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NA ADMINISTRATIVE REGISTER

ISSUE NO. 6

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proposed new, amended, or repealed rules; the rationale for the change; date and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

ADMINISTRATION, Department of, Title 2

2-2-379 (Public Employees' Retirement Board) Notice of Proposed
Amendment - Investment Policy Statement for the Defined
Contribution Retirement Plan - Investment Policy Statement for the
457 Deferred Compensation Plan. No Public Hearing Contemplated. 320-322

COMMERCE, Department of, Title 8

8-119-56 Notice of Proposed Amendment - Tourism Advisory

Council. No Public Hearing Contemplated. 323-325

FISH, WILDLIFE, AND PARKS, Department of, Title 12

12-324 (Fish, Wildlife, and Parks Commission) Notice of Public
Hearing on Proposed Amendment - No Wake Zone at White Sandy
Recreation Area on Hauser Lake. 326-327

ENVIRONMENTAL QUALITY, Department of, Title 17

17-257 (Board of Environmental Review) (Water Quality) Notice of
Extension of Comment Period on Proposed Amendment -
Outstanding Resource Water Designation for the Gallatin River. 328-329



6-3/22/07



Page Number

JUSTICE, Department of, Title 23

23-4-185 Notice of Public Hearing on Proposed Amendment -
Definitions - Field Certification-Breath Analysis Instruments - Lab
Certification - Qualification-Breath Analysis Location - Personnel
Qualifications - Recertification-Breath Test Personnel - Blood Sample
Collections - Preliminary Alcohol Screening Tests. 330-336

LABOR AND INDUSTRY, Department of. Title 24

24-29-214 Notice of Public Hearing on Proposed Adoption - Insurer

Reporting Requirements. 337-339

LIVESTOCK, Department of, Title 32

32-7-186 (Board of Horse Racing) Notice of Proposed Adoption -
Match Bronc Rides Under the Parimutuel System. No Public Hearing
Contemplated. ~ 340-345

RULE SECTION

COMMERCE, Department of, Title 8

AMD Award of Grants and Loans Under the Big Sky Economic

Development Program. 346

LABOR AND INDUSTRY, Department of, Title 24

Corrected Notice of Amendment and Adoption - (Board of

Outfitters) Unprofessional Conduct and Misconduct. 347

AMD (Board of Psychologists) Definitions - Fee Schedule - Use

of Title - Required Supervised Experience. 348-349

NATURAL RESOURCES AND CONSERVATION, Department of, Title 36

AMD (Board of Oil and Gas Conservation) Plugging and

Restoration Bond - Financial Responsibility. 350

PUBLIC HEALTH AND HUMAN SERVICES, Department of, Title 37

NEW Tattooing and Body Piercing.

REP 351-364



6-3/22/07



Page Number
SPECIAL NOTICE AND TABLE SECTION

Function of Administrative Rule Review Committee. 365-366

How to Use ARM and MAR. 367

Accumulative Table. 368-376

Boards and Councils Appointees. 377-386

Vacancies on Boards and Councils. 387-399



-iii- 6-3/22/07



-320-



BEFORE THE PUBLIC EMPLOYEES' RETIREMENT BOARD
OF THE STATE OF MONTANA



NOTICE OF PROPOSED
AMENDMENT

NO PUBLIC HEARING
CONTEMPLATED



In the matter of the proposed amendment
of ARM 2.43.1 002 pertaining to the
investment policy statement for the
Defined Contribution Retirement Plan and
ARM 2.43.1802 pertaining to the
investment policy statement for the 457
Deferred Compensation Plan

TO: All Concerned Persons

1. On May 25, 2007, the Montana Public Employees' Retirement Board
proposes to amend the above-stated rules.

2. The Public Employees' Retirement Board will make reasonable
accommodations for persons with disabilities who wish to participate in this
rulemaking process and need an alternative accessible format of this notice. If you
require an accommodation, contact the Public Employees' Retirement Board no
later than 5:00 p.m. on April 13, 2007, to advise us of the nature of the
accommodation that you need. Please contact Angela Salvitti, Montana Public
Employee Retirement Administration, 100 North Park Avenue, Suite 200, P.O. Box
200131, Helena, Montana 59620-0131; telephone (406) 444-2578; TDD (406)444-
1421 ; FAX (406) 444-5428; e-mail [email protected]

3. The rules proposed to be amended provide as follows, stricken matter
interlined, new matter underlined:

2.43.1002 ADOPTION OF INVESTMENT POLICY STATEMENT AND
STABLE VALUE FUND INVESTMENT GUIDELINES (1 ) The board adopts and
incorporates by reference the State of Montana 401 (a) Defined Contribution Plan
Investment Policy Statement approved by the board on January 27, 2005 February
8, 2007 .

(2) and (3) remain the same.

AUTH: 19-3-2104, MCA

IMP: 19-3-2104, 19-3-2122, MCA

2.43.1802 ADOPTION OF INVESTMENT POLICY STATEMENT AND
STABLE VALUE FUND INVESTMENT GUIDELINES (1 ) The board adopts and
incorporates by reference the State of Montana 457 Plan (Deferred Compensation)
Investment Policy Statement approved by the board on January 27, 2005 February
8, 2007 .

(2) and (3) remain the same.

AUTH: 19-50-102, MCA
MAR Notice No. 2-2-379 6-3/22/07



-321-



IMP: 19-50-102, MCA

STATEMENT OF REASONABLE NECESSITY: The Montana Public Employees'
Retirement Board (PER Board), as the administrator of the Defined Contribution
Retirement Plan (DCRP) of the Public Employees' Retirement System and the
Deferred Compensation Plan (457 Plan), adopted the original investment policy
statements for both plans by reference in 2002. The PER Board last amended both
investment policy statements on February 8, 2007. Most of the amendments are
format changes. There are also several substantive amendments. Identical
changes were made to both investment policy statements.

Under "Quantitative Measures" the board changed "Funds must . . ." to "Funds are
expected to . . ." in order to have greater flexibility when reviewing funds that fail to
meet one or two measures for a short period of time. This change addresses
participants' concerns regarding the discontinuation of a fund that has an overall
positive history.

Under "Evaluation of Investment Alternatives", the board added "Review Status" that
permits watching investment options for any type of shift in performance and
"Probation Status" to clarify what is meant by probation and how long probation
status may remain in effect. An additional change in this section clarifies that
investments on "review" or "probation" status may remain in that status for more
than one review period.

Finally, the board, on the advice of its investment consultant, determined to use
"rolling five years measuring periods" rather than a flat three-year period when
selecting funds and reviewing fund performance.

Section 2-4-307(3), MCA, requires that the amended investment policy statements
be adopted by reference.

4. Concerned persons may present their data, views, or arguments
concerning the proposed amendment in writing to Roxanne Minnehan, Executive
Director, Public Employees' Retirement Board, 100 North Park Avenue, Suite 200,
P.O. Box 200131 , Helena, Montana 59620-0131 ; FAX (406) 444-5428; e-mail
[email protected] and must be received no later than 5:00 p.m., April 23, 2007.

5. If persons who are directly affected by the proposed amendment wish to
express their data, views, and arguments orally or in writing at a public hearing, they
must make written request for a hearing and submit this request along with any
written comments they have to the Public Employees' Retirement Board, 100 North
Park Avenue, Suite 200, P.O. Box 2001 31 , Helena, Montana 59620-01 31 ; FAX
(406) 444-5428; e-mail [email protected] and must be received no later than 5:00
p.m., April 23, 2007.

6. If the board receives requests for a public hearing on the proposed
amendment from either 10% or 25, whichever is less, of the persons who are directly

6-3/22/07 MAR Notice No. 2-2-379



-322-



affected by the proposed adoption; from the appropriate administrative rule review
committee of the legislature; from a governmental subdivision or agency; or from an
association having not less than 25 members who will be directly affected, a hearing
will be held at a later date. Notice of the hearing will be published in the Montana
Administrative Register. Ten percent of those persons directly affected has been
determined to be 828 persons based on approximately 1279 DCRP members and
approximately 7000 457 Plan participants.

7. The Public Employees' Retirement Board maintains a list of interested
persons who wish to receive notices of rulemaking actions proposed by the agency.
Persons who wish to have their name added to the list shall make a written request
which includes the name and mailing address of the person to receive notices and
specifies that the person wishes to receive notices regarding public retirement
rulemaking actions. Such written request may be mailed or delivered to Angela
Salvitti, Montana Public Employee Retirement Administration, 100 North Park
Avenue, Suite 200, P.O. Box 2001 31 , Helena, Montana 59620-01 31 ; faxed to the
office at (406) 444-5428; or e-mailed to [email protected], or may be made by
completing a request form at any rules hearing held by the Public Employees'
Retirement Board.

8. The bill sponsor notice requirements of 2-4-302, MCA, do not apply.



/s/ Carole Carey



Carole Carey, President

Public Employees' Retirement Board



/s/ Melanie Symons



Melanie Symons, General Counsel and
Rule Reviewer



/s/ Dal Smilie



Dal Smilie, Chief Legal Counsel and
Rule Reviewer



Certified to the Secretary of State on March 12, 2007.



MAR Notice No. 2-2-379 6-3/22/07



-323-



BEFORE THE DEPARTMENT OF COMMERCE
OF THE STATE OF MONTANA



In the matter of the proposed
amendment of ARM 8.119.101
pertaining to the Tourism Advisory
Council



TO: All Concerned Persons



NOTICE OF PROPOSED
AMENDMENT

NO PUBLIC HEARING
CONTEMPLATED



1 . On April 25, 2007, the Department of Commerce proposes to amend the
above-stated rule.

2. The Department of Commerce will make reasonable accommodations for
persons with disabilities who wish to participate in this rulemaking process and need
an alternate accessible format of this notice. If you require an accommodation,
contact the department no later than 5:00 p.m., April 5, 2007, to advise us of the
nature of the accommodation that you need. Please contact Barbara Sanem,
Department of Commerce, Montana Promotion Division, 301 S. Park Avenue, P.O.
Box 200533, Helena, Montana 59620-0533; telephone (406) 841-2769; fax (406)
841-2871 ; or e-mail [email protected]

3. The rule as proposed to be amended provides as follows, stricken matter
interlined, new matter underlined:

8.119.101 TOURISM ADVISORY COUNCIL (1) remains the same.

(2) The Tourism Advisory Council incorporates by reference the guide
entitled "Regulations and Procedures for Regional/CVB Tourism Organizations,
February 2005 2007 ," setting forth the regulations and procedures pertaining to the
distribution of lodging facility use tax revenue. The guide is available for public
inspection during normal business hours at the Montana Promotion Division,
Department of Commerce, 301 S. Park Avenue, Helena, Montana 59620. Copies of
the guide are available on request.

(3) Distribution of funds to regional nonprofit tourism corporations and to
nonprofit convention and visitors' bureaus is contingent upon compliance with the
"Regulations and Procedures for Regional/CVB Tourism Organizations, February-
2005 2007 ."

AUTH: 2-15-1816, MCA
IMP: 2-15-1816, MCA

REASON : It is reasonably necessary to amend this rule to provide
clarification because the "2007 Regulations and Procedures for the Regional/CVB
Tourism Organizations" have been revised and reorganized.



6-3/22/07 MAR Notice No. 8-1 1 9-56



-324-



4. Concerned persons may submit their data, views, or arguments
concerning the proposed action in writing to: Barbara Sanem, Department of
Commerce, Montana Promotion Division, 301 S. Park Avenue, P.O. Box 200533,
Helena, Montana 59620-0533; fax (406) 841-2871 ; or e-mail [email protected]
Comments must be received no later than April 20, 2007.

5. If persons who are directly affected by the proposed action wish to express
their data, views, or arguments orally or in writing at a public hearing, they must
make written request for a hearing and submit this request along with any written
comments to Barbara Sanem at the above address no later than 5:00 p.m., April 20,
2007.

6. If the department receives requests for a public hearing on the proposed
action from either 10% or 25, whichever is less, of the persons who are directly
affected by the proposed action; from the appropriate administrative rule review
committee of the legislature; from a governmental subdivision or agency; or from an
association having not less than 25 members who will be directly affected, a hearing
will be held at a later date. Notice of the hearing will be published in the Montana
Administrative Register. Ten percent of those has been determined to be 20
persons based on 1 1 Convention and Visitor Bureaus, six Tourism Regions, and at
least 184 potential applicants for grants of accommodation tax funds.

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 which includes the name
and mailing address of the person and specifies for which program the person
wishes to receive notices. Such written request may be mailed or delivered to the
Department of Commerce, 301 S. Park Avenue, P.O. Box 200501 , Helena, Montana
59620-0501 , or by fax (406) 841 -2701 , or may be made by completing a request
form at any rules hearing held by the department.

8. An electronic copy of this Notice of Proposed Amendment is available
through the department's web site at http://commerce.mt.gov. The department
strives to make the electronic copy of the 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 works 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.

9. The bill sponsor notice requirements of 2-4-302, MCA, do not apply.



MAR Notice No. 8-1 1 9-56 6-3/22/07



-325-

DEPARTMENT OF COMMERCE

/s/G. MARTIN TUTTLE /s/ ANTHONY J. PREITE

G. MARTIN TUTTLE ANTHONY J. PREITE

Rule Reviewer Director

Certified to the Secretary of State March 12, 2007.



6-3/22/07 MAR Notice No. 8-1 1 9-56



-326-



BEFORE THE FISH, WILDLIFE AND PARKS COMMISSION
OF THE STATE OF MONTANA

In the matter of the amendment of ) NOTICE OF PUBLIC HEARING ON

ARM 12.1 1.3205 pertaining to a no ) PROPOSED AMENDMENT

wake zone at White Sandy Recreation )

Area on Hauser Lake )

To: All Concerned Persons

1 . On April 1 8, 2007, at 6:00 p.m. the Fish, Wildlife and Parks
Commission (commission) will hold a public hearing at the Lewis and Clark Public
Library, 120 South Last Chance Gulch, Helena, Montana to consider the
amendment of the above-stated rule.

2. The commission will make reasonable accommodations for persons
with disabilities who wish to participate in these public hearings or need an
alternative accessible format of this notice. If you require an accommodation,
contact the commission no later than 5:00 p.m. on March 29, 2007, to advise us of
the nature of the accommodation that you need. Please contact Craig Marr, Fish,
Wildlife and Parks, Helena Area Resource Office, 1420 East 6th Avenue, P.O. Box
200701 , Helena, MT 59620-0701 ; telephone (406) 495-3270; fax (406) 495-3273; e-
mail [email protected]

3. The rule proposed to be amended provides as follows, stricken matter
interlined, new matter underlined:

12.11.3205 HAUSER RESERVOIR (1) Hauser Reservoir is located in Lewis
and Clark County.

(2) Hauser Reservoir is limited to a controlled no wake speed, as defined in
ARM 12.11.101(1), in the following areas:

(a) Lakeside marina within 300 feet of the docks or as buoyed;

(b) Hauser Lake State Park at Black Sandy Beach within 300 feet of the
docks or as buoyed;

(c) Spokane Creek Bay within 500 feet from the mouth of the bay or as
buoyed;

(d) Devil's Elbow Campground, from the campground shore to 100 feet into
the Missouri River channel or as buoyed;

(e) Clark's Bay from shoreline to 300 feet from shore or as buoyed; and

(f) York Bridge fishing access site within 300 feet of the boat ramp and dock
area or as buoyed^ ; and

(q) White Sandy Recreation Area within 300 feet of docks and swim area or
as buoyed.

(3) The upper end of Hauser Reservoir from Canyon Ferry Dam to below
Brown's Gulch is either closed as posted or marked by barrel booms to the use of all
watercraft, during the time period beginning October 15 and ending December 15 of
each year.

MAR Notice No. 12-324 6-3/22/07



-327-



AUTH: 23-1-106, 87-1-303, MCA

IMP: 23-1-106, 87-1-303, MCA

4. The primary purpose of this rule amendment is to protect public safety.
The Bureau of Land Management (BLM) has developed the White Sandy Recreation
Area on Hauser Reservoir which will be open for public use this summer. The site
will provide day use and overnight camping opportunities for the public. With the
development of the new site and a large capacity for motorboat launching, there will
be increased use in the area. The BLM petitioned the commission to establish a no
wake zone 300 feet from the docks, boat ramp, and swim area at White Sandy
Recreation Area to maintain public safety around the high use areas of the site.
Other advantages of the no wake zone are to protect the unstable, sandy shoreline
from further erosion and to protect visitors' personal property by reducing wave
action around the boat ramp and docks which could damage boats moored at the
dock or beached on the shoreline. The proposed no wake zone will be consistent
with previously established no wake zones at Black Sandy State Park, York Bridge
fishing access site, Devil's Elbow Campground, and Clark's Bay Recreation Site.

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 Craig Marr, Fish, Wildlife and Parks, Helena Area Resource Office,

1 420 East 6th Avenue, P.O. Box 200701 , Helena, MT 59620-0701 ; telephone (406)
495-3270; fax (406) 495-3273; e-mail [email protected] and must be received no later
than April 19, 2007.

6. Rebecca Dockter, or another hearing officer appointed by the
department, has been designated to preside over and conduct the hearing.

7. The Department of Fish, Wildlife and Parks maintains a list of
interested persons who wish to receive notice of rulemaking actions proposed by the
commission or department. Persons who wish to have their name added to the list
shall make written request which includes the name and mailing address of the
person to receive the notice and specifies the subject or subjects about which the
person wishes to receive notice. Such written request may be mailed or delivered to
Fish, Wildlife and Parks, Legal Unit, P.O. Box 200701 , 1 420 East Sixth Avenue,
Helena, MT 59620-0701 , faxed to the office at (406) 444-7456, or may be made by
completing the request form at any rules hearing held by the commission or
department.

8. The bill sponsor notice requirements of 2-4-302, MCA, do not apply.



/s/ M. Jeff Hagener /s/ Rebecca Dockter

M. Jeff Hagener, Secretary Rebecca Dockter

Fish, Wildlife and Parks Commission Rule Reviewer

Certified to the Secretary of State March 12, 2007
6-3/22/07 MAR Notice No. 12-324



-328-



BEFORE THE BOARD OF ENVIRONMENTAL REVIEW
OF THE STATE OF MONTANA



In the matter of the amendment of ARM )

1 7.30.61 7 and 1 7.30.638 pertaining to )

outstanding resource water designation )

for the Gallatin River )

)
TO: All Concerned Persons



NOTICE OF EXTENSION OF

COMMENT PERIOD ON
PROPOSED AMENDMENT

(WATER QUALITY)



1. On October 5, 2006, the Board of Environmental Review published MAR
Notice No. 17-254 regarding a notice of public hearing on the proposed amendment
of the above-stated rules at page 2294, 2006 Montana Administrative Register,
issue number 19.

2. The board received a number of comments opposing adoption of the
proposed rule amendments on grounds that the amended rules would render a
number of properties in the Big Sky area undevelopable. The draft environmental
impact statement on the proposed rule amendments indicates that the rule
amendments would not preclude full development in the Big Sky area if certain
mechanisms, such as central sewers and advanced treatment, are implemented.
However, the record does not indicate whether regulatory or other means to require
or facilitate implementation of these mechanisms are feasible. The board has been
notified that that the original petitioners for this rulemaking and developers have
been discussing means of accomplishing this goal. The board is therefore extending
the comment period to July 2, 2007, to allow the public to provide comment on the
issue of whether, if the proposed rule amendments are adopted, mechanisms to
allow full development of properties in the Big Sky area can be developed and
implemented.

3. Written data, views, or arguments may be submitted to the board secretary
at Board of Environmental Review, 1520 E. Sixth Avenue, P.O. Box 200901, Helena,
Montana 59620-0901 ; faxed to (406) 444-4386; or e-mailed to [email protected], no later
than July 2, 2007. To be guaranteed consideration, mailed comments must be
postmarked on or before that date.

4. The board will make reasonable accommodations for persons with
disabilities who wish to participate in this rulemaking action or need an alternative
accessible format of this notice. If you require an accommodation, contact the board
no later than 5:00 p.m., April 16, 2007, to advise us of the nature of the
accommodation that you need. Please contact the board secretary at P.O. Box
200901 , Helena, Montana 59620-0901 ; phone (406) 444-2544; fax (406) 444-4386;
or e-mail [email protected]



MAR Notice No. 17-257



6-3/22/07



-329-



Reviewed by: BOARD OF ENVIRONMENTAL REVIEW



/s/ John F. North /s/ Joseph W. Russell

JOHN F. NORTH JOSEPH W. RUSSELL, M.P.H.

Rule Reviewer Chairman

Certified to the Secretary of State, March 12, 2007.



6-3/22/07 MAR Notice No. 17-257



-330-



BEFORE THE DEPARTMENT OF JUSTICE
OF THE STATE OF MONTANA

In the matter of the amendment of ) NOTICE OF PUBLIC HEARING

rules 23.4.201, definitions, 23.4.213, ) ON PROPOSED AMENDMENT

field certification-breath analysis )

instruments, 23.4.214, lab certification, )

23.4.215, qualification-breath analysis )

location, 23.4.216, personnel )

qualifications, 23.4.217, recertification- )

breath test personnel, 23.4.220, blood )

sample collections, and 23.4.225, )

preliminary alcohol screening tests )

TO: All Concerned Persons

1 . On April 1 6, 2007, at 1 0:00 a.m., the Department of Justice will hold a
public hearing in the classroom of the Forensic Science Division of the Department
of Justice, 2679 Palmer, Missoula, Montana, to consider the amendment of the
above-stated rules.

2. The Department of Justice 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 the Department of Justice no later than 5:00 p.m. on April 2, 2007, to advise
us of the nature of the accommodation that you need. Please contact Jon Ellingson,
Department of Justice, 21 5 North Sanders, P.O. Box 201 401 , Helena, MT 59620-


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