BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the adoption of NEW RULE I and the amendment of ARM 37.111.101, 37.111.102, 37.111.106, 37.111.107, 37.111.110, 37.111.111, 37.111.112, 37.111.113, 37.111.114, 37.111.116, 37.111.117, 37.111.121, 37.111.122, and 37.111.124 pertaining to Public Sleeping Accommodations

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION AND AMENDMENT

 

TO: All Concerned Persons

 

            1. On July 18, 2022, at 11:00 a.m., the Department of Public Health and Human Services will hold a public hearing via remote conferencing to consider the proposed adoption and amendment of the above-stated rules. Interested parties may access the remote conferencing platform in the following ways: 

            (a) Join Zoom Meeting at: https://mt-gov.zoom.us/j/81757790525?pwd=ZW16M29PVEVnWHA0dmxRaFdWUHlNZz09, Meeting ID: 817 5779 0525, Password: 514356; or

            (b) Dial by Telephone: +1 646 558 8656, Meeting ID: 817 5779 0525, Password: 514356. Find your local number: https://mt-gov.zoom.us/u/kZwekHAne.

 

2. The Department of Public Health and Human Services 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 Public Health and Human Services no later than 5:00 p.m. on July 5, 2022, to advise us of the nature of the accommodation that you need. Please contact Kassie Thompson, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-6863; fax (406) 444-9744; or e-mail [email protected].

 

3. The rule as proposed to be adopted provides as follows:

 

NEW RULE I VARIANCE (1)  The local regulatory authority may grant a variance to a requirement of this subchapter if, in the opinion of the local regulatory authority, a health hazard or nuisance will not result from the variance.

            (2) To apply for a variance, the applicant must submit the following information:

            (a)  a statement as to why the applicant is unable to comply with the rule from which the variance is requested;

 (b)  the nature and duration of the variance requested;

            (c) a statement of how the intent of the rule will be met and the reasons why the public health or safety would not be jeopardized if the variance is granted; and

            (d) other information deemed necessary by the local regulatory authority to establish that a health hazard or nuisance will not result from granting the variance.

            (3) The local regulatory authority must retain the variance application and decision in the establishment file as long as the variance is applicable.

 (4)  Prior to issuing a variance, the local regulatory authority will contact, notify, and consult with the department about any similar variances to help ensure uniform application of the law.

 

AUTH: 50-51-103, MCA

IMP: 50-51-103, MCA

 

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

 

37.111.101 DEFINITIONS In addition to those definitions contained in 50-51-102, MCA, the following definitions apply to this subchapter:

            (1) remains the same.

            (2) "Building authority" means the Building Codes Bureau, Montana Department of Labor and Industry Building Codes Program, or a local government building inspector enforcing a local building code enforcement program certified by the Department of Labor and Industry its local authorized agent.

            (3) "Department" means the Department of Public Health and Human Services.

            (4)(3) "Establishment" has the meaning provided for under 50-51-102, MCA. means a facility providing sleeping accommodations to the public, such as a hotel, motel, tourist home, or rooming house, including boarding house, hostel, or vacation rental. For the purpose of this subchapter, establishment does not include a "bed and breakfast," "guest ranch," or "outfitting and guide facility."

            (5) through (8) remain the same but are renumbered (4) through (7).

            (9)(8)  "Local health regulatory authority" means a the local board of health, local health officer, local sanitarian, or sanitarian-in-training other authorized representative of the local government having jurisdiction.

            (10) and (11) remain the same but are renumbered (9) and (10).

            (12)(11)  "Shock disinfection" means an application of a chemical disinfectant to a water supply in order to kill all microorganisms. The chemical disinfectant is usually chlorine at a concentration much stronger than allowed in potable water, or another method approved by the local health regulatory authority.

            (13) remains the same but is renumbered (12).

            (14)(13)  "Wastewater treatment system" means a sewage treatment and disposal system system that receives wastewater for purposes of treatment, storage, or disposal.  The term includes public wastewater conveyance systems, wastewater systems, and all wastewater disposal methods described in Department of Environmental Quality Circulars DEQ-2 and DEQ-4.

 

AUTH: 50-51-103, MCA

IMP: 50-51-103, MCA

 

37.111.102 REVIEW OF PLANS AND SPECIFICATIONS (1) Plans and specifications must be submitted to the local health regulatory authority for review and approval before any new license is issued.

            (2) Local health regulatory authority approval is required before any construction, remodeling, or conversion for a new or existing establishment begins.

            (3) The local health regulatory authority must review the plans and specifications and respond to the applicant within 30 days with a written approval, disapproval, or request for additional information.

            (4) If the establishment was previously licensed by the department and no structural modification will be involved, the local health regulatory authority may waive the requirement for the submission of plans and specifications.

            (5) If the local health regulatory authority is unable to perform the review, plans and specifications must be submitted to the department for review and approval.

            (6) Plans and specifications must include the following:

            (a) and (b) remain the same.

(c) location and detail of laundry facilities, including a description of equipment, and floor and wall finish material;

            (d) through (i) remain the same.

            (j) documentation of approval from DEQ and any applicable local health regulatory authority permit and inspection report, if the establishment will be served by a public wastewater treatment system;

            (k) documentation of approval from the local health regulatory authority, if the establishment will be served by a nonpublic wastewater treatment system;

            (l) and (m) remain the same.

            (n) any other pertinent information requested by the department or local health regulatory authority.

(7) Construction must be in accordance with the plans and specifications as approved. Any changes from the approved plans must be reviewed and approved, in writing, by the department or local health regulatory authority.

            (8) Approval is valid for two years. If construction, remodeling, or conversion is not completed within two years, the department or local health regulatory authority may require plans and specifications to be resubmitted for review.

 

AUTH: 50-51-103, MCA

IMP: 50-51-103, MCA

 

37.111.106 LICENSURE, RENEWAL, AND INSPECTION (1) The local health regulatory authority must make a pre-licensing inspection to determine compliance with the requirements of this subchapter before a license is issued by the department or validated by the local health officer.

            (2) The local health regulatory authority must inspect each licensed establishment within the jurisdiction of the local board of health to determine compliance with this subchapter at least once each calendar year, unless that schedule is modified by signed agreement with the department.

            (3) The local health regulatory authority, after proper identification, must be provided access to the establishment at all reasonable hours for the purpose of conducting inspections and investigations as required under this subchapter.

            (4) through (7) remain the same.

            (8) The local health regulatory authority must retain all documentation of enforcement of this subchapter including, but not limited to, inspection reports, consumer complaints, illness investigations, plans of correction, and enforcement actions for at least five years.

            (9) through (11) remain the same.

 

AUTH: 50-51-103, 50-51-303, MCA

IMP: 50-51-103, 50-51-301, 50-51-303, MCA

 

37.111.107 PHYSICAL REQUIREMENTS (1) remains the same.

            (2) Adequate and convenient janitorial facilities must be provided, including a janitor sink and storage area for equipment and chemicals. A tourist home is not required to have a janitor sink.is not required for:

(a)  tourist homes;

(b)  a private home or condominium that is occupied by an owner or manager and that is rented, leased, or furnished in its entirety or in part to transient guests on a daily or weekly basis; and

(c)  other establishments as approved by the local regulatory authority.

            (3) through (8) remain the same.

            (9) The local health regulatory authority may require licensed pesticide services for persistent pest infestations.

(10) remains the same.

 

AUTH: 50-51-103, MCA

IMP: 50-51-103, MCA

 

37.111.110 WATER SUPPLY SYSTEM GENERAL REQUIREMENTS

(1) and (2) remain the same.

(3) A nonpublic water supply system must meet the requirements of Food and Consumer Safety (FCS) Circular 1-2012 Nonpublic Water Supply Circular FCS 1-2016 when:

(a) and (b) remain the same.

(c) the local health regulatory authority determines compliance with FCS Circular 1-2012 Nonpublic Water Supply Circular FCS 1-2016 is necessary to meet the requirements of this subchapter.

(4) A non-potable water source may be used only if:

(a) through (c) remain the same.

            (5) The department adopts and incorporates by reference FCS Circular 1-2012 Nonpublic Water Supply Circular FCS 1-2016 in effect May 11, 2012 November 5, 2019, which contains potable water construction and maintenance standards for nonpublic water supplies serving licensed establishments. A copy of FCS Circular 1-2012 Nonpublic Water Supply Circular FCS 1-2016 may be obtained from the Department of Public Health and Human Services, Food and Consumer Safety Section, P.O. Box 202951, Helena, Montana 59620-2951. The FCS Circular 1-2012 Nonpublic Water Supply Circular FCS 1-2016 is also available on the department's web site at www.fcss.mt.gov.

 

AUTH: 50-51-103, MCA

IMP: 50-51-103, MCA

 

            37.111.111 NONPUBLIC WATER SUPPLY SAMPLING AND TEST REPORTS (1) An establishment using a nonpublic water supply system must have water samples analyzed for coliform bacteria as follows:

            (a) Coliform sampling must be done before licensing and in at least in two separate different months of each calendar year that the establishment operates.

            (b) The sampling schedule must include collection when the water source is most likely to be contaminated, such as during April through June and September through October, in the high ground water season, or as directed by the local health regulatory authority.

            (c) The local health regulatory authority may require the establishment to sample monthly, in the months the establishment operates, or if an inspection, sampling results, or an event indicates the water source is vulnerable to contamination.

            (d) The local health regulatory authority may return the sampling frequency to two in a calendar year if an on-site sanitary inspection of the water source and other pertinent information shows the water source is no longer vulnerable to contamination.

            (2) through (4) remain the same.

            (5) The establishment must ensure water test results are transmitted to the local health regulatory authority from the laboratory in a format acceptable to the local health regulatory authority within five working days, except as required in ARM 37.111.112(1)(c) and (3)(d).

            (6) The establishment must keep test results available for inspection by the local health regulatory authority for at least five years.

 

AUTH: 50-51-103, MCA

IMP: 50-51-103, MCA

 

37.111.112 NONPUBLIC WATER SUPPLY CONTAMINATED SAMPLES 

(1) If coliform bacteria is detected in a nonpublic water supply routine sample, the establishment must:

            (a) collect at least four more repeat samples within 24 hours of notice at the following system points:

            (i) through (iv) remain the same.

            (v) as directed by the local health regulatory authority.

            (b) remains the same.

            (c) notify the local health regulatory authority within 48 hours of receiving each test results.

            (2) If coliform is detected in a repeat sample, the establishment must:

            (a) remains the same.

 (b) notify customers and staff by placing an advisory sign approved by the local health regulatory authority at each point of use, or as directed by the local health regulatory authority.

            (3) If fecal coliform or E. coli is detected in a routine sample or repeat sample, the establishment must:

            (a) through (c) remain the same.

 (d) notify the local health regulatory authority within 24 hours of receiving test results.

            (4) If an establishment fails to take the four repeat samples or the five routine samples, following the detection of coliform, or the laboratory fails to test for fecal coliform or E. coli in coliform positive samples, the establishment must follow corrective actions as specified in (3).

 

AUTH: 50-51-103, MCA

IMP: 50-51-103, MCA

 

            37.111.113 WATER SUPPLY CORRECTIVE ACTIONS (1) An establishment must take appropriate corrective action, which may include shock disinfection, replacement, or repair of the water supply system, within a period specified by the local health regulatory authority when:

            (a) and (b) remain the same.

            (c) the local health regulatory authority reports to an establishment that the establishment's water supply system is vulnerable to contamination based on a site visit;

            (d) through (2) remain the same.

 

AUTH: 50-51-103, MCA

IMP: 50-51-103, MCA

 

            37.111.114 WATER SUPPLY RESTRICTED-USE ORDER (1) The local health regulatory authority shall issue a restricted-use order to an establishment when:

            (a) through (e) remain the same.

            (f) a confirmed disease outbreak is associated to with the water source by investigation.

            (2) An establishment that is subject to a restricted-use order must provide and use a temporary source of potable water as described in (3) for customer guest and staff drinking, food and drink preparation and service, ice, dishwashing, food contact surface cleaning, and hand washing, or discontinue operations.

            (3) With approval from the local health regulatory authority, an establishment may provide potable water on a temporary basis using one or more of the following:

            (a) through (c) remain the same.

            (d) if the water is fecal or E. coli contaminated, water that has been boiled for at least one minute, and stored and served from a clean, sanitized, and covered container; or

            (e) other source approved by the local health regulatory authority.

            (4) If the local health regulatory authority determines that boiling water will not provide adequate potable water, it may require an establishment to use another approved method for supplying water.

            (5) An establishment subject to a restricted-use order must notify customers guests and staff of the restricted-use order by placing a sign at each point of use, or as otherwise directed by the local health regulatory authority.

(6) remains the same.

            (7) An establishment subject to a restricted-use order may wash, rinse, and sanitize dishes, utensils, and equipment using the affected water system if using an approved chemical disinfectant or a commercial dish machine that reaches 180°F (82°C) in the final rinse, or as directed by the local health regulatory authority.

            (8) A restricted-use order may be removed by the local health regulatory authority after:

            (a) and (b) remain the same.

            (c) the establishment flushes, cleans, and sanitizes food and beverage equipment connected to the water supply, such as, but not limited to, post-mix beverage machines, spray misters, coffee makers, tea urns, ice machines, glass washers, and dishwashers in accordance with manufacturer's instructions.

 

AUTH: 50-51-103, MCA

IMP: 50-51-103, MCA

 

            37.111.116 WASTEWATER TREATMENT SYSTEM (1) through (4) remain the same.

            (5) Extension, alteration, replacement, or repair of any wastewater treatment system must be done in accordance with all applicable state and local regulations.

 

AUTH: 50-51-103, MCA

IMP: 50-51-103, MCA

 

            37.111.117 SOLID WASTE (1) remains the same.

            (2) Solid waste must be removed from the premises at least weekly to a licensed solid waste disposal facility or at another frequency approved by the local health regulatory authority.

            (3) through (5) remain the same.

 

AUTH: 50-51-103, MCA

IMP: 50-51-103, MCA

 

            37.111.121 LAUNDRY FACILITIES (1) through (3) remain the same.

            (4) If the handsink hand sink is used for soaking laundry, it must be accessible for handwashing when needed.

 

AUTH: 50-51-103, MCA

IMP: 50-51-103, MCA

 

            37.111.122 GUEST ROOM CLEANING AND MAINTENANCE (1) through (8) remain the same.

            (9) A designated janitor sink must be used for washing and rinsing of mops, brooms, brushes, and other cleaning devices. Tourist homes and vacation rentals may use an alternative as approved by the local health regulatory authority.

            (10) through (16) remain the same.

 

AUTH: 50-51-103, MCA

IMP: 50-51-103, MCA

 

            37.111.124 FOOD SERVICE REQUIREMENTS (1) Where a food service is operated as an integral part of an establishment, compliance with ARM Title 37, chapter 110, subchapter 2, rules for food service establishments is required.

(a) If the food service is available only to overnight registered guests of the establishment, licensure as a food service establishment is not required. An establishment preparing or serving food that meets the definition of a "retail food establishment" under 50-50-102, MCA, must obtain a separate retail food license. An establishment licensed as a public accommodation is exempt from the requirement to obtain a retail food license if it serves food only to registered guests and day visitors pursuant to 50-50-102(21)(c)(xii), MCA.

 

AUTH: 50-51-103, MCA

IMP: 50-51-103, MCA

 

            5. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (department) is proposing rule changes to ARM Title 37, chapter 111, subchapter 1, related to public sleeping accommodations. These rules govern licensing and operation of hotels, motels, tourist homes, rooming houses, and boarding houses.

 

The department is proposing revisions to the rules to update terminology and revise definitions for consistency with rule changes being proposed to trailer court, campground, youth camp, and work camp rules in MAR Notice No. 37-975. The proposed revisions are necessary to ensure consistency between the two sets of rules and to improve regulatory clarity.

 

The department is also proposing rule revisions designed to reduce regulatory burdens for public sleeping accommodation establishments. New Rule I is being proposed to establish a variance process and to set forth criteria for approval of variances in a manner that continues to ensure public health and safety. The department is also proposing to revise ARM 37.111.107 in response to stakeholder feedback indicating the rule's requirement for maintenance of a janitor sink poses a significant burden to smaller public sleeping accommodation establishments. The proposed rule amendment exempts private residences occupied by an owner or manager that provide public sleeping accommodations on a daily or weekly basis from the requirement to maintain a janitor sink.

 

Fiscal Impact

 

There is no fiscal impact anticipated due to this rulemaking.

 

The proposed rule changes are intended to be effective upon the day after the date of publication of the adoption notice.

 

            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: Kassie Thompson, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail [email protected], and must be received no later than 5:00 p.m., July 22, 2022.

 

7. The Office of Legal Affairs, Department of Public Health and Human Services, 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. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

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

 

 

/s/ Robert Lishman                                      /s/ Adam Meier                                

Robert Lishman                                           Adam Meier, Director

Rule Reviewer                                             Public Health and Human Services

 

 

Certified to the Secretary of State June 14, 2022.