BEFORE THE DEPARTMENT OF AGRICULTURE

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 4.10.701, 4.10.709, 4.10.807, 4.10.1009, 4.10.1803, 4.10.1804, and 4.10.1806 and repeal of ARM 4.10.702 pertaining to pesticide registrations, worker protection standards, containers and disposal program

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT AND REPEAL

 

TO: All Concerned Persons

 

           1. On July 30, 2019, at 10:00 a.m., the Department of Agriculture will hold a public hearing in Room 225 of the Scott Hart Building, at 302 N. Roberts, Helena, Montana, to consider the proposed amendment and repeal 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 or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Agriculture no later than 5:00 p.m. on July 26, 2019, to advise us of the nature of the accommodation that you need. Please contact Cort Jensen, Department of Agriculture, P.O. Box 200201, Helena, Montana, 59620-0201; telephone (406) 444-3144; fax (406) 444-5409; or e-mail agr@mt.gov.

 

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

 

            4.10.701 GENERAL REGISTRATION REQUIREMENTS (1) The department hereby establishes the standards of restriction for pesticides to be registered, re-registered, sold, distributed, offered for sale, purchased, exchanged, bartered, given away, used, or applied in the state. Sections 80-8-201 (3) and 80-8-105 (2) (a), (b), and (3) of the Act allows the department to restrict pesticides to prevent damage or injury to:

            (a) persons, animals, or pollinating insects from the effect of drift or from careless application;

            (b) the environment;

            (c) plants, including forage plants;

            (d) wildlife; and

            (e) fish and other aquatic life.

These rules establish standards for requiring pesticides to be registered in the state, to be classified as either restricted or general use pesticides by the department and prohibits the sale of restricted pesticides by any person to another person who has not been certified by the department to purchase, use, or apply the pesticide. It shall be unlawful to make available for use or to use any pesticide, whether registered or not, classified for restricted use to any person other than a

certified applicator except as other exempted by the Act or rules adopted thereunder.

            (1) All persons selling, distributing, offering for sale, exchanging, giving away, bartering, using, or applying pesticides must follow label directions and labeling requirements. Only persons certified by the department may purchase, use, and apply restricted use pesticides.  It is unlawful to make a restricted pesticide available for use to anyone who is not a certified applicator unless they are allowed such use in law or by rule.

            (2) Only certified applicators or those under their direct supervision may use restricted use pesticides. The department may impose other restrictions, such as the type of applicator who may use the pesticide, or the time and place that the pesticide(s) may be used.

            (3) Pesticides registered in the state are classified by the department as either restricted use or general. The department may classify a pesticide as restricted use if it determines that, without regulatory restrictions, the pesticide would cause unreasonable adverse effects to the environment, animals, or humans. Additional registration restrictions will be established and adopted by the department in rule.

            (4) In addition to the requirements set forth in the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), pesticide labeling must also meet state standards set forth in (5) through (7).

            (5) Any pesticide exempted from registration under the provisions of section 18 of FIFRA must provide the department with an application in accordance with Title 40 of the Code of Federal Regulations (CFR), Part 166.

            (a) Pesticides distributed under section 18 of FIFRA must include department-approved labels prior to distribution. The label must include all conditions granting emergency exemption and all other required items determined by the department. The department may establish additional requirements for registration of section 18 pesticides.

            (b) Documents granting emergency exemptions may be used in lieu of labeling in situations where a label cannot be developed and approved prior to the intended use period. Conditions submitted as part of the granting document and any attached or associated documentation from the department may be considered labeling for the purpose of enforcement.

            (6) Pesticides registered under the provisions of section 24(c) of FIFRA must provide the department with an application in accordance with 40 CFR, Part 162. 

            (a) Additional requirements for the registration of section 24(c) pesticides may be established by the department.

      (7) Minimum risk pesticides must meet the provisions listed in 40 CFR, Part 152.25(f) of FIFRA.  These items must also meet the requirements of the department and may be subject to refusal, suspension, or cancellation per 80-8-201, MCA. Items required by FIFRA and the state include:

           (a) label(s);

      (b) safety data sheet(s);

      (c) statement of formula(s);

      (d) efficacy data, including test methods that substantiate any pesticidal claims that appear on the product label may be required; and

           (e) all claims on the manufacturer's website comply with the same conditions required of the product label.

 

AUTH: 80-8-105, MCA

IMP: 80-8-105, MCA

 

REASON: Proposed amendments to ARM 4.10.701 modify grammar and formatting to comply with Secretary of State Administrative Rules of Montana requirements. Redundant language found in both ARM 4.10.702 and 80-8-105, MCA was removed to provide clear, logical content.

 

4.10.709 USE OF PESTICIDES ON PEST INFESTATIONS IN ALFALFA SEED CROPS (1) The pesticide Pirimor 50-DF (pirimicarb) is permitted for use on alfalfa seed as specified under the authority of Section 3(c)(7)(C) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), as amended. Additionally, several pesticides

(1) Pesticides registered for use in Montana under Section section 24(c) of FIFRA for use on alfalfa seed only are covered by this rule. The use of these pesticide products is not permitted on fields producing alfalfa for livestock feed and no portion of the treated field, including seed, seed screening, hay forage or stubble, may be used for human food or animal feed.

(2) The current year's treated alfalfa seed crop may not be used or distributed for animal feed purposes such as cut for hay, green chop, pellets, meal, or stubble;, nor can grazing take place on the current year's treated alfalfa seed crops.

(3) Screenings or other crop byproducts shall not cannot enter feed channels by distribution and/or direct use. All alfalfa seed screenings and/or crop byproducts that were treated with Pirimor 50-DF or any of the FIFRA Section section 24(c) of FIFRA pesticides for alfalfa seed production only must be immediately removed from the feed market, and disposed of in such a manner that they cannot be distributed or used for feed or food purposes. The alfalfa seed conditioner shall must keep records of all alfalfa seed screenings and their disposal (site, method, amount and type of material, date of shipment) and shall furnish these records to the department upon request. Treated alfalfa seed must not be used or distributed for human food (sprouting).

(4) All alfalfa seed treated with Pirimor 50-DF or any of the FIFRA Section section 24(c) of FIFRA pesticides registered for use in alfalfa seed production only shall must be tagged at processing plants and such tag shall must state NOT FOR HUMAN CONSUMPTION AND/OR ANIMAL FEED. It shall be is the grower's responsibility to notify the processing plants of any seed crops treated with Pirimor 50-DF or any of the FIFRA Section section 24(c) of FIFRA pesticides for use in alfalfa seed production only.

            (5) All usage, in addition to the requirements of this rule, shall must be in compliance comply with the Pirimor 50-DF label or the FIFRA Section section 24(c) of FIFRA labels for the pesticides registered for use in alfalfa seed production only.

 

AUTH: 80-8-105, MCA

IMP: 80-8-105, MCA

 

REASON: Pirimor 50-DF was last registered with the Environmental Protection Agency (EPA) in 2009 and became inactive on April 21, 2010. The department does not regulate section 3 products unless they are federally required to through EPA. In addition to removing this product, proposed amendments update terminology and language to comply with Secretary of State Administrative Rules of Montana formatting guidelines.

 

4.10.807 BURNING OR INCINERATION OF PESTICIDE (1) Incineration or burning pesticide containers or the use of an unapproved incinerator to burn or incinerate pesticide containers is prohibited except when such burning or incineration is approved by the Montana department of health and environmental sciences. 

(1) The Department of Environmental Quality (DEQ) must approve pesticide container burning or incineration.

 

AUTH: 80-8-105, MCA

IMP: 80-8-105, MCA

 

REASON: Proposed amendments update a state agency name. The Department of Health and Environmental Sciences is now the Department of Environmental Quality.

 

4.10.1009 NONCOMPLIANCE WITH PESTICIDE WORKER PROTECTION STANDARDS AND LABELING (1) For purposes of administering civil penalties for noncompliance with worker protection standards, the department hereby adopts the worker protection statements and worker protection standard as set forth in the Code of Federal Regulations, Title 40, part 156, subpart K and Title 40, part 170, revised as of July 1, 1998. A copy can be obtained from the Montana Department of Agriculture, Agricultural Sciences Division, PO Box 200201, Helena, MT 59620-0201, (406 444-2944).

 (1) Failure to comply with the worker protection standard and associated labeling requirements violates the Montana Pesticides Act and is subject to civil penalties pursuant to 80-8-306, MCA.

            (2) Failure to comply with the worker protection standard and associated labeling requirements is a violation of the Montana Pesticides Act and is subject to civil penalties pursuant to 80-8-306, MCA.

            (2) Persons using pesticides referencing the worker protection standard, labeled 40 CFR, part 156, subpart K, must comply with worker protection statements and the worker protection standard. Failure to comply constitutes use of a pesticide in a manner inconsistent with the label.

            (a) when the worker protection standard is referenced on a pesticide label pursuant to 40 CFR, Part 156, subpart K, persons using the pesticide must comply with the worker protection statements and the worker protection standard. Failure to comply constitutes use of a pesticide in a manner inconsistent with the label.

(b)(3) any pesticide that is Pesticides labeled for use in the production of agricultural plants on an agricultural establishments, as defined in 40 CFR 170.3, shall must be labeled with worker protection statements set forth in 40 CFR, Part 156, subpart K. A pesticide not so labeled is misbranded. It is a violation for any person to distribute, sell, or offer for sale or deliver for transportation or transport in intrastate commerce any pesticide that is misbranded pesticide, and such violation is subject to a civil penalty pursuant to 80-8-306, MCA.

 

AUTH: 80-8-105, MCA

IMP: 80-8-306, MCA

 

REASON: The department formerly adopted 40 CFR, part 170 by reference in ARM 4.10.1009(1). Proposed amendments modernize language associated with 40 CFR, Part 170. The department no longer maintains copies of the CFR for distribution to the public. Interested parties may obtain access to the CFR directly through the EPA or access it online.

 

4.10.1803 STANDARDS FOR DISPOSAL PROGRAM OPERATION WASTE PESTICIDE DISPOSAL PROGRAM (1) The disposal program may accept:

(a) acceptable pesticides;

(b) recyclable pesticide containers;

(c) exchangeable pesticides.

(2) The disposal program shall not accept:

(a) nonpesticide materials;

(b) unacceptable pesticides. 

(3) Contractors conducting the disposal program must meet qualifications that include but are not limited to the following items:

(1) Disposal program contractors must:

(a) registered as a hazardous waste generator with the Montana Department of Environmental Quality (DEQ) and possess a hazardous waste identification number issued by the United States environmental protection agency. (EPA) DEQ. DEQ registration and an EPA a hazardous waste identification number shall not be are not required for a contractor involved solely with recyclable pesticide containers and exchangeable pesticides;

(b) possess or subcontract only with transporters that possess all necessary federal and state permits, licenses and registrations required for the transportation of hazardous waste; and

(c) certify that employees conducting the disposal program meet occupational safety and health administration safety and training requirements in the code of federal regulations (29 CFR 1910.120).

(4)(2) The department may issue request for bid proposals (RFPs) and enter into written contracts with contractors to conduct the operational aspects of the disposal program operations. The department may require that entities responding entities to the RFP provide specific information on methods and procedures that the contractors will use in conducting a disposal program. This information provided by the contractor Contractor information may include but is not limited to:

(a) a collection site preparation and restoration plan to provide for safe transfer of acceptable pesticides, exchangeable pesticides, and recyclable pesticide containers including provisions for site selection, protection of the environment and public health, and restoration of the site to its original condition;

(b) evidence of an established quality assurance/quality control program used by the contractor;

(c) provisions for the development of a site-specific health and safety plan(s) for the chosen collection site(s);

(d) written documentation provided to the department before collection ensuring that the acceptable pesticides collected under the disposal program will be accepted by an EPA-permitted disposal facility for incineration;

(e) methods for management of collected acceptable pesticides from the collection site to the disposal facility in compliance with ARM Title 17, chapter 54, Administrative Rules of Montana;

(f) provisions for the inspection and monitoring of the disposal program by the department;

(g) attendance at organizational meeting(s) prior to collection day(s); and

(h) provisions for written documentation of collection activities provided to the department within established time schedules. which may include:

(i) an itemized list of pesticide products by trade/generic name and amounts collected;

(ii) shipping manifests.

(5)(3) The department shall establishes criteria for awarding the disposal program contract(s). Selection criteria shall includes but is not be limited to:

(a) ability to perform service;

(b) related experience or similar waste disposal projects;

(c) references;

(d) federal Resource Conservation and Recovery Act (RCRA) compliance record;

(e) clarity and completeness of bid proposal; and

(f)  cost.

 

AUTH: 80-8-105, MCA

IMP: 80-8-111, 80-8-112, MCA

 

REASON: The reference to the Environmental Protection Agency (EPA) is stricken in (1) because the agency no longer maintains a database for hazardous waste identification numbers. The Department of Environmental Quality (DEQ) currently administers this database. Other proposed amendments update language to comply with Administrative Rules of Montana standards.

 

4.10.1804 PESTICIDE DISPOSAL AND CONTAINER RECYCLING PROGRAM OPERATION (1) The department or its designated agent may conduct outreach and educational activities to inform the public about the functions of the disposal program and may conduct these. Outreach activities may be conducted in cooperation with the Montana State University Extension Service, local governments, the contractor(s) and others.

(2) The department may target the operational activities of the disposal program activities to regions or areas within the state during each fiscal year.

(3) Collection site(s) shall be selected by the contractor. The department selects waste pesticide collection site(s) in consultation with the contractor.

(4) The department will establishes minimum criteria for a site to qualify as a collection site(s).

(5) The department establishes the following procedures for disposal of acceptable pesticides., including:

(a) Persons intending to participate in the disposal program for disposal of waste pesticides or non-plastic recyclable pesticide containers such as containers made of materials like metal, fiberboard, or other similar material must make application apply to the department or the department designee on forms provided by the department. Information provided on the form must include, but is not limited to:

(i) brand name of the pesticide if present on label or if known;

(ii) active ingredient of the pesticide if present on label or if known;

(iii) EPA registration number or the United States Department of Agriculture (USDA) registration number, if present on label or if known;

(iv) quantity of each pesticide;

(v)(iv) container size, composition, condition, and quantity to be disposed;

(vi)(v) applicant's name, address and telephone number; and

(vii)(vi) other information deemed necessary by the department.

(b) Persons who submit applications to the program must receive written Written approval from the department or the department designee is required to participate in the program.

(c) Prior to the collection day, the The department shall provides the participants with a form listing the acceptable pesticides approved for disposal. This form will serve as serves as a bill of lading and must be in the possession of the participant during transport of the acceptable pesticides to the collection site. This form will also serves to transfer ownership of the pesticide(s) from the participant to the contractor by a pesticide product release statement on the form.

(d) Participants in the disposal program must transport acceptable pesticide products to the collection site according to the Montana Pesticides Act and United States Department of Transportation regulations.

(e) A participant may assign a designee to transport the participant's acceptable pesticides to the collection site only if the designee is approved by the department during preregistration.

(f) Ownership of acceptable pesticides approved for disposal will be transferred transfers from the participant to the contractor at the collection site.

(6) The department establishes the following procedures for recycling of pesticide containers. approves establishment of pesticide container recycling collection sites, public or private, meeting minimum requirements. Individuals or entities interested in establishing a collection site must contact the department to discuss requirements and considerations.

(a) Persons intending to participate in the disposal program for the purpose of recycling pesticide containers must make application to the department on forms provided by the department. Information provided on the form must include but may not be limited to:

(i) brand name of the pesticide if present on label or known;

(ii) active ingredient of the pesticide if present on label or known;

(iii) EPA registration number or United States department of agriculture registration number, if present;

(iv) number and size of each pesticide container;

(v) container composition;

(vi) applicant's name, address and telephone number.

(b) Recyclable pesticide containers must be rinsed according to label directions as addressed in the code of federal regulations (40 CFR 156.10).

(c) The contractor shall inspect each container. The contractor must not accept any container that in the judgement of the contractor has any visible residue.

(d) A form completed by the department following review of the participant's

application will list containers approved for recycling under the disposal program. A copy of this form will be returned to the participant and must be in the participant's possession during transport of the containers to the collection site and must be provided to the contractor at the collection site.

            (a) The department establishes guidelines for individuals to participate in the pesticide container recycling program.

(7) The department establishes the following procedures for the exchange of exchangeable pesticides:

(a) a pesticide may be exchanged or transferred from one person to another for the purpose of using the pesticide according to label directions. The pesticide offered for exchange must be:

(i) registered or meet provisions of 80-8-201(9)(a) or (b), MCA; and

(ii) in the original, labeled, unopened sealed container.

(8) The department allows pesticide exchange(s) under these conditions:

(b)(a) owners of exchangeable pesticides must apply to the department or department designee and provide information on a department form, according to ARM 4.10.1804(5)(a);

(c)(b) Persons interested in obtaining persons wanting to receive exchangeable pesticides must provide their name, address, telephone number, and desired pesticides wanted to the department. Persons wanting interested in obtaining pesticides classified as restricted use must be licensed to use restricted use pesticides by the department;

(d)(c) the department or department designee will matches donors to users;

(e)(d) transfer of ownership of exchangeable pesticides may occur during scheduled pesticide disposal collections or through other arrangements approved by the department.; and

(f)(e) the department may require a label claim analysis for the pesticide offered for exchange to be analyzed for label claim.

 

AUTH: 80-8-105, MCA

IMP: 80-8-111, 80-8-112, MCA

 

REASON: Amendments proposed by the department in (8) provide clarity for exchangeable pesticides. Other updates to processes and procedures include changes that comply with Administrative Rules of Montana formatting standards.

 

            4.10.1806 FEES (1) through (3) remain the same.

            (4) The department may charge Participants participants who receive an exchangeable pesticide under ARM 4.10.1804(7) shall pay a fee of $5 for each container with a net content of less than or equal to one gallon or ten pounds and $10 for each container with a net content of greater than one gallon or ten pounds. Fees The department, at its discretion, may waive fees for charged to participants who receive exchangeable pesticides can be lowered at the discretion of the department if the established fee is higher than the retail value of the exchangeable pesticide.

            (5) Applicators licensed by the department shall be given a monetary credit if they are a participant in the disposal program. The credit must be used during the certification period for farm applicators or the licensing period for dealers, commercial applicators, commercial operators, and government applicators in which the fee is paid;

            (a) farm applicators shall receive a one time credit of $15 during the farm applicator's certification period.

            (b) commercial applicators shall receive an annual credit of $10 for each licensing period that the applicator is licensed. Commercial applicators shall receive an annual credit of $15 for the first two commercial operators operating under their license for each licensing period the operator is licensed. A credit of $5 shall be received for each additional commercial operator operating under the applicator's license for each licensing period the operator is licensed;

            (c) government agencies shall receive an annual credit of $10 for each licensing period that each applicator is licensed for the first four licensed applicators. A credit of $10 shall be received for each additional applicator for each licensing period that the applicator is licensed. The total credit must not exceed $280; and

            (d) dealers shall receive an annual credit of $10 for each licensing period that the dealer is licensed.

 

AUTH: 80-8-105, MCA

IMP: 80-8-111, 80-8-112, MCA

 

REASON: Proposed amendments include deleting (5) that was amended in House Bill 126 during the Regular Session of the Montana Legislature in 2017. Doing so provides consistency with 80-8-111, MCA.

 

ECONOMIC IMPACT: Fiscal impact associated with deleting (5) is minimal. Fewer than twenty participants receive monetary credit for participation in the disposal program per year. The department estimates this will result in less than $1,000 annually.

 

4. The department proposes to repeal the following rule:

 

4.10.702 REGISTRATION REQUIREMENTS

 

AUTH: 80-8-105, MCA

IMP: 80-8-105, MCA

 

REASON: Portions of ARM 4.10.702 were applied to ARM 4.10.701. In effect, two rules were combined into one which makes this rule no longer necessary.

 

            5. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Cort Jensen, Department of Agriculture, P.O. Box 200201, Helena, Montana, 59620-0201; telephone (406) 444-3156; fax (406) 444-5409; or e-mail agr@mt.gov, and must be received no later than 5:00 p.m., August 5, 2019.

 

6. Cort Jensen, Department of Agriculture, has been designated to preside over and conduct this hearing.

 

7. The department 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 that includes the name, e-mail, and mailing address of the person to receive notices 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 the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department.

 

8. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted by email on June 24, 2019.

 

9. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment and repeal of the above-referenced rules will not significantly and directly impact small businesses.

 

 

/s/ Cort Jensen                                           /s/ Ben Thomas                                          

Cort Jensen                                                Ben Thomas

Rule Reviewer                                            Director

                                                                   Agriculture

           

Certified to the Secretary of State June 25, 2019.