HOME    SEARCH    ABOUT US    CONTACT US    HELP   
           
Montana Administrative Register Notice 4-14-201 No. 2   01/26/2012    
Prev Next

 

BEFORE THE DEPARTMENT OF AGRICULTURE

OF THE STATE OF MONTANA

 

In the matter of the adoption of New Rules I through VI relating to the Nursery Program

)

)

)

NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION

 

 

TO:  All Concerned Persons

 

            1.  On February 16, 2012, at 3:30 p.m. the Montana Department of Agriculture will hold a public hearing in Room 225 of the Scott Hart Building, 302 N. Roberts at Helena, Montana, to consider the proposed adoption 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 and 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 February 9, 2012, to advise us of the nature of the accommodation that you need.  Please contact Cort Jensen at the Montana Department of Agriculture, 302 North Roberts, P.O. Box 200201, Helena, MT 59620-0201; phone: (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  NURSERY RISK CATEGORY  (1)  The department will use a risk category system to prioritize nursery inspections.  The category system will include high, medium, and low risk nurseries.  High risk nurseries may be scheduled for an annual inspection, medium risk nurseries may be scheduled for inspection every two years, and low risk nurseries may be scheduled for inspection every three years.

      (2)  A low risk nursery is typically a nursery that buys all of its stock from an in-state wholesale nursery and resells the stock in Montana.  Expected inspection time is a half hour to two hours.  Dependent on a variety of factors, small plant vendors; landscapers who buy from an in-state wholesale nursery who is inspected annually, practice project-based buying, and plant immediately; and florists who sell potted plants are examples of nurseries that might be considered low risk.

      (3)  A medium risk nursery is typically a nursery that buys only nonregulated nursery stock from a single large out-of-state wholesale nursery that is licensed and inspected annually in its home state and sells stock in Montana.  Expected inspection time is between a half hour and three hours.

      (4)  A high risk nursery is typically a nursery that buys regulated stock from multiple out-of-state nurseries and resells retail and wholesale to customers both in and out of Montana.  Inspection time is expected to be between two and eight hours.

      (5)  The basic category a nursery finds itself in is determined by the Nursery Risk Factors in [NEW RULE II] and may go up or down as the factors change.

      (6)  The amount of time necessary for an inspection is determined both by factors listed in [NEW RULE III].

 

      AUTH:  80-7-108, MCA

      IMP:  80-7-108, MCA

 

      NEW RULE II  NURSERY RISK FACTORS  (1)  The department shall determine each nursery's risk based on the following factors:

      (a)  origin or source of nursery stock;

      (b)  distribution of nursery stock;

      (c)  sales of regulated nursery stock;

      (d)  quarantine or other regulated areas, including quarantine violations;

      (e)  compliance history; and

      (f)  complaints.

 

      AUTH:  80-7-108, MCA

      IMP:  80-7-108, MCA

 

      NEW RULE III  LENGTH OF INSPECTIONS  (1)  Length of inspection will be based on the following factors:

      (a)  size and type of operation;

      (b)  variety of plant material;

      (c)  import/export activity;

      (d)  presence of prohibited material or organisms; and

      (e)  violations of law or rule.

 

      AUTH:  80-7-108, MCA

      IMP:  80-7-108, MCA

 

      NEW RULE IV  COST OF INSPECTIONS  (1)  The hourly charge for nursery inspections is $44, with a half-hour minimum.

 

      AUTH:  80-7-108, MCA

      IMP:  80-7-108, MCA

 

      NEW RULE V  CONTESTED RISK CATEGORY  (1)  If a nursery business disagrees with the department's assessment of the risk posed by the business, the business may request a change of classification from the director of the department by explaining in writing the reason they want to be changed.  It is up to the director whether such changes will be granted.

 

      AUTH:  80-7-108, MCA

      IMP:  80-7-108, MCA

 

      NEW RULE VI  FEDERAL FEES OR CHARGES  (1)  If the department provides a service, permit, license, or inspection that has a federal fee, the department may collect the federal fee from the person requesting the service, permit, license, or inspection unless they have already made other arrangement for paying the fee.

 

      AUTH:  80-7-108, 80-7-122, MCA

      IMP:  80-7-108, 80-7-122, MCA

 

      REASON AND FINANCIAL IMPACT:  The goal of the MDA nursery inspection program is to mitigate the plant pest risk associated with the movement of nursery stock.  This risk includes the movement of nursery stock into Montana and the risk that movement poses not only to the nursery industry but also to agriculture, forest products, and urban and forest landscape.  Invasive pests that can be moved through nursery stock cause billions of dollars of damage across the United States annually.  A single invasive species, the emerald ash borer, is estimated to cost individual communities tens of millions of dollars and the entire infested area over $10 billion in the next decade (Kovacs, et al. 2009).  The 2011 Legislature directed the department to promulgate administrative rules to implement the statute changes that include establishing a schedule of inspections, expected length of time an inspection may take, and outlining a risk-based approach to inspections.

      Licensing fees were eliminated for nurseries with gross annual sales of less than $1,000.  The department has authority to enter and inspect licensed nurseries, pursuant to 80-7-108(a), MCA.  Based on this, the department will not inspect unlicensed nurseries; therefore, there will be no economic impact unless the unlicensed nursery requests an inspection.  Requested inspection will be focused on the need of the nursery, which will drive the amount of inspection time, and therefore, the cost of the inspection.  Requested inspection will use the same cost development as licensed nursery inspections.  Inspection costs are hourly wage based.  Low risk nurseries, who are inspected every two years and which may take up to two hours for an inspection, may expect an inspection bill of $88 ($44 x 2 hours).  Medium risk nurseries, who are inspected every three years and may take up to three hours for an inspection, may expect an inspection bill of $132.  For both low and medium risk nurseries, the annualized cost is expected to be $44.  A high risk nursery has the most extensive range of time allotted for an inspection, between two and eight hours.  The maximum anticipated inspection cost is estimated at $352 a year.  Inspection costs do not include necessary travel or other costs that might be needed to cover trapping, treatments, or other incidentals.

 

      4.  Concerned persons may submit their data, views, or arguments concerning the proposed action either orally or in writing at the hearing.  Written data, views, or arguments may also be submitted to: Cort Jensen at the Montana Department of Agriculture, 302 North Roberts, P.O. Box 200201, Helena, MT 59620-0201; telephone (406) 444-5402; fax: (406) 444-5409; or e-mail: agr@mt.gov and must be received no later than February 23, 2012.

 

            5.  The Department of Agriculture 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 which includes the name, e-mail, and mailing address of the person 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 Montana Department of Agriculture, 302 North Roberts, P.O. Box 200201, Helena, MT 59620-0201; fax: (406) 444-5409; or e-mail: agr@mt.gov or may be made by completing a request form at any rules hearing held by the Department of Agriculture.

 

6.  An electronic copy of this Notice of Adoption is available through the department's web site at www.agr.mt.gov, under the Administrative Rules section.  The department 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 department strives 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.

 

            7.  The bill sponsor contact requirements of 2-4-302, MCA, apply and have been met.  The primary bill sponsors, Taylor Brown and Cliff Larsen, were contacted by e-mail and phone on January 10, 2012.

 

DEPARTMENT OF AGRICULTURE

 

 

 

 

/s/ Ron de Yong                                                  /s/ Cort Jensen                                       

Ron de Yong, Director                                      Cort Jensen, Rule Reviewer

 

Certified to the Secretary of State, January 17, 2012.

 

 

Home  |   Search  |   About Us  |   Contact Us  |   Help  |   Disclaimer  |   Privacy & Security