Correctly printed for second reading: SB 219, SB 263, SB 314, SB 369, SB 27, SB 51, SB 159.

Examined by the sponsor and found to be correct: HB 159, HB 316, HB 466, HB 478, HB 480, HB 496.

Signed by the Speaker at 11:56 a.m., April 3, 1997: HB 316, HB 478, HB 496, HB 466, HB 159, HB 480.

1. Page 5, line 17.

Strike: subsection (G) in its entirety

Renumber: subsequent subsections

1. Title, line 6.

Following: ";"

Insert: "TRANSFERRING THE STAFF OF THE COMMISSION TO THE DEPARTMENT OF LABOR AND INDUSTRY;"

2. Title, line 7.

Strike: "COMMISSION STAFF"

Insert: "THE DEPARTMENT"

3. Title, line 8.

Strike: "COMMISSION TO ADOPT"

Insert: "ADOPTION OF"

4. Title, line 10.

Strike: "ITS"

5. Title, line 13.

Strike: "COMMISSION"

Insert: "COMMISSIONER"

Strike: "NOT"

6. Title, lines 14 and 15.

Strike: "COMMISSION STAFF" on line 14

Insert: "THE DEPARTMENT"

Following: "WITHIN" on line 14

Strike: remainder of line 14 through "DAY" on line 15

Insert: "10 BUSINESS DAYS"

Strike: "COMMISSION"

Insert: "DEPARTMENT"

7. Title, line 16.

Insert: "THE DEPARTMENT"

8. Title, line 18.

Strike: "COMMISSION"

Insert: "DEPARTMENT"

Strike: "REMOVAL"

Insert: "THE FILING"

Strike: "TO"

Insert: "IN"

9. Title, lines 19 and 20.

Following: ";" on line 19

Strike: remainder of line 19 through "NOVO;" on line 20

10. Title, line 21.

Following: "2-15-1706,"

Insert: "39-1-102, 49-2-101,"

11. Title, line 22.

Strike: "49-2-305,"

Following: "49-2-509,"

Insert: "AND"

12. Title, line 23.

Strike: "AND 49-2-601,"

Following: ";"

Insert: "REPEALING SECTIONS 49-2-201, 49-2-502, 49-3-304, 49-3-305, 49-3-306, 49-3-307, 49-3-308, 49-3-309, 49-3-310, 49-3-311, AND 49-3-312, MCA;"

Strike: "IMMEDIATE"

Strike: "A RETROACTIVE"

Insert: "AN"

13. Page 1, line 29.

Strike: "commission"

14. Page 1, line 30.

Strike: "of labor"

15. Page 2, line 1.

Strike: "commission staff"

Insert: "department"

16. Page 2, line 2.

Strike: "or assist"

17. Page 2, line 3.

Following: "commission"

Insert: "and the department"

18. Page 2, line 4.

Following: "."

Insert: "It is not the intent of the legislature that the department be prohibited from dismissing matters, from referring matters to other agencies following an initial inquiry and interview, or from reaching a decision in an investigation or contested case hearing."

19. Page 2, line 17.

Insert: "Section 3.  Section 39-1-102, MCA, is amended to read:

"39-1-102.   Duties of department. The department shall enforce all the laws of Montana relating to hours of labor, conditions of labor, prosecution of employers who default in payment of wages, protection of employees, and all laws relating to child labor which that regulate the employment of children in any manner and shall administer the laws of the state relating to free employment offices and all other state labor laws. The department shall investigate and enforce the laws prohibiting discrimination contained in Title 49, chapters 2 and 3, and provide a means for conciliation between parties."

"49-2-101.   Definitions. As used in this chapter, unless the context requires otherwise, the following definitions apply:

(1)  "Age" means number of years since birth. It does not mean level of maturity or ability to handle responsibility. These latter criteria may represent legitimate considerations as reasonable grounds for discrimination without reference to age.

(2) "Aggrieved party" means a person who can demonstrate a specific personal and legal interest, as distinguished from a general interest, and who has been or is likely to be specially and injuriously affected by a violation of this chapter.

(3)(5)  "Credit" means the right granted by a creditor to a person to defer payment of a debt, to incur debt and defer its payment, or to purchase property or services and defer payment. It includes without limitation the right to incur and defer debt that is secured by residential real property.

(4)(6)  "Credit transaction" means any invitation to apply for credit, application for credit, extension of credit, or credit sale.

(5)(7)  "Creditor" means a person who, regularly or as a part of the person's business, arranges for the extension of credit for which the payment of a financial charge or interest is required, whether in connection with loans, sale of property or services, or otherwise.

(6)(9)  "Educational institution" means a public or private institution and includes an academy; college; elementary or secondary school; extension course; kindergarten; nursery; school system; university; business, nursing, professional, secretarial, technical, or vocational school; or agent of an educational institution.

(8)(11)  "Employer" means an employer of one or more persons or an agent of the employer but does not include a fraternal, charitable, or religious association or corporation if the association or corporation is not organized either for private profit or to provide accommodations or services that are available on a nonmembership basis.

(10)(13) "Financial institution" means a commercial bank, trust company, savings bank, finance company, savings and loan association, credit union, investment company, or insurance company.

(11)(14) "Housing accommodation" means a building or portion of a building, whether constructed or to be constructed, that is or will be used as the sleeping quarters of its occupants.

(12)(15) "Labor organization" means an organization or an agent of an organization organized for the purpose, in whole or in part, of collective bargaining, of dealing with employers concerning grievances or terms or conditions of employment, or of other mutual aid and protection of employees.

(17)(a) "Organization" means a corporation, association, or any other legal or commercial entity that engages in advocacy of, enforcement of, or compliance with legal interests affected by this chapter.

(14)(18) "Person" means one or more individuals, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated employees' associations, employers, employment agencies, organizations, or labor organizations.

(b)  Discrimination based on, because of, on the basis of, or on the grounds of physical or mental disability includes the failure to make reasonable accommodations that are required by an otherwise qualified person who has a physical or mental disability. An accommodation that would require an undue hardship or that would endanger the health or safety of any person is not a reasonable accommodation.

(16)(20) (a) "Public accommodation" means a place that caters or offers its services, goods, or facilities to the general public subject only to the conditions and limitations established by law and applicable to all persons. It includes without limitation a public inn, restaurant, eating house, hotel, roadhouse, place where food or alcoholic beverages or malt liquors are sold for consumption, motel, soda fountain, soft drink parlor, tavern, nightclub, trailer park, resort, campground, barbershop, beauty parlor, bathroom, resthouse, theater, swimming pool, skating rink, golf course, cafe, ice cream parlor, transportation company, or hospital and all other public amusement and business establishments.

(b)  Public accommodation does not include an institution, club, or place of accommodation that proves that it is by its nature distinctly private. An institution, club, or place of accommodation may not be considered by its nature distinctly private if it has more than 100 members, provides regular meal service, and regularly receives payment for dues, fees, use of space, facilities, services, meals, or beverages, directly or indirectly, from or on behalf of nonmembers, for the furtherance of trade or business. For the purposes of this subsection (16) (20), any lodge of a recognized national fraternal organization is considered by its nature distinctly private.

Renumber: subsequent sections

20. Page 2, line 21.

Strike: "either under investigation by"

21. Page 2, line 22.

Strike: "or"

22. Page 2, line 24.

Following: line 23

Insert: "(2) The department's staff may request that a subpoena relating to a matter under investigation be issued by the commissioner or the commissioner's authorized representative. The authorized representative may not be involved in enforcement of human rights. The commissioner may subpoena witnesses, take testimony under oath, administer oaths, and require the production, for examination, of books, papers, or other intangible evidence.

Renumber: subsequent subsection

23. Page 2, line 28.

Strike: "Commission to adopt rules"

Insert: "Rules"

Following: "."

Insert: "(1)"

24. Page 2, line 29.

Following: "implement"

Insert: "the commission's responsibilities under"

25. Page 3, line 1.

Following: "rules"

Insert: "all applicable portions of"

26. Page 3, line 2.

Strike: "a portion of the Montana Code of Criminal Procedure,"

Insert: "the procedural provisions of Title 46"

27. Page 3, line 3.

Following: line 2

Insert: "(2) The department shall adopt procedural and substantive rules necessary to implement the department's responsibilities under this chapter. Rules adopted under this chapter must comply with the Montana Administrative Procedure Act. For contested case hearings conducted pursuant to 49-2-505, the department shall adopt all applicable portions of the Montana Rules of Civil Procedure and the Montana Rules of Evidence."

28. Page 3, line 4 through page 7, line 4.

Strike: section 5 in its entirety

Renumber: subsequent sections

29. Page 7, line 7.

Following: "filed"

Insert: "with the department"

Insert: "party"

30. Page 7, line 8.

Following: "."

Insert: "(2) A complaint may be filed on behalf of a party claiming to be aggrieved by a discriminatory practice prohibited by this chapter if the person acting on behalf of the aggrieved party is the aggrieved party's guardian, attorney, or duly authorized representative or an advocacy group, labor organization, or other organization acting as an authorized representative. (3)"

Renumber: subsequent subsections

31. Page 7, line 9.

Strike: "person"

Insert: "party"

32. Page 7, line 13.

Strike: "(2)(b)"

Insert: "(4)(b)"

33. Page 7, line 14.

Strike: "commission"

Insert: "department"

34. Page 7, line 24.

Following: "commission"

Insert: "or the department"

35. Page 7, line 28.

Following: "of"

Insert: "the commissioner or"

36. Page 8, line 2.

Strike: "settlement"

Insert: "investigation and conciliation"

Following: "."

Insert: "(1)(a)"

Strike: "commission staff"

Insert: "department"

37. Page 8, line 3.

Strike: "a filed"

Insert: "the"

Strike: "staff"

Insert: "department"

38. Page 8, line 4.

Strike: "immediately try to"

Insert: "attempt to achieve a resolution of the complaint by conference, conciliation, and persuasion that, in addition to providing redress for the complaint, includes conditions that"

39. Page 8, line 5.

Strike: "by conference, conciliation, and persuasion"

Insert: ", if any, identified in the investigation"

Strike: "staff"

Insert: "department"

Strike: "upon the first working day"

Insert: "within 10 business days"

40. Page 8, line 6.

Strike: "potential"

41. Page 8, lines 7 and 8.

Following: "filed complaint"

Strike: remainder of line 7 through "complaint" on line 8

Following: "."

Insert: "If requested, the department shall also provide the parties with all other information related to the complaint in the possession of the department that is not currently in the possession of the parties or a party. The department shall make known to the parties the fact that information is available upon request. The department may not investigate a complaint until it has received notice that the respondent has received the department's notification of the complaint. (b) If a complaint is filed relative to an employment-related complaint and if the commissioner decides that the inclusion of documents or information contained in the complaint would seriously impede the rights of a person or the proper investigation of the complaint, the information may be excluded from the notification by providing a written summary of the information contained in the complaint. The written summary must include sufficient information to give maximum effect to the intent of this chapter.

(2) The respondent shall file an answer to a complaint filed with the department within 10 business days of the respondent's receipt of the complaint. An answer may be a response simply admitting or denying the allegations without further specificity or requesting additional information from the department. The time for filing an answer may be extended by a showing of good cause.

(4) The department shall make a finding regarding the merit or nonmerit of the complaint within 180 days after a complaint is filed, except that the department shall make the finding within 120 days after a complaint is filed under 49-2-305."

42. Page 8, lines 12 through 15.

Strike: "staff" on line 12

Insert: "department"

Following: "shall" on line 12.

Strike: remainder of line 12 through "commission" on line 15

Insert: "hold a hearing on the complaint. The department shall serve notice of the hearing and a copy of the complaint on the parties"

Following: line 15

Insert: "(2)(a) If the parties mutually agree to permit the department to retain jurisdiction of the case under this chapter for a period of time that exceeds 12 months after the complaint was filed, then the parties shall stipulate to a schedule for proceedings to be established by the department.

(b) The department shall, not later than 395 days after the complaint was filed, set a date for an administrative hearing in the case.

(c) The case must be heard no later than 90 days after the date is set by the department. The department may, in its sole discretion, issue a continuance of the hearing date only upon a showing of good cause."

43. Page 8, line 16.

Strike: "(2)"

Insert: "(3)(a)"

Strike: "commission"

Insert: "department"

44. Page 8, line 17.

Strike: "the person, institution, entity, or agency"

Insert: "a party"

45. Page 8, line 18.

Following: "requests"

Insert: "and is granted"

46. Page 8, line 19.

Strike: "commission"

Insert: "department"

47. Page 8, line 21.

Following: "the"

Insert: "applicable portions of the"

Following: "Procedure"

Insert: "as adopted by the department"

48. Page 8, line 22.

Following: line 21

Insert: "(b) Upon request of the hearings officer, the department may present evidence with regard to activity conducted. However, except in cases brought pursuant to 42 U.S.C. 3601, et seq., the department may not represent either party in a contested case hearing.

(3) A party may appeal a decision of the hearings officer to the commission. A party shall provide notice of its appeal to the commission, the department, and all parties within 10 business days of receipt of the notice of decision of the administrative hearing. The commission shall hear all appeals within 120 days of receipt of notice of appeal. The commission shall render a decision within 90 days of hearing the appeal.

(4) All hearings conducted under this section may, upon stipulation of the parties, be heard telephonically."

Renumber: subsequent subsections

49. Page 8, lines 29 and 30.

Following: "commission" on line 29

Insert: "or the department, after a hearing,"

Following: "a" on line 29

Strike: remainder of line 29 through "agency" on line 30

Insert: "party"

50. Page 9, line 1.

Following: "commission"

Insert: "or the department"

Following: the first "the"

Strike: remainder of line 1

Insert: "party"

51. Page 9, line 8.

Strike: "The"

Insert: "Except as provided in 49-2-510, the"

52. Page 9, lines 10 and 11.

Following: the first "commission" on line 10

Insert: "or department"

Following: "the" on line 10

Strike: remainder of line 10 through "staff" on line 11

Insert: "department"

53. Page 9, line 15.

Following: "commission"

Insert: "or department"

Following: "order"

Insert: "or conciliation agreement"

Strike: "commission's"

Following: "order"

Insert: "issued under 49-2-506"

54. Page 9, line 16.

Following: "or"

Insert: "the commissioner or"

55. Page 9, line 17.

Following: "commission's"

Insert: "or department's"

56. Page 9, line 18.

Following: "."

Insert: "The commissioner or a party may also commence a civil action in an appropriate district court for relief for a breach of a conciliation agreement."

57. Page 9, line 21.

Strike: "Removal"

Insert: "Conclusion"

Strike: "to"

Insert: "-- filing in"

58. Page 9, line 22.

Strike: "commission staff"

Insert: "department"

59. Page 9, lines 23 and 24.

Following: "party," on line 23

Strike: remainder of line 23 through "court" on line 24

Insert: "conclude the administrative proceedings"

Following: "if"

Insert: ":"

60. Page 9, line 25.

Following: "(a)"

Strike: remainder line 25 through "49-2-505"

Insert: "(a) the department has completed its investigation in a complaint filed pursuant to 49-2-305; or

61. Page 9, line 27.

Strike: "commission"

Insert: "department"

Following: "to"

Strike: "permit removal of a case to district court"

Insert: "conclude the administrative proceedings"

62. Page 9, line 30.

Strike: the first "removal"

Insert: "the conclusion of the administrative proceedings"

Strike: "removal to"

Insert: "filing in"

63. Page 10, line 2.

Strike: "commission"

Insert: "department"

64. Page 10, line 3.

Strike: "removal"

65. Page 10, line 4.

Strike: "commission staff"

Insert: "department"

66. Page 10, line 5.

Strike: "commission"

Insert: "department"

67. Page 10, line 7.

Following: "commission"

Insert: "or the department"

68. Page 10, line 8.

Strike: "staff's"

69. Page 10, line 9.

Strike: "commission"

Insert: "department"

Strike: "or"

70. Page 10, line 10.

Strike: "commission"

Insert: "department"

71. Page 10, line 11.

Strike: "substantial"

Insert: "a preponderance of the"

Following: "evidence"

Insert: "; or (d) the department determines that the commission or the department will not or cannot hold a hearing within 12 months after the filing of the complaint"

72. Page 10, line 12.

Strike: "commission"

Insert: "department"

73. Page 10, line 16.

Strike: "part"

Insert: "section"

74. Page 10, line 18.

Strike: "of dismissal"

Following: "subsection"

Insert: "(1) or"

75. Page 10, line 20.

Strike: "petition"

Insert: "commence a civil action in"

76. Page 10, line 21.

Strike: "claimant"

Insert: "complainant"

Strike: "petition"

Insert: "commence a civil action in"

77. Page 10, line 22.

Strike: "staff"

Insert: "or the department"

78. Page 10, line 29.

Following: the first "violation of"

Insert: "chapter 3 or"

79. Page 10, line 30.

Strike: "Another"

Insert: "A"

80. Page 11, line 6.

Strike: "commission"

Insert: "department"

Following: "of"

Insert: "or on behalf of"

Strike: "person"

Insert: "party"

81. Page 11, line 7.

Following: "form"

Insert: ", verified by the aggrieved party,"

82. Page 11, line 8.

Strike: "commission"

Insert: "department"

Strike: "90"

Insert: "180"

83. Page 11, line 10.

Following: "the"

Insert: "department, on appeal, or the"

84. Page 11, line 11.

Strike: "person, institution, entity, or agency"

Insert: "party"

85. Page 11, line 12.

Following: "49-2-305, the"

Insert: "department or the"

86. Page 11, line 14.

Following: line 13

Insert: "to vindicate the public interest,"

Strike: "pursuant" through "state"

87. Page 12, line 12.

Strike: "commission"

Insert: "department"

Strike: "other"

Following: the second "and"

Insert: "other"

88. Page 12, line 14.

Following: "complainant"

Insert: ", the commissioner, or the aggrieved party"

Strike: "shall"

Insert: "may"

89. Page 12, line 19.

Following: "action"

Insert: "on behalf of the aggrieved party if the department has made a finding that the allegations of the complaint are supported by a preponderance of the evidence. If the department has made a finding that the allegations of the complaint are not supported by a preponderance of the evidence, the complainant may commence a civil action in an appropriate district court in accordance with subsection (5). An aggrieved party with respect to the issues to be determined in a civil action brought by the department may intervene in the action"

90. Page 12, line 20.

Strike: "commission"

Insert: "department"

91. Page 12, line 22.

Strike: "person"

Insert: "party"

92. Page 12, line 29.

Strike: "person"

Insert: "party"

93. Page 13, line 1.

Strike: "commission" in 2 places

Insert: "department"

94. Page 13, line 2.

Strike: "person"

Insert: "party"

95. Page 13, line 3.

Strike: "person"

Insert: "party"

96. Page 13, lines 5 and 6.

Following: "commission" on line 5

Insert: "or the department"

Following: "after the" on line 5

Strike: remainder of line 5 through "trial" on line 6

Insert: "filing"

97. Page 13, line 8.

Strike: "person"

Insert: "party"

98. Page 13, line 9.

Following: "commission"

Insert: "or the department"

99. Page 13, line 21.

Strike: "person, institution, entity, or agency"

Insert: "party"

100. Page 13, line 25.

Strike: "additional"

Insert: "punitive"

101. Page 14, line 12.

Following: "(7)"

Insert: "(a)"

Strike: "All"

Insert: "Except as provided in subsection (7)(b), all"

102. Page 14, line 16.

Following: line 15

Insert: "(b) Damages or penalties, whether monetary or otherwise, may not inure to an organization unless the organization is an aggrieved party. This section does not affect any amount owed to an aggrieved party."

103. Page 14, lines 17 through 26.

Strike: section 14 in its entirety

Renumber: subsequent sections

104. Page 14, line 27.

Insert: "NEW SECTION. Section 15. Enforcement.  (1) When a possible violation of this chapter comes to the attention of the department, the commissioner may initiate a complaint on behalf of the department. The complaint must be signed by the commissioner.

(2) A person is not subject to penalties under this chapter if compliance with the provisions of this chapter would cause the person to violate the provisions of another state law.

NEW SECTION. Section 16. Enforcement and remedies.  The procedures set forth in chapter 2, part 5, apply to complaints alleging a violation of this chapter.

NEW SECTION. Section 17. Staff transfer.  The staff of the commission is transferred to the department. The staff is under the direction and control of the commissioner of labor and industry. The staff shall perform functions as directed and in accordance with the express and implied purposes of [this act]. The transfer of staff is subject to 2-15-131 through 2-15-137.

NEW SECTION. Section 18. Repealer. Sections 49-2-201, 49-2-502, 49-3-304, 49-3-305, 49-3-306, 49-3- 307, 49-3-308, 49-3-309, 49-3-310, 49-3-311, and 49-3-312, MCA, are repealed."

Renumber: subsequent sections

105. Page 14, line 28.

Strike: "instruction"

Insert: "instructions"

Following: "."

Insert: "(1)"

Strike: "Section"

Insert: "Sections"

Following: "1"

Insert: "and 15"

Strike: "is"

Insert: "are"

106. Page 14, line 30.

Strike: "section"

Insert: "sections"

Following: "1"

Insert: "and 15"

107. Page 15, lines 1 through 5.

Following: page 14

Insert: "(2) [Section 16] is intended to be codified as an integral part of Title 49, chapter 3, part 3, and the provisions of Title 49, chapter 3, part 3, apply to [section 16]."

Strike: "Retroactive applicability" on line 1

Insert: "Applicability -- saving clause"

Following: "." on line 1

Strike: remainder of line 1 through line 5 in its entirety

Insert: "[This act] does not affect any administrative or judicial proceeding pending or commenced prior to [the effective date of this act]. [This act] applies to complaints or proceedings filed on or after [the effective date of this act]."

108. Page 15, line 7.

Strike: "on passage and approval"

Insert: "July 1, 1997"

Insert: "Section 1.  Section 23-5-152, MCA, is amended to read:

"23-5-152.   Possession of illegal gambling device or conducting illegal gambling enterprise prohibited -- exceptions. (1) Except as provided in 23-5-153 and subsections (2) through (4)(5) of this section, it is a misdemeanor punishable under 23-5-161 for a person to purposely or knowingly:

(a)  have in the person's possession or under the person's control or permit to be placed, maintained, or kept in any room, space, enclosure, or building owned, leased, or occupied by or under the person's management or control an illegal gambling device; or

(2)  Subsection (1) does not apply to a public officer or to a person coming into possession of an illegal gambling device in or by reason of the performance of an official duty and holding it to be disposed of according to law.

(3)  (a) The department may adopt rules to license persons to manufacture gambling devices that are not legal for public play in the state and are manufactured only for export from the state.

(b)  A person may not manufacture an illegal gambling device for export from the state without having obtained a license from the department. The department may charge an administrative fee for the license that is commensurate with the cost of issuing the license.

(c) (4)(a)  A person licensed under subsection (3) may conduct only those activities authorized under this subsection (4).

(b) A licensee may bring an illegal gambling device, including an illegal video gambling machine, into the state if:

(i)  the illegal gambling device contains a component that will be used by the licensee to manufacture an illegal gambling device for export from the state; or

(ii) the illegal gambling device will be reconditioned, refurbished, repaired, or otherwise substantially modified in preparation for export from the state; and

(iv) the licensee has notified the department and received authorization from the department to bring the illegal gambling device into the state. The licensee is subject to reporting requirements provided for in rules adopted under subsection (3)(a).

(i) the illegal video gambling machine will be reconditioned, refurbished, repaired, or otherwise substantially modified for conversion to an authorized video gambling machine; and

(4)(5)  An illegal gambling device may be possessed or located for display purposes only and not for operation:

(b)  in any other public place if the device has been made permanently inoperable for purposes of conducting a gambling activity."

Section 2.  Section 23-5-612, MCA, is amended to read:

"23-5-612.   Machine permits -- fee. (1) The department, upon payment of the fee provided in subsection (2) and in conformance with rules adopted under this part, shall issue to the operator an annual permit for an approved video gambling machine.

(2) (a)  The department shall charge an annual permit fee of $200 for each video gambling machine permit. The fee must be prorated on a quarterly basis but may not be prorated to allow a permit to expire before June 30. The department may not grant a refund if the video gambling machine ceases operation before the permit expires.

(b)  If the person holding the gambling operator's license for the premises in which the machine is located changes during the first quarter of the permit year and the new operator has received an operator's license and if a machine transfer processing fee of $25 per machine is paid to the department, the permit remains valid for the remainder of the permit year.

(3)  The department shall retain deposit 50% of the total permit fee collected under subsection (2)(a) and 100% of the machine transfer processing fee collected under subsection (2)(b) in the state special revenue fund for purposes of administering this part and for other purposes provided by law. The balance of the fee collected under subsection (2)(a) must be returned on a quarterly basis to the local government jurisdiction in which the gambling machine is located. The local government portion of the fee is statutorily appropriated to the department, as provided in 17-7-502, for deposit in the local government treasury.""

Renumber: subsequent sections

3. Page 3, line 21.

Insert: "NEW SECTION. Section 5. Allocation of machine permit fees. There is allocated $300,000 from the state special revenue fund from the fees collected pursuant to 23-5-612 for purposes of the pathological gambling treatment and problem gambling prevention program provided for in Senate Bill No. 208."

Renumber: subsequent section

4. Page 3, line 24.

Strike: "DATE." through "1997."

Insert: "dates. (1) [Section 1 and this section] are effective on passage and approval.

(2) [Sections 2 through 5] are effective July 1, 1997."

1. Page 1, line 22.

Following: "for"

Insert: "personal, family, or household"

1. Title, lines 16 and 17.

Strike: "CREATING" on line 16 through "BOARD;" on line 17

2. Title, line 19.

Following: "DATES"

Strike: ","

Following: "AND"

Strike: ", AND A TERMINATION DATE"

Strike: "AND" on line 5 through "ASSURANCE" on line 6

4. Page 5, lines 14 through 17.

Following: "organizations." on line 14

Strike: the remainder of line 14 though line 17 in its entirety

5. Page 6, lines 6 through 10.

Strike: subsection (12) in its entirety

Renumber: subsequent subsection

6. Page 11, line 9.

Strike: "[AND THE BOARD]"

7. Page 12, line 26.

Following: "services"

Insert: ", medicines,"

Following: "the"

Insert: "diagnosis or"

8. Page 12, line 27.

Strike: "emergency"

Insert: "illness, injury, or "

Strike: "or for the preventive care of a covered person"

9. Page 12, line 28.

Following: "practice"

Insert: "and that are not provided only as a convenience"

10. Page 13, line 29.

Strike: "[OR TO THE BOARD]"

11. Page 17, line 9.

Following: "an" in 2 places

Insert: "acute care" in 2 places

12. Page 26, lines 6, 8, 9, 11 and 12, and 16.

Strike: "[OR THE BOARD]"

13. Page 26, line 30 through page 30, line 6.

Strike: sections 30 through 32 in their entirety

Renumber: subsequent sections

14. Page 30, lines 10 and 11.

Strike: "32"

Strike: "29"

15. Page 30, line 24.

Strike: ", 33 THROUGH 35, AND 37"

Insert: "and 30 through 32"

16. Page 30, lines 27 and 28.

Strike: subsection (4) in its entirety

17. Page 30, line 30.

Strike: section 37 in its entirety

1. Title, line 19.

Following: "DATES"

Insert: ", APPLICABILITY DATES,"

2. Page 26, line 27 through page 27, line 6.

Strike: "that" on line 27 through "group" on line 6 of page 27

3. Page 31, line 10.

Strike: "a"

Insert: "either"

4. Page 31, line 12.

Following: "."

Insert: "If, pursuant to Public Law 104-191, an agency of the United States or a court does not prohibit a small employer carrier from doing so, a small employer carrier may offer and issue a group health benefit plan other than a basic or standard plan on an underwritten basis."

5. Page 60, line 19.

Following: "commissioner."

Insert: "The commissioner may by order extend the date by which the association shall offer the association portability plan until a date not later than January 1, 1998."

6. Page 75.

Insert: "NEW SECTION. Section 51. Coordination instruction. If House Bill No. 131 is passed and approved and if it amends 33-22-1803(15), then 33-22-1803(15), amending the definition of "health benefit plan", must read as provided in [section 21 of this act].

NEW SECTION. Section 52. Applicability. (1) Except as provided in subsection (2), [sections 1, 5 through 8, 17 through 40, and 42 through 45] apply to group health plans and health insurance coverage offered in connection with group health plans for group health plan and health insurance coverage contracts issued or renewed after June 30, 1997.

(2) [Section 36] applies to events occurring after June 30, 1996."

Renumber: subsequent sections   

7. Page 75, lines 23.

Strike: "SUBSECTION"

Insert: "subsections"

8. Page 75, line 24.

Following: "(3)"

Insert: "through (5)"

9. Page 75, line 26.

Strike: "9, AND"

Insert: "8,"

Strike: "45 and this section"

Insert: "40, and 42 through 44"

10. Page 75.

Following: line 27

Insert: "(3) [Section 9] is effective January 1, 1998.

(4) [Section 41] is effective September 1, 1997.

(5) [Section 45 and this section] are effective on passage and approval."

1. Title, line 9.

Strike: "LICENSURE,"

Insert: "VOLUNTARY"

Following: "REGISTRATION"

Strike: ","

2. Page 1, line 25.

Strike: "licensure,"

Insert: "voluntary"

Following: "registration"

Strike: ","

3. Page 2, line 4.

Strike: "licensing,"

Following: "registration"

Strike: ","

4. Page 2, lines 10, 11, and 13.

Strike: "licensure,"

Insert: "voluntary"

Following: "registration"

Strike: ","

6. Page 2, line 18.

Strike: "licensed,"

Following: "registered"

Strike: ","

7. Page 2, line 21.

Strike: "licensure,"

Insert: "voluntary"

Strike: second ","

1. Page 1, line 21.

Following: "MASTER ELECTRICIAN."

Insert: "The number of apprentices may not exceed a ratio of one apprentice to one journeyman in full employment on the job in order to ensure adequate training and supervision."

1. Title, line 5.

Following: "LIABILITY AND"

Insert: "LIABILITY AND"

2. Page 2, line 3.

Following: "liability and"

Insert: "liability and"

1. Page 1, lines 17 through 19.

Strike: "requirements" on line 17 through "requirements" on line 19

Insert: "a procedure for training volunteers from the private sector to conduct the angler educational events and activities"

Renumber: subsequent subsection

2. Page 1, line 29.

Following: "eligible"

Insert: "during the 2-year period following [the effective date of this act]"

3. Page 2, line 1.

Following: "."

Insert: "At the end of the 2-year period, angler educational events and activities should be conducted as provided in subsection (4)."

4. Page 2.

Following: line 2

Insert: "(4) The department shall develop a statewide network of volunteers to conduct the angler educational events and activities for which fishing license exceptions are provided. Within 2 years of [the effective date of this act], as many angler educational events and activities as possible approved pursuant to this section should be conducted by the volunteer instructors certified as provided in subsection (2)."

5. Page 2, line 8.

Strike: "is"

Insert: "and House Bill No. 289, Chapter 66, Laws of 1997, are"

1. Page 4.

Following: line 10

Insert: "NEW SECTION. Section 2.  Coordination instructions. If both House Bill No. 107 and [this act] are passed and approved, then:

"15-30-121.   Deductions allowed in computing net income. In computing net income, there are allowed as deductions:

(1)  the items referred to in sections 161, including the contributions referred to in 33-15-201(5)(b), and 211 of the Internal Revenue Code of 1954, or as sections 161 and 211 are labeled or amended, subject to the following exceptions, which are not deductible:

(3)  expenses of household and dependent care services as outlined in subsections (3)(a) through (3)(c) and (9) and subject to the limitations and rules as set out in subsections (3)(d) through (3)(f), as follows:

(ii) a dependent as allowable under 15-30-112(5), except that the limitations for age and gross income do not apply, who is unable to provide self-care because of physical or mental illness; and

(b)  employment-related expenses incurred for the following services, but only if the expenses are incurred to enable the taxpayer to be gainfully employed:

(c)  expenses incurred in maintaining a household if over half of the cost of maintaining the household is furnished by an individual or, if the individual is married during the applicable period, is furnished by the individual and the individual's spouse;

(i)  a deduction is allowed under subsection (3)(a) for employment-related expenses incurred during the year only to the extent that the expenses do not exceed $4,800;

(ii) expenses for services in the household are deductible under subsection (3)(a) for employment-related expenses only if they are incurred for services in the taxpayer's household, except that employment-related expenses incurred for services outside the taxpayer's household are deductible, but only if incurred for the care of a qualifying individual described in subsection (3)(a)(i) and only to the extent that the expenses incurred during the year do not exceed:

(e)  if the combined adjusted gross income of the taxpayers exceeds $18,000 for the tax year during which the expenses are incurred, the amount of the employment-related expenses incurred, to be reduced by one-half of the excess of the combined adjusted gross income over $18,000;

(ii) if the taxpayer is married during any period of the tax year, employment-related expenses incurred are deductible only if:

(A)  both spouses are gainfully employed, in which case the expenses are deductible only to the extent that they are a direct result of the employment; or

(iii) an individual legally separated from the individual's spouse under a decree of divorce or of separate maintenance may not be considered as married;

(iv) the deduction for employment-related expenses must be divided equally between the spouses when filing separately on the same form;

(v)  payment made to a child of the taxpayer who is under 19 years of age at the close of the tax year and payments made to an individual with respect to whom a deduction is allowable under 15-30-112(5) are not deductible as employment-related expenses;

(4)  in the case of an individual, political contributions determined in accordance with the provisions of section 218(a) and (b) of the Internal Revenue Code that were in effect for the tax year ended December 31, 1978;

(5)  that portion of expenses for organic fertilizer allowed as a deduction under 15-32-303 that was not otherwise deducted in computing taxable income;

(6)  contributions to the child abuse and neglect prevention program provided for in 41-3-701, subject to the conditions set forth in 15-30-156;

(7)  one-half of the entire amount of premium payments made by the taxpayer, except premiums deducted in determining Montana adjusted gross income or for which a credit was claimed under 15-30-128, for:

(a)  insurance for medical care, as defined in 26 U.S.C. 213(d), made directly by the taxpayer for coverage of the taxpayer, the taxpayer's dependents, and the parents and grandparents of the taxpayer; and

(b)  long-term care insurance with benefits that meet or exceed the minimum standards as established by the state insurance commissioner long-term care insurance policies or certificates that provide coverage primarily for any qualified long-term care services, as defined in 26 U.S.C. 7702B(c), for:

(ii) the benefit of the taxpayer, the taxpayer's dependents, and the parents and grandparents of the taxpayer for tax years beginning after December 31, 1996; and

(8)  contributions to the Montana drug abuse resistance education program provided for in 44-2-702, subject to the conditions set forth in 15-30-159.

(9)  For the purpose of subsection (7)(a), deductible medical insurance premiums are those premiums that provide payment for medical care as defined by 26 U.S.C. 213(d).

(10)(9) (a) Subject to the conditions of subsection (3), a taxpayer who operates a family day-care home or a group day-care home, as these terms are defined in 52-2-703, and who cares for the taxpayer's own child and at least one unrelated child in the ordinary course of business may deduct employment-related expenses considered to have been paid for the care of the child.

(b)  The amount of employment-related expenses considered to have been paid by the taxpayer is equal to the amount that the taxpayer charges for the care of a child of the same age for the same number of hours of care. The employment-related expenses apply regardless of whether any expenses actually have been paid. Employment-related expenses may not exceed the amounts specified in subsection (3)(d)(ii).

(c)  Only a day-care operator who is licensed and registered as required in 52-2-721 is allowed the deduction under this subsection (10) (9). (Subsection (8) terminates on occurrence of contingency--sec. 12, Ch. 808, L. 1991.)""

"NEW SECTION. Section 3.  Effective date -- retroactive applicability. (1) Except as provided in subsection (2), [this act] is effective on passage and approval and applies retroactively, within the meaning of 1-2-109, to tax years beginning after December 31, 1996.

(2) [Section 1(7)(b)(i)] applies retroactively, within the meaning of 1-2-109, to tax years beginning after December 31, 1994.""

Renumber: subsequent section

1. Title, line 10.

Strike: "AND"

Following: "MCA"

Insert: "; AND PROVIDING AN EFFECTIVE DATE"

2. Page 3, line 30.

Insert: "NEW SECTION. Section 3. Effective date. [This act] is effective July 1, 1997."

1. Title, line 10.

Following: "LICENSES;"

Insert: "ESTABLISHING AN INITIAL $20,000 FEE TO OBTAIN A RESORT RETAIL ALL-BEVERAGES LICENSE;"

Following: "AMENDING"

Strike: "SECTION"

Insert: "SECTIONS"

Following: "16-4-202"

Insert: "AND 16-4-501"

4. Page 3, line 25.

Insert: "Section 2.  Section 16-4-501, MCA, is amended to read:

"16-4-501.   License and permit fees. (1) Each beer licensee licensed to sell either beer or table wine only, or both beer and table wine, under the provisions of this code, shall pay an annual license fee as follows:

(a)  each brewer and each beer importer, wherever located, whose product is sold or offered for sale within the state, $500; for each storage depot, $400;

(d)  for a license to sell beer at retail for off-premises consumption only, the same as a retail beer license; for a license to sell table wine at retail for off-premises consumption only, either alone or in conjunction with beer, $200;

(2)  The permit fee under 16-4-301(1) is computed at the rate of $15 a day for each day that beer and table wine are sold at those events lasting 2 or more days but in no case shall may the fee be less than $30.

(3)  The permit fee under 16-4-301(2) is $10 for the sale of beer and table wine only or $20 for the sale of all alcoholic beverages.

(4)  Passenger carrier licenses shall must be issued upon payment by the applicant of an annual license fee in the sum of $300.

(5)  The annual license fee for a license to sell wine on the premises, when issued as an amendment to a beer-only license pursuant to 16-4-105, is $200.

(6)  The annual renewal fee for resort retail all-beverages licenses within a given resort area shall be is $2,000 for each license.

(a)  except as provided in this section, for each license outside of incorporated cities and incorporated towns or in incorporated cities and incorporated towns with a population of less than 2,000, $250 for a unit of a nationally chartered veterans' organization and $400 for all other licensees;

(b)  except as provided in this section, for each license in incorporated cities with a population of more than 2,000 and less than 5,000 or within a distance of 5 miles thereof, measured in a straight line from the nearest entrance of the premises to be licensed to the nearest boundary of the city, $350 for a unit of a nationally chartered veterans' organization and $500 for all other licensees;

(c)  except as provided in this section, for each license in incorporated cities with a population of more than 5,000 and less than 10,000 or within a distance of 5 miles thereof, measured in a straight line from the nearest entrance of the premises to be licensed to the nearest boundary of the city, $500 for a unit of a nationally chartered veterans' organization and $650 for all other licensees;

(d)  for each license in incorporated cities with a population of 10,000 or more or within a distance of 5 miles thereof, measured in a straight line from the nearest entrance of the premises to be licensed to the nearest boundary of the city, $650 for a unit of a nationally chartered veterans' organization and $800 for all other licensees;

(e)  the distance of 5 miles from the corporate limits of any incorporated cities and incorporated towns is measured in a straight line from the nearest entrance of the premises to be licensed to the nearest boundary of the city or town; and where the premises of the applicant to be licensed are situated within 5 miles of the corporate boundaries of two or more incorporated cities or incorporated towns of different populations, the license fee chargeable by the larger incorporated city or incorporated town applies and must be paid by the applicant. When the premises of the applicant to be licensed are situated within an incorporated town or incorporated city and any portion of the incorporated town or incorporated city is without a 5-mile limit, the license fee chargeable by the smaller incorporated town or incorporated city applies and must be paid by the applicant.

(f)  an applicant for the issuance of an original license to be located in areas described in subsection subsections (6) and (7)(d) shall provide an irrevocable letter of credit from a financial institution that guarantees that applicant's ability to pay a $20,000 license fee. A successful applicant shall pay a one-time original license fee of $20,000 for a license issued. The one-time license fee of $20,000 may not apply to any transfer or renewal of a license issued prior to July 1, 1974. All licenses, however, are subject to the specified annual renewal fee fees.

(8)  The fee for one all-beverage all-beverages license to a public airport is $800. This license is nontransferable.

(9)  The annual fee for a special beer and table wine license for a nonprofit arts organization under 16-4- 303 is $250.

(10) The license fees provided in this section are exclusive of and in addition to other license fees chargeable in Montana for the sale of alcoholic beverages.

(11) In addition to other license fees, the department of revenue may require a licensee to pay a late fee of 33 1/3% of any license fee delinquent on July 1 of the renewal year, 66 2/3% of any license fee delinquent on August 1 of the renewal year, and 100% of any license fee delinquent on September 1 of the renewal year.

Renumber: subsequent section

1. Page 3, line 19.

Strike: "shall"

Insert: "may"

2. Page 3, line 22.

Strike: "shall"

Insert: "may be ordered to"

1. Page 2, lines 21 and 22.

Strike: "other" on line 21 through "action" on line 22

Insert: "similar or equivalent right or privilege"

2. Page 4, line 1.

Strike: "A FACTUAL BASIS OR" in both places

3. Page 4, line 2.

Strike: "otherwise"

1. Title, line 5.

Strike: "NEEDS AND"

2. Title, lines 6 and 7.

Strike: "; CREATING" on line 6 through "OFFENSE" on line 7

Insert: "AND A CIVIL PENALTY"

3. Page 3, line 12.

Strike: "needs and"

4. Page 3, line 15.

Strike: "needs and"

5. Page 3, line 17.

Strike: "(2)(A)"

Strike: "person" through "by the"

6. Page 3, line 18.

Strike: "ACTION"

Insert: "applicant"

Strike: "needs and"

7. Page 4, lines 5 and 6.

Strike: "A"

Insert: "If a"

Strike: "that"

Following: "government"

Strike: "needs and"

Strike: "may be fined"

Insert: ", a civil penalty of"

Strike: "$500"

Insert: "$100"

Following: "$1,000"

Insert: "must be imposed"

1. Title, line 7.

Following: "MCA;"

Insert: "AMENDING SECTION 7-1-106, MCA;"

2. Page 4, line 16.

Insert: "Section 6.  Section 7-1-106, MCA, is amended to read:

"7-1-106.   Construction of self-government powers. The powers and authority of a local government unit with self-government powers shall must be liberally construed. Every Except for a power or authority to deny or issue with conditions a permit, certificate, license, or similar or equivalent right or privilege, every reasonable doubt as to the existence of a local government power or authority shall must be resolved in favor of the existence of that power or authority.""

Renumber: subsequent sections

1. Page 2, line 11.

Following: "ASSOCIATION"

Insert: "or ditch company"

2. Page 2, line 12.

Following: "PART 1,"

Insert: "or Title 35, chapter 1, part 2,"

3. Page 2, line 18.

Following: "association"

Insert: "or ditch company"

4. Page 2, line 19.

Following: "part 1,"

Insert: "or Title 35, chapter 1, part 2,"

1. Title, lines 7 and 8.

Following: "PROVIDING" on line 7

Strike: remainder of line 7 through "AND" on line 8

2. Page 8, line 5.

Strike: "July"

Insert: "October"

3. Page 8, line 7.

Strike: section 13 in its entirety

1. Title, line 4 and line 5.

Strike: "OF THE TWO APPOINTEES" on line 4 through "TO" on line 5

Insert: "MEMBER OF"

2. Title, line 6.

Following: "TEACHER;"

Insert: "REMOVING THE SUPERINTENDENT OF PUBLIC INSTRUCTION;"

3. Title, line 7.

Strike: "SECTION"

Insert: "SECTIONS"

Following: "2-15-1010"

Insert: "AND 20-3-106"

Strike: "IMMEDIATE"

4. Title, line 7 and 8.

Strike: "AND AN" on line 7 through "DATE" on line 8

5. Page 1, line 16 and line 17.

Strike: "the" on line 16 through "two" on line 17

Insert: "three"

Renumber: subsequent subsections

6. Page 1, line 18.

Strike: "two"

Insert: "three"

7. Page 1.

Following: line 29

Insert: "Section 2.  Section 20-3-106, MCA, is amended to read:

"20-3-106.   Supervision of schools -- powers and duties. The superintendent of public instruction has the general supervision of the public schools and districts of the state and shall perform the following duties or acts in implementing and enforcing the provisions of this title:

(1)  resolve any controversy resulting from the proration of costs by a joint board of trustees under the provisions of 20-3-362;

(5)  approve or disapprove the orders of a high school boundary commission in accordance with the provisions of 20-6-311;

(6)(5)  approve or disapprove the opening or reopening of a school in accordance with the provisions of 20-6-502, 20-6-503, 20-6-504, or 20-6-505;

(8)(7)  generally supervise the school budgeting procedures prescribed by law in accordance with the provisions of 20-9-102 and prescribe the school budget format in accordance with the provisions of 20-9-103 and 20-9-506;

(9)(8)  establish a system of communication for calculating joint district revenues in accordance with the provisions of 20-9-151;

(10)(9) approve or disapprove the adoption of a district's budget amendment resolution under the conditions prescribed in 20-9-163 and adopt rules for an application for additional direct state aid for a budget amendment in accordance with the approval and disbursement provisions of 20-9-166;

(12)(11) prescribe and furnish the annual report forms to enable the districts to report to the county superintendent in accordance with the provisions of 20-9-213(5) and the annual report forms to enable the county superintendents to report to the superintendent of public instruction in accordance with the provisions of 20-3-209;

(13)(12) approve, disapprove, or adjust an increase of the average number belonging (ANB) in accordance with the provisions of 20-9-313 and 20-9-314;

(14)(13) distribute BASE aid and special education allowable cost payments in support of the BASE funding program, in accordance with the provisions of 20-9-331, 20-9-333, 20-9-342, 20-9-346, 20-9-347, and 20-9-366 through 20-9-369;

(15)(14) provide for the uniform and equal provision of transportation by performing the duties prescribed by the provisions of 20-10-112;

(16)(15) approve or disapprove an adult education program for which a district proposes to levy a tax in accordance with the provisions of 20-7-705;

(18)(17) authorize the use of federal money for the support of an interlocal cooperative agreement in accordance with the provisions of 20-9-703 and 20-9-704;

(19)(18) prescribe the form and contents of and approve or disapprove interstate contracts in accordance with the provisions of 20-9-705;

(20)(19) approve or disapprove the conduct of school on a Saturday or on pupil-instruction-related days in accordance with the provisions of 20-1-303 and 20-1-304;

(21)(20) recommend standards of accreditation for all schools to the board of public education and evaluate compliance with the standards and recommend accreditation status of every school to the board of public education in accordance with the provisions of 20-7-101 and 20-7-102;

(22)(21) collect and maintain a file of curriculum guides and assist schools with instructional programs in accordance with the provisions of 20-7-113 and 20-7-114;

(23)(22) establish and maintain a library of visual, aural, and other educational media in accordance with the provisions of 20-7-201;

(24)(23) license textbook dealers and initiate prosecution of textbook dealers violating the law in accordance with the provisions of the textbooks part of this title;

(25)(24) as the governing agent and executive officer of the state of Montana for K-12 vocational education, adopt the policies prescribed by and in accordance with the provisions of 20-7-301;

(26)(25) supervise and coordinate the conduct of special education in the state in accordance with the provisions of 20-7-403;

(28)(27) administer the school food services program in accordance with the provisions of 20-10-201, 20- 10-202, and 20-10-203;

(30)(29) prescribe the method of identification and signals to be used by school safety patrols in accordance with the provisions of 20-1-408;

(31)(30) provide schools with information and technical assistance for compliance with the student assessment rules provided for in 20-2-121 and collect and summarize the results of the student assessment for the board of public education and the legislature;

(32)(31) administer the distribution of guaranteed tax base aid in accordance with 20-9-366 through 20-9- 369; and

(33)(32) perform any other duty prescribed from time to time by this title, any other act of the legislature, or the policies of the board of public education.""

Renumber: subsequent section

8. Page 2, line 1.

Strike: "-- applicability"

9. Page 2, line 1 through line 2.

Strike: "on" on line 1 through "act]" on line 2

Insert: "July 1, 1997"

1. Page 2, lines 21 and 22.

Strike: "forward" on line 21 through "receives" on line 22

Insert: "review a report given to the insurer, and if the insurer determines that there is a reasonable likelihood that fraud has occurred the insurer shall forward the report to the commissioner"

1. Title, line 9.

Following: "PROVIDING"

Insert: "AN EFFECTIVE DATE AND"

2. Page 1, line 24.

Following: "statement"

Insert: ", corroborated by adequate documentation,"

3. Page 3.

Following: line 10

Insert: "NEW SECTION. Section 4. Effective date. [This act] is effective July 1, 1997."

Renumber: subsequent sections

4. Page 3, line 12.

Strike: "OCTOBER 1, 1999"

Insert: "December 31, 1998"

1. Page 14, lines 24, 25, and 27.

Strike: "BUDGET DIRECTOR"

Insert: "approving authority"

1. Title, lines 4 through 7.

Following: "MONTANA;" on line 4

Strike: the remainder of line 4 through "PREMISES;" on line 7

2. Title, lines 8 through 10.

Following: "PROPERTY;" on line 8

Strike: the remainder of line 8 through "PREMISES;" on line 10

3. Title, line 12.

Strike: "16-3-213, 16-3-242, 16-4-101, 16-4-401,"

4. Page 1, line 16 through line 6 on page 2.

Strike: section 1 in its entirety

Renumber: subsequent sections

5. Page 3, line 11 through page 8, line 4.

Strike: sections 4 through 7 in their entirety

Renumber: subsequent sections

6. Page 9, lines 11 through 13.

Strike: section 9 in its entirety

1. Page 1, line 25.

Strike: "four"

Insert: "five"

2. Page 2, line 6.

Insert: "(d) one member, to be appointed by the governor, who is a business owner who does not have an economic interest in and is not related to a person who has an economic interest in the gambling industry."

3. Page 3, line 16.

Following: "studies."

Insert: "The legislative services division may expend funds from the appropriation provided in [section 5] for staff services provided by the legislative services division to the commission."

1. Title, page 1, line 30.

Following: "SERVICE;"

Insert: "ESTABLISHING AN INTERIM UNIVERSAL ACCESS TO THE ADVANCED TELECOMMUNICATIONS SERVICES PROGRAM ADMINISTERED BY THE PUBLIC SERVICE COMMISSION; PROVIDING A DISCOUNT FOR USE OF ADVANCED TELECOMMUNICATIONS SERVICES FOR CERTAIN PUBLIC ACCESS POINTS, SCHOOLS, LIBRARIES, HEALTH CARE PROVIDERS, AND TRIBAL COLLEGES; ESTABLISHING A SURCHARGE ON RETAIL REVENUE DERIVED FROM INTRASTATE TELECOMMUNICATIONS SERVICES IN THE STATE; REQUIRING THE PUBLIC SERVICE COMMISSION TO MAKE RECOMMENDATIONS TO THE 56TH LEGISLATURE REGARDING UNIVERSAL ACCESS AND SERVICE;"

2. Title, page 2, line 6.

Following: ";"

Insert: "ESTABLISHING A COMMITTEE TO MONITOR FEDERAL IMPLEMENTATION OF THE FEDERAL TELECOMMUNICATIONS ACT OF 1996; APPROPRIATING FUNDS FOR THE COMMITTEE;"

3. Title, page 2, line 8.

Following: "PROVIDING"

Insert: "AN IMMEDIATE"

4. Title, page 2, line 9.

Strike: "DATES"

Insert: "DATE"

5. Page 3, line 6.

Following: "22]."

Insert: "Under the interim universal access provisions of [sections 20 through 26], the public service commission is to establish surcharge rates as provided in [section 25]. The surcharge rates must take into account different cost structures among telecommunications carriers, particularly the wireless and CATV industry. The retail revenue for these providers should be based on an equitable, per access line, revenue equivalent. The commission shall also set the surcharge rate to produce the amount of revenue necessary to fund the program. The formulation should consider any overlapping federal discounts. The commission should appoint an oversight group, consisting of users and industry participants, to meet quarterly with the commission to review revenue, discounts, and the administration of [sections 20 through 26]. The public service commission shall also establish a method for paying discount reimbursements in accordance with [section 25]. The public service commission shall cooperate with the department of revenue in determining rates, administering offsets against any surcharges, and other matters necessary for the administration of [sections 20 through 26].

The department of revenue shall administer the collection of the surcharge by rule. Because of the limited duration of the program, it is contemplated that the rules and administration be minimal, flexible, and as unobtrusive as possible while ensuring that there are sufficient administrative powers to enable the implementation of [sections 20 through 26]."

6. Page 20, lines 12 and 13.

Strike: "DIRECTLY" on line 12

Following: "TO"

Insert: "Montana"

Following: "END-USER"

Strike: the remainder of line 12 through "CORRESPONDING" on line 13

Insert: "customer"

7. Page 21, lines 22 and 23.

Following: "COSTS" on line 22

Strike: the remainder of line 22 through "COMPANIES" on line 23

8. Page 22, line 11.

Following: first "COSTS"

Strike: "CHARGED TO LONG-DISTANCE COMPANIES"

9. Page 23, line 1.

Following: "SERVICES"

Insert: "or facilities"

10. Page 23, line 2.

Following: second "CARRIER"

Strike: "INCLUDE"

Insert: "have been reduced by"

Following: "CONTRIBUTION"

Strike: "FOR"

Insert: "from"

11. Page 23, line 12.

Following: "STANDARDS."

Strike: "IF"

Insert: "(1) Except as provided in subsection (2), if"

12. Page 23, line 15.

Strike: "STANDARDIZED OR"

Following: "DEFAULT"

Insert: "proxy"

13. Page 23, line 16.

Following: "PRICE."

Insert: "The commission shall establish wholesale prices using company-specific costs."

14. Page 23, following line 16.

Insert: "(2) This section does not apply to the prices, terms, and conditions of a final or interim arbitrated interconnection agreement, arbitration decision, or appeal from an agreement or decision if the request for arbitration was filed on or before March 1, 1997."

15. Page 23, line 18.

Following: "(1)"

Strike: "IF"

Insert: "Except as provided in subsection (4), if"

Following: "A"

Insert: "just and reasonable"

17. Page 23, lines 24 and 25.

Strike: "IN" on line 24 through "TOTAL" on line 25

18. Page 23, line 29.

Following: "(C)"

Insert: "a reasonable share of the costs associated with"

Following: "FACTORS"

Strike: "THAT RECOGNIZE THE"

Insert: ", recognizing"

19. Page 24, following line 1.

Insert: "(2) The actual cost of providing the elements included in subsections (1)(a) through (1)(d) must be determined without reference to a rate-of-return or other rate-based proceeding."

Renumber: subsequent subsection

20. Page 24, line 8.

Insert: "(4) This section does not apply to the prices, terms, and conditions of a final or interim arbitrated interconnection agreement, arbitration decision, or appeal from an agreement or decision if the request for arbitration was filed on or before March 1, 1997."

21. Page 24, line 14.

Insert: "NEW SECTION. Section 20.  Interim universal access program -- purpose. (1) There is an interim universal access program.

(2) The purpose of the interim universal access program is to further the goal of universal access to advanced telecommunications services in Montana by:

(a) increasing safety net coverage through which advanced telecommunications services would, at a minimum, be available through a library, school, or other specified type of public institution in every community in the state;

(c) assisting communities that have already succeeded in obtaining services when ongoing transport costs threaten the continued availability of these services.

NEW SECTION. Section 222.  Interim universal access program -- definitions. As used in [sections 20 though 27], the following definitions apply:

(2) "Advanced services" means high-speed (56 kbps and above), dedicated or switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.

(3) "Health care provider" means any one of, or a consortium of, the following institutions located in Montana:

(4) "Library" means a library located in Montana that is eligible for participation in state-based plans for funds under Title III of the Library Services and Construction Act (20 U.S.C. 335c, et seq.).

(a) an elementary school or secondary school that meets the definition set forth in subsections (14) and (25), respectively, of section 14101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 8801) and that does not have an endowment of more than $50 million; or

NEW SECTION. Section 223.  Interim universal access program -- public access points. At a minimum, all public access points must provide the general public access to advanced telecommunications services that are not subscription-based. The access must be provided free of charge and at convenient hours on a walk-in basis. Public access points may offer subscription- based services, such as electronic mail, but are not required to administer these types of services.

NEW SECTION. Section 224.  Interim universal access program -- funded services -- application for services. (1) The universal access program provides funding through discounts only for advanced services for use by public access points, schools, tribal colleges, libraries, and health care providers approved by the administrator.

(2) The first priority of the program is to provide funding for at least one public access point in each Montana community. Subject to available funding, the program shall also provide funding for advanced services to schools, tribal colleges, libraries, and health care providers.

(b) education services to schools and tribal colleges for distance learning, electronic access to educational resources, and electronic delivery or reception of educational programming;

(c) library services for libraries not serving as public access points for electronic access to information and library services; and

(d) rural health services to rural health care providers for access to similar services as urban health care providers and to ensure electronic access to health care services.

(4) To receive discounted services under the interim universal access program, public access providers, schools, tribal colleges, libraries, and health care providers shall apply for the discounts. The application must be accompanied by a resolution of support from the governing body of the appropriate city, county, or tribal government in which the applicant is located.

NEW SECTION. Section 225.  Interim universal access program -- services provided at discounts -- reimbursements. (1) Telecommunications carriers shall provide advanced services to eligible users at specified discounts. The amount of the discount must be reimbursed to the provider from the interim universal access account established in [section 26].

(2) Except as provided in subsection (3), the advanced discount is equal to 50% of the best cost rate available to any business customer for an equivalent of one 56 kbps dedicated circuit to the nearest access point for the requested service. However, the cost to the eligible user may not exceed $100 a month.

(3) If funds from the interim universal access account are not sufficient to fully reimburse for discounts authorized in subsection (2), the amount of the discounts to each eligible user must be reduced proportionally.

(4) Even if best cost rates available to any business customer increase by more than 5%, the amount payable by an eligible user may not increase by more than 5% during the period from [the effective date of this section] to January 1, 2000.

(5) Subject to restrictions in federal law, if interstate universal access services are established by the federal communications commission, federal funding for universal access services must be used to reduce state funding for intrastate services.

NEW SECTION. Section 226.  Interim universal access program -- funding -- surcharge rate. (1) (a) The interim universal access program is funded by a surcharge based on the retail revenue for all intrastate telecommunications services in the state. The surcharge must be determined by the administrator by rule. The surcharge must be set and applied to all telecommunications carriers on a competitively neutral basis.

(b) The rate of the surcharge must be set to raise $250,000 during the fiscal year ending June 30, 1998, and $500,000 during the fiscal year ending June 30, 1999. The rate may be changed, by rule, as necessary.

(c) The payment of the surcharge is an explicit subsidy and may be shown as a separate line item on each carrier's retail telecommunications services bills.

(d) The surcharge may be applied only to telecommunications services. Customer premise equipment is not considered a telecommunications service.

(2) The surcharge is payable quarterly to the department of revenue and deposited by the department in the interim universal access account established in [section 26]. The department may by rule:

(a) establish the form of a reporting statement to be filed by telecommunications carriers subject to the surcharge;

(d) provide methods to pay the surcharge, including offsets of surcharges owed against discounted services to be reimbursed, and to pay refunds of overpayment of the surcharge.

(b) Any reference to the tax under sections listed in subsection (3)(a), either by cite to a section of law or literally to the tax, refer, for the purposes of this section, to the surcharge imposed by this section.

NEW SECTION. Section 227.  Interim universal access program -- account. An interim universal access account is established in the state special revenue fund in the state treasury. All money received by the department of revenue pursuant to [section 25] must be paid to the state treasurer for deposit in the account. After payment of refunds, the balance of the account must be used for the purposes described in [section 24].

NEW SECTION. Section 228.  Commission to make recommendations on universal access and service. The public service commission shall examine and make recommendations to the 56th legislature on universal access and service. The commission shall:

(1) review the impact on universal access and service in Montana of any federal universal service fund that results from current federal communications rulemaking under the federal Telecommunications Act of 1996; and

(2) evaluate the extent to which the federal universal service fund falls short of supporting legislatively defined universal access and service goals in Montana.

(3) The commission may develop plans and propose legislation that would ensure the attainment of universal access and service goals in Montana."

Renumber: subsequent sections

29. Page 29, line 14.

Strike: "RESALE OF TELECOMMUNICATIONS SERVICES,"

30. Page 29, lines 20 through 22.

Strike: subsection (7) in its entirety

Renumber: subsequent subsections

31. Page 29, line 24.

Following: "MONTANA"

Insert: "and are billed for a service address in Montana"

32. Page 35, line 19.

Insert: "NEW SECTION. Section 35. Telecommunications committee.  (1) There is a telecommunications committee. The committee consists of:

(a) two members of the senate, one from each political party, appointed by the committee on committees of the senate;

(b) two members of the house of representatives, one from each political party, appointed by the speaker of the house; and

(2) The committee shall monitor federal implementation of the federal Telecommunications Act of 1996, Public Law 104-104. The committee shall recommend to the 56th legislature policies, practices, and statutory changes that are required to implement or conform to the federal implementation.

NEW SECTION. Section 36.  Appropriation. (1) Subject to funds being available pursuant to subsection (2), there is appropriated from the state special revenue fund up to $30,000 to the office of the consumer counsel for purposes of [section 35]. (2) The telecommunications committee may accept gifts, grants, and donations for deposit in the state special revenue fund for purposes of [section 35]."

Renumber: subsequent sections

33. Page 35, lines 20 and 22.

Strike: "19" in two places

Insert: "27" in both places

34. Page 36, lines 4 through 6.

Following: "Effective" on line 4

Strike: "dates"

Insert: "date."

Following: "rulemaking"

Strike: the remainder of line 4 through "1997" on line 6

Insert: "[This act] is effective on passage and approval"

1. Title, line 5.

Strike: "AVAILABLE"

Insert: "THE"

2. Title, line 7.

Strike: "INCLUDE"

3. Title, line 8.

Strike: "STATEMENTS MADE, IF ANY,"

Insert: "BE ACCOMPANIED"

Strike: "PARENTS"

Insert: "PARENTS' STATEMENTS"

4. Title, line 9.

Following: "PETITION"

Insert: "OR AN APPEARANCE BY THE PARENTS AT THE HEARING ON THE PETITION"

5. Page 1, line 30.

Strike: ", IF THEY ARE REASONABLY AVAILABLE,"

6. Page 2, line 3.

Following: "granted"

Insert: "and to require that a judge may not issue an order granting the petition until the parents, if they are reasonably available, are given the opportunity to appear before the judge or have their written statements presented to the judge for consideration before an order is granted"

7. Page 2, lines 28 through 30.

Strike: ", AFFIDAVIT" on line 28 through "MADE" on line 30

Insert: "must also contain written statements prepared"

8. Page 3, line 2.

Following: "petition"

Insert: "or must be presented to the court in the presence of the parents, who must be given an opportunity to address the court before the court rules on the petition"

9. Page 3, line 7.

Following: "with"

Insert: "the parents' statements included with"

Strike: "AND ANY"

10. Page 3, line 8.

Strike: "ACCOMPANYING AFFIDAVIT OR REPORT TO THE COURT"

Insert: "or of the parents' remarks in court in relation to the petition"

1. Page 4, lines 13,17, and 19.

Strike: "of 35 gallons a minute or less"

2. Page 4, line 20.

Strike: "does not object"

Insert: "consents"

3. Page 6, line 22.

Strike: "of 35 gallons a minute or less"

4. Page 6, line 25.

Strike: "does not object"

Insert: "consents"

1. Title, line 5.

Strike: the first "AND"

Following: "MCA"

Insert: "; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND A RETROACTIVE APPLICABILITY DATE"

2. Page 1, line 20.

Following: "chapter."

Insert: "The conveyance of a tract of record or an entire parcel of land that was created by a previous division of land is not a division of land."

3. Page 3, line 16.

Following: "OR"

Insert: "a similar statement, in addition to the legal description of the aggregate parcels,"

Strike: "EXPRESSES"

Insert: "expressing"

4. Page 5.

Following: line 24

Insert: "NEW SECTION. Section 4.  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.

NEW SECTION. Section 5.  Effective date -- retroactive applicability. [This act] is effective on passage and approval, and [section 1] applies retroactively, within the meaning of 1-2-109, to local regulation of subdivisions."

1. Title, line 7.

Strike: the first "AND"

Insert: ","

Following: "85-2-338,"

Insert: "AND 85-2-402,"

2. Page 4.

Following: line 14

"85-2-402.   (Temporary) Changes in appropriation rights. (1) An appropriator may not make a change in an appropriation right except, as permitted under this section, by applying for and receiving the approval of the department or, if applicable, of the legislature. An applicant shall submit a correct and complete application.

(2)  Except as provided in subsections (4) through (6), the department shall approve a change in appropriation right if the appropriator proves by a preponderance of evidence that the following criteria are met:

(a)  The proposed use will not adversely affect the water rights of other persons or other planned uses or developments for which a permit has been issued or for which water has been reserved.

(b)  Except for a lease authorization pursuant to 85-2-436, a temporary change authorization for instream use to benefit the fishery resource pursuant to 85-2-408, or water use pursuant to 85-2-439 when authorization does not require appropriation works, the proposed means of diversion, construction, and operation of the appropriation works are adequate.

(d)  Except for a lease authorization pursuant to 85-2-436 or a temporary change authorization pursuant to 85-2-408 or 85-2-439 for instream flow to benefit the fishery resource, the applicant has a possessory interest, or the written consent of the person with the possessory interest, in the property where the water is to be put to beneficial use.

(e)  If the change in appropriation right involves salvaged water, the proposed water-saving methods will salvage at least the amount of water asserted by the applicant.

(f)  The water quality of an appropriator will not be adversely affected.

(g)  The ability of a discharge permitholder to satisfy effluent limitations of a permit issued in accordance with Title 75, chapter 5, part 4, will not be adversely affected.

(3)  The applicant is required to prove that the criteria in subsections (2)(f) and (2)(g) have been met only if a valid objection is filed. A valid objection must contain substantial credible information establishing to the satisfaction of the department that the criteria in subsection (2)(f) or (2)(g), as applicable, may not be met.

(4)  The department may not approve a change in purpose of use or place of use of an appropriation of 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water unless the appropriator proves by a preponderance of evidence that:

(b)  the proposed change is a reasonable use. A finding of reasonable use must be based on a consideration of:

(i)  the existing demands on the state water supply, as well as projected demands for water for future beneficial purposes, including municipal water supplies, irrigation systems, and minimum streamflows for the protection of existing water rights and aquatic life;

(iii)  the effects on the quantity and quality of water for existing uses in the source of supply;

(iv)  the availability and feasibility of using low-quality water for the purpose for which application has been made;

(v)  the effects on private property rights by any creation of or contribution to saline seep; and

(vi)  the probable significant adverse environmental impacts of the proposed use of water as determined by the department pursuant to Title 75, chapter 1, or Title 75, chapter 20.

(5)  The department may not approve a change in purpose of use or place of use for a diversion that results in 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water being consumed unless:

(a)  the applicant proves by clear and convincing evidence and the department finds that the criteria in subsections (2) and (4) are met; and

(b)  the department then petitions the legislature and the legislature affirms the decision of the department after one or more public hearings.

(6)  The state of Montana has long recognized the importance of conserving its public waters and the necessity to maintain adequate water supplies for the state's water requirements, including requirements for reserved water rights held by the United States for federal reserved lands and in trust for the various Indian tribes within the state's boundaries. Although the state of Montana also recognizes that, under appropriate conditions, the out-of-state transportation and use of its public waters are not in conflict with the public welfare of its citizens or the conservation of its waters, the following criteria must be met before out-of-state use may occur:

(a)  The department and, if applicable, the legislature may not approve a change in appropriation right for the withdrawal and transportation of appropriated water for use outside the state unless the appropriator proves by clear and convincing evidence and, if applicable, the legislature approves after one or more public hearings that:

(i)  depending on the volume of water diverted or consumed, the applicable criteria and procedures of subsection (2) or (4) are met;

(ii)  the proposed out-of-state use of water is not contrary to water conservation in Montana; and

(iii)  the proposed out-of-state use of water is not otherwise detrimental to the public welfare of the citizens of Montana.

(b)  In determining whether the appropriator has proved by clear and convincing evidence that the requirements of subsections (6)(a)(ii) and (6)(a)(iii) will be met, the department and, if applicable, the legislature shall consider the following factors:

(i)  whether there are present or projected water shortages within the state of Montana;

(ii)  whether the water that is the subject of the proposed change in appropriation might feasibly be transported to alleviate water shortages within the state of Montana;

(iii)  the supply and sources of water available to the applicant in the state where the applicant intends to use the water; and

(iv)  the demands placed on the applicant's supply in the state where the applicant intends to use the water.

(c)  When applying for a change in appropriation right to withdraw and transport water for use outside the state, the applicant shall submit to and comply with the laws of the state of Montana governing the appropriation and use of water.

(7)  For any application for a change in appropriation right involving 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water, the department shall give notice of the proposed change in accordance with 85-2-307 and shall hold one or more hearings in accordance with 85-2-309 prior to its approval or denial of the proposed change. The department shall provide notice and may hold one or more hearings upon any other proposed change if it determines that a change might adversely affect the rights of other persons.

(8)  The department or the legislature, if applicable, may approve a change subject to terms, conditions, restrictions, and limitations as it considers necessary to satisfy the criteria of this section, including limitations on the time for completion of the change. The department may extend time limits specified in the change approval under the applicable criteria and procedures of 85-2-312(3).

(9)  Upon actual application of water to the proposed beneficial use within the time allowed, the appropriator shall notify the department that the appropriation has been completed. The notification must contain a certified statement by a person with experience in the design, construction, or operation of appropriation works describing how the appropriation was completed.

(10)  If a change is not completed as approved by the department or legislature or if the terms, conditions, restrictions, and limitations of the change approval are not complied with, the department may, after notice and opportunity for hearing, require the appropriator to show cause why the change approval should not be modified or revoked. If the appropriator fails to show sufficient cause, the department may modify or revoke the change approval.

(11)  The original of a change approval issued by the department must be sent to the applicant, and a duplicate must be kept in the office of the department in Helena.

(12)  A person holding an issued permit or change approval that has not been perfected may change the place of diversion, place of use, purpose of use, or place of storage by filing an application for change pursuant to this section.

(13)  A change in appropriation right contrary to the provisions of this section is invalid. An officer, agent, agency, or employee of the state may not knowingly permit, aid, or assist in any manner an unauthorized change in appropriation right. A person or corporation may not, directly or indirectly, personally or through an agent, officer, or employee, attempt to change an appropriation right except in accordance with this section.

(14)  The department may adopt rules to implement the provisions of this section. (Terminates June 30, 1999--sec. 4, Ch. 740, L. 1991.)

85-2-402.   (Effective July 1, 1999) Changes in appropriation rights. (1) An appropriator may not make a change in an appropriation right except, as permitted under this section, by applying for and receiving the approval of the department or, if applicable, of the legislature. An applicant shall submit a correct and complete application.

(2)  Except as provided in subsections (4) through (6), the department shall approve a change in appropriation right if the appropriator proves by a preponderance of evidence that the following criteria are met:

(a)  The proposed use will not adversely affect the water rights of other persons or other planned uses or developments for which a permit has been issued or for which water has been reserved.

(b)  Except for a temporary change authorization pursuant to 85-2-408 or for water use pursuant to 85-2-439 that does not require appropriation works, the proposed means of diversion, construction, and operation of the appropriation works are adequate.

(d)  Except for a temporary change authorization pursuant to 85-2-408 or 85-2-439 for instream flow to benefit the fishery resource, the applicant has a possessory interest, or the written consent of the person with the possessory interest, in the property where the water is to be put to beneficial use.

(e)  If the change in appropriation right involves salvaged water, the proposed water-saving methods will salvage at least the amount of water asserted by the applicant.

(f)  The water quality of an appropriator will not be adversely affected.

(g)  The ability of a discharge permitholder to satisfy effluent limitations of a permit issued in accordance with Title 75, chapter 5, part 4, will not be adversely affected.

(3)  The applicant is required to prove that the criteria in subsections (2)(f) and (2)(g) have been met only if a valid objection is filed. A valid objection must contain substantial credible information establishing to the satisfaction of the department that the criteria in subsection (2)(f) or (2)(g), as applicable, may not be met.

(4)  The department may not approve a change in purpose of use or place of use of an appropriation of 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water unless the appropriator proves by a preponderance of evidence that:

(b)  the proposed change is a reasonable use. A finding of reasonable use must be based on a consideration of:

(i)  the existing demands on the state water supply, as well as projected demands for water for future beneficial purposes, including municipal water supplies, irrigation systems, and minimum streamflows for the protection of existing water rights and aquatic life;

(iii)  the effects on the quantity and quality of water for existing uses in the source of supply;

(iv)  the availability and feasibility of using low-quality water for the purpose for which application has been made;

(v)  the effects on private property rights by any creation of or contribution to saline seep; and

(vi)  the probable significant adverse environmental impacts of the proposed use of water as determined by the department pursuant to Title 75, chapter 1, or Title 75, chapter 20.

(5)  The department may not approve a change in purpose of use or place of use for a diversion that results in 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water being consumed unless:

(a)  the applicant proves by clear and convincing evidence and the department finds that the criteria in subsections (2) and (4) are met; and

(b)  the department then petitions the legislature and the legislature affirms the decision of the department after one or more public hearings.

(6)  The state of Montana has long recognized the importance of conserving its public waters and the necessity to maintain adequate water supplies for the state's water requirements, including requirements for reserved water rights held by the United States for federal reserved lands and in trust for the various Indian tribes within the state's boundaries. Although the state of Montana also recognizes that, under appropriate conditions, the out-of-state transportation and use of its public waters are not in conflict with the public welfare of its citizens or the conservation of its waters, the following criteria must be met before out-of-state use may occur:

(a)  The department and, if applicable, the legislature may not approve a change in appropriation right for the withdrawal and transportation of appropriated water for use outside the state unless the appropriator proves by clear and convincing evidence and, if applicable, the legislature approves after one or more public hearings that:

(i)  depending on the volume of water diverted or consumed, the applicable criteria and procedures of subsection (2) or (4) are met;

(ii)  the proposed out-of-state use of water is not contrary to water conservation in Montana; and

(iii)  the proposed out-of-state use of water is not otherwise detrimental to the public welfare of the citizens of Montana.

(b)  In determining whether the appropriator has proved by clear and convincing evidence that the requirements of subsections (6)(a)(ii) and (6)(a)(iii) will be met, the department and, if applicable, the legislature shall consider the following factors:

(i)  whether there are present or projected water shortages within the state of Montana;

(ii)  whether the water that is the subject of the proposed change in appropriation might feasibly be transported to alleviate water shortages within the state of Montana;

(iii)  the supply and sources of water available to the applicant in the state where the applicant intends to use the water; and

(iv)  the demands placed on the applicant's supply in the state where the applicant intends to use the water.

(c)  When applying for a change in appropriation right to withdraw and transport water for use outside the state, the applicant shall submit to and comply with the laws of the state of Montana governing the appropriation and use of water.

(7)  For any application for a change in appropriation right involving 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water, the department shall give notice of the proposed change in accordance with 85-2-307 and shall hold one or more hearings in accordance with 85-2-309 prior to its approval or denial of the proposed change. The department shall provide notice and may hold one or more hearings upon any other proposed change if it determines that such a change might adversely affect the rights of other persons.

(8)  The department or the legislature, if applicable, may approve a change subject to such terms, conditions, restrictions, and limitations as it considers necessary to satisfy the criteria of this section, including limitations on the time for completion of the change. The department may extend time limits specified in the change approval under the applicable criteria and procedures of 85-2-312(3).

(9)  Upon actual application of water to the proposed beneficial use within the time allowed, the appropriator shall notify the department that the appropriation has been completed. The notification must contain a certified statement by a person with experience in the design, construction, or operation of appropriation works describing how the appropriation was completed.

(10)  If a change is not completed as approved by the department or legislature or if the terms, conditions, restrictions, and limitations of the change approval are not complied with, the department may, after notice and opportunity for hearing, require the appropriator to show cause why the change approval should not be modified or revoked. If the appropriator fails to show sufficient cause, the department may modify or revoke the change approval.

(11)  The original of a change approval issued by the department must be sent to the applicant, and a duplicate must be kept in the office of the department in Helena.

(12)  A person holding an issued permit or change approval that has not been perfected may change the place of diversion, place of use, purpose of use, or place of storage by filing an application for change pursuant to this section.

(13)  A change in appropriation right contrary to the provisions of this section is invalid. An officer, agent, agency, or employee of the state may not knowingly permit, aid, or assist in any manner an unauthorized change in appropriation right. A person or corporation may not, directly or indirectly, personally or through an agent, officer, or employee, attempt to change an appropriation right except in accordance with this section.

(14)  The department may adopt rules to implement the provisions of this section. (Terminates June 30, 2005--sec. 6, Ch. 322, L. 1995.)

85-2-402.   (Effective July 1, 2005) Changes in appropriation rights. (1) An appropriator may not make a change in an appropriation right except, as permitted under this section, by applying for and receiving the approval of the department or, if applicable, of the legislature. An applicant shall submit a correct and complete application.

(2)  Except as provided in subsections (4) through (6), the department shall approve a change in appropriation right if the appropriator proves by a preponderance of evidence that the following criteria are met:

(a)  The proposed use will not adversely affect the water rights of other persons or other planned uses or developments for which a permit has been issued or for which water has been reserved.

(b)  The proposed means of diversion, construction, and operation of the appropriation works are adequate.

(d)  The applicant has a possessory interest, or the written consent of the person with the possessory interest, in the property where the water is to be put to beneficial use.

(e)  If the change in appropriation right involves salvaged water, the proposed water-saving methods will salvage at least the amount of water asserted by the applicant.

(f)  The water quality of an appropriator will not be adversely affected.

(g)  The ability of a discharge permitholder to satisfy effluent limitations of a permit issued in accordance with Title 75, chapter 5, part 4, will not be adversely affected.

(3)  The applicant is required to prove that the criteria in subsections (2)(f) and (2)(g) have been met only if a valid objection is filed. A valid objection must contain substantial credible information establishing to the satisfaction of the department that the criteria in subsection (2)(f) or (2)(g), as applicable, may not be met.

(4)  The department may not approve a change in purpose of use or place of use of an appropriation of 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water unless the appropriator proves by a preponderance of evidence that:

(b)  the proposed change is a reasonable use. A finding of reasonable use must be based on a consideration of:

(i)  the existing demands on the state water supply, as well as projected demands for water for future beneficial purposes, including municipal water supplies, irrigation systems, and minimum streamflows for the protection of existing water rights and aquatic life;

(iii)  the effects on the quantity and quality of water for existing uses in the source of supply;

(iv)  the availability and feasibility of using low-quality water for the purpose for which application has been made;

(v)  the effects on private property rights by any creation of or contribution to saline seep; and

(vi)  the probable significant adverse environmental impacts of the proposed use of water as determined by the department pursuant to Title 75, chapter 1, or Title 75, chapter 20.

(5)  The department may not approve a change in purpose of use or place of use for a diversion that results in 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water being consumed unless:

(a)  the applicant proves by clear and convincing evidence and the department finds that the criteria in subsections (2) and (4) are met; and

(b)  the department then petitions the legislature and the legislature affirms the decision of the department after one or more public hearings.

(6)  The state of Montana has long recognized the importance of conserving its public waters and the necessity to maintain adequate water supplies for the state's water requirements, including requirements for reserved water rights held by the United States for federal reserved lands and in trust for the various Indian tribes within the state's boundaries. Although the state of Montana also recognizes that, under appropriate conditions, the out-of-state transportation and use of its public waters are not in conflict with the public welfare of its citizens or the conservation of its waters, the following criteria must be met before out-of-state use may occur:

(a)  The department and, if applicable, the legislature may not approve a change in appropriation right for the withdrawal and transportation of appropriated water for use outside the state unless the appropriator proves by clear and convincing evidence and, if applicable, the legislature approves after one or more public hearings that:

(i)  depending on the volume of water diverted or consumed, the applicable criteria and procedures of subsection (2) or (4) are met;

(ii)  the proposed out-of-state use of water is not contrary to water conservation in Montana; and

(iii)  the proposed out-of-state use of water is not otherwise detrimental to the public welfare of the citizens of Montana.

(b)  In determining whether the appropriator has proved by clear and convincing evidence that the requirements of subsections (6)(a)(ii) and (6)(a)(iii) will be met, the department and, if applicable, the legislature shall consider the following factors:

(i)  whether there are present or projected water shortages within the state of Montana;

(ii)  whether the water that is the subject of the proposed change in appropriation might feasibly be transported to alleviate water shortages within the state of Montana;

(iii)  the supply and sources of water available to the applicant in the state where the applicant intends to use the water; and

(iv)  the demands placed on the applicant's supply in the state where the applicant intends to use the water.

(c)  When applying for a change in appropriation right to withdraw and transport water for use outside the state, the applicant shall submit to and comply with the laws of the state of Montana governing the appropriation and use of water.

(7)  For any application for a change in appropriation right involving 4,000 or more acre-feet of water a year and 5.5 or more cubic feet per second of water, the department shall give notice of the proposed change in accordance with 85-2-307 and shall hold one or more hearings in accordance with 85-2-309 prior to its approval or denial of the proposed change. The department shall provide notice and may hold one or more hearings upon any other proposed change if it determines that such a change might adversely affect the rights of other persons.

(8)  The department or the legislature, if applicable, may approve a change subject to such terms, conditions, restrictions, and limitations as it considers necessary to satisfy the criteria of this section, including limitations on the time for completion of the change. The department may extend time limits specified in the change approval under the applicable criteria and procedures of 85-2-312(3).

(9)  Upon actual application of water to the proposed beneficial use within the time allowed, the appropriator shall notify the department that the appropriation has been completed. The notification must contain a certified statement by a person with experience in the design, construction, or operation of appropriation works describing how the appropriation was completed.

(10)  If a change is not completed as approved by the department or legislature or if the terms, conditions, restrictions, and limitations of the change approval are not complied with, the department may, after notice and opportunity for hearing, require the appropriator to show cause why the change approval should not be modified or revoked. If the appropriator fails to show sufficient cause, the department may modify or revoke the change approval.

(11)  The original of a change approval issued by the department must be sent to the applicant, and a duplicate must be kept in the office of the department in Helena.

(12)  A person holding an issued permit or change approval that has not been perfected may change the place of diversion, place of use, purpose of use, or place of storage by filing an application for change pursuant to this section.

(13)  A change in appropriation right contrary to the provisions of this section is invalid. An officer, agent, agency, or employee of the state may not knowingly permit, aid, or assist in any manner an unauthorized change in appropriation right. A person or corporation may not, directly or indirectly, personally or through an agent, officer, or employee, attempt to change an appropriation right except in accordance with this section.

(14)  The department may adopt rules to implement the provisions of this section.""

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