Montana Administrative Register Notice 37-477 No. 15   08/13/2009    
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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)








TO:  All Concerned Persons


1.  On June 25, 2009 the Department of Public Health and Human Services published MAR Notice No. 37-477 pertaining to the public hearing on the proposed amendment and repeal of the above-stated rules at page 1003 of the 2009 Montana Administrative Register, Issue Number 12.


2.  The department has amended 37.113.108 and repealed 37.113.104 as proposed.


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


            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) through (5) remain as proposed.


AUTH:  50-40-110, MCA

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


4.  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:  One commentor expressed concern that owners of establishments plan to build or are in the process of building nonenclosed shelters on their property to allow customers to smoke.


RESPONSE #1:  ARM 37.113.101(2) defines an "enclosed room", and 50-40-103(2), MCA defines "enclosed public place".  Smoking that occurs outdoors or under a nonenclosed shelter is not governed by the Clean Indoor Air Act.  The department does not have the statutory authority to regulate or investigate nonenclosed shelters where smoking is allowed unless these shelters fall under these definitions.


COMMENT #2:  One person commented that highway rest areas are covered under the law as an enclosed public place and should be smoke free.


RESPONSE #2:  The department agrees.  Enclosed buildings on highway rest areas are enclosed public places and should be smoke free.


COMMENT #3:  One commentor pointed out that 50-40-104(4) and (5)(a), MCA still contain language intended to expire on September 30, 2009.  Specifically the language prohibits children under 18 from entering an establishment where smoking is allowed, and allows smoking in certain bars and casinos.  The commentor suggested that the language should be repealed or addressed in administrative rules.


RESPONSE #3:  The current rule changes are intended to reflect the requirements that apply after September 30, 2009 as reflected in the language of the statute.  The department does not, however, have the authority to change or repeal the statute.  The Montana State Legislature would need to repeal these sections of the law through the legislative process.


COMMENT #4:  Under ARM 37.113.112(4) of the proposed rules, several commentors suggested investigations should be mandatory rather than permissive, and objected to the proposed change.


RESPONSE #4:  The department believes it is important to allow local health departments or their designees the discretion to determine if an investigation is necessary and will keep the proposed language "may conduct an investigation" in this section.  A local health department or their designee may receive complaint(s) that they deem are valid and do not feel an investigation is necessary.  Or, a local health department or their designee may receive multiple complaints regarding a specific establishment during a short time period, and more than one investigation is not necessary.


COMMENT #5:  The department received multiple written and oral comments regarding ARM 37.113.112(1) of the proposed rules which would have allowed for anonymous complaints.  Multiple commentors objected to this change and one commentor supported this change.


RESPONSE #5:  The department agrees that complaints where the complaining party is identified is more likely to be valid and will not make the proposed change.


COMMENT #6:  The department received several comments recommending that ARM 37.113.104 of the rules not be repealed.  This section describes the process for bars and casinos to obtain a certification for exception to allow smoking in these establishments until September 30, 2009.


RESPONSE #6:  The Montana Clean Indoor Air Act, 50-40-104, MCA, specifies that smoking in an enclosed public place, including bars and casinos, will be prohibited after September 30, 2009.  ARM 37.113.104 is not valid under the statute after that date and must be repealed.


COMMENT #7:  The department received several written comments recommending that smoking continue to be allowed in bars in Montana.


RESPONSE #7:  As indicated in the department's response to comment #6, the Montana Clean Indoor Air Act prohibits smoking in any public place, including bars and casinos after September 30, 2009.


            5.  The department intends to apply these rules effective October 1, 2009. 




/s/  Shannon McDonald                                /s/  Laurie Lamson for                                  

Rule Reviewer                                               Anna Whiting Sorrell, Director

                                                                        Public Health and Human Services


Certified to the Secretary of State August 3, 2009


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