Montana Administrative Register Notice 32-12-229 No. 24   12/20/2012    
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In the matter of the amendment of ARM 32.2.405, 32.3.435, 32.3.1303, 32.3.1308, 32.18.101, 32.18.109, 32.22.101, 32.22.102, 32.22.103, 32.22.104, and 32.22.105 pertaining to testing within the DSA, Department of Livestock miscellaneous fees, hot iron brands required, freeze branding, aerial hunting, identification, and identification methodology




            1.  On January 22, 2013, the Department of Livestock proposes to amend 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 January 10, 2013 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:


            (1)  through  (13) remain the same.
            (14)  Estray sale cost and disposition of animals if no bid is offered as required by 81-4-603(4):
            (a)  cost for estray sale                                                                                      100.00
            (b)  cost if owner claims before sale                                                                 50.00
            (c)  should no bids be received, the department may re-offer for sale or give the animal to an individual or rescue facility in the area, or if there are no other options, condemn and destroy or otherwise dispose of it.
            (15)  A research/copy-scan fee may be charged for livestock inspection lookups in the country and/or markets based on MDOL Public Records Request Guidelines.


            AUTH:            81-1-102, 81-22-102, MCA
            IMP:                81-3-107, 81-3-205, 81-3-211, 81-8-304, 81-9-112, MCA


            32.3.435  TESTING WITHIN THE DSA  (1)  remains the same.

(a)  A test within 30 days prior to movement out of the DSA or change of ownership, unless that movement is to an approved Montana livestock market or directly to a slaughter facility that will test upon arrival.
            (2)  remains the same.
            (a)  A change of ownership test is required on all cattle and domestic bison regardless of age intended to be used for breeding.
            (3)  remains the same.


            AUTH:            81-2-102, 81-2-103, 81-2-104, MCA
            IMP:                81-2-101, 81-2-102, 81-2-103, 81-2-104, 81-2-105, 81-2-110,
                                    81-2-111, MCA


                32.3.1303  IDENTIFICATION  (1)  All animals one year of age or older shall be identified.  All animals less than one year of age must be identified upon change of ownership unless moving to slaughter.  Identification shall consist of a tamper proof eartag and either an electronic implant, a flank tattoo or an ear tattoo all of which provide a unique identification number in accordance with the instructions of appropriate authorities.  Official identification is required for qualifying animals involved in the following:
            (a)  importation;
            (b)  entry into interstate marketing channels;
            (c)  change of ownership; or
            (d)  exhibition.
            (2)  Official identification must be made to the flock of birth or the flock of origin.
            (3)  The following groups of animals are required to be officially identified:
            (a)  sexually intact sheep and goats, regardless of age;
            (b)  all sheep over 18 months of age;
            (c)  all scrapie-suspect and test-positive animals;
            (d)  all scrapie-exposed or scrapie high-risk animals; and
            (e)  all animals in scrapie-source, scrapie-infected, scrapie-exposed, or scrapie-non-compliant flocks.
            (4)  Animals that are exempt from the individual official identification requirement are:
            (a)  sheep and goats under 18 months of age in recognized slaughter channels;
            (b)  wethers for exhibition;
            (c)  low-risk commercial goats as defined in the Scrapie Eradication Uniform Methods and Rules;
            (d)  sheep and goats moved for grazing purposes with no change of ownership; and
            (e)  animals from a registered premises and moved as a group lot directly to an approved slaughter facility or to an approved market and accompanied by an owner's statement as defined in the Scrapie Eradication Uniform Methods and Rules.


            AUTH:            81-2-102, MCA
            IMP:                81-2-103, MCA


            32.3.1308  IDENTIFICATION METHODOLOGY  (1)  All high risk mutton breeds and goats associated with these flocks sold or used for breeding purposes must be identified as to the flock of origin by a tamper proof ear tag and at least one of the following (electronic implant, flank tattoo or ear tattoo).  This information must be on the certificate of veterinary inspection and/or import permit.  Approved methods of official identification include:
            (a)  electronic implants;
            (b)  official eartags provided by or approved by USDA;
            (c)  legible official breed registry tattoo; or
            (d)  premises identification eartags.


            AUTH:            81-2-102, MCA
            IMP:                81-2-103, MCA


            32.18.101  HOT IRON BRANDS REQUIRED  (1)  Under the brand laws of the state, with the following exceptions only hot iron brands will be recognized by the Department of Livestock, Brands Enforcement Division on all livestock for sheep, goats, and swine and with the following exceptions: that
            (a)  freeze brands may be applied to horses, mules, or asses;
            (b)  freeze brands on cattle are allowed only as provided in ARM 32.18.109.

(2)  remains the same.


            AUTH:            81-1-102, MCA

            IMP:                81-1-102, MCA


            32.18.109  FREEZE BRANDING  (1)  through (1)(c) remain the same.

(d)  the freeze brand will be issued on a separate the same certificate and except on a new recording will not be charged an additional recording fee;
            (e)  through (g) remain the same.


            AUTH:            81-1-102, MCA

            IMP:                81-1-102, MCA


            32.22.101  PURPOSE AND SCOPE  (1) This sub-chapter implements provides a system for the issuance of aerial hunting permits to protect livestock from predatory animals, and establishes the duties of permittees under the provisions of Chapter 704, Laws of Montana 1979. , which provides for a permit system for the aerial hunting of predatory animals.  Under legislative directive
            (2)  tThese rules are:
            (a)  not to interfere with the needs of livestock producers protecting their livestock from predation,; but are
            (b)  to assist in the prevention and/or reduction of livestock loss from predatory animals.; and
            (c)  They are also to protect landowners, administrators, or leasees lessees who do not wish aerial hunting to occur over land under their ownership, management, or control.  This sub-chapter provides a system for the issuance of aerial hunting permits to protect livestock from predatory animals, and establishes the duties of permittees.


            AUTH:            81-7-502, MCA
            IMP:                81-7-502, MCA


            32.22.102  ISSUANCE OF PERMITS  (1)  A person desiring Applicants for an aerial hunting permit shall apply for the permit by completing application and aerial hunting request forms provided by the department of livestock must complete an aerial hunting application form prior to January 31 and submit with the appropriate fee.  After January 31, applicants may apply under the same guidelines with no proration of fee.
            (a)  Application and aerial hunting request forms are available upon request from the vertebrate pest control bureau, dDepartment of lLivestock, capitol station P.O. Box 202001, Helena, MT 59601 59620-2001 or at www.liv.mt.gov.
            (2)  Permits will be issued only to persons currently licensed as pilots by the federal aviation administration, who have a private pilot's license as a minimum rating.  An applicant must have at least 200 total flying hours.  Applicants and their aircraft must also meet federal aviation administration and Montana aeronautics division, department of commerce requirements for aircraft and pilots. Applicants must provide a current certification from the Montana Aeronautics Division, Department of Transportation (AD, DOT) as proof of having met the following requirements:
            (a)  possessing a current pilot license from the Federal Aviation Administration (FAA), with a private pilot's license as a minimum rating;
            (b)  having at least 200 total flying hours;
            (c)  having met FAA and AD, DOT requirements for aircraft and pilots.
            (3)  Permits will be issued only to individuals resident and domiciled in Montana Applicants must be residents of and domiciled in Montana.
            (a)  Nonresident permits may be authorized by the Board of Livestock The board of livestock may authorize non-resident permits when adequate service cannot be provided by Montana permittees.  
            (4)  The department may refuse the issuance of to issue a permit, or revoke an already issued existing permit, if information contained in the permit application for a permit is found to be false contains false information.
            (5)  Individuals not employed by the fish and wildlife service, U.S. department of interior who engage in aerial hunting for the fish and wildlife service on a contract basis do not require a permit under these rules for those portions of the aerial hunting performed under contract with the fish and wildlife service.  Any person under contract with the fish and wildlife service who engages in aerial hunting in addition to that performed under contract with the fish & wildlife service must comply with these rules for those portions of the aerial hunting not performed under contract. Montana aerial hunting permits are not required under the following:
            (a)  Individuals have contracted with U.S.D.A, A.P.H.I.S., Wildlife Services to provide aerial hunting services in Montana.
            (b)  Said contractors must obtain a permit and comply with MDOL rules when engaging in any aerial hunting not performed under the W.S. contract.


            AUTH:            81-7-502, MCA

            IMP:                81-7-502, 81-7-504, MCA


            32.22.103  DURATION OF PERMITS - FEE  (1)  Permits will be valid for a period to be determined by the department not exceed 3 years 12-month period from February 1 through January 31.
            (a)  Permittees must renew their permit each year as provided in ARM 32.22.102;
            (b)  permittees must be in compliance with the rules of the department, and state and federal law;
            (c)  renewal will be denied if noncompliance is not corrected prior to the renewal date.
            (2)  The Ffees for permits will be: $50 per year or part of a year.
            (a)  $30.00 for a permit issued for less than 1 year Fees will not be prorated for applicants applying for less than the 12 month permit year.
            (b)  $40.00 for a permit issued for 1 year to 2 years.
            (c)  $50.00 for a permit issued for 2 years to 3 years.
            (3)  The department may issue self-renewing multiple year permits dependent upon compliance with the rules of the department and state law.  Noncompliance will halt renewal if not corrected prior to the annual self-renewal date. 


            AUTH:            81-7-502, MCA
            IMP:                81-7-503, MCA


            32.22.104  RESTRICTIONS UPON USE OF PERMIT  (1)  A permittee may engage in aerial hunting only over areas specifically approved for him to hunt authorized by the dDepartment of lLivestock. 
            (a)  Such approval will be given only upon a showing The permittee must:
            (i)  show that livestock depredation has occurred or is likely to occur in the area requested to be approved, in the application or in an area adjacent area thereto,; and
            (ii)  that provide a signed authorization for aerial hunting from the landowner, administrator, lessee, or their agent has given written approval for the aerial hunting to take place.
            (2)  Only coyotes and/or foxes may be hunted as set forth in the permit.
            (a)  The Hunting or harassment of any other animal will result in revocation of the permit.
            (b)  Aerial hunting of coyotes and/or foxes may occur only for the protection of livestock, domestic animals, or human life.
            (c)  For extraordinary reasons, the A permit may be modified to allow the aerial hunting of other predatory animals not protected by federal law only under extraordinary circumstances.
            (3)  No permittee may engage in aerial hunting who is not in full compliance with all applicable rules and regulations governing pilots and aircraft issued by the federal aviation administration or the Montana aeronautics division, department of commerce.
            (4)  a permittee may not uUse of an aircraft in aerial hunting is prohibited until the permittee has notified the department has been notified of that use and has received provided adequate identifying information about the aircraft identification.


            AUTH:            81-7-502, MCA
            IMP:                81-7-502, MCA


            32.22.105 REPORTING REQUIREMENTS  (1)  All permittees shall file semi-annual reports with the vertebrate pest control bureau of the dDepartment of lLivestock on forms supplied by the bureau department.
            (a)  The reports are due no more than 30 days after the end of each half year.  For purposes of these reports half years shall end on within 30 days after June 30 and December 31 of each year.
            (2)  The department may require such request other information or reports of permittees as it may from time to time need as needed.


            AUTH:            81-7-502, MCA
            IMP:                81-7-502, MCA


            (1)  Failure to comply with these rules or statutes governing aerial hunting will result in the suspension or revocation of the permit.
            (2)  Upon the written refusal of the landowner, administrator or lessee, or their agent to allow further aerial hunting, sent to the department of livestock, the department shall close such areas to aerial hunting and modify any permits issued for such areas accordingly.  The department shall close an aerial hunting area upon receipt of written request from the landowner, administrator or lessee, or their agent.
            (3)  remains the same.


            AUTH:            81-7-502, MCA
            IMP:                81-7-502, 81-7-511, MCA


REASON:  The USDA brucellosis program review generally gave the state of Montana very high marks.  However, two recommendations were made that would require an ARM rule change to be implemented.  These include: 1) testing of breeding cattle at any age, and 2) testing pre-slaughter cattle because of the decrease in national MCI testing.  The proposed changes in ARM 32.3.435 reflect those recommendations.

            To be considered a Scrapie consistent state, Official Order 00-01-GF of the Montana Department of Livestock, Animal Health Division was implemented in 2000 with the intent of updating the ARM.  The department is proposing amendments to update current and outdated rules ARM 32.3.1303 and 32.3.1308 pertaining to scrapie identification and methodology.  The rule changes allow the rescinding of the official order from year 2000.

            The brands division proposes to establish new estray fees and disposition of estrays not claimed or sold in ARM 32.2.405.  Section 81-4-603, MCA requires that department district inspectors take possession of any estray in their district, ship said animal(s) to a licensed livestock market, investigate, hold and care for, advertise and sell any unclaimed animals.  The owner of the estray may appear and claim it at any time before the sale or shipment, upon payment of the cost of caring for the estray as determined by the department.  Such fees must, by statute, be set at levels commensurate with the costs of performing the services listed.  Historically no fee has been charged for this service except for feed costs for animals held prior to sale.  The proposed fees were evaluated by determining the cost of the man hours, mileage, feed, market and advertising costs per estray to assure department fair reimbursement.  The proposed fees were adjusted to offset inflationary costs.  The brands division must continue to provide this service to the Montana livestock industry in order to assure that this vital function and the mission of the department continue to meet producer needs.  The proposed estray fees will potentially affect approximately five people who may have estrayed animals.  The cumulative amount of the fee increase will be $500.00 based on the proposed fees.

            The proposed changes in aerial hunting rules are to eliminate confusion, simplify the application process, and improve compliance.  The fee will change to an annual fee replacing the variable three-year process wherein permittees were allowed to choose from one- to three-year permits for a cost of $30 to $50.  Permittees are required to provide proof of current FAA certification annually. Annual recertification under the old fee system was cumbersome and difficult to assure compliance. The proposed fee will affect approximately 13 present permit holders.  The cumulative fee is $650 based on the proposed change.


            4.  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., January 22, 2013.


            5.  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. January 22, 2013.


            6.  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.


          7.  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.


          8.  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.


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





            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 December 10, 2012.


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