of the land area.

This classification excludes open canal type irrigation systems which are to be reported separately in classification 0108, and the installation, service or repair of lawn type sprinkler systems which is to be reported separately in classification 0301-04.

0301-08 Landscape construction operations, N.O.C.

Applies to landscape contractors engaged in new landscape construction or renovation projects not covered by another classification (N.O.C.). This classification also applies to specialist contractors engaged in the installation of invisible fences which are usually used to confine animals within a given area. Landscape construction work contemplated by this classification includes producing a preliminary drawing of the landscape or renovation project, preparing the ground (which may include tilling and spreading top soils or custom mix soils), installing sprinkler systems, planting trees, plants or shrubs, planting or replanting grass from seed or sod, installing ground cover material or plastic to retard weeds, placing concrete borders, the incidental construction of rockery, extruded concrete curbing, fences, ponds, paths, walkways, arbors, trellis and gazebos when performed by employees of a landscape contractor as part of a landscape contract. If these activities are conducted separately from a landscape contract and not part of the landscape project, they must be reported separately in the classification applicable to the work being performed. Equipment used by contractors subject to this classification includes, but is not limited to, tractors with till attachments, small front end loaders, trenchers, mowers, fertilizer spreaders, wheelbarrows, and electric power tools.

Invisible fence construction work contemplated by this classification includes identifying the land area to be fenced, sketching a preliminary drawing, burying the wire in a narrow trench (about one inch wide by two to six inches deep) that has been dug along the field perimeter (or just securing the wire onto the ground around the perimeter), and connecting the low voltage transmitter box (usually about the size of a hand-held calculator) that plugs into a 110 volt electrical outlet. This classification includes training sessions for the animal and related maintenance and repair at the customer's location. Equipment used to install invisible fences includes, but is not limited to, rakes or other hand tools, and small trench diggers.

This classification excludes all grading, clearing, or contouring of land which is to be reported separately in classification 0101; bulkheads not adjacent to water, or similar structures built of rock, which are to be reported separately in classification 0302; the installation or on-site maintenance of roofing materials composed of impermeable barriers, sod, soil, and plants, sometimes termed landscape roofing, living roofing, garden roofing, green/environmentally beneficial roofing, brown/biodiverse roofing, or vegetative roofing, which is to be reported in classification 0507; any installation or maintenance of a landscape roofing irrigation system, which is reported in classification 0507; and lawn care maintenance or chemical spraying or fumigating which is to be reported separately in classification 0308.)) Applies to:

Contractors engaged in the installation, service and repair of:

. Lawn type sprinkler systems;

. Agriculture sprinkler and irrigation systems, including above or below ground;

. New landscape construction or renovation projects;

. Invisible fence installation, which is used to confine animals within a given area;

. Paver stone installation projects such as, but not limited to: Driveways, walkways, patios and pool decks. Common types of pavers used include brick, concrete and stone.

Common methods of paver installation include:

- Interlocking concrete pavers, which are primarily sand set, but in some cases mortar set;

- Permeable interlocking concrete pavers, which are installed to help reduce storm water runoff;

- Pedestal set pavers, when used for roof top decks and plaza areas to increase living space, or to meet certain environmental requirements (not acting as a roofing system).

Work contemplated by this classification includes, but is not limited to:

. Producing preliminary drawings of a landscape or renovation project;

. Identifying area of land to be covered, to determine size and amount of pipe and sprinkler heads needed for irrigation/sprinkler system install;

. Preparing the ground (may include tilling and spreading of top soils);

. Trenching;

. Burying wire in trench (invisible fencing);

. Connecting low voltage transmitter box for invisible fencing;

. Installing/repairing sprinkler systems;

. Planting trees, plants or shrubs;

. Planting or replacing grass from seed or sod;

. Installing ground cover material or plastic to retard weeds;

. Placing concrete borders;

. Installing concrete, brick or stone pavers to create walkways, pathways, pool decks, or patios.

Typical machinery includes, but is not limited to:

. Electric power tools;

. Fertilizer spreaders;

. Hand tools/rakes;

. Mowers;

. Small front end loaders;

. Tractors with till attachments;

. Trenchers;

. Wheelbarrows;

. Vibrating plow or pipe pulling machine.

This classification includes:

. Incidental construction of rockery, extruded concrete curbing, fences, ponds, walls, arbors, trellises and gazebos when performed by employee of a landscape contractor as part of a landscape contract.

- If these activities are conducted separately from a landscape contract and not part of a landscape project, they must be reported separately in the classification applicable to the work being performed.

. Incidental construction of walls and rockery performed by employees of a paver stone installation contractor as part of a paver installation contract.

- If these activities are conducted separately from a paver stone installation contract and not part of a paver stone project, they must be reported separately in the classification applicable to the work being performed.

Note:	Incidental work is a minor part of an overall project or contract.

Example: A paving installation company creates the driveway, walkways, and patio at a residential home. The company finds that the lawn will slide onto the driveway unless a three foot tall retaining wall the length of the driveway is created. The creation of the retaining wall to protect the driveway is incidental to the paving installation project and may be reported in 0301.

Excluded phases of work:

. Worker hours engaged in open canal type irrigation systems, which are classified in 0108.

. Worker hours engaged in maintenance and cleaning of lawn sprinkler system pipes and heads done in connection with a landscape maintenance contract which are classified in 0308.

. Worker hours engaged in grading, clearing, or contouring of land which are classified in 0101.

. Worker hours engaged in bulkheads not adjacent to water, or similar structures built of rock, which are classified in 0302.

. Worker hours engaged in installation or on-site maintenance of roofing materials composed of impermeable barriers, sod, soil, and plants, sometimes termed landscape roofing, living roofing, or vegetative roofing, which are classified in 0507.

. Worker hours engaged in paver installation on a roof by a roofing contractor, when acting as part of the roofing system, which are classified in 0507.

. Worker hours engaged in installation or maintenance of a landscape roofing irrigation system, which are classified in 0507.

. Worker hours engaged in lawn care maintenance or chemical spraying or fumigating which are classified in 0308.

Note:	For rules on assigning and reporting in more than one basic classification, see WAC 296-17-31017 Multiple classifications.

For administrative purposes, classification 0301 is divided into the following subclassifications:

0301-04 Lawn type sprinkler systems: Installation, service or repair

0301-06 Agricultural sprinkler/irrigation systems, N.O.C.: Installation, service or repair

0301-08 Landscape construction operations, N.O.C.

AMENDATORY SECTION (Amending WSR 12-11-109, filed 5/22/12, effective 7/1/12)

WAC 296-17A-0302 Classification 0302.

0302-01 Brick, block, and stone masonry work, including repairs N.O.C.

Applies to contractors engaged in interior or exterior work in brick, block, stone, brick or stone veneer, granite, marble, slate, or quartz, not covered by another classification (N.O.C.). ((Applications in this classification also include, but are not limited to, concrete block, glass block, pavers, and slab or engineered stone products. Projects in this classification include, but are not limited to:

. Decorative additions to buildings and landscapes;

. Hardscape installations such as, but not limited to:

- Driveways;

- Fences;

- Patios;

- Steps;

- Walkways;

- Walls;

. Installation of slab stone or concrete countertops;

. Construction of entire buildings or structures with brick, block or stone products;

. Setting tombstones.

Work contemplated by this classification includes, but is not limited to:

. Cutting;

. Laying or installing;

. Polishing;

. Dry setting or adhering with mortar;

. Tuck pointing (filling and/or finishing brickwork or stonework joints with cement or mortar).

This classification excludes:

. Tile setting and countertop installations as described in classification 0502;

. Plastering, stuccoing or lathing work which is to be reported separately in classification 0303;

. Incidental construction of rockery, paths, and walkways when performed by employees of a landscape contractor as part of a landscape project, which is to be reported in classification 0301;

. Mechanically placed block or prefab panels next to a roadway for noise barrier, median or retaining walls, which is to be reported in classification 0219;

. Concrete flat work which is to be reported separately in the classification applicable to the work being performed; and

. Masonry work as described in classification 0302-02.

Special notes: Contractors who operate a shop to cut, mill and polish stone products are to be assigned classification 3104-53 for the shop work; contractors operating a shop to make finished concrete products are to be assigned classification 3509 for the shop work. When a business is assigned classification 3104 or 3509 for the shop operation, then classification 5206 "Permanent yard or shop" may no longer be applicable to the business.

Contractors often have a showroom to display examples of their work and products which they install. If all the conditions of the general reporting rules covering standard exception employees have been met, then employees engaged exclusively in showing the display area or showrooms to customers are to be assigned classification 6303.

0302-02 Masonry

Applies to contractors engaged in interior or exterior masonry work including, but not limited to, the construction, lining or relining of:

. Fireplaces;

. Chimneys;

. Blast furnaces;

. Fire pits;

. Ovens.

Work contemplated by this classification includes:

. Cutting and laying brick, block or stone;

. Tuck pointing (filling and/or finishing brickwork or stonework joints with cement or mortar).

This classification excludes:

. Plastering, stuccoing or lathing work which is to be reported separately in classification 0303;

. Tile setting as described in classification 0502;

. Concrete work which is to be reported separately in the classification applicable to the work being performed; and

. All other masonry work which is to be reported in classification 0302-01.))

Projects in this classification include, but are not limited to:

. Decorative additions to buildings;

. Fences;

. Walls;

. Installation of slab stone or concrete countertops;

. Construction of entire buildings or structures with brick, block or stone products;

. Setting tombstones.

Work contemplated by this classification includes, but is not limited to:

. Cutting;

. Laying or installing;

. Polishing;

. Dry setting or adhering with mortar;

. Tuck pointing (filling and/or finishing brickwork or stonework joints with cement or mortar).

Excluded phases of work:

. Worker hours engaged in tile setting and countertop installations, as described in 0502, which are classified in 0502;

. Worker hours engaged in plastering, stuccoing or lathing work which are classified in 0303;

. Worker hours engaged in paver stone installation work projects such as, but not limited to, driveways, walkways, patios and pool decks which, if the conditions of WAC 296-17-31013 Building construction are met, may be reported separately in 0301;

. Worker hours engaged in mechanically placed block or prefab panels next to a roadway for noise barrier, median or retaining walls, which are to be reported in classification 0219;

. Worker hours engaged in concrete flat work which are to be classified separately in the classification applicable to the work being performed;

. Worker hours engaged in all other masonry work (as described in 0302-02), which are classified in 0302-02.

Special notes: Contractors who operate a shop to cut, mill and polish stone products are to be assigned classification 3104-53 for the shop work; contractors operating a shop to make finished concrete products are to be assigned classification 3509 for the shop work. When a business is assigned classification 3104 or 3509 for the shop operation, then classification 5206 "Permanent yard or shop" may no longer be applicable to the business.

Contractors often have a showroom to display examples of their work and products which they install. If all the conditions of the general reporting rules covering standard exception employees have been met, then employees engaged exclusively in showing the display area or showrooms to customers are to be assigned classification 6303.

0302-02 Masonry

Applies to contractors engaged in interior or exterior masonry work including, but not limited to, the construction, repair, lining or relining of:

. Blast furnaces;

. Benches;

. Chimneys;

. Decorative columns;

. Fire pits;

. Fireplaces/pads;

. Outdoor barbeques;

. Ovens;

. Planter boxes.

Work contemplated by this classification includes, but is not limited to:

. Cutting and laying brick, block or stone;

. Tuck pointing (filling and/or finishing brickwork or stonework joints with cement or mortar).

Excluded phases of work:

. Worker hours engaged in plastering, stuccoing or lathing work which are classified in 0303;

. Worker hours engaged in tile setting and countertop installations, as described in 0502, which are classified in 0502;

. Worker hours engaged in concrete work, which is classified in the classification applicable to the work being performed;

. Worker hours engaged in all other masonry work (as described in 0302-01), which are classified in 0302-01.