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MONTANA ADMINISTRATIVE REGISTER

ISSUE NO. 16

The Montana Administrative Register (MAR or Register), a twice-monthly
publication, has three sections. The Notice Section contains state agencies'
proposed new, amended, or repealed rules; the rationale for the change; date and
address of public hearing; and where written comments may be submitted. The
Rule Section contains final rule notices which show any changes made since the
proposal stage. All rule actions are effective the day after print publication of the
adoption notice unless otherwise specified in the final notice. The Interpretation
Section contains the Attorney General's opinions and state declaratory rulings.
Special notices and tables are found at the end of each Register.

Inquiries regarding the rulemaking process, including material found in the Montana
Administrative Register and the Administrative Rules of Montana, may be made by
calling the Secretary of State's Office, Administrative Rules Services, at (406) 444-
2055.

Page Number

TABLE OF CONTENTS

NOTICE SECTION

ADMINISTRATION, Department of, Title 2

2-5-381 Notice of Public Hearing on Proposed Adoption and
Amendment - Procurement of Supplies and Services - Surplus
Property. 1116-1129

2-6-382 Notice of Proposed Repeal - Insurance Requirements. No

Public Hearing Contemplated. 1130-1131

2-44-380 (Teachers' Retirement Board) Notice of Proposed
Amendment and Repeal - Definitions - Optional Retirement Program -
Calculating Service Credits - Corrections of Errors, Family Law Orders
- Withholding of Insurance Premium from Retirement Benefit. No
Public Hearing Contemplated. 1132-1138

2-63-383 (State Lottery Commission) Notice of Proposed
Amendment and Repeal - State Lottery's Procedures Pertaining to
Prizes and Sales Incentives. No Public Hearing Contemplated. 1 139-1 141

FISH, WILDLIFE AND PARKS. Department of. Title 12

12-333 (Fish, Wildlife and Parks Commission) Notice of Proposed

Repeal - Time Zones. No Public Hearing Contemplated. 1142-1143



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Page Number



CORRECTIONS, Department of, Title 20



20-7-37 Notice of Public Hearing on Proposed Adoption - Security

and Confidentiality of Youth Records. 1 1 44-1 1 48

JUSTICE, Department of, Title 23

23-16-188 (Gambling Control Division) Notice of Public Hearing on
Proposed Amendment - Possession and Display of Antique Slot
Machines - Approved Accounting and Reporting System Availability
Date - General Specifications of Approved Automated Accounting and
Reporting Systems. 1149-1151

LABOR AND INDUSTRY, Department of, Title 24

24-29-223 Notice of Public Hearing on Proposed Amendment -
Allowable Charges for Prescription Drugs Under a Workers'
Compensation Claim. 1152-1153

MILITARY AFFAIRS, Department of, Title 34

34-6 Notice of Proposed Amendment and Repeal - Eligibility -
Limitations on Reimbursement - Application for Reimbursement -
Termination Date; Further Appropriation Required Pertaining to
Military Life Insurance Reimbursement - Termination Date - United
States Assumes Payment of Premiums or Increases Death Gratuity
Pertaining to Military Life Insurance Reimbursement. No Public
Hearing Contemplated. 1 1 54-1 1 56

34-7 Notice of Proposed Adoption - Montana Military Family Relief

Fund. No Public Hearing Contemplated. 1 1 57-1 1 63

NATURAL RESOURCES AND CONSERVATION, Department of, Title 36

36-22-121 Notice of Public Hearing on Proposed Amendment -

Definitions - Basin Closure Area Exceptions and Compliance. 1 1 64-1 1 71

SECRETARY OF STATE, Office of, Title 44

44-2-138 (Commissioner of Political Practices) Notice of Proposed
Amendment - Limitations on Receipts from Political Committees to
Legislative Candidates. No Public Hearing Contemplated. 1 1 72-1 1 74

44-2-139 Notice of Public Hearing on Proposed Amendment and

Repeal - Records and Information Management Fees. 1 1 75-1 1 79



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Page Number



RULE SECTION



STATE AUDITOR, Department of, Title 6

NEW Military Sales Practices. 1180-1181

FISH, WILDLIFE AND PARKS, Department of, Title 12

(Fish, Wildlife and Parks Commission)

EMERG Notice of Repeal of a Temporary Emergency Rule - Closing
REP the Missouri River From American Bar Gulch to Beartooth

Landing, Lewis and Clark County, MT. 1 182

EMERG Notice of Adoption of a Temporary Emergency Rule -

NEW Closing Placid Lake and Seeley Lake, Missoula County, MT. 1 1 83-1 1 84

EMERG Notice of Adoption of a Temporary Emergency Rule -

NEW Closing Lake Inez, Missoula County, MT. 1 1 85-1 1 86

AMD Exotic Species. 1187-1188

ENVIRONMENTAL QUALITY, Department of, Title 17

AMD (Underground Storage Tanks) Management of Underground
NEW Storage Tanks - Incorporation by Reference - Assessment
REP of Administrative Penalties. 1189-1191

LABOR AND INDUSTRY, Department of, Title 24

AMD Allowable Charges for Prescription Drugs Under a Workers'

NEW Compensation Claim. 1192-1196

PUBLIC HEALTH AND HUMAN SERVICES, Department of, Title 37

AMD Case Management Services for Youth with Serious

Emotional Disturbance. 1197-1216



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Page Number
SPECIAL NOTICE AND TABLE SECTION

Function of Administrative Rule Review Committee. 1 21 7-121 8

How to Use ARM and MAR. 1 21 9

Accumulative Table. 1 220-1 226

Boards and Councils Appointees. 1 227-1 235

Vacancies on Boards and Councils. 1236-1246



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BEFORE THE DEPARTMENT OF ADMINISTRATION
OF THE STATE OF MONTANA



In the matter of the adoption of New
Rule I and the amendment of ARM
2.5.120, 2.5.201, 2.5.202, 2.5.301
through 2.5.303, 2.5.401, 2.5.402,
2.5.404 through 2.5.408, 2.5.501
through 2.5.503, 2.5.601 through
2.5.604, 2.5.606 through 2.5.609,
2.5.701, 2.5.702, and 2.5.801 pertaining
to procurement of supplies and services
and surplus property

TO: All Concerned Persons



NOTICE OF PUBLIC HEARING ON
PROPOSED ADOPTION AND
AMENDMENT



1 . On September 1 2, 2007, at 1 1 :00 a.m., a public hearing will be held in
Room 165 of the Mitchell Building, 125 North Sanders, Helena, Montana, to consider
the proposed adoption and amendment of the above-stated rules.

2. The department will make reasonable accommodations for persons with
disabilities who need an alternative accessible format of this notice. If you require
an accommodation, contact the State Procurement Bureau no later than 5:00 p.m.
on September 4, 2007, to advise us of the nature of the accommodation that you
need. Please contact Gretchen Bingman, State Procurement Bureau, 125 North
Sanders, Helena, MT 59620; telephone (406) 444-7210; Montana Relay Service
71 1 ; facsimile (406) 444-2529; e-mail to [email protected]

3. The proposed new rule provides as follows:

NEW RULE I CONTRACT RENEWAL (1) Prior to issuing a contract
renewal, an agency must provide a written justification outlining the basis for
renewal. Reasons illustrating justification for renewal may include, but are not
limited to:

(a) acceptable or outstanding performance of contract specifications;

(b) cost-effectiveness of continuation of the contract; and/or

(c) the requirements of the contract remain significantly the same.

AUTH: 18-4-221, MCA
IMP: 18-4-313, MCA

STATEMENT OF REASONABLE NECESSITY: This new rule is reasonably
necessary to provide guidelines for agencies in developing renewal justifications to
document the evaluation of the contract performance and appropriateness of
renewal.

4. The rules as proposed to be amended provide as follows, stricken matter



MAR Notice No. 2-5-381



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interlined, new matter underlined:

2.5.120 THE STATE EMPLOYEES' CHARITABLE GIVING CAMPAIGN
(1) remains the same.

AUTH: 18-4-221, MCA

IMP: 18 -^1- 221 18-4-222 , MCA

2.5.201 DEFINITIONS In these rules, words and terms d e f i n e d i n T i t le 18,
chapt e r A, MCA, shall have the same meaning as in defined in Title 18, chapter 4,
MCA, th e statut e s and, unless the context clearly requires otherwise or a different
meaning is prescribed for a particular s e ct i on rule , the following definitions apply:

(1) "Agency" means an agency, bureau, commission, committee, council,
department, governmental corporation, institution, legislative body, or other entity,
instrumentality, or official of the executive, legislative,, or judicial branch of the state
government , including the Board of Regents and the Montana University System.

(2) remains the same.

(3) "Alternate bid" means a bid submitted in knowing variance from the
specifications, terms, conditionSj. or provisions of the solicitation. Such a bid is
acceptable only when the variance is deemed immaterial.

(4) remains the same.

(5) "Bid" means the executed document subm i tt e d by a "b i dd e r" in response
to an invitation for bid. "Bidder" means a person submitting a bid.

(6) remains the same.

(7) "Central Stores" means the proprietary program operated by the division^
Property and Supply Bureau which develops standard specifications, procures,
warehouses,, and delivers certain supplies for state agencies. Th e bur e au a l so
op e rat e s th e stat e and f e d e ra l surp l us programs for eli g i b le don ee s.

(8) and (9) remain the same.

(10) "Debar" or "debarment" means an action taken or decision made by the
department, other than temporary determinations of nonresponsibility or suspension,
that prohibits a vendor from proposing, bidding on, or receiving state contracts for a
specific period of time or until certain conditions have been met.

(1 1 ) through (16) remain the same.

(1 7) "FOB" or "f.o.b." means free on boards a term used in conjunction with
an identified physical location to determine:

(a) remains the same.

(b) the point at which title for the shipment passes from seller to buyer.
Deliveries are usually "FOB destination" which means a shipment is to be delivered
to the destination designated by the buyers.

(18) through (20) remain the same.

(21 ) "Nonexclusive contract" means that state agencies are not required to
purchase this supply or service from the contract holder(s) and may obtain the
necessary s e rv i c e or supply or service from a different source following the
requirements of Title 18, MCA, and their agency procurement delegation agreement.

(22) through (30) remain the same.

(31) "Responsible bidder or offeror" means a person who has the capability

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in all respects to p e rform fully perform the contract requirements and the integrity
and reliability that will ensure good faith performance.
(32) through (36) remain the same.

(37) "State Procurement Bureau" means that the bureau of the division
responsible for procuring or supervising the procurement of all supplies and services
needed by the state,, excluding those services procured by the Property and Supply
Bureau and pub li cat i ons and graph i cs bur e au Print and Mail Services Bureau .

(38) and (39) remain the same.

( -1 0) "T e rm contract" m e ans a contract i n wh i ch supp lie s or s e rv i c e s ar e
off e r e d at a pr e d e t e rm i n e d un i t pr i c e for a sp e c i f i c p e r i od of t i m e .

(41) through (44) remain the same, but are renumbered (40) through (43).

AUTH: 18-1-114, 18-4-221, MCA
IMP: 18-4-221, MCA

2.5.202 DEPARTMENT OF ADMINISTRATION RESPONSIBILITIES

(1) remains the same.

(2) The d e partm e nt's g e n e ra l s e rv i c e s division will establish a vendors list,
determine eligibility for residence preference of vendors for purchases made under
Title 18, chapter 4, MCA, investigate complaints against vendors, and remove
vendors from the state list as described in ARM 2.5.401 , 2.5.402, 2.5. 4 03, and
2.5.407.

(3) The d e partm e nt's g e n e ra l s e rv i c e s division shall process requisitions for
agencies T for items not delegated T in accordance with ARM 2.5.302.

(4) Except as indicated in ARM 2.5.30^ the d e partm e nt's g e n e ra l s e rv i c e s
division will identify and purchase all controlled items.

(5) through (5)(d) remain the same.

(6) The d e partm e nt's g e n e ra l s e rv i c e s division delegates its procurement
authority as follows:

(a) through (c)(iv) remain the same.

(7) The d e partm e nt's g e n e ra l s e rv i c e s division will provide training to
agencies on purchasing in accordance with delegated responsibilities.

(8) The d e partm e nt's g e n e ra l s e rv i c e s division may perform reviews of
agency purchasing procedures to i nsur e ensure compliance with the delegation
agreement, these rules i and Title 18, chapter 4, MCA.

(9) remains the same.

AUTH: 18-4-221, MCA

IMP: 2-17-301, 2-17-512, 18-4-221, 18-4-222, MCA

2.5.301 DELEGATION OF PURCHASING AUTHORITY (1) remains the
same.

(2) Delegation and competitive procedures are not necessary for the
following purchases:

(a) through (j) remain the same.

(k) fresh fruits and vegetables; and

(I) food products produced in Montana, subject to the provisions of 18-4-132,

MAR Notice No. 2-5-381 16-8/23/07



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MCA;

(m) advertising placed in publications or on radio, television, or other
electronic means. Development, design, and distribution of the advertising is not
included in this exception;

(14 (n) educational instructors and guidance counselors for inmates under the
supervision of the Department of Corrections ; and

(o) books and periodicals purchased by the Montana State Library .

AUTH: 18-4-221, MCA

IMP: 18-4-132, 18-4-221, 18-4-222, 18-4-302, MCA

STATEMENT OF REASONABLE NECESSITY: Senate Bill No. 328 of the 2007
Legislature provides that food products produced in Montana may be procured by
direct purchase under certain circumstances. The department is adding (2)(l) to
make this option plain in rule. Newspaper, radio, and television advertisements are
typically only available from limited vendors within a target area and so are excluded
from competitive procedures. Due to the limited availability of many books and
periodicals, the State Library is given authority to make book and periodical
purchases without competition when available only from a single vendor.

2.5.302 REQUISITIONS FROM THE AGENCIES TO THE DIVISION (1) All
agencies must complete the division's requisition form when a state purchase order
or contract is required from the division. The requisition must be signed or
electronically approved by an authorized agency official. Only items of a like nature
(items ordinarily procurable from the same vendor) to be billed to one location shall
be combined on one requisition. A separate requisition is required for each billing
location. The requisition must be accompanied by specifications as described in
ARM 2.5.501 . Completed requisitions for

(a) coarse paper, computer paper, computer software supported by
Information Technology Services Division, fine paper, forms, flags, fire extinguishers,
janitorial supplies, and office supplies shall be forwarded to the Property and Supply
Bureau;

(b) r e qu i s i t i ons for printing shall be forwarded to the Print and Mail Services
Bureau; and r

(c) Comp le t e d r e qu i s i t i ons for supplies and services (not listed above} shall
be forwarded to the State Procurement Bureau.

(2) Agencies must obtain written approval as required for equipment
described in ARM 2.5.202{§). Written approval must accompany the requisition.

(3) Upon receipt of a requisition, the division will initiate and schedule the
solicitation. Th e d i v i s i on w ill s e nd a copy of th e so li c i tat i on to th e r e qu e st i ng ag e ncy
for r e v ie w pr i or to b i d op e n i ng.

(4) through (4)(b) remain the same.

(c) has no evidence of approvals required in (2) abov e; or

(d) through (5)(b) remain the same.

AUTH: 18-4-221, MCA
IMP: 18-4-221, MCA

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2.5.303 ENFORCING THE CONTRACT (1) Except for items purchased and
warehoused by the division's c e ntra l stor e s program Property and Supply Bureau ,
agencies are responsible for receiving supplies and services procured on their
behalf by the department. Receiving means inspecting the supply or service and
checking it against the contract to ensure that it is acceptable, complete,, and in
compliance with the terms of the contract.

(2) and (3) remain the same.

AUTH: 18-4-221, MCA
IMP: 18-4-221, MCA

2.5.401 VENDORS LIST (1) The General Services Division maintains an
online vendors list for all supply and service commodities. Names and addresses on
the vendors lists shall be available for public inspection but th e s e li sts this list shall
not be used for private promotional, commercial or market purposes as per 2-6-109,
MCA .

(2) To get be placed on the vendors list, a vendor must register with the
division on a form supp lie d by th e d i v i s i on, online at http://www.vendor.mt.gov/.
Each vendor is responsible for keeping their information current, including
categories, quote groups, and items of i nformat i on suff i c ie nt to i d e nt i fy the supplies
or services the vendor wishes to supp l y provide .

AUTH: 18-4-221, MCA
IMP: 18-4-221, MCA

2.5.402 SUSPENSION OR DEBARMENT FROM CONTRACT ELIGIBILITY

(1 ) The division has the authority to temporarily suspend a vendor from
consideration for further contracts with the state if the division has probable cause to
believe that the vendor has engaged in activities that could lead to debarment from
contract eligibility. D e barm e nt app lie s both to a f i rm or an i nd i v i dua l . I n th e cas e of a
f i rm, i t may b e app lie d aga i nst any or a ll bus i n e ss e s i n wh i ch a f i rm has i nvo l v e m e nt
or ov e r wh i ch i t has own e rsh i p or contro l . I n th e cas e of an i nd i v i dua l , d e barm e nt
may b e app lie d to and e nforc e d aga i nst any and a ll bus i n e ss e s i n wh i ch th e
i nd i v i dua l has any le v el of i nt e r e st, own e rsh i p or contro l . The causes for debarment
include the following:

(a) through (g) remain the same.

(2) Debarment may apply to either a firm or an individual-
fa) In the case of a firm, it may be applied against any or all businesses in

which a firm has involvement or over which it has ownership or control.

(b) In the case of an individual, debarment may be applied to and enforced
against any and all businesses in which the individual has any level of interest,
ownership, or control.

124 (3) If there is probable cause to believe that any of the situations in (1)
exist as s e t out i n (1) , the division shall mail a notice of suspension to the affected
vendor or individual. The notice must state that:

(a) remains the same.

MAR Notice No. 2-5-381 16-8/23/07



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(b) bids or proposals will not be accepted from the suspended vendor or
contracts awarded to the suspended vendor during the period of suspension; and

(c) the suspension is effective upon the date of issuance of the notice of
suspension and, unless the suspension is terminated by the division or a court, i^wtU
remains in effect for a period not to exceed 90 calendar days.

(3) remains the same, but is renumbered (4).

(a) remains the same.

(b) notification of the vendor's right to a contested case hearing on the matter
in accordance with the procedures set forth in Title 2, chapter 4, part 6, MCA^ ; and

(c) remains the same.

(4) (5) A written request for hearing must be received by the director from the
vendor within 20 calendar days after the date of the mailing of the notice of
debarment. Failure to timely request a hearing will constitute a waiver by the vendor
of the opportunity for a contested case hearing and appeal and will result in the
director or director's designee entering an order supporting the vendor's debarment
from contract i ng w i th th e stat e for a sp e c i f ie d p e r i od of t i m e or unt il c e rta i n
cond i t i ons ar e m e t .

{§} (6) Upon timely receipt of a written request for a contested case hearing,
the director shall appoint a hearing examiner in accordance with the procedures set
forth in Title 2, chapter 4, part 6, MCA, to hear evidence in the matter and come to a
determination as to whether the facts support the decision to debar the vendor from
contract i ng w i th th e stat e for a sp e c i f ie d p e r i od of t i m e or unt il c e rta i n cond i t i ons ar e

rnpt

{§} (7) The division shall maintain a list of debarred vendors on its web site at
http://www.d i scov e r i ngmontana.com/doa/gsd
http://gsd.mt.gov/procurement/debarredsuspendedvendors.asp .

AUTH: 18-4-221, MCA

IMP: 18-4-241, 18-4-308, MCA

2.5.404 BID AND PROPOSAL PREPARATION (1) and (2) remain the same.

(3) The price for each item must be stated and shall be clearly shown in the
space provided on the form included as part of the bid . Only one unit price shall be
shown for each item unless specific provision is made in the form for an optional
figure. The price of each item shall be extended to show the total price for the
quantity requested. In case of error in extension, the unit price shall prevail.

(4) through (7) remain the same.

(8) Vendors wW must offer a firm price for 30 days after a bid or proposa l
opening, or 120 days after a proposal opening, pending award, unless otherwise
provided for in the invitation for bids or request for proposals.

(9) remains the same.

AUTH: 18-4-221, MCA

IMP: 18-4-221, 18-4-303, MCA

2.5.405 BLIND VENDORS' BIDDING PREFERENCE (1) A blind person
wishing to claim the vending facility preference provided in 18-5-502, MCA, must

16-8/23/07 MAR Notice No. 2-5-381



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complete the determination form provided by the State Procurement Bureau. The
form must be completed by an ophthalmologist, physician skilled in diseases of the
eye L or a stat e of Montana, Department of Public Health and Human Services T visual
services counselor.

(2) A determination form shall be submitted with each individual bid. The
determination form shall be valid for six months. At the end of the six z month period,
a new determination form will be required or submitted with bids. A new
determination form will be required for renewal of a contract if the contract renewal
date exceeds six months from the completion date of the original determination form.

AUTH: 18-5-50+ 1 8-5-504 , MCA
IMP: 18 - 5 - 501 18-5-502 , MCA

2.5.406 VENDOR PROTEST (1) through (2)(b) remain the same.

(3) "Days" m e an ca le ndar days as d e f i n e d i n ARM 2.5.201 .

(4) remains the same, but is renumbered (3).

AUTH: 18-4-221, 18-4-242, MCA

IMP: 18-1-402, 18 -4- 221, 18-4-242, MCA

2.5.407 DETERMINATION OF RESPONSIVENESS/STANDARDS OF
RESPONSIBILITY (1) and (2) remain the same.

(3) If a determination of nonresponsiveness is made, nonresponsive bids and
or offers w ill b e are disqualified and eliminated from further consideration.

(4) through (4)(e) remain the same.

(5) If requested, a bidder or offeror must supply information concerning
responsibility to the procurement officer conc e rn i ng r e spons i b ili ty in a timely and
convincing manner. If the bidder or offeror fails to supply the requested information,
the procurement officer may base a determination of responsibility upon any
available information or may find the bidder or offeror nonresponsible.

(6) through (8) remain the same.

AUTH: 18-4-221, MCA
IMP: 18-1-308, MCA

2.5.408 RECIPROCAL PREFERENCE (1) remains the same.

(2) A reciprocal preference is applied only to an invitation for bids for supplies
and printing, or an invitation for bids for nonconstruction services for public works as
defined in 18-2-401(9), MCA, but only in the event that federal funds are not involved
in the anticipated purchase. In addition, a reciprocal preference is only applied if it
will benefit a Montana resident bidder as defined in 18-1-103, MCA.

(3) through (5) remain the same.

AUTH: 18-1-114, 18-4-221, MCA
IMP: 18-1-102, 18-7-107, MCA

2.5.501 SPECIFICATIONS (1) Specifications shall clearly describe the
MAR Notice No. 2-5-381 16-8/23/07



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state's requirements and allow for the obtaining ©4 a supply or service which is
adequate,, and suitable , and cost-effective for the state 's n ee ds i n a cost e ff e ct i v e
mann e r . Specifications may take into account, to the extent practicable, the costs of
ownership and operation as well as initial acquisition costs and shall permit
maximum practicable competition consistent with this purpose.

(2) Specifications shall, to the extent practicable, emphasize functional or
performance criteria and limit design or other detailed physical descriptions to those
necessary to meet the needs of the state. To facilitate the use of the criteria,, an
agency shall attempt to include as a part of their requisitions the principal functional


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