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Montana Administrative Register Notice 4-14-214 No. 2   01/30/2014    
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BEFORE THE DEPARTMENT OF AGRICULTURE

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 4.12.1405, 4.12.1411, and 4.12.1431, the adoption of New Rules I through VI, and the repeal of 4.12.1408, 4.12.1410, and 4.12.1412 through 4.12.1424 pertaining to plant inspection certificate and survey costs, fees, and civil penalties

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NOTICE OF AMENDMENT, ADOPTION, AND REPEAL

 

          TO: All Concerned Persons

 

1. On August 8, 2013, the Department of Agriculture published MAR Notice No. 4-14-214 pertaining to the public hearing on the proposed amendment, adoption, and repeal of the above-stated rules at page 1399 of the 2013 Montana Administrative Register, Issue Number 15.

 

2. The department has amended ARM 4.12.1411 and 4.12.1431 as proposed.

 

3. The department has adopted New Rule II (4.12.1439), III (4.12.1440), IV (4.12.1441), V (4.12.1442), and VI (4.12.1443) as proposed.

 

4. The department has repealed ARM 4.12.1408, 4.12.1410, and 4.12.1412 through 4.12.1424 as proposed.

 

5. The department has decided not to amend ARM 4.12.1405.

 

6. The department has decided not to adopt New Rule I.

 

7. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:

 

COMMENT #1:  The proposed fee increase to phytosanitary fees is too much and will price certain (nursery) businesses out of the market.

 

RESPONSE #1: The issuance of phytosanitary certificates is an entirely fee-for-service program and the proposed fees are required for the department to continue providing this service. Phytosanitary certificates are available from the federal government. The department is removing the fee increase from this proposed rule and will propose different rates in a separate notice at a later date.

 

COMMENT #2:  Commodities that pay phytosanitary or other similar fees should pay more and subsidize nurseries.

 

RESPONSE #2: The expense to the department to provide phytosanitary certification services is similar for all types of commodities. All commodity types should pay an amount that supports the services provided to the applicant.

The department is removing the fee increase from this proposed rule and will propose different rates in a separate notice at a later date.

 

COMMENT #3: The department should relocate offices and hire part-time people to make the fees lower for certain users.

 

RESPONSE #3:  The department has eight field offices that provide services across the entire state. Locations are based on the workload from all of the department's programs. Plant science specialists that issue phytosanitary certificates are required to have specific educational and experience requirements and maintain certification through USDA Export Services. The department has not been able to hire part-time seasonal personnel who are able to meet these requirements and maintain the required USDA certification. This suggestion of part-time staff located next to big nurseries is not a realistic solution.

 

COMMENT #4: The department should consider cutbacks in other areas like the director's office and central services instead of a fee increase in nursery or phytosanitary fees.

 

RESPONSE #4:  The Department of Agriculture is largely a fee-for-service agency and all programs must support both program costs and indirect charges in a fair and equitable manner. It would not be fair to charge others more so these programs could pay less.

 

COMMENT #5:  General fund or money from other parts of agriculture should subsidize nursery because the regulations in question benefit other industries more than they benefit the nursery trade.

 

RESPONSE #5:  The nursery trade, including the international, interstate, and intrastate movement of live plant material, is a high-risk pathway for the introduction of invasive plant pests and disease that can harm Montana’s agriculture and environment. Montana's agriculture is a significant and vital portion of the Montana economy. The mission of the Department of Agriculture includes protecting producers and consumers from pest risks including those in the nursery industry. The nursery program is authorized in the MCA, and the funding and role of the department can only be changed through the legislature.

 

COMMENT #6:  The department's inspectors are not qualified to do the job of inspection and not worth the higher fees.

 

RESPONSE #6:  The department disagrees. Plant science specialists that issue phytosanitary certificates and conduct nursery inspections are required to have specific educational and experience requirements and maintain certification through USDA Export Services.

 

COMMENT #7: The nursery industry cannot afford more fees.

 

RESPONSE #7:  The nursery program is a fee-for-service program. The proposed fees are required to run the program. Phytosanitary certification and nursery certification exist to mitigate the risks of the movement of live plant material. Individual businesses can reduce their fees by not shipping products internationally or to other states that restrict the movement of live plant material.

 

The department is removing the fee increase from this proposed rule and will propose different rates in a separate notice at a later date.

 

 

/s/  Cort Jensen                                            /s/  Ron de Yong                             

Cort Jensen                                                  Ron de Yong

Rule Reviewer                                               Director

                                                                    Department of Agriculture

           

Certified to the Secretary of State January 21, 2014.

 

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