BEFORE THE DEPARTMENT OF AGRICULTURE

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 4.10.701, 4.10.807, 4.10.1004, and 4.10.1009, and repeal of ARM 4.10.702 and 4.10.709 pertaining to pesticide registration regulations

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT AND REPEAL

 

TO: All Concerned Persons

 

            1. On May 22, 2018, at 10:00 a.m., the Department of Agriculture will hold a public hearing in Room 225 of the Scott Hart Building, at 302 N. Roberts, Helena, Montana, to consider the proposed 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 the Department of Agriculture no later than 5:00 p.m. on May 18, 2018, to advise us of the nature of the accommodation that you need. Please contact Cort Jensen, Department of Agriculture, P.O. Box 200201, Helena, Montana, 59620-0201; telephone (406) 444-3144; fax (406) 444-5409; or e-mail [email protected].

 

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

 

            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 as either restricted or general use pesticides 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.

            (1) The department classifies pesticides registered in Montana as either general use or restricted use. The department, upon receiving an application for state registration of a federally registered pesticide product classified as general or restricted use, must accept and register the pesticide and must use the same federal general or restricted use classification. 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) Restricted use pesticides require application only by or under the direct supervision of a certified applicator. The department may also impose other restrictions, such as the 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 rule.

            (3) 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, available for use to anyone who is not a certified applicator unless they are allowed such use in law or by rule.

 

AUTH: 80-8-105, MCA

IMP: 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.

 

            4.10.807 BURNING OR INCINERATION OF PESTICIDE CONTAINERS 

            (1) Incineration 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 approved by the Montana department of health and environmental sciences.  

            (1) A person must have Montana Department of Environmental Quality (DEQ) approval before burning or incinerating any pesticide containers. 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). They must also comply with any county restrictions on burning.

 

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.

 

            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 a disciplinary an 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 Any appeal from resulting disciplinary of 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.

 

            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) Failure A person’s failure to comply with the worker protection standard and associated labeling requirements is a violation of violates the Montana Pesticides Act and is subject to civil penalties pursuant to 80-8-306, MCA.

            (a) (3) when 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) (4) any 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 it 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 the CFR for distribution to the public. Readers may obtain access to the 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.

 

4. The department proposes to repeal the following rules:

 

4.10.702 REGISTRATION REQUIREMENTS

 

AUTH: 80-8-105, MCA

IMP: 80-8-105, MCA

 

REASON: This rule is no longer necessary.

 

            4.10.709 USE OF PESTICIDES ON PEST INFESTATIONS IN ALFALFA SEED CROPS

 

AUTH: 80-8-105, MCA

IMP: 80-8-105, MCA

 

REASON: This rule is no longer necessary.

 

            5. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Cort Jensen, Department of Agriculture, 302 N. Roberts, P.O. Box 200201, Helena, Montana, 59620-0201; telephone (406) 444-3144; fax (406) 444-5409; or e-mail [email protected], and must be received no later than 5:00 p.m., June 1, 2018.

 

6. Cort Jensen, Department of Agriculture, has been designated to preside over and conduct this hearing.

 

7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department.

 

8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

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

 

 

/s/ Cort Jensen                                            /s/ Ben Thomas                                          

Cort Jensen                                                 Ben Thomas

Rule Reviewer                                             Director

                                                                    Agriculture

           

Certified to the Secretary of State April 17, 2018.