BEFORE THE DEPARTMENT OF AGRICULTURE
OF THE STATE OF MONTANA
| In the matter of the amendment of ARM 4.10.207, 4.10.504, 4.10.1201 through 4.10.1204, and 4.10.1401 through 4.10.1404 pertaining to pesticide records, registrations, and use of 1080 livestock protection collars and M-44 cyanide capsules and devices | ) ) ) ) ) ) )
| NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT |
TO: All Concerned Persons
1. On September 3, 2019, at 10:00 a.m., the Department of Agriculture will hold a public hearing in Room 225 of the Scott Hart Building, at 302 N. Roberts, Helena, Montana, to consider the proposed amendment of the above-stated rules.
2. The Department of Agriculture will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Agriculture no later than 5:00 p.m. on August 30, 2019, to advise us of the nature of the accommodation that you need. Please contact Cort Jensen, Department of Agriculture, P.O. Box 200201, Helena, Montana, 59620-0201; telephone (406) 444-3144; fax (406) 444-5409; or e-mail [email protected].
3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
4.10.207 APPLICATOR RECORDS (1) All certified commercial Commercial, public utility, government, certified noncommercial applicators and their operators shall be required to must keep and maintain operational application records for two years.
(2) For every Every application record performed either by an applicator or operator, the application record must include:
(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:
(i) date;
(ii) time should be specific;
(b) Date of application;
(c) Time of application, including both start and end times;
(iii)(d) location must include Location, including the property owner's or lessee's name and address where the pesticide was applied.;
(i) The specific application site must be expressed by township, range, and section numbers, local identifiable landmarks, or latitude and longitude coordinates.
(ii) Right-of-way applications may be expressed in general terms of identifiable landmarks.
(iii) Nonagricultural applications may specify the site, building, facility, premise, or other identifiable landmarks.
(e) Equipment used;
(c)(i) If the same piece of equipment is used for all applications, then this equipment may be listed only once. If 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.
(d)(f) The pesticide or pesticides used, must include including the company name, trade name, and the EPA registration number or the type of formulation.;
(e)(g) The rate of application, includes the formulation rate and the diluent to be sprayed including the amount of formulated product per volume or weight to be applied on a given unit area.; Examples: 1 pint of product per 5 gallons of water per acre (1 pt/5 gal water); 2 oz. of product per 1 gallon water (2 oz/1 gal water); 1 pint of product per 100 pounds of fertilizer per acre.
(f)(h) The amount of area treated (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.;
(g)(i) The primary pest or pests involved.;
(h)(j) The crop or site or crop treated and stage of crop development, if applicable.; and
(i)(k) Weather conditions such as wind speed, wind direction, and temperature, if applicable. Outdoor applications generally require the recording of some weather conditions.
(2)(3) 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)(4) Applicators shall maintain application records Applicators must record application information on a daily basis not to exceed 24 hours from the time of the last application.
(4)(5) Applicator records shall must be 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)(6) Seed treaters applicators and wood product treaters shall only be required to applicators must maintain records only on the volumes of pesticides applied and the other items set forth in (1) (a), (b) (i) (d) (e) and (f) (2)(a) through (h).
(6)(7) As ruled by opinion of the Montana attorney general (Vol. No. 38, Opinion No. 1), 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. Such determination will be considered under department policy on a case by case basis.
(a) There will, however, be no department Department publication of any information of these records which may disclose operations of selling, production, or use of pesticides by any person is prohibited. 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)(8) Applicators, upon written request of the department, shall must submit to the department an accurate typed or printed record records of each application performed with all restricted pesticides, or those restricted pesticides specifically named by the department. The records shall must be submitted within 14 calendar days of the department's request or as otherwise requested by the department. The request for records may include the records for the complete calendar year. The record must contain all the items listed in (2)(a) through (k), unless not required based on (6). The records shall be submitted on the standard form provided by the department or on forms approved by the department. The record shall contain the following items listed in this rule: (1) (a), (b) (i), (iii), (d), (e), (f), (g), (h) 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, this applicators must be documented document 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: Amendments to ARM 4.10.207 clarify pesticide dealer recordkeeping requirements and update grammar to comply with Secretary of State Administrative Rules of Montana requirements. The department recognizes there is a positive fiscal impact associated with reducing pesticide applicator recordkeeping requirements, but calculating the exact amount is not possible.
4.10.504 DEALER RECORDS (1) All pesticide Pesticide dealers, including pharmacists, veterinarians, and certified pharmacies, shall be required to must maintain shipping, purchase, or invoice records of all pesticide products received. These records must be retained for two years.
(2) Each dealer Dealers, including pharmacists, veterinarians, and certified pharmacies, shall must maintain a complete and accurate typed or printed record of all restricted use pesticides purchased and sold. These records must be retained for two years.
(3) The sales record shall include for each individual sale of a restricted use pesticide of restricted use pesticides must include:
(a) theThe company name on the label;
(b) theThe complete trade name or the EPA registration number;
(c) The EPA registration number;
(c)(d) the The volume sold;
(d)(e) the The license or permit number of the certified applicator or the dealer purchasing the restricted pesticide;
(e)(f) the The date of sale; and
(f)(g) the The name of the applicator, dealer, employee, or family member purchasing the restricted pesticide;.
(4)(a) Each Upon request of the department, pesticide dealers, including pharmacists, veterinarians, and certified pharmacies selling restricted pesticides, upon request of the department, shall submit to the department written must submit records providing the information in ARM 4.10.504(3). The department may also require the sales records of general use pesticides providing the information in ARM 4.10.504(3)(a), (b) and (c).
(a) The records shall must be submitted within 14 calendar days of the request. The records shall be made on the standard forms provided by the department or on forms approved by the department.
(b) If no restricted or general use pesticides are sold during the time period requested by the department, this should be so must be documented to the department.
(5)(a) Dealers shall submit to the department an accurate typed or printed report of their sale of restricted and general use pesticides every five years. The report is due for every fifth calendar year by January 31 of the next year. The report shall include the total volume sold, the trade name, the company name and the EPA registration numbers or the type of formulation of each individual product for the fifth year only beginning in 1990 and thereafter every five years.
(6)(5) Records required of dealers, pharmacists, veterinarians, and certified pharmacies shall be subject to must be available for inspection by authorized employees of the department at during all business hours. Dealers shall be required to submit the records or a true and accurate copy of the records to the department upon written request.
(7)(6) Dealers and retailers selling retail pesticides, as designated in ARM 4.10.502, are exempt from the record keeping requirements of this rule. Records of retail pesticides shall must be maintained as required in ARM 4.10.502(2).
AUTH: 80-8-105, 80-8-211, MCA
IMP: 80-8-105, 80-8-211, MCA
REASON: Amendments to ARM 4.10.504 remove language that previously allowed the acceptance of reports on pesticides used every fifth year, beginning in 1990. Additional grammatical and formatting changes clarify applicator record keeping requirements and comply with the Secretary of State Administrative Rules of Montana requirements. The department recognizes there is a positive fiscal impact associated with reducing pesticide dealer record keeping requirements, but calculating the exact amount is not possible.
4.10.1201 GENERAL (1) The department hereby establishes rules regarding the registration and restricted use of 1080 livestock protection collars [hereafter referred to as collar(s)] to control coyotes (Canis latrans) that depredate sheep and goats.
(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 designated by the agency and/or the department.
AUTH: 80-8-105, MCA
IMP: 80-8-105, MCA
REASON: Amendments to ARM 4.10.1201 update language to comply with Secretary of State Administrative Rules of Montana requirements. No fiscal impact is associated.
4.10.1202 REGISTRATION (1) Registration of the collars for sale or distribution in the state shall be is limited to state and federal registrants of the collar only.
(2) The collars shall not be sold The registrant may not sell, transferred, transported, given give away, or entrusted collars to the care of any person by the registrant any individual who is not authorized, properly licensed or permitted, by the department.
(3) Only the registrant or the collar manufacturer are is authorized to fill collars with 1080 solution. Certified applicators are not authorized to fill collars.
AUTH: 80-8-105, MCA
IMP: 80-8-105, MCA
REASON: Amendments to ARM 4.10.1202 update language to comply with Secretary of State Administrative Rules of Montana requirements. No fiscal impact is associated.
4.10.1203 DEALER SALES (1) The Montana department of livestock and/or a federal agency such as the United States department of agriculture (USDA) The department or a federal agency may become licensed dealers for the sale and distribution of the collars. or in the event one of these agencies chooses not to become a licensed dealer, the department may designate a dealer who meets standards established by the department. The dealer shall be required to must maintain an inventory record of collars purchased, sold, distributed, given away, or entrusted. The record shall include each purchase of the collars by the dealer, each individual's name and must include the date of sale, the applicator's name, address, phone number, license or permit number, EPA registration number, expiration date to whom the dealer sells the collars, and the number of collars. remaining in the dealer's stock.
(2) The dealer shall not may only sell, give away, or entrust any collars to other than trained and certified- properly licensed or permitted pesticide applicators. authorized to use collars.
AUTH: 80-8-105, MCA
IMP: 80-8-105, MCA
REASON: Amendments to ARM 4.10.1203 update language to comply with Secretary of State Administrative Rules of Montana requirements. No fiscal impact is associated.
4.10.1204 APPLICATOR CLASSIFICATION AND REQUIREMENTS
(1) Individuals who desire to use collars shall have to be qualified and certified as either a certified-licensed commercial or government applicator or a permitted farm applicator An individual who uses collars must be a licensed or permitted applicator as required in ARM 4.10.201 or 4.10.401. All individuals desiring to become certified shall be required to must pass a written examination as required in ARM 4.10.203(3)(a) and (4)(a) and attend a training course sponsored or approved by the department. and pass an examination.
(2) The training course shall includes, but is not limited to:
(a) Training in the The safe use, handling, and attachment of collars.;
(b) Training in disposal Disposal of punctured or leaking collars, contaminated animal remains, contaminated vegetation and soil, and contaminated clothing.;
(c) Instructions for practical Practical treatment of 1080 poisoning in humans and domestic animals.;
(d) Instructions on record keeping. Record keeping requirements;
(e) Familiarization with Montana pesticide laws and rules.; and
(f) Familiarization with collar Collar labeling.
(3) Individuals desiring to become certified shall be required to pass a written examination based on materials and training provided by the department. Applicants for a certified-license must pass the examination with a score of eighty percent (80%), and applicants for a special use permit must pass with a score of seventy percent (70%). Applicants failing the examination the first time shall not be allowed to retake the examination for seven (7) days after the 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 retake the examination until the next licensing period beginning January 1 the next year and shall attend another approved training course. Examinations 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)(2) Applicators maintaining their license for four consecutive licensing periods are required to follow ARM 4.10.203(5)(a) and (b), (6), and (7). shall be required to requalify for licensing prior to every fifth licensing period. Applicator requalification shall be accompanied by passing an examination or by attending an acceptable applicator training course 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. The standards for requalification shall 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 individuals who have attended a training course and have 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 meet and comply with other applicable licensing requirements as established by departmental rules.
(7)(3) Applicators using the Livestock protection collar applicators shall have in their possession must have the "Technical Bulletin for the Livestock Protection Collar" in their possession and must use collars in accordance with the Livestock Protection Label. 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 the Montana department of livestock effective as of February 23, 1996, contains the use restrictions that 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 200201, Helena, MT 59620-0201 (406-444-2023).
AUTH: 80-8-105, MCA
IMP: 80-8-105, MCA
REASON: Amendments to ARM 4.10.1204 clarify 1080 livestock collar requirements and update language to comply with Secretary of State Administrative Rules of Montana requirements. No fiscal impact is associated.
4.10.1401 GENERAL (1) The department hereby establishes rules regarding the registration and restricted use of M-44 cyanide capsules in M-44 ejector devices to control certain wild canids: coyotes (Canis latrans); red fox (Vulpes vulpes); gray fox (Urocyon cinereoargenteus); and wild dogs canids as allowed by the product label that depredate livestock and poultry, vector communicable disease, or harm populations of threatened and endangered species.
(2) Registrants of the sodium cyanide capsules and applicators using the capsules in the M-44 devices, sodium cyanide spring-loaded ejector mechanisms, 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.
AUTH: 80-8-105, MCA
IMP: 80-8-105, MCA
REASON: Amendments to ARM 4.10.1401 clarify requirements for M-44 cyanide capsules and ejectors, and update language to comply with Secretary of State Administrative Rules of Montana requirements. No fiscal impact is associated.
4.10.1402 REGISTRATION (1) Registration of the M-44 cyanide capsules for sale or distribution in the state shall be is limited to state and federal registrants of the cyanide capsules only.
(2) Cyanide capsules shall not be sold Registrants must not sell, transferred, transported, given give away, or entrusted M-44 cyanide capsules to the care of any person who is not authorized, any individual who is not properly licensed or permitted, who is not under the supervision, control of, or monitored by the registrant and by the department.
AUTH: 80-8-105, MCA
IMP: 80-8-105, MCA
REASON: Amendments to ARM 4.10.1402 update language to comply with Secretary of State Administrative Rules of Montana requirements. No fiscal impact is associated.
4.10.1403 M-44 CYANIDE CAPSULE DEALER SALES (1) The department or a federal agency may become licensed dealers for the sale and distribution of M-44 cyanide capsules. The Montana department of livestock and/ or a federal agency such as the United Stated department of agriculture (USDA) may become licensed dealers for the sale and distribution of the cyanide capsules or in the event one of these agencies chooses not to become a licensed dealer, the department may designate a dealer who meets standards established by the department. Each dealer shall be required to The dealer must maintain an inventory record of capsules purchased, sold, distributed, given away, or entrusted. The record shall reflect each and every purchase of the capsules by the dealer must include the date of sale, each individual's the applicator's name, address, phone number, and license or permit number, EPA registration number, expiration date, to whom the dealer sells the capsules, and the number of capsules. remaining in the dealer's stock.
(2) Dealers shall not The dealer may only sell, give away, or entrust any M-44 cyanide capsules to other than trained and certified- to properly licensed or permitted pesticide applicators.
(3) Dealer sales and distribution of M-44 cyanide capsules to licensed or permitted applicators shall be limited to fifty (50) capsules per purchase may be limited at the discretion of the department. This limit may be exceeded on a case by case approval by the department if the applicator can document/justify to the department the need to exceed the fifty (50) capsule per purchase limit. Federal or state agencies providing capsules to their employees are not limited by this numeral restriction.
AUTH: 80-8-105, MCA
IMP: 80-8-105, MCA
REASON: Amendments to ARM 4.10.1403 update language to comply with Secretary of State Administrative Rules of Montana requirements. No fiscal impact is associated.
4.10.1404 APPLICATOR CLASSIFICATIONS AND REQUIREMENTS
(1) Individuals who desire to use An individual who uses cyanide capsules in M-44 devices shall have to be qualified and certified as either a certified-licensed must be a licensed or permitted applicator as required in ARM 4.10.201 or 4.10.401. All individuals desiring to become certified shall be required to must pass a written examination as required in ARM 4.10.203(3)(a) and (4)(a) and attend a training course sponsored or approved by the department. The training course shall includes, but is not limited to:
(a) Training in the The safe use and handling of the capsules and the M-44 ejector device.;
(b) Training in the proper use of the antidote kit. The proper use and handling of personal protective equipment;
(c) Instructions and practical demonstration on the proper placement of the M-44 ejector device.;
(d) Familiarization with all applicable federal Federal, state, and local laws and regulations on the cyanide capsules and M-44 devices.;
(e) Information on labels and labeling Labels, biology of wild canids, environmental considerations, disposal, and storage.; and
(f) Instructions on required record keeping. Record keeping requirements.
(2) Individuals desiring to become certified shall be required to pass a written examination. Applicants for a certified-license must pass the examination with a score of eighty percent (80%), and applicants for a special use permit must pass with a score of seventy percent (70%). Farm applicators shall not be allowed to qualify by oral examination. Applicants failing the examination the first time shall not be allowed to retake the examination for fifteen (15) days after notification of failure by certified mail. Applicants failing the examination a second time may retake the examination thirty (30) days after notification by certified mail. Applicants failing examination a third time shall not be allowed to retake examination until the next licensing period beginning January 1 the next year. Examinations 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 my make arrangements for examination or reexamination at other locations in the state at the convenience and approval of the department.
(3)(2) Requalification. Applicators maintaining their license for four consecutive licensing periods shall be are required to follow ARM 4.10.203(5)(a) and (b), (6), and (7). requalify for licensing prior to every fifth licensing period. Applicator requalification shall be accomplished by passing an examination or by attending an acceptable applicator training course approved by the department. An applicator requalifying for licensing by attending a pesticide training course shall be required to have the sponsor of the training course submit to the department a written verification of the applicator's attendance and an agenda of topics and speakers. The department retains the right to approve or disapprove such training courses relative to meeting the qualification for relicensing. The only training courses that will be reviewed for approval will be those attended by the applicator during the last half of the third licensing period or the fourth licensing period of a qualification period. The department may also require applicators to pass an examination during any licensing period on new major pesticide technology which applies to the applicator's classification.
(4) All individuals who have attended a training course and having passed the written examination on the use of the capsules in M-44 devices will be certified in one of the following classifications:
(a) certified-licensed government applicator- -regulatory pest control – predator – sodium cyanide (M-44);
(b) certified-licensed commercial applicator- - agricultural pest control- - vertebrate – sodium cyanide (M-44);
(c) permitted or certified farm applicator – sodium cyanide (M-44).
(5)(3) Certified-licensed Licensed commercial M-44 applicators are exempt from the financial responsibilities required in ARM 4.10.101 through 4.10.103. These applicators shall must comply with all the requirements in ARM 4.10.104 through 4.10.108 on liability.
(6) Applicants desiring certification for use of cyanide capsules and individuals certified to use the capsules shall have to meet and comply with other applicable licensing requirements as established by departmental rules.
(7)(4) Applicators using the M-44 device shall have in their possession must have the Use Restriction Bulletin (Training Manual for M-44 Applicators) on their person and must use the M-44 device in accordance with the M-44 cyanide capsule label. section titled "Use Restrictions for M-44 Cyanide Capsules." The Use Restriction Bulletin (Manual for M-44 Applicators) printed by the Montana department of agriculture February 23, 1996, contains the use restrictions that must be followed during the application of the M-44 device and is available from the Montana Department of Agriculture, Agricultural Sciences Division, P.O. Box 200201, Helena, MT 59620-0201 (406-444-2944).
AUTH: 80-8-105, MCA
IMP: 80-8-105, MCA
REASON: Amendments to ARM 4.10.1404 clarify applicator classifications and requirements for M-44 cyanide capsules. Language is also updated to comply with Secretary of State Administrative Rules of Montana requirements. No fiscal impact is associated.
4. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Cort Jensen, Department of Agriculture, 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., September 9, 2019.
5. Cort Jensen, Department of Agriculture, has been designated to preside over and conduct this hearing.
6. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 4 above or may be made by completing a request form at any rules hearing held by the department.
7. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
8. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will 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 July 30, 2019.
