Montana Administrative Register Notice 4-14-206 No. 9   05/10/2012    
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In the matter of the adoption of New Rules I through V relating to the State Sampling Program







TO:  All Concerned Persons


            1.  On May 31, 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 amendment 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 May 24, 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  DEFINITIONS  (1)  "Department" means the Montana Department of Agriculture.

(2)  "Established Protocol" means a sampling practice and procedure already recognized by the department.

(3)  "Requester" means the party that first asked the department to take a sample.


AUTH:  80-5-606, MCA

IMP:  80-5-601, 80-5-602, 80-5-603, 80-5-604, 80-5-605, 80-5-606, MCA


REASON AND FINANCIAL IMPACT:  The definitions provide clarity as to terms used and clear up ambiguity where it otherwise would exist.  There is no financial impact to this rule.


NEW RULE II  SAMPLING REQUESTS  (1)  A sampling request must be made in writing either mailed, e-mailed, or faxed to the department.

(2)  The request must identify all parties involved and provide contact information for them.

(3)  The request must identify the variety of all crops involved as well as the location of the requested sampling, ideally a legal description of the location.

(4)  The request that the department take sample(s) must either refer to an established protocol or include a new protocol request as explained in [NEW RULE III].

(5)  If the request is for the department to be present as an independent third party and not sample, the preferred, or range of dates, times, and location must be requested.

(6)  The request must state exact material to be sampled (for example seeds, field crops, storage container, food).

(7)  A request that is lacking required information will not be processed.


AUTH:  80-5-606, MCA

IMP:  80-5-601, 80-5-602, 80-5-603, 80-5-604, 80-5-605, 80-5-606, MCA


REASON AND FINANCIAL IMPACT:  This rule establishes the proper way to start a sampling request and the minimum information needed to do so.  The impact of this Rule is reflected in the impact of New Rule IV which sets the fees for sampling.


NEW RULE III  ESTABLISHING A NEW PROTOCOL  (1)  A requester must petition the department to create an established protocol.  The requester must provide a written description detailing the exact methodology the requester wants used in the sampling and the testing of any crop.

(2)  The department will make a written determination if the description is adequate enough to be an established protocol or whether the department will require additional information and propose the base fee if any for the sampling protocol as described.

(3)  After a protocol is established it can be modified by written agreement of both the requester and the department.

(4)  If the department requests a modification and the requester does not agree to it, the protocol is no longer established.

(5)  An established protocol does not guarantee that the department can perform the sampling.


AUTH:  80-5-606, MCA

IMP:  80-5-601, 80-5-602, 80-5-603, 80-5-604, 80-5-605, 80-5-606, MCA


REASON AND FINANCIAL IMPACT:  Provides a system to make sure all sampling is performed to a level and in a manner that the requester needs performed.


        NEW RULE IV  COST RECOVERY FEES  (1)  The department will charge fees to recover the costs involved as outlined below:

      (a)  hourly rate of personnel for travel time;

      (b)  hourly rate of personnel for sampling time;

      (i)  the rate will be set by the department on an annual basis to ensure all anticipated costs are covered.

      (c)  per diem and mileage per Title 2, chapter 4; and

      (d)  any costs associated with testing analysis and shipping of samples.

      (2)  Other than personnel and travel time, the department will not charge a fee for being a third party witness for samplings.


      AUTH:  80-5-606, MCA

      IMP:  80-5-603, 80-5-606, MCA


            REASON AND FINANCIAL IMPACT:  As sampling protocols and requirements could vary greatly, it is unclear what amount of revenue this would bring into the department.  The purpose of this rule is to ensure that the revenue is adequate enough to pay for this program.  This is not anticipated to be a commonly used program and the total amount of revenue is not anticipated to be more than two thousand dollars in any year.  If protocols standardize or the amount of activity in this program is greater than anticipated this rule will be reexamined.


NEW RULE V  MEDIATION  (1)  All mediation correspondence and notices to the department will be in writing.

(2)  All mediations will follow the notice requirements of informal administrative contested case hearings.

(3)  Anyone wishing to be on the list of mediators will provide a resume including a cover letter detailing how they have the education, training, and experience listed as preferred in the law.


      AUTH:  80-5-606, MCA

      IMP:  80-5-601, 80-5-604, 80-5-606, MCA


      REASON AND FINANCIAL IMPACT:  The law required the department to establish a methodology for notice during mediation and to keep a list of mediators.  There is no financial impact of this rule.


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 June 7, 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 Proposed 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, have been met.  The primary bill sponsors, Donald Steinbeisser, Ron Arthun, Terry Murphy, Cliff Larsen, Jim Peterson, Rick Ripley, Bradley Hamlett, Taylor Brown, Llew Jones, Sharon Stewart-Peregoy, Bruce Tutvedt, Verdell Jackson, Alan Olson, Walter McNutt, Jon Sonju, Eric Moore, were contacted by e-mail on April 17, 2012.








/s/ Ron de Yong                                                  /s/ Cort Jensen                                       

Ron de Yong, Director                                      Cort Jensen, Rule Reviewer


Certified to the Secretary of State, April 30, 2012.





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