Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF AGRICULTURE

OF THE STATE OF MONTANA

In the matter of the adoption of NEW RULE I and repeal of ARM 4.13.1001A pertaining to the Montana State Grain Laboratory fee schedule

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION AND

REPEAL

TO: All Concerned Persons

1. On February 20, 2018, 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 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 February 16, 2018, to advise us of the nature of the accommodation that you need. Please contact 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].

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

NEW RULE I GRAIN FEE SCHEDULE (1) Effective Date: The effective date of this rule is March 30, 2018.

(2) General Provisions: These General provisions applying to all sections of this rule are as follows:

(a) Service Hours: Normal office hours are 8:00 a.m. to 5:00 p.m. Monday through Friday. All other hours and holidays will be considered overtime.

(b) Sampling Hours: Sampling hours are 8:00 a.m. to 5:00 p.m. Monday through Friday. An applicant must place service requests with the inspection office by 10:00 a.m. during regular hours for same day inspection/sampling services. All requests for sampling services to be performed outside of normal business hours must be received by 2:00 p.m. of the preceding business day. Sampling services requested to be performed outside of normal office hours, including holidays, will be charged overtime.

(c) Regular Hourly Rate: The regular hourly rate for travel time and stand-by fee is $40 per hour per individual assessed in half-hour intervals with a minimum of two hours charged.

(d) Overtime and Holiday Hourly Rate: Overtime and holiday hourly rate is $60 per hour per individual assessed in half-hour intervals. A minimum four-hour charge will be assessed except when before or for a continuation of a regular work day, then actual overtime hours will be charged.

(e) Holidays: Holidays are as adopted in 1-1-216, MCA. (e.g., New Year's Day, Martin Luther King Jr. Day, President's Day, Independence Day, Labor Day, Columbus Day, Veteran's Day, Thanksgiving Day, Christmas Day, and State Election Day.)

(f) Mileage and Travel Fees: Mileage, travel time, and travel expenses are as follows:

(i) Mileage Fee: Mileage charges shall be assessed per 2-18-501, MCA for State employees which is equal to the United State Internal Revenue Service (IRS) mileage allotment. Any change to the mileage rate is effective when the IRS changes their standard mileage rate. The mileage charges will be prorated where possible.

(ii) Hourly and Overtime Rate: For each trip requested, the applicant will be charged at the regular hourly rate, except when work is conducted while in overtime status or on holidays. Work conducted while in overtime status or on holidays will be charged at the overtime rate, prorated where possible.

(iii) Travel Expenses: Travel expenses (as defined by Montana Operations Manual Travel Policy with Rates) including but not limited to per diem, lodging, and mileage will be assessed to the applicant in addition to other fees and charges.

(iv) Staffing: Montana State Grain Laboratory will determine the number of personnel to properly provide the service requested. To assure personal safety, Montana State Grain Lab may suspend sampling services due to inclement weather conditions as well as sampling rail cars at night with insufficient lighting, or other potentially hazardous conditions.

(v) Observation: In order to provide official services, Montana State Grain Lab must be physically able to observe elevator personnel sampling and/or sealing a railcar.

(3) Miscellaneous Fees:

(a) Copies of certificates, per certified copy………………………………$2.50

(b) Fax charge, per transmission…………………………………………..$3.00

(4) Postage: Actual postage or delivery service charges will be added to sampling and other fees.

(5) Special Requests: Requests for services not covered by this rule will be performed at the applicable hourly rate stated herein plus mileage and travel time if applicable.

(6) Priority Service: The priority service fee shall be $10 per submitted sample in addition to the fees set forth in this rule. Submitted priority samples shall be done within 48 hours or less, on a first arrival basis. Priority service includes electronic report. Priority service will be suspended if backlog of regular samples exceeds two weeks. If priority service is suspended, all submitted sample fees will be assessed at the appropriate rate.

(7) Payment of Fees and Charges: All department fees and charges for services rendered are due within thirty days of the statement date. Finance charges of $25 per month shall accrue on any balance owed after thirty days of the statement date. If the department does not receive payment within thirty days, services may be withheld until the delinquent account is paid; or cash payment for the subsequent services may be required.

(8) Retests/Reinspections: will cost the same as the original test/inspection.

(9) Export Documentation Request: Processing and handling fee for sample preparation and export documentation………………………………$7.50 per request

(10) United States Grain Standards Act (USGSA) Fees for official services under the United States Grain Standards Act (USGSA) as amended.

(a) Effective Date: The effective date of this rule is March 30, 2018.

(b) General Provisions: General provisions applying to all sections of this rule are as follows:

(c) Official Lot Inspection: Official lot inspection sampling with grade, on bulk, boxcar, hopper car, or truck/trailer, per request, sampling and grade only:

(i) Level One: Level one official sampling service when the State Grain Laboratory furnishes the sampling crew………………………………….$25.00 per unit

(ii) Level Two: Level two official sampling service when the State Grain Laboratory furnishes a licensed sampler to write identification tickets, supervise elevator employees while sampling and seal samples for delivery to the State Grain Laboratory……………………………………………………………………$18.00 per unit

(iii) Sampling Only: Sampling only (does not include grade) on bulk, boxcar, hopper car or truck/trailer, per request, (all grains)……………………..$15.00 per unit

(A) Additional Probes (in addition to original sampling charges)……………………………………………………………………$15.00 per unit

(iv) Stowage Examination: Stowage examination………............$8.00 per unit

(v) Sealing Railcars: (Metal Seals) DT or Probe Railcars per Seal, Additional Labor and hourly charges may apply……………………………………...$1.25 per seal

Supervise Elevator Personnel applying seals (recording seals on certificate)……………………………………………………………………..$4.00 per unit

(vi) The Montana State Grain Laboratory is not responsible for the seals after Montana State Grain Laboratory personnel leave the applicant's property. It is the applicant's responsibility to confirm that all seals have been applied by Montana State Grain Laboratory personnel to their satisfaction. In excess of one hour, the hourly rate applies.

(d) Submitted Sample Inspection: inspection includes DKT (damaged kernels total) identified, FM (foreign material) identified, SHBN (shrunken and broken kernels), and DEF (total defects).

(i) Submitted Canola Samples ……………………………….$16.00 per sample

(ii) Submitted Spring Wheat (includes DHV testing)……….$13.00 per sample

(iii) Submitted (other USGSA sample) ………………………$10.00 per sample

(e) Laboratory Analyses Fee:

(i) Protein Test: Near Infrared Transmittance (NIRT) on wheat, barley, and corn…….………………………………………………………………….$6.00 per sample

(ii) Single Factor Determination: Factor only determination ………….…$7.00

(iii) Additional: Additional statements, factors, or results as requested by the applicant including the absence of particular allergens in visible form ……$3.00 each

(iv) Malting Barley Analysis: Malting barley analysis includes actual percent of plump barley, skinned and broken kernels, and thin barley, per request ……………………………………………………………………………..$5.00 per sample

(v) Vomitoxin: vomitoxin (DON) per quantitative analysis test ……………………………………………………………………………$30.00 per sample

(vi) Aflatoxin: aflatoxin per quantitative analysis test ……..$30.00 per sample

(vii) Composite Sample Preparation (per sample, in composite)………………………………………………………………...$1.25 per sample

(viii) Composite Sample Preparation (per sample, if requested after grade)……………………………………………………………………...$2.75 per sample

(ix) Return shipping and handling post grading (not to exceed $30/month)………………………………………………………………..$3.00 per sample

(f) Official Commercial Services performed under the USGSA:

(i) Official commercial inspection services and fees may be negotiated on a case-by-case basis.

(11) Pulse and Processed Commodity Fee Schedule under the Agricultural Marketing Act (AMA):

(a) Effective Date: The effective date of this rule is March 30, 2018.

(b) General Provisions: General provisions applying to all sections of this rule are as follows, including hourly rate, overtime and holiday rates.

(d) Sampling Fees: Sampling fees for grade or phytosanitary certification:

(i) Bulk Samples: Bulk samples from boxcars, hopper cars, truck/trailers………………………………………………………………….$15.00 per unit

(A) Additional probes (in addition to original sampling charges)................................................................................................$15.00 per unit

(ii) Sealing: Metal Seals

DT or Probe per Seal; Additional Labor and hourly charges may apply…………………………………………………………………………..$1.25 per seal

Supervise elevator personnel applying seals (recording seals on certificate)……………………………………………………………………..$4.00 per unit

The Montana State Grain Laboratory is not responsible for the seals after Montana State Grain Laboratory personnel leave the applicant's property. It is the applicant's responsibility to confirm that all seals have been applied by Montana State Grain Laboratory personnel to their satisfaction.

(iii) Bagged Lots: bagged lots or totes………………………………Hourly Rate

(e) Inspection Fee:

(i) Grade Only: grade only per lot or submitted sample: field run………………………………………………………………………..$24.00 per sample

(ii) Grade Only: grade only per lot or submitted sample: other than field run...................................................................................................$20.00 per sample

(iii) Single Factor Determination: one factor only determination…….......$7.00

(iv) Additional: additional statements, factors, or results as requested by the applicant…………………………………………………………………….$3.00 per factor

(f) Composite Sample Preparation (per sample in composite)………………………………………………………………...$1.25 per sample

(i) Composite Sample Preparation (per sample, if requested after grade)………………………………………………………………..…….$2.75 per sample

(ii) Seed Count per Ounce……………………………………….$5.00 per ounce

(iii) Return shipping and handling post grading (not to exceed $30/month)………………………………………………………………..$3.00 per sample

(g) Laboratory Analysis Fee:

(i) Falling Number Determinations: falling number determination for wheat…………………………………………………………………….$14.00 per sample

(12) Fees for laboratory services not performed under the USGSA or AMA: Commodities inspected under Montana Standards

(a) General Provisions: general provisions applying to all sections of this rule are as follows:

(b) Lot Inspection: Lot inspection sampling with grade for bulk, boxcar, hopper car or truck-trailer, per request, sampling and grade only:

(i) Level One: Sampling service fee when the Montana State Grain Laboratory furnishes the sampling crew……………………………..$25.00 per sample

(ii) Level Two: Sampling service fee when the Montana State Grain Laboratory furnishes a licensed sampler to write identification tickets, supervise elevator employees while sampling, and seal samples for delivery to the Montana State Grain Laboratory…………………………………………………$18.00 per sample

(iii) Lot reinspection based on file sample……………all regular fees assessed

(iv) Sampling Only: sampling only (does not include grade)—bulk, boxcar, hopper car or truck/trailer, per request (all grains)………………….$15.00 per sample

(A) Additional Probes (in addition to original sampling charges)……………………………………………………………………...$15.00 per unit

(B) Sealing: Metal Seals:

DT or Prober per Seal; Additional Labor and Hourly Charges may apply……………………………………………………………………….$1.25 per sample

Supervise Elevator Personnel applying seals (recording seals on certificate)……………………………………………………………………..$4.00 per unit

The Montana State Grain Laboratory is not responsible for the seals after the Montana State Grain Laboratory personnel leave the applicant's property. It is the applicant's responsibility to confirm that all seals have been applied by Montana State Grain Laboratory personnel to their satisfaction.

(v) Stowage Examination: Stowage examination………………..$8.00 per unit

(vi) After First Hour…………………………………………….Hourly rate applies

(c) Submitted Sample Inspection: Submitted sample inspection includes DKT (damaged kernels total) identified, FM (foreign matter) identified, SHBN (shrunken and broken kernels), and DEF (total defects).

(i) Submitted Sample: Submitted Montana specialty crop grades (unless specifically listed) per sample…………………………………………$10.00 per sample

(ii) Non Official Single Factor Determination.…………….........$7.00 per factor

(iii) Additional: Additional statements, factors, or results as requested……………………………………………………………………$3.00 per factor

(d) Submitted Buckwheat Grades:

(i) Processed Buckwheat Sample……………………………$14.00 per sample

(ii) Field Run Buckwheat Sample…………………………….$15.00 per sample

(e) Hulless or Hulless Waxy Barley:

(i) Submitted hulless or hulless waxy barley………………..$14.00 per sample

(f) Laboratory Analysis Fee:

(i) Protein Test: non-official NIRT (e.g., Khorasan)…………$6.00 per sample

(ii) Malting Barley Germination: Malting barley: germination 72-hour blotter……………………………………………………………$10.00 per determination

(iii) Non-Official Falling Number: Falling number determination on commodities other than wheat (e.g. Khorasan)…………….$14.00 per determination

(iv) Vomitoxin: Vomitoxin (DON) per quantitative analysis test………………………………………………………………………$30.00 per sample

(v) Aflatoxin: Aflatoxin per quantitative analysis test……..$30.00 per sample

(vi) Composite Sample Preparation (per sample in composite)……………………………………………………………….$1.25 per sample

(vii) Composite Sample Preparation (per sample, if requested after grade)…………………………………………………………………….$2.75 per sample

(viii) Return shipping and handling post grading (not to exceed $30/month)………………………………………………………………$3.00 per sample

AUTH: 80-4-403, 80-4-721, MCA

IMP: 80-4-721, MCA

REASON: The formatting changes are necessary to create greater consistency between the federal listing of the various fees, the state rules, and the required placards. The changes to the falling numbers and pulse related fees are required to more accurately reflect the time it takes to perform the tests. The late fee is to encourage timely payment. The new fees for return postage and sealing of rail cars reflect the MT State Grain Laboratory's requirement to recoup cost. The formatting change has no economic impact. The lab needs to recover more of its costs to be consistent with federal regulations of a Federal Grain Inspection Service (FGIS) facility and to deal with diminishing check-off dollar support.

4. The department proposes to repeal the following rule:

4.13.1001A GRAIN FEE SCHEDULE

AUTH: 80-4-403, 80-4-721, MCA

IMP: 80-4-721, MCA

REASON: The MT State Grain Laboratory’s new fees are necessary in order to recover more of its costs and to be consistent with the federal regulations of a FGIS facility. The new fees and impacts include: Attaching Official Seals to Rail Carts (found at NEW RULE I(10)(c)(v), (11)(d)(ii), and (12)(b)(iv)(B)). $6-10/car, depending on the number of openings, is anticipated to generate an additional $24,000 of revenue per year. A late fee system (found at NEW RULE I(7)) for accounts due after 30 days is priced at $25 and allows for the discontinuation of service. The department anticipates less than $200 in revenue from this new fee.

Fees for services are being requested by the industry in such a way that costs to perform have increased. Bulk samples will now be additional probes and will cost $15 as they are no cheaper to perform than the original probe. Bulk sampling and sampling only services will increase by $5 to reflect the correct cost of the services. Composite samples will now increase in cost from $1.25 to $5 to reflect the cost of performing them. Single factor test will increase by $4 to reflect the total time spent on them in the lab. The lab will now attempt to recover the cost of postage on returned sampling with a $3 fee that is capped at $30 per month. These fee increases are estimated to generate an additional $22,000 of revenue.

Increases to tests caused by changes in federal standards (pulse wrinkles) (found at NEW RULE I(11)) will increase pulse testing by roughly $5 per sample. A more accurate cost for the time/machine costs for falling numbers will cost an additional $3 per test. These also request the nationwide industry standards. They are anticipated to generate an additional $75,700 per year.

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, 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., March 2, 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 6 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 adoption and repeal of the above-referenced rules will 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 January 16, 2018.