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Montana Administrative Register Notice 37-477 No. 12   06/25/2009    
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BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.113.108 and 37.113.112 and the repeal of ARM 37.113.104 pertaining to the implementation of the Montana Clean Indoor Air Act (CIAA)

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT AND REPEAL

 

TO:  All Concerned Persons

 

            1.  On July 16, 2009, at 1:30 p.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed amendment and repeal of the above-stated rules.

 

            2.  The Department of Public Health and Human Services 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 Public Health and Human Services no later than 5:00 p.m. on July 7, 2009, to advise us of the nature of the accommodation that you need.  Please contact Rhonda Lesofski, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.

 

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

 

             37.113.108  INSPECTIONS AND ENFORCEMENT  (1)  The department, a local health board and their respective designees may conduct inspections of:

            (a) remains the same.

            (b)  public school property to determine compliance with 20-1-220, MCA, relating to smoking tobacco use on public school property.

            (2) remains the same.

            (3)  An establishment that serves food but purports to qualify as a bar within the definition contained in 50-40-103(5), MCA must upon request submit to the department, a local health board, or the designee of either, the documentation necessary to prove that at least 60% of the establishment's annual gross income comes from the sale of alcoholic beverages, gambling receipts, or both.

            (4) remains the same but is renumbered (3).

 

AUTH:  50-40-110, MCA

IMP:  20-1-220, 50-40-104, 50-40-108, MCA

 

            37.113.112  COMPLAINT PROCEDURE REGARDING SMOKING VIOLATIONS  (1)  An individual who believes that a violation of the Montana Clean Indoor Air Act or of 20-1-220, MCA has occurred may file a written or electronic complaint with the department or the local health board or its designee that describes the violation, and provides the date of the violation and is signed by the complaining party.

            (2)  If a complaint is filed with the local health board, a written or electronic copy of the complaint must be forwarded within five working 30 days after the end of the month in which it was received to the Department of Public Health and Human Services, Montana Tobacco Use Prevention Section, P.O. Box 202951, Helena, MT 59620-2951.

            (3)  If a complaint is filed initially with the department or a designee of the department, a written or electronic copy will be forwarded within five working days to the local health board of the county in which the violation allegedly occurred.

            (4)  Once a complaint is filed, the department or a designee of the department, which may include the local health department, will conduct an investigation may conduct an investigation to determine if a violation occurred.

            (5) remains the same.

 

AUTH:  50-40-110, MCA

IMP:  20-1-220, 50-40-104, 50-40-108, MCA

 

            4.  The department proposes to repeal the following rule:

 

            37.113.104  BARS, CERTIFICATION OF QUALIFICATION FOR EXCEPTION, is found on page 37-28481 of the Administrative Rules of Montana.

 

AUTH:  50-40-110, MCA

IMP:     50-40-104, 50-40-108, MCA

 

            5.  The Department of Public Health and Human Services (the department) is proposing the amendment of ARM 37.113.108 and 37.113.112 and the repeal of ARM 37.113.104 pertaining to the implementation of the Montana Clean Indoor Air Act (CIAA).

 

ARM 37.113.108

 

The proposed rule amendment to ARM 37.113.108(1)(b) would replace the word "smoking" with "tobacco use".  The statute indicates that all forms of tobacco use are prohibited on public school property except related to 20-1-220, MCA, and in accordance with the American Indian Religious Freedom Act, 421 USC 1996 and 1996a.  Changing the term clarifies that the prohibition is not limited to smoking.

 

The department has struck out ARM 37.113.108(3) because no exceptions are permitted by law after September 30, 2009.

 

ARM 37.113.112

 

The proposed rule amendment to ARM 37.113.112(1) would allow citizens to file anonymous complaints.  Mandating that citizen complaints be signed may deter Montana citizens and particularly workers from filing complaints due to the potential for retribution.  Local health boards or their designees would need to confirm that a violation of the law has occurred to act on an anonymous complaint.  The proposed amendment also allows for electronic complaints to be filed, which makes the complaint process easier and more efficient.  The proposed rule amendment to ARM 37.113.112(4) would allow local health boards to determine if an investigation is necessary.

 

ARM 37.113.104

 

The department is proposing repeal of ARM 37.113.104 because no exceptions are permitted by law after September 30, 2009.

 

            6.  The department intends the proposed rule changes to be applied effective October 1, 2009.

 

            7.  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: Rhonda Lesofski, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., July 23, 2009.

 

8.  The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

 

9.  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 7 above or may be made by completing a request form at any rules hearing held by the department.

 

10.  An electronic copy of this Proposal Notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register.  The Secretary of State 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 Secretary of State works 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.

 

11.  The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled.  The primary bill sponsors were contacted by letter on April 24, 2009, sent postage prepaid via USPS.

 

 

 

 

/s/  Shannon McDonald                                /s/  Anna Whiting Sorrell                              

Rule Reviewer                                               Anna Whiting Sorrell, Director

                                                                        Public Health and Human Services

           

Certified to the Secretary of State June 15, 2009.

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