BEFORE THE DEPARTMENT OF AGRICULTURE
OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On April 16, 2019, at 10:00 a.m., the Department of Agriculture will hold a public hearing in Room 225 of the Scott Hart Building, at 302 N. Roberts, in 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 or 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 April 12, 2019, to advise us of the nature of the accommodation that you need. Please contact Cort Jensen, Department of Agriculture, P.O. Box 200201, Helena, Montana, 59620-0201; telephone (406) 444-3144; fax (406) 444-5409; or e-mail firstname.lastname@example.org.
3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
4.10.101 FINANCIAL RESPONSIBILITIES (1)
Applicants Effective January 2021, persons applying for a commercial pesticide applicator's license shall must provide, on forms approved by the department, proof of insurance in the amount required evidence of financial responsibility, establishing ability of applicant and/or his employees, to respond to and indemnify any persons for all damages to their person or property arising out of the use, misuse, or attempted use of application of pesticides, within the financial limits set forth below. Provided, however, that this requirement for financial responsibility has no application to, and cannot be subjected to pay for any injury or damage to the person or property of the landowner hiring the pesticide application. as follows:
(a) the minimum insurance
financial responsibility shall must be in the amount of $50,000 one thousand five hundred dollars ($1,500.00) for aerial applicators, and $30,000 five hundred dollars ($500.00) for all other applicators .; and
(b) the insurance must cover damages caused by the unintentional violations of the Montana Pesticides Act in MCA Title 80, chapters 1 through 4.
(2) The department may require each applicator that experiences or causes chemical accidents or occurrences during one or more licensing periods, to increase his financial responsibility requirement up to and including ten thousand dollars ($10,000).
(3) An applicator possessing insurance coverage exceeding the requirements of this rule and its subsections, upon documentation approved by the department, shall be considered as meeting the requirements of this section.
(4)(2) Commercial seed treatment and elevator pest control applicators, whether at farm sites or their own business locations, vertebrate pest control applicators using ground applied baits only, and public utility, and non-commercial applicators applying pesticides in or on properties managed by them are exempt from the financial responsibilities required in ARM 4.10.101 through 4.10.103. Demonstration and research pest-control applicators may be exempt from the financial responsibilities required in ARM 4.10.101 through 4.10.103 upon appropriate application for exemption duly approved by the department. The department will evaluate each applicant's situation as shown on the waiver application considering particularly the following factors: actual pesticide applications used by the applicant, the use of co-operators, the size of plots, and the hazards and drift potential of pesticides utilized. All applicators must shall comply with the requirements in ARM 4.10.104 through 4.10.108 , inclusive.
(5) An applicator whose financial responsibility requirements has been increased, but who has, for two consecutive spray seasons, operated without any pesticide accidents or occurrences of pesticide damage, may make application to the department to be allowed to revert back to the minimum financial requirements of ARM 4.10.101.
AUTH: 80-8-105, MCA
IMP: 80-8-214, MCA
Reason: The amended rule transitions the department out of accepting certificate of deposits/bonds as proof of financial responsibility and into using insurance. This move will take effect on January 1, 2021, and will protect farmers and their neighbors who contract for pesticide services. MAR Notice No. 4-18-251 (page 2271, 2018 MAR Issue No. 22) proposed amendments to ARM 4.10.101 but will not be adopted by the department. MAR Notice No. 4-19-256 includes some of the amendments proposed in MAR Notice No. 4-18-251 and other additional amendments deemed necessary following the public hearing held on December 11, 2018, comments received before December 31, 2018, and additional internal review. The department added an effective date of January 2021 for proof of insurance.
Economic Impact: Cost for commercial applicator licenses may be affected for those not already insured, but the exact amount depends on factors outside the department's control.
TYPES AND CONDITIONS OF FINANCIAL RESPONSIBILITY
(1) In meeting the financial responsibility requirements of ARM 4.10.101, applicant shall have the option to utilize and provide any one or more of the following means: (a) policy of liability insurance; or (b) a surety bond; or (c) by a deposit of cash, or certificate of deposit, or deposit of bond or other obligations for the payment of which the full faith and credit of the United States or of this state are pledged, and which has the capability of being directly converted to legal tender by this department, and approved by the department, conditioned to indemnify the people of the state of Montana for all damages to property and/or injury or death to any person or persons as set forth in ARM 4.10.101. After a deposit is made pursuant to (c) above, and after a license has been issued conditioned thereon, the deposit may not be withdrawn except with the prior written consent of the department and any unauthorized withdrawal or attempt to so withdraw may subject all persons involved with the withdrawal or any attempt thereof, to a charge violating section 80-8-306 (1) MCA.
(a)(1) The insurance policy or surety bond options shall only be approved if issued by an insurance company or bonding company currently qualified to do business in the state of Montana, and which provides must provide for chemical pesticide damage responsibility coverage for each and every chemical or pesticide the applicator may choose to apply.
(b) The total aggregate liability of each insurer or surety for claims shall be limited to the face amount of the policy or surety bond, and not exceeding the limits of each applicant under ARM 4.10.101 in the event the face amount of the policy or bond exceeds the required limits, for the current year together with all unresolved or unpaid claims, timely filed, pending from previous calendar years coverage.
(2) The department may accept a liability insurance policy in the proper face amount that contains a deductible clause in an amount not to exceed five hundred dollars ($500.00) for all applicators. The department may allow a deductible greater than $500 if an application submits documentation that a deductible of $500 or less is not available from any insurer. This exception shall only be based upon the lack of availability of the established deductible, not the increase or decrease in premium value of a higher deductible. When the deductible is greater than $500, the applicator shall be required to obtain a bond or an indemnity as specified in ARM 4.10.102 (1) (c) for any amount greater than $500. If the licensee has not satisfied the requirements of the deductible amount of any prior damage claim, such deductible clause in a currently submitted policy shall not be accepted by the department to satisfy the licensing requirements unless and until the application satisfies the prior damage claim. Insurance policies may have the pollution exclusion clause removed.
(3)(2) The financial responsibility requirement imposed by ARM 4.10.101 must be maintained in full force and effect during each entire licensing period , except as provided in ARM 4.10.108. In the event of a lapse, suspension, or termination in the means assuring financial responsibility, the applicator's license(s) shall will automatically terminate, coincidental in time coinciding with the lapse, suspension, or termination of financial responsibility, and the licensee and any employees shall must immediately cease all applications of pesticides. , and without further notice shall immediately return to the department, in person or by certified mail, all licenses issued to him and/or his employees for the current calendar year; and failure to so return shall constitute a violation under ARM 4.10.208. In the event a previously licensed applicator whose license(s) was terminated by the provisions of this rule desires to have their his license reissued for the balance of the calendar year, they must notify the department he shall file a new application, accompanied by a new filing fee, and demonstrate, to the satisfaction of the department, that they he once again meet meets the financial responsibility requirements of ARM 4.10.101. and upon Upon re-approval by the department, the applicator's his license(s) may be reissued unless some other legal or regulatory cause exists for non-issuance.
AUTH: 80-8-105, MCA
IMP: 80-8-214, MCA
Reason: Language in ARM 4.10.102 was stricken and modernized to clarify conditions of financial responsibility for licensed applicators as required by ARM 4.10.101. MAR Notice No. 4-18-251 (page 2271, 2018 MAR Issue No. 22) proposed amendments to ARM 4.10.102 but will not be adopted by the department. MAR Notice No. 4-19-256 includes some of the amendments proposed in MAR Notice No. 4-18-251 and other amendments deemed necessary following the public hearing held on December 11, 2018, comments received before December 31, 2018, and additional internal review. No fiscal impact is associated with amendments to ARM 4.10.102.
4.10.103 APPROVAL, MODIFICATION, AND CANCELLATION OF FINANCIAL RESPONSIBILITY ELEMENTS (1) The department
shall must ascertain that the means establishing financial responsibility filed by the applicant fully complies with the act, and fully satisfies the rules adopted thereunder, prior to issuance of any license. The information demonstrating financial responsibility shall must be submitted on forms of the type approved by the department. License application approval shall not be granted until a complete copy of the bond, verification of the indemnity trust fund deposit, or a certificate or binder of insurance coverage is filed along with the license application. The licensee shall must provide a complete copy of the insurance policy upon written request of from the department. In the event the applicator options to utilize a liability insurance policy as the means of establishing financial responsibility, then and in that event, the The applicator has the duty and responsibility , to ascertain ensure that the policy proposed to be submitted obtained provides chemical damage coverage for every pesticide proposed to be applied during the licensing period. In the event the applicator's proposed policy of insurance contains exclusions against coverage of one or more chemicals pesticides the applicator proposed to apply, then and in that event, the applicator may submit the proposed insurance policy to provide such coverage as it affords. but the The applicator must, in addition thereto, provide evidence of financial responsibility to indemnify the public against chemical pesticide damage arising out of the use, misuse, or attempted use of each and every chemical pesticide proposed to be used or applied which is excluded from coverage of the proposed liability insurance policy. The amount of additional coverage shall must be in the minimum amount required under ARM 4.10.101 and the means to be utilized shall be the options provided in ARM 4.10.102 (1) (b) or (c).
(2) The department
shall must be notified by registered mail ten (10) days prior to any proposed modification of the liability insurance policy or surety bond requested by the licensee. Such modification must be approved by the department before the proposed modification can become final. Ten (10) A notice of ten days notice by registered mail to the department is also required prior to the surety or an insurer cancelling the licensee's surety bond or liability insurance, and prior to settlement of claims made against the licensee's bond or liability insurance. Modification of the indemnity trust fund, for any reason by any party, shall not be completed until the department has approved the proposed modification by written authorization to the licensee and the bank, trust, or other financial official or institution.
(a) If the financial responsibility is to be canceled, the requirements and procedures established in ARM 4.10.108 shall be followed.
AUTH: 80-8-105, MCA
IMP: 80-8-214, MCA
REASON: Amendments to ARM 4.10.103 remove language that previously accepted certificate of deposits/bonds as proof of financial responsibility. Applicators will accept proof of financial responsibility using insurance beginning in January 2021. MAR Notice No. 4-18-251 (page 2271, 2018 MAR Issue No. 22) proposed amendments to ARM 4.10.103 but will not be adopted by the department. MAR Notice No. 4-19-256 includes some of the amendments proposed in MAR Notice No. 4-18-251 and other amendments deemed necessary following the public hearing held on December 11, 2018, comments received before December 31, 2018, and additional internal review. No fiscal impact is associated with amendments to ARM 4.10.103.
4.10.108 LICENSING PERIOD (1) The licensing period shall be from the date of license issuance through December 31 of that calendar year. An applicator who applies pesticides seasonally may cancel or put on hold their
his financial responsibility (in effect, cancelling his terminating their license) sixty (60) days after the date of his the day after their last pesticide application. The sixty (60) day requirement may be waived if his means of providing financial responsibility is such that it provides effective ongoing coverage during the period of time a damage action could be maintained under statute of limitation section 27-2-204 and 27-2-207, MCA.
(2) An applicator who provides an indemnity trust fund as his means of establishing financial responsibility may cancel his financial responsibility sixty (60) days after the date of his last application. Cancellation of an indemnity trust fund may be accomplished by submitting a notarized statement to the department, for its discretional approval, declaring that there are no known claims pending or judgement unsatisfied.
(a) The fact that an applicator
obtains a cancellation of his indemnity trust fund in no way is cancels or puts on hold their financial responsibility is not to be construed as absolving an applicator from a suit nor or a claim of damages filed in a court of competent jurisdiction within the time provided by statute of limitation sections 27-2-204 and/or 27-2-207, MCA.
AUTH: 80-8-105, MCA
IMP: 80-8-214, MCA
Reason: MAR Notice No. 4-18-251 (page 2271, 2018 MAR Issue No. 22) proposed to repeal ARM 4.10.108 but will not be adopted by the department. MAR Notice No. 4-19-256 proposes to amend ARM 4.10.108 following the public hearing held on December 11, 2018, comments received before December 31, 2018, and additional internal review. No fiscal impact is associated with amendments to ARM 4.10.108.
4.10.401 FARM APPLICATOR CERTIFICATION (1) A farm applicator desiring to use
and apply restricted use pesticides shall be is required to make application apply for a special use permit or certificate on a form approved by the department. Each application form shall must be completed in its entirety prior to processing by the department.
(a) Applicants, who have completed the application form, paid the fee, passed the required examination or have attended an approved training course and have taken an ungraded quiz at the conclusion of the course,
shall will be issued a certificate by the department to purchase and use restricted use pesticides. Passage of the required examination or attendance at a training course shall qualify qualifies applicators for five consecutive years. The applicator's first requalification and recertification date will be based upon the staggered schedule established for the permit district in which the person resides.
(b) The certificate
shall be in effect is effective for five years from the date of issuance to December 31 of the fifth year except as provided in (1)(a). Farm applicators may renew their certification to purchase and use restricted use pesticides by submitting their application and fee to the department.
(c) Training manuals and/or training materials for farm applicators
will be are designated approved by the department. If the applicator elects to qualify by examination, these training manuals and/or training materials will serve as the basis for the examination.
(2) The farm applicator examination or training standards, as a minimum requirement,
shall must include those set forth in 80-8-209(3), MCA.
(3) The farm applicant passing the examination or attending an approved training course
shall be is certified to use restricted use pesticides for the purpose of producing agricultural commodities. The passing examination score shall be is 70%.
(4) Certified farm applicators
shall requalify for certification must recertify to use restricted use pesticides prior to issuance of a certificate. Requalification Recertification may be achieved by passing an examination or by attending earning six hours credits of training approved by the department. Each farm applicator qualification period shall conform to the established staggered system set forth in this rule. The qualification period of each district ends December 31 of the year indicated and every five years thereafter. A listing of counties within each district follows: The certification period is determined by the county and district the farm applicator resides in, and the established recertification year for each district. The districts are staggered on a five-year rotation, and the recertification period ends on December 31 of the fifth year. The districts and the counties within are listed below:
(a) DISTRICT I: Flathead, Lake, Lincoln, Mineral, Missoula, Ravalli, and Sanders;
(b) DISTRICT II: Beaverhead, Broadwater, Deer Lodge, Gallatin, Granite, Jefferson, Lewis and Clark, Madison, Meagher, Park, Powell, and Silver Bow;
(c) DISTRICT III: Blaine, Cascade, Choteau, Glacier, Hill, Liberty, Pondera, Teton, and Toole;
(d) DISTRICT IV: Carter, Custer, Daniels, Dawson, Fallon, Garfield, McCone, Phillips, Powder River, Prairie, Richland, Roosevelt, Rosebud, Sheridan, Treasure, Valley, and Wibaux;
(e) DISTRICT V: Big Horn, Carbon, Fergus, Golden Valley, Judith Basin, Mussellshell, Petroleum, Stillwater, Sweet Grass, Wheatland, and Yellowstone.
DISTRICT I 2013
DISTRICT II 2009
Beaverhead Lewis and Clark
Deer Lodge Meagher
Jefferson Silver Bow
DISTRICT III 2010
DISTRICT IV 2011
DISTRICT V 2012
Big Horn Petroleum
Fergus Sweet Grass
Golden Valley Wheatland
Judith Basin Yellowstone
AUTH: 80-8-105, MCA
IMP: 80-8-105, 80-8-209, MCA
Reason: Amendments to ARM 4.10.401 clarify language and simplify the district and county format. These amendments were not included in MAR Notice No. 4-18-251 (page 2271, 2018 MAR Issue No. 22) which necessitates this proposal, MAR Notice No. 4-19-256. The department will not adopt the rules proposed in MAR Notice No. 4-18-251 but intends to adopt the rules proposed in MAR Notice No. 4-19-256.
4.10.403 CREDENTIALS (1) Certified farm applicators may request the department to issue credentials
to for two members of his their immediate family or employees allowing them to purchase and use pesticides under the applicator's certificate and supervision. A person in possession of such credentials shall may only purchase for use and application restricted use pesticides for which the farm applicator is qualified certified and may only use such pesticides upon lands owned, rented, or leased by the farm applicator.
AUTH: 80-8-105, MCA
IMP: 80-8-105, 80-8-209, MCA
Reason: Amendments to ARM 4.10.403 clarify and modernize language. MAR Notice No. 4-18-251 (page 2271, 2018 MAR Issue No. 22), pertaining to financial responsibility, did not include these amendments and will not be adopted by the department.
4.10.404 IMPROPER PURCHASE OR USE (1) No farm applicator, family member or employee
shall may use or recommend use of a pesticide in a manner inconsistent with registered labeling, or with any agency or department restrictions that have been placed on the use of that pesticide.
(2) No farm applicator, family member, or employee
shall may purchase or use a restricted pesticide without either a permit or a credential. All applications made by family members or employees shall must be under the direct supervision of a farm applicator.
(3) For the purposes of applying 80-8-209, MCA, the term "vicinity"
will means using nonrestricted (general use) pesticides on lands immediately adjacent or across a road from lands owned, leased, or rented by the farm applicator doing the applications.
(4) Except as allowed in 80-8-209, MCA, and (3), a farm applicator, family member, or employee who applies pesticides for hire or regularly engages in the business of applying pesticides for others must be licensed as a commercial applicator.
AUTH: 80-8-105, 80-8-211, 80-8-306, MCA
IMP: 80-8-105, 80-8-211, 80-8-306, MCA
Reason: Amendments to ARM 4.10.404 clarify language and state that a farm applicator must become a commercial applicator if hiring out or engaging in the business of applying pesticides and will therefore need proof of financial responsibility as stated in ARM 4.10.101. MAR Notice No. 4-18-251 (page 2271, 2018 MAR Issue No. 22), pertaining to financial responsibility, did not include these amendments and will not be adopted by the department. Instead, the department will move forward with the rulemaking process for this proposal, MAR Notice No. 4-19-256.
4. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Cort Jensen, Department of Agriculture, 302 N. Roberts, P.O. Box 200201, Helena, Montana, 59620-0201; telephone (406) 444-3156; fax (406) 444-5409; or e-mail email@example.com, and must be received no later than 5:00 p.m., April 19, 2019.
5. Cort Jensen, Department of Agriculture, has been designated to preside over and conduct this hearing.
6. 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.
7. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
8. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will significantly and directly impact small businesses. The proposed amendments will increase the cost for commercial applicators in the case that applicators are not already insured, but the exact amount of increased costs depends on factors outside the department's control.
/s/ Cort Jensen /s/ Ben Thomas
Cort Jensen Ben Thomas
Rule Reviewer Director
Certified to the Secretary of State March 5, 2019.