Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF LIVESTOCK

OF THE STATE OF MONTANA

In the matter of the amendment of ARM 32.18.102, 32.18.103, 32.18.104, 32.18.105, and 32.18.107, and the adoption of NEW RULES I and II, pertaining to age tally mark, numeral mark, placement of digits, brand ownership and transfer, sale of branded livestock, change in brand recording, equine breed registry mark, freeze branding, and recording and transferring of brands

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NOTICE OF PROPOSED AMENDMENT AND ADOPTION

NO PUBLIC HEARING CONTEMPLATED

1. On May 25, 2012, the Department of Livestock proposes to amend and adopt the above-stated rules.

2. The Department of Livestock will make reasonable accommodations for persons with disabilities who wish to participate in the rulemaking process and need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Livestock no later than 5:00 p.m. on, May 8, 2012 to advise us of the nature of the accommodation that you need. Please contact Christian Mackay, 301 N. Roberts St., Room 308, P.O. Box 202001, Helena, MT 59620-2001; telephone: (406) 444-9321; TTD number: 1 (800) 253-4091; fax: (406) 444-4316; e-mail: cmackay@mt.gov.

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

32.18.102 AGE TALLY MARK (1) Single letter identification marks on cattle using numbers 0 to 9 inclusive may be used for an "age tally mark" ~~high on the shoulder or low on the thigh~~ and must be placed on the same side as the recorded brand used for ownership.

(2) The "age tally mark" ~~must be placed on the same side as the recorded brand used for ownership. It~~ can only be used when the owner's recorded brand is on the animal(s). The use of this mark is not mandatory.

AUTH: 81-1-102, MCA

IMP: 81-1-102, MCA

32.18.103 NUMERAL MARK (1) A "numeral mark" (limited four digits) may be used on the ~~shoulder or hip of~~ same side as the owner's recorded brand on cattle for individual identification. This mark may be used in addition to the "age tally mark" permitted in ARM 32.18.102.

(2) The "numeral mark" ~~must be placed on the same side as the recorded brand used for ownership. It~~ can only be used when the owner's recorded brand is on the animal(s). The use of this mark is not mandatory.

(3) remains the same.

AUTH: 81-1-102, MCA

IMP: 81-1-102, MCA

32.18.104 PLACEMENT OF DIGITS (1) and (2) remain the same.

(3) Anyone wanting to use a five digit system or the symbol system may write to the Department of Livestock, Brands Enforcement Division, ~~Capitol Station~~ P.O. Box 202001, Helena, Montana 5960220-2001. The ~~Department of Livestock~~ Brands Enforcement Division will then describe to them individually how they are to be used.

AUTH: 81-1-102, MCA

IMP: 81-1-102, MCA

32.18.105 BRAND OWNERSHIP AND TRANSFER (1) remains the same.

(2) Names may be recorded in the following manner only: "x and y", or "x or y"; the designation"and/or" is not acceptable.

(a) A brand recorded in "x and y" designates tenants in common.

(b) A brand recorded in "x or y" designates joint tenancy with right of survivor ship.

(3) remains the same.

~~(4) If possible, when recording a brand, the ownership interest should be identified (i.e., joint tenancy with right of survivorship, tenancy in common, etc.).~~

AUTH: 81-1-102, MCA

IMP: 81-1-102, 81-3-102, 81-3-103, MCA

32.18.107 CHANGE IN BRAND RECORDING (1) If Once the department has begun processing a recording of a brand, any changes proposed in the original ~~recording~~ application will be considered a new ~~recording~~ application and an additional recording fee of $100 will be charged.

AUTH: 81-1-102, MCA

IMP: 81-1-102, 81-1-107, MCA

4. The proposed new rules provide as follows:

NEW RULE I FREEZE BRANDING (1) Freeze branding of cattle may be allowed under the following conditions:

(a) a freeze brand must be registered by the owner with the department;

(b) in order to register a freeze brand, the owner must have a hot iron brand registered with the department;

(c) the department will only issue a freeze brand that is identical in design and location to the owner's hot iron brand;

(d) the freeze brand will be issued on a separate certificate and will be charged an additional recording fee;

(e) freeze brands can only be sold or transferred along with the hot iron certificate;

(f) cattle freeze brands cannot be owned without a hot iron certificate brand that is identical in design and location to the owner's hot iron brand;

(g) a grazing permit will not be issued to freeze brand cattle.

AUTH: 81-1-102, MCA

IMP: 81-1-102, MCA

NEW RULE II RECORDING AND TRANSFERRING OF BRANDS (1) All Montana brands must be issued through the Department of Livestock Brand Recording office.

(2) Brand fees are set by the Board of Livestock as authorized by state statute.

(3) Application forms for new brands are available on the department website, at the brand office in Helena, and at brand offices located in livestock auction yards.

(a) The application and appropriate fee must be submitted to the brand recorder for processing.

(i) Mailed, e-mailed, or faxed applications will be processed in the order in which they are received.

(ii) Walk-in applications will be processed on a first come, first served basis.

(4) The refund policy is as follows:

(a) fifty percent of the fee to record a brand is nonrefundable;

(b) if the applicant fails to respond to the brand recording office for a period of more than six months, the entire brand recording fee becomes nonrefundable.

(5) The brand recorder shall process the application in the following manner:

(a) deposit the fee;

(b) check for conflicts in the order listed on the application:

(i) the applicant must list ideas for brands in preferential order;

(ii) the first brand on the application that does not have any conflicts with existing brands will be issued to the applicant.

(i) if none of the applicant's submissions are available, the brand recorder may check a similar brand for conflicts and offer it as an alternative option;

(ii) if the available option was not on the original application, the applicant must accept the offered option in writing within ten working days;

(iii) the applicant will have ten working days from the date of the offer letter to accept the offered available option. If the applicant's reply is received after ten working days it will be considered a new application and must be rechecked for conflicts and will require an additional $100 fee.

(6) All brand transfer requests must be submitted with the appropriate fee to the brand recording office:

(a) completion of the request for transfer (located on the reverse side of the official brand certificate) must include the notarized signatures of the original owners as listed on the front of the official brand certificate;

(b) if the original owner of the transferring brand is deceased, a certified copy of the death certificate and certified power of attorney or appropriate documentation must be provided to complete the transfer;

(c) the new owner names must be listed exactly as they will appear on the new certificate to be issued upon completion of the transfer process;

(d) the brand owner name on applications and transfer must consist of individuals or entities with documentable proof of identity:

(i) individuals must use legal names;

(ii) businesses and trusts must be registered with the Montana Secretary of State's office, or provide proof of registry with another state;

(e) where multiple individuals or entities appear on a brand owner name, either "and" or "or" must be used between owner names;

(i) no other notation or description is allowed (ex: DBA, hyphens, commas, parenthesis, in care of, "and/or").

(f) transfer fees apply as per ARM 32.18.107;

(i) to ensure that fees are commensurate with cost, owners may be charged additional fees as a result of their errors in transfer paperwork.

(7) Fees for new brands or transfers shall not be prorated.

(8) Changes to image, species, or position require submission of a new brand application and an additional $100 fee.

(9) Notwithstanding any other provision or policy, a brand will not be held or checked for conflicts by phone.

(10) All forms or model letters issued for purposes of recording brands or clarifying brand recording requirements are considered part of the brand rules and practices of the Board of Livestock.

(11) The Department of Livestock, as one of its primary services to the livestock industry, provides easily recognizable brands to prospective livestock owners.

(a) Departmental employees, having continual access to brand books and being acquainted with the communities in which they live and work, generally have advance opportunity to acquire desirable brands.

(b) Considering the service the department provides, employees shall not take unfair advantage of this opportunity:

(i) employees may not record more than three brands at any time;

(ii) employees may not record brands by phone;

(iii) employees may not record for others in any manner;

(iv) employees may not record any brand which has not been available for recording less than sixty days; and

(v) employees attempting to circumvent these rules are subject to disciplinary action.

AUTH: 81-1-102, MCA

IMP: 81-1-102, 81-3-107, MCA

Reason: The department has received requests for authorization to use freeze brands on cattle from producers of certain cattle breeds. To better service those producers and the industry the Board of Livestock voted to authorize cattle freeze branding under the above specified conditions. Clarification of wording and update of the department address was included for better producer understanding of these rules.

The department has used unwritten brand policy and procedures for decades past. The current Board of Livestock agreed that producers and the industry will be better served with written rules concerning brand ownership and transfer, recording and transferring of brands.

5. Concerned persons may submit their data, views, or arguments in writing to Christian Mackay, 301 N. Roberts St., Room 308, P.O. Box 202001, Helena, MT 59620-2001, by faxing to (406) 444-1929, or by e-mailing to MDOLcomments@mt.gov to be received no later than 5:00 p.m., May 15, 2012.

6. If persons who are directly affected by the proposed action wish to express their data, views, and arguments orally or in writing at a public hearing, they must make a written request for a hearing and submit this request along with any written comments they have to the same address as above. The written request for hearing must be received no later than 5:00 p.m. May 15, 2012.

7. If the department receives requests for a public hearing on the proposed action from either 10 percent or 25, whichever is less, of the persons who are directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a public hearing will be held at a later date. Notice of the public hearing will be published in the Montana Administrative Register. Ten percent of those persons directly affected have been determined to be more than 25, based upon the population of the state.

8. 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 5 above or may be made by completing a request form at any rules hearing held by the department.

9. 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.

10. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

DEPARTMENT OF LIVESTOCK

BY: /s/ Christian Mackay BY: /s/ George H. Harris

Christian Mackay George H. Harris

Executive Officer Rule Reviewer

Board of Livestock

Department of Livestock

Certified to the Secretary of State April 2, 2012.