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| Montana Administrative Register Notice 24-171-31 | No. 13 07/14/2011 | |
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BEFORE THE BOARD OF OUTFITTERS DEPARTMENT OF LABOR AND INDUSTRY STATE OF
TO: All Concerned Persons 1. On August 8, 2011, at 10:00 a.m., a public hearing will be held in room B-07, 2. The Department of Labor and Industry (department) will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact the Board of Outfitters (board) no later than 5:00 p.m., on August 3, 2011, to advise us of the nature of the accommodation that you need. Please contact Debbie Tomaskie, Board of Outfitters, 301 South Park Avenue, P.O. Box 200513, Helena, Montana 59620-0513; telephone (406) 841-2373; Montana Relay 1 (800) 253-4091; TDD (406) 444-2978; facsimile (406) 841-2309; e-mail [email protected]. 3. The rules proposed to be amended provide as follows, stricken matter interlined, new matter underlined:
24.171.401 FEES (1) through (1)(e) remain the same.
(i) through (m) remain the same, but are renumbered (f) through (j). (k) Notwithstanding the foregoing, the following fees will control for the 2012 license year: (i) outfitter annual license 400 (ii) outfitter inactive status 225 (iii) initial and renewal guide license 175 (iv) activating inactive guide license 125 (n) remains the same, but is renumbered (l). AUTH: 37-1-131, 37-1-134, 37-1-319, 37-47-201, 37-47-306, MCA IMP: 37-1-134, 37-1-141, 37-1-319, 37-47-304, 37-47-306, 37-47-307, 37-47-308, 37-47-310, 37-47-316, REASON: The 2011 Montana Legislature enacted Chapter 328, Laws of 2011 (House Bill 458), an act eliminating net client hunter use expansion, revising the board's duties regarding net client hunter use (NCHU), and eliminating certain fees. The chapter number was assigned May 6, 2011, and the bill goes into effect October 1, 2011. The bill will eliminate the annual hunting camp fee and the fees associated with NCHU expansion requests. This board determined it is reasonably necessary to amend this rule and delete the NCHU expansion fees to align with the statutory changes. The board determined that it is reasonably necessary to raise certain fees for the 2012 license year to ensure that licensure fees remain commensurate with costs. Due in part to additional information technology costs related to a new database, and also due to costs associated with a statutorily required, labor-intensive NCHU audit, the board is facing a revenue shortfall. It is expected that this temporary fee increase, combined with a number of cost-saving measures the board has already implemented, will be adequate to balance the board's budget. This increase will affect approximately 2,577 licensees and license applicants and result in $64,425 of additional revenue for the 2012 license year. The board is amending the implementation cites to delete reference to a statute repealed by HB 458. 24.171.408 OUTFITTER RECORDS (1) Outfitters shall maintain current, true, complete, and accurate records at all times, submit the records to the board with application to renew (2) remains the same. (a) names and addresses of clients, except that fishing outfitters may omit client addresses; (b) through (3) remain the same. AUTH: 37-1-131, 37-47-201, MCA IMP: 37-47-301, MCA REASON: Licensed outfitters are required to gather only the information necessary to identify clients served. Identifying information associated with individuals' conservation numbers is kept with the Department of Fish, Wildlife, and Parks (FWP). The board is amending this rule to no longer require fishing outfitters to gather client address information since it is kept by and available from another department. The board is not amending this requirement for hunting outfitters because fishing outfitters serve a substantially greater number of clients than hunting outfitters, and changing this requirement for hunting outfitters would require input from either the FWP or the Private Lands/Public Wildlife Council, which has not yet been provided. 24.171.412 SAFETY PROVISIONS (1) remains the same. (2) Basic first aid certification must be obtained through a provider or course approved by the board on a case-by-case basis. A list of approved providers and courses shall be maintained on the board web site. An applicant may also meet basic first aid certification if the applicant provides proof of a certification, license, or other credential that is equivalent to or greater than basic first aid certification, approved on a case-by-case basis by the board. The board may also maintain on its web site a list of certifications, licenses, and other credentials that will be routinely accepted as equivalent to or greater than basic first aid. (2) remains the same, but is renumbered (3). AUTH: 37-47-201, MCA IMP: 37-47-201, MCA REASON: The board is amending this rule to address existing confusion and debate concerning how guides, professional guides, and outfitters can satisfy the basic first aid requirement under this rule and ARM 24.171.602. The board concluded that it is best to approve providers, courses, and substitute training on a case-by-case basis, while also maintaining an updated list of approved methods on the board web site. 24.171.512 INACTIVE LICENSE (1) through (3) remain the same. AUTH: 37-1-319, MCA IMP: 37-1-319, MCA REASON: The board is amending this rule to delete (4), because it specifies one particular requirement that is already mandatory under the general language of (3). Also, (4) contains a reference to a statutory provision that no longer exists. 24.171.602 GUIDE OR PROFESSIONAL GUIDE LICENSE (1) and (2) remain the same. (3) Basic first aid certification must be obtained through a provider or course approved by the board on a case-by-case basis. A list of approved providers and courses shall be maintained on the board web site. An applicant may meet basic first aid certification if the applicant provides proof of a certification, license, or other credential that is equivalent to or greater than basic first aid certification, approved on a case-by-case basis by the board. The board may also maintain on its web site a list of certifications, licenses, and other credentials that will be routinely accepted as equivalent to or greater than basic first aid. AUTH: 37-1-131, 37-47-201, MCA IMP: 37-47-101, 37-47-201, 37-47-301, 37-47-303, 37-47-307, 37-47-308, MCA REASON: The board is proposing the addition of (3) for the reasons provided in the statement of reasonable necessity for ARM 24.171.412. The board is deleting (5) to align with the removal of outfitter sponsored licenses in I-161. The board is amending renumbered (4) and (5) to address issues that have arisen involving guide licenses. Although an outfitter may endorse a guide for licensure, the guide is able to provide services to many outfitters in a season. A license is the property of the licensee and not that of the endorsing outfitter. The board is aware that some outfitters have withheld a guide's license to prevent the guide from providing services to competing outfitters. Following amendment, the license will be issued directly to the guide, while still requiring that an outfitter signs the license of each guide providing services to that outfitter. 24.171.701 (1) NCHU categories are as follows: (a) Category 1, consisting of all clients served in the pursuit of big game; and (b) Category 2, consisting of all clients served in the pursuit of upland game birds, water fowl, and turkeys. (2) Category 1 NCHU is accounted for and established on the basis of the hunting licenses held by clients served. Category 2 NCHU is accounted for and established on the basis of the individual clients served, regardless of licenses held. For example, a client having a deer/elk/upland game bird combination license requires one Category 1 NCHU of the outfitter, regardless of whether one or both big game species are pursued under that license, and the same client requires one Category 2 NCHU when the upland game bird is pursued. (3) In cases where a federal agency limits an outfitter's use of federal lands by some means other than NCHU, an outfitter is not required to have NCHU to perform services on those lands and may not use clients served on those lands in order to establish NCHU. (4) An outfitter's total authorized NCHU includes both established NCHU and nonestablished NCHU. (5) An outfitter's "client base" is the NCHU that has been established in accordance with this rule. NCHU is established only if one of the following applies to it: (a) Board records show the outfitter was licensed on or before April 28, 2001, and had established the NCHU through use of it on or before December 31, 2004. (b) Board records show the NCHU was obtained through an approved expansion request. However, if the approved expansion was granted to an outfitter newly licensed after April 28, 2001, then it was established only if used by that outfitter within five and a half years after the expansion. (c) Board records show the NCHU was transferred to the outfitter from another licensed outfitter and was used in any license year during the five and a half years following the transfer. An outfitter may elect an early adjustment of NCHU by: (i) submitting a completed form prescribed by the board for the purpose of establishing NCHU prior to the expiration of the five and a half year time period; and (ii) consenting to an adjustment of the client base to reflect the highest number of clients served in any category in any license year, since the date of the transfer. (6) An outfitter transferring NCHU to another outfitter must do so by completing a form prescribed by the board. Only NCHU that has been established in accordance with this rule may be transferred, and a transfer of established NCHU may not occur if the licensee holds any nonestablished NCHU. (7) NCHU adjustments shall occur based on the most clients served during the five and a half years after the board's receipt of a valid form transferring NCHU. (8) The records of the board comprise the official records of NCHU and each purported transfer of NCHU is invalid and void, unless and until the date that the proper and completed form is received by the board office. (9) When NCHU is transferred to a license applicant, the transfer is not valid and the time period for establishing the NCHU does not begin until the date the application is approved. (10) An outfitter who is subject to an adjustment of NCHU under 37-47-316, MCA, that would otherwise occur on or before December 1, 2013, shall have up to and including December 1, 2013, to establish the NCHU. The category definitions under this rule may be applied retroactively for purposes of establishing NCHU. (11) Upon an adjustment of NCHU, all of the outfitter's nonestablished NCHU subject to the adjustment ceases to exist. (12) When the board adjusts an outfitter's NCHU, the board will provide the outfitter notice and the right to a hearing in the manner provided in disciplinary matters.
AUTH: 37-1-131, 37-47-201, MCA IMP: 37-1-131, 37-47-201, 37-47-316, MCA REASON: The board is amending this rule and proposing new rules to address the NCHU adjustment requirement of 37-47-316, MCA, recently clarified in HB 458. The board concluded that a retroactive adjustment of NCHU under the former 37-47-316(5), MCA, would prejudice a great number of the outfitters. The board believes the application of the adjustment requirement has never been clearly or uniformly understood. The board recently initiated an audit of NCHU transfers and concluded that outfitters have not fully appreciated the effect of 37-47-316, MCA, on NCHU transfers. The audit showed that licensed outfitters, who are permitted to freely transfer NCHU under 37-47-202(4)(c), MCA, have routinely failed to use NCHU within five and a half years of each transfer. Without this rule amendment, the failure to use transferred NCHU would require the adjustment and elimination of a significant amount of NCHU affecting approximately 70 percent of all outfitters. In addition, because some unused NCHU has passed through the hands of multiple outfitters, a retroactive adjustment of NCHU to the first outfitter who received it through a transfer would negate every subsequent transfer of that NCHU, multiplying the NCHU adjustments. HB 458 substantially amended 37-47-316, MCA, deleting all references to "newly licensed" outfitters and the distinctions between NCHU established within specified periods of time. What remains is the requirement to adjust NCHU not used within five and a half years of a transfer. The amendments to this rule will extend the time for establishing NCHU, protect transferors of NCHU who transferred NCHU prior to the effective date of the amendments, and provide a process to allow the free transfer of established NCHU, while prohibiting the transfer of nonestablished NCHU. The board notes that following the passage of ballot Initiative 161, outfitters may no longer serve clients under the previous NCHU "Category 1." This rule amendment will also delete outdated sections, align with changes created by I-161, reconcile the rule with the board's intent regarding NCHU application, and ensure adequate records of NCHU. 24.171.2101 RENEWALS (1) and (2) remain the same. (a) the required renewal fee; (b) the annual "hunting client served" fee required under ARM 24.171.401; (b) through (e) remain the same, but are renumbered (c) through (f). (3) An outfitter, guide, or professional guide must submit a completed renewal application with the required fee (4) remains the same. (5) License renewal applications for guides and professional guides shall be made on forms provided by the board and shall be accompanied by the required fee. AUTH: 37-1-131, 37-47-201, MCA IMP: 37-1-104, 37-1-141, 37-47-201, 37-47-302, 37-47-304, 37-47-306, 37-47-307, 37-47-318, MCA REASON: The board has discovered that some licensees have historically refused to pay the annual $2 fee per hunting client required by ARM 24.171.401(1)(e), without wasteful expense by the board. The board is amending this rule to allow the revision of the renewal form to include the outfitter's certification that the fee has already been paid. Renewal of a license when the fee has not been paid may become a disciplinary matter under the board's current statutes and rules. The board is also amending this rule to reconcile with recent rule changes that provide for the renewal of guide and professional guide licenses. Implementation cites are being amended to accurately reflect all statutes implemented through this rule. 4. The proposed new rules provide as follows: NEW RULE I WEB SITE POSTING OF LICENSE DISCIPLINE (1) For purposes of ARM 24.101.404, each first-time violation of the following acts constitutes a failure to file or complete in a timely manner a minor administrative requirement that is in rule or law: (a) lack of first aid card if no client is served during the lapse; (b) an outfitter's failure to ensure that a guide has a first aid card if no client is served during the lapse; (c) failure to display required information on a water vessel; (d) incomplete or faulty log book entries; (e) failure to maintain insurance if no client is served during the lapse; (f) use of a nonsufficient funds check; (g) failure to carry current guide or outfitter license while providing services; (h) failure to carry a current fishing license; and (i) failure to have a current conservation license. (2) No conduct is a failure to file or complete in a timely manner a minor administrative requirement that is in rule or law if the board determines that the conduct constitutes fraud, dishonesty, or a careless or intentional disregard for the rules, statutes, or standards applicable to the licensee. (3) If an applicant is denied a license only because of an incomplete application or because the applicant lacks the required days of verified experience, a first aid card, an ALS number, the proper amount of fees, or other similar item or requirement, then the denial is based solely on the applicant's failure to meet minimum licensure qualifications, and not based on competence to practice issues. (4) No license denial is based solely on the applicant's failure to meet minimum licensure qualifications, and not based on competence to practice issues if the board determines the application involves the applicant's fraud, dishonesty, or a careless or intentional disregard for the rules, statutes, or standards applicable to the applicant. AUTH: 37-1-131, 37-47-201, MCA REASON: Section 37-1-311, MCA, requires the department to report disciplinary actions against licensees by posting certain documents on a publicly available web site, while 37-1-101 requires the department to establish uniform rules for all boards to comply with 37-1-311. ARM 24.101.404, the department rule that implements these statutes, states that final orders based only upon a failure to file or timely complete minor administrative requirements are not disciplinary actions for the purposes of publication and notice on licensee lookup. The board concluded that the department's rule leaves room for interpretation as to what constitutes minor administrative requirements. The board is proposing New Rule I to provide that interpretation as it applies to rules and laws specific to the board's licensees. NEW RULE II SUCCESSORSHIP (1) The decision of whether to approve or conditionally approve a successor designated by the family of a deceased or incapacitated outfitter pursuant to 37-47-310, MCA, lies in the sole discretion of the board. However, the board chairperson may approve or conditionally approve a person designated by the family to outfit in place of the outfitter until the next regularly scheduled board meeting. (2) Prior to approval, a successor must meet all qualifications for licensure aside from the experience and testing requirements. Among other conditions, approval may be granted upon the condition that documentation of certain licensure requirements will be received by the board no later than a specified date. If the documentation of licensure requirements is not received in a timely manner, board staff shall immediately place the license on inactive status until the board is able to reconsider the conditional approval. (3) A successor stands in the shoes of the outfitter for purposes of the board's power to administer and enforce the statutes and rules applicable to outfitters. Notwithstanding any agreement to the contrary, a successor is jointly and severally liable with the estate of the successor for all fines and fees owed in relation to the outfitter license. The successor continues to outfit, subject to the authority of the board, to the same extent as if the successor were the outfitter. (4) A successor must appear before the board on an annual basis to request continuation of the successorship and to report the progress made toward licensure of the successor or sale of the business. In addition to all other powers of the board, the board may terminate a successorship at any time, and in the sole discretion of the board. (5) NCHU allocated to the outfitter may be transferred only by a successor. The successor is authorized to transfer NCHU on behalf of the outfitter. NCHU of the outfitter is not "transferred" to the successor for purposes of 37-47-316, MCA, unless and until the successor becomes licensed. (6) A successor seeking licensure must meet all the qualifications of an outfitter, successfully complete the required examination, and submit to the board all required applications, fees, and other documents and information no later than the date that is three years from the date the successorship was approved. If a successor obtains licensure, the NCHU is transferred to the successor as a newly licensed outfitter. (7) If the successor does not timely meet the foregoing requirements, then the license must be immediately placed on inactive status until one of the following occurs: (a) the board refuses to continue the successorship; (b) the successor qualifies for licensure; or (c) the license terminates or is revoked. (8) In the discretion of the board, and in addition to all other waivers that the successor may qualify for, a successor may request a waiver of up to 50 days of experience for each license function (hunting and fishing) by sufficiently documenting the successor's past experience and involvement with the particular outfitting business that occurred prior to the date the successorship was approved, and the successor may also use experience gained as a successor toward the licensure requirements. (9) The family of the outfitter designates a successor when a written application for successorship, along with all other documents showing compliance with this rule, is received by the board on a form prescribed by the department. The form must be completed by someone who is at least 18 years old. AUTH: 37-1-131, 37-47-201, MCA REASON: The board receives several requests for successorship each year, and there are a number of successors who have continued to operate outfitting businesses beyond the license year, when the successorship became necessary to operate the business. New Rule II is necessary to provide reasonable limitations on and conditions for approval for board-granted successorships under 37-47-310, MCA. It also identifies specific criteria that must be met for a person to operate as a successor to an outfitter, and place a timeline for the person to obtain licensure. New Rule II will incorporate existing board policy into rule, and is needed at this time to provide guidance in determining who may be a successor, and to ensure that individuals performing the functions of a licensed outfitter meet all qualifications required by the board. 5. Concerned persons may present their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to the Board of Outfitters, 6. An electronic copy of this Notice of Public Hearing is available through the department and board's site on the World Wide Web at www.outfitter.mt.gov. The department strives to make the electronic copy of this 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 department strives 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, and that technical difficulties in accessing or posting to the e-mail address do not excuse late submission of comments. 7. The board maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this board. 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 the person wishes to receive notices regarding all board administrative rulemaking proceedings or other administrative proceedings. The request must indicate whether e-mail or standard mail is preferred. Such written request may be sent or delivered to the Board of Outfitters, 8. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted on June 27, 2011, by regular mail. 9. Tyler Moss, attorney, has been designated to preside over and conduct this hearing. BOARD OF OUTFITTERS TIM LINEHAN, CHAIRPERSON /s/ DARCEE L. MOE /s/ KEITH KELLY Darcee L. Moe Keith Kelly, Commissioner Alternate Rule Reviewer DEPARTMENT OF LABOR AND INDUSTRY
Certified to the Secretary of State July 5, 2011
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