SENATE BILL NO. 412
INTRODUCED BY S. STANG, D. MOOD, C. AHNER, T. BECK, R. BITNEY, W. CRISMORE, B. DEPRATU, B. GLASER, D. GRIMES, L. GROSFIELD, D. HARGROVE, B. LAWSON, K. OHS, P. SLITER
AN ACT GENERALLY REVISING THE REQUIREMENTS FOR CONTROL AND MANAGEMENT OF TIMBER SLASH; CLARIFYING THAT FIRE HAZARD REDUCTION AGREEMENTS APPLY ONLY TO PRIVATE FOREST LANDS; REQUIRING THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION TO ADOPT FIRE HAZARD REDUCTION RULES; REVISING THE BOND PROVISION AND RELEASE PROCEDURES; AMENDING SECTIONS 76-13-401, 76-13-403, 76-13-408, 76-13-409, 76-13-410, 76-13-411, 76-13-412, 76-13-414, AND 76-13-415, MCA; AND PROVIDING AN EFFECTIVE DATE AND AN APPLICABILITY PROVISION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 76-13-401, MCA, is amended to read:
"76-13-401. Definitions. As used in this part, the following definitions apply:
(1) "Board" means the board of land commissioners provided for in Article X, section 4, of the Montana constitution.
(2)(1) "Certification "Certificate of clearance" means a certification certificate issued by the department acknowledging
that the fire hazard has been reduced or managed in accordance with this part and the fire hazard reduction agreement or
agreements.
(3)(2) "Contractor" means the person who executes the fire hazard reduction agreement and is responsible to fulfill the
obligations established by the agreement.
(4)(3) "Department" means the department of natural resources and conservation provided for in Title 2, chapter 15, part
33.
(4) "Exemption certificate" means an exemption from the provisions of this part that must be granted by the department for the harvest of merchantable trees within the boundaries of an incorporated city or town.
(5) "Fire hazard" means slash and debris resulting from timber cutting, timber stand improvement, or right-of-way clearing operations that produce a cover of flammable material in which fire could spread through a cutting or adjacent area.
(6) "Fire hazard reduction agreement" means a contract made to ensure compliance with this part and with the rules adopted under 76-13-403 for fire hazard reduction or management on private forest lands.
(7) "Fire hazard reduction or management" means the abatement of a fire hazard on private forest lands by methods that include but are not limited to separation, removal, scattering, lopping, crushing, piling and burning, broadcast burning, burying, or chipping.
(8) "Forest product" means trees or their component parts, including but not limited to logs, poles, branches, or bark.
(9) "Master fire hazard reduction agreement" means a fire hazard reduction agreement between the department and persons engaged in continuing cutting operations of sufficient number and size to warrant covering these operations under a single agreement and a single bond.
(10) "Person" means an individual, association, partnership, corporation, estate, or any other entity.
(11) "Private forest lands" means all lands of whatever character containing merchantable timber that are not owned by the state, a political subdivision of the state, the United States, any agency of the United States, or an Indian tribe.
(11)(12) "Purchaser" means a person who purchases or contracts to purchase any forest products cut from private forest
lands within the state. The term includes persons who purchase products manufactured on the cutting area."
Section 2. Section 76-13-403, MCA, is amended to read:
"76-13-403. Supervision by department. The department may shall adopt and enforce rules by October 1, 2000, to
supervise and inspect the fire hazard reduction or management of all fire hazards created by forest products harvesting,
timber stand improvement, and right-of-way clearing on private forest land lands in the state, recognizing the benefits of
slash retention."
Section 3. Section 76-13-408, MCA, is amended to read:
"76-13-408. Fire hazard reduction agreement and bond -- bond release and penalty. (1) Before cutting any forest product, constructing or reconstructing any road in contemplation of cutting any forest product, or conducting timber stand improvement, such as but not limited to precommercial thinning, weeding, or pruning, upon private forest lands within the state, the person conducting the work must be issued an exemption certificate by the department or shall provide for the reduction or management of the fire hazard to be created by entering into a fire hazard reduction agreement or a master fire hazard reduction agreement with the department, providing for the full and faithful compliance with all requirements under this part and the faithful reduction or management of the fire hazard in the manner prescribed by law and by rules adopted under this part.
(2) Either the person conducting the work or the purchaser, as provided in 76-13-409(2), shall post a bond to the state in a form and for an amount as may be prescribed by the department, but the amount may not exceed $6 for each 1,000 board feet (log scale) or the equivalent if forest products other than logs are cut. Bond amounts for master fire hazard reduction agreements are calculated to cover the potential cost to the department for fire hazard abatement in case of default and are based on the average annual volume of uncompleted abatement. Master fire hazard reduction agreement bonds are to be administered as nonsite-specific umbrella bonds, for which the entire bond or any portion of the bond may be collected to pay for unabated fire hazards on any or all sites covered by the bond. The department shall review master fire hazard reduction agreement bond amounts at least annually. The bonds must be adjusted according to the volume of timber harvested and the level of compliance of the bond provider.
(3) Either the person conducting the work or the purchaser, as provided in 76-13-409(2), shall pay 15 cents for each
1,000 board feet (log scale) or equivalent measure if forest products other than logs are cut. The assessment may not exceed
$20,000 a year. The full amount of this money must be deposited in the forestry extension service account provided for in
76-13-415.
(4)(3) The agreement must provide that:
(a) all fire hazard reduction or management work comprising nonburning methods and preparations for burning must be completed within 18 months of commencement of cutting in the area covered by the agreement; and
(b) all burning work must be completed as specified in the agreement and in compliance with rules adopted under this part.
(5)(4) The bond must be released upon the issuance of the certificate of clearance. At the request of the fire hazard
reduction agreement holder, cash bonds for fire hazard reduction agreements exceeding 200,000 board feet, or the
equivalent, must be partially released upon satisfactory completion of slash piling if the fire hazard reduction agreement
holder has a record of compliance with the provisions of 76-13-407 or this section. The department may inspect the sites for
which release or partial release is being requested, or it may rely on the submittal of a signed affidavit and relevant site
photographs provided by the person posting the bond. A person that submits a fraudulent affidavit or photographs is subject
to the penalty provisions of 45-7-202, may have other fire hazard reduction agreements revoked, or may be denied the
issuance of fire hazard reduction agreements in the future."
Section 4. Section 76-13-409, MCA, is amended to read:
"76-13-409. Duty of purchaser to ensure compliance -- statement -- bond. (1) The initial purchaser of forest
products which that have been cut or are about to be cut from any private forest lands within the state shall, before making
the purchase or contract to purchase, determine that the person engaged or about to engage in the cutting of these forest
products has provided for the reduction or management of the fire hazard by entering into a fire hazard reduction agreement
or that the person has been issued an exemption certificate as provided in 76-13-408.
(2) The purchaser shall withhold sufficient money to meet the requirements of the bond provided for in 76-13-408 plus the fees for administration, inspection, and enforcement by the department as provided in the fire hazard reduction agreement. The purchaser shall transmit all money and fees that are withheld and a report of volumes of products purchased to the department on or before the 15th day of the following month, clearly identifying by number the fire hazard reduction agreement to which the withheld money, fees, and product volumes pertain. The purchaser shall keep accurate records of the purchase and the amounts withheld, which may be inspected by the department at any reasonable time.
(3) If forest products are not received or purchased in a given month, a report showing a zero balance and stating that products were not purchased must be submitted to the department.
(4) The department may require the purchaser to post a bond to the state in a form and for an amount as may be prescribed by the department to ensure faithful compliance with this part."
Section 5. Section 76-13-410, MCA, is amended to read:
"76-13-410. Failure to comply. (1) If a person fails, refuses, or neglects to properly reduce or manage the fire hazard in
accordance with the requirements of 76-13-407 and 76-13-408, he the person may be enjoined from further cutting,
clearing, and construction operations until the department has found the person to be in compliance with 76-13-407 and
76-13-408 have been complied with. The department may initiate the proceedings and may obtain a temporary restraining
order, injunction, or writ of mandate. The proceedings shall must be conducted in the district court of the county where the
land is located.
(2) If a person fails to comply with 76-13-407 or 76-13-408 and fails to comply within 30 days after being notified to do so by the department, the department may complete, direct, or authorize the fire hazard reduction or management at the expense of the contractor or of the owner of the timber or other forest products cut or produced from the land upon which the unabated fire hazard remains.
(3) The cost and expense of the fire hazard reduction or management work, plus 20% of the cost and expense of the
work as a penalty, constitutes constitute a lien upon the forest products cut or produced from the land and upon the real and
personal property of the contractor. If payment of the sum demanded is not made to the department within 10 15 days of its
written demand, the performance bond required by 76-13-408 and 76-13-409, upon notice to the contractor, must be
automatically forfeited to the extent needed to cover the cost and expenses of reducing or managing the fire hazard, plus a
penalty of 20% of the cost and expenses. If the bond is insufficient to cover the cost, expenses, and penalty, the department
shall may bring legal action on behalf of the state to recover the debt cost, expenses, and penalty.
(4) In addition to other remedies provided in this part, the department may, after notice, require a person to show cause why the department should not withhold the issuance of any further fire hazard reduction agreement or exemption certificate to a person that:
(a) harvests timber without a valid fire hazard reduction agreement; or
(b) has forfeited the performance bond on a fire hazard reduction agreement within the 2 preceding years and fails, refuses, or neglects to properly reduce or manage the fire hazard in accordance with 76-13-407 or 76-13-408 within 30 days after being notified by the department.
(5) If the person fails to show sufficient cause as required by subsection (4), the department may withhold the issuance of any further fire hazard reduction agreement or exemption certificate for a period not to exceed 3 years."
Section 6. Section 76-13-411, MCA, is amended to read:
"76-13-411. Certification Certificate of clearance. When the department makes a determination of faithful
compliance by the contractor with this part, the rules adopted under 76-13-403, and the fire hazard reduction agreement, the
contractor must be issued a certification certificate of clearance by the department and be relieved of any further liability or
responsibility for fire hazard reduction or management under the fire hazard reduction agreement."
Section 7. Section 76-13-412, MCA, is amended to read:
"76-13-412. Violations. A person convicted of violating this part, except 76-13-408(4), is guilty of a misdemeanor and shall be fined not less than $100 or more than $1,000."
Section 8. Section 76-13-414, MCA, is amended to read:
"76-13-414. Fees. (1) In addition to any bond, the department shall charge the contractor fees for administration, inspections, and enforcement work conducted in the exercise of its duties under this part. The fees must be deposited in the state special revenue fund to the credit of the department.
(2) (a) The fee for a fire hazard reduction agreement is $25 and must be collected by the department upon issuance of the agreement.
(b) In addition, a fee of 60 cents for each 1,000 board feet (log scale) must be charged or an equivalent fee must be
charged if products other than logs are cut. This fee must be withheld by the purchaser as provided in 76-13-409(2), except
that any fee money withheld for product volumes exceeding 500,000 board feet per for each agreement in a calendar year
must be returned to the contractor by the department.
(c) Either the person conducting the work or the purchaser, as described in 76-13-409, shall pay 15 cents for each 1,000 board feet (log scale) or the equivalent measure if forest products other than logs are cut. The assessment may not exceed $20,000 a year. The full amount of this money must be deposited in the forestry extension service account provided for in 76-13-415.
(3) (a) The fee for master fire hazard reduction agreements must be equal to 100% of the department's actual costs incurred in the direct administration, inspection, and enforcement of each agreement, and the department shall submit a detailed bill to the contractor annually to collect the fees.
(b) In addition, each contractor with a master fire hazard reduction agreement shall pay to the department 15 cents for
each 1,000 board feet (log scale) or equivalent measure if forest products other than logs are cut. The assessment may not
exceed $20,000 a year for each master fire hazard attachment agreement. The full amount of this money must be deposited
in the forestry extension service account provided for in 76-13-415.
(c) The fee required under subsection (3)(b) must be paid annually in conjunction with the fee paid under subsection (3)(a). The department may, in its discretion, conduct an audit to determine the volume of forest products harvested by a contractor. If the department conducts an audit, the contractor shall cooperate and make available to the department all requested records, inventories, and other information relevant to the audit."
Section 9. Section 76-13-415, MCA, is amended to read:
"76-13-415. Forestry extension service account -- purpose -- appropriation. (1) There is a forestry extension service account in the current restricted fund provided for in 17-2-102.
(2) There must be deposited in the account:
(a) all revenue from the fire hazard reduction agreement provided for in 76-13-408(3) 76-13-414(2)(c);
(b) all revenue from the master fire hazard reduction agreement provided for in 76-13-414(3)(b); and
(c) money received by the department in the form of legislative appropriations, reimbursements, gifts, federal funds, or appropriations from any source intended to be used for the purposes of this account.
(3) Money in the account is available to the Montana university system by appropriation for the uses set forth in
subsection (4). Any unencumbered and unexpended balance of this account remaining in this account at the end of a fiscal
year does not lapse but must be carried forward for the purposes of this section until expended or appropriated.
(4) Except as provided in subsection (5), money in the account may be used by the university system only to fund forestry services through the Montana cooperative extension service of Montana state university-Bozeman. The forestry services must be conducted at Montana state university-Bozeman, the university of Montana-Missoula, and Flathead Valley community college.
(5) The use of money in this account by the Montana university system is contingent upon the university system funding the extension service's forestry and natural resources program at a biennial level of at least $108,000 from sources other than the account."
Section 10. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
Section 11. Effective date. [This act] is effective July 1, 1999.
Section 12. Applicability. [This act] applies to any existing fire hazard agreement when violations of the existing fire hazard agreement have been identified by the department.
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