Montana Administrative Register Notice 4-21-272 No. 9   05/14/2021    
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In the matter of the amendment of ARM 4.12.1308 pertaining to Plant Health Quarantines






TO: All Concerned Persons


1. On January 29, 2021, the Department of Agriculture published MAR Notice No. 4-21-272 pertaining to the public hearing on the proposed amendment of the above-stated rule at page 100 of the 2021 Montana Administrative Register, Issue Number 2.


2. The department has amended the following rule as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:


           4.12.1308 PLANT HEALTH QUARANTINES  (1) through (3)(d) remain as proposed.

           (e)  Emerald Ash Borer (Agrilus planipennis Fairmaire).  See Order MTQ-2021-001A.  Exterior Quarantine.


AUTH: 80-7-402, MCA

IMP: 80-7-402, 80-7-404, MCA


3. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:


COMMENT 1: A commenter said that under precautionary principle, the states of Colorado, North Dakota, South Dakota, Mississippi, and Florida should be included in the regulated area.


RESPONSE 1: Mississippi and Florida:  the department agrees with adding these states to the regulated area in the order. At least three species of ash, Fraxinus pennsylvanica, F. profunda, and F. Americana, occur in these states and no official control measures are in place for emerald ash borer (EAB) in these states.

Colorado and South Dakota:  the department has identified the counties where EAB is known to occur in these states. The counties where EAB is known to occur are under official control by the state regulatory officials. The positive counties will be regulated by the Montana EAB quarantine and met by protections of the originating states programs. EAB is under official control in Colorado and South Dakota.

North Dakota:  EAB is not known to occur in North Dakota, and North Dakota has a state regulation to protect against the introduction. EAB is under official control in North Dakota. 

The director reserves the right to change the regulatory status of any state or county based on future EAB detections, continued risk-analysis, or any other information that identifies another area or pathway as likely to introduce live EAB into Montana. 


COMMENT 2: A commenter asked if they can still purchase ash seedlings for riparian areas and other restoration plantings in Montana.


RESPONSE 2:  Yes, ash seedlings can be purchased and shipped from any area that is not infested with EAB. The area includes all of North Dakota, un-infested counties of South Dakota and Colorado, and other western states including Idaho, Utah, Oregon, Washington, California, Nevada, Arizona, and New Mexico. The shipments must come from licensed and certified nurseries and follow all other requirements of the Montana Nursery Act. 


COMMENT 3:  A commenter said the department should include all mixed hardwood-softwood species of firewood, all mixed hardwood species of firewood, and any firewood shipment not labeled with species or genus in the regulated items.


RESPONSE 3: The department quarantine order is specific to emerald ash borer, a pest that only impacts ash, genus Fraxinus. The quarantine order is not intended to regulate the entirety of the firewood pathway in Montana. The department will clarify in the order (Order MTQ-2021-001A) that ash firewood is a regulated article and firewood shipments into Montana should include documentation that identifies the species that are included with the shipment or sale. 


COMMENT 4:  A commenter said that the department should add an additional requirement that the origin of each regulated article appear on a label present at the level of the unit of sale.


RESPONSE 4: The department quarantine order is specific to emerald ash borer, a pest that only impacts ash, genus Fraxinus. The quarantine order is not intended to regulate the entirety of unregulated products sold in Montana. Wholesalers, vendors, and retailers of regulated items are responsible for providing evidence and documentation that regulated articles imported into Montana meet the requirements of the quarantine order.



/s/ Cort Jensen                                           /s/ Mike Foster                    

Cort Jensen                                                Mike Foster

Rule Reviewer                                            Director



Certified to the Secretary of State May 4, 2021.



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