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MONTANA ADMINISTRATIVE REGISTER

ISSUE NO. 5

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proposed new, amended, or repealed rules; the rationale for the change; date and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 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

No proposal notices were submitted for this issue of the Montana
Administrative Register.

RULE SECTION

AGRICULTURE. Department of, Title 4

AMD Organic Certification Program. 295

LABOR AND INDUSTRY, Department of, Title 24

AMD (Board of Optometry) Definitions - General Provisions -

NEW Diagnostic Permissible Drugs - Therapeutic Pharmaceutical

REP Agents - Continuing Education - Screening Panel - Fee

Abatement - Examinations - Approved Courses and

Examinations - New Licensees - Applicants for Licensure -

Therapeutic Pharmaceutical Agents - Complaint Procedure. 296-297

AMD (Board of Outfitters) Fees - Inactive License - Transfer of
River-Use Days - Unprofessional Conduct and Misconduct -
Guide Logs. 298-299

Corrected Notice of Amendment and Adoption - Building

Codes. 300



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Page Number



PUBLIC HEALTH AND HUMAN SERVICES, Department ot Title 37



AMD Temporary Assistance for Needy Families (TANF)

Incorporation of Policy Manuals. 301

AMD Medicaid Assistance. 302

AMD Components of Quality Assessment Activities. 303

INTERPRETATION SECTION

Opinions of the Attorney General.

1 Community Colleges - Legislative Approval for Organization

of Community College District - Absence of Requirement
That Board of Regents Approve Organization of Community
College District Before Submission for Legislative Approval -
Board of Regents - Statutory Construction - Reference to Bill
Title as Evidence of Legislative Intent - Plain Meaning
Controls in Absence of Ambiguity - University System. 304-307

SPECIAL NOTICE AND TABLE SECTION

Function of Administrative Rule Review Committee. 308-309

How to Use ARM and MAR. 310

Accumulative Table. 311-319



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BEFORE THE DEPARTMENT OF AGRICULTURE
OF THE STATE OF MONTANA

In the matter of the amendment of ARM ) NOTICE OF AMENDMENT

4.1 7.1 02 relating to the organic )

certification program )

TO: All Concerned Persons

1 . On January 25, 2007, the Montana Department of Agriculture published
MAR Notice No. 4-14-166 relating to the above-stated rule at page 71 of the 2007
Montana Administrative Register, Issue Number 2.

2. The agency has amended ARM 4.17.102 exactly as proposed.

3. The following comment was received and appears with the Department of
Agriculture response.

Comment: The Montana Organic Association is supportive of the
department's adoption of the National Organic Program revised rule.

Response: The department thanks the Montana Organic Association for their
support.



DEPARTMENT OF AGRICULTURE



/s/ Nancy K. Peterson /s/ Gregory H. Ames

Nancy K. Peterson, Director Gregory H. Ames

Rule Reviewer

Certified to the Secretary of State, February 26, 2007.



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BEFORE THE BOARD OF OPTOMETRY

DEPARTMENT OF LABOR AND INDUSTRY

STATE OF MONTANA



In the matter of the amendment of ARM
24.168.301 definitions, 24.168.401,
24.1 68.402, 24.1 68.408, and 24.1 68.41 1
general provisions, 24.168.711 diagnostic
permissible drugs, 24.1 68.901 , 24.1 68.91 1
therapeutic pharmaceutical agents,
24.168.2101 and 24.168.2104, continuing
education, 24.168.2307 screening panel,
the adoption of NEW RULE I fee abatement,
and the repeal of 24.168.405 examinations,
24.168.701 approved courses and
examinations, 24.168.704 new licensees,
24.168.904 applicants for licensure,
24.168.907 therapeutic pharmaceutical
agents, and 24.168.2304 complaint procedure



NOTICE OF AMENDMENT,
ADOPTION, AND REPEAL



TO: All Concerned Persons

1. On October 26, 2006, the Board of Optometry (board) published MAR
Notice No. 24-168-37 regarding the proposed amendment, adoption, and repeal of
the above-stated rules, at page 2450 of the 2006 Montana Administrative Register,
issue no. 20.

2. On November 20, 2006, a public hearing was held on the proposed
amendment, adoption, and repeal of the above-stated rules in Helena. One
commenter submitted comments by the November 28, 2006, deadline.

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

COMMENT 1 : One commenter stated that "opthomological" is misspelled in the title
of ARM 24.168.71 1 and should instead be "ophthalmological".

RESPONSE 1 : The board appreciates the comment and is amending the rule
catchphrase accordingly.

COMMENT 2 : One commenter stated that the term "occular" is misspelled in the
title of ARM 24.168.91 1 and should instead be "ocular".

RESPONSE 2 : The board appreciates the comment and is amending the rule
catchphrase accordingly.



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COMMENT 3 : One commenter suggested that "not less than" be stricken as
redundant from ARM 24.1 68.21 01 (1 ).

RESPONSE 3 : The board agrees that the language is redundant and unnecessary
and is amending the rule accordingly.

4. The board has amended ARM 24.1 68.301 , 24.1 68.401 , 24.1 68.402,
24.1 68.408, 24.1 68.41 1 , 24.1 68.901 , 24.1 68.21 04, and 24.1 68.2307 exactly as
proposed.

5. The board has adopted NEW RULE I (24.168.403) exactly as proposed.

6. The board has repealed ARM 24.168.405, 24.168.701, 24.168.704,
24.168.904, 24.168.907, and 24.168.2304 exactly as proposed.

7. The board has amended ARM 24.1 68.71 1 , 24.1 68.91 1 , and 24.1 68.21 01
with the following changes, stricken matter interlined, new matter underlined:

24.1 68.71 1 OPTH OMOLOG I CAL OPHTHALMOLOGICAL DIAGNOSTIC
PERMISSIBLE DRUGS

(1) through (1)(d) remain as proposed.

24.168.911 OGCUWVB OCULAR THERAPEUTIC APPROVED DRUGS
(1) through (1)(h) remain as proposed.

24.168.2101 CONTINUING EDUCATION REOUIREMENTS (1) Each
licensed optometrist shall obtain a minimum of not le ss than 36 hours of continuing
education every two years in scientific clinics, forums, or optometric educational
studies approved by the board. The board will accept:

(a) through (4) remain as proposed.



BOARD OF OPTOMETRY

DOUGLAS MCBRIDE, O.D., PRESIDENT

/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 February 26, 2007



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BEFORE THE BOARD OF OUTFITTERS

DEPARTMENT OF LABOR AND INDUSTRY

STATE OF MONTANA

In the matter of the amendment of ARM ) NOTICE OF AMENDMENT

24.1 71 .401 fees, 24.1 71 .51 2 inactive ) AND ADOPTION

license, 24.1 71 .702 transfer of river-use days, )
24.171.2301 unprofessional conduct and )

misconduct, and the adoption of NEW RULES )
I - III pertaining to guide logs )

TO: All Concerned Persons

1. On November 9, 2006, the Board of Outfitters (board) published MAR
Notice No. 24-171-25 regarding the amendment and adoption of the above-stated
rules, at page 2769 of the 2006 Montana Administrative Register, issue no. 21 .

2. On December 8, 2006, a public hearing was held on the proposed
amendment and adoption of the above-stated rules in Helena. Several comments
were received by the December 18, 2006, deadline.

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

COMMENT 1 : One comment was received regarding ARM 24.171.2301. The
commenter suggested adding "when providing services as a licensed guide or
licensed outfitter acting as a guide" to the beginning of (3)(t) to clarify who must
submit a log book and to avoid disciplining outfitters who are not acting as guides on
these rivers.

RESPONSE 1 : The board decided that because the board is not adopting proposed
New Rules l-lll that would require guide log books on the Beaverhead and Big Hole
rivers, it is not necessary to add failure to comply with these rules as unprofessional
conduct. The board is amending ARM 24.171.2301 accordingly.

COMMENT 2 : Numerous comments were received opposing the adoption of New
Rules l-lll. The commenters questioned how the rules could be enforced, whether
the rules were necessary, whether the rules would effectively address the identified
problem, whether the rules would create opportunities for guides to exploit outfitters'
proprietary client information, and whether specific alternative approaches to the
problem would be more effective.

RESPONSE 2 : After careful consideration, the board decided not to adopt proposed
New Rules l-lll at this time and to further review the issues raised by the
commenters before proceeding.



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4. The board has amended ARM 24.171.401, 24.171.512, and 24.171.702
exactly as proposed.

5. The board has amended ARM 24.1 71 .2301 with the following changes,
stricken matter interlined, new matter underlined:

24.171.2301 UNPROFESSIONAL CONDUCT AND MISCONDUCT

(1) through (1)(q) remain as proposed.

(r) not fail to respond to board inquiries and requests; or

(s) not remit a "nonsufficient fund check" or a check on a closed account for
board fees or finesf-of .

(t) ma i nta i n a curr e nt, tru e , comp le t e , le g i b le , and accurat e l og book of a ll
i nd i v i dua l s gu i d e d on th e B e av e rh e ad and B i g Ho le r i v e rs, and subm i t th e l og books
to th e board off i c e postmark e d by D e c e mb e r 1 of e ach li c e ns e y e ar.

6. The board is not adopting New Rules I, II, or III.



BOARD OF OUTFITTERS
KELLY FLYNN, 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 February 26, 2007



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BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY
STATE OF MONTANA



In the matter of the amendment of ARM
24.301.131, 24.301.138, 24.301.142,
24.301.146, 24.301.154, 24.301.171,
24.301.172, 24.301.173, 24.301.208,
24.301.301, 24.301.602, 24.301.710,
24.301.714, 24.301.717, 24.301.718,
and 24.301 .71 9, and the adoption of
NEW RULE I pertaining to building codes

TO: All Concerned Persons



CORRECTED NOTICE OF
AMENDMENT AND ADOPTION



1 . On October 5, 2006, the Department of Labor and Industry (department)
published MAR Notice No. 24-301-203 regarding the public hearing on the proposed
amendment and adoption of the above-stated rules, at page 2319 of the 2006
Montana Administrative Register, issue no. 19. On January 25, 2007, the
department published the notice of amendment and adoption of MAR Notice No. 24-
301-203 at page 1 1 2 of the 2007 Montana Administrative Register, issue no. 2.

2. Upon publication of the notice of amendment and adoption of MAR Notice
No. 24-301-203 it was discovered that ARM 24.301 .71 8(2) through (2)(b) were
inadvertently omitted from the original proposal and adoption notices. The original
proposal and adoption notices should have shown that there were no proposed
changes to ARM 24.301 .71 8(2), (2)(a), and (2)(b). The rule, as amended, reads as
follows, deleted matter interlined, new matter underlined:

24.301.718 BOILER INSPECTIONS (1) through (1)(e)(ii) remain as
amended.

(2) through (2)(b) remain the same.

AUTH: 50-60-203, 50-74-101, MCA

IMP: 50-60-203, 50-74-206, 50-74-209, MCA



/s/ DARCEE L MOE
Darcee L. Moe
Alternate Rule Reviewer



/s/ KEITH KELLY

Keith Kelly, Commissioner

DEPARTMENT OF LABOR AND INDUSTRY



Certified to the Secretary of State February 26, 2007



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Montana Administrative Register



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BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA



In the matter of the amendment of ARM
37.78.102 and 37.78.807 pertaining to
temporary assistance for needy families
(TANF) incorporation of policy manuals



TO: All Interested Persons



NOTICE OF AMENDMENT



1 . On December 21 , 2006, the Department of Public Health and Human
Services published MAR Notice No. 37-397 pertaining to the public hearing on the
proposed amendment of the above-stated rules, at page 3026 of the 2006 Montana
Administrative Register, issue number 24.

2. The department has amended ARM 37.78.102 and 37.78.807 as
proposed.

3. No comments or testimony were received.



/s/ Francis Clinch /s/ Joan Miles



Rule Reviewer Director, Public Health and

Human Services



Certified to the Secretary of State February 26, 2007.



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BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

In the matter of the amendment of ARM ) NOTICE OF AMENDMENT

37.82.1 01 , 37.82.407, and 37.82.701 )

pertaining to Medicaid assistance )

)
TO: All Interested Persons

1 . On January 1 1 , 2007, the Department of Public Health and Human
Services published MAR Notice No. 37-400 pertaining to the amendment of the
above-stated rules, at page 21 of the 2007 Montana Administrative Register, issue
number 1.

2. The department has amended ARM 37.82.1 01 , 37.82.407, and 37.82.701
as proposed.

3. No comments or testimony were received.

4. The amendments to ARM 37.82.1 01 are applied retroactively to January 1
2007. The department was unable to file this rule at an earlier date due to the
pressing nature of other business in the Office of Legal Affairs. No detrimental
effects are anticipated as a result of the rule being applied retroactively.



/s/ Barbara Hoffmann /s/ Joan Miles



Rule Reviewer Director, Public Health and

Human Services



Certified to the Secretary of State February 26, 2007.



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BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

In the matter of the amendment of ARM ) NOTICE OF AMENDMENT

37.1 08.507 pertaining to Components )

of Ouality Assessment Activities )

)

TO: All Interested Persons

1 . On January 1 1 , 2007, the Department of Public Health and Human
Services published MAR Notice No. 37-398 pertaining to the proposed amendment
of the above-stated rule, at page 14 of the 2007 Montana Administrative Register,
issue number 1.

2. The department has amended ARM 37.108.507 as proposed.

3. No comments or testimony were received.



/s/ Bernard Jacobs /s/ Joan Miles



Rule Reviewer Director, Public Health and

Human Services

Certified to the Secretary of State February 26, 2007.



Montana Administrative Register 5-3/8/07



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VOLUMENO. 52 OPINION NO. 1

COMMUNITY COLLEGES - Legislative approval for organization of community

college district;

COMMUNITY COLLEGES - Absence of requirement that Board of Regents approve

organization of community college district before submission for legislative approval;

REGENTS, BOARD OF - Absence of requirement that Board of Regents approve

organization of community college district before submission for legislative approval;

STATUTORY CONSTRUCTION - Reference to bill title as evidence of legislative

intent;

STATUTORY CONSTRUCTION - Plain meaning controls in absence of ambiguity;

UNIVERSITY SYSTEM - Legislative approval for organization of community college

district;

UNIVERSITY SYSTEM - Absence of requirement that Board of Regents approve

organization of community college district before submission for legislative approval;

MONTANA CODE ANNOTATED - Title 20, chapter 1 5, part 2; sections 20-1 5-202;

-203, -204, -209;

MONTANA LAWS OF 1971 - Chapter 5, section 459; chapter 164, section 1 ;

chapter 407, section 2;

REVISED CODES OF MONTANA, 1 947 - Section 75-81 1 2.

HELD: 1 . The Legislature has the final authority under Montana law to

approve creation of a new community college district.

2. The approval of the Legislature for the creation of a new
community college district required by Mont. Code Ann.

§ 20-15-209 occurs after the approval by the local voters but
before the Board of Regents issues its organizational order.

3. Montana law does not require approval of the Board of Regents
for creation of the district, but does require the board to make a
recommendation.

February 15, 2007



Ms. Sheila Stearns
Commissioner of Higher Education
P.O. Box 203201
Helena, MT 59620-3201

Dear Commissioner Stearns:

You have requested my opinion on the following questions:

1. Does Mont. Code Ann. § 20-15-209 require legislative approval
of a proposed new community college district before or after the

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organizational election conducted under Mont. Code Ann.
§20-15-203?

2. Under Mont. Code Ann. § 20-15-209 does the Legislature

consider a proposed new community college district only if the
Board of Regents affirmatively recommends approval?

The questions arise from a proposal for the creation of a new community college in
Ravalli County. The procedures for creation of a new community college are found
in Mont. Code Ann. Tit. 20, ch. 15, pt. 2, which was passed by the Legislature in
1971 . The statutes have not yet been used successfully to create a new community
college, and the procedures have never been considered in a pertinent way by a
court or by a prior opinion of this office. In addition, no helpful legislative history
materials from the 1971 legislative session are readily available.

For these reasons, I am able to formulate responses to your questions only by
reliance on general principles of statutory construction.

I.

Under the statutes, creation of a new community college district begins with the
submission to the Board of Regents of a petition seeking creation of the district.
Mont. Code Ann. § 20-15-202. The board then orders an election serving two
purposes~to seek the approval of the voters in the district and to elect the district's
trustees if the voters approve the proposal. Mont. Code Ann. §§ 20-15-203, -204.

Mont. Code Ann. § 20-15-209 describes what happens after the election:

(1 ) To carry, the proposal to organize the community college
district must receive a majority of the total number of votes cast
thereon, and the coordinator of community college districts, from the
results so certified and attested, shall determine whether the proposal
has received the majority of the votes cast thereon for each county
within the proposed district and shall certify the results to the regents.
Approval for the organization of a new community college district shall
be granted at the discretion of the legislature acting upon the
recommendation of the regents. Should the certificate of the
coordinator of community college districts show that the proposition to
organize such community college district has received a majority of the
votes cast thereon in each county within the proposed district, the
regents may make an order declaring the community college district
organized and cause a copy thereof to be recorded in the office of the
county clerk and recorder in each county in which a portion of such
new district is located. If the proposition carries, the regents also shall
determine which candidates have been elected trustees. Should the
proposition to organize the community college district fail to receive a



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majority of the votes cast thereon, no tabulation shall be made to
determine the candidates elected trustees.

(2) Within 30 days of the date of the organization order, the
regents shall set a date and call an organization meeting for the board
of trustees of the community college district and shall notify the duly
elected trustees of their membership and of the organization meeting.
Such notification shall designate a temporary chairman and secretary
for the purposes of organization.

Your questions arise from the lack of clarity of the second sentence of subsection (1 )
calling for approval by the legislature "upon the recommendation of the regents."

This statute is actually an amalgam of three different bills passed by the 1971
Legislature. 1971 Mont. Laws ch. 5, § 459; ch. 164, § 1; ch. 407, § 2. The second
and third bills amended the first after it was codified as Rev. Codes Mont. 1947
§ 75-81 1 2, and the compiler's comments to the original codification of the statute
indicate that the amending bills did not refer to each other and were in some
respects inconsistent with one another. Meaning therefore cannot be sensibly
drawn from the organization of the material within the statute.

Guidance on your first question can be found in the title of the third amendment,
which is the one that added the provisions of what is now the second sentence of
subsection (1). Peretti v. State , 238 Mont. 239, 777 P. 2d 329 (1989) ("[T]he title of
an act is presumed to indicate the legislature's intent with regard to the provisions
contained therein.") The title of 1971 Mont. Laws reads in pertinent part:

An Act to . . . Amend Section 75-81 1 2, R.C.M. 1 947, . . . requiring Final
Approval By the Legislature Upon Recommendation of the Board of
Regents for the Establishment of a New Community College District.

(Emphasis added.) Given the detailed procedural requirements set forth elsewhere
in the statute, the inclusion of the word "Final" can fairly be read as an indication that
the Legislature intended its approval to be the last substantive step authorizing the
district to begin operation.

It would have been a simple matter for the Legislature clearly to state the contrary if
that were its intent. Moreover, it would be odd for the Legislature to pass on a
proposal for the creation of a district without knowing whether the proposal had
enough support in the local community to generate a favorable vote. I therefore
conclude that the legislative approval requirement in Mont. Code Ann. § 20-15-209
occurs after the coordinator of community colleges certifies that the proposal has
received the required votes for voter approval.

The provision of the statute for the Board of Regents to issue an organizational order
is therefore properly viewed to be triggered by legislative approval. The timeline you
have provided appears consistent with the statutory procedures in this respect.

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II.

Your second question is whether the phrase "acting upon recommendation of the
regents" means that the Legislature may approve creation of the district only if the
Board of Regents positively recommended approval. In my opinion the answer is
no. "Recommendation" is different from "approval" in that a recommendation may
be either positive or negative, or in some cases neither completely positive nor
completely negative. The statute nowhere else provides a requirement that the
Board of Regents approve creation of the district. Rather it appears to create a role
for the Board of Regents and the commissioner's staff that is ministerial in nature. If
the Legislature had intended to require regent approval before submission of the
proposal to the Legislature, it could easily have said so directly.

In my view the term "recommendation" is not ambiguous with respect to whether it
contemplates only positive advice. Its plain meaning includes any sort of
recommendation, whether positive, negative, or otherwise. When a statute's plain
meaning may be discerned from its language, no further interpretation is required.
State ex rel. Cobbs v. Montana Dep't of Social and Rehabilitation Servs. , 274 Mont.
1 57, 1 62, 906 P. 2d 204, 208 (1 995) ("The Court is to effectuate the intent of the
Legislature, and if the Legislature's intent can be determined from the plain meaning
of the words used in a statute, the courts may not go further and apply any other
means of interpretation.") I therefore conclude that the Board of Regents must make


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