BEFORE THE DEPARTMENT OF AGRICULTURE

OF THE STATE OF MONTANA

 

In the matter of the amendment  of ARM  4.12.1301, 4.12.1302, 4.12.1303, 4.12.1305, and 4.12.1307 relating to the Quarantine Program

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO:  All Concerned Persons

 

            1.  On February 16, 2012, at 2:00 p.m. the Montana Department of Agriculture will hold a public hearing in Room 225 of the Scott Hart Building, 302 N. Roberts at Helena, Montana, to consider the proposed amendment of the above-stated rules.

 

            2.  The Department of Agriculture will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process and need an alternative accessible format of this notice.  If you require an accommodation, contact the Department of Agriculture no later than 5:00 p.m. on February 9, 2012, to advise us of the nature of the accommodation that you need.  Please contact Cort Jensen at the Montana Department of Agriculture, 302 North Roberts, P.O. Box 200201, Helena, MT 59620-0201; phone: (406) 444-5402; fax: (406) 444-5409; or e-mail: agr@mt.gov.

 

3.  The rules as proposed to be amended provide as follows, new matter underlined, stricken matter interlined:

 

4.12.1301  DEFINITIONS  (1) through (16) remain the same.

(17)  "Regulated article" is any plant, plant matter, propagative plant parts, plant products, associated plant material, container, conveyance, or any other object or material capable of harboring or spreading plant pests, and that is subject to phytosanitary measures or a quarantine.

(18)  "Short-term quarantine" is a quarantine that lasts 12 months or less.

(19)  "Vector" is an organism that transmits a pathogen.

 

AUTH:  80-7-402, MCA

IMP:  80-7-402, MCA

 

REASON AND FINANCIAL IMPACT:  Provides consistency within administrative rules when referencing regulated articles. There is no economic impact associated with this change.

 

4.12.1302  ESTABLISHING A QUARANTINE  (1) and (2) remain the same.

(3)  A list of quarantines is available by contacting: Montana Department of Agriculture, Agricultural Sciences Division, 303 302 N. Roberts, P.O. Box 200201, Helena, MT 59620-0201; fax: (406) 444-7336; e-mail: agr@mt.gov, or through the department's web site: www.agr.mt.gov.

 

AUTH:  80-7-402, MCA

IMP:  80-7-402, MCA

 

REASON AND FINANCIAL IMPACT:  During the past year, the address for the department was adjusted; this change updates contact information for the department.  This is a housekeeping change.  There is no associated economic impact.

 

4.12.1303  NOTIFICATION OF IMPORTS  (1)  remains the same.

(2)  The department must be in receipt of all proper documents at least 48 business hours before bringing the items into the state.  Business hours are Monday through Friday, 8:00 a.m. to 5:00 p.m., MST, excluding state holidays.

(3) and (4) remain the same.

 

AUTH:  80-7-402, MCA

IMP:  80-7-402, MCA

 

REASON AND FINANCIAL IMPACT:  Provides clarification that the department’s normal operating hours are mountain standard time; represents housekeeping change.  There is no economic impact associated with this change.

 

        4.12.1305  INSPECTIONS  (1)  The department may inspect at any time, without notice, any business, location, conveyance, or records relating to such a business, location, or conveyance of:

      (a)  Any individual, business, distributor, or shipper that sends them a notice of import and the receiver of such imports.

      (b)  Any permit holder or anyone who has had a permit in the previous 24 months.

      (c)  Any person involved in the import or export of any plant, plant matter, plant part, plant product, or other regulated article subject to a quarantine.

      (d)  Any location that has, grows, propagates, processes, distributes, sells, trades, barters, uses, or gives away a plant, plant matter, plant part, or plant product subject to a quarantine.

      (2) through (4) remain the same.

 

      AUTH:  80-7-402, MCA

      IMP:  80-7-402, MCA

 

      REASON AND FINANCIAL IMPACT:  The use of "them" is extraneous and unnecessary; represents housekeeping change.  There is no associated economic impact.

 

        4.12.1307  VIOLATIONS AND PENALTIES

(1)  Violation Schedule	1st Offense	Subsequent Offense
(a)  Selling, distributing, propagating, rearing, planting, releasing, moving, or transporting a regulated article without a permit or compliance agreement.	$2,500	$5,000
(a) (b)  Knowingly bringing plants, plant matter, propagative plant parts, plant products, or any associated material into the state that is diseased, infected, or infested whether it is quarantined or not.	$1,000 $2,500	$1,000 $5,000
(b) (c)  Bringing a quarantined regulated article into the state without a required permit.	$750 $2,500	$1,000 $5,000
(c) (d)  Failure to obtain a permit.	$500 $1,000	$1,000 $5,000
(d) (e)  Failure to have a required permit or other required document with a quarantined item.	$500 $1,000	$1,000 $5,000
(e) (f)  Failure to provide required notification.	$500 $1,000	$1,000 $5,000
(f) (g)  Failure to follow any required safeguard not resulting in harm.	$500 $1,000	$1,000 $5,000
(h)  Failure to follow any required safeguard that resulted in harm.	$2,500	$5,000
(g) (i)  Failure to keep required records.	$500 $1,000	$1,000 $5,000
(h) (j)  Failure to release or allow access to records pertaining to a quarantine, order, permit, or compliance agreement.	$500 $2,500	$1,000 $5,000
(i) (k)  Falsifying any record or document related to a quarantine, order, permit, or compliance agreement, including, but not limited to all sales, handling, shipping, transporting, importing, and exporting and any invoice, bill of lading, permit, seal, or certificate.	$1,000 $2,500	$1,000 $5,000
(j) (l)  Interfering with or preventing an inspection or investigation.	$1,000 $2,500	$1,000 $5,000
(k) (m)  Failure to be in compliance with a quarantine requirement.	$1,000 $2,500	$1,000 $5,000
(l) (n)  Noncompliance with any state or federal quarantine, order, permit condition or requirement, or compliance agreement that did not cause harm.	$1,000 $2,500	$1,000 $5,000
(o)  Noncompliance with any state or federal quarantine, order, permit condition or requirement, or compliance agreement that caused harm.	$5,000	$5,000
(m) (p)  Any other violation of the Quarantine Act or these rules that did not cause harm.	$1,000 $2,500	$1,000 $5,000
(q)  Any other violation of the Quarantine Act or these rules that caused harm.	$5,000	$5,000

      (2) and (3) remain the same.

      (4)  At the department's discretion, each continued day of violation can be a separate offense.

 

AUTH:  80-7-402, MCA

IMP:  80-7-402, MCA

 

REASON AND FINANCIAL IMPACT:  The original matrix covered regulated articles under a quarantine being brought into the state but not movement or spread of regulated articles within the state.  An additional violation was added to reflect the movement and spread of regulated articles within the state.  During the 2011 legislative session, the civil penalty maximum was increased to $5,000 to ensure that penalties represented a true deterrent.  The civil penalty matrix values have been adjusted pursuant to recommendation of the potato improvement association, who requested the change legislatively.  Changes were also made to reflect whether harm resulted from a violation.  Additional language was added to clarify that penalties may accrue on a daily basis.  There is an economic impact associated with the changes in this section.  In most cases, the changes significantly increase penalties associated with listed violations.  The department has addressed three violations of the Quarantine Act in the past two years.  No civil penalties were assessed because the department was able to effectively address them through compliance assistance and a warning letter.  In both cases, there was no harm intended or realized.  Penalties, however, are avoidable by not violating quarantine requirements.

 

4.  Concerned persons may submit their data, views, or arguments concerning the proposed action either orally or in writing at the hearing.  Written data, views, or arguments may also be submitted to: Cort Jensen at the Montana Department of Agriculture, 302 North Roberts, P.O. Box 200201, Helena, MT 59620-0201; telephone (406) 444-5402; fax: (406) 444-5409; or e-mail: agr@mt.gov and must be received no later than February 23, 2012.

 

            5.  The Department of Agriculture maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request which includes the name, e-mail, and mailing address of the person and specifies for which program the person wishes to receive notices.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to Montana Department of Agriculture, 302 North Roberts, P.O. Box 200201, Helena, MT 59620-0201; fax: (406) 444-5409; or e-mail: agr@mt.gov or may be made by completing a request form at any rules hearing held by the Department of Agriculture.

 

6.  An electronic copy of this Notice of Proposed Amendment is available through the department's web site at www.agr.mt.gov, under the Administrative Rules section.  The department strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the department strives to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

            7.  The bill sponsor contact requirements of 2-4-302, MCA, apply and have been met.  The primary bill sponsor, Bruce Tutvedt, was contacted by e-mail and phone on January 11, 2012.

 

DEPARTMENT OF AGRICULTURE

 

 

 

 

/s/ Ron de Yong                                                  /s/ Cort Jensen                                       

Ron de Yong, Director                                      Cort Jensen, Rule Reviewer

 

Certified to the Secretary of State, January 17, 2012.