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| Montana Administrative Register Notice 4-14-214 | No. 15 08/08/2013 | |
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Page No.: 1378 -- 1378 | |
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BEFORE THE DEPARTMENT OF AGRICULTURE OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On August 28, 2013, at 1 p.m., the Department of Agriculture will hold a public hearing in Room 225 of the Scott Hart Building, 302 North Roberts, Helena, Montana, to consider the proposed amendment, adoption, and repeal 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 Department of Agriculture no later than 5 p.m. on August 22, 2013, to advise us of the nature of the accommodation that you need. Please contact Cort Jensen, Department of Agriculture, PO Box 200201, Helena, Montana, 59620; telephone; (406) 444-5402; fax (406) 444-5409; or [email protected].
3. The rules as proposed to be amended provide as follows, deleted matter interlined, new matter underlined:
4.12.1405 PLANT INSPECTION, CERTIFICATE, AND (2) The fees shall be as follows: (a) remains the same. (i) annual plant inspection certificates: $ (ii) nursery tags: (iii) certification inspections will be charged at $44 per hour with a minimum one hour charge; and (iv) quarantine and other documents: $25. (b) Clean Plant and Indexing Certification: (i) annual application fee is $250; and (ii) late fee of $25 if annual application is filed after June 1 of each year. (c) The department charges for mileage, lodging, per diem, and an hourly rate for certain services to recover costs for expenses that exceed the fees established in (i) actual costs for sampling and testing for
(d) remains the same.
REASON: The nursery program is fee-for-service and does not receive any other sources of funding. The rule provides clarity about which fees are specific to nursery inspection, certification, and services. Fee increases are necessary to meet expenditures associated with the responsibilities and services being provided.
ECONOMIC IMPACT: Nursery certification is fee-for-service. In 2012, ten nurseries were issued nursery certification to support nursery stock sale and distribution. Certificate costs will increase by $25. Five nurseries purchased 1,748 nursery certification tags in 2012. Cost will increase from $0.15/tag to $0.25/tag. The economic impact to these five nurseries is expected to be $0.80, $4, $10, $40, and $120 respectively. Currently the department does not charge an hourly rate, mileage, per diem, or other costs incurred in providing certification. Proposed rules adopt an hourly rate, mileage, per diem, and other costs associated with the certification process. Costs will correspond with actual time and expense. This will vary widely, depending on size of operation, variety and volume of nursery stock, buyer requirements, and distance from nearest field office providing nursery certification. Because of these factors, an estimate cannot be made for an individual nursery; however, these are new costs and each nursery may expect, at a minimum, an additional cost of $75. Heat treatments or quarantine document services will be available upon request''. The rule provides for the associated cost.
4.12.1411 DEFINITIONS (1) (2) ″Certification Program″ means a comprehensive process established and authorized by a state or other governmental entity for the production of plants, plant materials, and propagative materials free of regulated pests and diseases. The regulations of the program define the program participation, plant production, plant identification and labeling, and quality assurance requirements. (4) ″Indexing″ means to determine the presence or absence of transmissible viruses or diseases in plants, plant materials, or propagative materials that may involve inspection, tests, and analysis. (13) ″Regional Standard for Phytosanitary Measures″ means phytosanitary measures established by a regional Plant Protection Organization.
REASON: Addition, deletion, and change in definitions reflect a national trend toward a systems-based approach within the horticulture industry. The department desires to create a scalable clean plant and indexing system approach, which will provide greater flexibility to tailor requirements to meet disease indexing program needs and allow a consistent approach to be considered for certification needs, e.g., herbs, vegetables, perennials, and non-fruit tree shrubs and trees. ECONOMIC IMPACT: This rule does not have an economic impact.
4.12.1431 CIVIL PENALTIES – MATRIX
(2) Anyone who violates these rules is acting negligently, if not intentionally, and may be liable for all harm they cause and may be liable for all costs associated with, but not limited to, trapping, monitoring, surveying, analysis, testing, containment, eradication, treatment, control, management, disposition, destruction, restoration, and other measures deemed necessary by the department. (3) At the department′s discretion, each day of violation can be considered a separate offense. (4) Penalties may be assessed on a daily, per plant, and/or per event basis and will be determined on a case-by-case basis.
AUTH: 80-7-135, MCA IMP: 80-7-135, MCA
REASON: The rule reorders one violation to provide logical order and flow. Violations were added as a result of recent enforcement issues that the department dealt with. This clarifies how the department will treat certain future violations.
ECONOMIC IMPACT: The rule change does not change the penalty amounts. A compliant nursery will not be assessed any civil penalties. The department encourages and provides compliance assistance that enables individuals and businesses to resolve issues, becoming compliant before assessment of civil penalties are considered. The maximum civil penalty for a violation is $1,000.
4. The rules as proposed to be adopted provide as follows:
NEW RULE I PHYTOSANITARY INSPECTION AND CERTIFICATION COSTS -- FEES (1) All fees for services are payable upon receipt of a billing statement. The department may assess a collection fee of 18% annual percentage rate, or assess a minimum fee of $25, whichever is greater, for any payment amount not received on or before the last regular business day of each month. The department may require past due payment of fees prior to providing inspection and certification services. (2) Export certification fees shall be as follows: (a) Federal and state phytosanitary certificate: (i) $125 for noncommercial shipment, those shipments having a value that is less than $1,250; or (ii) $200 for commercial shipment, those shipments having a value that is $1,250 or more; (iii) administrative and replacement user fees for each federal or state phytosanitary certification. Requests for export certification shall be made through a client-funded Phytosanitary Certification Information Tracking (PCIT) account; and (iv) Certificate of Origin and Statement of Origin $150. (b) Other export certification document fees will be determined on a case-by-case basis and will reflect actual cost of providing or performing the service. (3) An expedite fee of $100 per export certificate applies for all types of export certification requests made less than three days' notice.
AUTH: 80-1-102, 80-7-108, 80-7-122, MCA
REASON: The purpose of the new rule is two-fold: 1. To provide a separate section focused on phytosanitary certification since it is not nursery-specific and includes all agricultural commodities and products that are being exported domestically or internationally, and 2. To increase fees associated with phytosanitary certification so that fees cover actual costs of providing the service.
ECONOMIC IMPACT: The department provides phytosanitary certification services under agreement with USDA APHIS but receives no funding from USDA APHIS. Phytosanitary services are based solely on fee for service. Revenue from fees varies with export demand and ranges between $35,000 and $45,000 a year. Expenditures incurred by the department for providing the service are $157,000 a year. Fee increases are necessary to provide sufficient revenue to cover the cost of providing the service. Under the proposed rule, a cost is assigned to a phytosanitary certificate (hereafter referred to as a phyto) and includes the inspection, hourly costs, per diem, and mileage. The potential economic impact to exporters can be best shown through illustrative examples.
A grain phyto based on a FGIS 921-2 currently costs $56 and will cost $206 under the proposed rules. A noncommercial phyto for nursery stock currently costs $157.76 and will cost $131. A grain phyto (non-FGIS 921-2) currently costs $96 and will cost $206. Multiple (four) nursery stock phytos (two noncommercial and two commercial) that currently cost $311 will cost $656. A grain phyto that can be processed as a Certificate of Origin currently costs $30 and will cost $150 under the proposed rule. A log home kit currently costing $225 will cost $206. The fee increases associated with this rule will allow the department to recover the costs associated with providing the service. An expedite fee is proposed for those requests for phytos with a turnaround under 72 hours. It is estimated that less than 10% of clients will desire an expedited phyto. USDA administrative and replacement pass-through fees also apply. Current administrative fees are $6 when PCIT (the USDA database) is used and $12 when PCIT is not used. The department requires the use of PCIT for all phytos except for extreme, extenuating circumstances. The current replacement fee is $15.
Export service is available from both the Montana Department of Agriculture and the Montana USDA Animal and Plant Health Inspection Service (APHIS), Plant Protection and Quarantine (PPQ). Only those fees associated with the Montana Department of Agriculture are detailed in this administrative rule. USDA APHIS PPQ fees differ and exporters should contact USDA APHIS PPQ to ascertain the USDA APHIS PPQ fees.
The alternative to this rule requires termination of our agreement with USDA and returning phytosanitary certification to USDA APHIS. USDA fees for phytosanitary certification are $106 for commercial shipments or $61 for noncommercial shipments plus an administrative fee of $6 or $12, depending on the Phytosanitary Certification Information Tracking (PCIT) system used and a user replacement fee of $15 when needed. USDA does not charge for inspections but may require exporters to present commodities and product for export at a USDA office in Montana for inspection. USDA has three Accredited Certifying Officials (ACOs) located in Helena and Billings (the department has 12 ACOs located in Helena, Kalispell, Missoula, Bozeman, Forsyth, Billings, Glasgow, Conrad, and Great Falls).
NEW RULE II CLEAN PLANT AND INDEXING CERTIFICATION (1) Plant and plant propagative indexing is a systems- and audit-based program. Participation in clean plant and indexing certification programs is voluntary. (2) The department will provide necessary services for certification of plant stock (plants and plant propagative materials) for the production and propagation of healthy, clean plant stock that meets certification requirements that support movement and state and international export of plants and propagative materials. (3) The department is not responsible for disease, genetic disorders, off-type, failure of performance, mislabeling, or otherwise, in connection with these rules. No grower, nursery dealer, government official, or other person is authorized to give any expressed or implied warranty, or to accept financial responsibility on behalf of the department regarding these rules. (4) To qualify for export, plant stock must also meet import state and country requirements for freedom from specified regulated pests.
REASON: Current rules are specific to fruit tree virus indexing. The department wants to provide clients the ability to certify a variety of plant materials using a systems-based approach that includes indexing of viruses and/or diseases and is flexible and scalable enough to be tailored to meet client needs while complying with phytosanitary measures and international regulations and requirements. This rule and other rules that follow outline what the department will be responsible for, what the client will be responsible for, and how compliance with requirements will be handled.
ECONOMIC IMPACT: This rule does not have an economic impact.
NEW RULE III DEPARTMENT CLEAN PLANT AND INDEXING CERTIFICATION RESPONSIBILITIES (1) The department will: (a) Administer a clean plant and indexing certification program; (b) Determine eligibility criteria for plants, plant and propagative materials for inclusion in the program; (c) Identify eligibility of plant materials requested for inclusion in a clean plant and indexing certification program; confer certification upon those meeting the requirements and conditions of the clean plant certification and indexing program; and determine appropriate certification level(s); (d) Approve registration and identity system of plants, plant and propagative materials of a clean plant and indexing program; (e) Identify the viruses and diseases of regulatory, quarantine, and export significance and those specified as a concern by a buyer or exporter for the plants, plant materials, and propagative material requested for clean plant and indexing certification; (f) Research and identify the International Standards for Pest Management (ISPM), Regional Standards for Pest Management (RSPM), and other applicable standards governing or guiding the viruses and diseases and their associated vectors and the propagation, development, and indexing of clean, disease-free plant and propagative plant material standards. Standards will outline the essential elements of a voluntary certification program for management of viruses, diseases, and their vectors, achieved through a combination of best management of practices and mandatory requirements; (g) Review and approve written clean plant and indexing certification plans; (h) Develop written inspection, audit, sampling and testing plans; (i) Conduct audits and inspections necessary to assess compliance with standards and written clean plant and indexing certification plans. Inspections will be scheduled at the discretion of the department and at such times when specific disease symptoms are most likely to be expressed; (j) Address compliance violations identified by the certified individual or entity or by the department based on inspection, audit, or test results. Unresolved compliance violations within the specified time frame will be cause for certification revocation, suspension, or cancellation; and (k) Certify and provide certification identification materials.
REASON: This rule describes what role and responsibilities the department will have in providing clean plant and indexing program services.
ECONOMIC IMPACT: This rule does not have an economic impact.
NEW RULE IV CLEAN PLANT AND INDEXING CERTIFICATION PLANS (1) Clean plant and indexing certification plans must include, at a minimum, the following elements: (a) Identification and quantification of all plant materials eligible for registration and certification; (b) Origin or source of identified plant materials; (c) Viruses, diseases, and associated vectors of concern; (d) Site selection that includes a description and map of all facilities, propagative and production areas along with required isolation and buffer zones; (e) Certification levels and identity registration system allowing for identification, tracking, tracing, and management of all plant and plant material identity; (f) Program processes and procedures governing the establishment and management of plants and plant propagative materials including but not limited to sourcing, planting requirements, block management, increases, and maintenance; (g) Pest management plan that prevents virus, disease, and associated vector introduction and which contains procedures for eradication, control, and suppression of pest populations to a level that meets certification standards. Major revisions of plans must be submitted for approval by the certifying agency; (h) Identify approved laboratory(ies) for required tests and analysis and the testing and analysis schedule; and (i) Other elements that are necessary to meet the specific type and level of certification requested or that are deemed necessary by the department.
REASON: This rule describes the required elements of a clean plant and indexing program plan.
ECONOMIC IMPACT: The rule does not have an economic impact. It creates a generic template to address required elements while allowing a plan to be specific to the type and level of clean plant and indexing certification sought. Plan development will have associated costs and will be borne by the individual or entity requesting clean plant and indexing certification. This cannot be estimated.
NEW RULE V APPLICANT AND CERTIFIED CLEAN PLANT AND INDEXING ENTITY RESPONSIBILITIES (1) The applicant and certified individual or entities will: (a) Be registered or licensed in appropriate areas, e.g., nursery licensure is required for all plant materials covered under the definition of nursery stock; (b) Develop and submit for approval a written clean plant and indexing certification plan that addresses the required elements identified by the department; (c) Select, establish, develop, and manage all facilities and plant and propagation areas to meet the standards and requirements of the clean plant and indexing certification program, which includes critical control points associated with the operation, e.g., cultivation, irrigation, movement, sanitation, equipment management and other farming practices; (d) Maintain identity, registry, and plant health certificates of all plant materials associated with foundation, nuclear, generation, mother, scion, seed, rootstock, stool, increase, certified, and other qualified plant and plant propagative materials that are traceable; (e) Comply with all indexing, testing, and analysis required following an approved schedule. Ensure all test results are made available directly to the department from the approved agency or laboratory; (f) Notify the department of virus, disease, and pest issues that violate or could lead, if unabated, to violations of clean plant and indexing certification standards and threaten certification of plants, plant materials and propagation materials. Participants must follow approved pest management plan actions to address virus, disease, and pest issues or, when deemed necessary, instructions of the department; (g) Make facilities, propagation and production areas as well as tests and analysis and other documents available for inspection and audits by the department, or its representative or USDA; (h) Address identified issues and violations within an identified time frame that resolves the issue or violation necessary to meet clean plant and indexing certification requirements; (i) Keep records necessary to document: clean plant and indexing certification requirements; plant material identity from introduction, import, or development through sale, distribution, movement, export, or disposition; inspection and audit records and findings; compliance issues and resolutions; and test and analysis results for a minimum of three years; (j) Make application using a form provided by the department and pay application fees; and (k) Pay certification identification marker fees (labels, tags, and other methods of identification).
REASON: This rule describes what role and responsibilities an individual or business will have if they elect to participate in a clean plant and indexing certification program.
ECONOMIC IMPACT: This is a voluntary program. Plan development and implementation is the responsibility of the individual or business and will vary depending on the type of clean plant and indexing certification program they choose, the size of the operation, export state or country requirements, geographic location and the pest/disease pressures associated with the location, and other factors. Because of the variety and complexity of the factors, an economic impact cannot be estimated.
NEW RULE VI CLEAN PLANT AND INDEXING CERTIFICATION ENFORCEMENT (1) Registration or certification may be refused, suspended, revoked, or cancelled for any plants, in part or all, or planting under any of the following conditions: (a) The requirements of this chapter have not been met; (b) The plant or propagative material is found to be virus- or disease-infected or off-type; (c) The registered tree is found through indexing, testing, or analysis to be virus- or disease-infected; (d) Pest control requirements have not been met; (e) The identity or eligibility of a plant or propagative materials becomes uncertain or has not been properly maintained; (f) Registration, certification, or identification markers are misused; or (g) The status of plants or propagative material sourced, produced, or used under the provisions of the clean plant and indexing certification program is knowingly misrepresented.
REASON: This rule describes the conditions of noncompliance under which a clean plant and indexing registration or certification may be refused, suspended or cancelled.
ECONOMIC IMPACT: This rule does not have an economic impact.
5. The department proposes to repeal the following rules:
4.12.1408 PREVENTING SPREAD OF CONTAGIOUS DISEASE AMONG FRUIT TREES
4.12.1410 GENERAL
4.12.1412 REQUIREMENTS
4.12.1413 SCION-BLOCKS
4.12.1414 SEED-BLOCKS
4.12.1415 STOOL-BEDS
4.12.1416 NURSERY STOCK
4.12.1417 INSPECTION PROCEDURE
4.12.1418 TESTING PROCEDURES
4.12.1419 CERTIFICATION OF GROWING SITES
4.12.1420 TAGGING AND IDENTITY
4.12.1421 MONTANA CERTIFIED FRUIT TREE NURSERY STOCK AND SEED
4.12.1422 REGULATED LOOSESTRIFE ARTICLES
4.12.1423 CONDITIONS GOVERNING IMPORTATION OF LOOSESTRIFE ARTICLES – PERMIT
4.12.1424 FAILURE TO OBTAIN PERMIT OR VIOLATION OF TERMS OF PERMIT
REASON: Current virus indexing rules 4.12.1408, 4.12.1410, and 4.12.1412 through 4.12.1418 for fruit trees are proposed for repeal and are intended to be replaced with New Rules II through VI. Rules 4.12.1420 and 4.12.1424 are related to purple loosestrife, a listed noxious weed, and no longer necessary.
ECONOMIC IMPACT: Repeal of these rules will not have an economic impact.
6. 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, PO Box 200201, Helena, Montana, 59620; telephone (406) 444-5402; fax (406) 444-5409; or e-mail [email protected], and must be received no later than 5:00 p.m., September 5, 2013.
7. Cort Jensen, Department of Agriculture, has been designated to preside over and conduct this hearing.
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 and e-mail address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent electronic unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 6 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.
11. With regard to the requirements of Chapter 318, Section 1, Laws of 2013, the department has determined that the amendment and adoption of the above-referenced rules will significantly and directly impact small businesses.
/s/ Cort Jensen /s/ Ron de Yong Cort Jensen Ron de Yong Rule Reviewer Director Department of Agriculture
Certified to the Secretary of State July 29, 2013.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact [email protected].
