BEFORE THE DEPARTMENT OF AGRICULTURE
OF THE STATE OF MONTANA
| In the matter of the adoption of NEW RULE I and NEW RULE II, amendment of 4.10.201, 4.10.203, 4.10.205, 4.10.207, 4.10.315, 4.10.401, 4.10.501, 4.10.503, 4.10.701, 4.10.807, 4.10.1004, 4.10.1009, 4.10.1102, 4.10.1103, 4.10.1104, 4.10.1201, 4.10.1204, 4.10.1803, 4.10.1804, 4.10.1806, and repeal of 4.10.702, 4.10.709, 4.10.1801 pertaining to pesticide housekeeping changes | ) ) ) ) ) ) ) ) ) | NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION, AMENDMENT, AND REPEAL |
TO: All Concerned Persons
1. On January 4, 2017, at 10:00 a.m., the Department of Agriculture will hold a public hearing in Room 225 of the Scott Hart Building, 302 N. Roberts, Helena, Montana, to consider the proposed adoption, amendment, 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 5:00 p.m. on December 30, 2016, to advise us of the nature of the accommodation that you need. Please contact Cort Jensen, Department of Agriculture, P.O. Box 200201, 302 N. Roberts, Helena, Montana, 59601; telephone (406) 444-3144; fax (406) 444-5409; or e-mail [email protected].
3. The rules as proposed to be adopted provide as follows:
NEW RULE I PESTICIDE CONTAINER RECYCLING PROGRAM (1) The program only accepts high-density polyethylene (HDPE) #2 pesticide and pesticide-related container plastic (e.g., seed treatment, surfactant, adjuvants, and dye containers) for recycling.
(2) The program does not accept non-plastic containers and non-pesticide containers for recycling.
(3) All containers must be properly prepared for recycling:
(a) Emptied and triple or power rinsed to remove pesticide residues. The container owner is responsible for cleaning and rinsing pesticide containers and complying with all pesticide label requirements;
(b) Removal of the following from the pesticide container:
(i) lid and foil liner;
(ii) label booklets (glued on labels may remain on the container);
(iii) rubber gaskets; and
(iv) metal handles.
(c) Containers larger than 2.5 gallon may require cutting into smaller pieces. Please contact the department for more information.
(4) The department does not accept improperly prepared and cleaned
containers.
(5) The department posts a map of collection sites on its web site. Prior to delivering clean containers to an established collection site, individuals recycling pesticide containers should contact the collection site manager. Established collection sites accept properly prepared small containers (less than 2.5 gallon), 2.5 gallon containers, and 30 and 55 gallon containers.
(6) Individuals must contact the department to discuss recycling of larger
pesticide containers (more than 55 gallon).
(7) The department approves establishment of collection sites, public or
private, meeting minimum requirements. Individuals or entities interested in establishing a collection site must contact the department to discuss requirements and considerations (e.g., site selection, construction specifications, and site hosting considerations).
(8) The department recycling technician services all pre-determined collection sites to grind and bag all pesticide plastic during the recycling season.
(9) Department of Environmental Quality (DEQ) registration and EPA
hazardous waste identification number is not required for a contractor involved solely in recycling pesticide plastic containers.
(10) The department may contract for part or all of the operational aspects
of a pesticide recycling program. Contractors must meet all state qualifications and state regulations.
AUTH: 80-8-105, MCA
IMP: 80-8-105, MCA
REASON: The proposed change creates a rule specific for pesticide container recycling. The rule reflects the current requirements and practices of the program, provides additional information for program participants, and provides for a section of a rule for pesticide recycling separate from waste pesticides and exchangeable pesticides.
ECONOMIC IMPACT: There is no economic impact associated with this rule adoption.
NEW RULE II EXCHANGEABLE PESTICIDES (1) The department allows the exchange or transfer of a pesticide for the purpose of using the pesticide according to label directions and establishes the following procedures for the exchange of exchangeable pesticides:
(a) the pesticide offered for exchange must be:
(i) registered or meet the provisions of 80-8-201(9), MCA;
(ii) unreturnable; and
(iii) in the original, labeled container.
(b) owners of exchangeable pesticides must contact the department and provide needed information to facilitate a pesticide exchange or transfer;
(c) persons wanting to receive exchangeable pesticides must provide to the department their name, address, telephone number, and the exchangeable pesticides they want to receive. Only persons licensed to use restricted use pesticides may receive restricted use pesticides;
(d) the department will facilitate matches between donors to users;
(e) transfer of ownership of exchangeable pesticides may occur during scheduled pesticide disposal collections or through other arrangements approved by the department; and
(f) the department may require analysis of the pesticide offered for exchange for label claim.
(2) The department will keep records of all pesticides exchanged or transferred under the exchangeable pesticide program for a period of five years.
AUTH: 80-8-105, MCA
IMP: 80-8-111, 80-8-112, MCA
REASON: The rule change creates a distinct section of rule related to Exchangeable Pesticide, separate from Waste Pesticide Disposal and Pesticide Container Recycling. It also creates a new requirement that the department keep records of pesticide transfers and exchanges.
ECONOMIC IMPACT: There is no economic impact associated with reorganization of the rules. There may be a fee associated with exchangeable pesticides, addressed in the amendment to ARM 4.10.1806 (also contained in this proposal notice).
4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
4.10.201 PESTICIDE APPLICATOR LICENSING REQUIREMENTS (1) An individual using or applying pesticides who by contract or for hire uses or applies pesticides and not under the special supervision of a licensed applicator must is required to become a licensed license as a commercial pesticide applicator, except as provided for in these rules. Each pesticide applicator business location must have a licensed pesticide applicator. Any owner Owners or person who has persons having a financial interest in a pesticide applicator business may appoint a partner or salaried employee to become the licensed pesticide applicator. The owners or persons having the a financial interest in a pesticide application business shall continue to assume and is are financially responsible for all uses and applications of a pesticide. The owner, manager, or licensed applicator of a pesticide applicator business may elect to have some or all of the employees of the business licensed as applicators.
(2) A person must apply to the department for a license, completing all requirements of the application process, paying associated fees, and submitting required documents, such as a completed statement of financial responsibility. The department communicates application material deficiencies and identifies conditions and standards not met to applicants submitting incomplete applications or not meeting licensing conditions or standards. on the department's application form. The application must be completed in its entirety, accompanied by the licensing fee and a completed statement of financial responsibility. Applicants submitting incomplete applications and not meeting the conditions and standards expressed in the Act and department rules will be notified of such deficiencies and the procedure for correcting the deficiencies. The department will return the application along with the notice.
(3) Nonresident applicants shall must also be required to submit a completed service of process form the license application, fee, financial responsibility and a completed form provided by the department designating an agent for service of process in the state, along . The form shall be accompanied by with the appropriate fee for filing, payable to the Secretary of State. The service of process shall must remain valid until cancelled or modified.
(a) A nonresident corporation having, which has an effective certificate of process shall must:
(i) appoint its own resident agent or attorney upon whom the state makes service of process may be made in such causes of action, ; and such service when so made shall
(ii) be valid service on the agent or attorney. ; Service of process for these corporations shall
(iii) apply to all employees transacting business in the state; and . The corporation shall
(iv) provide to the department a list of its employees licensed as pesticide applicators and prospective pesticide applicators and any subsequent revisions of the list. for those employees licensed or to be licensed as pesticide applicators.
(b) A nonresident individual or partnership may designate the Secretary of State as its lawful agent or attorney upon whom the state makes service of process may be made in such causes of action., and such Such service when so made shall must be valid service on the Secretary of State. Service of process for individuals or partnerships shall apply applies to all employees transacting business in the state. The individual or partnership shall must provide to the department a list and any subsequent revision of the list of the employees currently and those prospectively licensed as pesticide applicators. and subsequent revision of the list for those employees licensed or to be licensed as pesticide applicators.
(c) A nonresident corporation which does not have an effective certificate of authority from the Secretary of State to transact its business in Montana and which does not transacting business in Montana so as to require requiring it to procure such a certificate of authority may designate the Secretary of State as its lawful agent or attorney upon whom the state makes service of process may be made in such causes of action., and such Such service when so made on the Secretary of State shall must constitute valid service. Service of process for corporations shall must apply to all its employees transacting business in the state. The corporation shall must provide to the department a list and any subsequent revision of the list of its employees currently licensed as pesticide applicators and those prospective pesticide applicators. and subsequent revision of the list for those employees licensed or to be licensed as pesticide applicators.
(4) An individual applying for a public utility applicator's license shall be required to must meet the same conditions and standards established within these rules for commercial applicators. For purposes of this subchapter, "public utility" means any governmental organization supplying water, electricity, transportation, etc. to the public, including utilities operated by a private entity under governmental regulation.
(5) An individual applying for a government applicator's license shall be required to must meet the conditions and standards of these rules except for those specifically exempted in the Act. The department may accept for certification those federal employees certified through an EPA-approved federal agency certification program or if the certification of an employee has been certified by another state with comparable requirements and standards of the department. The department reserves the responsibility to require federal employees to meet any special state certification standards.
(6) Those individuals A noncommercial applicator is an individual not who cannot be classified as a commercial, public utility, or government pesticide applicator and not or who cannot be classified as a farm applicator, but desire the use of using restricted-use pesticides, shall be considered to be noncommercial applicators.
(a) The noncommercial Noncommercial applicators desiring to use restricted use pesticides in the state shall be required to must meet the same requirements and are subject to the same processes as commercial applicators:
(i) application, process;
(ii) certification, including examination, qualification, and general and specific competency standards,;
(iii) classification;
(iv) recertification;
(v) recordkeeping,; requalification, and
(vi) other related pesticide usage and application standards as required of commercial applicators by the Act.
(b) These individuals shall be classified into one of the categories established for commercial applicators.
(cb) Certified noncommercial applicators may only use restricted use pesticides on lands owned, rented, or leased by his/her employer or himself/herself.
(dc) Noncommercial applicators, whether certified or not, violating the Act or these rules shall be are subject to the same penalties and administrative procedures as commercial applicators.
(7) The department issues No a licenses only after an individual passes all required examinations or completes required, approved recertification training shall be issued to any person until the and submits a completed application, and licensing fees. and all examination or requalification requirements are fulfilled and approved by the department.
(8) A licensed pesticide applicator changing his their employment to another company or business within a licensing period shall be required to must submit his their license and any employee licenses referenced to his their license to the department for cancellation. The applicator, by submission of a written request or application, may request the issuance of a new license. If if the applicator paid the license fee, the department will reissue the license. If the The company or business originally employing the applicator paid must pay the license fee before the department reissues a license., the department shall not reissue the applicator's license until the fee is paid by the applicator or the applicator's new employer. If the original company paid the licensing fee, the department will credit the fee to the company for issuance of another applicator's license within the same licensing period provided for applicants taking and passing the required written examination(s) or for an applicant already certified that the license must not be issued until the applicant passes the required written examination or is already an approved applicator. Licenses and licensing fees must are not be transferable between licensing periods.
(9) An applicator not renewing and maintaining his their license and certification within the established qualification recertification period shall be required to must retake and pass the complete examination series prior to the issuance of a new license at the beginning of the next qualification certification period. The applicator may maintain his their qualifications by attending approved requalification programs recertification training for a time period not to exceed four years. The applicator will be required to must maintain his their records of requalification. for submission to the department for relicensing. The department reserves the right to require special examination(s) on new requirements or technology.
(10) Applicators and their employees licensed as applicators or operators shall must reveal their license upon request by any individual or business, for whom the applicator or his their employee is performing pesticide applications or to an authorized representative of the department.
(a) When an applicator terminates his their employment, or transfers, his license, or modifies, or cancels his their license, all employee operator licenses issued under the applicator's name and license are also terminated, modified modify, or cancelled. Employees certified as applicators may retain their license provided that their financial responsibility is still valid. New The department issues new licenses will be issued to employee operators previously licensed once the business has appointed appoints a new supervisory certified applicator.
AUTH: 80-8-105, MCA
IMP: 80-8-105, MCA
REASON: The proposed rule eliminates the term "salaried" which carries no special meaning. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
ECONOMIC IMPACT: There is no economic impact associated with this rule change.
4.10.203 COMPETENCY STANDARDS FOR CERTIFICATION OF PESTICIDE APPLICATORS (1) An individual applying for a commercial, public utility, governmental, or noncommercial applicator's license shall be required to must pass a written examination prior to issuance of a license.
(a) Examinations may be taken Applicants may take examinations at the department's Helena office or the applicant may make arrangements for examination at other locations in the state or in other states at the convenience and approval of the department.
(b) Any individual applying for a license shall must meet the general and specific competency standards of ARM 4.10.204 and 4.10.205.
(c) The competency of applicants shall be determined by their knowledge and passage of written Written examinations on the subjects set forth in the department's designated manuals for applicators, including revisions, and any other manual, guide, or materials as designated by the department determine applicant competency. Examination questions will be derived from these manuals and their degree of difficulty will be based upon the degree of importance established by the department for the various subject areas. The department establishes examination question difficulty on the degree of importance of the various subject areas found in the manuals, guides, and materials.
(d) The department may accept the an applicant's examination scores from other states if the examination or examinations are equivalent to the department's examination. However, applicants must meet all other standards and requirements of the department must be met by the applicant. All out-of-state applicators will be required to must take and pass an examination based on the Montana Pesticide Act and these rules with a score. The scores required are as set forth in (3).
(2) remains the same.
(3) The minimum passing score for applicants is shall be:
(a) 80% for the core pesticide examination, and 80% for each respective specific examination required.
(b) Applicators licensed prior to April 30, 2010 who did not receive a score of 80% or higher on their core pesticide examination and/or specific classification examinations must retest or have obtained 12 hours of recertification training approved by the department before April 30, 2011.
(4) An applicant not receiving a passing score on one or more of the examinations shall be required to must retake and pass the failed examination(s) prior to issuance of a license. The applicant taking more than one specific examination may elect to be certified certify only for the specific examination(s) passed if the applicant has passed the core pesticide examination, and at least one specific examination.
(a) Applicants failing the core pesticide examination or any other examination the first time shall not be allowed must wait seven days to retake the examination(s). for seven days after notification of failure. Applicants failing the examination(s) a second time may retake the examination(s) must wait 15 days after notification to retake the examination(s). Applicants failing the examination(s) a third time shall not be allowed to retake the examination(s) must wait until the next licensing period beginning January 1 of the next year to retake the examination(s). Reexamination may be taken Applicants may retake examination(s) at the department's Helena office or the applicant may make arrangements for reexamination at other locations in the state or in other states at the convenience and approval of the department.
(5) Applicators shall be required to requalify must recertify for licensing prior to every fifth licensing period.
(a) The department has a staggered four-year requalification recertification time period designated by applicator classification and subclassification. Applicator classifications must requalify by December 31 of the year designated by the department. Thereafter the qualification period extends from January 1 through December 31 of the next four-year cycle.
(b) Applicators may recertify requalification must be accomplished by either passing the complete examination series or by attending 12 hours of training approved by the department. Fifty minutes of qualifying training is eligible for one recertification credit. The department assigns each approved training course a minimum of one credit and a maximum of six credits. Courses must be either six, five, four, three, or two hours. An applicator requalifying for certification recertifying by attending pesticide training courses must have written verification of his/her attendance.
(6) The department retains the right to approve or disapprove training courses relative to meeting the qualifications for recertification. Training course sponsors must petition submit their training course to the department for approval of their courses at least 30 days prior to being held the training event. The petition request must include:
(a) the training date(s), time, and location(s);, projected attendance, speakers, and a synopsis of their presentations.
(b) registration information;
(c) start and end time of each presentation;
(d) presentation synopsis; and
(e) name, affiliation, and biography of each presenter.
(7) remains the same.
AUTH: 80-8-105, MCA
IMP: 80-8-105, 80-8-206, MCA
REASON: The change proposes an elimination of outdated requirements for compliance. Applicants should now be in compliance making the language obsolete. The proposal modifies credits for training courses, providing the opportunity to earn one recertification credit. The department is reducing the active training time for each credit to 50 minutes (rather than 60 minutes) to more closely align with industry standards. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
ECONOMIC IMPACT: There is no economic impact associated with these changes.
4.10.205 SPECIFIC STANDARDS OF COMPETENCY FOR EACH APPLICATOR CLASSIFICATION (1) Certified commercial, public utility, government, and noncommercial pesticide applicators shall be examined must pass an examination and meet the certification qualifications qualified with respect to the following practical knowledge standards:
(a) Agricultural pest control applicators, may be classified into one of three areas:
(i) Plant applicators must demonstrate practical knowledge of:
(A) crops grown;
(B) and the specific crop pests, including their identification, life cycles, behavior, signs and damage caused to of those crops on which they may be using pesticides. pesticides may occur;
(C) The importance of such competency is amplified by the extensive areas involved, the quantities of pesticides needed, and the ultimate use of the quantities of pesticides needed, and the ultimate use of many commodities as food and feed. Practical knowledge is required concerning soil and water problems,; preharvest intervals,
(D) pesticide reentry and preharvest intervals,;
(E) phytotoxicity,; and
(F) potential for environmental contamination, non-target injury, and community problems resulting from the use of pesticides in agricultural areas. The extensive agricultural areas involved, the quantities and types of pesticided used, and ultimately the intended use of many commodities as food and feed amplify the importance of such competency.
(ii) Animal applicators applying pesticides directly to animals must demonstrate practical knowledge of:
(A) such animals and their associated pests, including their identification, life cycles, behavior signs and damage caused to animals;. A practical knowledge concerning
(B) animal specific pesticide toxicity and residue potential is also required since host animals will frequently be used for food.; and Further, the applicator must know
(C) the relative hazards associated with such factors as formulation, application techniques, extent of treatment and age and stress of animals, stress, and extent of treatment.
(iii) Vertebrate pest applicators must demonstrate practical knowledge of or about the:
(A) identification, behavior, signs and damage caused by vertebrates pests upon which pesticide use may occur; for which they may be using pesticides. They should possess practical knowledge of the
(B) cyclic occurrence of certain pests; and specific
(C) habitat, weather and population dynamics, as a basis for programming pesticide applications. and how these interact to create conditions for population spikes, and how to use this information to control efforts; and The applicator must demonstrate a practical knowledge of
(D) control and application methods which will that minimize the possibility of secondary problems such as unintended effects on wildlife. These applicators must demonstrate knowledge of the use of these pesticides which will minimize or prevent hazards to humans, pets, and other domestic animals and non-target wildlife.
(b) Forest pest control applicators shall must demonstrate practical knowledge of:
(i) the forest types of forest, forest nurseries, and seed production; in their state and the
(ii) forest pests involved., their identification and life cycles, the behavior, signs and symptoms of these pests; They should possess practical knowledge of the
(iii) cyclic occurrences of certain pests and specific population dynamics and how they serve as a basis for programming pesticide applications. planning; A practical knowledge of the relative
(iv) biotic agents and their vulnerability to the pesticides to be applied is required. applied pesticides; Because forest stands may be large and frequently include natural aquatic habitats and harbor wildlife, the consequences of pesticide use may be difficult to assess. The applicator must therefore demonstrate practical knowledge of
(v) control methods which will that minimize the possibility of secondary problems such as unintended effects on wildlife. (Large forest stands frequently include natural aquatic habitats and harbor wildlife, making the consequences of pesticide use difficult to assess); and
(vi) Pproper use of specialized equipment, must be demonstrated, especially as it may be related relates to meteorological factors and adjacent land use.
(c) Ornamental and turf pest control applicators shall must demonstrate practical knowledge of:
(i) pesticide problems associated with the production and maintenance of ornamental trees, shrubs, plantings, and turf,; including cognizance of
(ii) potential phytotoxicity because of the due to a wide variety of plant material, drift, and persistence beyond the intended period of pest control.; and
(iii) application methods that minimize or prevent hazards to humans, pests, and other domestic animals Because of due to the frequent proximity of human habitations to application activities,. applicators in this classification must demonstrate practical knowledge of application methods which will minimize or prevent hazards to humans, pets, and other domestic animals.
(d) Seed treatment and elevator pest control applicators shall must demonstrate practical knowledge of the:
(i) types of seeds that require pesticide protection against pests,;
(ii) and factors that influence pesticide binding and germination such as seed coloration, carriers, and surface active agents; which influence pesticide binding and may affect germination. They must demonstrate practical knowledge of
(iii) hazards associated with handling, sorting and mixing, and proper disposal of unused treated seed;
(iv) and potential for misuse of treated seed such as the introduction of treated seed into food and feed channels as well as proper disposal of unused treated seeds.; and
(v) herbicides, rodenticides and avicides used in and around structures.
(vi) Applicators must also demonstrate proper use of:
(A) grain fumigants to protect seeds,;
(B) knowledge of the safe handling and application techniques,;
(C) worker exposure and protection considerations,; and
(D) reentry standards into for fumigated structures. They must demonstrate practical knowledge of using herbicides around and rodenticides and avicides in and around these structures.
(e) Aquatic pest control applicators shall must demonstrate practical knowledge of:
(i) the aquatic environments;
(ii) aquatic pests, including their life cycles;
(iii) potential secondary effects which can be caused by improper application rates, incorrect formulations, and faulty application of pesticides used in this classification. They shall demonstrate practical knowledge of;
(iv) various water use situations and the potential of downstream effects. Further, they must have practical knowledge concerning;
(v) potential pesticide effects on plants, fish, birds, beneficial insects, and other organisms which may be present in the target aquatic environments. These applicators shall demonstrate practical knowledge of the principles of; and
(vi) limited area application principles.
(f) Right-of-way, rangeland, pasture, and non-crop pest control applicators are applicators who apply pesticides and who shall must demonstrate practical knowledge of or about:
(i) a wide variety of environments since right-of-way, rangeland, pasture, and non-crop sites can traverse many different terrains, including waterways. They shall demonstrate practical knowledge of;
(ii) problems associated with on runoff, drift, excessive foliage destruction, and potential effects to livestock and non-target organisms. Applicators must have the ability to recognize;
(iii) target plants and how to differentiate them from non-target plants. They shall also demonstrate practical knowledge of;
(iv) the nature of herbicides;
(v) keeping pesticides within the target application site; and the need for containment of these pesticides within the target application site, and
(vi) the potential impact of their herbicide applications activities in the to adjacent areas and communities.
(g) Industrial, institutional, structural, and health related pest control applicators must demonstrate a practical knowledge of:
(i) a wide variety of pests and their life cycles,;
(ii) types of formulations appropriate for their pest control, and;
(iii) methods of application that avoid contamination of food, damage and contamination of habitat and exposure of people and pets.;
(iv) specific factors which may lead to a hazardous condition, including continuous exposure in various situations encountered in this classification (since Since human exposure includes babies, children, pregnant women, and elderly people and is frequently a potential problem, applicators must demonstrate practical knowledge of the specific factors which may lead to a hazardous condition, including continuous exposure in the various situations encountered in this classification. Because health-related pest control may involve outdoor applications, applicators must also demonstrate practical knowledge of environmental conditions particularly related to this activity.); and
(v) environmental conditions that involve outdoor applications.
(i) (vi) School integrated pest management applicators, in addition to the knowledge required by applicators in the industrial, institutional, structural, and health-related category, must demonstrate a practical knowledge in of:
(A) the principles of integrated pest management; and a knowledge of
(B) pesticides registered for use in the school environment, in addition to the knowledge required by applicators in the industrial, institutional, structural, and health-related category.
(h) Wood product pest control applicators shall must demonstrate practical knowledge of:
(i) the specific wood preservative products used in their operation (creosote, pentachlorophenol, inorganic arsenicals). They shall be knowledgeable about the;
(ii) protective clothing and equipment requirements, and the requirements for including proper care and disposal of work clothing and equipment. They shall demonstrate practical knowledge of;
(iii) application techniques which will that prevent direct exposure to domestic animals and livestock, or in contamination of food, feed or drinking and irrigation water. They shall be aware of;
(iv) the prohibitions against eating, drinking and smoking and other potential avenues of work exposure while applying wood preservative chemicals. They must demonstrate practical knowledge of;
(v) hazards of handling treated products as well as the requirements for proper disposal of pesticide waste. They must be familiar with; and
(vi) the cConsumer aAwareness pProgram [CAP], which will be implemented through the use of Consumer Information Sheets [CIS's] provided to the end users of the products (consuming public).
(i) Public health pest control applicators shall must demonstrate practical knowledge of:
(i) vector-disease transmission as and how it relates to and influences application programs. A;
(ii) a wide variety of public health pests, are involved. It is essential that they be known as recognized and their appropriate life cycles and habitats, be understood as a basis for control strategy. and an understanding of how this knowledge serves as a basis for control strategies; These applicators shall have practical knowledge of
(iii) a great variety of environments ranging from streams to those conditions found in buildings. They should also have practical knowledge of; and
(iv) the importance and employment of such nonchemical control methods such as sanitation, waste disposal, and drainage.
(j) Regulatory pest control applicators shall must demonstrate practical knowledge of:
(i) regulated pests, and the factors influencing pest introduction, spread, and population dynamics;
(ii) applicable quarantine laws relating to quarantine and other pest regulations; and of pests, and
(iii) the potential environmental impact on the environment of pesticides used in suppression and eradication programs. They shall demonstrate knowledge of factors influencing introduction, spread, and population dynamics of relevant pests.
(iv) In the case of some federal agency applicators, their knowledge shall must extend beyond that required by their immediate duties since their services are frequently required in other areas of the country where that may involve invoking regulatied pest control emergency measures are invoked to control regulated pests, and where making individual judgments must be made in new situations.
(k) Demonstration and research pest control applicators demonstrating the safe and effective use of pesticides to other applicators and the public will be expected to must meet comprehensive standards reflecting a broad spectrum of pesticide use. Applicators encounter Mmany different problem situations will be encountered in the course of activities associated with research and demonstrations. Demonstration and research applicators must possess Ppractical knowledge and an understanding of:
(i) problems, pests, and population levels occurring in each demonstration situation is required. Further, they should demonstrate an understanding of;
(ii) pesticide organism interactions and the importance of integrating pesticide use with other control methods. In general, it would be expected that applicators doing demonstration pest control work possess a practical knowledge of; and
(iii) all the standards detailed in ARM 4.10.204.
(iv) In addition, they shall must meet the specific standards required for classifications in (1)(a) through (g) applicable to their particular activity. Persons conducting field research or method improvement work with restricted-use pesticides shall be expected to must know the general standards required for classifications in (1)(a) through (j), applicable to their particular activity, or alternatively, to meet the more inclusive requirements listed under "Demonstration.".
(l) Special utility pest control applicators shall must demonstrate practical knowledge of:
(i) a wide variety of utility right-of-way environments. They shall demonstrate practical knowledge of;
(ii) problems on associated with runoff, drift and excessive foliage destruction,;
(iii) target organisms and the ability to recognize target organisms. They shall also demonstrate practical knowledge of them;
(iv) the nature of herbicides and soil sterilants, the need for containment of to keep these pesticides within the designated target areas, and the impact of their application activities in the adjacent areas. They shall demonstrate practical knowledge of the specific;
(v) wood preservative products used in their specific operations;. They shall be knowledgeable about the
(vi) protective clothing and equipment requirements, including their and the requirements for proper care and disposal; of work clothing and equipment. They shall demonstrate practical knowledge of
(vii) application techniques which will that prevent direct exposure to domestic animals and livestock, or in contamination of food, feed or drinking and irrigation water. They shall be aware of;
(viii) the prohibitions against eating, drinking and smoking and other potential avenues of work exposure while applying wood preservative chemicals. They must demonstrate practical knowledge of; and
(ix) the hazards of handling treated products as well as the requirements for proper disposal of pesticide waste.
(m) Piscicide pest control applicators shall must demonstrate a knowledge of:
(i) registered piscicides, and;
(ii) safety practices for use, storage and transportation. They shall demonstrate practical knowledge of the;
(iii) potential secondary effects which can be caused by improper application rates, incorrect formulations, and faulty application of pesticides used in this classification.They shall demonstrate practical knowledge of piscicides;
(iv) various water use situations, the and potential of downstream effects and;
(v) piscicide decontamination procedures. They must have practical knowledge concerning;
(vi) potential pesticide effects on plants, fish, birds, beneficial insects, and other organisms which may be present in aquatic environments. They must show practical knowledge of;
(vii) water chemistry,;
(viii) pest identification, and the aquatic ecology within the aquatic environment. Applicators must also have knowledge of;
(ix) applicable laws and regulations related to introduction of pesticides into state waters, and demonstrate practical knowledge of the principles of; and
(x) limited area application principles.
(n) Aerial applicators shall must demonstrate practical knowledge of:
(i) aerial applicator pilot laws and regulations for aerial applicator pilots,;
(ii) pesticide operations and application safety,;
(iii) calibrating aerial application equipment;
(iv) preventing pesticide drift,;
(v) aerial pesticide dispersal systems,; and
(vi) calibrating aerial application equipment, and making an aerial pesticide applications.
AUTH: 80-8-105, MCA
IMP: 80-8-105, 80-8-206, MCA
REASON: The competency standard for vertebrate pest applicators lacks the same level of detail of other pesticide applicator categories. The proposed rule adds to the expected standards of competency, ensuring that applicators are well informed, resulting in better success in management and control of vertebrate pests. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
ECONOMIC IMPACT: There is no economic impact with this rule change.
4.10.207 RECORDS (1) All certified commercial, public utility, government, certified noncommercial applicators and their operators shall be required to must keep and maintain operational records for two years. Applicators or operators must make a record of For every application performed either by an applicator or operator, the application record must include that includes:
(a) The name of the applicator or operator applying the pesticide. Initials or an assigned number are acceptable if the full name of the applicator or operator is cross-referenced and accessible to the department.
(b) The following items: date and time (application begin and end).
(i) date;
(ii) time should be specific;
(iiic) The location must include including the property owner's or lessee's name and address where the pesticide was applied. application occurred and the:
(i) The specific application site must be expressed by township, range,
and section numbers,; or
(ii) local identifiable landmarks,; or
(iii) latitude and longitude coordinates.; or
(iv) general terms of identifiable landmarks for Rright-of-way applications may be expressed in general terms of identifiable landmarks.; or
(v) other identifiable landmarks (by site, building, facility or premise) for Nnonagricultural applications may specify the site, building, facility, premise, or other identifiable landmarks.
(cd) If all applications used the same piece of equipment, is used for all applications, then this equipment the applicator may be listed list the equipment only once. If Applicators using more than one piece of equipment is utilized, the applicator may assign a number to each piece of equipment and list the equipment once by description and thereafter by number.
(de) The pesticide or pesticides used must include the company name, trade name, and the EPA registration number or the type of formulation.
(ef) The rate of application must includes the amount of formulated product and diluent/carrier (if other than water) per gallon of water formulation rate and the diluent to be sprayed on a given unit area. Examples:
(i) 1 pint of product per 5 gallons of water per acre (1 pt./5 gal. water/acre);
(ii) 2 oz. ounces of product per 1 gallon water per 100 sq. ft. (2 oz./1 gal. water/100 sq. ft.);
(iii) 1 pint of product per 100 pounds of fertilizer per acre (1 pt./100 lbs. fertilizer/acre).
(fg) The amount of area treated in (number of acres, trees, livestock, square feet or yards, etc.), or the type of treatment for structural, seed treatment or wood product applications, indicate the type of treatment.
(gh) The primary pest or pests involved.
(hi) The site or crop or site treated, if applicable, and the stage of crop development, if applicable.
(ij) Weather conditions such as wind speed, direction and temperature if applicable. Outdoor applications generally require the recording of some weather conditions.
(2) Applicators utilizing two or more pesticides in a tank mixture shall be required to must record all required data as required for each pesticide in the tank mix.
(3) Applicators shall must maintain application records on a daily basis not to exceed 24 hours from the time of the last application.
(4) Applicator records shall be must open to inspection by authorized employees of the department during all business hours. Applicators shall be required to must submit written copies of their records or any portion of the records when requested in writing by the department.
(5) Seed treaters and wood product treaters shall only be required to must maintain records only on the volumes of pesticides applied and the other items set forth in (1)(a), (b), (i) (de), (ef), and (fg).
(6) As ruled by opinion of the Montana attorney general (Vol. No. 38, Opinion No. 1), public disclosure applies to pesticide applicator and dealer records held by the Department of Agriculture are subject to public disclosure unless the department finds that the applicator's or dealer's right to privacy clearly outweighs the public's right to know., a Such determination will be considered under department policy made on a case by case basis.
(a) There will, however, be no department publication of any information of these records which may disclose operations of selling, production or use of pesticides by any person. Such prohibition has been declared under section 80-8-107, MCA and confirmed under department interpretation of a letter of explanation to the above-cited opinion from the attorney general.
(7) Applicators, upon written request of the department, shall must submit to the department an accurate typed or printed record of each application performed with all restricted pesticides, or those restricted pesticides specifically named by the department. The Applicators must submit the requested records shall be submitted within 14 calendar days of the department's request or as otherwise requested by the department on the standard form provided by the department or on forms approved by the department. The request for records may include the records for the complete calendar year. The records shall be submitted on the standard form provided by the department or on forms approved by the department. The record shall Records must contain the following items listed in this rule: (1)(a), (b) (i), (iiic), (d), (e), (f), (g), (h), (i), and (2). The record may contain all the items listed in sections (1) and (2).
(a) If no applications of the restricted-use pesticides are made occurred during the requested time period, applicators must this must be documented this to the department.
(8) Applicators shall submit to the department an accurate typed or printed report of their use of restricted and general use pesticides every fifth year beginning in calendar year 1990 and thereafter every five years. The report must include a summary of use of these pesticides by county, total acreage, amount of the formulated product used, the product used by company name and trade name, and the EPA registration number for the fifth year only. The report must be submitted to the department by January 31 of the next year. The report must be submitted on the standard form provided by the department or on forms approved by the department.
(a) If no application of general and/or restricted-use pesticides are made during the calendar year, this must be documented by the department.
(9) Farm applicators are exempt from the requirements of this rule, unless a specific reporting requirement is established in another rule.
AUTH: 80-8-105, MCA
IMP: 80-8-105, MCA
REASON: The proposed rule clarifies that applicators do not need to record water as a diluent or carrier and that site and crop information is required while stage of crop is required only when applicable. When the department is requesting pesticide application information under (7), the department will have a specific purpose in mind and therefore will specify in the records request the needed information. In addition, when assessing, evaluating, inspecting, or investigating incidents, situations, and conditions, the department needs to know about all applications, not just restricted-use products. The proposed rule also eliminates fifth-year reporting. Fifth-year reporting is an unnecessary burden for applicators and records are not used for any specific purpose by the department. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
ECONOMIC IMPACT: There is no economic impact associated with clarifying record content requirements. There may be a positive economic impact associated with eliminating fifth-year reports and not incurring mailing costs.
4.10.315 APPLICATOR RECORDS (1) All applicators, including farm applicators, must maintain and submit, upon request by the department, a record of each restricted-use aquatic herbicide application.
(a) These records shall must include:
(i) through (v) remain the same.
(vi) weeds controlled; and
(vii) type of equipment used and method of application.
(b) These records will satisfy reporting requirements for all non-farm applicators described within ARM 4.10.207(1). The records required in ARM 4.10.315 will satisfy the requirements for applicators subject to ARM 4.10.208(8) . Farm applicators are exempt from the reporting requirements of ARM 4.10.207(8) .
AUTH: 80-8-105, MCA
IMP: 80-8-105, MCA
REASON: The proposed rule corrects administrative rule reference. ARM 4.10.208 is about inconsistent use as it relates to labeling or department-imposed restrictions and is not about record keeping requirements. ARM 4.10.208(8) does not exist. ARM 4.10.207(8), which the rule should reference instead of 4.10.208(8), is about fifth-year reporting requirements, proposed for repeal. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
ECONOMIC IMPACT: There is no economic impact associated with this rule change.
4.10.401 FARM APPLICATOR CERTIFICATION (1) A farm applicator desiring to use and apply restricted use pesticides shall be required to must make application for a special use permit or certificate on a form approved by the department. Applicants must complete the Each application form shall be completed in its entirety and pay the permit fee prior to processing by the department.
(a) Applicants, The department issues a permit to purchase and use restricted use pesticides to applicants who have completed the application form, paid the fee, and passed the required examination or have attended an approved training course and have taken an ungraded quiz at the conclusion of the course, shall 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 certifies applicators for five consecutive years. The An applicator's first requalification and recertification date will be based upon the staggered schedule established for the permit district in which the person resides. is determined by the permit district in which the applicator resides.
(b) The certificate shall be A permit is in effect 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 permit to purchase and use restricted use pesticides by submitting their application and fee to the department.
(c) The department designates Ttraining manuals and/or training materials for farm applicators will be designated 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 with a score of 70% or better or attending an approved training course shall be certified meets certification requirements and is eligible to apply for a permit to use restricted use pesticides for the purpose of producing agricultural commodities. The passing examination score shall be 70%.
(4) Certified farm applicators shall requalify for certification to use restricted use pesticides must meet recertification requirements prior to issuance of a certificate renewing their permit. Requalification may be achieved by passing Farm applicators must pass an examination or by attending six hours of training approved by the department. Each farm applicator qualification period shall must conform to the established schedule as posted on the department's web site. 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:
| DISTRICT I
| 2013
|
| Flathead
| Missoula
|
| Lake
| Ravalli
|
| Lincoln
| Sanders
|
| Mineral
| |
| DISTRICT II
| 2009
|
| Beaverhead
| Lewis and Clark
|
| Broadwater
| Madison
|
| Deer Lodge
| Meagher
|
| Gallatin
| Park
|
| Granite
| Powell
|
| Jefferson
| Silver Bow
|
| DISTRICT III
| 2010
|
| Blaine
| Liberty
|
| Cascade
| Pondera
|
| Chouteau
| Teton
|
| Glacier
| Toole
|
| Hill
| |
| DISTRICT IV
| 2011
|
| Carter
| Prairie
|
| Custer
| Richland
|
| Daniels
| Roosevelt
|
| Dawson
| Rosebud
|
| Fallon
| Sheridan
|
| Garfield
| Treasure
|
| McCone
| Valley
|
| Phillips
| Wibaux
|
| Powder River
| |
| DISTRICT V
| 2012
|
| Big Horn
| Petroleum
|
| Carbon
| Stillwater
|
| Fergus
| Sweet Grass
|
| Golden Valley
| Wheatland
|
| Judith Basin
| Yellowstone
|
| Musselshell
| |
AUTH: 80-8-105, MCA
IMP: 80-8-105, 80-8-209, MCA
REASON: The proposed change corrects terminology by changing certificate to permit. There is a certification process that results in the issuance of a permit, not a certificate. The rule maintains a schedule for recertification of private applicators, eliminates the requirement that it be a staggered system and removes the outdated recertification schedule. The department's web site maintains an updated private applicator recertification schedule. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
ECONOMIC IMPACT: There is no economic impact associated with this rule change.
4.10.501 APPLICATION FOR LICENSE (1) A person applying for a commercial pesticide dealer's license shall make application must apply for the license on a standard application form provided by the department. Each application shall be Applicants must completed the application in its entirety and pay the licensing fee paid prior to processing by the department. Incomplete applications will be returned to the applicant. The department communicates application material deficiencies and identifies conditions and standards not met to applicants submitting incomplete applications or not meeting dealer licensing conditions and standards.
(2) Nonresident applicants shall be required to must submit the license application, fee, and a completed form of service of process form in the state prior to processing before the department processes the application by the department. The form shall be accompanied by the appropriate fee for filing, payable to the Secretary of State, must accompany the service of process form. The service of process shall remains valid until cancelled or modified.
(3) A nonresident corporation, which has with an effective certificate of authority to transact its business in Montana, filing the service of process shall must appoint its own resident agent or attorney upon whom the state makes service of process may be made in such causes of action, and such service when so made shall be valid. Valid service on the agent or attorney is required when making such service. Service of process for these corporations shall apply applies to all employees transacting business in the state. The corporation shall must provide to the department with a list of its employees, if more than one, the and any subsequent revisions of the list for those of employees currently licensed as dealers and prospective dealer licensees or to be licensed as dealers.
(4) A nonresident individual or partnership may designate the Secretary of State as its lawful agent or attorney upon whom the state makes service of process may be made in such causes of action, and such service when so made shall be valid. Valid service on the Secretary of State is required when making such service. Service of process for individuals or partnerships shall apply applies to all employees transacting business in the state. The individuals or partnership shall must provide to the department with a list and any subsequent revision of the list of the employees currently licensed as pesticide dealers. and subsequent revision of the list for those employees licensed or to be licensed as pesticide dealers.
(5) A nonresident corporation which does not have an effective certificate of authority from the Secretary of State to transact its business in Montana and which does not transact business in Montana so as to require it to procure such a certificate of authority may designate the Secretary of State as its lawful agent or attorney upon whom the state makes service of process may be made in such causes of action, and such service when so made shall be valid. Valid service on the Secretary of State is required when making such service. Service of process for corporations shall apply applies to all employees transacting business in the state. The corporation shall must provide to the department with a list and any subsequent revisions of the list of its employees and subsequent revision of the list for those employees licensed as pesticide dealers or to be licensed as pesticide dealers prospective dealer licensees.
(6) Pesticide dealer outlets with a licensed dealer shall be required to must list the names and address of all their employee pesticide field men and salesmen employees employed directly out of in the same outlet as the licensed dealer. These employees traveling and transacting pesticide sales in the state shall be required to must possess and carry credentials stating that the employee is transacting business under the name and license number of a licensed dealer. The department will provide the issues necessary credentials to the licensed dealer for the field men and salesmen employees listed on the application. Dealers may request additional field men or salesmen employee credentials for new employees provided that the dealers shall. Dealers must return to the department any credentials for those employees terminated or no longer supervised by the dealer. Dealers and dealer field men or salesmen employees shall be required must, upon request, to show their license or license credentials to any buyer of a pesticide or to employees of the department.
AUTH: 80-8-105, MCA
IMP: 80-8-105, 80-8-207, MCA
REASON: The licensing process for a dealer is the same, regardless of the type of dealer license being sought. By eliminating the word "commercial," additional rules to cover government dealer licensing are not necessary. Issuance of credentials to new employees does not depend on the dealer returning credentials for employees no longer working under the dealer. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
ECONOMIC IMPACT: There is no economic impact associated with these rule changes.
4.10.503 PESTICIDE DEALERS REQUIREMENTS AND STANDARDS
(1) Licensed pesticide dealers may purchase, sell, offer for sale, or distribute any pesticide classified as general or restricted use registered in that state. Dealers will not be allowed to handle certain except restricted pesticides which are registered only for use, sale, or distribution by government agencies only.
(2) New applicants for a dealer license must pass a written examination prior to issuance of a license by the department. An applicant not receiving a passing score on the first examination and upon notification of failure, may must wait seven days to retake the examination seven days after notification. Applicants failing the second examination and upon notification of failure, may must wait fifteen days to retake the examination 15 days after notification. Applicants failing the third examination shall not be allowed to retake the examination must wait until the next licensing period beginning January 1 of the next year to retake the examination. Applicants may be reexamined retake examinations at the department's Helena office or the applicant may make arrangements for reexamination at other locations in the state or in other states at the convenience and approval of the department.
(3) Competency of applicants by written examination shall be determined by their knowledge of Applicants must demonstrate competency in the subjects and materials set forth in the (Pesticide Applicator Certification Core Manual), (including future revisions) and any other department-approved manuals, guides, or materials required by the department. The department derives Eexamination questions will be derived from these manuals and bases. Their the question's degree of difficulty will be based upon the relative degree of importance established by the department for of the various subjects. The examination must consist of but is not be limited to questions on pesticide legislation; regulations and guidelines; safety and toxicology; disposal; storage and transportation; effects on animals, plants, and environment; fish and wildlife; alternatives to chemicals; pollinating insects; selection of control methods; factors affecting pesticide applications; classification and formulations of insecticides; fungicides, herbicides, and other pesticides and their uses; definitions; and recommendations for use of pesticides. The minimum passing examination score for dealer applicants to be licensed as dealers shall be is 80%.
(4) Dealers shall be required to requalify must recertify for licensing prior to December 31, 1986, and by the end of every fourth year thereafter. Dealers may recertify requalification must be accomplished by either passing a dealer examination or by attending 12 hours of training approved by the department. Fifty minutes of qualified training is eligible for one recertification credit. The department assigns each training course meeting continuing education requirements as a minimum of one credit and a maximum of six credits. Courses must be either six, five, four, three, or two hours of training. A dealer attending pesticide training courses must have written verification of his/her attendance.
(a) Dealers licensed prior to April 30, 2010 who did not receive a score of 80% or higher on their core pesticide examination must retest or have obtained 12 hours of recertification training approved by the department before April 30, 2011.
(5) The department retains the right to approve or disapprove training courses relative to meeting the qualifications for relicensing recertification requirements. Training course sponsors must petition the department for approval of their courses 30 days prior to being held the training event. The petition request must include:
(a) the training dates, time, and location(s);, projected attendance, speakers, and
(b) registration information;
(c) start and end time of each presentation;
(d) synopsis of their each presentations.; and
(e) the name, affiliation, and biography of each presenter.
(6) remains the same.
(7) A dealer, not renewing and maintaining his their license and qualification, recertification within the established qualification period shall be required to must retake and pass the examination prior to the issuance of a new license at the beginning of the next qualification certification period. The dealer may maintain his their qualifications by attending approved requalification programs recertification training for a time period not to exceed four years. The dealer will be required to must maintain his their records of requalification for submission to the department for relicensing. The department will not maintain qualification data for persons that have not relicensed. The department reserves the right to require special examination(s) on new requirements or technology.
(8) A licensed dealer changing his their employment to another company or business within a licensing period shall be required to must submit to the department the license and any employee credentials to the department for cancellation by the department. The dealer Dealers that paid the license fee, by submission of a written request or application, may request the issuance of a new license. If the dealer paid the license fee, the department will issue the license. If a dealership or company originally employing the dealer paid the license fee, the department shall not reissue the license to the dealer or the dealer's new employer. If the company paid for the licensing fee, the department will credit the fee to the company for issuance of another dealer's license by the department within the same licensing period, provided that the license must not be issued until the applicant passes the. Applicants must demonstrate they meet certification requirements, including any required written examinations or is already a licensed dealer before the department issues a license. Licenses and license fees must not be are not transferable between licensing periods.
(9) A licensed dealer or employees supervised by the dealer shall only sell restricted-use pesticides to other dealers, certified commercial, public utility, or governmental applicators, to noncommercial certified applicators, or to certified farm applicators or their credentialed family members or employees. The dealer or dealer's employees shall only sell to a certified applicator the pesticide or pesticides within the group or class of pesticides stated on the license or permit.
(10) Dealers are allowed to sell restricted-use pesticides to persons possessing proper identification or credentials issued by the department. These credentials will state that the person is purchasing the pesticide under the name and license or permit number of a certified applicator and that the certified applicator supervises the use of the pesticide by that person. Sale of restricted-use pesticides to any person other than certified applicators or persons with departmental credentials is illegal. Such sales to any person must subject a dealer to immediate revocation of the license.
AUTH: 80-8-105, MCA
IMP: 80-8-105, 80-8-207, 80-8-208, MCA
REASON: The department proposes eliminating outdated compliance requirements for dealers. The proposed rule modifies credits for training courses, providing the opportunity to earn one recertification credit. The department proposes reducing the actual training time for each credit to 50 minutes, rather than 60 minutes, to more closely align with industry standards. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
ECONOMIC IMPACT: There is not an economic impact associated with this proposed rule change.
4.10.701 GENERAL PESTICIDE REGISTRATION STANDARDS AND CLASSIFICATION (1) The department hereby establishes the standards of restriction for pesticides to be registered, re-registered, sold, distributed, offered for sale, purchased, exchanged, bartered, given away, used, or applied in the state. Sections 80-8-201(3) and 80-8-105(2)(a), (b), and (3) of the Act allows the department to restrict pesticides to prevent damage or injury to:
(a) persons, animals, or pollinating insects from the effect of drift or from careless application;
(b) the environment;
(c) plants, including forage plants;
(d) wildlife; and
(e) fish and other aquatic life. These rules establish standards for requiring pesticides to be registered in the state, to be classified The department classifies pesticides registered in Montana as either general use or restricted use. The department, upon receiving an application for state restriction of a federally registered pesticide product classified as or general or restricted use, pesticides must accept and register the pesticide and must use the same federal general or restricted use classification. by the department and prohibits the sale of restricted pesticides by any person to another person who has not been certified by the department to purchase, use, or apply the pesticide. It shall be unlawful to make available for use or to use any pesticide, whether registered or not, classified for restricted use to any person other than a certified applicator except as other exempted by the Act or rules adopted thereunder. Such registration and classification become effective upon issuance of a certificate for registration to the applicant. The department adopts the registration and labeling requirements as set forth in the Code of Federal Regulations, Title 40, parts 152 and 156.
(2) The department classifies a pesticide or one or more of its uses as general use if the pesticide, when applied in accordance with its directions for use, warnings and cautions and in accordance with widespread and commonly recognized practice, does not generally cause unreasonable adverse effects on the environment.
(3) The department classifies a pesticide or one or more of its uses as restricted use if it is determined that without additional regulatory restrictions, the pesticide, when applied in accordance with its directions for use, warnings and cautions or in accordance with widespread and commonly recognized practice, may generally cause unreasonable adverse effects on:
(a) persons, animals, or pollinating insects from the effect of drift or from careless application;
(b) wildlife;
(c) fish and other aquatic life; and
(d) the environment.
(4) Restricted use pesticides require application only by or under the direct special supervision of a certified applicator. The department may also impose other restrictions, such as type of applicator who may use the pesticide or the time and place that the pesticides may be used. If the department establishes additional registration restrictions on a pesticide, the department must adopt such restrictions in administrative rule.
(5) All persons selling, distributing, offering for sale, exchanging, giving away, bartering, using, or applying pesticides must follow label directions and labeling requirements. Only persons certified by the department may purchase, use, and apply restricted use pesticides. It is unlawful to make a restricted use pesticide, whether registered or not, available for use to any person who is not a certified applicator except exempted in law or rules.
IMP: 80-8-105, MCA
AUTH: 80-8-105, MCA
REASON: The rule contains redundant language found in both ARM 4.10.702 and 80-8-105, MCA. The proposed change modifies the language to reduce redundancy and provide clear, logical content. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
ECONOMIC IMPACT: There is no economic impact associated with this proposed rule change.
4.10.807 BURNING OR INCINERATION OF PESTICIDE CONTAINERS
(1) Incineration A person must not incinerate or burning pesticide containers or the use of an unapproved incinerator to burn or incinerate pesticide containers is prohibited except when such burning or incineration is unless approved by the Montana dDepartment of health and Environmental sciences Quality (DEQ). Persons having DEQ approval to burn or incinerate pesticide containers must provide notice to the county prior to burning or incinerating any pesticide container(s).
AUTH: 80-8-105, MCA
IMP: 80-8-105, MCA
REASON: The rule updates the name of the state agency listed. The Department of Health and Environmental Sciences is now the Department of Environmental Quality (DEQ). The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
Economic Impact: There is no economic impact associated with this rule.
4.10.1004 OTHER PENALTIES (1) If the nature of a particular enforcement proceeding so warrants, the The department may, in the interest of judicial economy, combine an disciplinary enforcement proceeding under 80-8-211, MCA (suspension or revocation of licenses and permits) or other violations of the act or rules adopted thereunder with a proceeding under 80-8-306(5), MCA. However, any appeal from resulting disciplinary enforcement action against the license or permit or other violations, shall be reviewed pursuant to must comply with the procedure established by the Montana Administrative Procedure Act.
AUTH: 80-8-105, MCA
IMP: 80-8-306, MCA
REASON: The proposed change updates terminology used for rule. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
Economic Impact: There is no economic impact associated with the proposed rule change.
4.10.1009 NONCOMPLIANCE WITH PESTICIDE WORKER PROTECTION STANDARDS AND LABELING (1) For purposes of administering civil penalties for noncompliance with worker protection standards, the department hereby adopts the worker protection statements and worker protection standard as set forth in the Code of Federal Regulations, Title 40, part 156, subpart K and Title 40, part 170, revised as of July 1, 1998. A copy can be obtained from the Montana Department of Agriculture, Agricultural Sciences Division, PO Box 200201, Helena, MT 59620-0201, (406 444-2944).
(2) A person's Ffailure to comply with the worker protection standard and associated labeling requirements is a violation violates of the Montana Pesticides Act and is subject to civil penalties pursuant to 80-8-306, MCA.
(a) When a pesticide label references the worker protection standard is referenced on a pesticide label pursuant to (40 CFR, Part 156, subpart K), persons using the pesticide must comply with the worker protection statements and the worker protection standard. Failure to comply constitutes use of a pesticide in a manner inconsistent with the label.
(b) Any pesticide that is labeled for use in the production of agricultural plants on an agricultural establishment as defined in 40 CFR 170.3, shall must be labeled with the worker protection statements set forth in 40 CFR Part 156, subpart K. A pesticide not so labeled is misbranded. It is a violation for any person to distribute, sell, or offer for sale or deliver for transportation or transport in intrastate commerce any misbranded pesticide that is misbranded, and such violation is subject to a civil penalty pursuant to 80-8-306, MCA.
AUTH: 80-8-105, MCA
IMP: 80-8-306, MCA
REASON: The proposed rule updates the Code of Federal Regulations (CFR) reference adopted for worker protection. The department no longer maintains copies of CFR for distribution to the public. Readers may obtain access to CFR directly through EPA or by accessing the CFR online. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
ECONOMIC IMPACT: There is no economic impact associated with this rule change.
4.10.1102 GENERAL SPILL CLEANUP, REPORTING, AND CONTAINMENT REQUIREMENTS (1) All persons shall must contain, confine, and clean up spills of pesticides or pesticide mixtures.
(a) An immediate response to pesticide spills should be undertaken according to follow local emergency operations plans; and responsible persons can, where appropriate, contact the local emergency operations jurisdiction or the state 24-hour number for dDisaster and eEmergency sServices at (406)444-6911 324-4777.
(2) All persons shall must report to the department within 48 hours spills occurring as a result of their use of pesticides or spills of pesticides in facilities or from equipment under the control of that person.
(a) spills confined within secondary containment are exempt from the reporting requirement.
(b) spills of pesticides not exceeding an aggregate amount of 5 U.S. gallons or 100 U.S. dry pounds are exempt from reporting. The aggregate amount includes formulated product, diluent and other additives.
(c) the reporting requirements include, but are not limited to the following information:
(i) the specific location of the pesticide spill, including legal description, landmark references or address sufficient to allow. The location shall be described in terms that are adequate for the department or emergency responders to locate the spill;
(ii) the manufacturer's name and complete trade name of the product or products spilled;
(iii) the amount of pesticide spilled; and
(iv) the name, address and telephone number of the person reporting the spill or the person who is the primary contact.
(3) All persons must place Aall pesticides or contaminated material recovered from a spill shall be placed in containers.
(a) the container(s) must have the following information on a label attached to the container:
(i) date of the recovered material was recovered placement into the container(s) occurred;
(ii) the active ingredient(s), trade name, and formulation;
(iii) eEnvironmental pProtection aAgency registration number for each product;
(iv) signal word; and
(v) name, address and telephone number of the responsible person.
(b) contained materials must be stored, recycled, used or disposed of in accordance with label instructions, rinsing and disposing of pesticide containers as per ARM 4.10.801, and all state and federal disposal regulations.
(4) All persons not subject to ARM 4.10.1103 through 4.10.1109, constructing a mixing and loading or containment facility may follow the bulk pesticide containment rules or the guidelines in the publication "Designing Facilities for Pesticide and Fertilizer," David W. Kammel, MidWest Service, or similar construction guidelines.
(54) Persons using water to mix or load pesticides or to clean or rinse pesticide equipment or containers shall must use a backflow prevention device or procedures, such as an air gap or check valve, to prevent contamination of all water sources. Any person using a public water supply must comply with ARM 17.38.301 and 17.38.305.
(65) Any person that causes pesticide contamination of soil or water through faulty, careless or negligent mixing, loading, transferring, or storage of pesticides may be required by the department to construct containment for the control of pesticide spills. Implementation of this provision does not preclude the department from initiating other remedial or enforcement actions authorized by Title 80, chapter 8, MCA.
(76) Persons, whether licensed or not, who use or sell pesticides are responsible for remediating spills caused during their use or sale of pesticides or caused by persons under their supervision or employment.
(87) The department encourages all persons mixing, loading or transferring pesticides, and using or cleaning pesticide application equipment to have an emergency spill response plan as set forth in ARM 4.10.1108.
(98) Upon the written request by a person, the Montana department of agriculture may approve a deviation from this rule if the deviation maintains the intent of the rule. This request shall must describe the proposed deviation and reason for the deviation.
IMP: 80-8-105, MCA
AUTH: 80-8-105, MCA
REASON: The proposed rule updates the contact information for Disaster Emergency Services and eliminates outdated reference for containment guidelines. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
ECONOMIC IMPACT: There is no economic impact associated with this rule change.
4.10.1103 GENERAL REQUIREMENTS AT PERMANENT STORAGE FACILITIES (1) Any person constructing or operating a new permanent storage facility (PSF) or making an addition to an existing PSF must comply with ARM 4.10.1101 through 4.10.1109.
(2) A person who operates a PSF prior to April 30, 2010, shall, within two years, bring their facility into compliance with ARM 4.10.1101 through 4.10.1109.
(32) Mobile containers such as railcars or tank trucks used to transfer pesticide to or from a PSF must use catch basins that may be temporary and portable, to recover spills from connections.
(43) Persons constructing PSFs must provide Pprotection against vandalism or unauthorized access shall be provided for at a PSF. and must close, lock, or otherwise secure primary containment Vvalves on primary containment shall be closed, locked or otherwise secured when not in use.
(54) Floor drains are not permitted in facilities Facilities designed to contain spills of pesticide and pesticide mixtures must not contain floor drains unless:
(a) the entire system provides complete and reasonable access for routine inspections is provided for the entire system.
(b) construction of all parts of the drain and its systems are constructed occurs above the normal ground plane of the immediate surrounding area.
(c) the floor drain shall be serves for recovery purposes only.
(d) sealing of noncompliant, existing secondary containment discharge outlets, valves, and gravity drains on existing secondary containment that do not comply with this rule shall be sealed occurred upon original adoption of these rules.
IMP: 80-8-105, MCA
AUTH: 80-8-105, MCA
REASON: Persons operating a permanent storage facility (PSF) prior to April 30, 2010 had two years to come into compliance with regulations. The department proposes eliminating the outdated compliance requirement. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
ECONOMIC IMPACT: There is no economic impact associated with this rule change.
4.10.1104 PRIMARY CONTAINMENT STANDARDS FOR BULK PESTICIDES (1) Formulated bulk pesticides in undivided quantities of more than 500 U.S. gallons or 4,500 pounds, stored for more than 14 consecutive days, shall must be in primary containment meeting the following requirements:
(a) primary containment and appurtenances shall must be constructed, installed, and maintained to prevent a spill of pesticide.
(b) primary containment and appurtenances shall must be of materials which are resistant to corrosion, puncture, and cracking.
(c) materials used in the construction or repair of primary containment and appurtenances may not be of a type which must not react chemically or electrolytically with stored pesticides in a way which may weaken the storage container or appurtenances, or create a risk of discharge.
(d) materials used for valves, fittings, and repairs shall must be compatible with the materials used in the primary containment.
(e) primary containment and appurtenances shall must handle all operation stresses, taking into account static head, pressure buildup from pumps and compressors, and any other mechanical stresses to which the primary containment and appurtenances may be subject in the foreseeable course of operations.
(f) every primary containment connection, except a safety relief valve and conservation vent connection, shall must be equipped with a manual shut-off valve.
(g) adequately supported appurtenances shall be adequately supported to that prevent sagging and possible breakage because of gravity and other forces encountered in the ordinary course of operation.
(h) protection of primary containment and appurtenances shall be protected against reasonably foreseeable risks of damage by moving vehicles or objects.
(i) primary containment, not in-service for longer than two years shall be requires thoroughly cleaned cleaning; securing of with all hatches, secured and all valves or connections secured. Vents shall be functional. valves, and connections; and vent functionality maintenance. Before placing back in service, the primary containment must pass A an integrity test shall be performed before primary containment can be placed back in service.
(j) anchored, secured, or elevated primary containment shall be anchored or secured or elevated to prevent instability or flotation as a result of liquid accumulations within the secondary containment.
(k) primary containment may not be filled beyond contain quantities that exceed the designed capacity for which it is designed, taking into account the density of the liquid being stored and thermal expansion during storage.
(l) primary containment retaining liquid shall be equipped with requires a liquid level gauging device capable of readily and safely determining by which the level of liquid in the storage container can be readily and safely determined. A gauging device is not required if the liquid in the container can be measured safely by other means. Security of Tthe gauging device shall be secured to that protects against breakage or vandalism which may result resulting in a discharge is required. External sight gauges must be equipped with have an automatic shut-off valve.
(m) primary containment used for liquid pesticide shall be equipped with requires a conservation vent which equipment that opens and closes within the designed pressure limits of the container.
(n) Aall primary containment shall be labeled in accordance with the labeling requirements set forth in the Code of Federal Regulations Title 40, parts 152 and 156 (July 1, 1996), which are hereby incorporated by reference. Copies of 40 CFR, parts 152 and 156 are available upon request to the Montana Department of Agriculture, P.O. Box 200201, Helena, MT 59620-0201. Attach a complete and legible The registered product label shall be attached to primary containment in a prominent location. The label shall be complete and legible.
IMP: 80-8-105, MCA
AUTH: 80-8-105, MCA
REASON: The proposed amendment corrects reference to Code of Federal Regulations (CFR). The most up to date version of CFR is available online and the department does not have publicly available paper copies of CFR. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
ECONOMIC IMPACT: There is no economic impact associated with this rule change.
4.10.1201 GENERAL (1) The department hereby establishes rules regarding the registration and restricted use of 1080 lLivestock pProtection cCollars [hereafter referred to as (collar(s)] to control coyotes (Canis latrans) that depredate sheep and goats livestock.
(2) Registrants of the collar, dealers selling the collar, and applicators using the collar, shall be are subject to future labeling restrictions and requirements as may be prescribed from time to time by the agency and/or the department.
IMP: 80-8-105, MCA
AUTH: 80-8-105, MCA
REASON: The proposed rule provides updated language. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
ECONOMIC IMPACT: There is no economic impact associated with this rule change.
4.10.1204 APPLICATOR CLASSIFICATIONS AND REQUIREMENTS
(1) Individuals who desire to use 1080 collars shall have to be qualified must meet certification requirements and become certified as either a certified-licensed commercial or government applicator or a permitted farm applicator. All individuals desiring to become certified shall be required to certification must attend a training course sponsored or approved by the department and pass an examination.
(2) The training course shall must include, but is not limited to:
(a) Ttraining in the safe handling and attachment of collars.
(b) Ttraining in disposal of punctured or leaking collars, contaminated animal remains, contaminated vegetation and soil, and contaminated clothing.
(c) Iinstructions for practical treatment of 1080 poisoning in humans and domestic animals.
(d) Iinstructions on record keeping.
(e) Ffamiliarization with Montana pesticide laws and rules.
(f) Ffamiliarization with collar labeling.
(3) Individuals desiring to become certified shall be required to must pass a written and practical examination based on materials and training provided by the department. Applicants for a certified-license must pass the examination with a minimum score of eighty percent (80%), and applicants for a farm applicator special use permit must pass with a minimum score of seventy percent (70%). Applicants failing the examination the first time shall not be allowed to may retake the examination for seven (7) days after notification. Applicants failing the examination a second time may retake the examination fifteen (15) days after notification by certified mail. Applicants failing the examination a third time shall not be allowed to may not retake the examination until the next licensing period beginning January 1 of the next year and shall must attend another approved training course. Applicants may retake the Eexaminations may be retaken at any reasonable time after the time limitations expressed for the first and second examinations at the department's Helena office, or the applicant may make arrangements for examination or reexamination at other locations in the state at the convenience and approval of the department.
(4) Applicators maintaining their license for four consecutive licensing periods shall be required to must requalify for licensing prior to every fifth licensing period. Applicator requalification shall be accomplished by recertification means passing an examination or by attending an acceptable applicator training courses approved by the department. An applicator requalifying for licensing by attending a pesticide training course shall be required to have the government agency sponsor of the training course submit to the department a written verification of the applicator's attendance and an agenda of topics and speakers Government agency sponsors must submit written applicator attendance verification along with the agenda of topics and speakers before an applicator receives recertification training credit. The standards for requalification shall recertification must be the same as those required for initial certification. The department retains the right to approve or disapprove such training courses relative to meeting the qualification for relicensing. The department may also require applicators to pass an examination and/or attend training during any licensing period on new major pesticide technology which applies to the applicator's classification.
(5) All The department will certify individuals who have that attended a training course and having passed the written examination on the use of the collars, will be certified under one of the following classifications:
(a) certified-licensed government applicator - regulatory pest control-predator - livestock protection collar;
(b) certified-licensed commercial applicator - agricultural pest control - vertebrate - livestock protection collar;
(c) permitted or certified farm applicator-livestock protection collar.
(6) Applicants desiring certification for use of collars and individuals certified to use the collars shall have to must meet and comply with other applicable licensing requirements as established by departmental rules.
(7) Livestock pProtection cCollar applicators shall must have in their possession the "Technical Bulletin for the Livestock Protection cCollar" and must use collars in accordance with Section 3 (Use Restrictions) and Section 4 (Supervision, Inspection of 1080 Livestock Protection Collars). The "Technical Bulletin for the Livestock Protection Collar" by the Montana department of agriculture and Montana department of livestock effective as of February 23, 1996, contains containing the use restrictions that applicators must be followed during application of the livestock protection collars and is available from the Montana Department of Agriculture, Agricultural Sciences Division, P.O. Box 200201, Helena, MT 59620-0201 (406) 444-2944 or the Montana Department of Livestock, P.O. Box 202001, Helena, MT 59620-2001 (406) 444-2023 [email protected] or 444-5400.
IMP: 80-8-105, MCA
AUTH: 80-8-105, MCA
REASON: To ensure that 1080 collars are safely and correctly used, a practical examination is included as a requirement. The change reflects the current department practice used for this category. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
ECONOMIC IMPACT: There is no economic impact associated with this rule change.
4.10.1803 STANDARDS FOR WASTE PESTICIDE DISPOSAL PROGRAM OPERATION (1) The waste pesticide disposal program may accept:
(a) acceptable pesticides;
(b) non-plastic recyclable pesticide containers; such as containers made of recyclable materials like metal, fiberboard, or other similar material; and
(c) exchangeable pesticides.
(2) The disposal program shall does not accept:
(a) nonpesticide materials; or
(b) unacceptable pesticides.
(3) Contractors conducting the disposal program must meet qualifications that include but are not limited to the following items:
(a) registered as a hazardous waste generator with the Montana dDepartment of eEnvironmental Quality (DEQ) and possess a hazardous waste identification number issued by the United States eEnvironmental pProtection aAgency (EPA). DEQ registration and an EPA hazardous waste identification number shall not be is not required for a contractor involved solely with recyclable pesticide containers and exchangeable pesticides;
(b) possess or subcontract only with transporters that possess all necessary federal and state permits, licenses and registrations required for the transportation of hazardous wastes; and
(c) certify that employees conducting the disposal program meet occupational safety and health administration safety and training requirements in the cCode of fFederal rRegulations (29 CFR 1910.120).
(4) The department may issue rRequest for bid pProposals (RFPs) and enter into written contracts with contractors to conduct the operational aspects of the disposal program. The department may require that entities responding to the RFP provide specific information on methods and procedures that the contractors will use in conducting a disposal program. This information provided by the contractor may include but is not limited to:
(a) and (b) remain the same.
(c) provisions for development of site specific health and safety plan(s) for the chosen collection site(s);
(d) through (f) remain the same.
(g) attendance at organizational meeting(s) prior to collection day(s); and
(h) provisions for written documentation of collection activities provided to the department within established time schedules which may include:
(i) an itemized list of pesticide products by trade/generic name and amounts collected;
(ii) shipping manifests.
(5) The department shall must establish criteria for awarding the disposal program contract(s). Selection criteria shall must include but not be limited to:
(a) ability to perform service;
(b) related experience or similar waste disposal projects;
(c) references;
(d) federal Resource Conservation and Recovery Act (RCRA) compliance record;
(e) clarity and completeness of bid proposal; and
(f) cost.
IMP: 80-8-105, MCA
AUTH: 80-8-111, 80-8-112, MCA
REASON: The department would like to create separate rule sections for waste disposal, pesticide container recycling, and exchangeable pesticides. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana requirements.
ECONOMIC IMPACT: There is no economic impact associated with this rule change.
4.10.1804 DISPOSAL PROGRAM OPERATION (1) The department or its designated agent may conduct outreach and educational activities to inform the public about the functions of the disposal program and may conduct these activities in cooperation with the Montana sState uUniversity extension service, local governments, the contractor(s), and others.
(2) remains the same.
(3) The department selects Ccollection site(s) shall be selected by in consultation with the contractor.
(4) The department in consultation with the contractor will may establish minimum criteria for a site to qualify as a collection site.
(5) The department establishes the following procedures for disposal of acceptable pesticides.
(a) Persons intending to participate in the disposal program must make application to the department or the department designee on forms provided by the department. Information provided on the form must include but is not limited to:
(i) brand name of the pesticide if present on label or known;
(ii) active ingredient of the pesticide if present on label or known;
(iii) EPA registration number or the United States dDepartment of aAgriculture (USDA) registration number, if present on the label or known;
(iv) quantity of each pesticide;
(v) container size, composition, condition; and
(vi) applicant's name, address, and telephone number.
(b) Persons who submit applications to the program must receive written approval from the department or the department designee to participate in the program.
(c) The department will provide the participant with a list of pesticides for disposal Pprior to the collection day,. the department shall provide the participant with a form listing the acceptable pesticides approved for disposal. This form will serve as a bill of lading and must be in the possession of the participant during transport of the acceptable pesticides to the collection site. This form will also serves to transfer ownership of the pesticide(s) from the participant to the contractor by a pesticide product release statement on the form.
(d) Participants in the disposal program must transport acceptable pesticide products to the collection site according to the Montana Pesticides Act and United States dDepartment of tTransportation regulations.
(e) A participant may assign a designee to transport the participant's acceptable pesticides to the collection site only if the designee is approved by the department during preregistration.
(f) Ownership of acceptable pesticides approved for disposal will be transferred transfers from the participant to the contractor at the collection site.
(6) The department establishes the following procedures for recycling disposal of pesticide containers which cannot be recycled.
(a) The waste disposal program accepts pesticide containers made of metal, fiberboard, or similar materials but not plastic pesticide containers suitable for recycling. Persons intending to participate in the disposal program for the purpose of recycling disposing of pesticide containers not acceptable for recycling must make application to the department on forms provided by the department. Information provided on the form must include but may not be limited to:
(i) brand name of the pesticide if present on label or known;
(ii) active ingredient of the pesticide if present on label or known;
(iii) EPA registration number or United States dDepartment of aAgriculture registration number, if present on the label or known;
(iv) number and size of each pesticide container and quantity to be disposed of;
(v) container's composition;
(vi) applicant's name, address and telephone number.; and
(vii) other information deemed necessary by the department or disposal contractor.
(7) The following procedures apply to pesticide containers recycled in the waste pesticide program:
(ba) Rinsing of Rrecyclable pesticide containers must be rinsed according to label directions as addressed in the code of federal regulations (40 CFR 156.10) is required.
(cb) The contractor department or its designee shall inspects each container and rejects containers with visible residue. The contractor must not accept any container that in the judgement of the contractor has any visible residue.
(d) A form completed by the department following review of the participant's application will list containers approved for recycling under the disposal program. A copy of this form will be returned to the participant and must be in the participant's possession during transport of the containers to the collection site and must be provided to the contractor at the collection site.
(7) The department establishes the following procedures for the exchange of exchangeable pesticides:
(a) a pesticide may be exchanged or transferred from one person to another for the purpose of using the pesticide according to label directions. The pesticide offered for exchange must be:
(i) registered or meet provisions of 80-8-201(9)(a) or (b), MCA; and
(ii) in the original, labeled, unopened sealed container.
(b) owners of exchangeable pesticides must apply to the department or department designee and provide information on a department form according to ARM 4.10.1804(5)(a);
(c) persons wanting to receive exchangeable pesticides must provide their name, address, telephone number and pesticides wanted to the department. Persons wanting pesticides classified as restricted use must be licensed to use restricted use pesticides by the department;
(d) the department or department designee will match donors to users;
(e) transfer of ownership of exchangeable pesticides may occur during scheduled pesticide disposal collections or through other arrangements approved by the department.
(f) the department may require the pesticide offered for exchange to be analyzed for label claim.
AUTH: 80-8-105, MCA
IMP: 80-8-111, 80-8-112, MCA
REASON: The proposed change organizes the waste pesticide program rule for clarity and updates processes and procedures used in the program. The department proposes a distinct section of rule related to exchangeable pesticides later in these proposed rules. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
ECONOMIC IMPACT: There is no economic impact associated with this rule change.
4.10.1806 FEES (1) Participants in the disposal program may be required to pay a fee commensurate with department program costs. The fee will be set by the director annually by June 30, and will not exceed $2 per pound.
(1) There is no fee for the first 200 pounds of waste pesticide disposal. The fee for each pound of waste pesticide disposal over 200 pounds is $0.50.
(2) Participants who submit recyclable pesticide containers to the program may be required to pay a fee commensurate with department program costs for recycling. The fee will be set by the director annually by June 30, and will not exceed 50 cents per pound.
(32) Fees for pesticide disposal and plastic container recycling may exceed the fees set in (1) and (2) for pesticides or containers that have handling and/or disposal requirements resulting in costs exceeding the fees set under (1) and (2). The fee for these pesticides or containers will not exceed the cost of disposal or recycling.
(43) The department may charge Pparticipants who receive an exchangeable pesticide under ARM 4.10.1804(7) shall pay a fee of $5 for each container with a net content of less than or equal to one gallon or ten pounds and $10 for each container with a net content of greater than one gallon or ten pounds. The department, at its discretion, may lower the Ffees charged to participants who receive exchangeable pesticides can be lowered at the discretion of the department if the established fee is higher than the retail value of the exchangeable pesticide.
(54) Applicators licensed by the department shall be given receive a monetary credit if they are a participant participate in the disposal program. The credit must be used The department must apply the credit of applicators participating in the waste pesticide disposal program during the certification period for farm applicators or the licensing period for dealers, commercial applicators, commercial operators, and government applicators in which the fee is paid;
(a) farm applicators shall must receive a one-time credit of $15 during the farm applicator's certification period.
(b) commercial applicators shall must receive an annual credit of $10 for each licensing period that the applicator is licensed. Commercial applicators shall must receive an annual credit of $15 for the first two commercial operators operating under their license for each licensing period the operator is licensed. A The department must give an additional credit of $5 shall be received for each additional commercial operator operating under the applicator's license for each licensing period the operator is licensed;
(c) government agencies shall must receive an annual credit of $10 for each licensing period that each applicator is licensed for the first four licensed applicators. A The deparment must give an additional credit of $10 shall be received for each additional applicator for each licensing period that the applicator is licensed. The total credit must not exceed $280; and
(d) dealers shall must receive an annual credit of $10 for each licensing period that the dealer is licensed.
AUTH: 80-8-105, MCA
IMP: 80-8-111, 80-8-112, MCA
REASON: While the department does facilitate pesticide exchanges, it does so infrequently. At this time, the department does not need to charge for facilitation services. The fee section for waste pesticide disposal and container recycling should list the fee rather than saying "the fee may not exceed" a certain amount. The proposed rule also makes other grammar and formatting changes to comply with Secretary of State (SOS) Administrative Rules of Montana (ARM) requirements.
5. The department proposes to repeal the following rules:
4.10.702 REGISTRATION REQUIREMENTS
AUTH: 80-8-105, MCA
IMP: 80-8-105, MCA
4.10.709 USE OF PESTICIDES ON PEST INFESTATIONS IN ALFALFA SEED CROPS
AUTH: 80-8-105, MCA
IMP: 80-8-105, MCA
4.10.1801 GENERAL
AUTH: 80-8-105, MCA
IMP: 80-8-111, 80-8-112, MCA
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, 302 N. Roberts, P.O. Box 200201, Helena, Montana, 59601; telephone (406) 444-3144; fax (406) 444-5409; or e-mail [email protected], and must be received no later than 5:00 p.m., January 9, 2017.
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, 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 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 2-4-111, MCA, the department has determined that the adoption, amendment, and repeal of the above-referenced rules will not significantly and directly impact small businesses.
/s/ Cort Jensen /s/ Ron de Yong
Cort Jensen Ron de Yong
Rule Reviewer Director
Agriculture
Certified to the Secretary of State November 28, 2016.
