BEFORE THE DEPARTMENT OF LIVESTOCK

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 32.15.601, 32.15.602, 32.18.104, 32.18.105, 32.18.106, 32.18.107, 32.18.108, 32.18.109, 32.18.110, 32.18.111, 32.18.201, 32.18.202, 32.18.203, 32.18.204, 32.18.205, 32.18.207, and 32.22.103 pertaining to brand mortgages, renewal requirements, placement of digits, brand ownership and transfer, sale of branded livestock, change in brand recording, equine breed registry mark, freeze branding, recording and transferring of brands, rerecording of brands, brand inspection, county line grazing permits, import transportation permit, livestock market releases, sheep permit, domestic bison permit, and duration of permits

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NOTICE OF PROPOSED AMENDMENT   NO PUBLIC HEARING CONTEMPLATED

           

            1. On January 15, 2014, 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 2, 2014, 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: [email protected].

 

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

 

            32.15.601 FEES FOR FILING NOTICES REGARDING SECURITY AGREEMENTS Brand Mortgages (1) Every person filing notice of a security agreement, assignment, renewal or satisfaction pursuant to 81-8-301, MCA, must pay a fee of $25.00 for each brand listed. The fee shall be paid by check or money order made payable to the department of livestock. No filing with the department may be processed without the fee first being paid.

            (1) A brand mortgage (lien) covering branded livestock must be filed with the Department of Livestock.

            (a) Brand mortgages apply to cattle with Montana brands only.

            (b)  A brand mortgage may be referred to as a notice of security agreement or lien on branded livestock.

            (2) A fee must be paid to the department by every person filing a brand mortgage, assignment, renewal, or termination for each brand listed.

            (3) There are two ways to file a brand mortgage:

            (a) All brand owners of the brand sign the brand mortgage papers; or

            (b) by Writ of Execution directing the mortgage be placed on the brand to enable the department to comply with a court order.

            (4) A notice of continuation (assignment) signed by the new brand owners, and the filing fee must be sent to the department to complete a name change on a brand mortgage.

            (5) A notice of termination plus the filing fee must be filed with the department immediately upon satisfaction to terminate a brand mortgage.

 

            AUTH:            81-8-301, 81-8-304, MCA

            IMP:                81-8-301, 81-8-304, MCA

 

            32.15.602  RENEWAL REQUIREMENTS (1) No filings of notice of security agreement, assignment or renewal are valid for more than five years after the date of filing unless a renewal notice has been filed with the department not more than six months before nor more than 60 days after the fifth anniversary of the filing of such notice.  Brand mortgages and assignments must be renewed every five years commencing on January 1, 1983 and every five years thereafter.

            (2) Renewal requirements are:

            (i) a completed notice of continuation of brand mortgage; and

            (ii) the appropriate filing fee paid to the department.

            (3) The mortgage will be terminated if not renewed prior to the deadline.

 

            AUTH:            81-8-301, 81-8-304, MCA

            IMP:                81-8-301, 81-8-304, 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, P. O. Box 202001, Helena, Montana 59620-2001. The Department of Livestock Brands Enforcement Division will then describe to them individually , for an individual description of 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) Multiple Nnames may be recorded in the following manner only: "x and y", or "x or y";.

            (a) 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) A brand may be transferred only if the signatures of all recorded owners or their assignees appear on the transfer regardless if "and" or "or" is between the names.

            (4) A corporation, LLC, or trust must be registered with the office of the Montana Secretary of State to own a brand in the name of the organization.

           

            AUTH:            81-1-102, MCA

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

 

            32.18.106 SALE OF BRANDED LIVESTOCK (1) Except as provided in (3), ownership of livestock bearing a brand recorded in "x and y" may be transferred only if the transfer bears the signatures of all recorded owners or their designated assigns.

            (2) Except as provided in (3), ownership of livestock bearing a brand recorded in "x or y" may be transferred if the transfer bears the signature of one recorded owner or his their designated assigns.

            (3) Recorded owner(s) of a brand may designate on the records of the department any person(s) who may transfer livestock bearing the brand of the recorded owner(s).

            (a) Such designations are valid only if signed by all recorded owners of the brand at the time of the designation.

 

            AUTH:            81-1-102, MCA

            IMP:                81-1-102, 81-3-105, MCA

 

            32.18.107  CHANGE IN BRAND RECORDING (1) Once the department has begun processing a recording of a brand, any changes proposed in to the original application will be considered a new application and an additional recording fee of $200 will be charged.

            (a) the fee for rerecording of a brand or mark will remain at $100.

 

            AUTH:            81-1-102, MCA

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

 

            32.18.108 EQUINE BREED REGISTRY MARK (1) A nationally or internationally recognized equine breed registry mark made on equine animals to designate a specific equine breed shall not be recorded as a brand, but may be recognized for breed identification purposes.

            (a) Any official equine breed organization, association, or registry's designated registry mark is acceptable for placement on an equine animal located in or brought into Montana.

            (2) An equine breed registry mark is not proof of ownership, but merely identification of breed.

            (a) All equine animal owners must comply with 81-3-102, MCA, and ARM 32.18.101 on Montana ownership branding statutes and rules.

            (3) remains the same.

 

            AUTH:            81-1-102, 81-3-202, MCA

            IMP:                81-1-102, MCA

           

            32.18.109 FREEZE BRANDING (1) remains the same.

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

            (b) remains the same.

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

            (d) and (e) remain the same.

            (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) remains the same but is renumbered (f).

 

            AUTH:            81-1-102, MCA

            IMP:                81-1-102, MCA

 

            32.18.110 RECORDING AND TRANSFERRING OF BRANDS (1)  Brand fees are set by the Board of Livestock and Aall 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) and (3)(a) remain the same but are renumbered (2) and (2)(a).

            (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) (3) The refund policy is as follows:

            (a) and (b) remain the same.

            (5) and (5)(a) remain the same but are renumbered (4) and (4)(a).

            (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.

            (c) issue an available brand, and/or communicate results 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) (i)  if the available option was not on the original application, The applicant must accept or decline the offered alternative option in writing within ten working days of the date on the option letter;.

            (iii) the applicant will have ten working days from the date of the offer letter to accept the offered available option.

            (iv) (ii)  If the applicant's reply is received after the ten working day offer deadline it will be considered a new application, and must be rechecked for conflicts, and will require an additional $200 new brand fee.

            (6) (5)  All bBrand transfer requests must be submitted with the appropriate required fee, to the brand recording office and:

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

            (b)  if the original owner of the transferring brand is deceased,:

            (i) a copy of the death certificate; and

            (ii) appropriate documentation (i.e., personal representative or executor paperwork) 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.

            (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").

            (c) removal of a deceased person's name from a brand held in joint ownership with right of survivorship shall require:

            (i) a copy of the death certificate; and

            (ii) the required fee from the surviving owner(s).

            (f) transfer fees apply as per ARM 32.18.107;

            (f)(i) remains the same but is renumbered (d).

            (7) remains the same but is renumbered (6).

            (8) (7)  Changes to image, species, or position require submission of a new brand application and an additional $200 the required fee.

            (9) (8) Notwithstanding any other provision or policy, a 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, 81-3-104, 81-3-106, MCA

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

 

            32.18.111 RERECORDING OF BRANDS (1) Rerecording of brands is required each tenth year after 1921 per 81-3-104, MCA.

            (a) The rerecord fee is $100 per brand set by the Board of Livestock.

            (i) Brand owners requesting transfer while rerecording their brand shall be charged a separate $100 for the completion of the transfer.

            (b) Between January and June of each rerecord year the department shall publish a notice to the effect that the year is a rerecord year for brands, in a newspaper in each county.

            (c) The department shall mail to each recorded brand holder a similar notice addressed to the person at the last address shown in department records.

            (i) Said notice shall advise the brand holder of the rerecord deadline and that no brand continues of record unless rerecorded prior to designated deadline.

            (ii) A brand not originally rerecorded with the department by 12 midnight on December 31 of the rerecord year is not of record in the department.

            (d) A former brand holder who has failed to rerecord in the preceding rerecord year and has therefore dropped the brand must reapply and submit the $200 application fee.

            (b) Rerecord applications and fees must be received in the brand recorder office by midnight on December 31 of the rerecord year.

            (i) There is no grace period.

            (2) Brands not rerecorded within the rerecord year are considered dropped by the brand owner and are no longer of record in the department.

            (a) A former brand holder who failed to rerecord in the preceding rerecord year and wants the brand back must reapply and submit the required fee.

            (i) Such reapplication must be treated as a new brand application and is subject to all applicable new brand restrictions and fees.

            (3)  Brand owners requesting transfer while rerecording their brand shall be charged a separate transfer fee.

 

            AUTH:            81-1-102, MCA

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

 

            32.18.201 PRESENTATION OF LIVESTOCK FOR BRAND INSPECTION

--LENGTH OF TIME INSPECTION EFFECTIVE (1) All livestock presented to a state stock inspector or a deputy stock inspector for a brand inspection must be inspected during daylight hours.

            (a) No lLivestock may be inspected while on vehicles except only when:

            (i) the inspector can safely read all marks and brands; and

            (ii) such the animals are on an open truck or in a horse trailer.

            (2) Such an The inspection shall permit the movement of livestock from the place of inspection immediately to the destination shown on the inspection certificate.

            (a)  No dDiversion or off-loading of the livestock will be permited is not allowed without further inspection, except:

            (i) except for purposes of feed or water, ; and

            (ii) provided only if there is no livestock at such a the off-loading place with which the livestock on the vehicle can mix or mingle.

            (3) The inspection certificate shall permit the movement of livestock identified thereon for no more than 36 hours after time of issue.

 

            AUTH:            81-3-202, MCA

            IMP:                81-2-203, 81-3-211, 81-3-213, 81-3-214, MCA

 

            32.18.202 REQUIREMENTS FOR OBTAINING COUNTY LINE GRAZING PERMITS (1) Livestock moved under a county line grazing permit issued pursuant to 81-3-211, MCA, must be hot iron branded with a Montana brand recorded in Montana to the owner of the livestock.

            (2) A grazing association may impose conditions to be placed on such permits including a requirement that livestock be individually inspected prior to entering or leaving the common grazing area.

 

            AUTH:            81-3-202, MCA

            IMP:                81-3-211, MCA

 

            32.18.203 IMPORT TRANSPORTATION PERMIT (1) Import Ttransportation permits authorized by 81-3-214, MCA, shall:

            (a) be valid only on livestock moved from a county outside of Montana into an adjacent county within Montana only once. ; and

            (b)  allow one movement per permit.

 

            AUTH:            81-3-202, MCA

            IMP:                81-3-214, MCA

 

            32.18.204 LIVESTOCK MARKET RELEASES - DURATION AND CIRCUMSTANCES UNDER WHICH DIVERSION ALLOWED  (1) Neither a licensed livestock market, nor a person having possession or control of livestock consigned to a Montana licensed livestock market may remove livestock from the market until the release required by section 81-3-211 (3), MCA has been issued. The release shall describe the livestock for which it is issued by sex, brand, breed, and number and is valid for 36 hours after the release is issued. Diversion from the destination shown on the release may not occur until the person making the diversion has obtained either a brand inspection or an appropriate transportation permit authorizing movement of the livestock to the new destination. 

            (1) Livestock consigned to a Montana licensed livestock market may be removed by either the market or a person having possession or control of the consigned livestock only after obtaining a market release issued by a Montana Department of Livestock inspector.

            (a) The release shall describe the livestock for which it is issued by sex, brand, and breed.

            (b)  The permit is valid for 36 hours after the release is issued.

            (2) Diversion from the destination shown on the release is not allowed unless

the person making the diversion has obtained either:

            (a)  a brand inspection; or

            (b) an appropriate transportation permit authorizing movement of the livestock to the new destination.

 

            AUTH:            81-3-202, MCA

            IMP:                81-3-211, MCA

 

            32.18.205 SHEEP PERMIT BEFORE REMOVAL FROM COUNTY OR STATE (1) In any county of the state of Montana where the department of livestock must issue permits for sheep before removal from that county or state, as provided for in section 81-5-112, MCA, any person removing or causing to be removed from the county or state any sheep or lambs must first obtain from a state stock inspector or deputy state stock inspector, a permit for removal. Removal of sheep or lambs from any Montana county or from the state requires a permit issued by a Department of Livestock state or deputy state stock inspector prior to movement.

            (a) The permit must be issued on an approved Department of Livestock, Brands Enforcement Division department form.

            (b) The owner or his their agent must sign the permit and certify as to:

            (i) approximate number and the description,; and

            (ii) brands or marks, breed, and color.

            (b) (2) Department of Livestock, Brands Enforcement Division form shall, wWhen used for a sheep permit, the form shall show destination within or out of the state of Montana.

            (2) (3) For those sheep leaving an auction market, An the owner's account of sale purchase sheet shall constitute a sheep permit for those sheep leaving an auction market.

            (3) (4) For show purposes only within the state of Montana, Aan annual sheep permit for show purposes only within the state of Montana is required.

            (4) (5)  For grazing purposes only, Aa sheep permit may be issued for grazing purposes only, allowing the movement of sheep from one county to an adjoining county. The sheep grazing permit shall be issued under the following terms:

            (a) through (d) remain the same.

            (5) (6)  A state stock inspector may enter any premises where to which sheep have been transported and inspect:

            (a) any sheep moved under any sheep permit,; and

            (b)  as well as any sheep with which the transported sheep have commingled.

 

            AUTH:            81-5-202, MCA

            IMP:                81-5-112, MCA

 

            32.18.207 DOMESTIC BISON PERMIT BEFORE REMOVAL FROM COUNTY OR STATE  (1) In any county of the state of Montana where the Department of Livestock must issue permits for domestic bison before removal from that county or state, as provided for in 81-5-112, MCA, any person removing or causing to be removed from the county or state any domestic bison must first obtain from a state stock inspector or deputy state stock inspector, a permit for removal. Removal of domestic bison from any Montana county or from the state requires a permit issued by a Department of Livestock state or deputy state stock inspector prior to movement.

            (a) The permit must be issued on an approved Ddepartment of Livestock, Brands Enforcement Division form.

            (b) The owner or his their agent must sign the permit and certify as to approximate number and the description.

            (c) The department form shall, when used for a domestic bison permit, show destination within or out of the state of Montana.

            (d) For those domestic bison leaving an auction market, An the owner's account of sale purchase sheet shall constitute a domestic bison permit for those domestic bison leaving an auction market.

 

            AUTH:            81-5-202, MCA

            IMP:                81-5-112, MCA

 

            32.22.103 DURATION OF PERMITS - FEE (1) Aerial hunting Ppermits will be valid for a 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) and (c) remain the same.

            (2) The fee for permits will be $50 per year or part of a year.

(a) remains the same but is renumbered (2). 

 

            AUTH:            81-7-502, MCA  

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

 

Reason: The department is amending the above-stated rules for clarification and to eliminate redundancy in citations and fees. No fees have been added or changed; however, specific fees located in Chapter 2, Subchapter 4 have been deleted in other subchapters to avoid the possibility of two different fees for the same services.

           

            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 [email protected] to be received no later than 5:00 p.m., January 15, 2014.

 

            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 15, 2014.

 

            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 has 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.

 

            10. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

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 December 2, 2013