Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF AGRICULTURE

OF THE STATE OF MONTANA

In the matter of the adoption of New Rules I through XII pertaining to Certified Noxious Weed Free Materials

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION

TO: All Concerned Persons

1. On July 29, 2021, at 10:00 a.m., the Department of Agriculture will hold a public hearing in Room 225 of the Scott Hart Building at Helena, Montana, as well as virtually through the meeting platform Zoom, to consider the proposed adoption of the above-stated rules. To request virtual meeting details, please contact Cort Jensen by email at agr@mt.gov or by phone at (406) 444-3156.

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 the Department of Agriculture no later than 5:00 p.m. on July 22, 2021, to advise us of the nature of the accommodation that you need. Please contact Cort Jensen, Department of Agriculture, 302 N. Roberts, Helena, Montana, 59601; telephone (406) 444-5402; fax (406) 444-5409; or e-mail agr@mt.gov.

3. The rules as proposed to be adopted provide as follows:

NEW RULE I PURPOSE AND SCOPE (1) The Department of Agriculture develops standards and good practices for materials other than feed to prevent the spread of noxious weeds and other invasive organisms.

AUTH: 80-7-902, MCA

IMP: 80-7-902, MCA

REASON: New Rule I clarifies the purpose of these rules per authorities provided for in House Bill 93 passed during the 67th Legislature in 2021.

NEW RULE II TERMS AND DEFINITIONS (1) "Board" means a district weed board created under 7-22-2103, MCA.

(2) "Buffer area" means a weed free area maintained around the perimeter of a site.

(3) "Gravel" means small stones or pebbles, or a mixture of these with sand, stone, and gravel as well as recycled concrete and asphalt materials.

(4) "Inspector" means a person who is authorized or employed by the department and is certified by the department to conduct activities under the Certified Weed Free Materials Act.

(5) "Material" means natural materials such as bark, compost, wood chippings, leaves/needles, vegetation, grass, or straw, and those synthetic materials that are included on the United State Department of Agriculture, Agricultural Marketing Service national list of allowed and prohibited substances.

(6) "Montana certified material" means products from sites that meet Montana's weed free certification standards and are approved by an agent.

(7) "Mulch" means any material or mix of materials that consists of a combination of vegetation and/or synthetic products that are manufactured as a whole and that are used for temperature, moisture, and/or erosion control, weed suppression, or aesthetic purposes, and are applied solely as a surface treatment.

(8) "Regulated area" means an area designated by an agency, group, or person that requires the use of noxious weed seed free material.

(9) "Site" means a single area where material is stored, harvested, or produced prior to being transported to where it will be utilized as a surface treatment.

AUTH: 80-7-902, MCA

IMP: 80-7-902, MCA

REASON: New Rule II provides clear and uniform terms that correspond with program language referenced throughout the following rules in accordance with authorities provided for in House Bill 93 passed during the 67th Legislature in 2021.

NEW RULE III NOXIOUS WEEDS (1) The Montana Noxious Weed Free Materials Certification Program includes the noxious weeds set forth in ARM 4.5.206 through 4.5.210, authorized by 7-22-2101(7)(a)(i), MCA.

(2) The regional weed free certification program includes additional noxious weeds that have been so designated by other states and provinces.

AUTH: 80-7-902, MCA

IMP: 80-7-902, MCA

REASON: New Rule III establishes duties of the Montana Noxious Weed Free Materials Certification Program per authorities provided for in House Bill 93 passed during the 67th Legislature in 2021. Duties are defined more broadly than Montana noxious weeds to make the certification more useful on a regional basis.

NEW RULE IV STANDARD RANGE OF TOLERANCES FOR NOXIOUS WEEDS (1) The tolerance for noxious weeds in noxious weed free material is zero for the weeds defined in 7-22-2101(7)(a)(i), MCA, and any other weed species prohibited by a regulated area.

(a) For a site, this means that an agent finds no noxious weed plants present in the site or established buffer area at the time of inspection following the standard inspection procedures.

(b) For mulch, gravel, and other materials this means that materials are 98% free of viable additional weeds following the standard inspection procedures.

(2) For purposes of these rules, the department's certification represents the condition of the site at the time of certification. Further cautionary restrictions with respect to processing, storage, and transportation are imposed in these rules to help preserve that certification. However, the rules do not intend or provide for any further visual or other inspection of the certified materials after the point of initial certification, other than that which may occur as a result of enforcement or other related activity.

AUTH: 80-7-902, MCA

IMP: 80-7-902, MCA

REASON: New Rule IV sets the tolerance level at zero to be consistent with state law and to prevent the spread and propagation of noxious weeds per authorities provided for in House Bill 93 passed during the 67th Legislature in 2021. The 98% weed-free standard for mulch, gravel, and other materials is consistent with industry standards as well as current inspection practices in other states.

NEW RULE V MANUFACTURING AND PROCESSING FACILITIES (1) A person desiring to certify processed materials as noxious weed free must apply to the department before initial certification and/or for additional materials not previously approved.

(a) Applications for certification of materials must describe the method of cleaning to remove noxious weeds and propagative plant material. The method must follow industry standards and be approved by the department.

(b) Equipment must be cleaned of any noxious weeds prior to processing materials for certification. Cleaning the entire manufacturing system is required to prevent contamination of materials for certification.

(c) The department may deny or grant approval of the request based upon the information received from the applicant and from data and information from other sources. The department may also withdraw its approval should investigations or future studies reveal the procedure is not equivalent to accepted procedures.

(2) Any person may request Montana Noxious Weed Free Materials Certifications for materials produced out-of-state from the department.

(3) The manufacturer must document the amount (tons) of certified material processed in or shipped into Montana and submit documentation to the department on or before January 30 for the previous year's production.

AUTH: 80-7-902, MCA

IMP: 80-7-902, MCA

REASON: New Rule V certifies that all facilities manufacturing or processing materials sold in and/or shipped into Montana are weed free. The rule also certifies that facilities have been inspected by a certified agent, and that processes in place meet industry standards and guarantee their products do not contain any noxious weed seeds or propagative plant material. These rules assure consumers purchasing certified material that the facilities meet statewide and industry standards, and the certified material(s) will not contribute to the spread of noxious weeds in Montana or on their property.

NEW RULE VI INSPECTION PROCEDURES (1) All requests for certified noxious weed materials are voluntary.

(2) A person can request inspection of noxious weed free materials annually. The request for inspection is made with the department or certified inspector in the county in which the site is located.

(3) The following procedures and processes are required for site and material noxious weed free certification:

(a) When a portion of a site is to be certified, this portion must be plainly marked or separated by a buffer area at least 12 feet wide, to avoid mixing the certified and uncertified portions.

(b) Sites must include surrounding ditches, fence rows, roads, easements, rights-of-way, and buffer zones of a minimum of 12 feet surrounding the outside edges of the certified site.

(4) Areas associated with the site, such as equipment used to move the material, storage areas and/or bins, are inspected at the same time as the site prior to stacking or filling them with certified material. These areas must be free of noxious weeds. Contaminated storage areas cannot be approved for storage of certified materials.

(5) Bulk or packaged certified materials may be tested or inspected at any time during normal business hours by an agent or the department. Evidence that any lot of certified material has not been protected from contamination or is not properly identified or separated will be cause for certification cancellation.

(6) Gravel, mulch, and other materials that have been sourced from an unknown and/or non-certified site are ineligible for certification unless manufactured or processed to meet requirements in [New Rule V].

(7) Forms are completed by the inspector at the time of inspection of each site. At the conclusion of the inspection, the producer is provided an invoice for the inspection fees and, if applicable, markers.

(8) All equipment must be cleaned of any noxious weed prior to moving, packaging, or otherwise handling certified gravel, mulch, or materials.

(9) Site owners or managers must provide a copy of their county-approved noxious weed management plan.

(10) Gravel, mulch, other materials, and sites that appear weedy or show poor weed management practices, even though noxious weeds are not present, will not be certified under the certification standards. The local agent will document the problems and has the discretion to make this judgment. A producer can challenge this decision and petition the department to assign another agent to reinspect the field.

(11) Any site where a Priority 1A or 1B weed listed in ARM 4.5.206 and 4.5.207 is found or known to occur must implement mitigation strategies approved by the county weed district or department to produce certified materials. If Priority 1A or 1B weeds are present during an inspection, the site and materials are ineligible for certification until the following year.

AUTH: 80-7-902, MCA

IMP: 80-7-902, MCA

REASON: New Rule VI explains procedures taken by site owners and agents before and during an inspection per authorities provided for in House Bill 93, passed during the 67th Legislature in 2021. The department asserts these processes as the minimum amount of additional work for businesses that are necessary for an effective and efficient inspection.

NEW RULE VII MATERIAL IDENTIFICATION AND TRANSPORTATION

(1) Identification of certified gravel, mulch, and other materials includes the following:

(a) Consumer packaging must be identified individually using a department-issued identification marker.

(b) The producer, business, or owner will make all reasonable efforts to ensure the certified gravel, mulch, or material is not contaminated with noxious weeds from the time of handling and storage, including delivery to the buyer.

(c) A separate label must be attached to provide proof of certification of the contents with the following statement: "MONTANA CERTIFIED Noxious Weed Free Material NOTE: Certification means this product has been inspected by an agent of the MT NWFM program using recognized inspection methods and no noxious weeds were detected at the time of inspection."

(d) Out-of-state products require label(s) on the product in compliance with Montana's standards for Noxious Weed Free Materials.

(e) All identification labels for certified materials from sites within Montana must be obtained from the department or its agents.

(2) A completed transportation certificate is required and must specify whether the gravel, mulch, or other material was inspected for Montana and/or regional noxious weeds.

(3) It is the responsibility of each entity to make sure that all certified materials sold under the program are properly labeled and identified with transportation certificates before they leave the premises.

(a) A noxious weed free material product transportation certificate, issued and numbered by the department, must accompany all loads of certified materials.

(b) All certified material sold by a certified entity to a second party (such as a retail outlet) for resale must be accompanied by the original transportation certificate. The second party (or retail outlet) will photocopy the original transportation certificate and provide this photocopy plus a receipt to third party buyers of the material. Third party buyers must have the photocopy of the transportation certificate and the receipt (to show where the material was purchased) in their possession when they are transporting or storing certified material in a restricted area.

AUTH: 80-7-902, MCA

IMP: 80-7-902, MCA

REASON: New Rule VII establishes identification and transportation requirements for certified weed free materials per authorities provided for in House Bill 93, passed during the 67th Legislature in 2021. These requirements are consistent with labeling and inspection requirements of other programs.

NEW RULE VIII CERTIFICATION OF INSPECTORS (1) Each person desiring to be an inspector must be trained and certified according to department standards.

(2) An authorized inspector must be one of the following:

(a) a Montana county weed district employee or contractor;

(b) an employee or contractor of a state, provincial, or local government or federal agency responsible for managing legislated weed species within their jurisdiction;

(d) representative of a state crop improvement association; or

(e) employee or agent of another authority approved by the department.

(3) If an inspector intentionally falsifies the certificate of an inspection, that inspector will lose certification status.

(4) An inspector may not inspect an entity or site in which the inspector has an ownership interest.

AUTH: 80-7-902, MCA

IMP: 80-7-902, MCA

REASON: New Rule VIII establishes certification standards for inspectors per authorities provided for in House Bill 93 passed during the 67th Legislature in 2021. The department believes that standardized training allows for a uniform inspection process. The listed parties have a base level of neutrality required for an effective program. The rule does not allow for the most obvious conflict (ownership interest) and follows regional standards.

NEW RULE IX STOP SALE, USE, OR REMOVAL (1) When the department has reasonable cause to believe any lot of certified material is in violation of this chapter or a rule adopted by the department, it may issue and enforce a written order requiring the person holding the material not to sell, use, or remove it in any manner until written permission is given by the department. The department will release the order when the provisions of the act and rules are met. If compliance is not obtained within 30 days, the department may begin proceedings for condemnation or revoke the material certification. The disposition of the material may not be ordered by the department without first giving the owner or person from whom the material was seized an opportunity to apply to the department for release of the material or for permission to process or bring it into compliance with this chapter, and an opportunity to contest any such order under the provisions of 80-7-910(2), MCA.

(2) Materials with revoked certifications may be sold to any customer or area that does not require the use of certified weed free materials.

AUTH: 80-7-902, MCA

IMP: 80-7-902, MCA

REASON: New Rule IX allows the department to halt contaminated material from being distributed as weed free per authorities provided for in House Bill 93, passed during the 67th Legislature in 2021. This allows for stoppage while preserving the business' ability to market the substance as ordinary (non-certified) material.

NEW RULE X FEES (1) Costs for state sites located in Montana:

(a) A site inspection fee of $150 per site is charged to the person for whom the material was inspected.

(i) A minimum of two inspections are required per year for sites.

(ii) One annual inspection is required for manufacturing/processing facilities.

(b) Certified inspectors must submit a copy of the inspection form and submit a $75 inspection fee, as well as the cost of any markers sold for each site inspection, each year.

(2) Costs for inspection of sites located outside of the state of Montana may include, but are not limited to:

(a) A site inspection fee of $150 per site will be charged to the person for whom the material was inspected.

(i) Travel expenses including mileage and per diem at the rates set by 2-18-501-502, MCA

(3) Actual costs associated with out-of-state inspections are assessed by the department or its agents. Costs may include, but are not limited to, airfare, vehicle rental, state mileage, per diem, and lodging.

(4) Only product markers provided by the department or authorized by the department may be used. Fees for markers are as follows:

(a) $0.50/tag;

(b) $0.15/adhesive label;

(d) $50/unit of twine.

(5) If the fee is not paid or if a person improperly pays any fee or assessment under the provisions of 80-7-921, MCA, the department or its agent will not provide further services.

(6) The cost for any additional material analysis is paid by the manufacturer or owner.

AUTH: 80-7-902, MCA

IMP: 80-7-902, MCA

REASON: New Rule X establishes a fee schedule based on the amount that the department expects to incur as the program administrator per authorities provided for in House Bill 93, passed during the 67th Legislature in 2021. The department assumes that the program is revenue neutral.

NEW RULE XI CONTRACTS (1) The department may enter into contracts with local governments, state, federal, or provincial agencies or other organizations to conduct specific material certification activities and may specify the types of identification markers and/or transportation certificates that are acceptable.

AUTH: 80-7-902, MCA

IMP: 80-7-902, MCA

REASON: New Rule XI provides the ability to subcontract with other certifiers and programs that will allow consistent regional and national programs per authorities provided for in House Bill 93 passed during the 67th Legislature in 2021. These agreements allow the program to serve the entirety of the state in a cost-effective manner.

NEW RULE XII CIVIL PENALTIES (1) Whenever the department has reason to believe that a violation of Title 80, chapter 7, part 9, MCA, or any adopted rule thereunder has occurred, it may initiate a civil penalty action pursuant to the Montana Administrative Procedure Act.

(2) Each violation is considered a separate offense and is subject to a separate penalty not to exceed $1,000. A repeat violation is considered a first violation if it occurred three or more years after the previous violation.

(3) The penalty matrix set forth in this rule establishes the basic penalty value for each offense. Factors dealing with the violation may cause the matrix penalty to increase or decrease. Examples of such factors include the person's history of compliance or noncompliance, or the extent of the person's actions to sell material or designate or imply material as being certified when it does not meet state certification requirements.

(4) The below penalty matrix applies to all of the following offenses:

1st offense	2nd offense	3rd offense
$250	$500	$1,000

(a) violation of any lawful order, stop sale, use or removal order; or condemnation action;

(b) certification, sale, or advertisement as certified, any noxious weed free material as free from noxious weed within the state, unless material is identified under a department-approved process of certification;

(c) transportation, offer for sale, sale, or use material as noxious weed free, from another state, province, or country, unless the material meets state certification standards or is allowed by an agreement between the department and another government agency;

(d) refusal to pay for any inspection fees or department-approved identification markers;

(e) transportation of certified forage materials in a regulated area without a transportation certificate or identification markers;

(f) falsification or alteration of a transportation certificate or other weed free material identifying markers.

AUTH: 80-7-902, MCA

IMP: 80-7-902, MCA

REASON: New Rule XII allows the department to issue civil penalties when violations occur per authorities provided for in House Bill 93 passed during the 67th Legislature in 2021. The department is primarily a compliance-based enforcement agency, but penalties are necessary to prevent intentional violations of the act, and to create a level playing field for those in compliance and paying for certifications.

ECONOMIC IMPACT OF NEW RULES I through XII: Because the Montana Noxious Weed Free Materials Certification Program is not required by state law, there is no economic impact to businesses that choose not to participate in the program. Participation may provide new opportunities to businesses that acquire certifications through the program. The department expects to certify two to five Noxious Weed Free Material producers in 2021 and five to 10 per year after the program is established. Annual fees for businesses voluntarily participating in the program are estimated to cost $600 to $1,500 in 2021, and $1,500 to $3,000 in 2022 and beyond. The fees collected are anticipated to cover the cost of the programs.

4. 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, 302 N. Roberts, Helena, Montana, 59601; telephone (406) 444-5402; fax (406) 444-5409; or e-mail agr@mt.gov, and must be received no later than 5:00 p.m., August 6, 2021.

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

6. 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 4 above or may be made by completing a request form at any rules hearing held by the department.

7. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor (Kenneth Walsh) was contacted by email on June 29, 2021.

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

/s/ Cort Jensen /s/ Christy Clark

Cort Jensen Christy Clark

Rule Reviewer Acting Director

Department of Agriculture

Certified to the Secretary of State June 29, 2021.