[Rev. 2/11/2019 12:39:40 PM]
κ1997 Statutes of Nevada, Page 261 (CHAPTER 119, SB 237)κ
Sec. 3. NRS 453.3343 is hereby repealed.
Sec. 4. The amendatory provisions of this act do not apply to offenses that are committed before October 1, 1997.
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Senate Bill No. 207Senators Wiener, Adler, James, McGinness, Porter and Titus
CHAPTER 120
AN ACT relating to juvenile courts; revising the provisions governing the authority of a juvenile court to order counseling for a child, his family and other persons living in the same household as the child; and providing other matters properly relating thereto.
[Approved June 5, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 62.211 is hereby amended to read as follows:
62.211 1. Except as otherwise provided in NRS 62.212 and section 1 of [this act,] Assembly Bill No. 39 of this session, if the court finds that a child is within the purview of this chapter , it shall so decree and may:
(a) Place the child under supervision in his own home or in the custody of a suitable person elsewhere, upon such conditions as the court may determine. A program of supervision in the home may include electronic surveillance of the child. The legislature declares that a program of supervision that includes electronic surveillance is intended as an alternative to commitment and not as an alternative to probation, informal supervision or a supervision and consent decree.
(b) Commit the child to the custody of a public or private institution or agency authorized to care for children, or place him in a home with a family. In committing a child to a private institution or agency , the court shall select one that is required to be licensed by the department of human resources to care for such children, or, if the institution or agency is in another state, by the analogous department of that state. The court shall not commit a female child to a private institution without prior approval of the superintendent of the Caliente youth center, and shall not commit a male child to a private institution without prior approval of the superintendent of the Nevada youth training center.
(c) Order such medical, psychiatric, psychological or other care and treatment as the court deems to be for the best interests of the child, except as otherwise provided in this section.
(d) Order the parent, guardian, custodian or any other person to refrain from continuing the conduct which, in the opinion of the court, has caused or tended to cause the child to come within or remain under the provisions of this chapter.
(e) If the child is less than [17] 18 years of age, order [the] :
(1) The parent, guardian or custodian of the child [, and any brothers, sisters] ; and
κ1997 Statutes of Nevada, Page 262 (CHAPTER 120, SB 207)κ
(2) Any brother, sister or other [persons] person who is living in the same household as the child over whom the court has jurisdiction ,
to attend or participate in counseling, [alone or together] with or without the child, including, but not limited to, counseling regarding parenting skills, alcohol or substance abuse , or techniques of dispute resolution.
(f) Order the parent or guardian of the child to participate in a program designed to provide restitution to the victim of an act committed by the child or to perform public service.
(g) Order the parent or guardian of the child to pay all or part of the cost of the proceedings, including, but not limited to, reasonable attorneys fees, any costs incurred by the court and any costs incurred in the investigation of an act committed by the child and the taking into custody of the child.
(h) Order the suspension of the childs drivers license for not more than 2 years. If the child does not possess a drivers license, the court may prohibit the child from applying for a drivers license for not more than 2 years:
(1) Immediately following the date of the order, if the child is eligible to apply for a drivers license.
(2) After the date he becomes eligible to apply for a drivers license, if the child is not eligible to apply for a license on the date of the order.
If the court issues an order suspending the drivers license of a child pursuant to this paragraph, the judge shall require the child to surrender to the court all drivers licenses then held by the child. The court shall, within 5 days after issuing the order, forward to the department of motor vehicles and public safety the licenses, together with a copy of the order. If, pursuant to this paragraph, the court issues an order delaying the ability of a child to apply for a drivers license, the court shall, within 5 days after issuing the order, forward to the department of motor vehicles and public safety a copy of the order. The department of motor vehicles and public safety shall report a suspension pursuant to this paragraph to an insurance company or its agent inquiring about the childs driving record, but such a suspension must not be considered for the purpose of rating or underwriting. The department of motor vehicles and public safety shall not require the child to submit to the tests and other requirements which are adopted by regulation pursuant to subsection 1 of NRS 483.495 as a condition of reinstatement or reissuance after a suspension of his license pursuant to this paragraph, unless the suspension resulted from his poor performance as a driver.
(i) Place the child, when he is not in school, under the supervision of:
(1) A public organization to work on public projects;
(2) A public agency to work on projects to eradicate graffiti; or
(3) A private nonprofit organization to perform other public service.
The person under whose supervision the child is placed shall keep the child busy and well supervised and shall make such reports to the court as it may require. As a condition of such a placement, the court may require the child or his parent or guardian to deposit with the court a reasonable sum of money to pay for the cost of policies of insurance against liability for personal injury and damage to property or for industrial insurance, or both, during those periods in which he performs the work, unless, in the case of industrial insurance, it is provided by the organization or agency for which he performs the work.
κ1997 Statutes of Nevada, Page 263 (CHAPTER 120, SB 207)κ
during those periods in which he performs the work, unless, in the case of industrial insurance, it is provided by the organization or agency for which he performs the work.
(j) Permit the child to reside in a residence without the immediate supervision of an adult, or exempt the child from mandatory attendance at school so that the child may be employed full time, or both, if the child is at least 16 years of age, has demonstrated the capacity to benefit from this placement or exemption and is under the strict supervision of the juvenile division.
(k) Require the child to provide restitution to the victim of the crime which the child has committed.
(l) Impose a fine on the child. If a fine is imposed, the court shall impose an administrative assessment pursuant to NRS 62.223.
2. If the court finds that a child who is less than 17 years of age has committed a delinquent act, the court may order the parent or guardian of the child to pay any fines and penalties imposed for the delinquent act. If the parent or guardian is unable to pay the fines and penalties imposed because of financial hardship, the court may require the parent or guardian to perform community service.
3. In determining the appropriate disposition of a case concerning a child found to be within the purview of this chapter, the court shall consider whether the act committed by the child involved the use of a firearm or the use or threatened use of force or violence against the victim of the act and whether the child is a serious or chronic offender. If the court finds that the act committed by the child involved the use of a firearm or the use or threatened use of force or violence against the victim or that the child is a serious or chronic offender, the court shall include the finding in its order and may, in addition to the options set forth in subsections 1 and 2 of this section and NRS 62.213:
(a) Commit the child for confinement in a secure facility, including a facility which is secured by its staff.
(b) Impose any other punitive measures the court determines to be in the best interests of the public or the child.
4. At any time, either on its own volition or for good cause shown, the court may terminate its jurisdiction concerning the child.
5. Whenever the court commits a child to any institution or agency pursuant to this section or NRS 62.213, it shall transmit a summary of its information concerning the child and order the administrator of the school that the child last attended to transmit a copy of the childs educational records to the institution or agency. The institution or agency shall give to the court any information concerning the child that the court may require.
6. In determining whether to place a child pursuant to this section in the custody of a person other than his parent, guardian or custodian, preference must be given to any person related within the third degree of consanguinity to the child whom the court finds suitable and able to provide proper care and guidance for the child.
Sec. 2. This act becomes effective at 12:01 a.m. on October 1, 1997.
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κ1997 Statutes of Nevada, Page 264κ
Assembly Bill No. 180Assemblymen de Braga, Carpenter, Neighbors, Segerblom and Humke
CHAPTER 121
AN ACT relating to wildlife violations; excluding certain permits issued by the division of wildlife of the state department of conservation and natural resources from provisions governing demerit points for wildlife violations; and providing other matters properly relating thereto.
[Approved June 5, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 501.1812 is hereby amended to read as follows:
501.1812 As used in NRS 501.1812 to 501.1818, inclusive, unless the context otherwise requires [, wildlife violation] :
1. Permit does not include a permit issued by the division pursuant to NRS 502.390 authorizing the development or maintenance of an artificial or man-made body of water.
2. Wildlife violation means a conviction obtained in any court of competent jurisdiction in this state for a violation of a provision of this Title or any regulation adopted pursuant to this Title.
Sec. 2. This act becomes effective upon passage and approval.
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Senate Bill No. 46Committee on Government Affairs
CHAPTER 122
AN ACT relating to counties; authorizing a board of county commissioners to expend money to construct, reconstruct, improve or repair recreational or cultural facilities on the property of a school district located within the county; and providing other matters properly relating thereto.
[Approved June 5, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 244.307 is hereby amended to read as follows:
244.307 1. The board of county commissioners may, by resolution, authorize the expenditure of county money for the construction, reconstruction , improvement or repair of any recreational or cultural facility the title to which is held by [an] :
(a) An incorporated city located within the county [.] ; or
(b) A school district located within the county, if the board of county commissioners has entered into an interlocal agreement with the school district which provides for the construction, reconstruction, improvement or repair of the facility.
2. Each such resolution must:
κ1997 Statutes of Nevada, Page 265 (CHAPTER 122, SB 46)κ
(a) Describe the facility for which the money is to be expended.
(b) Specify the maximum amount of money to be expended and the terms upon which it is to be expended.
(c) Contain a finding by the board of county commissioners that a substantial benefit will be derived by the inhabitants of the county as a whole by the expenditure of such money.
3. As used in this section, cultural facility includes a library.
Sec. 2. This act becomes effective upon passage and approval.
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Assembly Bill No. 271Assemblymen Lee, Koivisto, Parks, Gustavson, Manendo, Nolan, Sandoval, Mortenson, Braunlin, Collins, Bache, Herrera, Von Tobel, Neighbors, Carpenter, Close, Perkins, Hickey, Ohrenschall, Berman, Amodei, Cegavske and Anderson
CHAPTER 123
AN ACT relating to exempt property; revising the limitation on the amount of money held in certain retirement plans or arrangements that is exempt from execution; revising the limitation on the equity in a motor vehicle that is exempt from execution; and providing other matters properly relating thereto.
[Approved June 5, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 21.075 is hereby amended to read as follows:
21.075 1. Execution on the writ of execution by levying on the property of the judgment debtor may occur only if the sheriff serves the judgment debtor with a notice of the writ of execution pursuant to NRS 21.076 and a copy of the writ. The notice must describe the types of property exempt from execution and explain the procedure for claiming those exemptions in the manner required in subsection 2. The clerk of the court shall attach the notice to the writ of execution at the time the writ is issued.
2. The notice required pursuant to subsection 1 must be substantially in the following form:
NOTICE OF EXECUTION
YOUR PROPERTY IS BEING ATTACHED OR
YOUR WAGES ARE BEING GARNISHED
A court has determined that you owe money to .................... (name of person), the judgment creditor. He has begun the procedure to collect that money by garnishing your wages, bank account and other personal property held by third persons or by taking money or other property in your possession.
κ1997 Statutes of Nevada, Page 266 (CHAPTER 123, AB 271)κ
Certain benefits and property owned by you may be exempt from execution and may not be taken from you. The following is a partial list of exemptions:
1. Payments received under the Social Security Act.
2. Payments for benefits or the return of contributions under the public employees retirement system.
3. Payments for public assistance granted through the welfare division of the department of human resources.
4. Proceeds from a policy of life insurance.
5. Payments of benefits under a program of industrial insurance.
6. Payments received as unemployment compensation.
7. Veterans benefits.
8. A homestead in a dwelling or a mobile home, not to exceed $125,000, unless the judgment is for a medical bill, in which case all of the primary dwelling, including a mobile or manufactured home, may be exempt.
9. A vehicle, if your equity in the vehicle is less than [$1,500.] $4,500.
10. Seventy-five percent of the take-home pay for any pay period, unless the weekly take-home pay is less than 30 times the federal minimum wage, in which case the entire amount may be exempt.
11. Money, not to exceed [$100,000] $500,000 in present value, held for retirement pursuant to certain arrangements or plans meeting the requirements for qualified arrangements or plans of sections 401 et seq. of the Internal Revenue Code (26 U.S.C. §§ 401 et seq.).
12. All money and other benefits paid pursuant to the order of a court of competent jurisdiction for the support, education and maintenance of a child, whether collected by the judgment debtor or the state.
13. All money and other benefits paid pursuant to the order of a court of competent jurisdiction for the support and maintenance of a former spouse, including the amount of any arrearages in the payment of such support and maintenance to which the former spouse may be entitled.
14. A vehicle for use by you or your dependent which is specially equipped or modified to provide mobility for a person with a permanent disability.
15. A prosthesis or any equipment prescribed by a physician or dentist for you or your dependent.
These exemptions may not apply in certain cases such as a proceeding to enforce a judgment for support of a person or a judgment of foreclosure on a mechanics lien. You should consult an attorney immediately to assist you in determining whether your property or money is exempt from execution. If you cannot afford an attorney, you may be eligible for assistance through ....................(name of organization in county providing legal services to indigent or elderly persons).
κ1997 Statutes of Nevada, Page 267 (CHAPTER 123, AB 271)κ
PROCEDURE FOR CLAIMING EXEMPT PROPERTY
If you believe that the money or property taken from you is exempt, you must complete and file with the clerk of the court a notarized affidavit claiming the exemption. A copy of the affidavit must be served upon the sheriff and the judgment creditor within 8 days after the notice of execution is mailed. The property must be returned to you within 5 days after you file the affidavit unless you or the judgment creditor files a motion for a hearing to determine the issue of exemption. If this happens, a hearing will be held to determine whether the property or money is exempt. The motion for the hearing to determine the issue of exemption must be filed within 10 days after the affidavit claiming exemption is filed. The hearing to determine whether the property or money is exempt must be held within 10 days after the motion for the hearing is filed.
IF YOU DO NOT FILE THE AFFIDAVIT WITHIN THE TIME SPECIFIED, YOUR PROPERTY MAY BE SOLD AND THE MONEY GIVEN TO THE JUDGMENT CREDITOR, EVEN IF THE PROPERTY OR MONEY IS EXEMPT.
Sec. 2. NRS 21.090 is hereby amended to read as follows:
21.090 1. The following property is exempt from execution, except as otherwise specifically provided in this section:
(a) Private libraries not to exceed $1,500 in value, and all family pictures and keepsakes.
(b) Necessary household goods, as defined in 16 C.F.R. § 444.1(i) as that section existed on January 1, 1987, and yard equipment, not to exceed $3,000 in value, belonging to the judgment debtor to be selected by him.
(c) Farm trucks, farm stock, farm tools, farm equipment, supplies and seed not to exceed $4,500 in value, belonging to the judgment debtor to be selected by him.
(d) Professional libraries, office equipment, office supplies and the tools, instruments and materials used to carry on the trade of the judgment debtor for the support of himself and his family not to exceed $4,500 in value.
(e) The cabin or dwelling of a miner or prospector, his cars, implements and appliances necessary for carrying on any mining operations and his mining claim actually worked by him, not exceeding $4,500 in total value.
(f) Except as otherwise provided in paragraph (o), one vehicle if the judgment debtors equity does not exceed [$1,500] $4,500 or the creditor is paid an amount equal to any excess above that equity.
(g) For any pay period, 75 percent of the disposable earnings of a judgment debtor during that period, or for each week of the period 30 times the minimum hourly wage prescribed by section 6(a)(1) of the federal Fair Labor Standards Act of 1938 and in effect at the time the earnings are payable, whichever is greater. Except as otherwise provided in paragraphs (n), (r) and (s), the exemption provided in this paragraph does not apply in the case of any order of a court of competent jurisdiction for the support of any person, any order of a court of bankruptcy or of any debt due for any state or federal tax. As used in this paragraph, disposable earnings means that part of the earnings of a judgment debtor remaining after the deduction from those earnings of any amounts required by law, to be withheld.
κ1997 Statutes of Nevada, Page 268 (CHAPTER 123, AB 271)κ
that part of the earnings of a judgment debtor remaining after the deduction from those earnings of any amounts required by law, to be withheld.
(h) All fire engines, hooks and ladders, with the carts, trucks and carriages, hose, buckets, implements and apparatus thereunto appertaining, and all furniture and uniforms of any fire company or department organized under the laws of this state.
(i) All arms, uniforms and accouterments required by law to be kept by any person, and also one gun, to be selected by the debtor.
(j) All courthouses, jails, public offices and buildings, lots, grounds and personal property, the fixtures, furniture, books, papers and appurtenances belonging and pertaining to the courthouse, jail and public offices belonging to any county of this state, all cemeteries, public squares, parks and places, public buildings, town halls, markets, buildings for the use of fire departments and military organizations, and the lots and grounds thereto belonging and appertaining, owned or held by any town or incorporated city, or dedicated by the town or city to health, ornament or public use, or for the use of any fire or military company organized under the laws of this state and all lots, buildings and other school property owned by a school district and devoted to public school purposes.
(k) All money, benefits, privileges or immunities accruing or in any manner growing out of any life insurance, if the annual premium paid does not exceed $1,000. If the premium exceeds that amount, a [like] similar exemption exists which bears the same proportion to the money, benefits, privileges and immunities so accruing or growing out of the insurance that the $1,000 bears to the whole annual premium paid.
(l) The homestead as provided for by law.
(m) The dwelling of the judgment debtor occupied as a home for himself and family, where the amount of equity held by the judgment debtor in the home does not exceed $125,000 in value and the dwelling is situate upon lands not owned by him.
(n) All property in this state of the judgment debtor where the judgment is in favor of any state for failure to pay that states income tax on benefits received from a pension or other retirement plan.
(o) Any vehicle owned by the judgment debtor for use by him or his dependent that is equipped or modified to provide mobility for a person with a permanent disability.
(p) Any prosthesis or equipment prescribed by a physician or dentist for the judgment debtor or a dependent of the debtor.
(q) Money, not to exceed [$100,000] $500,000 in present value, held in:
(1) An individual retirement arrangement which conforms with the applicable limitations and requirements of 26 U.S.C. § 408;
(2) A written simplified employee pension plan which conforms with the applicable limitations and requirements of 26 U.S.C. § 408;
(3) A cash or deferred arrangement which is a qualified plan pursuant to the Internal Revenue Code; and
(4) A trust forming part of a stock bonus, pension or profit-sharing plan which is a qualified plan pursuant to sections 401 et seq. of the Internal Revenue Code (26 U.S.C. §§ 401 et seq.).
κ1997 Statutes of Nevada, Page 269 (CHAPTER 123, AB 271)κ
(r) All money and other benefits paid pursuant to the order of a court of competent jurisdiction for the support, education and maintenance of a child, whether collected by the judgment debtor or the state.
(s) All money and other benefits paid pursuant to the order of a court of competent jurisdiction for the support and maintenance of a former spouse, including the amount of any arrearages in the payment of such support and maintenance to which the former spouse may be entitled.
2. No article or species of property mentioned in this section is exempt from execution issued upon a judgment to recover for its price, or upon a judgment of foreclosure of a mortgage or other lien thereon.
3. Any exemptions specified in subsection (d) of section 522 of the Bankruptcy Act of 1978 (92 Stat. 2586) do not apply to property owned by a resident of this state unless conferred also by subsection 1, as limited by subsection 2, of this section.
Sec. 3. NRS 31.045 is hereby amended to read as follows:
31.045 1. Execution on the writ of attachment by attaching property of the defendant may occur only if:
(a) The judgment creditor serves the defendant with notice of the execution when the notice of the hearing is served pursuant to NRS 31.013; or
(b) Pursuant to an ex parte hearing, the sheriff serves upon the judgment debtor notice of the execution and a copy of the writ at the same time and in the same manner as set forth in NRS 21.076.
If the attachment occurs pursuant to an ex parte hearing, the clerk of the court shall attach the notice to the writ of attachment at the time the writ is issued.
2. The notice required pursuant to subsection 1 must be substantially in the following form:
NOTICE OF EXECUTION
YOUR PROPERTY IS BEING ATTACHED OR
YOUR WAGES ARE BEING GARNISHED
Plaintiff, .................... (name of person), alleges that you owe him money. He has begun the procedure to collect that money. To secure satisfaction of judgment the court has ordered the garnishment of your wages, bank account or other personal property held by third persons or the taking of money or other property in your possession.
Certain benefits and property owned by you may be exempt from execution and may not be taken from you. The following is a partial list of exemptions:
1. Payments received under the Social Security Act.
2. Payments for benefits or the return of contributions under the public employees retirement system.
3. Payments for public assistance granted through the welfare division of the department of human resources.
4. Proceeds from a policy of life insurance.
5. Payments of benefits under a program of industrial insurance.
κ1997 Statutes of Nevada, Page 270 (CHAPTER 123, AB 271)κ
6. Payments received as unemployment compensation.
7. Veterans benefits.
8. A homestead in a dwelling or a mobile home, not to exceed $125,000, unless the judgment is for a medical bill, in which case all of the primary dwelling, including a mobile or manufactured home, may be exempt.
9. A vehicle, if your equity in the vehicle is less than [$1,500.] $4,500.
10. Seventy-five percent of the take-home pay for any pay period, unless the weekly take-home pay is less than 30 times the federal minimum wage, in which case the entire amount may be exempt.
11. Money, not to exceed [$100,000] $500,000 in present value, held for retirement pursuant to certain arrangements or plans meeting the requirements for qualified arrangements or plans of sections 401 et seq. of the Internal Revenue Code (26 U.S.C. §§ 401 et seq.).
12. All money and other benefits paid pursuant to the order of a court of competent jurisdiction for the support, education and maintenance of a child, whether collected by the judgment debtor or the state.
13. All money and other benefits paid pursuant to the order of a court of competent jurisdiction for the support and maintenance of a former spouse, including the amount of any arrearages in the payment of such support and maintenance to which the former spouse may be entitled.
14. A vehicle for use by you or your dependent which is specially equipped or modified to provide mobility for a person with a permanent disability.
15. A prosthesis or any equipment prescribed by a physician or dentist for you or your dependent.
These exemptions may not apply in certain cases such as proceedings to enforce a judgment for support of a child or a judgment of foreclosure on a mechanics lien. You should consult an attorney immediately to assist you in determining whether your property or money is exempt from execution. If you cannot afford an attorney, you may be eligible for assistance through .................... (name of organization in county providing legal services to the indigent or elderly persons).
PROCEDURE FOR CLAIMING EXEMPT PROPERTY
If you believe that the money or property taken from you is exempt or necessary for the support of you or your family, you must file with the clerk of the court on a form provided by the clerk a notarized affidavit claiming the exemption. A copy of the affidavit must be served upon the sheriff and the judgment creditor within 8 days after the notice of execution is mailed. The property must be returned to you within 5 days after you file the affidavit unless the judgment creditor files a motion for a hearing to determine the issue of exemption. If this happens, a hearing will be held to determine whether the property or money is exempt.
κ1997 Statutes of Nevada, Page 271 (CHAPTER 123, AB 271)κ
money is exempt. The hearing must be held within 10 days after the motion for a hearing is filed.
IF YOU DO NOT FILE THE AFFIDAVIT WITHIN THE TIME SPECIFIED, YOUR PROPERTY MAY BE SOLD AND THE MONEY GIVEN TO THE JUDGMENT CREDITOR, EVEN IF THE PROPERTY OR MONEY IS EXEMPT.
If you received this notice with a notice of a hearing for attachment and you believe that the money or property which would be taken from you by a writ of attachment is exempt or necessary for the support of you or your family, you are entitled to describe to the court at the hearing why you believe your property is exempt. You may also file a motion with the court for a discharge of the writ of attachment. You may make that motion any time before trial. A hearing will be held on that motion.
IF YOU DO NOT FILE THE MOTION BEFORE THE TRIAL, YOUR PROPERTY MAY BE SOLD AND THE MONEY GIVEN TO THE PLAINTIFF, EVEN IF THE PROPERTY OR MONEY IS EXEMPT OR NECESSARY FOR THE SUPPORT OF YOU OR YOUR FAMILY.
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Assembly Bill No. 250Assemblyman Neighbors
CHAPTER 124
AN ACT relating to county surveyors; expanding the services that may be assigned to county surveyors; revising the provisions regarding the compensation of a county surveyor; and providing other matters properly relating thereto.
[Approved June 6, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 255.020 is hereby amended to read as follows:
255.020 [A county surveyor may be appointed by the] The board of county commissioners [to serve] may appoint a county surveyor who serves at the pleasure of the board [.] to perform surveying and such other services for the county as the board determines appropriate.
Sec. 2. NRS 255.025 is hereby amended to read as follows:
255.025 No person may [hold the office of] be appointed as a county surveyor unless he is a professional land surveyor registered [under] pursuant to the provisions of chapter 625 of NRS.
Sec. 3. NRS 255.060 is hereby amended to read as follows:
255.060 1. The board of county commissioners shall [allow] pay to each county surveyor appointed pursuant to NRS 255.020:
(a) A salary set by the board; or
κ1997 Statutes of Nevada, Page 272 (CHAPTER 124, AB 250)κ
(b) In lieu of a salary, fair and reasonable compensation [, in lieu of salary,] in connection with each survey ordered by the board, or for [such] other services performed by him for the county, when he has been authorized to perform the [same.] services.
2. The county surveyor [shall be] is entitled to receive, in addition to the salary or compensation allowed by subsection 1, mileage for transportation necessary [in making any survey ordered by the board of county commissioners,] to fulfill his duties as determined by the board of county commissioners, at the rate for such mileage as [shall be] is provided by law to be allowed to county officers.
3. [The] Except when the county surveyor is paid a salary, the county surveyor shall file with the clerk of the board of county commissioners a proper statement of account for [such] all services he performs, and for all allowances [,] claimed by him for mileage, duly acknowledged as provided by law for filing claims for payment of accounts due from the county.
Sec. 4. NRS 255.130 is hereby amended to read as follows:
255.130 1. Before [any] a subdivision plat is accepted by [any] a board of county commissioners pursuant to law, the [same shall] subdivision plat must be submitted to and [receive the certification of] certified as to its correctness and eligibility for recording by the county surveyor, or his deputy, if there is one qualified to act in the county. [Such certification shall be in respect of correctness in general and in detail and eligibility for record according to law.]
2. Reasonable fees based on work done [shall] by the county surveyor or his deputy must be paid to the [officer] county by the subdivider.
Sec. 5. This act becomes effective on July 1, 1997.
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Assembly Bill No. 251Assemblyman Neighbors
CHAPTER 125
AN ACT relating to counties; revising the provisions governing the merit personnel system of certain counties; and providing other matters properly relating thereto.
[Approved June 6, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 245.215 is hereby amended to read as follows:
245.215 1. The board of county commissioners shall adopt regulations for any merit personnel system established pursuant to the provisions of NRS 245.213 to 245.216, inclusive. [Such regulations shall provide for:
(a)] The regulations must provide:
(a) For the classification of all county positions, not exempt from the merit personnel system, based on the duties, authority and responsibility of each position, with adequate provision for reclassification of any position whatsoever whenever warranted by changed circumstances.
κ1997 Statutes of Nevada, Page 273 (CHAPTER 125, AB 251)κ
(b) A pay plan for all county employees, including exempt employees other than elected officers that are covered in other provisions of NRS or by special legislative act.
(c) Policies and procedures for regulating reduction in force and the removal of employees.
(d) Hours of work, attendance regulations and provisions for sick and vacation leave.
(e) Policies and procedures governing persons holding temporary or provisional appointments.
(f) Policies and procedures governing relationships with employees and employee organizations.
(g) Policies concerning employee training and development.
(h) Grievance procedures.
(i) Other policies and procedures necessary for the administration of a merit personnel system.
2. Regulations adopted pursuant to this section for a merit personnel system established by a board of county commissioners pursuant to subsection 2 of NRS 245.213 must not exempt any employees other than those who are specifically exempted from such a merit personnel system pursuant to NRS 245.216.
3. In the event of a conflict between the policies and procedures adopted pursuant to this section and the provisions of a collective bargaining agreement entered into pursuant to chapter 288 of NRS , the provisions of the agreement prevail.
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Assembly Bill No. 68Committee on Government Affairs
CHAPTER 126
AN ACT relating to cities; revising the qualifications relating to residency for certain appointive city offices and positions; and providing other matters properly relating thereto.
[Approved June 6, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 266.400 is hereby amended to read as follows:
266.400 [No person is eligible to any office:
1. Who is not a qualified elector of the city, except that a person need not be a resident of the city to be eligible to the office of city attorney.
2. Who]
1. The city council, by ordinance, may require, as a qualification for an appointive office of the city, other than city attorney, and for appointment as a deputy pursuant to NRS 266.455, that the person appointed reside actually, and not constructively, within:
(a) The limits of the city; or
(b) The county in which the city is located.
κ1997 Statutes of Nevada, Page 274 (CHAPTER 126, AB 68)κ
2. A person who is a defaulter to the city [.] is ineligible to hold any city office.
Sec. 2. NRS 283.040 is hereby amended to read as follows:
283.040 1. Every office becomes vacant upon the occurring of any of the following events before the expiration of the term:
(a) The death or resignation of the incumbent.
(b) The removal of the incumbent from office.
(c) The confirmed insanity of the incumbent, found by a court of competent jurisdiction.
(d) A conviction of the incumbent of any felony or offense involving a violation of his official oath or bond or a violation of NRS 241.040 or 293.1755.
(e) A refusal or neglect of the person elected or appointed to take the oath of office, as prescribed in NRS 282.010 , [;] or, when a bond is required by law, his refusal or neglect to give such bond within the time prescribed by law.
(f) [The] Except as otherwise provided in NRS 266.400, the ceasing of the incumbent to be a resident of the state, district, county, city, ward or other unit prescribed by law in which the duties of his office are to be exercised, or from which he was elected or appointed, or in which he was required to reside to be a candidate for office [.] or appointed to office.
(g) The neglect or refusal of the incumbent to discharge the duties of his office for a period of 30 days, except when prevented by sickness, or absence from the state or county, as provided by law.
(h) The decision of a competent tribunal declaring the election or appointment void or the office vacant.
2. Upon the happening of any of the events enumerated in subsection 1, should the incumbent fail or refuse to relinquish his office, the attorney general shall, if the office affected is a state office or concerns more than one county, or the district attorney shall, if the office affected is a county office or concerns territory within one county, commence and prosecute, in a court of competent jurisdiction, any proceedings for judgment and decree declaring such office vacant.
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κ1997 Statutes of Nevada, Page 275κ
Assembly Bill No. 120Committee on Government Affairs
CHAPTER 127
AN ACT relating to administrative regulations; revising the procedures for the adoption of administrative regulations and forms required by administrative agencies under certain circumstances; and providing other matters properly relating thereto.
[Approved June 6, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 233B.067 is hereby amended to read as follows:
233B.067 1. After adopting a permanent regulation, the agency shall submit the informational statement prepared pursuant to NRS 233B.066 and an original and four copies of each regulation adopted, to the director of the legislative counsel bureau for review by the legislative commission, which may refer it to a joint interim committee, to determine whether the regulation conforms to the statutory authority [under] pursuant to which it was adopted and whether the regulation carries out the intent of the legislature in granting that authority. The director shall have endorsed on the original and duplicate copies of each adopted regulation the date of their receipt and shall maintain one copy of the regulation in a file and available for public inspection for 2 years.
2. If an agency submits an adopted regulation to the director of the legislative counsel bureau pursuant to subsection 1 which:
(a) The agency is required to adopt pursuant to a federal statute or regulation; and
(b) Exceeds the agencys specific statutory authority or sets forth requirements that are more stringent than a statute of this state,
it shall include a statement that adoption of the regulation is required by a federal statute or regulation. The statement must include the specific citation of the federal statute or regulation requiring such adoption.
3. The legislative commission , or the joint interim committee if the commission has referred it to such a committee, shall review the regulation at its next regularly scheduled meeting if the regulation is received more than 10 working days before the meeting and a regular meeting is held within 35 days after receipt of the regulation. The commission may appoint a committee composed of three or more members of the commission or any joint interim committee to examine proposed regulations received more than 35 days before a regular meeting is scheduled to be held.
4. The legislative commission shall notify the director of the results of its review within 30 days after receipt of the regulation from the agency. If the commission does not object to the regulation , [on the basis that the regulation fails to conform to the statutory authority under which it was adopted or fails to carry out the intent of the legislature in granting that authority,] the director shall file it with the secretary of state within 35 days after receipt from the agency and notify the agency of the filing.
κ1997 Statutes of Nevada, Page 276 (CHAPTER 127, AB 120)κ
authority,] the director shall file it with the secretary of state within 35 days after receipt from the agency and notify the agency of the filing. If the commission [determines] objects to the regulation after determining that :
(a) If subsection 2 is applicable, the regulation is not required pursuant to a federal statute or regulation [, if subsection 2 is applicable, or] ;
(b) The regulation does not conform to statutory authority ; or
(c) The regulation does not carry out legislative intent,
the director shall attach to the regulation a written notice of the commissions objection, including a statement of the reasons for its objection, and shall promptly return the regulation to the agency. [The director shall file the regulation with the secretary of state within 35 days after receipt from the agency if the agency does not notify the director in writing before that date of its intent to revise the regulation. If the agency notifies the director that it intends to revise the regulation as recommended, the director shall file the regulation with the secretary of state within 10 days after receipt of the revised regulation.
5. If the director fails to file the regulation as required by this section, the agency may file the regulation with the secretary of state.]
Sec. 2. NRS 233B.0675 is hereby amended to read as follows:
233B.0675 1. If the legislative commission has objected to a regulation , [and] the agency [did not] may revise it [before it was filed with the secretary of state, the commission shall report the matter to the next session of the legislature for its consideration.] and return it to the director of the legislative counsel bureau. Upon receipt of the revised regulation, the director shall resubmit the regulation to the commission at its next regularly scheduled meeting. If the commission does not object to the revised regulation, the director shall promptly file the revised regulation with the secretary of state and notify the agency of the filing.
2. If the legislative commission objects to the revised regulation, the agency may continue to revise it and resubmit it to the commission.
3. If the agency refuses to revise a regulation to which the legislative commission has objected, the commission may suspend the filing of the regulation until the 30th day of the next regular session of the legislature. Before the 30th day of the next regular session the legislature may, by concurrent resolution, declare that the regulation will not become effective. The director shall thereupon notify the agency that the regulation will not be filed and must not be enforced. If the legislature has not so declared by the 30th day of the session, the director shall promptly file the regulation and notify the agency of the filing.
Sec. 3. NRS 233B.070 is hereby amended to read as follows:
233B.070 1. A permanent regulation becomes effective [upon filing] when the director of the legislative counsel bureau files with the secretary of state the original of the final draft or revision of a regulation, except as otherwise provided in NRS 233B.0665 or where a later date is specified in the regulation.
2. A temporary or emergency regulation becomes effective [upon filing] when the agency files with the secretary of state the original of the final draft or revision of a regulation [by the agency,] together with the informational statement prepared pursuant to NRS 233B.066.
κ1997 Statutes of Nevada, Page 277 (CHAPTER 127, AB 120)κ
draft or revision of a regulation [by the agency,] together with the informational statement prepared pursuant to NRS 233B.066. The agency shall also file a copy of the temporary or emergency regulation with the legislative counsel bureau, together with the informational statement prepared pursuant to NRS 233B.066.
3. The secretary of state shall maintain the original of the final draft or revision of each regulation in a permanent file to be used only for the preparation of official copies.
4. The secretary of state shall file, with the original of each agencys rules of practice, the current statement of the agency concerning the date and results of its most recent review of those rules.
5. Immediately after each permanent or temporary regulation is filed, the agency shall deliver one copy of the final draft or revision, bearing the stamp of the secretary of state indicating that it has been filed, including material adopted by reference which is not already filed with the state librarian, to the state librarian for use by the public. If the agency is a licensing board as defined in NRS 439B.225 and it has adopted a permanent regulation relating to standards for licensing or for the renewal of a license issued to a person or facility regulated by the agency, the agency shall also deliver one copy of the regulation, bearing the stamp of the secretary of state, to the legislative committee on health care within 10 days after the regulation is filed with the secretary of state.
6. Each agency shall furnish a copy of all or part of that part of the Nevada Administrative Code which contains its regulations, to any person who requests a copy, and may charge a reasonable fee for the copy based on the cost of reproduction if it does not have money appropriated or authorized for that purpose.
7. An agency which publishes any regulations included in the Nevada Administrative Code shall use the exact text of the regulation as it appears in the Nevada Administrative Code, including the leadlines and numbers of the sections. Any other material which an agency includes in a publication with its regulations must be presented in a form which clearly distinguishes that material from the regulations.
Sec. 4. NRS 233B.115 is hereby amended to read as follows:
233B.115 1. Any person who objects to the content of a form required by an agency to be used in submitting an application, making a declaration or providing other information may request the legislative commission to determine whether the information required and the instructions for its preparation conform to the statutory authority [under] pursuant to which the agency requires it. The legislative commission may also make such a determination on its own motion.
2. If the legislative commission finds that any part of the information or instructions does not conform to statutory authority, the director of the legislative counsel bureau shall so notify the agency. [The agency may revise the form and submit it to the legislative commission for its review.]
3. After notification by the director of the legislative counsel bureau of the legislative commissions objection to the form, the agency may revise the form to conform to statutory authority and resubmit it to the legislative commission.
κ1997 Statutes of Nevada, Page 278 (CHAPTER 127, AB 120)κ
form to conform to statutory authority and resubmit it to the legislative commission. The agency shall not use the form until it has submitted a revised version to the legislative commission and the commission has approved the form.
4. If the agency [chooses instead not] refuses to revise the form, [the commission shall report the matter to the next session of the legislature for its consideration.] it shall not use the form until after the expiration of the first 30 days of the next regular session of the legislature. Before the 30th day of the next regular session the legislature may, by concurrent resolution, declare that the form must not be used. The director shall thereupon notify the agency that it shall not use the form. If the legislature has not so declared by the 30th day of the session, the director shall promptly notify the agency that it may use the form.
Sec. 5. This act becomes effective on July 1, 1997.
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Assembly Bill No. 154Committee on Government Affairs
CHAPTER 128
AN ACT relating to the public employees deferred compensation program; revising the provisions governing the frequency of the solicitation of proposals for the public employees deferred compensation program; and providing other matters properly relating thereto.
[Approved June 6, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 287.330 is hereby amended to read as follows:
287.330 1. The committee shall:
(a) At its first meeting each year, designate one of its members to serve as chairman of the committee for a term of 1 year or until his successor has been designated.
(b) Act in such a manner as to promote the collective best interests of the participants in the program.
2. The committee may:
(a) Create an appropriate account for administration of money and other assets resulting from compensation deferred pursuant to the program.
(b) With the approval of the governor, delegate to one or more state agencies or institutions of the University and Community College System of Nevada the responsibility for administering the program for their respective employees, including:
(1) Collection of deferred compensation;
(2) Transmittal of money collected to depositories within the state designated by the committee; and
(3) Payment of deferred compensation to participating employees.
(c) Contract with a private person, corporation, institution or other entity, directly or through a state agency or institution of the University and Community College System of Nevada, for services necessary to the administration of the plan, including, without limitation:
κ1997 Statutes of Nevada, Page 279 (CHAPTER 128, AB 154)κ
Community College System of Nevada, for services necessary to the administration of the plan, including, without limitation:
(1) Consolidated billing;
(2) The keeping of records for each participating employee and the program;
(3) The purchase, control and safeguarding of assets;
(4) Programs for communication with employees; and
(5) The administration and coordination of the program.
3. The committee and its individual members are not liable for any decision relating to investments if the committee has:
(a) Obtained the advice of qualified counsel on investments.
(b) Established proper objectives and policies relating to investments.
(c) Discharged its duties regarding the decision:
(1) Solely in the interest of the participants in the program; and
(2) With the care, skill, prudence and diligence that, under the circumstances existing at the time of the decision, a prudent person who is familiar with similar investments would use while acting in a similar capacity in conducting an enterprise of similar character and purpose.
(d) Selected at least two plans from separate and distinct providers from which the participants in the program may choose.
(e) Solicited proposals from qualified providers of plans [in January of each odd-numbered year.] at least once every 5 years.
Sec. 2. This act becomes effective upon passage and approval.
________
Assembly Bill No. 189Assemblymen Carpenter, Sandoval, Anderson, Herrera, Collins, Neighbors, Ohrenschall and Gustavson
CHAPTER 129
AN ACT relating to community service by county inmates; requiring certain boards of county commissioners to conduct a study regarding the feasibility of establishing a program to require the inmates of its county jail to perform community service; providing an exception; and providing other matters properly relating thereto.
[Approved June 6, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. 1. Each board of county commissioners of a county that does not have a program that requires inmates housed in its county jail to perform community service on or before January 6, 1998, shall conduct a study to determine the feasibility of establishing a program which would require such a program.
2. The study must include, without limitation, an analysis of:
(a) The cost of establishing such a program, including, without limitation, the cost of any payment for an insurance policy, payment for the overtime of county employees and costs of transportation;
(b) The amount of money that the county would save if the inmates performed community service;
κ1997 Statutes of Nevada, Page 280 (CHAPTER 129, AB 189)κ
(c) Any issue regarding the safety and security of the public, the inmates and personnel of the county jail and law enforcement agencies; and
(d) The jobs and services that the inmates could perform in the community.
3. Except as otherwise provided in subsection 1, each board of county commissioners shall submit a report containing its findings on or before January 6, 1999, to the director of the legislative counsel bureau for transmittal to the 70th session of the Nevada legislature.
Sec. 2. The provisions of subsection 1 of NRS 354.599 do not apply to any additional expenses of a local government that are related to the provisions of this act.
________
Assembly Bill No. 324Committee on Judiciary
CHAPTER 130
AN ACT relating to governmental financial administration; removing the provisions that require tort claims against this state or any of its agencies or political subdivisions to be filed within a certain period with the ex officio clerk of the state board of examiners; requiring those claims to be filed within a certain period with the attorney general; requiring the attorney general to approve, settle or deny the claims under certain circumstances; requiring the attorney general to investigate certain claims and submit a report of findings to the state board of examiners concerning those claims; removing the provisions that limit the amount of money that may be approved for payment by the state board of examiners or a political subdivision for certain claims or actions; and providing other matters properly relating thereto.
[Approved June 6, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 41.036 is hereby amended to read as follows:
41.036 1. [No action may be brought under NRS 41.031 against the state or any agency or other political subdivision of the state without complying with the requirements of subsection 2 or 3.
2.] Each person who has a claim against the state or any of its agencies arising out of a tort must file his claim within 2 years [from] after the time the cause of action accrues with the [ex officio clerk of the state board of examiners. He shall within 10 days deliver a copy of the claim to the] attorney general . [, and refer the claim to the appropriate state agency, office or officer for investigation and report of findings to the board.
3.] 2. Each person who has a claim against any political subdivision of the state arising out of a tort must file his claim within 2 years [from] after the time the cause of action accrues with the governing body of that political subdivision.
[4.] 3. The filing of a claim in tort against the state or a political subdivision as required by subsections 1 and 2 [and 3] is not a condition precedent to bringing an action pursuant to NRS 41.031.
κ1997 Statutes of Nevada, Page 281 (CHAPTER 130, AB 324)κ
4. The attorney general shall, if authorized by regulations adopted by the state board of examiners pursuant to subsection 6, approve, settle or deny each claim that is:
(a) Filed pursuant to subsection 1; and
(b) Not required to be passed upon by the legislature.
5. If the attorney general is not authorized to approve, settle or deny a claim filed pursuant to subsection 1, the attorney general shall investigate the claim and submit a report of findings to the state board of examiners concerning that claim.
6. The state board of examiners shall adopt regulations that specify:
(a) The type of claim that the attorney general is required to approve, settle or deny pursuant to subsection 4; and
(b) The procedure to be used by the attorney general to approve, settle or deny that claim.
Sec. 2. NRS 41.037 is hereby amended to read as follows:
41.037 1. Upon receiving [the] a report of findings [as provided in subsection 2] pursuant to subsection 5 of NRS 41.036, the state board of examiners may [allow and] approve , settle or deny any claim or [settle any] action against the state, any of its agencies or any of its present or former officers, employees, immune contractors or legislators . [arising pursuant to NRS 41.031 to the extent of $50,000, plus interest computed from the date of judgment.]
2. Upon approval of [any] a claim by the state board of examiners [,] or the attorney general pursuant to subsection 4 of NRS 41.036:
(a) The state controller shall draw his warrant for the payment [thereof, and] of the claim; and
(b) The state treasurer shall pay the claim from [the] :
(1) The fund for insurance premiums ; or [from the]
(2) The reserve for statutory contingency account.
3. The governing body of any political subdivision whose authority to allow and approve claims is not otherwise fixed by statute may [allow and approve] :
(a) Approve, settle or deny any claim or [settle any] action against that subdivision or any of its present or former officers or employees [arising under NRS 41.031 to the extent of $50,000, plus interest computed from the date of entry of any judgment, and pay it] ; and
(b) Pay the claim or settlement from any money appropriated or lawfully available for that purpose.
Sec. 3. NRS 331.187 is hereby amended to read as follows:
331.187 1. There is created in the state treasury the fund for insurance premiums as an internal service fund to be maintained for [the use of] use by the risk management division of the department of administration [.] and the attorney general.
2. Each state agency shall deposit in the fund [an] :
(a) An amount equal to its insurance premium and other charges for potential liability, as determined by the risk management division [.] ; and
(b) An amount for self-insured tort claims and expenses related to those claims, as determined by the attorney general.
κ1997 Statutes of Nevada, Page 282 (CHAPTER 130, AB 324)κ
3. Expenditures from the fund must be made by the risk management division [to] or the attorney general to an insurer for premiums of state agencies as they become due [and for claims which are obligations of the state pursuant to NRS 41.0349 and 41.037.] or for deductibles, self-insured property and tort claims or claims pursuant to NRS 41.0349. If the money in the fund is insufficient to pay [the] a tort claim, it must be paid from the reserve for statutory contingency account.
Sec. 4. NRS 353.190 is hereby amended to read as follows:
353.190 1. In addition to his other duties, the chief is ex officio clerk of the state board of examiners. [He] Except as otherwise provided in subsection 4 of NRS 41.036, the chief shall:
(a) Assist the state board of examiners in the examination, classification and preparation for audit of all the claims required to be presented to the board.
(b) Conduct an effective check and preaudit of all [such] those claims before they are submitted to the board.
(c) Approve, on behalf of and when authorized by the board, claims against the state not required to be passed upon by the legislature.
2. The rules of procedure governing the duties of the chief [under] pursuant to this section [shall be promulgated] must be adopted by the state board of examiners.
3. The chief may delegate these duties to his deputy.
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Assembly Bill No. 144Assemblyman Carpenter
CHAPTER 131
AN ACT relating to taxation; requiring certain cities and towns to transmit the proceeds of certain license taxes to the districts to which the proceeds are assigned; allowing certain districts to pledge irrevocably the proceeds of certain license taxes for the repayment of certain bonds or other obligations; and providing other matters properly relating thereto.
[Approved June 6, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 268.460 is hereby amended to read as follows:
268.460 1. Any license tax levied by any county against any lawful trade, calling, industry, occupation, profession or business conducted in the county and located in an unincorporated area therein, the proceeds of which are pledged before or after the incorporation of the area as a city or town for the [payment] repayment of any bonds or other obligations issued pursuant to the provisions of NRS 244.3358 or 244A.597 to 244A.655, inclusive, must, [upon] after the incorporation of the area as a city or town, continue to be levied by the city or town and must be collected by the officer of the [newly incorporated] city or town charged by law with the collection of its license taxes. [The]
κ1997 Statutes of Nevada, Page 283 (CHAPTER 131, AB 144)κ
2. If the proceeds of the license tax levied pursuant to subsection 1 are pledged before or after the incorporation of the area as a city or town for the payment of any bonds or other obligations issued pursuant to the provisions of NRS 244.3358:
(a) The city or town shall, after the incorporation of the area as a city or town, transmit the proceeds of that license tax to the district to which the proceeds are assigned, so long as any of the bonds or other obligations remain outstanding and unpaid, both as to principal and interest, in accordance with their terms; and
(b) The district to which the proceeds are assigned may, after the incorporation of the city or town, irrevocably pledge those proceeds for the repayment or refinancing of any bonds or short-term or medium-term obligations issued pursuant to the provisions of chapter 318 or 350 of NRS, if the governing body of the city or town consents to the assignment by resolution in lieu of the consent of the board of county commissioners required pursuant to the provisions of NRS 244.3358.
3. If the proceeds of the license tax levied pursuant to subsection 1 are pledged before or after the incorporation of the area as a city or town for the repayment of any bonds or other obligations issued pursuant to the provisions of NRS 244A.597 to 244A.655, inclusive, the proceeds must be transmitted to the county officer required by law to collect [such a county] the license tax, so long as any of the bonds or other obligations remain outstanding and unpaid, both as to principal and interest.
Sec. 2. NRS 244.3358 is hereby amended to read as follows:
244.3358 1. A county whose population is less than 100,000 may by ordinance assign to a district created pursuant to chapter 318 of NRS which has been granted the basic power of furnishing recreational facilities all or any portion of the proceeds of any tax on the revenues from the rental of transient lodging which is imposed by the county and collected within the boundaries of the district, except the tax imposed pursuant to NRS 244.3352 or a tax imposed pursuant to NRS 244.3351.
2. The district may use the proceeds assigned pursuant to subsection 1 for any purpose authorized pursuant to NRS 318.143.
3. The district may, with the consent of the board of county commissioners [,] or as otherwise provided in NRS 268.460, irrevocably pledge the proceeds assigned pursuant to subsection 1 for:
(a) The repayment of any bonds or short-term or medium-term obligations issued pursuant to chapter 318 or 350 of NRS for any lawful purpose pertaining to the furnishing of recreational facilities; or
(b) The refinancing of any such bonds or obligations.
The consent of the board of county commissioners must be given by resolution. If any proceeds are pledged pursuant to this subsection, the assignment of the proceeds may not be revoked until the bonds or short-term or medium-term obligations for which the proceeds were pledged have been completely repaid.
4. No assignment may be made pursuant to this section which is inconsistent with an assignment made or contract entered into for the purposes of NRS 244A.597 to 244A.655, inclusive.
κ1997 Statutes of Nevada, Page 284 (CHAPTER 131, AB 144)κ
5. A county which makes an assignment pursuant to this section may retain an amount equal to the reasonable cost of collecting the tax, which must not exceed 2 percent of the proceeds of the tax for any period of collection.
Sec. 3. This act becomes effective upon passage and approval.
________
Senate Bill No. 227Senator McGinness
CHAPTER 132
AN ACT relating to geothermal resources; revising the provisions governing the applicability of the appropriation procedures for water to certain losses of water; and providing other matters properly relating thereto.
[Approved June 6, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 534A.040 is hereby amended to read as follows:
534A.040 [Any] A consumptive use of water brought to the surface outside of a geothermal well is subject to the appropriation procedures of chapters 533 and 534 of NRS, except for:
1. [Any water] Water that is removed from an aquifer or geothermal reservoir to develop and obtain geothermal resources if the water is returned to or reinjected [in] into the same aquifer or reservoir; or
2. The reasonable loss of water [during] :
(a) During a test of a geothermal well ; or [because of]
(b) From the temporary failure of all or part of a system [for reinjection.] that removes water from an aquifer or geothermal reservoir, transfers the heat from that water and reinjects that water into the same aquifer or reservoir.
________
κ1997 Statutes of Nevada, Page 285κ
Assembly Bill No. 114Committee on Labor and Management
CHAPTER 133
AN ACT relating to industrial insurance; eliminating the duty of the division of industrial relations of the department of business and industry to certify or authorize insurers to provide industrial insurance; clarifying that unauthorized insurers are prohibited from providing industrial insurance in this state; and providing other matters properly relating thereto.
[Approved June 6, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 616A.465 is hereby amended to read as follows:
616A.465 1. Except as otherwise provided in this section, the division shall:
(a) [Certify or authorize whether an insurer meets the requirements of chapters 616A to 617, inclusive, of NRS to provide industrial insurance;
(b)] Regulate insurers pursuant to chapters 616A to 617, inclusive, of NRS [;
(c)] ; and
(b) Investigate insurers regarding compliance with statutes and the divisions regulations . [; and
(d) If necessary, suspend the certification or authorization of an insurer to provide industrial insurance.]
2. The commissioner is responsible for reviewing rates, investigating the solvency of insurers, authorizing private carriers pursuant to chapter 680A of NRS and certifying:
(a) Self-insured employers pursuant to NRS 616B.300 to 616B.330, inclusive, and 616B.336;
(b) Associations of self-insured public or private employers pursuant to NRS 616B.350 to 616B.446, inclusive; and
(c) Third-party administrators pursuant to chapter 683A of NRS.
3. The department of administration is responsible for contested claims relating to industrial insurance pursuant to NRS 616C.310 to 616C.385, inclusive. The administrator is responsible for administrative appeals pursuant to NRS 616B.215.
4. The Nevada attorney for injured workers is responsible for legal representation of claimants pursuant to NRS 616A.435 to 616A.460, inclusive, and 616D.120.
5. The division is responsible for the investigation of complaints. If a complaint is filed with the division, the administrator shall cause to be conducted an investigation which includes a review of relevant records and interviews of affected persons. If the administrator determines that a violation may have occurred, the administrator shall proceed in accordance with the provisions of NRS 616D.120 and 616D.130.
κ1997 Statutes of Nevada, Page 286 (CHAPTER 133, AB 114)κ
Sec. 2. NRS 616B.463 is hereby amended to read as follows:
616B.463 1. Before a private carrier may provide industrial insurance pursuant to chapters 616A to 617, inclusive, of NRS, the private carrier must be authorized by the commissioner pursuant to chapter 680A of NRS and maintain such security of the kind described in NRS 680A.120 and 680A.140 as may be required.
2. A private carrier shall not provide industrial insurance pursuant to chapters 616A to 617, inclusive, of NRS as an unauthorized insurer pursuant to subsection 9 of NRS 680A.070.
Sec. 3. NRS 680A.070 is hereby amended to read as follows:
680A.070 A certificate of authority is not required of an insurer with respect to any of the following:
1. Investigation, settlement or litigation of claims under its policies lawfully written in this state, or liquidation of assets and liabilities of the insurer, other than collection of new premiums, all as resulting from its former authorized operations in this state.
2. Except as otherwise provided in subsection 2 of NRS 680A.060, transactions thereunder after issuance of a policy covering only subjects of insurance that are not resident, located or expressly to be performed in this state at the time of issuance, and lawfully solicited, written and delivered outside this state.
3. Prosecution or defense of suits at law, except that no insurer unlawfully transacting insurance in this state without a certificate of authority may institute or maintain, other than defend, any action at law or in equity in any court of this state, either directly or through an assignee or successor in interest, to enforce any right, claim or demand arising out of such an insurance transaction until the insurer, assignee or successor has obtained a certificate of authority. This provision does not apply to any suit or action by the receiver, rehabilitator or liquidator of such an insurer, assignee or successor under laws similar to those contained in chapter 696B of NRS.
4. Transactions pursuant to surplus lines coverages lawfully written under chapter 685A of NRS.
5. A suit, action or proceeding for the enforcement or defense of its rights relative to its investments in this state.
6. Reinsurance, except as to a domestic reinsurer or the reinsurance of a domestic insurer, unless the reinsurance is authorized pursuant to subsection 1 of NRS 681A.110.
7. Transactions in this state involving group life insurance, group health or blanket health insurance, or group annuities where the master policy or contract of such groups was lawfully solicited, issued and delivered pursuant to the laws of a state in which the insurer was authorized to transact insurance, to a group organized for purposes other than the procurement of insurance or to a group approved pursuant to NRS 688B.030 or 689B.026, and where the policyholder is domiciled or otherwise has a bona fide situs.
κ1997 Statutes of Nevada, Page 287 (CHAPTER 133, AB 114)κ
8. The issuance of annuities by an affiliate of an authorized insurer if the affiliate:
(a) Is approved by the commissioner;
(b) Is organized as a nonprofit educational corporation;
(c) Issues annuities only to nonprofit institutions of education and research; and
(d) Reports and pays any premium tax on the annuities required pursuant to chapter 680B of NRS.
9. Transactions , other than for workers compensation insurance or for industrial insurance provided pursuant to chapters 616A to 617, inclusive, of NRS, involving the procurement of excess liability insurance above underlying liability coverage or self-insured retention of at least $25,000,000, if procured from an unauthorized alien or foreign insurer who does not solicit, negotiate or enter into such transactions in this state by any means, and if procured by a person:
(a) Whose total annual premiums for property and casualty insurance , not including workers compensation or industrial insurance, is $1,000,000 or more; and
(b) Who employs 250 or more full-time employees.
A person who procures insurance in accordance with this subsection shall report and pay any premium tax on the insurance required pursuant to NRS 680B.040.
Sec. 4. This act becomes effective at 12:01 a.m. on July 1, 1999.
________
Assembly Bill No. 29Assemblywoman Segerblom
CHAPTER 134
AN ACT relating to health care; establishing a procedure that authorizes a qualified patient to direct that he not be resuscitated in the event of a cardiac or respiratory arrest; prohibiting certain acts that may interfere with the carrying out of such a direction; providing immunity for certain persons who comply with the procedure for not resuscitating a qualified patient who has chosen not to be resuscitated; providing a penalty; and providing other matters properly relating thereto.
[Approved June 9, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 450B of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 21, inclusive, of this act.
Sec. 2. As used in sections 2 to 21, inclusive, of this act, unless the context otherwise requires, the words and terms defined in sections 3 to 9, inclusive, of this act have the meanings ascribed to them in those sections.
Sec. 3. Do-not-resuscitate identification means:
1. A form of identification approved by the health authority, which signifies that:
κ1997 Statutes of Nevada, Page 288 (CHAPTER 134, AB 29)κ
(a) A person is a qualified patient who wishes not to be resuscitated in the event of cardiac or respiratory arrest; or
(b) The patients attending physician has:
(1) Issued a do-not-resuscitate order for the patient;
(2) Obtained the written approval of the patient concerning the order; and
(3) Documented the grounds for the order in the patients medical record.
2. The term also includes a valid do-not-resuscitate identification issued under the laws of another state.
Sec. 4. Do-not-resuscitate order means a written directive issued by a physician licensed in this state that emergency life-resuscitating treatment must not be administered to a qualified patient. The term also includes a valid do-not-resuscitate order issued under the laws of another state.
Sec. 5. Do-not-resuscitate protocol means the standardized procedure and guidelines established by the health authority for the withholding of emergency life-resuscitating treatment in compliance with a do-not-resuscitate order or a do-not-resuscitate identification.
Sec. 6. Health care facility has the meaning ascribed to it in NRS 449.800.
Sec. 7. Life-resuscitating treatment means cardiopulmonary resuscitation or a component of cardiopulmonary resuscitation, including chest compressions, defibrillation, cardioversion, assisted ventilation, airway intubation or administration of cardiotonic drugs.
Sec. 8. Person who administers emergency medical services means a paid or volunteer fire fighter, law enforcement officer, emergency medical technician, ambulance attendant or other person trained to provide emergency medical services.
Sec. 9. Qualified patient has the meaning ascribed to it in NRS 449.585.
Sec. 10. The provisions of sections 2 to 21, inclusive, of this act, apply only to emergency medical services administered to a qualified patient before he is admitted to a medical facility.
Sec. 11. 1. The health authority shall adopt regulations to carry out the provisions of sections 2 to 21, inclusive, of this act. The regulations must establish:
(a) A do-not-resuscitate protocol.
(b) The procedure to apply for a do-not-resuscitate identification.
(c) The price to obtain a do-not-resuscitate identification. The price must not exceed the actual cost to the health authority in manufacturing or obtaining the identification from a manufacturer, including the cost of shipping and handling.
2. In the case of a county or district board of health, such regulations take effect immediately upon approval by the state board of health.
Sec. 11. Each do-not-resuscitate identification issued by the health authority must include, without limitation:
1. An identification number that is unique to the qualified patient to whom the identification is issued;
2. The name and date of birth of the patient; and
κ1997 Statutes of Nevada, Page 289 (CHAPTER 134, AB 29)κ
3. The name of the attending physician of the patient.
Sec. 13. 1. A physician licensed in this state may issue a written do-not-resuscitate order only to a qualified patient.
2. The order is effective only if the patient has agreed to its terms, in writing, while he is capable of making an informed decision.
3. A physician who issues a do-not-resuscitate order may apply, on behalf of the patient, to the health authority for a do-not-resuscitate identification for that patient.
Sec. 14. 1. A qualified patient may apply to the health authority for a do-not-resuscitate identification by submitting an application on a form provided by the health authority. To obtain a do-not-resuscitate identification, the patient must comply with the requirements prescribed by the health authority and sign a form which states that he has informed each member of his family within the first degree of consanguinity or affinity, whose whereabouts are known to him, or if no such members are living, his legal guardian, if any, or if he has no such members living and has no legal guardian, his caretaker, if any, of his decision to apply for an identification.
2. An application must include, without limitation:
(a) Certification by the patients attending physician that the patient suffers from a terminal condition;
(b) Certification by the patients attending physician that the patient:
(1) Is capable of making an informed decision; or
(2) When he was capable of making an informed decision, executed:
(I) A written directive that life-resuscitating treatment be withheld under certain circumstances; or
(II) A durable power of attorney for health care pursuant to NRS 449.800 to 449.860, inclusive;
(c) A statement that the patient does not wish that life-resuscitating treatment be undertaken in the event of a cardiac or respiratory arrest;
(d) The name, signature and telephone number of the patients attending physician; and
(e) The name and signature of the patient or the attorney in fact who is authorized to make health care decisions on the patients behalf pursuant to a durable power of attorney for health care.
Sec. 15. A qualified patient who possesses a do-not-resuscitate identification may revoke his authorization to withhold life-resuscitating treatment by removing or destroying or requesting the removal or destruction of his identification or otherwise indicating to a person that he wishes to have his identification removed or destroyed.
Sec. 16. 1. A person is not guilty of unprofessional conduct or subject to civil or criminal liability if he:
(a) Is a physician who causes the withholding of life-resuscitating treatment from a qualified patient who possesses a do-not-resuscitate identification in accordance with the do-not-resuscitate protocol;
(b) Pursuant to the direction of or with the authorization of a physician, participates in the withholding of life-resuscitating treatment from a qualified patient who possesses a do-not-resuscitate identification in accordance with the do-not-resuscitate protocol; or
κ1997 Statutes of Nevada, Page 290 (CHAPTER 134, AB 29)κ
(c) Administers emergency medical services and causes or participates in the withholding of life-resuscitating treatment from a qualified patient who possesses a do-not-resuscitate identification or carries out a do-not-resuscitate order that has been issued in accordance with the do-not-resuscitate protocol.
2. A health care facility, ambulance service or fire fighting agency that employs a person described in subsection 1 is not guilty of unprofessional conduct or subject to civil or criminal liability for the acts or omissions of the employee carried out in accordance with the provisions of subsection 1.
3. A physician, a person pursuant to the direction or authorization of a physician, a health care facility or a person administering emergency medical services who provides life-resuscitating treatment pursuant to:
(a) An oral or written request made by a qualified patient who possesses a do-not-resuscitate identification; or
(b) An observation that a qualified patient has removed or destroyed or requested the removal or destruction of his do-not-resuscitate identification or otherwise indicated that he wished to have his identification removed or destroyed,
is not guilty of unprofessional conduct or subject to civil or criminal liability.
Sec. 17. 1. Except as otherwise provided in subsection 2, a person who administers emergency medical services shall comply with do-not- resuscitate protocol when he observes a do-not-resuscitate identification.
2. A person who administers emergency medical services and who is unwilling or unable to comply with the do-not-resuscitate protocol shall take all reasonable measures to transfer a qualified patient who possesses a do-not-resuscitate identification to a physician or health care facility in which the do-not-resuscitate protocol may be followed.
Sec. 18. 1. Unless he has knowledge to the contrary, a physician, any other provider of health care or any person who administers emergency medical services may assume that a do-not-resuscitate identification complies with the provisions of sections 2 to 21, inclusive, of this act and is valid.
2. The provisions of sections 2 to 21, inclusive, of this act do not create a presumption concerning the intention of a:
(a) Qualified patient who has revoked his authorization to withhold life-resuscitating treatment; or
(b) Person who has not obtained a do-not-resuscitate identification,
concerning the use or withholding of life-resuscitating treatment in a life-threatening emergency.
Sec. 19. 1. Death that results when life-resuscitating treatment has been withheld pursuant to the do-not-resuscitate protocol and in accordance with the provisions of sections 2 to 21, inclusive, of this act does not constitute a suicide or homicide.
2. The possession of a do-not-resuscitate identification does not affect the sale, procurement or issuance of a policy of life insurance or an annuity or impair or modify the terms of a policy of life insurance or an annuity. A policy of life insurance or an annuity is not legally impaired or invalidated if life-resuscitating treatment has been withheld from an insured who possesses a do-not-resuscitate identification, notwithstanding any term in the policy or annuity to the contrary.
κ1997 Statutes of Nevada, Page 291 (CHAPTER 134, AB 29)κ
a do-not-resuscitate identification, notwithstanding any term in the policy or annuity to the contrary.
3. A person may not prohibit or require the possession of a do-not-resuscitate identification as a condition of being insured for, or receiving, health care.
Sec. 20. 1. It is unlawful for:
(a) A person who administers emergency medical services to fail willfully to transfer a qualified patient in accordance with the provisions of section 17 of this act.
(b) A person purposely to conceal, cancel, deface or obliterate a do-not-resuscitate identification of a qualified patient, unless it is done in compliance with the request of the qualified patient to remove or destroy his do-not-resuscitate identification.
(c) A person to falsify or forge the do-not-resuscitate identification of a qualified patient or purposely to conceal or withhold personal knowledge of the revocation of a do-not-resuscitate identification with the intent to cause the use, withholding or withdrawal of life-resuscitating treatment.
2. A person who violates any of the provisions of this section is guilty of a misdemeanor.
Sec. 21. The provisions of sections 2 to 21, inclusive, of this act do not:
1. Require a physician or other provider of health care to take action contrary to reasonable medical standards;
2. Condone, authorize or approve mercy killing, euthanasia or assisted suicide;
3. Substitute for any other legally authorized procedure by which a person may direct that he not be resuscitated in the event of a cardiac or respiratory arrest;
4. Affect or impair any right created pursuant to the provisions of NRS 449.535 to 449.690, inclusive; or
5. Affect the right of a qualified patient to make decisions concerning the use of life-resuscitating treatment, if he is able to do so, or impair or supersede a right or responsibility of a person to affect the withholding of medical care in a lawful manner.
Sec. 22. The provisions of subsection 1 of NRS 354.599 do not apply to any additional expenses of a local government that are related to the provisions of this act.
Sec. 23. The provisions of this act do not apply to offenses that are committed before October 1, 1997.
________
κ1997 Statutes of Nevada, Page 292κ
Assembly Bill No. 192Committee on Judiciary
CHAPTER 135
AN ACT relating to actions for malpractice; requiring the deposition of certain persons before holding the conference for settlement required in medical and dental malpractice claims; extending the time within which such a conference must be held; and providing other matters properly relating thereto.
[Approved June 9, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 41A.059 is hereby amended to read as follows:
41A.059 1. In any action for medical or dental malpractice filed in a district court after a determination by a screening panel that there is a reasonable probability that medical or dental malpractice occurred and that the plaintiff was injured thereby, the plaintiff, the defendant, the representative of the physicians or dentists insurer and, if applicable, the hospitals insurer and their respective attorneys shall attend a conference for settlement before a district judge, other than the judge assigned to the case, to determine the amount of the plaintiffs damages. The judge before whom the conference is held:
(a) Must be selected randomly by the clerk of the court upon filing of the notice pursuant to subsection 2, except that he may not be the judge assigned to the case.
(b) May, for good cause shown, waive the attendance of any party.
(c) Shall decide what information the parties may submit at the conference.
2. In any such action, the responsive pleading of the defendant must be accompanied by a notice to the clerk that the case must be scheduled for a conference for settlement. If this notice is not filed by the defendant, it may be filed by any other party. The clerk shall immediately notify the judge before whom the conference is to be held of the receipt of that notice.
3. The judge shall notify the parties, within 7 days after the receipt of the notice, of the time and place of the conference, which must not be later than [30] 60 days after the receipt of the notice. The judge shall cause the deposition of:
(a) The plaintiff;
(b) The defendant; and
(c) A person designated by the plaintiff to testify regarding damages,
to be taken in the manner prescribed by rule of court for taking a deposition in a civil action in a district court before the date scheduled for the conference.
4. The judge before whom the conference is to be held may, for good cause shown, continue the conference for a period not to exceed 15 days. Only one such continuance may be granted.
[3.] 5. Within 15 days after the conference, the judge before whom the conference was held shall determine, solely from the information submitted at the conference, the reasonable value of the claim for purposes of settlement and shall so notify the parties in writing.
κ1997 Statutes of Nevada, Page 293 (CHAPTER 135, AB 192)κ
at the conference, the reasonable value of the claim for purposes of settlement and shall so notify the parties in writing.
[4.] 6. Within 14 days after receipt of the determination of the judge, the defendant shall offer to the plaintiff the amount determined by the judge or reject the determination. If the defendant rejects the determination and the plaintiff is awarded an amount greater than the amount of the determination, the plaintiff must be awarded reasonable costs and attorneys fees incurred after the date of the rejection.
[5.] 7. Within 14 days after the receipt of the defendants offer of the amount determined by the judge, the plaintiff shall accept or reject the offer. If the plaintiff rejects the offer and the plaintiff is awarded an amount less than the amount of the offer, the defendant must be awarded reasonable costs and attorneys fees incurred after the date of the rejection.
Sec. 2. NRS 41A.059 is hereby amended to read as follows:
41A.059 1. In any action for medical malpractice filed in a district court after a determination by a screening panel that there is a reasonable probability that medical malpractice occurred and that the plaintiff was injured thereby, the plaintiff, the defendant, the representative of the physicians insurer and, if applicable, the hospitals insurer and their respective attorneys shall attend a conference for settlement before a district judge, other than the judge assigned to the case, to determine the amount of the plaintiffs damages. The judge before whom the conference is held:
(a) Must be selected randomly by the clerk of the court upon filing of the notice pursuant to subsection 2, except that he may not be the judge assigned to the case.
(b) May, for good cause shown, waive the attendance of any party.
(c) Shall decide what information the parties may submit at the conference.
2. In any such action, the responsive pleading of the defendant must be accompanied by a notice to the clerk that the case must be scheduled for a conference for settlement. If this notice is not filed by the defendant, it may be filed by any other party. The clerk shall immediately notify the judge before whom the conference is to be held of the receipt of that notice.
3. The judge shall notify the parties, within 7 days after the receipt of the notice, of the time and place of the conference, which must not be later than [30] 60 days after the receipt of the notice. The judge shall cause the deposition of:
(a) The plaintiff;
(b) The defendant; and
(c) A person designated by the plaintiff to testify regarding damages,
to be taken in the manner prescribed by rule of court for taking a deposition in a civil action in a district court before the date scheduled for the conference.
4. The judge before whom the conference is to be held may, for good cause shown, continue the conference for a period not to exceed 15 days. Only one such continuance may be granted.
[3.] 5. Within 15 days after the conference, the judge before whom the conference was held shall determine, solely from the information submitted at the conference, the reasonable value of the claim for purposes of settlement and shall so notify the parties in writing.
κ1997 Statutes of Nevada, Page 294 (CHAPTER 135, AB 192)κ
at the conference, the reasonable value of the claim for purposes of settlement and shall so notify the parties in writing.
[4.] 6. Within 14 days after receipt of the determination of the judge, the defendant shall offer to the plaintiff the amount determined by the judge or reject the determination. If the defendant rejects the determination and the plaintiff is awarded an amount greater than the amount of the determination, the plaintiff must be awarded reasonable costs and attorneys fees incurred after the date of the rejection.
[5.] 7. Within 14 days after the receipt of the defendants offer of the amount determined by the judge, the plaintiff shall accept or reject the offer. If the plaintiff rejects the offer and the plaintiff is awarded an amount less than the amount of the offer, the defendant must be awarded reasonable costs and attorneys fees incurred after the date of the rejection.
Sec. 3. 1. Section 1 of this act becomes effective on October 1, 1997, and expires by limitation on June 30, 1999.
2. Section 2 of this act becomes effective on July 1, 1999.
________
Assembly Bill No. 364Assemblymen Ernaut, Hettrick, Chowning, Mortenson, Sandoval, Cegavske, Gustavson, Braunlin, Parks, Lambert, Freeman, Bache, Anderson, Arberry, Giunchigliani, Goldwater, Herrera, Close, Humke, Amodei, Ohrenschall, Von Tobel and Marvel
CHAPTER 136
AN ACT relating to lotteries; increasing the amount of the total value of prizes allowed for charitable lotteries in a calendar year; and providing other matters properly relating thereto.
[Approved June 9, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 462.140 is hereby amended to read as follows:
462.140 A qualified organization may operate a charitable lottery if:
1. The organization is approved by the executive director and the total value of all the prizes offered in charitable lotteries operated by the organization during the same calendar year does not exceed [$200,000;] $500,000;
2. The organization registers with the executive director and the total value of all the prizes offered in charitable lotteries operated by the organization during the same calendar year does not exceed $25,000; or
3. The total value of the prizes offered in the charitable lottery does not exceed $2,500 and:
(a) The organization operates no more than two charitable lotteries per calendar year; or
κ1997 Statutes of Nevada, Page 295 (CHAPTER 136, AB 364)κ
(b) The tickets or chances for the charitable lottery are sold only to members of the organization, and to guests of those members while attending a special event sponsored by the organization, and the total value of all the prizes offered in charitable lotteries operated by the organization during the same calendar year does not exceed $15,000.
Sec. 2. This act becomes effective upon passage and approval.
________
Assembly Bill No. 382Assemblymen Close, Humke, Dini, Amodei, Von Tobel, Bache, Ohrenschall, Neighbors, Herrera, Giunchigliani, Arberry, Hettrick, Ernaut, Buckley, Lambert, Braunlin, Sandoval, Price, Koivisto, Chowning, Nolan, Cegavske, Marvel, Tiffany, Berman, Mortenson, Carpenter, Perkins, de Braga, Parks, Lee, Gustavson, Collins, Hickey, Evans, Manendo, Anderson, Freeman, Segerblom, Goldwater, Krenzer and Williams
CHAPTER 137
AN ACT relating to crimes; enhancing the penalty for pandering children; and providing other matters properly relating thereto.
[Approved June 9, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 201.295 is hereby amended to read as follows:
201.295 As used in NRS 201.295 to 201.440, inclusive, unless the context otherwise requires:
1. Adult means a person 18 years of age or older.
2. Child means a person less than 18 years of age.
3. Prostitute means a male or female person who for a fee engages in sexual intercourse, oral-genital contact or any touching of the sexual organs or other intimate parts of a person for the purpose of arousing or gratifying the sexual desire of either person.
[2.] 4. Prostitution means engaging in sexual conduct for a fee.
[3.] 5. Sexual conduct means any of the acts enumerated in subsection [1.] 3.
Sec. 2. NRS 201.300 is hereby amended to read as follows:
201.300 1. A person who:
(a) Induces, persuades, encourages, inveigles, entices or compels a person to become a prostitute or to continue to engage in prostitution;
(b) By threats, violence or by any device or scheme, causes, induces, persuades, encourages, takes, places, harbors, inveigles or entices a person to become an inmate of a house of prostitution or assignation place, or any place where prostitution is practiced, encouraged or allowed;
(c) By threats, violence, or by any device or scheme, by fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, or having legal charge, takes, places, harbors, inveigles, entices, persuades, encourages or procures a person to enter any place within this state in which prostitution is practiced, encouraged or allowed, for the purpose of prostitution;
κ1997 Statutes of Nevada, Page 296 (CHAPTER 137, AB 382)κ
inveigles, entices, persuades, encourages or procures a person to enter any place within this state in which prostitution is practiced, encouraged or allowed, for the purpose of prostitution;
(d) By promises, threats, violence, or by any device or scheme, by fraud or artifice, by duress of person or goods, or abuse of any position of confidence or authority or having legal charge, takes, places, harbors, inveigles, entices, persuades, encourages or procures a person of previous chaste character to enter any place within this state in which prostitution is practiced, encouraged or allowed, for the purpose of sexual intercourse;
(e) Takes or detains a person with the intent to compel the person by force, threats, menace or duress to marry him or any other person; or
(f) Receives, gives or agrees to receive or give any money or thing of value for procuring or attempting to procure a person to become a prostitute or to come into this state or leave this state for the purpose of prostitution,
is guilty of pandering.
2. A person who is found guilty of pandering [shall be punished:
(a) Where] :
(a) An adult:
(1) If physical force or the immediate threat of physical force is used upon the [person, for] adult, is guilty of a category C felony and shall be punished as provided in NRS 193.130.
[(b) Where]
(2) If no physical force or immediate threat of physical force is [used, for] used upon the adult, is guilty of a category D felony and shall be punished as provided in NRS 193.130.
(b) A child:
(1) If physical force or the immediate threat of physical force is used upon the child, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years and may be further punished by a fine of not more than $20,000.
(2) If no physical force or immediate threat of physical force is used upon the child, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years and may be further punished by a fine of not more than $10,000.
3. This section does not apply to the customer of a prostitute.
Sec. 3. NRS 201.330 is hereby amended to read as follows:
201.330 1. A person who attempts to detain [any other] another person in a disorderly house or house of prostitution because of any debt or debts the other person has contracted [,] or is said to have contracted [,] while living in the house [,] is guilty of pandering . [and shall be punished:
1. Where]
2. A person who is found guilty of pandering:
(a) An adult:
(1) If physical force or the immediate threat of physical force is used upon the [person, for] adult, is guilty of a category C felony and shall be punished as provided in NRS 193.130.
[2. Where]
κ1997 Statutes of Nevada, Page 297 (CHAPTER 137, AB 382)κ
(2) If no physical force or immediate threat of physical force is [used, for] used upon the adult, is guilty of a category D felony and shall be punished as provided in NRS 193.130.
(b) A child:
(1) If physical force or the immediate threat of physical force is used upon the child, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years and may be further punished by a fine of not more than $20,000.
(2) If no physical force or immediate threat of physical force is used upon the child, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years and may be further punished by a fine of not more than $10,000.
Sec. 4. NRS 201.340 is hereby amended to read as follows:
201.340 1. A person who knowingly transports or causes to be transported, by any means of conveyance, into, through or across this state, or who aids or assists in obtaining such transportation for a person with the intent to induce, persuade, encourage, inveigle, entice or compel that person to become a prostitute or to continue to engage in prostitution is guilty of pandering . [, and shall be punished:
(a) Where]
2. A person who is found guilty of pandering:
(a) An adult:
(1) If physical force or the immediate threat of physical force is used upon the [person, for] adult, is guilty of a category C felony and shall be punished as provided in NRS 193.130.
[(b) Where]
(2) If no physical force or immediate threat of physical force is [used, for] used upon the adult, is guilty of a category D felony and shall be punished as provided in NRS 193.130.
[2.] (b) A child:
(1) If physical force or the immediate threat of physical force is used upon the child, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years and may be further punished by a fine of not more than $20,000.
(2) If no physical force or immediate threat of physical force is used upon the child, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years and may be further punished by a fine of not more than $10,000.
3. A person who [commits the crime mentioned in this section] violates subsection 1 may be prosecuted, indicted, tried and convicted in any county or city in or through which he transports or attempts to transport the person.
Sec. 5. The amendatory provisions of this act do not apply to offenses that are committed before October 1, 1997.
________
κ1997 Statutes of Nevada, Page 298κ
Senate Bill No. 246Senators Titus, Wiener, OConnell and Regan
CHAPTER 138
AN ACT relating to insurance; eliminating the prospective requirement for the prepayment of the insurance premium tax; revising the date on which annual reports are due; revising the time within which quarterly payments are payable; and providing other matters properly relating thereto.
[Approved June 9, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 680B.030 is hereby amended to read as follows:
680B.030 1. Each insurer and each formerly authorized insurer with respect to insurance transacted while an authorized insurer and property bondsman shall, on or before March [1] 15 of each year, or within any reasonable extension of time therefor which the executive director of the department of taxation may for good cause have granted on or before that date, file with the department of taxation a report in such form as prescribed by the executive director of the department of taxation in cooperation with the commissioner, showing total income derived from direct premiums written, including policy, membership and other fees and assessments, and all other considerations for insurance, bail or annuity contracts written during the next preceding calendar year on account of policies and contracts covering property, subjects or risks located, resident or to be performed in this state, with proper proportionate allocation of premiums as to such persons, property, subjects or risks in this state insured under policies and contracts covering persons, property, subjects or risks located or resident in more than one state, after deducting from the total income derived from direct premiums written:
(a) The amount of return premiums; and
(b) Dividends, savings and unabsorbed premium deposits returned to policyholders in cash or credited to their accounts.
2. The report must be:
(a) Accompanied by a payment made payable to the department of taxation in an amount equal to all of the tax required to be paid on net direct premiums and net direct considerations written during the preceding calendar year, less any quarterly payments made for the same period pursuant to NRS 680B.032; and
(b) Verified by the oath or affirmation of the insurers president, vice president, secretary, treasurer or manager.
Sec. 2. NRS 680B.032 is hereby amended to read as follows:
680B.032 1. Each insurer which, pursuant to NRS 680B.027, paid or is required to pay a tax of at least $2,000 on net direct premiums and net direct considerations written during the preceding calendar year, shall file a quarterly report in such form as prescribed by the executive director of the department of taxation. Each report must be accompanied by a payment made payable to the department of taxation in an amount equal to [25 percent of] the tax [paid or] required to be paid on net direct premiums and net direct considerations written during the preceding calendar [year.]
κ1997 Statutes of Nevada, Page 299 (CHAPTER 138, SB 246)κ
net direct considerations written during the preceding calendar [year.] quarter. Each quarterly payment is due on the last day of the last month in each calendar quarter [.] and is payable on or before the last day of the month next succeeding the calendar quarter for which the payment is due.
2. If an overpayment of the tax imposed by NRS 680B.027 results from the payments made pursuant to this section, the insurer shall apply the overpayment against each succeeding quarterly [estimated] payment due in the current calendar year until the overpayment has been extinguished.
Sec. 3. Section 12 of chapter 283, Statutes of Nevada 1995, at page 472, is hereby amended to read as follows:
Sec. 12. 1. This section and sections 1 to 7, inclusive, 9, 10 and 11 of this act become effective upon passage and approval and apply retroactively to January 1, 1995.
2. Section 8 of this act becomes effective on January 1, 1996.
[3. Sections 1 to 9, inclusive, of this act expire by limitation on January 1, 1998.]
Sec. 4. 1. This section and section 3 of this act become effective upon passage and approval.
2. Sections 1 and 2 of this act become effective on January 1, 1998.
________
Senate Bill No. 91Committee on Commerce and Labor
CHAPTER 139
AN ACT relating to appraisers of real estate; increasing certain requirements of education and experience required for certification or licensure as an appraiser of real estate; revising the number of hours of continuing education required for the renewal or reinstatement of a certificate or license; and providing other matters properly relating thereto.
[Approved June 9, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 645C of NRS is hereby amended by adding thereto a new section to read as follows:
Complex property means residential property which:
1. Is atypical for the market place in which it is located based on, without limitation, such factors as:
(a) The architectural style of the property;
(b) Special improvements made to the property;
(c) The size of the lot;
(d) The use of the property;
(e) Environmental factors related to the property; and
(f) Ownership of a partial interest in the property; and
2. Requires techniques to be used other than a simple comparison of sales or an analysis of cost or income in order to produce a reliable appraisal of that property.
κ1997 Statutes of Nevada, Page 300 (CHAPTER 139, SB 91)κ
Sec. 2. NRS 645C.010 is hereby amended to read as follows:
645C.010 As used in this chapter, unless the context otherwise requires, the words and terms defined in NRS 645C.020 to 645C.130, inclusive, and section 1 of this act, have the meanings ascribed to them in those sections.
Sec. 3. NRS 645C.330 is hereby amended to read as follows:
645C.330 1. An applicant for a license as a residential appraiser must furnish proof satisfactory to the commission that he has successfully completed:
(a) Not less than [75] 90 hours of academic instruction in subjects related to appraisals taught in courses approved by the commission; and
(b) At least 2 years of experience working full time as an appraiser or intern.
2. An applicant for a certificate as a residential appraiser must furnish proof satisfactory to the commission that he has successfully completed:
(a) Not less than 120 hours of academic instruction in subjects related to appraisal taught in courses approved by the commission; and
(b) At least 2 years of experience working full time as an appraiser or intern [.] , including not less than 500 hours of experience relating to complex property.
3. An applicant for a certificate as a general appraiser must furnish proof satisfactory to the commission that he has successfully completed:
(a) Not less than [165] 180 hours of academic instruction in subjects related to appraisals taught in courses approved by the commission; and
(b) At least 3 years of experience working full time as an appraiser or intern.
4. As used in this section, an hour of academic instruction means at least 50 minutes of actual time spent receiving instruction.
Sec. 4. NRS 645C.430 is hereby amended to read as follows:
645C.430 1. An appraiser must complete the following number of hours of continuing education in courses approved by the commission as a condition to the renewal of an active certificate or license or the reinstatement of an inactive certificate or license:
(a) For the renewal of an active certificate or license, [at least 20] not less than 30 hours of instruction within the 2 years immediately preceding the application for renewal.
(b) For the reinstatement of a certificate or license which has been on inactive status:
(1) For not more than 2 years, or for more than 2 years including the initial period of certification or licensure, [at least 20] not less than 30 hours of instruction.
(2) For more than 2 years , [but not more than 4 years,] no part of which includes the initial period of certification or licensure, [at least 40 hours of instruction.
(3) For more than 4 years, no part of which includes the initial period of certification or licensure, at least 10 hours of instruction] not less than 15 hours of instruction per year for each year that the certificate or license was on inactive status, not to exceed 60 hours of instruction.
κ1997 Statutes of Nevada, Page 301 (CHAPTER 139, SB 91)κ
2. As used in this section, an hour of instruction means at least 50 minutes of actual time spent receiving instruction.
Sec. 5. This act becomes effective upon passage and approval.
________
Assembly Bill No. 156Assemblymen Buckley, Ernaut, Freeman, Giunchigliani, Sandoval, Perkins, Evans, Segerblom, Herrera, Ohrenschall, Williams, Koivisto, Goldwater, Parks, de Braga, Arberry, Anderson, Price, Collins, Manendo, Lee, Chowning, Neighbors, Mortenson, Braunlin, Bache, Dini, Berman, Nolan, Amodei, Humke, Carpenter, Gustavson, Lambert, Hickey, Marvel, Hettrick, Von Tobel, Tiffany and Cegavske
CHAPTER 140
AN ACT relating to health care; requiring certain entities that provide health care services through managed care to follow certain procedures before denying health care services to an insured; prohibiting such entities from engaging in certain practices that restrict the actions of a provider of health care; requiring such entities to provide coverage for medically necessary emergency services without requiring an insured to obtain any prior authorization for such services; requiring such entities to file a report containing certain information with the commissioner of insurance; requiring all insurers of health care and managed care organizations to establish a system for resolving complaints of insureds; and providing other matters properly relating thereto.
[Approved June 9, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Title 57 of NRS is hereby amended by adding thereto a new chapter to consist of the provisions set forth as sections 2 to 27, inclusive, of this act.
Sec. 2. As used in this chapter, unless the context otherwise requires, the words and terms defined in sections 3 to 9, inclusive, of this act have the meanings ascribed to them in those sections.
Sec. 3. Health care plan means a policy, contract, certificate or agreement offered or issued by a managed care organization to provide, deliver, arrange for, pay for or reimburse any of the costs of health care services.
Sec. 4. Insured means a person who receives benefits under a health care plan.
Sec. 5. Managed care means a system for delivering health care services that encourages the efficient use of health care services by using employed or independently contracted providers of health care and by using various techniques which may include, without limitation:
1. Managing the health care services of an insured who has a serious, complicated, protracted or other health-related condition that requires the use of numerous providers of health care or other costly services;
2. Providing utilization review;
κ1997 Statutes of Nevada, Page 302 (CHAPTER 140, AB 156)κ
3. Offering financial incentives for the effective use of health care services; or
4. Any combination of those techniques.
Sec. 6. Managed care organization means any insurer or organization authorized pursuant to this Title to conduct business in this state that provides or arranges for the provision of health care services through managed care.
Sec. 7. Primary care physician means a physician or group of physicians who:
1. Provides initial and primary health care services to an insured;
2. Maintains the continuity of care for the insured; and
3. May refer the insured to a specialized provider of health care.
Sec. 8. Provider of health care means any physician, hospital or other person who is licensed or otherwise authorized in this state to furnish any health care service.
Sec. 9. Utilization review means the various methods that may be used by a managed care organization to review the amount and appropriateness of the provision of a specific health care service to an insured.
Sec. 10. 1. The provisions of this chapter apply to each organization and insurer that operates as a managed care organization and may include, without limitation, an insurer that issues a policy of health insurance, an insurer that issues a policy of individual or group health insurance, a carrier serving small employers, a fraternal benefit society, a hospital or medical service corporation and a health maintenance organization.
2. In addition to the provisions of this chapter, each managed care organization shall comply with any other applicable provision of this Title.
Sec. 11. Each managed care organization shall authorize coverage of a health care service that has been recommended for the insured by a provider of health care acting within the scope of his practice if that service is covered by the health care plan of the insured, unless:
1. The decision not to authorize coverage is made by a physician who:
(a) Is licensed to practice medicine in the State of Nevada pursuant to chapter 630 of NRS;
(b) Possesses the education, training and expertise to evaluate the medical condition of the insured; and
(c) Has reviewed the available medical documentation, notes of the attending physician, test results and other relevant medical records of the insured.
The physician may consult with other providers of health care in determining whether to authorize coverage.
2. The decision not to authorize coverage and the reason for the decision have been transmitted in writing in a timely manner to the insured, the provider of health care who recommended the service and the primary care physician of the insured, if any.
Sec. 12. 1. Each managed care organization shall establish written criteria:
(a) Setting forth the manner in which it determines whether to authorize coverage of a health care service; and
κ1997 Statutes of Nevada, Page 303 (CHAPTER 140, AB 156)κ
(b) Setting forth its method for reviewing standards for the quality of health care services provided to an insured.
2. Such written criteria must be:
(a) Developed with the assistance of practicing providers of health care;
(b) Developed using generally recognized and, if appropriate, specialized clinical principles and processes;
(c) Reviewed at least one time each year and, if appropriate, updated; and
(d) Made available to an insured for review upon request of the insured any time that the managed care organization denies coverage of a specific health care service to the insured.
Sec. 13. Each managed care organization shall:
1. Develop and maintain written policies and procedures setting forth the manner in which it conducts utilization review; and
2. Require any person with whom it subcontracts to provide utilization review to use the same policies and procedures developed pursuant to subsection 1.
Sec. 14. 1. Each managed care organization shall establish a quality assurance program designed to direct, evaluate and monitor the effectiveness of health care services provided to its insureds. The program must include, without limitation:
(a) A method for analyzing the outcomes of health care services;
(b) Peer review;
(c) A system to collect and maintain information related to the health care services provided to insureds;
(d) Recommendations for remedial action; and
(e) Written guidelines that set forth the procedures for remedial action when problems related to quality of care are identified.
2. Each managed care organization shall:
(a) Maintain a written description of the quality assurance program established pursuant to subsection 1, including, without limitation, the specific actions used by the managed care organization to promote adequate quality of health care services provided to insureds and the persons responsible for such actions;
(b) Provide information to each provider of health care whom it employs or with whom it contracts to provide health care services to insureds regarding the manner in which the quality assurance program functions;
(c) Provide the necessary staff to implement the quality assurance program and to evaluate the effectiveness of the program; and
(d) At least one time each year, review the continuity and effectiveness of the quality assurance program, review any findings of the quality improvement committee established pursuant to section 15 of this act and take any reasonable actions to improve the program.
3. Each managed care organization is responsible for an activity conducted pursuant to its quality assurance program, regardless of whether the managed care organization or another entity performs the activity.
Sec. 15. 1. As part of a quality assurance program established pursuant to section 14 of this act, each managed care organization shall create a quality improvement committee directed by a physician who is licensed to practice medicine in the State of Nevada pursuant to chapter 630 of NRS.
κ1997 Statutes of Nevada, Page 304 (CHAPTER 140, AB 156)κ
licensed to practice medicine in the State of Nevada pursuant to chapter 630 of NRS.
2. Each managed care organization shall:
(a) Establish written guidelines setting forth the procedure for selecting the members of the committee;
(b) Select members pursuant to such guidelines; and
(c) Provide staff to assist the committee.
3. The committee shall:
(a) Select and review appropriate medical records of insureds and other data related to the quality of health care provided to insureds by providers of health care;
(b) Review the clinical processes used by providers of health care in providing services;
(c) Identify any problems related to the quality of health care to insureds; and
(d) Advise providers of health care regarding issues related to quality of care.
Sec. 16. A managed care organization shall not restrict or interfere with any communication between a provider of health care and his patient regarding any information that the provider of health care determines is relevant to the health care of the patient.
Sec. 17. A managed care organization shall not terminate a contract with, demote, refuse to contract with or refuse to compensate a provider of health care solely because the provider, in good faith:
1. Advocates in private or in public on behalf of a patient;
2. Assists a patient in seeking reconsideration of a decision by the managed care organization to deny coverage for a health care service; or
3. Reports a violation of law to an appropriate authority.
Sec. 18. 1. A managed care organization shall not offer or pay any type of material inducement, bonus or other financial incentive to a provider of health care to deny, reduce, withhold, limit or delay specific medically necessary health care services to an insured.
2. Nothing in this section prohibits an arrangement for payment between a managed care organization and a provider of health care that uses capitation or other financial incentives, if the arrangement is designed to provide an incentive to the provider of health care to use health care services effectively and consistently in the best interest of the health care of the insured.
Sec. 19. 1. Each managed care organization shall provide coverage for medically necessary emergency services.
2. A managed care organization shall not require prior authorization for medically necessary emergency services.
3. As used in this section, medically necessary emergency services means health care services that are provided to an insured by a provider of health care after the sudden onset of a medical condition that manifests itself by symptoms of sufficient severity that a prudent person would believe that the absence of immediate medical attention could result in:
(a) Serious jeopardy to the health of an insured;
(b) Serious jeopardy to the health of an unborn child;
κ1997 Statutes of Nevada, Page 305 (CHAPTER 140, AB 156)κ
(c) Serious impairment of a bodily function; or
(d) Serious dysfunction of any bodily organ or part.
4. A health care plan subject to the provisions of this section that is delivered, issued for delivery or renewed on or after October 1, 1997, has the legal effect of including the coverage required by this section, and any provision of the plan or the renewal which is in conflict with this section is void.
Sec. 20. Each managed care organization shall employ or contract with a physician who is licensed to practice medicine in the State of Nevada pursuant to chapter 630 of NRS to serve as its medical director.
Sec. 21. 1. In addition to any other report which is required to be filed with the commissioner or the state board of health, each managed care organization shall file with the commissioner and the state board of health, on or before March 1 of each year, a report regarding its methods for reviewing the quality of health care services provided to its insureds.
2. Each managed care organization shall include in its report the criteria, data, benchmarks or studies used to:
(a) Assess the nature, scope, quality and staffing of health care services provided to insureds; or
(b) Determine any reduction or modification of the provision of health care services to insureds.
3. Except as already required to be filed with the commissioner or the state board of health, if the managed care organization is not owned and operated by a public entity and has more than 100 insureds, the report filed pursuant to subsection 1 must include:
(a) A copy of all of its quarterly and annual financial reports;
(b) A statement of any financial interest it has in any other business which is related to health care that is greater than 5 percent of that business or $5,000, whichever is less; and
(c) A description of each complaint filed with or against it that resulted in arbitration, a lawsuit or other legal proceeding, unless disclosure is prohibited by law or a court order.
4. A report filed pursuant to this section must be made available for public inspection within a reasonable time after it is received by the commissioner.
Sec. 22. Any person who receives, collects, disburses or invests money for a managed care organization is responsible for such money in a fiduciary relationship to the insured.
Sec. 23. 1. Each managed care organization shall establish a system for resolving complaints of an insured concerning:
(a) Payment or reimbursement for covered health care services;
(b) Availability, delivery or quality of covered health care services, including, without limitation, an adverse determination made pursuant to utilization review; or
(c) The terms and conditions of a health care plan.
The system must be approved by the commissioner in consultation with the state board of health.
2. If an insured makes an oral complaint, a managed care organization shall inform the insured that if he is not satisfied with the resolution of the complaint, he must file the complaint in writing to receive further review of the complaint.
κ1997 Statutes of Nevada, Page 306 (CHAPTER 140, AB 156)κ
complaint, he must file the complaint in writing to receive further review of the complaint.
3. Each managed care organization shall:
(a) Upon request, assign an employee of the managed care organization to assist an insured or other person in filing a complaint or appealing a decision of the review board;
(b) Authorize an insured who appeals a decision of the review board to appear before the review board to present testimony at a hearing concerning the appeal; and
(c) Authorize an insured to introduce any documentation into evidence at a hearing of a review board and require an insured to provide the documentation required by his health care plan to the review board not later than 5 business days before a hearing of the review board.
4. The commissioner or the state board of health may examine the system for resolving complaints established pursuant to this section at such times as either deems necessary or appropriate.
Sec. 24. 1. A system for resolving complaints created pursuant to section 23 of this act must include, without limitation, an initial investigation, a review of the complaint by a review board and a procedure for appealing a determination regarding the complaint. The majority of the members of the review board must be insureds who receive health care services from the managed care organization.
2. Except as otherwise provided in subsection 3, a review board shall complete its review regarding a complaint or appeal and notify the insured of its determination not later than 30 days after the complaint or appeal is filed, unless the insured and the review board have agreed to a longer period of time.
3. If a complaint involves an imminent and serious threat to the health of the insured, the managed care organization shall inform the insured immediately of his right to an expedited review of his complaint. If an expedited review is required, the review board shall notify the insured in writing of its determination within 72 hours after the complaint is filed.
4. Notice provided to an insured by a review board regarding a complaint must include, without limitation, an explanation of any further rights of the insured regarding the complaint that are available under his health care plan.
Sec. 25. 1. Each managed care organization shall submit to the commissioner and the state board of health an annual report regarding its system for resolving complaints established pursuant to section 23 of this act on a form prescribed by the commissioner in consultation with the state board of health which includes, without limitation:
(a) A description of the procedures used for resolving complaints of an insured;
(b) The total number of complaints and appeals handled through the system for resolving complaints since the last report and a compilation of the causes underlying the complaints filed;
(c) The current status of each complaint and appeal filed; and
(d) The average amount of time that was needed to resolve a complaint and an appeal, if any.
κ1997 Statutes of Nevada, Page 307 (CHAPTER 140, AB 156)κ
2. Each managed care organization shall maintain records of complaints filed with it which concern something other than health care services and shall submit to the commissioner a report summarizing such complaints at such times and in such format as the commissioner may require.
Sec. 26. 1. Following approval by the commissioner, each managed care organization shall provide written notice to an insured, in clear and comprehensible language that is understandable to an ordinary layperson, explaining the right of the insured to file a written complaint and to obtain an expedited review pursuant to section 24 of this act. Such notice must be provided to an insured:
(a) At the time he receives his certificate of coverage or evidence of coverage;
(b) Any time that the managed care organization denies coverage of a health care service or limits coverage of a health care service to an insured; and
(c) Any other time deemed necessary by the commissioner.
2. Any time that a managed care organization denies coverage of a health care service to an insured it shall notify the insured in writing of:
(a) The reason for denying coverage of the service;
(b) The criteria by which the managed care organization or insurer determines whether to authorize or deny coverage of the health care service; and
(c) His right to file a written complaint.
3. A written notice which is approved by the commissioner shall be deemed to be in clear and comprehensible language that is understandable to an ordinary layperson.
Sec. 27. Any document required to be filed with the commissioner pursuant to this chapter, other than medical records and other information relating to a specific insured, must be treated as a public record.
Sec. 28. NRS 687B.225 is hereby amended to read as follows:
687B.225 1. [Any] Except as otherwise provided in section 19 of this act, a contract for group, blanket or individual health insurance or any contract by a nonprofit hospital, medical or dental service corporation or organization for dental care which provides for payment of a certain part of medical or dental care may require the insured or member to obtain prior authorization for that care from the insurer or organization. The insurer or organization shall:
(a) File its procedure for obtaining approval of care [under] pursuant to this section for approval by the commissioner; and
(b) Respond to any request for approval by the insured or member [under] pursuant to this section within 20 days after it receives the request.
2. The procedure for prior authorization may not discriminate among persons licensed to provide the covered care.
Sec. 29. Chapter 689A of NRS is hereby amended by adding thereto the provisions set forth as sections 30, 31 and 32 of this act.
Sec. 30. 1. Each insurer that issues a policy of health insurance in this state shall establish a system for resolving any complaints of an insured concerning health care services covered under the policy. The system must be approved by the commissioner in consultation with the state board of health.
κ1997 Statutes of Nevada, Page 308 (CHAPTER 140, AB 156)κ
be approved by the commissioner in consultation with the state board of health.
2. A system for resolving complaints pursuant to subsection 1 must include an initial investigation, a review of the complaint by a review board and a procedure for appealing a determination regarding the complaint. The majority of the members on a review board must be insureds who receive health care services pursuant to a policy of health insurance issued by the insurer.
3. The commissioner or the state board of health may examine the system for resolving complaints established pursuant to this section at such times as either deems necessary or appropriate.
Sec. 31. 1. Each insurer that issues a policy of health insurance in this state shall submit to the commissioner and the state board of health an annual report regarding its system for resolving complaints established pursuant to section 30 of this act on a form prescribed by the commissioner in consultation with the state board of health which includes, without limitation:
(a) A description of the procedures used for resolving any complaints of an insured;
(b) The total number of complaints and appeals handled through the system for resolving complaints since the last report and a compilation of the causes underlying the complaints filed;
(c) The current status of each complaint and appeal filed; and
(d) The average amount of time that was needed to resolve a complaint and an appeal, if any.
2. Each insurer shall maintain records of complaints filed with it which concern something other than health care services and shall submit to the commissioner a report summarizing such complaints at such times and in such format as the commissioner may require.
Sec. 32. 1. Following approval by the commissioner, each insurer that issues a policy of health insurance in this state shall provide written notice to an insured, in clear and comprehensible language that is understandable to an ordinary layperson, explaining the right of the insured to file a written complaint. Such notice must be provided to an insured:
(a) At the time he receives his evidence of coverage;
(b) Any time that the insurer denies coverage of a health care service or limits coverage of a health care service to an insured; and
(c) Any other time deemed necessary by the commissioner.
2. Any time that an insurer denies coverage of a health care service to an insured it shall notify the insured in writing of:
(a) The reason for denying coverage of the service;
(b) The criteria by which the insurer determines whether to authorize or deny coverage of the health care service; and
(c) His right to file a written complaint.
3. A written notice which is approved by the commissioner shall be deemed to be in clear and comprehensible language that is understandable to an ordinary layperson.
κ1997 Statutes of Nevada, Page 309 (CHAPTER 140, AB 156)κ
Sec. 33. Chapter 689B of NRS is hereby amended by adding thereto the provisions set forth as sections 34, 35 and 36 of this act.
Sec. 34. 1. Each insurer that issues a policy of group health insurance in this state shall establish a system for resolving any complaints of an insured concerning health care services covered under the policy. The system must be approved by the commissioner in consultation with the state board of health.
2. A system for resolving complaints pursuant to subsection 1 must include an initial investigation, a review of the complaint by a review board and a procedure for appealing a determination regarding the complaint. The majority of the members on a review board must be insureds who receive health care services pursuant to a policy of group health insurance issued by the insurer.
3. The commissioner or the state board of health may examine the system for resolving complaints established pursuant to this section at such times as either deems necessary or appropriate.
Sec. 35. 1. Each insurer that issues a policy of group health insurance in this state shall submit to the commissioner and the state board of health an annual report regarding its system for resolving complaints established pursuant to section 34 of this act on a form prescribed by the commissioner in consultation with the state board of health which includes, without limitation:
(a) A description of the procedures used for resolving any complaints of an insured;
(b) The total number of complaints and appeals handled through the system for resolving complaints since the last report and a compilation of the causes underlying the complaints filed;
(c) The current status of each complaint and appeal filed; and
(d) The average amount of time that was needed to resolve a complaint and an appeal, if any.
2. Each insurer shall maintain records of complaints filed with it which concern something other than health care services and shall submit to the commissioner a report summarizing such complaints at such times and in such format as the commissioner may require.
Sec. 36. 1. Following approval by the commissioner, each insurer that issues a policy of group health insurance in this state shall provide written notice to an insured, in clear and comprehensible language that is understandable to an ordinary layperson, explaining the right of the insured to file a written complaint. Such notice must be provided to an insured:
(a) At the time he receives his certificate of coverage or evidence of coverage;
(b) Any time that the insurer denies coverage of a health care service or limits coverage of a health care service to an insured; and
(c) Any other time deemed necessary by the commissioner.
2. Any time that an insurer denies coverage of a health care service to an insured it shall notify the insured in writing of:
(a) The reason for denying coverage of the service;
(b) The criteria by which the insurer determines whether to authorize or deny coverage of the health care service; and
κ1997 Statutes of Nevada, Page 310 (CHAPTER 140, AB 156)κ
(c) His right to file a written complaint.
3. A written notice which is approved by the commissioner shall be deemed to be in clear and comprehensible language that is understandable to an ordinary layperson.
Sec. 37. Chapter 695B of NRS is hereby amended by adding thereto the provisions set forth as sections 38, 39 and 40 of this act.
Sec. 38. 1. Each insurer that issues a contract for hospital or medical services in this state shall establish a system for resolving any complaints of an insured concerning health care services covered under the policy. The system must be approved by the commissioner in consultation with the state board of health.
2. A system for resolving complaints pursuant to subsection 1 must include an initial investigation, a review of the complaint by a review board and a procedure for appealing a determination regarding the complaint. The majority of the members on a review board must be insureds who receive health care services pursuant to a contract for hospital or medical services issued by the insurer.
3. The commissioner or the state board of health may examine the system for resolving complaints established pursuant to this section at such times as either deems necessary or appropriate.
Sec. 39. 1. Each insurer that issues a contract for hospital or medical services in this state shall submit to the commissioner and the state board of health an annual report regarding its system for resolving complaints established pursuant to section 38 of this act on a form prescribed by the commissioner in consultation with the state board of health which includes, without limitation:
(a) A description of the procedures used for resolving any complaints of an insured;
(b) The total number of complaints and appeals handled through the system for resolving complaints since the last report and a compilation of the causes underlying the complaints filed;
(c) The current status of each complaint and appeal filed; and
(d) The average amount of time that was needed to resolve a complaint and an appeal, if any.
2. Each insurer shall maintain records of complaints filed with it which concern something other than health care services and shall submit to the commissioner a report summarizing such complaints at such times and in such format as the commissioner may require.
Sec. 40. 1. Following approval by the commissioner, each insurer that issues a contract for hospital or medical services in this state shall provide written notice to an insured, in clear and comprehensible language that is understandable to an ordinary layperson, explaining the right of the insured to file a written complaint. Such notice must be provided to an insured:
(a) At the time he receives his certificate of coverage or evidence of coverage;
(b) Any time that the insurer denies coverage of a health care service or limits coverage of a health care service to an insured; and
(c) Any other time deemed necessary by the commissioner.
κ1997 Statutes of Nevada, Page 311 (CHAPTER 140, AB 156)κ
2. Any time that an insured denies coverage of a health care service to a beneficiary or subscriber it shall notify the beneficiary or subscriber in writing of:
(a) The reason for denying coverage of the service;
(b) The criteria by which the insurer determines whether to authorize or deny coverage of the health care service; and
(c) His right to file a written complaint.
3. A written notice which is approved by the commissioner shall be deemed to be in clear and comprehensible language that is understandable to an ordinary layperson.
Sec. 41. NRS 695C.050 is hereby amended to read as follows:
695C.050 1. Except as otherwise provided in this chapter or in specific provisions of this Title, the provisions of this Title are not applicable to any health maintenance organization granted a certificate of authority under this chapter. This provision does not apply to an insurer licensed and regulated pursuant to this Title except with respect to its activities as a health maintenance organization authorized and regulated pursuant to this chapter.
2. Solicitation of enrollees by a health maintenance organization granted a certificate of authority, or its representatives, must not be construed to violate any provision of law relating to solicitation or advertising by practitioners of a healing art.
3. Any health maintenance organization authorized [under] pursuant to this chapter shall not be deemed to be practicing medicine and is exempt from the provisions of chapter 630 of NRS.
4. The provisions of NRS 695C.110, 695C.170 to 695C.200, inclusive, 695C.250 [, 695C.260] and 695C.265 do not apply to a health maintenance organization that provides health care services through managed care to recipients of Medicaid pursuant to a contract with the welfare division of the department of human resources. This subsection does not exempt a health maintenance organization from any provision of this chapter for services provided pursuant to any other contract.
Sec. 42. NRS 695C.055 is hereby amended to read as follows:
695C.055 1. The provisions of NRS 449.465, 679B.158 and 680B.025 to 680B.060, inclusive, subsections 2, 4, 18, 19 and 32 of NRS 680B.010 and NRS 689C.015 to 689C.350, inclusive, and sections 2 to 27, inclusive, of this act apply to a health maintenance organization.
2. For the purposes of subsection 1, unless the context requires that a provision apply only to insurers, any reference in those sections to insurer must be replaced by health maintenance organization.
Sec. 43. NRS 695C.260 is hereby amended to read as follows:
695C.260 [1.] Every health maintenance organization shall establish a complaint system [which has been approved by the commissioner after consultation with the state board of health to resolve complaints initiated by enrollees concerning health care services. Such system shall provide reasonable procedures for the resolution of complaints. Each health maintenance organization shall submit to the commissioner and the state board of health an annual report in a form prescribed by the commissioner after consultation with the state board of health which shall include:
κ1997 Statutes of Nevada, Page 312 (CHAPTER 140, AB 156)κ
(a) A description of the procedures of such complaint system; and
(b) The total number of complaints handled through such complaint system and a compilation of causes underlying the complaints filed.
2. The health maintenance organization shall maintain records of complaints filed with it concerning other than health care services and shall submit to the commissioner a summary report at such times and in such format as the commissioner may require. Such complaints involving other persons shall be referred to such persons with a copy to the commissioner.
3. The commissioner or the state board of health may examine such complaint system, subject to the limitations concerning medical records of individuals set forth in subsection 3 of NRS 695C.310.] which complies with the provisions of sections 23 to 26, inclusive, of this act.
Sec. 44. The provisions of this act apply to all contracts for health insurance, managed care or for the provision of health care services entered into or renewed on or after October 1, 1997.
________
Assembly Bill No. 215Assemblyman Hettrick
CHAPTER 141
AN ACT relating to the department of motor vehicles and public safety; authorizing under certain circumstances the release of personal information that is contained in the files and records of the department of motor vehicles and public safety for use in research activities and bulk distributions; authorizing the director of the department to release additional personal information to insurers; and providing other matters properly relating thereto.
[Approved June 11, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 481.063 is hereby amended to read as follows:
481.063 1. The director may charge and collect reasonable fees for official publications of the department and from persons making use of files and records of the department or its various divisions for a private purpose. All money so collected must be deposited in the state treasury for credit to the motor vehicle fund.
2. The director may release personal information from a file or record relating to the drivers license, identification card or title or registration of a vehicle of a person if the requester submits a [notarized] written release from the person who holds a lien on the vehicle , or an agent of that person, or the person about whom the information is requested which is dated no more than 90 days before the date of the request. The written release must be in a form required by the director.
3. Except as otherwise provided in subsection 2, the director shall not release to any person who is not an officer , [or] employee or agent of a law enforcement agency or an agency of a local government which collects fines imposed for parking violations, [or] who is not conducting an investigation pursuant to NRS 253.0415, 253.044 or 253.220 [:] , or who is not authorized to transact insurance pursuant to chapter 680A of NRS:
κ1997 Statutes of Nevada, Page 313 (CHAPTER 141, AB 215)κ
investigation pursuant to NRS 253.0415, 253.044 or 253.220 [:] , or who is not authorized to transact insurance pursuant to chapter 680A of NRS:
(a) A list which includes license plate numbers combined with any other information in the records or files of the department;
(b) The social security number of any person, if it is requested to facilitate the solicitation of that person to purchase a product or service; or
(c) The name, address, telephone number or any other personally identifiable information if the information is requested by the presentation of a license plate number.
When such personally identifiable information is requested of a law enforcement agency by the presentation of a license plate number, the law enforcement agency shall conduct an investigation regarding the person about whom information is being requested or, as soon as practicable, provide the requester with the requested information if the requester officially reports that the motor vehicle bearing that license plate was used in a violation of NRS 205.240, 205.345, 205.380 or 205.445.
4. Except as otherwise provided in subsections 2 and 5, the director shall not release any personal information from a file or record relating to a drivers license, identification card or title or registration of a vehicle.
5. Except as otherwise provided in subsection 6, if a person or governmental entity appears in person or by its representative, provides a description of the information requested and its proposed use and signs an affidavit to that effect, the director may release any personal information from a file or record relating to a drivers license, identification card or title or registration of a vehicle for use:
(a) By any governmental entity, including, but not limited to, any court or law enforcement agency, in carrying out its functions, or any person acting on behalf of a federal, state or local governmental agency in carrying out its functions. In addition, the director may, by regulation, establish a procedure whereby a governmental entity may retrieve such information electronically or by written request in lieu of appearing personally and complying with the other requirements of this subsection.
(b) In connection with any civil, criminal, administrative or arbitration proceeding before any federal or state court, regulatory body, board, commission or agency, including, but not limited to, use for service of process, investigation in anticipation of litigation and execution or enforcement of judgments and orders, or pursuant to an order of a federal or state court.
(c) In connection with matters relating to:
(1) The safety of drivers of motor vehicles;
(2) Safety and thefts of motor vehicles;
(3) Emissions from motor vehicles;
(4) Alterations of products related to motor vehicles;
(5) An advisory notice relating to a motor vehicle or the recall of a motor vehicle;
(6) Monitoring the performance of motor vehicles;
(7) Parts or accessories of motor vehicles;
(8) Dealers of motor vehicles; or
κ1997 Statutes of Nevada, Page 314 (CHAPTER 141, AB 215)κ
(9) [Activities relating to research and analysis of the market for motor vehicles, such as the conducting of surveys; or
(10)] Removal of nonowner records from the original records of motor vehicle manufacturers.
(d) By any insurer, self-insurer or organization that provides assistance or support to an insurer or self-insurer or its agents, employees or contractors, in connection with activities relating to the rating, underwriting or investigation of claims or the prevention of fraud.
(e) In providing notice to the owners of vehicles [which] that have been towed, repossessed or impounded.
(f) By an employer or its agent or insurer to obtain or verify information relating to a holder of a commercial drivers license who is employed by or has applied for employment with the employer.
(g) By a private investigator, private patrolman or security consultant who is licensed pursuant to chapter 648 of NRS , [648.060,] for any use permitted pursuant to this section.
(h) By a reporter or editorial employee who is employed by or affiliated with any newspaper, press association or commercially operated federally licensed radio or television station for a journalistic purpose. The department may not make any inquiries regarding the use of or reason for the information requested other than whether the information will be used for a journalistic purpose.
(i) In connection with an investigation conducted pursuant to NRS 253.0415, 253.044 or 253.220.
(j) In activities relating to research and the production of statistical reports, if the personal information will not be published or otherwise redisclosed, or used to contact any person.
(k) In the bulk distribution of surveys, marketing material or solicitations, if the director has adopted policies and procedures to ensure that:
(1) The information will be used or sold only for use in the bulk distribution of surveys, marketing material or solicitations;
(2) Each person about whom the information is requested has clearly been provided with an opportunity to prohibit such a use; and
(3) If the person about whom the information is requested prohibits in a timely manner such a use, the bulk distribution will not be directed toward that person.
6. [A] Except as otherwise provided in paragraph (j) of subsection 5, a person who requests and receives personal information may sell or disclose that information only for a use permitted pursuant to subsection 5. Such a person [must] shall keep and maintain for [a period of] 5 years a record of:
(a) Each person to whom the information is provided; and
(b) The purpose for which that person will use the information . [,
which]
The record must be made available for examination by the department at all reasonable times upon request.
7. Except as otherwise provided in subsection 2, the director may deny any use of the files and records if he reasonably believes that the information taken may be used for an unwarranted invasion of a particular persons privacy.
κ1997 Statutes of Nevada, Page 315 (CHAPTER 141, AB 215)κ
8. Except as otherwise provided in NRS 485.316, the director shall not allow any person to make use of information retrieved from the data base created pursuant to NRS 485.313 for a private purpose and shall not in any other way release any information retrieved from that data base.
9. The director shall adopt such regulations as he deems necessary to carry out the purposes of this section. In addition , the director shall, by regulation, establish a procedure whereby a person who is requesting personal information and has personally appeared before an employee of the department at least once may establish an account with the department to facilitate his ability to request information electronically or by written request if he has submitted to the department proof of his employment or licensure, as applicable, and a signed and notarized affidavit acknowledging:
(a) That he has read and fully understands the current laws and regulations regarding the manner in which information from the departments files and records may be obtained and the limited uses which are permitted;
(b) That he understands that any sale or disclosure of information so obtained must be in accordance with the provisions of this section;
(c) That he understands that a record will be maintained by the department of any information he requests; and
(d) That he understands that a violation of the provisions of this section is a criminal offense.
10. It is unlawful for any person to:
(a) Make a false representation to obtain any information from the files or records of the department.
(b) Knowingly obtain or disclose any information from the files or records of the department for any use not permitted by the provisions of this chapter.
11. As used in this section, personal information means information [which] that reveals the identity of a person, including his photograph, social security number, drivers license number, identification card number, name, address, telephone number or information regarding a medical condition or disability. The term does not include the zip code of a person when separate from his full address, information regarding vehicular accidents or driving violations in which he has been involved or other information otherwise affecting his status as a driver.
Sec. 2. This act becomes effective upon passage and approval.
________
κ1997 Statutes of Nevada, Page 316κ
Assembly Bill No. 100Committee on Elections, Procedures, and Ethics
CHAPTER 142
AN ACT relating to elections; reducing the period for filing a declaration or acceptance of candidacy for certain candidates for public office; and providing other matters properly relating thereto.
[Approved June 12, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 293.1725 is hereby amended to read as follows:
293.1725 1. Except as otherwise provided in subsection 4, a minor political party which [desires] wishes to place its candidates on the ballot for a general election and:
(a) Is entitled to do so pursuant to paragraph (a) or (b) of subsection 2 of NRS 293.1715; or
(b) Files a petition pursuant to paragraph (c) of subsection 2 of NRS 293.1715,
must file with the secretary of state a list of its candidates not earlier than [January 1] the first Monday in May preceding the election nor later than the last Friday in June. The list must be signed by the person so authorized in the certificate of existence of the minor political party before a notary public or other person authorized to take acknowledgments. The list must not be amended after it is filed.
2. The secretary of state shall immediately forward a certified copy of the list of candidates of each minor political party to the filing officer with whom each candidate must file his declaration of candidacy.
3. Each candidate on the list must file his declaration of candidacy with the proper filing officer and pay the fee required by NRS 293.193 not earlier than the date on which the list of candidates of his minor political party is filed with the secretary of state nor later than the first Wednesday in July.
4. A minor political party that wishes to place candidates for the offices of President and Vice President of the United States on the ballot and has otherwise qualified to place the names of its candidates on the ballot for the general election pursuant to the provisions of this chapter must file with the secretary of state a certificate of nomination for these offices not later than the first Tuesday in September.
Sec. 2. NRS 293.200 is hereby amended to read as follows:
293.200 1. An independent candidate for partisan office must file with the proper filing officer:
(a) A copy of the petition of candidacy that he intends to circulate for signatures. The copy must be filed before the petition may be circulated.
(b) A petition of candidacy signed by a number of registered voters equal to at least 1 percent of the total number of ballots cast in the state or in the county or district electing that officer at the last preceding general election in which a person was elected to that office.
κ1997 Statutes of Nevada, Page 317 (CHAPTER 142, AB 100)κ
2. The petition may consist of more than one document. Each document must bear the name of the county in which it was circulated and only registered voters of that county may sign the document. The person who circulates the document must be a registered voter of that county. If the office is a district office, only the registered voters of that district may sign the document. The documents which are circulated for signature in a county must be submitted to that county clerk for verification in the manner prescribed in NRS 293.1276 to 293.1279, inclusive, not later than 40 days before filing the petition of candidacy with the proper filing officer. Each signer shall add to his signature the address of the place at which he actually resides, the date that he signs the petition and the name of the county where he is registered to vote for the purpose of determining whether he is a registered voter. The person who circulates each document of the petition shall sign an affidavit attesting that the signatures on the document are genuine to the best of his knowledge and belief and were signed in his presence by persons registered to vote in that county.
3. The petition of candidacy may state the principle, if any, which the person qualified represents.
4. Petitions of candidacy must be filed not earlier than the first [Tuesday in March] Monday in May preceding the general election and not later than 5 p.m. on the third Tuesday in August.
5. No petition of candidacy may contain the name of more than one candidate for each office to be filled.
6. A person may not file as an independent candidate if he is proposing to run as the candidate of a political party.
7. The names of independent candidates must be placed on the general election ballot and must not appear on the primary election ballot.
8. If the candidacy of any person seeking to qualify pursuant to this section is challenged, all affidavits and documents in support of the challenge must be filed not later than 5 p.m. on the fourth Tuesday in August. Any judicial proceeding resulting from the challenge must be set for hearing not more than 5 days after the fourth Tuesday in August.
9. Any challenge pursuant to subsection 8 must be filed with:
(a) The first judicial district court if the petition of candidacy was filed with the secretary of state.
(b) The district court for the county where the petition of candidacy was filed if the petition was filed with a county clerk.
10. An independent candidate for partisan office must file a declaration of candidacy with the proper filing officer and pay the fee required by NRS 293.193 not earlier than the first [Tuesday in March] Monday in May of the year in which the election is held nor later than 5 p.m. of the first Wednesday in July.
________
κ1997 Statutes of Nevada, Page 318κ
Assembly Bill No. 133Committee on Transportation
CHAPTER 143
AN ACT relating to motor vehicles; making various changes to the provisions governing the licensing and registration of motor vehicles; imposing a fee; and providing other matters properly relating thereto.
[Approved June 12, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 481.079 is hereby amended to read as follows:
481.079 1. Except as otherwise provided by specific statute, all taxes, license fees and money collected pursuant to NRS 481.071 must be deposited with the state treasurer to the credit of the motor vehicle fund.
2. If any check accepted by the department in payment of fees pursuant to NRS 481.071 is dishonored upon presentation for payment [, the] :
(a) The drawer is subject to a service charge of $10, in addition to any other penalties provided by law [.] ; and
(b) The department may require that future payments from the person be made by cashiers check, money order, travelers check or cash.
3. The department may adjust the amount of a deposit made with the state treasurer to the credit of the motor vehicle fund for any cash shortage or overage resulting from the collection of fees.
Sec. 2. Chapter 482 of NRS is hereby amended by adding thereto the provisions set forth as sections 3, 4 and 5, of this act.
Sec. 3. 1. An owner of a vehicle who leases it to a carrier and operates the vehicle pursuant to that lease may apply to the department for a temporary permit to operate the vehicle if the vehicle:
(a) Is not subject to the provisions of NRS 482.390 and 482.395;
(b) Is not currently registered in this state, another state or a foreign country; and
(c) Is operated at the vehicles unladen weight.
2. The department shall charge $10 for such a temporary permit, in addition to all other applicable fees and taxes.
3. Such a temporary permit must:
(a) Bear the date of its expiration;
(b) Expire at 5 p.m. on the 15th day after its date of issuance;
(c) Be affixed to the vehicle in a manner prescribed by the department; and
(d) Be removed and destroyed upon its expiration or upon the issuance of a certificate of registration for the vehicle, whichever occurs first.
4. As used in this section, carrier means a common motor carrier of passengers as defined in NRS 706.041, a common motor carrier of property as defined in NRS 706.046, a contract motor carrier as defined in NRS 706.051, or a private motor carrier of property as defined in NRS 706.111.
Sec. 4. 1. The department may waive payment of a penalty or interest for a persons failure timely to file a return or pay a tax or fee imposed pursuant to this chapter if the department determines that the failure:
κ1997 Statutes of Nevada, Page 319 (CHAPTER 143, AB 133)κ
(a) Was caused by circumstances beyond the persons control;
(b) Occurred despite the persons exercise of ordinary care; and
(c) Was not a result of the persons willful neglect.
2. A person requesting relief from payment of a penalty or interest must file with the department a sworn statement specifying the facts supporting his claim for relief.
Sec. 5. The department may:
1. Enter into written agreements providing for the periodic payment of delinquent taxes or fees imposed pursuant to this chapter.
2. Adopt regulations:
(a) Setting forth the permissible terms of such agreements; and
(b) Providing for the cancellation of such an agreement if the person with whom the department has contracted becomes delinquent in his payments pursuant to the agreement or in his payment of other taxes or fees owed to the department pursuant to the provisions of chapter 366, 371 or 482 of NRS.
Sec. 5. NRS 482.363 is hereby amended to read as follows:
482.363 1. Any person, other than [a] an owner of a vehicle who leases it to a carrier and operates the vehicle pursuant to that lease, or a new or used vehicle dealer , licensed under the provisions of NRS 482.325, who engages in the leasing of vehicles in this state as a long-term or short-term lessor, shall:
(a) Secure a license from the department to conduct the leasing business;
(b) Post a bond;
(c) Furnish the department with any other information as may be required;
(d) Comply with the terms and conditions of this chapter which apply to vehicle dealers; and
(e) Pay a fee of $125.
2. Any person employed by a long-term lessor licensed under the provisions of subsection 1 who engages in the practice of arranging or selling such services, and any person employed by a short-term lessor who sells, offers or displays for sale or exchange vehicles which are owned by such short-term lessor shall, before commencing operations, and annually thereafter:
(a) Secure from the department a license to act as a salesman of such services; and
(b) Comply with the terms and conditions which apply to salesmen of vehicles as specified in NRS 482.362.
3. Licenses issued pursuant to subsection 1 expire on December 31 of each year. Before December 31 of each year, licensees shall furnish the department with an application for renewal of the license accompanied by an annual fee of $50. The renewal application must be provided by the department and must contain information required by the department.
4. The provisions of NRS 482.352, relating to the denial, revocation or suspension of licenses, apply to licenses issued pursuant to the provisions of subsection 1. The provisions of NRS 482.362, relating to the denial, revocation, suspension and transfer of vehicle salesmens licenses, apply to licenses issued pursuant to the provisions of subsection 2.
κ1997 Statutes of Nevada, Page 320 (CHAPTER 143, AB 133)κ
5. As used in this section, carrier has the meaning ascribed to it in section 3 of this act.
Sec. 7. (Deleted by amendment.)
Sec. 8. NRS 482.390 is hereby amended to read as follows:
482.390 1. All nonresident owners or operators of vehicles of a type subject to registration under this chapter operating [such] those vehicles on the public highways of this state as common motor carriers of persons or property, contract motor carriers of persons or property, or private motor carriers of property, as [the same] such carriers are now or may hereafter be defined in the laws of this state relating thereto [shall be] are governed by and must pay the fees required by the provisions of [such] those laws with respect to the operation of [such] those vehicles in any of such carrier services.
2. All such nonresident owners or operators of such vehicles may operate [such] the vehicles upon the public highways of this state without any registration thereof in this state under the provisions of this chapter and without the payment of any registration fees to the state upon the following conditions:
(a) That each vehicle [shall] must be operated pursuant to a permit designated as a hunters permit in § 910 of article IX of the International Registration Plan, as adopted by the department pursuant to NRS 706.826, or be registered or licensed and have attached thereto the registration or license plates for the then current year, pursuant to the motor vehicle registration laws of the state or country wherein the owner of [such] the motor vehicle resides or maintains his principal place of business and wherein [such] the vehicle is registered for [such] that year, which registration or license plates [shall] must be displayed on [such] the vehicle during all of the time operated in this state.
(b) That the laws of the state or country of [such] the residence or principal place of business of the owner of [such] the vehicle do not require the registration of the vehicles and payment of fees therefor from residents of this state engaging in [like] similar carrier services in the state or country of the residence or principal place of business of the nonresident owner wherein [such] the motor vehicle is registered.
Sec. 9. NRS 482.399 is hereby amended to read as follows:
482.399 1. Upon the transfer of the ownership of or interest in any [motor] vehicle by any holder of a valid registration, or upon destruction of the [motor] vehicle, the registration expires.
2. The holder of the original registration may transfer the registration to another vehicle to be registered by him and use the same license plate or plates thereon, if the license plate or plates are appropriate for the second [motor] vehicle, upon filing an application for transfer of registration and upon paying the transfer registration fee and the excess, if any, of the registration fee and privilege tax on the [motor] vehicle to which the registration is transferred over the total registration fee and privilege tax paid on all [motor] vehicles from which he is transferring his ownership or interest. Application for transfer of registration must be made in person, if practicable, to any office or agent of the department or to a registered dealer, and the license plate or plates may not be used upon a second vehicle until registration of that vehicle is complete.
κ1997 Statutes of Nevada, Page 321 (CHAPTER 143, AB 133)κ
vehicle until registration of that vehicle is complete. In computing the privilege tax, the department, its agent or the registered dealer shall credit the portion of the tax paid on the first vehicle attributable to the remainder of the current registration period or calendar year on a pro rata monthly basis against the tax due on the second vehicle. If any person transfers his ownership or interest in two or more vehicles, the department or the registered dealer shall credit the portion of the tax paid on all of the vehicles attributable to the remainder of the current registration period or calendar year on a pro rata monthly basis against the tax due on the vehicle to which the registration is transferred. The certificates of registration and unused license plates of the vehicles from which a person transfers his ownership or interest must be submitted before credit is given against the tax due on the vehicle to which the registration is transferred.
3. In computing the registration fee, the department or its agent or the registered dealer shall credit the portion of the registration fee paid on each vehicle attributable to the remainder of the current calendar year or registration period on a pro rata basis against the registration fee due on the vehicle to which registration is transferred. If the amount owed on the registration fee or privilege tax on that vehicle is less than the credit on the total registration fee or privilege tax paid on all [motor] vehicles from which a person transfers his ownership or interest, no refund may be allowed.
4. If the license plate or plates are not appropriate for the second [motor] vehicle, the plate or plates must be surrendered to the department or registered dealer and an appropriate plate or plates must be issued by the department. The department shall not reissue the surrendered plate or plates until the next succeeding licensing period.
5. If application for transfer of registration is not made within 60 days after the destruction or transfer of ownership of or interest in any [motor] vehicle, the license plate or plates must be surrendered to the department on or before the 60th day for cancellation of the registration.
Sec. 10. NRS 482.463 is hereby amended to read as follows:
482.463 The holder of an original registration for a motor vehicle with a declared gross weight in excess of 26,000 pounds may, upon surrendering the certificate of registration and the corresponding license plates to the department [,] or upon signing a notarized statement indicating the certificate of registration and the corresponding license plates were lost and providing such supporting documentation as the department requires, apply to the department:
1. For a refund of an amount equal to that portion of the privilege taxes and registration fees paid for the motor vehicle that is attributable, on a pro rata monthly basis, to the remainder of the calendar year; or
2. To have that amount credited against excise taxes due pursuant to the provisions of chapter 366 of NRS.
Sec. 11. NRS 482.465 is hereby amended to read as follows:
482.465 1. The department shall rescind and cancel the registration of a vehicle whenever the person to whom the certificate of registration or license plates therefor have been issued makes or permits to be made any unlawful use of the certificate or plates or permits the use thereof by a person not entitled thereto.
κ1997 Statutes of Nevada, Page 322 (CHAPTER 143, AB 133)κ
2. The department shall cancel a certificate of ownership or certificate of registration and license plates which have been issued erroneously or improperly, or obtained illegally.
3. In addition to any other penalty set forth in this chapter and chapters 366 and 706 of NRS, the department may revoke a certificate of ownership or a certificate of registration and license plates for a vehicle with a declared gross weight in excess of 26,000 pounds if the department determines that:
(a) The licensee of the vehicle has violated one or more of the provisions of this chapter or chapter 366 or 706 of NRS; and
(b) There is reasonable cause for the revocation.
4. Before revoking a certificate of ownership or a certificate of registration and license plates pursuant to subsection 3, the department must send a written notice by certified mail to the licensee at his last known address ordering him to appear before the department at a time not less than 10 days after the mailing of the notice to show cause why the certificate of ownership or the certificate of registration and license plates should not be revoked pursuant to this section.
5. Upon rescission , revocation or cancellation of the certificate of ownership or of the certificate of registration and license plates, the affected certificate or certificate and plates [shall] must be returned to the department upon receipt of notice of rescission , revocation or cancellation.
Sec. 12. NRS 482.482 is hereby amended to read as follows:
482.482 1. In addition to any other applicable fee listed in NRS 482.480, there must be paid to the department for the registration of every motortruck, truck tractor or bus which has a declared gross weight of:
(a) Less than 6,000 pounds, a fee of $33.
(b) Not less than 6,000 pounds and not more than 8,499 pounds, a fee of $38.
(c) Not less than 8,500 pounds and not more than 10,000 pounds, a fee of $48.
(d) Not less than 10,001 pounds and not more than 26,000 pounds, a fee of $12 for each 1,000 pounds or fraction thereof.
(e) Not less than 26,001 pounds and not more than 80,000 pounds, a fee of $17 for each 1,000 pounds or fraction thereof. The maximum fee is $1,360.
2. Except as otherwise provided in subsection 6, the original or renewal registration fees for fleets of vehicles with a declared gross weight in excess of 26,000 pounds and the tax imposed by the provisions of chapter 371 of NRS for the privilege of operating those vehicles may be paid in equal installments. [Except for the first installment, which must be paid at the time of registration, installments] Installments are due on or before January 31, April 1, July 1 and October 1 of each year. The amount of each installment must be determined by taking the total fee and privilege tax due for the calendar year and dividing that [amount by the sum of the total number of installments for that calendar year due after the date of registration plus one.] total by four. The department shall not allow installment payments for a vehicle added to a fleet after the original or renewal registration is issued.
κ1997 Statutes of Nevada, Page 323 (CHAPTER 143, AB 133)κ
3. If the due date of any installment falls on a Saturday, Sunday or legal holiday, that installment is not due until the next following business day.
4. Any payment required by subsection 2 shall be deemed received by the department on the date shown by the post office cancellation mark stamped on an envelope containing payment properly addressed to the department, if that date is earlier than the actual receipt of that payment.
5. A person who fails to pay any fee pursuant to subsection 2 or privilege tax when due shall pay to the department a penalty of 10 percent of the amount of the unpaid fee, plus interest on the unpaid fee at the rate of 1 percent per month or fraction of a month from the date the fee and tax were due until the date of payment.
6. If a person fails to pay any fee pursuant to subsection 2 or privilege tax when due, the department may, in addition to the penalty provided for in subsection 5, require that person to pay:
(a) The entire amount of the unpaid registration fee and privilege tax owed by that person for the remainder of the calendar year; and
(b) On an annual basis, any registration fee and privilege tax set forth in subsection 2 which may be incurred by that person in any subsequent calendar year.
Sec. 13. NRS 706.521 is hereby amended to read as follows:
706.521 1. Any person has the option, in lieu of causing a motor vehicle which has a declared gross weight in excess of 26,000 pounds to be licensed pursuant to the provisions of NRS [366.220,] 482.482 or 706.841, of purchasing a temporary permit and paying a fee of $5 plus 15 cents for each mile the department estimates the vehicle will travel within the State of Nevada during the effective period of the temporary permit.
2. Except as otherwise provided in subsection 3, a temporary permit authorizes operation over the highways of this state from point of entry to point of exit for not more than 24 consecutive hours.
3. The department may issue to the owner or operator of a common motor carrier of passengers a temporary permit which authorizes operation for not more than 120 consecutive hours.
4. If a person is issued a temporary permit pursuant to the provisions of this section, the department shall credit the cost of that permit against the cost of any license subsequently issued to that person pursuant to the provisions of either NRS 482.482 or 706.841 whose effective dates include the effective dates of the temporary permit, or if that license fee has been satisfied, against any fee owed to the department pursuant to the provisions of chapter 366 of NRS.
Sec. 14. NRS 706.531 is hereby amended to read as follows:
706.531 1. [After the] The department of transportation [has approved] shall approve an application for a permit pursuant to the provisions of subsection 5 of NRS 484.739 . [, and before issuance, the department shall issue special identifying devices for combinations of vehicles to be operated pursuant to the permit. The identifying devices] The permit must be carried and displayed in such a manner as the department determines on every combination so operating. The [devices] permit issued may be transferred from one combination to another, under such conditions as the department may by regulation prescribe, but must not be transferred
κ1997 Statutes of Nevada, Page 324 (CHAPTER 143, AB 133)κ
from one person or operator to another without prior approval of the department . [of transportation. The devices] The permit may be used only on motor vehicles regularly licensed pursuant to the provisions of NRS 482.482.
2. The annual fee for each [identifying device or set of devices] permit for a combination of vehicles is $60 for each 1,000 pounds or fraction thereof of gross weight in excess of 80,000 pounds. The maximum fee must not exceed $2,940. The fee must be reduced one-twelfth for each month that has elapsed since the beginning of each calendar year, rounded to the nearest dollar, but must not be less than $50. The annual fee for each permit for a combination of vehicles not exceeding 80,000 pounds is $10. The fee must be paid in addition to all other fees required by the provisions of this chapter.
3. Any person operating a combination of vehicles licensed pursuant to the provisions of subsection 2, who is apprehended operating a combination in excess of the gross weight for which the fee in subsection 2 has been paid is, in addition to all other penalties provided by law, liable for the difference between the fee for the load being carried and the fee paid, for the full licensing period.
4. Any person apprehended operating a combination of vehicles without having complied with the provisions of NRS 484.739 and this section is, in addition to all other penalties provided by law, liable for the payment of the fee which would be due pursuant to the provisions of subsection 2 for the balance of the calendar year for the gross load being carried at the time of apprehension.
5. The holder of an original permit [and identifying devices] may, upon surrendering the permit [, certificate of registration and devices] to the department [,] or upon delivering to the department a signed and notarized statement that the permit [, certificate of registration or devices were] was lost or stolen and [any] such other documentation [that] as the department may require, apply to the department:
(a) For a refund of an amount equal to that portion of the fees paid for the permit [and devices] that is attributable, on a pro rata monthly basis, to the remainder of the calendar year; or
(b) To have that amount credited against excise taxes due pursuant to the provisions of chapter 366 of NRS.
________
κ1997 Statutes of Nevada, Page 325κ
Assembly Bill No. 243Assemblymen Sandoval, Carpenter, Anderson, Lee, Lambert, Amodei, Nolan, Manendo, Collins, Tiffany, Hickey, Humke, Marvel, Braunlin, Neighbors, Buckley, Herrera, Berman, Segerblom and Perkins
CHAPTER 144
AN ACT relating to transportation; revising the provisions governing the operation of a motor vehicle while under the influence of intoxicating liquor or a controlled substance; revising the provisions governing the operation of a vessel while under the influence of intoxicating liquor or a controlled substance; imposing a fee for chemical testing upon a person convicted of operating a vessel while under the influence of intoxicating liquor or a controlled substance; increasing the penalty in certain circumstances for a person convicted of operating a vessel while under the influence of intoxicating liquor or a controlled substance; and providing other matters properly relating thereto.
[Approved June 12, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 484.122 is hereby amended to read as follows:
484.122 1. Premises to which the public has access means property in private or public ownership onto which members of the public [is] regularly enter, are reasonably likely to enter, or are invited or permitted to enter [for civic or commercial purposes, such as the roadway or parking lot appurtenant to a governmental building, a business, an apartment house or a mobile home park, but does not include a private way on a farm or the] as invitees or licensees, whether or not access to the property by some members of the public is restricted or controlled by a person or a device.
2. The term includes, but is not limited to:
(a) A parking deck, parking garage or other parking structure.
(b) A paved or unpaved parking lot or other paved or unpaved area where vehicles are parked or are reasonably likely to be parked.
(c) A way that provides access to or is appurtenant to:
(1) A place of business;
(2) A governmental building;
(3) An apartment building;
(4) A mobile home park;
(5) A residential area or residential community which is gated or enclosed or the access to which is restricted or controlled by a person or a device; or
(6) Any other similar area, community, building or structure.
3. The term does not include:
(a) A private way on a farm.
(b) The driveway of an individual dwelling.
Sec. 2. NRS 484.383 is hereby amended to read as follows:
484.383 1. Except as otherwise provided in subsections 3 and 4, any person who drives or is in actual physical control of a vehicle on a highway or on premises to which the public has access shall be deemed to have given his consent to an evidentiary test of his blood, urine, breath or other bodily substance for the purpose of determining the alcoholic content of his blood or breath or the presence of a controlled substance when such a test is administered at the direction of a police officer having reasonable grounds to believe that the person to be tested was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance.
κ1997 Statutes of Nevada, Page 326 (CHAPTER 144, AB 243)κ
or on premises to which the public has access shall be deemed to have given his consent to an evidentiary test of his blood, urine, breath or other bodily substance for the purpose of determining the alcoholic content of his blood or breath or the presence of a controlled substance when such a test is administered at the direction of a police officer having reasonable grounds to believe that the person to be tested was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance.
2. If the person to be tested pursuant to subsection 1 is dead or unconscious, the officer shall direct that samples of blood from the person be tested.
3. Any person who is afflicted with hemophilia or with a heart condition requiring the use of an anticoagulant as determined by a physician is exempt from any blood test which may be required pursuant to this section but must, when appropriate pursuant to the provisions of this section, be required to submit to a breath or urine test.
4. If the alcoholic content of the blood or breath of the person to be tested is in issue [, he] :
(a) Except as otherwise provided in this section, the person may refuse to submit to a blood test if means are reasonably available to perform a breath test. [If the person requests]
(b) The person may request a blood test [and the] , but if means are reasonably available to perform a breath test [,] when the blood test is requested, and [he] the person is subsequently convicted, he must pay for the cost of the [substituted] blood test, including the fees and expenses of witnesses in court.
(c) A police officer may direct the person to submit to a blood test as set forth in subsection 7 if the officer has reasonable grounds to believe that the person:
(1) Caused death or substantial bodily harm to another person as a result of driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance; or
(2) Has been convicted within the previous 7 years of:
(I) A violation of NRS 484.379, 484.3795, subsection 2 of NRS 488.205, NRS 488.206, section 4 of this act or a law of another jurisdiction that prohibits the same or similar conduct; or
(II) Any other offense in this state or another jurisdiction in which death or substantial bodily harm to another person resulted from driving, operating or being in actual physical control of a vehicle or a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance.
5. If the presence of a controlled substance in the blood of the person is in issue, the officer may direct him to submit to a blood or urine test, or both, in addition to the breath test.
6. Except as otherwise provided in subsections 3 and 5, a police officer shall not direct a person to submit to a urine test.
κ1997 Statutes of Nevada, Page 327 (CHAPTER 144, AB 243)κ
7. If a person to be tested fails to submit to a required test as directed by a police officer [under] pursuant to this section and the officer has reasonable [cause] grounds to believe that the person to be tested was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or a controlled substance, the officer may direct that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested. Not more than three such samples may be taken during the 5-hour period immediately following the time of the initial arrest. In such a circumstance, the officer is not required to provide the person with a choice of tests for determining the alcoholic content or presence of a controlled substance in his blood.
Sec. 3. Chapter 488 of NRS is hereby amended by adding thereto the provisions set forth as sections 4 to 8, inclusive, of this act.
Sec. 4. 1. A person who:
(a) Is under the influence of intoxicating liquor;
(b) Has 0.10 percent or more by weight of alcohol in his blood;
(c) Is found by measurement within 2 hours after operating or being in actual physical control of a vessel under power or sail to have 0.10 percent or more by weight of alcohol in his blood;
(d) Is under the influence of a controlled substance, or under the combined influence of intoxicating liquor and a controlled substance; or
(e) Inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders him incapable of safely operating or being in actual physical control of a vessel under power or sail,
and does any act or neglects any duty imposed by law while operating or being in actual physical control of any vessel under power or sail, if the act or neglect of duty proximately causes the death of, or substantial bodily harm to, a person other than himself, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years and shall be further punished by a fine of not less than $2,000 nor more than $5,000. A person so imprisoned must, insofar as practicable, be segregated from offenders whose crimes were violent and, insofar as practicable, be assigned to an institution or facility of minimum security.
2. A prosecuting attorney shall not dismiss a charge of violating the provisions of subsection 1 in exchange for a plea of guilty, guilty but mentally ill or nolo contendere to a lesser charge or for any other reason unless he knows or it is obvious that the charge is not supported by probable cause or cannot be proved at the time of trial. A sentence imposed pursuant to subsection 1 must not be suspended, and probation must not be granted.
3. If consumption is proven by a preponderance of the evidence, it is an affirmative defense under paragraph (c) of subsection 1 that the defendant consumed a sufficient quantity of alcohol after operating or being in actual physical control of the vessel under power or sail, and before his blood was tested, to cause the alcohol in his blood to equal or exceed 0.10 percent. A defendant who intends to offer this defense at a trial or preliminary hearing must, not less than 14 days before the trial or hearing or at such other time as the court may direct, file and serve on the prosecuting attorney a written notice of that intent.
κ1997 Statutes of Nevada, Page 328 (CHAPTER 144, AB 243)κ
as the court may direct, file and serve on the prosecuting attorney a written notice of that intent.
4. If a person less than 15 years of age was in the vessel at the time of the defendants violation, the court shall consider that fact as an aggravating factor in determining the sentence of the defendant.
Sec. 5. 1. Before sentencing a defendant pursuant to section 4 of this act, the court shall require that the defendant be evaluated to determine whether he is an abuser of alcohol or drugs and whether he can be treated successfully for his condition.
2. The evaluation must be conducted by:
(a) A counselor certified to make such an evaluation by the bureau of alcohol and drug abuse of the rehabilitation division of the department of employment, training and rehabilitation;
(b) A physician certified to make such an evaluation by the board of medical examiners; or
(c) A psychologist certified to make such an evaluation by the board of psychological examiners.
3. The counselor, physician or psychologist who conducts the evaluation shall immediately forward the results of the evaluation to the director of the department of prisons.
Sec. 6. 1. If a defendant pleads guilty or guilty but mentally ill to, or is found guilty of, a violation of NRS 488.206 or section 4 of this act and a chemical analysis of his blood, urine, breath or other bodily substance was conducted, the court shall, in addition to any penalty provided by law, order the defendant to pay the sum of $60 as a fee for the chemical analysis. Except as otherwise provided in this subsection, any money collected for the chemical analysis must not be deducted from, and is in addition to, any fine otherwise imposed by the court and must be:
(a) Collected from the defendant before or at the same time that the fine is collected.
(b) Stated separately in the judgment of the court or on the courts docket.
2. All money collected pursuant to subsection 1 must be paid by the clerk of the court to the county or city treasurer, as appropriate, on or before the fifth day of each month for the preceding month.
3. The treasurer shall deposit all money received by him pursuant to subsection 2 in the county or city treasury, as appropriate, for credit to the fund for forensic services created pursuant to NRS 453.575. The money must be accounted for separately within the fund.
4. Except as otherwise provided in subsection 5, each month the treasurer shall, from the money credited to the fund pursuant to subsection 3, pay any amount owed for forensic services and deposit any remaining money in the county or city general fund, as appropriate.
5. In counties that do not receive forensic services under a contract with the state, the money credited to the fund pursuant to subsection 3:
(a) Except as otherwise provided in paragraph (b), must be:
(1) Expended to pay for the chemical analyses performed within the county;
κ1997 Statutes of Nevada, Page 329 (CHAPTER 144, AB 243)κ
(2) Expended to purchase and maintain equipment to conduct such analyses;
(3) Expended for the training and continuing education of the employees who conduct such analyses; and
(4) Paid to law enforcement agencies which conduct such analyses to be used by those agencies in the manner provided in this subsection.
(b) May only be expended to cover the costs of chemical analyses conducted by, equipment used by, or training for employees of an analytical laboratory that is approved by the committee on testing for intoxication created in NRS 484.388.
Sec. 7. 1. Any person who operates or is in actual physical control of a vessel under power or sail on the waters of this state shall be deemed to have given his consent to a preliminary test of his breath to determine the alcoholic content of his breath when the test is administered at the direction of a peace officer after a vessel accident or collision or where an officer stops a vessel, if the officer has reasonable grounds to believe that the person to be tested was operating or in actual physical control of a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance.
2. If the person fails to submit to the test, the officer shall arrest him and take him to a convenient place for the administration of a reasonably available evidentiary test under NRS 488.208.
3. The result of the preliminary test must not be used in any criminal action, except to show there were reasonable grounds to make an arrest.
Sec. 8. 1. Except as otherwise provided in subsection 2, an evidentiary test of breath to determine the percentage of alcohol in a persons breath may be used to establish that percentage only if two consecutive samples of the persons breath are taken and:
(a) The difference between the percentage of alcohol in the persons breath indicated by the two samples is less than or equal to 0.02;
(b) If the provisions of paragraph (a) do not apply, a third evidentiary test of breath is administered and the difference between the percentage of alcohol in the persons breath indicated by the third sample and one of the first two samples is less than or equal to 0.02; or
(c) If the provisions of paragraphs (a) and (b) do not apply, a fourth evidentiary test is administered. Except as otherwise provided in NRS 488.208, the fourth evidentiary test must be a blood test.
2. If the person fails to provide the second or third consecutive sample, or to submit to the fourth evidentiary test, the results of the first test may be used alone as evidence of the percentage of alcohol in the persons breath. If for some other reason a second, third or fourth sample is not obtained, the results of the first test may be used with all other evidence presented to establish the percentage.
3. If a person refuses or otherwise fails to provide a second or third consecutive sample or submit to a fourth evidentiary test, a peace officer may direct that reasonable force be used to obtain a sample or conduct a test pursuant to NRS 488.208.
κ1997 Statutes of Nevada, Page 330 (CHAPTER 144, AB 243)κ
Sec. 9. NRS 488.2055 is hereby amended to read as follows:
488.2055 As used in NRS 488.206 [and 488.207] and section 4 of this act, the phrase 0.10 percent or more by weight of alcohol in his blood includes a concentration of alcohol in the blood or breath of a person of 0.10 gram or more by weight of alcohol:
1. Per 100 milliliters of his blood; or
2. Per 210 liters of his breath.
Sec. 10. NRS 488.208 is hereby amended to read as follows:
488.208 1. Except as otherwise provided in subsections [5 and 6,] 3 and 4, a person who operates or is in actual physical control of a vessel under power or sail on the waters of this state shall be deemed to have given his consent to an evidentiary test of his blood, urine, breath or other bodily substance for the purpose of determining the alcoholic content of his blood or breath or the presence of a controlled substance when such a test is administered at the direction of a peace officer having reasonable grounds to believe that the person to be tested was operating or [exercising] in actual physical control of a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance.
2. [If a person refuses to submit to such a test as directed by a peace officer, evidence of that refusal is admissible in any criminal action to determine whether the person was operating or exercising actual physical control of a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance.
3. The person to be tested must be informed that his refusal to submit to the test is admissible pursuant to subsection 2.
4. Any person who is dead, unconscious or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn his consent, and any such test may be administered whether or not the person is informed that evidence of his refusal to submit to the test is admissible.
5.] If the person to be tested pursuant to subsection 1 is dead or unconscious, the officer shall direct that samples of blood from the person be tested.
3. Any person who is afflicted with hemophilia or with a heart condition requiring the use of an anticoagulant as determined by a physician is exempt from any blood test which may be required pursuant to this section, but [may] must, when appropriate pursuant to the provisions of this section, be required to submit to a [test of his] breath or urine [.
6. Except as otherwise provided in subsection 9, if] test.
4. If the alcoholic content of the blood or breath of the person to be tested is in issue [, he] :
(a) Except as otherwise provided in this section, the person may refuse to submit to a blood test if means are reasonably available to perform a breath test. [If the person requests]
(b) The person may request a blood test [and the] , but if means are reasonably available to perform a breath test when the blood test is requested, and [he] the person is subsequently convicted, he must pay for the cost of the [substituted] blood test, including the fees and expenses of witnesses in court.
κ1997 Statutes of Nevada, Page 331 (CHAPTER 144, AB 243)κ
the cost of the [substituted] blood test, including the fees and expenses of witnesses in court.
[7.] (c) A peace officer may direct the person to submit to a blood test as set forth in subsection 7 if the officer has reasonable grounds to believe that the person:
(1) Caused death or substantial bodily harm to another person as a result of operating or being in actual physical control of a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance; or
(2) Has been convicted within the previous 7 years of:
(I) A violation of NRS 484.379, 484.3795, subsection 2 of NRS 488.205, NRS 488.206, section 4 of this act or a law of another jurisdiction that prohibits the same or similar conduct; or
(II) Any other offense in this state or another jurisdiction in which death or substantial bodily harm to another person resulted from driving, operating or being in actual physical control of a vehicle or a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance.
5. If the presence of a controlled substance in the blood of the person is in issue, the officer may direct him to submit to a blood or urine test, or both, in addition to the breath test.
[8.] 6. Except as otherwise provided in subsections [5 and 7,] 3 and 5, a peace officer shall not direct a person to submit to a urine test.
[9. Except as otherwise provided in this subsection, a person who refuses to submit to a test required by this section must not be tested. If an officer has reasonable cause to believe that:
(a) The]
7. If a person to be tested fails to submit to a required test as directed by a peace officer pursuant to this section and the officer has reasonable grounds to believe that the person to be tested was operating or in actual physical control of a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance , [; and
(b) The person thereby caused the death or substantial bodily harm of another,] the officer may direct that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested. Not more than three such samples may be taken during the 5-hour period immediately following the time of the initial arrest. In such a circumstance, the officer is not required to provide the person with a choice of tests for determining the alcoholic content or presence of a controlled substance in his blood.
Sec. 11. NRS 488.209 is hereby amended to read as follows:
488.209 1. If a person refuses to submit to a required chemical test provided for in NRS 488.208, evidence of that refusal is admissible in any criminal action arising out of acts alleged to have been committed while the person was operating or in actual physical control of a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance.
κ1997 Statutes of Nevada, Page 332 (CHAPTER 144, AB 243)κ
2. A court may not exclude evidence of a required test or failure to submit to such a test if the peace officer or other person substantially complied with the provisions of NRS 488.208.
[2.] 3. If a person submits to [such a test,] a chemical test provided for in NRS 488.208, full information concerning that test must be made available, upon his request, to him or his attorney.
[3.] 4. Evidence of a required test is not admissible in a criminal proceeding unless it is shown by documentary or other evidence that the device for testing breath was certified, calibrated, maintained and operated as provided by the regulations of the committee on testing for intoxication adopted pursuant to NRS 484.3882, 484.3884, 484.3886 or 484.3888.
[4.] 5. If the device for testing breath has been certified by the committee on testing for intoxication to be accurate and reliable pursuant to subsection 1 of NRS 484.3882, it is presumed that, as designed and manufactured, the device is accurate and reliable for the purpose of testing a persons breath to determine the percent by weight of alcohol in the persons breath.
[5.] 6. A court shall take judicial notice of the certification by the director [of the department of motor vehicles and public safety] of a person to operate testing devices of one of the certified types. If a test to determine the amount of alcohol in a persons breath has been performed with a certified type of device by a person who is certified pursuant to NRS 484.3886 or 484.3888, it is presumed that the person operated the device properly.
[6.] 7. This section does not preclude the admission of evidence of a test of a persons breath where the:
(a) Information is obtained through the use of a device other than one of a type certified by the committee on testing for intoxication.
(b) Test has been performed by a person other than one who is certified by the director . [of the department of motor vehicles and public safety.]
Sec. 12. NRS 50.325 is hereby amended to read as follows:
50.325 1. If a person is charged with an offense punishable pursuant to chapter 453 , [or] 484 or 488 of NRS or homicide resulting from driving , operating or being in actual physical control of a vehicle or a vessel under power or sail while under the influence of intoxicating liquor, a controlled substance or a chemical, poison or organic solvent, and it is necessary to prove:
(a) The existence of any alcohol;
(b) The quantity of a controlled substance; or
(c) The existence or identity of a controlled substance, chemical, poison or organic solvent,
the prosecuting attorney may request that the affidavit or declaration of an expert or other person described in NRS 50.315 and 50.320 be admitted into evidence at the trial or preliminary hearing concerning the offense. Except as otherwise provided in NRS 50.315 and 50.320, the affidavit or declaration must be admitted into evidence.
κ1997 Statutes of Nevada, Page 333 (CHAPTER 144, AB 243)κ
2. If the request is to have the affidavit or declaration admitted into evidence at a preliminary hearing or hearing before a grand jury, the affidavit or declaration must be admitted into evidence upon submission. If the request is to have the affidavit or declaration admitted into evidence at trial, the request must be:
(a) Made at least 10 days before the date set for the trial;
(b) Sent to the defendants counsel and to the defendant, by registered or certified mail by the prosecuting attorney; and
(c) Accompanied by a copy of the affidavit or declaration and the name, address and telephone number of the affiant or declarant.
3. The provisions of this section do not prohibit either party from producing any witness to offer testimony at trial.
Sec. 13. NRS 458.260 is hereby amended to read as follows:
458.260 1. Except as otherwise provided in subsection 2, the use of alcohol, the status of drunkard and the fact of being found in an intoxicated condition are not:
(a) Public offenses and shall not be so treated in any ordinance or resolution of a county, city or town.
(b) Elements of an offense giving rise to a criminal penalty or civil sanction.
2. The provisions of subsection 1 do not apply to [the offenses enumerated in NRS 412.536, 412.538, 483.460, 483.490, 484.379, 484.3795, 484.384, 488.205, 493.130, 705.250, subsection 2 of NRS 483.560 and homicide] :
(a) The provisions of NRS 483.460, 483.490, subsection 2 of NRS 483.560 and NRS 484.384;
(b) An offense for which intoxication is an element of the offense pursuant to the provisions of a specific statute;
(c) A homicide resulting from driving , operating or being in actual physical control of a vehicle or a vessel under power or sail while under the influence of intoxicating liquor or [to similar offenses] a controlled substance; and
(d) Any offense similar to an offense set forth in paragraph (a), (b) or (c) that is set forth in [any] an ordinance or resolution of a county, city or town.
3. This section does not make intoxication an excuse or defense for any criminal act.
Sec. 14. NRS 458.270 is hereby amended to read as follows:
458.270 1. Except as otherwise provided in subsection 7, a person who is found in any public place under the influence of alcohol, in such a condition that he is unable to exercise care for his own health or safety or the health or safety of others, must be placed under civil protective custody by a peace officer.
2. A peace officer may use upon such a person that kind and degree of force which would be lawful if he were effecting an arrest for a misdemeanor with a warrant.
κ1997 Statutes of Nevada, Page 334 (CHAPTER 144, AB 243)κ
3. If a licensed facility for the treatment of persons who abuse alcohol exists in the community where the person is found, he must be delivered to the facility for observation and care. If no such facility exists in the community, the person so found may be placed in a county or city jail or detention facility for shelter or supervision for his own health and safety until he is no longer under the influence of alcohol. He may not be required against his will to remain in either a licensed facility, jail or detention facility longer than 48 hours.
4. An intoxicated person taken into custody by a peace officer for a public offense must immediately be taken to a secure detoxification unit or other appropriate medical facility if his condition appears to require emergency medical treatment. Upon release from the detoxification unit or medical facility, the person must immediately be remanded to the custody of the apprehending peace officer and the criminal proceedings proceed as prescribed by law.
5. The placement of a person found under the influence of alcohol in civil protective custody must be:
(a) Recorded at the facility, jail or detention facility to which he is delivered; and
(b) Communicated at the earliest practical time to his family or next of kin if they can be located and to the division or to a local alcohol abuse authority designated by the division.
6. Every peace officer and other public employee or agency acting pursuant to this section is performing a discretionary function or duty.
7. The provisions of this section do not apply to [any driver] a person who is apprehended or arrested for [the offense of operating a vehicle under the influence of intoxicating liquor or controlled substances, pursuant to chapter 484 of NRS.] :
(a) An offense for which intoxication is an element of the offense pursuant to the provisions of a specific statute;
(b) A homicide resulting from driving, operating or being in actual physical control of a vehicle or a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance; and
(c) Any offense similar to an offense set forth in paragraph (a) or (b) of this subsection that is set forth in an ordinance or resolution of a county, city or town.
Sec. 15. NRS 629.065 is hereby amended to read as follows:
629.065 1. Each provider of health care shall, upon request, make available to a law enforcement agent or district attorney the health care records of a patient which relate to a test of his blood, breath or urine if:
(a) The patient is suspected of driving , operating or being in actual physical control of a vehicle or a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance [;] in violation of NRS 484.379, 484.3795, subsection 2 of NRS 488.205 or NRS 488.206 or section 4 of this act; and
(b) The records would aid in the related investigation.
κ1997 Statutes of Nevada, Page 335 (CHAPTER 144, AB 243)κ
To the extent possible, the provider of health care shall limit the inspection to the portions of the records which pertain to the presence of alcohol or a controlled substance in the blood, breath or urine of the patient.
2. The records must be made available at a place within the depository convenient for physical inspection. Inspection must be permitted at all reasonable office hours and for a reasonable length of time. The provider of health care shall also furnish a copy of the records to the law enforcement agent or district attorney who requests it and pays the costs of reproducing the copy.
3. Records made available pursuant to this section may be presented as evidence during a related criminal proceeding against the patient.
4. A provider of health care, his agents and employees are immune from any civil action for any disclosures made in accordance with the provisions of this section or any consequential damages.
Sec. 16. NRS 488.207 is hereby repealed.
Sec. 17. The amendatory provisions of this act do not apply to offenses that are committed before October 1, 1997.
Sec. 18. The provisions of subsection 1 of NRS 354.599 do not apply to any additional expenses of a local government that are related to the provisions of this act.
________
Assembly Bill No. 292Assemblymen Ohrenschall, de Braga, Buckley, Koivisto, Manendo, Anderson, Herrera, Segerblom, Perkins, Sandoval, Berman, Amodei, Marvel, Humke, Gustavson, Von Tobel, Goldwater, Arberry, Freeman, Bache, Lambert, Parks, Cegavske, Braunlin, Lee, Collins, Mortenson, Chowning, Williams, Neighbors, Tiffany, Hickey, Evans, Krenzer, Nolan, Price, Dini and Giunchigliani
CHAPTER 145
AN ACT relating to the estates of decedents; setting a limit for their closing; providing exceptions; and providing other matters properly relating thereto.
[Approved June 12, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 143 of NRS is hereby amended by adding thereto a new section to read as follows:
1. Except as otherwise provided in this section, an executor or administrator shall close an estate within 18 months after his appointment.
2. If a claim against the estate is in litigation or in summary determination pursuant to subsection 4 of NRS 145.060 or subsection 2 of NRS 147.130 or the amount of federal estate tax has not been determined, the court, upon petition of a devisee, legatee, creditor or heir, shall order that:
κ1997 Statutes of Nevada, Page 336 (CHAPTER 145, AB 292)κ
(a) A certain amount of money, or certain other assets, be retained by the executor or administrator to:
(1) Satisfy the claim or tax, and
(2) Pay any fees or costs related to the claim or tax, including, but not limited to, fees for appraisals, attorneys fees and court costs; and
(b) The remainder of the estate be distributed.
3. If a contest of the will or a proceeding to determine heirship is pending, the court which appointed the executor or administrator:
(a) Shall order that a certain amount of money, or certain other assets, be retained and the remainder of the estate distributed; or
(b) May, for good cause shown, order that the entire distributable estate be retained pending disposition of the contest or proceeding.
Sec. 2. NRS 143.035 is hereby amended to read as follows:
143.035 1. [The] An executor or administrator shall use reasonable diligence in performing his duties and in pursuing the administration of the estate.
2. [Every] An executor or administrator in charge of an estate that has not been closed shall:
(a) Within 6 months after his appointment, where no federal estate tax return is required to be filed for the estate; or
(b) Within [18] 15 months after his appointment, where a federal estate tax return is required to be filed for the estate,
file with the district court a report explaining why the estate has not been closed.
3. Upon receiving the report, the court clerk shall set a time and place for a hearing of the report, not later than 30 days nor sooner than 15 days after receiving it. At least 10 days before the hearing, the executor or administrator shall send a copy of the report and shall give notice of the hearing, by registered or certified mail, to [each] :
(a) Each person whose interest is affected as an heir, devisee or legatee [.] ; and
(b) The welfare division of the department of human resources, if the welfare division has filed a claim against the estate.
4. At the hearing, the court shall determine whether or not the executor or administrator has used reasonable diligence in his administration and if he has not, the court may:
(a) Subject to the provisions of section 1 of this act:
(1) Prescribe the time within which the estate [shall] must be closed;
[(b)] or
(2) Allow the executor or administrator additional time for closing and order a subsequent report; or
[(c) Suspend or revoke]
(b) Revoke the letters of the executor or administrator [.] , appoint a successor and prescribe a reasonable time within which the successor shall close the estate.
Sec. 3. This act applies to executors and administrators appointed before October 1, 1997, but section 1 of this act does not require the closing of an estate before January 1, 1998.
________
κ1997 Statutes of Nevada, Page 337κ
Assembly Bill No. 463Committee on Ways and Means
CHAPTER 146
AN ACT making an appropriation to the legislative fund; and providing other matters properly relating thereto.
[Approved June 12, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. There is hereby appropriated from the state general fund to the legislative fund created pursuant to NRS 218.085 the sum of $4,000,000.
Sec. 2. This act becomes effective upon passage and approval.
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Senate Bill No. 23Committee on Finance
CHAPTER 147
AN ACT making an appropriation to the account for the governors portrait; and providing other matters properly relating thereto.
[Approved June 12, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. There is hereby appropriated from the state general fund to the account for the governors portrait created pursuant to NRS 223.121 the sum of $10,000 for the preparation and framing of a portrait of Governor Bob Miller.
Sec. 2. This act becomes effective upon passage and approval or on June 30, 1997, whichever occurs earlier.
________
Senate Bill No. 70Committee on Finance
CHAPTER 148
AN ACT making an appropriation to the Legislative Counsel Bureau for the reproduction of older Nevada Reports; and providing other matters properly relating thereto.
[Approved June 12, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. There is hereby appropriated from the state general fund to the Legislative Counsel Bureau the sum of $60,000 for the cost of reproducing volumes of Nevada Reports that are out of print or of limited supply, pursuant to NRS 345.025.
κ1997 Statutes of Nevada, Page 338 (CHAPTER 148, SB 70)κ
reproducing volumes of Nevada Reports that are out of print or of limited supply, pursuant to NRS 345.025.
Sec. 2. Any remaining balance of the appropriation made by section 1 of this act must not be committed for expenditure after June 30, 1999, and reverts to the state general fund as soon as all payments of money committed have been made.
Sec. 3. This act becomes effective upon passage and approval or on June 30, 1997, whichever occurs earlier.
________
Senate Bill No. 71Committee on Finance
CHAPTER 149
AN ACT making an appropriation to the Budget Division of the Department of Administration for reimbursement of the Legal Division of the Legislative Counsel Bureau for the expenses involved in preparing bill drafts requested by agencies of the executive branch; and providing other matters properly relating thereto.
[Approved June 12, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. There is hereby appropriated from the state general fund to the Budget Division of the Department of Administration for reimbursement of the Legal Division of the Legislative Counsel Bureau the sum of $150,000 for the expenses involved in preparing legislation requested by agencies of the executive branch.
Sec. 2. Any remaining balance of the appropriation made by section 1 of this act must not be committed for expenditure after June 30, 1999, and reverts to the state general fund as soon as all payments of money committed have been made.
Sec. 3. This act becomes effective upon passage and approval or on June 30, 1997, whichever occurs earlier.
________
κ1997 Statutes of Nevada, Page 339κ
Senate Bill No. 118Committee on Judiciary
CHAPTER 150
AN ACT relating to crimes; making various changes to the provisions governing certain crimes against property; changing the penalties for certain crimes against property; and providing other matters properly relating thereto.
[Approved June 12, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 205 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 10, inclusive, of this act.
Sec. 2. As used in sections 2 to 10, inclusive, of this act and NRS 205.220 to 205.2707, inclusive, unless the context otherwise requires, the words and terms defined in sections 3 to 6, inclusive, of this act have the meanings ascribed to them in those sections.
Sec. 3. Domesticated animals means all domesticated animals other than livestock.
Sec. 4. Domesticated birds means all poultry and domesticated fowl or birds.
Sec. 5. Livestock means:
1. All cattle or animals of the bovine species;
2. All horses, mules, burros and asses or animals of the equine species;
3. All swine or animals of the porcine species;
4. All goats or animals of the caprine species; and
5. All sheep or animals of the ovine species.
Sec. 6. Property includes, but is not limited to:
1. Personal goods, personal property and motor vehicles;
2. Money, negotiable instruments and other items listed in NRS 205.260;
3. Livestock, domesticated animals and domesticated birds; and
4. Any other item of value, whether or not the item is listed in sections 2 to 10, inclusive, of this act and NRS 205.220 to 205.2707, inclusive.
Sec. 7. 1. Unless a greater penalty is imposed by a specific statute, a person who commits grand larceny in violation of NRS 205.220 shall be punished pursuant to the provisions of this section.
2. If the value of the property involved in the grand larceny is less than $2,500, the person who committed the grand larceny is guilty of a category C felony and shall be punished as provided in NRS 193.130.
3. If the value of the property involved in the grand larceny is $2,500 or more, the person who committed the grand larceny is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, and by a fine of not more than $10,000.
4. In addition to any other penalty, the court shall order the person who committed the grand larceny to pay restitution.
5. If the grand larceny involved a sale in violation of subsection 3 or 4 of NRS 205.220, all proceeds from the sale are subject to forfeiture.
κ1997 Statutes of Nevada, Page 340 (CHAPTER 150, SB 118)κ
Sec. 8. 1. A person who intentionally steals, takes and carries away a firearm owned by another person commits grand larceny of a firearm.
2. A person who commits grand larceny of a firearm is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, and by a fine of not more than $10,000.
3. In addition to any other penalty, the court shall order the person who committed the grand larceny of the firearm to pay restitution.
Sec. 9. 1. A person who intentionally steals, takes and carries away, drives away or otherwise removes a motor vehicle owned by another person commits grand larceny of a motor vehicle.
2. Except as otherwise provided in subsection 3, a person who commits grand larceny of a motor vehicle is guilty of a category C felony and shall be punished as provided in NRS 193.130.
3. If the prosecuting attorney proves that the value of the motor vehicle involved in the grand larceny is $2,500 or more, the person who committed the grand larceny of the motor vehicle is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, and by a fine of not more than $10,000.
4. In addition to any other penalty, the court shall order the person who committed the grand larceny of the motor vehicle to pay restitution.
Sec. 10. For the purposes of sections 2 to 10, inclusive, of this act and NRS 205.220 to 205.2707, inclusive:
1. The value of property involved in a larceny offense shall be deemed to be the highest value attributable to the property by any reasonable standard.
2. The value of property involved in larceny offenses committed by one or more persons pursuant to a scheme or continuing course of conduct may be aggregated in determining the grade of the larceny offenses.
Sec. 11. NRS 205.0835 is hereby amended to read as follows:
205.0835 1. Unless a greater penalty is imposed by a specific statute, [for the] a person who commits theft in violation of any provision of NRS 205.0821 to 205.0835, inclusive, [if the value of the property or services obtained was:
1. Greater than or equal to $250, the person who committed the theft is guilty of a category C felony and shall be punished as provided in NRS 193.130. In addition to any other penalty, the court shall order the person to pay restitution.
2. Less than $250, the person who committed the theft shall be punished by imprisonment in the county jail for not more than 6 months, or by a fine of not more than $1,000, or by both fine and imprisonment.] shall be punished pursuant to the provisions of this section.
2. If the value of the property or services involved in the theft is less than $250, the person who committed the theft is guilty of a misdemeanor.
3. If the value of the property or services involved in the theft is $250 or more but less than $2,500, the person who committed the theft is guilty of a category C felony and shall be punished as provided in NRS 193.130.
κ1997 Statutes of Nevada, Page 341 (CHAPTER 150, SB 118)κ
4. If the value of the property or services involved in the theft is $2,500 or more, the person who committed the theft is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, and by a fine of not more than $10,000.
5. In addition to any other penalty, the court shall order the person who committed the theft to pay restitution.
Sec. 12. NRS 205.220 is hereby amended to read as follows:
205.220 Except as otherwise provided in [NRS 205.225 and 205.237,] sections 8 and 9 of this act, a person [who feloniously] commits grand larceny if the person:
1. Intentionally steals, takes and carries away, leads away or drives away [the personal] :
(a) Personal goods or property [of another of the] , with a value of $250 or more, [or the motor vehicle or firearm of another regardless of its value, is guilty of grand larceny which is a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years and by a fine of not more than $10,000. In addition to any other penalty, the court shall order the person to pay restitution.] owned by another person;
(b) Bedding, furniture or other property, with a value of $250 or more, which the person, as a lodger, is to use in or with his lodging and which is owned by another person; or
(c) Real property, with a value of $250 or more, that the person has converted into personal property by severing it from real property owned by another person.
2. Uses a card or other device for automatically withdrawing or transferring money in a financial institution to obtain intentionally money to which he knows he is not entitled.
3. Intentionally steals, takes and carries away, leads away, drives away or entices away:
(a) One or more head of livestock owned by another person; or
(b) One or more domesticated animals or domesticated birds, with an aggregate value of $250 or more, owned by another person.
4. With the intent to defraud, steal, appropriate or prevent identification:
(a) Marks or brands, causes to be marked or branded, alters or defaces a mark or brand, or causes to be altered or defaced a mark or brand upon one or more head of livestock owned by another person;
(b) Sells or purchases the hide or carcass of one or more head of livestock owned by another person that has had a mark or brand cut out or obliterated;
(c) Kills one or more head of livestock owned by another person but running at large, whether or not the livestock is marked or branded; or
(d) Kills one or more domesticated animals or domesticated birds, with an aggregate value of $250 or more, owned by another person but running at large, whether or not the animals or birds are marked or branded.
κ1997 Statutes of Nevada, Page 342 (CHAPTER 150, SB 118)κ
Sec. 13. NRS 205.230 is hereby amended to read as follows:
205.230 1. All state, county, city and township peace and law enforcement [officials, including sheriffs, their deputies, constables, their deputies and game wardens,] officers are empowered and directed to pursue, apprehend and arrest whenever or wherever, irrespective of county boundaries within the state, [any person who shall feloniously steal, take and carry, lead, drive or entice away any horse, mare, gelding, colt, cow, bull, steer, calf, mule, jack, jenny or any one or more head of cattle or horses, or any sheep, goat, hog, poultry, shoat or pig not his own property but the property of another.] a person who commits grand larceny in violation of subsection 3 or 4 of NRS 205.220.
2. Upon apprehension and arrest of [any person in violation of NRS 205.225,] a person pursuant to subsection 1, the arresting officer [or officers shall forthwith] shall take the person before the nearest or most accessible magistrate without unnecessary delay . [, to be there dealt with according to law.]
Sec. 14. NRS 205.240 is hereby amended to read as follows:
205.240 1. Except as otherwise provided in NRS 205.220 and 475.105 and sections 8 and 9 of this act, a person [who:
1. Steals, takes and carries, leads or drives away the personal goods or property of another, under the value of $250; or
2. Steals, takes and carries, leads, drives or entices away one or more domestic animals or poultry having an aggregate value under $250, except those described in subparagraph (1) of paragraph (a) of subsection 1 of NRS 205.225,] commits petit larceny [and is guilty of a misdemeanor.] if the person:
(a) Intentionally steals, takes and carries away, leads away or drives away:
(1) Personal goods or property, with a value of less than $250, owned by another person;
(2) Bedding, furniture or other property, with a value of less than $250, which the person, as a lodger, is to use in or with his lodging and which is owned by another person; or
(3) Real property, with a value of less than $250, that the person has converted into personal property by severing it from real property owned by another person.
(b) Intentionally steals, takes and carries away, leads away, drives away or entices away one or more domesticated animals or domesticated birds, with an aggregate value of less than $250, owned by another person.
2. A person who commits petit larceny is guilty of a misdemeanor. In addition to any other penalty, the court shall order the person to pay restitution.
3. Except as otherwise provided in subsection 4, if a person is convicted of petit larceny and within the 3 years immediately preceding and including the date of that conviction, the person is or has been convicted of petit larceny two other times, the court, in addition to any other penalty:
(a) Shall sentence the person to a term of imprisonment of not less than 60 days nor more than 6 months; and
κ1997 Statutes of Nevada, Page 343 (CHAPTER 150, SB 118)κ
(b) Shall not grant probation or suspend the sentence unless the court orders as a condition of probation or suspension of sentence that the person serve a term of imprisonment of not less than 60 days.
4. If a person is convicted of petit larceny and within the 3 years immediately preceding and including the date of that conviction, the person is or has been convicted of petit larceny three or more other times, the court, in addition to any other penalty:
(a) Shall sentence the person to a term of imprisonment of not less than 60 days nor more than 6 months;
(b) Shall not grant probation or suspend the sentence unless the court orders as a condition of probation or suspension of sentence that the person serve a term of imprisonment of not less than 60 days; and
(c) Shall impose a fine of at least $500.
5. The provisions of subsections 3 and 4 do not affect the provisions of any other statute providing for a more severe penalty for a first or subsequent conviction of petit larceny.
Sec. 15. NRS 205.270 is hereby amended to read as follows:
205.270 1. A person who, under circumstances not amounting to robbery, with the intent to steal or appropriate to his own use, takes property from the person of another, without his consent, [any money, property or thing of value,] is guilty of :
(a) If the value of the property taken is less than $2,500, a category C felony and shall be punished as provided in NRS 193.130 [.] ; or
(b) If the value of the property taken is $2,500 or more, a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, and by a fine of not more than $10,000.
2. In addition to any other penalty, the court shall order the person to pay restitution.
[2.] 3. The court shall not grant probation to or suspend the sentence of any person convicted of violating subsection 1 if the person from whom the [money or] property was taken has any infirmity caused by age or other physical condition.
Sec. 16. NRS 205.2707 is hereby amended to read as follows:
205.2707 1. A person who [feloniously] intentionally steals, takes and carries away [money, goods or] property of the value of $250 or more from vending machines within a period of 1 week is guilty of :
(a) If the value of the property taken is less than $2,500, a category [D] C felony and shall be punished as provided in NRS 193.130 [.] ; or
(b) If the value of the property taken is $2,500 or more, a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, and by a fine of not more than $10,000.
2. In addition to any other penalty, the court shall order the person to pay restitution.
[2.] 3. In determining [whether] the value of the [money, property or goods taken is of the value of $250 or more,] property taken, the cost of repairing damaged vending machines and replacing any machine, if necessary, must be added to the value of the [money, goods or] property.
κ1997 Statutes of Nevada, Page 344 (CHAPTER 150, SB 118)κ
Sec. 17. NRS 205.273 is hereby amended to read as follows:
205.273 1. A person [who, with] commits an offense involving a stolen vehicle if the person:
(a) With the intent to procure or pass title to a motor vehicle which he knows or has reason to believe has been stolen, receives or transfers possession of the vehicle from or to another [, or who has] person; or
(b) Has in his possession [any] a motor vehicle which he knows or has reason to believe has been stolen . [, and who is not]
2. The provisions of subsection 1 do not apply to an officer of the law [engaged at the time] if the officer is engaged in the performance of his duty as an officer [,] at the time of the receipt, transfer or possession of the stolen vehicle.
3. Except as otherwise provided in subsection 4, a person who violates the provisions of subsection 1 is guilty of a category C felony and shall be punished as provided in NRS 193.130.
4. If the prosecuting attorney proves that the value of the vehicle involved is $2,500 or more, the person who violated the provisions of subsection 1 is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, and by a fine of not more than $10,000.
5. In addition to any other penalty, the court shall order the person to pay restitution.
6. For the purposes of this section, the value of a vehicle shall be deemed to be the highest value attributable to the vehicle by any reasonable standard.
Sec. 18. NRS 205.275 is hereby amended to read as follows:
205.275 1. A person [who,] commits an offense involving stolen property if the person, for his own gain [,] or to prevent the owner from again possessing his property, buys, receives, possesses or withholds [stolen goods, or anything the stealing of which is declared to be larceny, or property obtained by robbery, burglary or embezzlement:] property:
(a) Knowing that [the goods or property were so obtained; or] it is stolen property; or
(b) Under such circumstances as should have caused a reasonable man to know that [the goods or property were so obtained,
is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, or by a fine of not more than $10,000, or by both fine and imprisonment. Every such person may be tried, convicted and punished as well before as after the trial of the principal.] it is stolen property.
2. A person who commits an offense involving stolen property in violation of subsection 1:
(a) If the value of the property is less than $250, is guilty of a misdemeanor;
(b) If the value of the property is $250 or more but less than $2,500, is guilty of a category C felony and shall be punished as provided in NRS 193.130; or
κ1997 Statutes of Nevada, Page 345 (CHAPTER 150, SB 118)κ
(c) If the value of the property is more than $2,500 or if the property is a firearm, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, and by a fine of not more than $10,000.
3. In addition to any other penalty, the court shall order the person to pay restitution.
[2.] 4. A person may be prosecuted and convicted pursuant to this section whether or not the principal is or has been prosecuted or convicted.
5. Possession by any person of three or more items of the same or a similar class or type of personal property on which a permanently affixed manufacturers serial number or manufacturers identification number has been removed, altered or defaced, is prima facie evidence that the person has violated this section.
[3. Except as otherwise provided in subsection 4, a person convicted of the offense specified in this section must not be condemned to imprisonment in the state prison, unless the thing bought, received, possessed or withheld has a value of $250 or more, but the person shall be punished as provided in cases of petit larceny.
4. If the thing bought, received, possessed or withheld is a firearm, regardless of its value, the person convicted of the offense specified in this section is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, and by a fine of not more than $10,000.]
6. For the purposes of this section, the value of the property involved shall be deemed to be the highest value attributable to the property by any reasonable standard.
7. As used in this section, stolen property means property that has been taken from its owner by larceny, robbery, burglary, embezzlement, theft or any other offense that is a crime against property, whether or not the person who committed the taking is or has been prosecuted or convicted for the offense.
Sec. 19. NRS 205.940 is hereby amended to read as follows:
205.940 1. Any person who in renting or leasing any personal property obtains or retains possession of such personal property by means of any false or fraudulent representation, fraudulent concealment, false pretense or personation, trick, artifice or device, including, but not limited to, a false representation as to his name, residence, employment or operators license, is guilty of larceny [according to the value of such property. It shall be] and shall be punished as provided in sections 2 to 10, inclusive, of this act and NRS 205.220 to 205.2707, inclusive. It is a complete defense to any civil action arising out of or involving the arrest or detention of any person renting or leasing personal property that any representation made by him in obtaining or retaining possession of the personal property is contrary to the fact.
2. Any person who, after renting or leasing any personal property under an agreement in writing which provides for the return of the personal property to a particular place at a particular time fails to return the personal property to such place within the time specified, and who, with the intent to defraud the lessor or to retain possession of such property without the lessors permission, thereafter fails to return such property to any place of business of the lessor within 72 hours after a written demand for the return of such property is made upon him by registered mail addressed to his address as shown in the written agreement, or in the absence of such address, to his last known place of residence, is guilty of larceny [according to the value of such property.]
κ1997 Statutes of Nevada, Page 346 (CHAPTER 150, SB 118)κ
property to such place within the time specified, and who, with the intent to defraud the lessor or to retain possession of such property without the lessors permission, thereafter fails to return such property to any place of business of the lessor within 72 hours after a written demand for the return of such property is made upon him by registered mail addressed to his address as shown in the written agreement, or in the absence of such address, to his last known place of residence, is guilty of larceny [according to the value of such property.] and shall be punished as provided in sections 2 to 10, inclusive, of this act and NRS 205.220 to 205.2707, inclusive. The failure to return the personal property to the place specified in the agreement [shall be] is prima facie evidence of an intent to defraud the lessor or to retain possession of such property without the lessors permission. It [shall be] is a complete defense to any civil action arising out of or involving the arrest or detention of any person upon whom such demand was made that he failed to return the personal property to any place of business of the lessor within 20 days after such demand.
Sec. 20. NRS 41.0334 is hereby amended to read as follows:
41.0334 1. Except as otherwise provided in subsection 2, no action may be brought under NRS 41.031 or against an officer or employee of the state or any of its agencies or political subdivisions for injury, wrongful death or other damage sustained in or on a public building or public vehicle by a person who was engaged in any criminal act proscribed in NRS 202.810, 205.005 to 205.080, inclusive, 205.220, [205.225, 205.235, 205.240, 205.245,] 205.240, 205.271 to 205.2741, inclusive, 206.310, 206.330, 207.210, 331.200 or 393.410, or section 8 or 9 of this act, at the time the injury, wrongful death or damage was caused.
2. Subsection 1 does not apply to any action for injury, wrongful death or other damage:
(a) Intentionally caused or contributed to by an officer or employee of the state or any of its agencies or political subdivisions; or
(b) Resulting from the deprivation of any rights, privileges or immunities secured by the United States Constitution or the constitution of the State of Nevada.
3. As used in this section:
(a) Public building includes every house, shed, tent or booth, whether or not completed, suitable for affording shelter for any human being or as a place where any property is or will be kept for use, sale or deposit, and the grounds appurtenant thereto; and
(b) Public vehicle includes every device in, upon or by which any person or property is or may be transported or drawn upon a public highway, waterway or airway,
owned, in whole or in part, possessed, used by or leased to the state or any of its agencies or political subdivisions.
Sec. 21. NRS 41.580 is hereby amended to read as follows:
41.580 [Whenever any owners] If property has been taken from its owner by larceny, robbery, burglary [or embezzlement and thereafter another person, for his own gain or to prevent the owner from again possessing his property, has bought, received, possessed or withheld] , embezzlement, theft or any other offense that is a crime against property and another person buys, receives, possesses or withholds the property under circumstances that make such conduct a violation of subsection 1 of NRS 205.275, the owner of the property may bring a civil action against the [other] person who bought, received, possessed or withheld the property and may recover treble the amount of any damage the owner has [thereby] suffered, together with his costs in the action and a reasonable attorneys fee.
κ1997 Statutes of Nevada, Page 347 (CHAPTER 150, SB 118)κ
and another person buys, receives, possesses or withholds the property under circumstances that make such conduct a violation of subsection 1 of NRS 205.275, the owner of the property may bring a civil action against the [other] person who bought, received, possessed or withheld the property and may recover treble the amount of any damage the owner has [thereby] suffered, together with his costs in the action and a reasonable attorneys fee.
Sec. 22. NRS 475.105 is hereby amended to read as follows:
475.105 A person who steals a device intended for use in preventing, controlling, extinguishing or giving warning of a fire:
1. If the device has a value of less than $250, is guilty of a gross misdemeanor.
2. If the device has a value of $250 or more, is guilty of grand larceny [which is a category D felony] and shall be punished as provided in [NRS 193.130.] section 7 of this act.
Sec. 23. NRS 569.100 is hereby amended to read as follows:
569.100 1. A person who takes up an estray as provided for in NRS 569.040 to 569.130, inclusive, is entitled to hold the estray lawfully until relieved of custody by the division.
2. A person shall not use or cause to be used, for profit or otherwise, any estray in his keeping under the provisions of NRS 569.040 to 569.130, inclusive. A violation of this subsection shall be deemed grand larceny or petit larceny, [according to the value of the estray.] as set forth in sections 2 to 10, inclusive, of this act and NRS 205.220 to 205.2707, inclusive, and the person shall be punished as provided in those sections.
3. Any person taking, leading or driving an estray away from the possession of the lawful holder, as specified in NRS 569.040 to 569.130, inclusive, except as herein provided for, is subject to all the penalties under the law, whether he is the claimant of the estray or not.
Sec. 24. NRS 205.225, 205.235, 205.237, 205.245 and 205.255 are hereby repealed.
Sec. 25. The provisions of subsection 1 of NRS 354.599 do not apply to any additional expenses of a local government that are related to the provisions of this act.
Sec. 26. The amendatory provisions of this act do not apply to offenses committed before October 1, 1997.
________
κ1997 Statutes of Nevada, Page 348κ
Senate Bill No. 175Committee on Finance
CHAPTER 151
AN ACT making an appropriation to restore the balance in the emergency account; and providing other matters properly relating thereto.
[Approved June 12, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. There is hereby appropriated from the state general fund to the emergency account, created by NRS 353.263, the sum of $28,412 to restore the balance in the account to approximately $400,000.
Sec. 2. This act becomes effective upon passage and approval or on June 30, 1997, whichever occurs earlier.
________
Senate Bill No. 198Committee on Taxation
CHAPTER 152
AN ACT relating to taxation; exempting aviation fuel and leaded racing fuel from the tax on motor vehicle fuel that certain counties may impose; and providing other matters properly relating thereto.
[Approved June 12, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 373.030 is hereby amended to read as follows:
373.030 1. In any county for all or part of which a streets and highways plan has been adopted as a part of the master plan by the county or regional planning commission pursuant to NRS 278.150, the board may by ordinance:
(a) Create a regional transportation commission; and
(b) Impose a tax on motor vehicle fuel , except aviation fuel and leaded racing fuel, sold in the county in an amount not to exceed 9 cents per gallon.
2. A tax imposed pursuant to this section is in addition to other motor vehicle fuel taxes imposed pursuant to the provisions of chapter 365 of NRS.
3. As used in this section:
(a) Aviation fuel has the meaning ascribed to it in NRS 365.015.
(b) Leaded racing fuel means motor vehicle fuel that contains lead and is produced for motor vehicles that are designed and built for racing and not for operation on a public highway.
Sec. 2. NRS 373.150 is hereby amended to read as follows:
373.150 1. [Except as otherwise provided in subsection 3, any] Any city or town whose territory is not included wholly or in part in a regional plan for transportation established pursuant to NRS 373.1161 may receive a distribution in aid of an approved construction project from the regional street and highway fund, which [shall] must not exceed the amount allocated to such city or town [under] pursuant to subsection 2.
κ1997 Statutes of Nevada, Page 349 (CHAPTER 152, SB 198)κ
plan for transportation established pursuant to NRS 373.1161 may receive a distribution in aid of an approved construction project from the regional street and highway fund, which [shall] must not exceed the amount allocated to such city or town [under] pursuant to subsection 2.
2. The share of revenue from the county motor vehicle fuel tax allocated to [each such] a city or town pursuant to subsection 1 must be in the proportion which its total assessed valuation bears to the total assessed valuation of the entire county. Any amount so allocated which is not distributed currently in aid of an approved project must remain in the fund to the credit of that city or town.
[3. The unrefunded balance of the tax collected under this chapter which is subject to refund by reason of the use of such taxed fuel as aviation fuel, must be allocated to the local governments which own or control any airports, landing areas and air navigation facilities within the county in the manner and for the purposes described in NRS 494.046.]
Sec. 3. This act becomes effective on July 1, 1997.
________
Senate Bill No. 212Senator Schneider
CHAPTER 153
AN ACT relating to sales of residential property; making various changes to provisions governing the disclosures required upon the sale of such property; and providing other matters properly relating thereto.
[Approved June 12, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 113.130 is hereby amended to read as follows:
113.130 1. Except as otherwise provided in subsections 2 and 3:
(a) At least 10 days before residential property is conveyed to a purchaser:
(1) The seller shall complete a disclosure form regarding the residential property; and
(2) The seller or his agent shall serve the purchaser or his agent with the completed disclosure form.
(b) If, after service of the completed disclosure form but before conveyance of the property to the purchaser, a seller or his agent discovers a new defect in the residential property that was not identified on the completed disclosure form or discovers that a defect identified on the completed disclosure form has become worse than was indicated on the form, the seller or his agent shall inform the purchaser or his agent of that fact, in writing, as soon as practicable after the discovery of that fact but in no event later than the conveyance of the property to the purchaser. If the seller does not agree to repair or replace the defect, the purchaser may:
(1) Rescind the agreement to purchase the property; or
(2) Close escrow and accept the property with the defect as revealed by the seller or his agent without further recourse.
κ1997 Statutes of Nevada, Page 350 (CHAPTER 153, SB 212)κ
2. Subsection 1 does not apply to a sale or intended sale of residential property:
(a) By a government or governmental agency.
(b) Pursuant to a court order or by foreclosure or deed in lieu of foreclosure.
(c) Between any co-owners of the property, spouses or persons related within the third degree of consanguinity.
(d) Which is the first sale of a residence that was constructed by a licensed contractor and not occupied by the purchaser for more than 120 days.
(e) By any bank, thrift company, credit union, trust company, savings and loan association or mortgage or farm loan association, licensed as such under the laws of this state or of the United States, if it has acquired the property for development, for the convenient transaction of its business, or as a result of foreclosure of the property encumbered in good faith as security for a loan or other obligation it has originated or holds.
(f) By a person who takes temporary possession or control of or title to the property solely to facilitate the sale of the property on behalf of a person who relocates to another county, state or country before title to the property is transferred to a purchaser.
3. A purchaser of residential property may waive any of the requirements of subsection 1. Any such waiver is effective only if it is made in a written document that is signed by the purchaser and notarized.
Sec. 2. NRS 113.150 is hereby amended to read as follows:
113.150 1. If a seller or his agent fails to serve a completed disclosure form in accordance with the requirements of NRS 113.130, the purchaser may, at any time before the conveyance of the property to the purchaser, rescind the agreement to purchase the property without any penalties.
2. If, before the conveyance of the property to the purchaser, a seller or his agent informs the purchaser or his agent, through the disclosure form or another written notice, of a defect in the property [that was not identified] of which the cost of repair or replacement was not limited by provisions in the agreement to purchase the property, the purchaser may:
(a) Rescind the agreement to purchase the property at any time before the conveyance of the property to the purchaser; or
(b) [Recover from the seller the actual amount necessary to repair or replace the defective part of the property.] Close escrow and accept the property with the defect as revealed by the seller or his agent without further recourse.
3. Rescission of an agreement pursuant to subsection 2 is effective only if made in writing, notarized and served not later than 4 working days after the date on which the purchaser is informed of the defect:
(a) On the holder of any escrow opened for the conveyance; or
(b) If an escrow has not been opened for the conveyance, on the seller or his agent.
4. Except as otherwise provided in subsection 5, if a seller conveys residential property to a purchaser without complying with the requirements of NRS 113.130 or otherwise providing the purchaser or his agent with written notice of all defects in the property of which the seller is aware, and there is a defect in the property of which the seller was aware before the property was conveyed to the purchaser and of which the cost of repair or replacement was not [identified] limited by provisions in the agreement to purchase the property, the purchaser is entitled to recover from the seller treble the amount necessary to repair or replace the defective part of the property, together with court costs and reasonable attorneys fees.
κ1997 Statutes of Nevada, Page 351 (CHAPTER 153, SB 212)κ
there is a defect in the property of which the seller was aware before the property was conveyed to the purchaser and of which the cost of repair or replacement was not [identified] limited by provisions in the agreement to purchase the property, the purchaser is entitled to recover from the seller treble the amount necessary to repair or replace the defective part of the property, together with court costs and reasonable attorneys fees. An action to enforce the provisions of this subsection must be commenced not later than 1 year after the purchaser discovers or reasonably should have discovered the defect or 2 years after the conveyance of the property to the purchaser, whichever occurs later.
5. A purchaser may not recover damages from a seller pursuant to subsection 4 on the basis of an error or omission in the disclosure form that was caused by the sellers reliance upon information provided to the seller by:
(a) An officer or employee of this state or any political subdivision of this state in the ordinary course of his duties; or
(b) A contractor, engineer, land surveyor or pesticide applicator, who was authorized to practice that profession in this state at the time the information was provided.
6. A purchaser of residential property may waive any of his rights under this section. Any such waiver is effective only if it is made in a written document that is signed by the purchaser and notarized.
________
Senate Bill No. 216Committee on Finance
CHAPTER 154
AN ACT relating to the public employees retirement system; increasing the additional annual percentage of allowances and benefits to which certain retired employees of the system may be entitled; increasing the rate of contribution to the system; and providing other matters properly relating thereto.
[Approved June 12, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 286.5756 is hereby amended to read as follows:
286.5756 1. A person is entitled to the increase provided in this section if he began receiving an allowance or benefit:
(a) Before September 1, 1983, and has received the allowance or benefit for at least 6 continuous months in the 12 months preceding the effective date of the increase; or
(b) At least 3 years before the increase.
2. Except as otherwise provided in subsection 3, allowances or benefits increase once each year on the first day of the month immediately following the anniversary of the date the person began receiving the allowance or benefit, by the lesser of:
κ1997 Statutes of Nevada, Page 352 (CHAPTER 154, SB 216)κ
(a) Two percent following the [third] 3rd anniversary of the commencement of benefits, 3 percent following the [sixth] 6th anniversary of the commencement of benefits , [and] 3.5 percent following the [ninth] 9th anniversary of the commencement of benefits [; or] , 4 percent following the 12th anniversary of the commencement of benefits and 5 percent following the 14th anniversary of the commencement of benefits; or
(b) The average percentage of increase in the Consumer Price Index (All Items) for the 3 preceding years, unless a different index is substituted by the board.
3. In any event, the allowance or benefit of a member must be increased by the percentages set forth in paragraph (a) of subsection 2 if the allowance or benefit of a member has not increased at a rate greater than or equal to the average of the Consumer Price Index (All Items), unless a different index is substituted by the board, for the period between the date of his retirement and the date specified in subsection 2.
4. The board may use a different index for the calculation made pursuant to paragraph (b) of subsection 2 if:
(a) The substituted index is compiled and published by the United States Department of Labor; and
(b) The board determines that the substituted index represents a more accurate measurement of the cost of living for retired employees.
5. The base from which the increase provided by this section must be calculated is the allowance or benefit in effect on the day before the increase becomes effective.
Sec. 2. 1. Notwithstanding any other law to the contrary, for the fiscal years 1997-98 and 1998-99, the rate of contribution for:
(a) Employees, other than police officers and firemen, whose contributions to the public employees retirement system are paid pursuant to:
(1) NRS 286.410 is 10 percent for both the contribution paid by the employer and the contribution paid by the employee.
(2) NRS 286.421 is 18.75 percent for the total contribution paid by the employer.
(b) Police officers and firemen whose contributions to the public employees retirement system are paid pursuant to:
(1) NRS 286.410 is 14.75 percent for both the contribution paid by the employer and the contribution paid by the employee.
(2) NRS 286.421 is 28.50 percent for the total contribution paid by the employer.
2. The public employees retirement board shall, in determining the rates of contribution actuarially computed to be sufficient to pay for the allowances and benefits provided pursuant to chapter 286 of NRS, including the benefits provided by this act, apply rates of retirement at all ages of eligibility rather than assuming a single average age of retirement.
3. The legislature hereby finds and declares that:
(a) The change required pursuant to subsection 2 in the method of determining actuarially the required rates of contribution was recommended by the independent review of the biennial actuarial valuation of the public
κ1997 Statutes of Nevada, Page 353 (CHAPTER 154, SB 216)κ
employees retirement system that was made pursuant to chapter 641, Statutes of Nevada 1989.
(b) The independent review indicated that this change would save one-half of 1 percent in the required rates of contribution to the public employees retirement system.
(c) The rates of contribution specified in subsection 1, in conjunction with the change required pursuant to subsection 2, are sufficient to ensure the actuarial soundness of the public employees retirement system for the ensuing biennium.
(d) The legislature will review the results of the change required pursuant to subsection 2 to determine the effect of that change on the required rates of contribution and to ensure that the rates of contribution are sufficient to ensure the actuarial soundness of the system.
Sec. 3. The provisions of subsection 1 of NRS 354.599 do not apply to any additional expenses of a local government that are related to the provisions of this act.
Sec. 4. This act becomes effective on July 1, 1997.
________
Senate Bill No. 223Senator Porter
CHAPTER 155
AN ACT relating to taxation; exempting leaded racing fuel from certain taxes on motor vehicle fuel; reducing the rate of taxation on aviation fuel; authorizing counties to impose a tax on aviation fuel; and providing other matters properly relating thereto.
[Approved June 12, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 365.170 is hereby amended to read as follows:
365.170 1. Every dealer shall, not later than the 25th day of each calendar month:
(a) Render to the department a statement of all motor vehicle fuel and fuel for jet or turbine-powered aircraft sold, distributed or used by him in the State of Nevada, as well as all such fuel sold, distributed or used in this state by a purchaser thereof upon which sale, distribution or use the dealer has assumed liability for the tax thereon [under] pursuant to NRS 365.020, during the preceding calendar month; and
(b) Pay an excise tax on:
(1) All fuel for jet or turbine-powered aircraft in the amount of 1 cent per gallon, plus any amount imposed by the county in which the fuel is sold, distributed or used pursuant to NRS 365.203;
(2) Aviation fuel in the amount of [10.5] 2 cents per gallon [;] , plus any amount imposed by the county in which the fuel is sold, distributed or used pursuant to NRS 365.203; and
(3) All other motor vehicle fuel in the amount of 17.65 cents per gallon, so sold, distributed or used, in the manner and within the time prescribed in this chapter.
κ1997 Statutes of Nevada, Page 354 (CHAPTER 155, SB 223)κ
so sold, distributed or used, in the manner and within the time prescribed in this chapter.
2. A dealer shall hold the amount of all taxes collected pursuant to this chapter in a separate account in trust for the state.
3. The department for good cause may extend for not more than 30 days the time for making any report or return required [under] pursuant to this chapter. The extension may be granted at any time if:
(a) A request therefor has been filed with the department within or before the period for which the extension may be granted; and
(b) A remittance of the estimated tax is made when due.
4. Any report, return, remittance to cover a payment or claim for credit or refund required by this chapter which is transmitted through the United States mail shall be deemed filed or received by the department on the date shown by the post office cancellation mark stamped upon the envelope containing it, or on the date it was mailed if proof satisfactory to the department establishes that the document or remittance was timely deposited in the United States mail properly addressed to the department.
Sec. 2. NRS 365.203 is hereby amended to read as follows:
365.203 1. A board of county commissioners may by ordinance, but not as in a case of emergency, [after receiving the approval of a majority of the registered voters of the county voting on the question at a primary, general or special election,] impose a tax of not more than [4] :
(a) Four cents per gallon on fuel for jet or turbine-powered aircraft sold, distributed or used in the county [.] , after receiving the approval of a majority of the registered voters of the county voting on the question at a primary, general or special election; and
(b) Eight cents per gallon on aviation fuel.
A county may combine this question with questions submitted pursuant to NRS 244.3351, 278.710, 371.045 or 377A.020, or any combination thereof.
2. A special election may be held only if the board of county commissioners determines, by a unanimous vote, that an emergency exists. The determination made by the board is conclusive unless it is shown that the board acted with fraud or a gross abuse of discretion. An action to challenge the determination made by the board must be commenced within 15 days after the boards determination is final. As used in this subsection, emergency means any unexpected occurrence or combination of occurrences which requires immediate action by the board of county commissioners to prevent or mitigate a substantial financial loss to the county or to enable the board to provide an essential service to the residents of the county.
3. A tax imposed pursuant to this section must be imposed on all taxpayers at the same rate. The county shall not allow any discounts, exemptions or other variance of the rate of the tax for any taxpayer except for the state or a political subdivision of the state.
4. Collection of the tax imposed pursuant to this section must not commence earlier than the first day of the second calendar month after adoption of the ordinance imposing the tax.
κ1997 Statutes of Nevada, Page 355 (CHAPTER 155, SB 223)κ
Sec. 3. NRS 365.210 is hereby amended to read as follows:
365.210 1. No county, city or other political subdivision or municipal corporation may levy or collect any excise, privilege or occupation tax upon or measured by the receipt, storage, sale, distribution, transportation or use of motor vehicle fuel, fuel for jet or turbine-powered aircraft or any other inflammable or combustible liquids except:
(a) The county motor vehicle fuel tax authorized by chapter 373 of NRS.
(b) A tax on fuel for jet or turbine-powered aircraft authorized by NRS 365.203.
(c) A tax on aviation fuel authorized by NRS 365.203.
(d) Any motor vehicle fuel taxation in effect on January 1, 1935, in any city or town.
[(d)] (e) County and city business license taxes where otherwise authorized by law, except as otherwise provided in subsection 2.
2. After March 25, 1991, no county, city or other political subdivision or municipal corporation responsible for the operation of an airport may impose a new tax or fee upon the sale or distribution of fuel for jet or turbine-powered aircraft except:
(a) A tax on fuel for jet or turbine-powered aircraft authorized by NRS 365.203.
(b) Any fuel flowage fee imposed upon aircraft or organizations servicing aircraft in lieu of rent for use of the terminal, landing fees or other airport charges.
Sec. 4. NRS 365.220 is hereby amended to read as follows:
365.220 The provisions of this chapter requiring the payment of excise taxes do not apply to any of the following:
1. Motor vehicle fuel so long as it remains in interstate or foreign commerce.
2. Motor vehicle fuel or fuel for jet or turbine-powered aircraft exported from this state by a dealer.
3. Motor vehicle fuel or fuel for jet or turbine-powered aircraft sold to the United States Government for official use of the United States Armed Forces.
4. Motor vehicle fuel or fuel for jet or turbine-powered aircraft distributed, or delivered on the order of the owner, to a dealer who has furnished security in the amount prescribed in NRS 365.290 and who has established to the satisfaction of the department that the security is sufficient to ensure payment of all excise taxes as they may become due to the state from him under this chapter. Every dealer who claims an exemption shall report the distributions to the department in such detail as the department may require . [; otherwise,] If he does not do so, the exemption granted in this subsection is void and all fuel is considered distributed in this state subject fully to the provisions of this chapter.
5. Leaded racing fuel. As used in this subsection, leaded racing fuel means motor vehicle fuel that contains lead and is produced for motor vehicles that are designed and built for racing and not for operation on a public highway.
________
κ1997 Statutes of Nevada, Page 356κ
Senate Bill No. 336Committee on Finance
CHAPTER 156
AN ACT making a supplemental appropriation to the Division of Insurance of the Department of Business and Industry for unanticipated additional operating costs; and providing other matters properly relating thereto.
[Approved June 12, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. There is hereby appropriated from the state general fund to the Division of Insurance of the Department of Business and Industry the sum of $8,481 for additional unanticipated operating costs. This appropriation is supplemental to that made by section 23 of chapter 446, Statutes of Nevada 1995, at page 1390.
Sec. 2. This act becomes effective upon passage and approval or on June 30, 1997, whichever occurs earlier.
________
Senate Bill No. 240Committee on Judiciary
CHAPTER 157
AN ACT relating to commercial transactions; revising articles 5 and 8 of the Uniform Commercial Code; and providing other matters properly relating thereto.
[Approved June 12, 1997]
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 104 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 35, inclusive, of this act.
Sec. 2. 1. If a presentation is made that appears on its face strictly to comply with the terms and conditions of a letter of credit, but a required document is forged or materially fraudulent, or honor of the presentation would facilitate a material fraud by the beneficiary on the issuer or applicant:
(a) The issuer shall honor the presentation, if honor is demanded by a nominated person who has given value in good faith and without notice of forgery or material fraud, a confirmer who has honored his confirmation in good faith, a holder in due course of a draft drawn under the letter of credit which was taken after acceptance by the issuer or nominated person, or an assignee of the issuers or nominated persons deferred obligation that was taken for value and without notice of forgery or material fraud after the obligation was incurred by the issuer or nominated person; and
(b) The issuer, acting in good faith, may honor or dishonor the presentation in any other case.
κ1997 Statutes of Nevada, Page 357 (CHAPTER 157, SB 240)κ
2. If an applicant claims that a required document is forged or materially fraudulent or that honor of the presentation would facilitate a material fraud by the beneficiary on the issuer or applicant, a court of competent jurisdiction may temporarily or permanently enjoin the issuer from honoring the presentation or grant similar relief against the issuer or other persons only if the court finds that:
(a) The relief is not prohibited under the law applicable to an accepted draft or deferred obligation incurred by the issuer;
(b) A beneficiary, issuer or nominated person who may be adversely affected is adequately protected against loss that it may suffer because the relief is granted;
(c) All of the conditions to entitle a person to the relief under the law of this state have been met; and
(d) On the basis of the information submitted to the court, the applicant is more likely than not to succeed under its claim of forgery or material fraud and the person demanding honor does not qualify for protection under paragraph (a) of subsection 1.
Sec. 3. 1. A successor of a beneficiary may consent to amendments, sign and present documents, and receive payment or other items of value in the name of the beneficiary without disclosing its status as a successor.
2. A successor of a beneficiary may consent to amendments, sign and present documents, and receive payment or other items of value in its own name as the disclosed successor of the beneficiary. Except as otherwise provided in subsection 5, an issuer shall recognize a disclosed successor of a beneficiary as beneficiary in full substitution for its predecessor upon compliance with the requirements for recognition by the issuer of a transfer of drawing rights by operation of law under the standard practice referred to in subsection 5 of NRS 104.5109 or, in the absence of such a practice, compliance with other reasonable procedures sufficient to protect the issuer.
3. An issuer is not obliged to determine whether a purported successor is a successor of a beneficiary or whether the signature of a purported successor is genuine or authorized.
4. Honor of a purported successors apparently complying presentation under subsection 1 or 2 has the consequences specified in subsection 9 of NRS 104.5109 even if the purported successor is not the successor of a beneficiary. Documents signed in the name of the beneficiary or of a disclosed successor by a person who is neither the beneficiary nor the successor of the beneficiary are forged documents for the purposes of section 2 of this act.
5. An issuer whose rights of reimbursement are not covered by subsection 4 or substantially similar law and any confirmer or nominated person may decline to recognize a presentation under subsection 2.
6. A beneficiary whose name is changed after the issuance of a letter of credit has the same rights and obligations as a successor of a beneficiary under this section.
Sec. 4. 1. As used in this section, proceeds of a letter of credit means the cash, check, accepted draft or other item of value paid or delivered upon honor or giving of value by the issuer or any nominated person under the letter of credit.
κ1997 Statutes of Nevada, Page 358 (CHAPTER 157, SB 240)κ
person under the letter of credit. The term does not include a beneficiarys drawing rights or documents presented by the beneficiary.
2. A beneficiary may assign its right to part or all of the proceeds of a letter of credit. The beneficiary may do so before presentation as a present assignment of its right to receive proceeds contingent upon its compliance with the terms and conditions of the letter of credit.
3. An issuer or nominated person need not recognize an assignment of proceeds of a letter of credit until it consents to the assignment.
4. An issuer or nominated person has no obligation to give or withhold its consent to an assignment of proceeds of a letter of credit, but consent may not be unreasonably withheld if the assignee possesses and exhibits the letter of credit and presentation of the letter of credit is a condition to honor.
5. The rights of a transferee beneficiary or nominated person are independent of the beneficiarys assignment of the proceeds of a letter of credit and are superior to the assignees right to the proceeds.
6. The rights recognized by this section between an assignee and an issuer, transferee beneficiary or nominated person and the issuers or nominated persons payment of proceeds to an assignee or a third person do not affect the rights between the assignee and any person other than the issuer, transferee beneficiary or nominated person. The mode of creating and perfecting a security interest in or granting an assignment of a beneficiarys rights to proceeds is governed by article 9 or other law. Against persons other than the issuer, transferee beneficiary or nominated person, the rights and obligations arising upon the creation of a security interest or other assignment of a beneficiarys right to proceeds and its perfection are governed by article 9 or other law.
Sec. 5. An action to enforce a right or obligation arising under this article must be commenced within 1 year after the expiration date of the relevant letter of credit or 1 year after the claim for relief accrues, whichever occurs later. A claim for relief accrues when the breach occurs, regardless of the aggrieved partys lack of knowledge of the breach.
Sec. 6. 1. The liability of an issuer, nominated person or adviser for action or omission is governed by the law of the jurisdiction chosen by an agreement in the form of a record signed or otherwise authenticated by the affected parties in the manner provided in NRS 104.5104 or by a provision in his letter of credit, confirmation or other undertaking. The jurisdiction whose law is chosen need not bear any relation to the transaction.
2. Unless subsection 1 applies, the liability of an issuer, nominated person or adviser for action or omission is governed by the law of the jurisdiction in which he is located. He is considered to be located at the address indicated in his undertaking. If more than one address is indicated, he is considered to be located at the address from which his undertaking was issued. For the purpose of jurisdiction, choice of law and recognition of interbranch letters of credit, but not enforcement of a judgment, all branches of a bank are considered separate juridical entities and a bank is considered to be located at the place where its relevant branch is considered to be located under this subsection.
κ1997 Statutes of Nevada, Page 359 (CHAPTER 157, SB 240)κ
3. Except as otherwise provided in this subsection, the liability of an issuer, nominated person or adviser is governed by any rules of custom or practice, such as the Uniform Customs and Practice for Documentary Credits, to which the letter of credit, confirmation or other undertaking is expressly made subject. If:
(a) This article would govern the liability of an issuer, nominated person or adviser under subsection 1 or 2;
(b) The relevant undertaking incorporates rules of custom or practice; and
(c) There is conflict between this article and those rules as applied to that undertaking,
those rules govern except to the extent of any conflict with the nonvariable provisions specified in subsection 3 of NRS 104.5102.
4. If there is conflict between this article and article 3, 4, 4A or 9, this article governs.
5. The forum for settling disputes arising out of an undertaking within this article may be chosen in the manner and with the binding effect that governing law may be chosen in accordance with subsection 1.
Sec. 7. 1. An issuer that honors a beneficiarys presentation is subrogated to the rights of the beneficiary to the same extent as if the issuer were a secondary obligor of the underlying obligation owed to the beneficiary and of the applicant to the same extent as if the issuer were the secondary obligor of the underlying obligation owed to the applicant.
2. An applicant that reimburses an issuer is subrogated to the rights of the issuer against any beneficiary, presenter or nominated person to the same extent as if the applicant were the secondary obligor of the obligations owed to the issuer and has the rights of subrogation of the issuer to the rights of the beneficiary stated in subsection 1.
3. A nominated person who pays or gives value against a draft or demand presented under a letter of credit is subrogated to the rights of:
(a) The issuer against the applicant to the same extent as if the nominated person were a secondary obligor of the obligation owed to the issuer by the applicant;
(b) The beneficiary to the same extent as if the nominated person were a secondary obligor of the underlying obligation owed to the beneficiary; and
(c) The applicant to same extent as if the nominated person were a secondary obligor of the underlying obligation owed to the applicant.
4. Notwithstanding any agreement or term to the contrary, the rights of subrogation stated in subsections 1 and 2 do not arise until the issuer honors the letter of credit or otherwise pays and the rights stated in subsection 3 do not arise until the nominated person pays or otherwise gives value. Until then, the issuer, nominated person and applicant do not derive under this section present or prospective rights forming the basis of a claim, defense or excuse.
Sec. 8. 1. A share or similar equity interest issued by a corporation, business trust, joint stock company or similar entity is a security.
2. An investment company security is a security. Investment company security means a share or similar equity interest issued by an entity that is registered as an investment company under the federal investment company laws, an interest in a unit investment trust that is so registered or a face-amount certificate issued by a face-amount certificate company that is so registered.
κ1997 Statutes of Nevada, Page 360 (CHAPTER 157, SB 240)κ
laws, an interest in a unit investment trust that is so registered or a face-amount certificate issued by a face-amount certificate company that is so registered. The term does not include an insurance policy or endowment policy or annuity contract issued by an insurance company.
3. An interest in a partnership or limited-liability company is not a security unless it is dealt in or traded on securities exchanges or in securities markets, its terms expressly provide that it is a security governed by this article, or it is an investment company security. However, an interest in a partnership or limited-liability company is a financial asset if it is held in a securities account.
4. A writing that is a security certificate is governed by this article and not by article 3, even though it also meets the requirements of that article. However, a negotiable instrument governed by article 3 is a financial asset if it is held in a securities account.
5. An option or similar obligation issued by a clearing corporation to its participants is not a security, but is a financial asset.
6. A commodity contract, as defined in section 34 of this act, is not a security or a financial asset.
Sec. 9. 1. A person acquires a security, or an interest therein, under this article, if he:
(a) Is a purchaser to whom a security is delivered pursuant to section 16 of this act; or
(b) Acquires a security entitlement to the security pursuant to section 23 of this act.
2. A person acquires a financial asset, other than a security, or an interest therein, under this article, if he acquires a security entitlement to the financial asset.
3. A person who acquires a security entitlement to a security or other financial asset has the rights specified in part 5 of this article, but is a purchaser of any security, security entitlement or other financial asset held by the securities intermediary only to the extent provided in section 25 of this act.
4. Unless the context shows that a different meaning is intended, a person who is required by other law, regulation, rule or agreement to transfer, deliver, present, surrender, exchange or otherwise put in the possession of another person a security or financial asset satisfies that requirement by causing the other person to acquire an interest in the security or financial asset pursuant to subsection 1 or 2.
Sec. 10. 1. A purchaser has control of a certificated security in bearer form if it is delivered to him.
2. A purchaser has control of a certificated security in registered form if it is delivered to him and:
(a) The certificate is endorsed to him or in blank by an effective endorsement; or
(b) The certificate is registered in his name, upon original issue or registration of transfer by the issuer.
3. A purchaser has control of an uncertificated security if:
(a) It is delivered to him; or
κ1997 Statutes of Nevada, Page 361 (CHAPTER 157, SB 240)κ
(b) The issuer has agreed that it will comply with instructions originated by him without further consent by the registered owner.
4. A purchaser has control of a security entitlement if:
(a) He becomes the entitlement holder; or
(b) The securities intermediary has agreed that it will comply with entitlement orders originated by him without further consent by the entitlement holder.
5. If an interest in a security entitlement is granted by the entitlement holder to the entitlement holders own securities intermediary, the securities intermediary has control.
6. A purchaser who has satisfied the requirements of paragraph (b) of subsection 3 or paragraph (b) of subsection 4 has control even if the registered owner in the case of paragraph (b) of subsection 3 or the entitlement holder in the case of paragraph (b) of subsection 4 retains the right to make substitutions for the uncertificated security or security entitlement, originate instructions or entitlement orders to the issuer or securities intermediary or otherwise deal with the uncertificated security or security entitlement.
7. An issuer or a securities intermediary may not enter into an agreement of the kind described in paragraph (b) of subsection 3 or paragraph (b) of subsection 4 without the consent of the registered owner or entitlement holder, but an issuer or a securities intermediary is not required to enter into such an agreement even if the registered owner or entitlement holder so directs. An issuer or securities intermediary that has entered into such an agreement is not required to confirm the existence of the agreement to another party unless requested to do so by the registered owner or entitlement holder.
Sec. 11. 1. Appropriate person means:
(a) With respect to an endorsement, the person specified by a security certificate or by an effective special endorsement to be entitled to the security;
(b) With respect to an instruction, the registered owner of an uncertificated security;
(c) With respect to an entitlement order, the entitlement holder;
(d) If the person designated in paragraph (a), (b) or (c) is deceased, his successor taking under other law or his personal representative acting for his estate; or
(e) If the person designated in paragraph (a), (b) or (c) lacks capacity, his guardian, conservator or other similar representative who has power under other law to transfer the security or financial asset.
2. An endorsement, instruction or entitlement order is effective if:
(a) It is made by the appropriate person;
(b) It is made by a person who has power under the law of agency to transfer the security or financial asset on behalf of the appropriate person, including, in the case of an instruction or entitlement order, a person who has control under paragraph (b) of subsection 3 or paragraph (b) of subsection 4 of section 10 of this act;
(c) The appropriate person has ratified it or is otherwise precluded from asserting its ineffectiveness.
κ1997 Statutes of Nevada, Page 362 (CHAPTER 157, SB 240)κ
3. An endorsement, instruction or entitlement order made by a representative is effective even if:
(a) The representative has failed to comply with a controlling instrument or with the law of the state having jurisdiction of the representative relationship, including any law requiring the representative to obtain court approval of the transaction; or
(b) The representatives action in making the endorsement, instruction or entitlement order or using the proceeds of the transaction is otherwise a breach of duty.
4. If a security is registered in the name of or specially endorsed to a person described as a representative, or if a securities account is maintained in the name of a person described as a representative, an endorsement, instruction or entitlement order made by him is effective even though he is no longer serving in the described capacity.
5. Effectiveness of an endorsement, instruction or entitlement order is determined as of the date the endorsement, instruction or entitlement order is made, and an endorsement, instruction or entitlement order does not become ineffective by reason of any later change of circumstances.
Sec. 12. 1. A person who transfers a certificated security to a purchaser for value warrants to the purchaser, and an endorser, if the transfer is by endorsement, warrants to any subsequent purchaser, that:
(a) The certificate is genuine and has not been materially altered;
(b) The transferor or endorser does not know of any fact that might impair the validity of the security;
(c) There is no adverse claim to the security;
(d) The transfer does not violate any restriction on transfer;
(e) If the transfer is by endorsement, the endorsement is made by an appropriate person, or if the endorsement is by an agent, the agent has actual authority to act on behalf of the appropriate person; and
(f) The transfer is otherwise effective and rightful.
2. A person who originates an instruction for registration of transfer of an uncertificated security to a purchaser for value warrants to the purchaser that:
(a) The instruction is made by an appropriate person, or if the instruction is by an agent, the agent has actual authority to act on behalf of the appropriate person;
(b) The security is valid;
(c) There is no adverse claim to the security; and
(d) At the time the instruction is presented to the issuer:
(1) The purchaser will be entitled to the registration of transfer;
(2) The transfer will be registered by the issuer free from all liens, security interests, restrictions and claims other than those specified in the instruction;
(3) The transfer will not violate any restriction on transfer; and
(4) The requested transfer will otherwise be effective and rightful.
3. A person who transfers an uncertificated security to a purchaser for value and does not originate an instruction in connection with the transfer warrants that:
(a) The uncertificated security is valid;
κ1997 Statutes of Nevada, Page 363 (CHAPTER 157, SB 240)κ
(b) There is no adverse claim to the security;
(c) The transfer does not violate any restriction on transfer; and
(d) The transfer is otherwise effective and rightful.
4. A person who endorses a security certificate warrants to the issuer that:
(a) There is no adverse claim to the security; and
(b) The endorsement is effective.
5. A person who originates an instruction for registration of transfer of an uncertificated security warrants to the issuer that:
(a) The instruction is effective; and
(b) At the time the instruction is presented to the issuer, the purchaser will be entitled to the registration of transfer.
6. A person who presents a certificated security for registration of transfer or for payment or exchange warrants to the issuer that he is entitled to the registration, payment or exchange, but a purchaser for value and without notice of adverse claims to whom transfer is registered warrants only that he has no knowledge of any unauthorized signature in a necessary endorsement.
7. If a person acts as an agent of another in delivering a certificated security to a purchaser, the identity of the principal was known to the person to whom the certificate was delivered, and the certificate delivered by the agent was received by the agent from the principal or received by the agent from another person at the direction of the principal, the person delivering the security certificate warrants only that he has authority to act for the principal and does not know of any adverse claim to the certificated security.
8. A secured party who redelivers a security certificate received, or after payment and on order of the debtor delivers the security certificate to another person, makes only the warranties of an agent under subsection 7.
9. Except as otherwise provided in subsection 7, a broker acting for a customer makes to the issuer and a purchaser the warranties provided in subsections 1 to 7, inclusive. A broker that delivers a security certificate to its customer, or causes its customer to be registered as the owner of an uncertificated security, makes to the customer the warranties provided in subsection 1 or 2 and has the rights and privileges of a purchaser under this section. The warranties of and in favor of the broker acting as an agent are in addition to applicable warranties given by and in favor of the customer.
Sec. 13. 1. A person who originates an entitlement order to a securities intermediary warrants to the securities intermediary that:
(a) The entitlement order is made by an appropriate person, or if the entitlement order is by an agent, the agent has actual authority to act on behalf of the appropriate person; and
(b) There is no adverse claim to the security entitlement.
2. A person who delivers a security certificate to a securities intermediary for credit to a securities account or originates an instruction with respect to an uncertificated security directing that the uncertificated security be credited to a securities account makes to the securities intermediary the warranties specified in subsection 1 or 2 of section 12 of this act.
κ1997 Statutes of Nevada, Page 364 (CHAPTER 157, SB 240)κ
3. If a securities intermediary delivers a security certificate to its entitlement holder or causes its entitlement holder to be registered as the owner of an uncertificated security, the securities intermediary makes to the entitlement holder the warranties specified in subsection 1 or 2 of section 12 of this act.
Sec. 14. A rule adopted by a clearing corporation governing rights and obligations among the clearing corporation and its participants in the clearing corporation is effective even if the rule conflicts with the Uniform Commercial Code and affects another party who does not consent to the rule.
Sec. 15. A securities intermediary that receives a financial asset and establishes a security entitlement to the financial asset in favor of an entitlement holder is a purchaser for value of the financial asset. A securities intermediary that acquires a security entitlement to a financial asset from another securities intermediary acquires the security entitlement for value if the securities intermediary acquiring the security entitlement establishes a security entitlement to the financial asset in favor of an entitlement holder.
Sec. 16. 1. Delivery of a certificated security to a purchaser occurs when:
(a) The purchaser acquires possession of the security certificate;
(b) Another person, other than a securities intermediary, acquires possession of the security certificate on behalf of the purchaser or, having previously acquired possession of the certificate, acknowledges that it holds for the purchaser; or
(c) A securities intermediary acting on behalf of the purchaser acquires possession of the security certificate, only if the certificate is in registered form and has been specially endorsed to the purchaser by an effective endorsement.
2. Delivery of an uncertificated security to a purchaser occurs when:
(a) The issuer registers the purchaser as the registered owner, upon original issue or registration of transfer; or
(b) Another person, other than a securities intermediary, becomes the registered owner of the uncertificated security on behalf of the purchaser or, having previously become the registered owner, acknowledges that it holds for the purchaser.
Sec. 17. 1. Except as otherwise provided in subsections 2 and 3, upon delivery of a certificated or uncertificated security to a purchaser, the purchaser acquires all rights in the security that the transferor had or had power to transfer.
2. A purchaser of a limited interest acquires rights only to the extent of the interest purchased.
3. A purchaser of a certificated security who as a previous holder had notice of an adverse claim does not improve its position by taking from a protected purchaser.
Sec. 18. 1. Protected purchaser means a purchaser of a certificated or uncertificated security, or of an interest therein, who:
(a) Gives value;
(b) Does not have notice of any adverse claim to the security; and
κ1997 Statutes of Nevada, Page 365 (CHAPTER 157, SB 240)κ
(c) Obtains control of the certificated or uncertificated security.
2. In addition to acquiring the rights of a purchaser, a protected purchaser also acquires its interest in the security free of any adverse claim.
Sec. 19. 1. An endorsement may be in blank or special. An endorsement in blank includes an endorsement to bearer. A special endorsement specifies to whom a security is to be transferred or who has power to transfer it. A holder may convert a blank endorsement to a special endorsement.
2. An endorsement purporting to be only of part of a security certificate representing units intended by the issuer to be separately transferable is effective to the extent of the endorsement.
3. An endorsement, whether special or in blank, does not constitute a transfer until delivery of the certificate on which it appears or, if the endorsement is on a separate document, until delivery of both the document and the certificate.
4. If a security certificate in registered form has been delivered to a purchaser without a necessary endorsement, the purchaser may become a protected purchaser only when the endorsement is supplied. However, against a transferor, a transfer is complete upon delivery and the purchaser has a specifically enforceable right to have any necessary endorsement supplied.
5. An endorsement of a security certificate in bearer form may give notice of an adverse claim to the certificate, but it does not otherwise affect a right to registration that the holder possesses.
6. Unless otherwise agreed, a person making an endorsement assumes only the obligations provided in section 12 of this act and not an obligation that the security will be honored by the issuer.
Sec. 20. 1. If an instruction has been originated by an appropriate person but is incomplete in any other respect, any person may complete it as authorized and the issuer may rely on it as completed, even though it has been completed incorrectly.
2. Unless otherwise agreed, a person initiating an instruction assumes only the obligations imposed by section 12 of this act and not an obligation that the security will be honored by the issuer.
Sec. 21. 1. A person who guarantees a signature of an endorser of a security certificate warrants that at the time of signing:
(a) The signature was genuine;
(b) The signer was an appropriate person to endorse, or if the signature is by an agent, the agent had actual authority to act on behalf of the appropriate person; and
(c) The signer had legal capacity to sign.
2. A person who guarantees a signature of the originator of an instruction warrants that at the time of signing:
(a) The signature was genuine;
(b) The signer was an appropriate person to originate the instruction, or if the signature is by an agent, the agent had actual authority to act on behalf of the appropriate person, if the person specified in the instruction as the registered owner was, in fact, the registered owner, as to which fact the signature guarantor does not make a warranty; and
κ1997 Statutes of Nevada, Page 366 (CHAPTER 157, SB 240)κ
(c) The signer had legal capacity to sign.
3. A person who specially guarantees the signature of the originator of an instruction makes the warranties of a guarantor under subsection 2 and also warrants that at the time the instruction is presented to the issuer:
(a) The person specified in the instruction as the registered owner of the uncertificated security will be the registered owner; and
(b) The transfer of the uncertificated security requested in the instruction will be registered by the issuer free from all liens, security interests, restrictions and claims other than those specified in the instruction.
4. A guarantor under subsections 1 and 2 or a special guarantor under subsection 3 does not otherwise warrant the rightfulness of the transfer.
5. A person who guarantees an endorsement of a security certificate makes the warranties of a guarantor under subsection 1 and also warrants the rightfulness of the transfer in all respects.
6. A person who guarantees an instruction requesting the transfer of an uncertificated security makes the warranties of a special guarantor under subsection 3 and also warrants the rightfulness of the transfer in all respects.
7. An issuer may not require a special guaranty of signature, a guaranty of endorsement or a guaranty of instruction as a condition to registration of transfer.
8. The warranties under this section are made to a person taking or dealing with the security in reliance on the guaranty, and the guarantor is liable to the person for loss resulting from their breach. An endorser or originator of an instruction whose signature, endorsement or instruction has been guaranteed is liable to a guarantor for any loss suffered by the guarantor as a result of a breach of the warranties of the guarantor.
Sec. 22. If a security certificate has been lost, apparently destroyed or wrongfully taken and the owner fails to notify the issuer of that fact within a reasonable time after the owner has notice of it and the issuer registers a transfer of the security before receiving notification, the owner may not assert against the issuer a claim for registering the transfer under NRS 104.404 or a claim to a new security certificate under NRS 104.405.
Sec. 23. 1. Securities account means an account to which a financial asset is or may be credited in accordance with an agreement under which the person maintaining the account undertakes to treat the person for whom the account is maintained as entitled to exercise the rights that comprise the financial asset.
2. Except as otherwise provided in subsections 4 and 5, a person acquires a security entitlement if a securities intermediary:
(a) Indicates by book entry that a financial asset has been credited to his securities account;
(b) Receives a financial asset from him or acquires a financial asset for him and, in either case, accepts it for credit to his securities account; or
(c) Becomes obligated under other law, regulation or rule to credit a financial asset to his securities account.
3. If a condition of subsection 2 has been met, a person has a security entitlement even though the securities intermediary does not itself hold the financial asset.
κ1997 Statutes of Nevada, Page 367 (CHAPTER 157, SB 240)κ
4. If a securities intermediary holds a financial asset for another person and the financial asset is registered in the name of, payable to the order of or specially endorsed to the other person and has not been endorsed to the securities intermediary or in blank, the other person is treated as holding the financial asset directly rather than as having a security entitlement with respect to the financial asset.
5. Issuance of a security is not establishment of a security entitlement.
Sec. 24. An action based on an adverse claim to a financial asset, whether framed in conversion, replevin, constructive trust, equitable lien or other theory, may not be asserted against a person who acquires a security entitlement under section 23 of this act for value and without notice of the adverse claim.
Sec. 25. 1. To the extent necessary for a securities intermediary to satisfy all security entitlements with respect to a particular financial asset, all interests in that financial asset held by the securities intermediary are held by the securities intermediary for the entitlement holders, are not the property of the securities intermediary and are not subject to claims of creditors of the securities intermediary, except as otherwise provided in section 33 of this act.
2. An entitlement holders property interest with respect to a particular financial asset under subsection 1 is a pro rata property interest in all interests in that financial asset held by the securities intermediary, without regard to the time the entitlement holder acquired the security entitlement or the time the securities intermediary acquired the interest in that financial asset.
3. An entitlement holders property interest with respect to a particular financial asset under subsection 1 may be enforced against the securities intermediary only by exercise of the entitlement holders rights under sections 27 to 30, inclusive, of this act.
4. An entitlement holders property interest with respect to a particular financial asset under subsection 1 may be enforced against a purchaser of the financial asset or interest therein only if:
(a) Insolvency proceedings have been initiated by or against the securities intermediary;
(b) The securities intermediary does not have sufficient interests in the financial asset to satisfy the security entitlements of all of its entitlement holders to that financial asset;
(c) The securities intermediary violated its obligations under section 26 of this act by transferring the financial asset or interest therein to the purchaser; and
(d) The purchaser is not protected under subsection 5.
The trustee or other liquidator, acting on behalf of all entitlement holders having security entitlements with respect to a particular financial asset, may recover the financial asset, or interest therein, from the purchaser. If the trustee or other liquidator elects not to pursue that right, an entitlement holder whose security entitlement remains unsatisfied has the right to recover its interest in the financial asset from the purchaser.
5. An action based on the entitlement holders property interest with respect to a particular financial asset under subsection 1, whether framed in conversion, replevin, constructive trust, equitable lien or other theory, may not be asserted against any purchaser of a financial asset or interest therein who gives value, obtains control and does not act in collusion with the securities intermediary in violating the securities intermediarys obligations under section 26 of this act.
κ1997 Statutes of Nevada, Page 368 (CHAPTER 157, SB 240)κ
conversion, replevin, constructive trust, equitable lien or other theory, may not be asserted against any purchaser of a financial asset or interest therein who gives value, obtains control and does not act in collusion with the securities intermediary in violating the securities intermediarys obligations under section 26 of this act.
Sec. 26. 1. A securities intermediary shall promptly obtain and thereafter maintain a financial asset in a quantity corresponding to the aggregate of all security entitlements it has established in favor of its entitlement holders with respect to that financial asset. The securities intermediary may maintain those financial assets directly or through one or more other securities intermediaries.
2. Except to the extent otherwise agreed by its entitlement holder, a securities intermediary may not grant any security interests in a financial asset it is obligated to maintain pursuant to subsection 1.
3. A securities intermediary satisfies the duty under subsection 1 if:
(a) It acts with respect to the duty as agreed upon by the entitlement holder and the securities intermediary; or
(b) In the absence of agreement, it exercises due care in accordance with reasonable commercial standards to obtain and maintain the financial asset.
4. This section does not apply to a clearing corporation that is the obligor of an option or similar obligation to which its entitlement holders have security entitlements.
Sec. 27. 1. A securities intermediary shall take action to obtain a payment or distribution made by the issuer of a financial asset. A securities intermediary satisfies the duty if:
(a) It acts with respect to the duty as agreed upon by the entitlement holder and the securities intermediary; or
(b) In the absence of agreement, it exercises due care in accordance with reasonable commercial standards to attempt to obtain the payment or distribution.
2. A securities intermediary is obligated to its entitlement holder for a payment or distribution made by the issuer of a financial asset if the payment or distribution is received by the securities intermediary.
Sec. 28. A securities intermediary shall exercise rights with respect to a financial asset if directed to do so by an entitlement holder. A securities intermediary satisfies the duty if:
1. It acts with respect to the duty as agreed upon by the entitlement holder and the securities intermediary; or
2. In the absence of agreement, it either places the entitlement holder in a position to exercise the rights directly or exercises due care in accordance with reasonable commercial standards to follow the direction of the entitlement holder.
Sec. 29. 1. A securities intermediary shall comply with an entitlement order if the entitlement order is originated by the appropriate person, the securities intermediary has had reasonable opportunity to assure itself that the entitlement order is genuine and authorized and the securities intermediary has had a reasonable opportunity to comply with the entitlement order. A securities intermediary satisfies the duty if:
κ1997 Statutes of Nevada, Page 369 (CHAPTER 157, SB 240)κ
(a) It acts with respect to the duty as agreed upon by the entitlement holder and the securities intermediary; or
(b) In the absence of agreement, it exercises due care in accordance with reasonable commercial standards to comply with the entitlement order.
2. If a securities intermediary transfers a financial asset pursuant to an ineffective entitlement order, the securities intermediary shall reestablish a security entitlement in favor of the person entitled to it and pay or credit any payments or distributions that the person did not receive as a result of the wrongful transfer. If the securities intermediary does not reestablish a security entitlement, the securities intermediary is liable to the entitlement holder for damages.
Sec. 30. A securities intermediary shall act at the direction of an entitlement holder to change a security entitlement into another available form of holding for which the entitlement holder is eligible or to cause the financial asset to be transferred to a securities account of the entitlement holder with another securities intermediary. A securities intermediary satisfies the duty if:
1. It acts as agreed upon by the entitlement holder and the securities intermediary; or
2. In the absence of agreement, it exercises due care in accordance with reasonable commercial standards to follow the direction of the entitlement holder.
Sec. 31. 1. If the substance of a duty imposed upon a securities intermediary by sections 26 to 30, inclusive, of this act is the subject of other statute, regulation or rule, compliance with that statute, regulation or rule satisfies the duty.
2. To the extent that specific standards for the performance of the duties of a securities intermediary or the exercise of the rights of an entitlement holder are not specified by other statute, regulation or rule or by agreement between the securities intermediary and entitlement holder, the securities intermediary shall perform its duties and the entitlement holder shall exercise its rights in a commercially reasonable manner.
3. The obligation of a securities intermediary to perform the duties imposed by sections 26 to 30, inclusive, of this act is subject to:
(a) Rights of the securities intermediary arising out of a security interest under a security agreement with the entitlement holder or otherwise; and
(b) Rights of the securities intermediary under other law, regulation, rule or agreement to withhold performance of its duties as a result of unfulfilled obligations of the entitlement holder to the securities intermediary.
4. Sections 26 to 30, inclusive, of this act do not require a securities intermediary to take any action that is prohibited by other statute, regulation or rule.
Sec. 32. 1. An action based on an adverse claim to a financial asset or security entitlement, whether framed in conversion, replevin, constructive trust, equitable lien or other theory, may not be asserted against a person who purchases a security entitlement, or an interest therein, from an entitlement holder if the purchaser gives value, does not have notice of the adverse claim and obtains control.
κ1997 Statutes of Nevada, Page 370 (CHAPTER 157, SB 240)κ
2. If an adverse claim could not have been asserted against an entitlement holder under section 24 of this act, the adverse claim cannot be asserted against a person who purchases a security entitlement, or an interest therein, from the entitlement holder.
3. In a case not covered by the priority rules in article 9, a purchaser for value of a security entitlement, or an interest therein, who obtains control has priority over a purchaser of a security entitlement, or an interest therein, who does not obtain control. Purchasers who have control rank equally, except that a securities intermediary as purchaser has priority over a conflicting purchaser who has control unless otherwise agreed by the securities intermediary.
Sec. 33. 1. Except as otherwise provided in subsections 2 and 3, if a securities intermediary does not have sufficient interests in a particular financial asset to satisfy both its obligations to entitlement holders who have security entitlements to that financial asset and its obligation to a creditor of the securities intermediary who has a security interest in that financial asset, the claims of entitlement holders, other than the creditor, have priority over the claim of the creditor.
2. A claim of a creditor of a securities intermediary who has a security interest in a financial asset held by a securities intermediary has priority over claims of the entitlement holders of the securities intermediary who have security entitlements with respect to that financial asset if the creditor has control over the financial asset.
3. If a clearing corporation does not have sufficient financial assets to satisfy both its obligations to entitlement holders who have security entitlements with respect to a financial asset and its obligation to a creditor of the clearing corporation who has a security interest in that financial asset, the claim of the creditor has priority over the claims of entitlement holders.
Sec. 34. 1. As used in this article:
(a) Commodity account means an account maintained by a commodity intermediary in which a commodity contract is carried for a commodity customer.
(b) Commodity contract means a commodity futures contract, an option on a commodity futures contract, a commodity option or other contract that, in each case, is:
(1) Traded on or subject to the rules of a board of trade that has been designated as a contract market for such a contract pursuant to the federal commodities laws; or
(2) Traded on a foreign commodity board of trade, exchange or market, and is carried on the books of a commodity intermediary for a commodity customer.
(c) Commodity customer means a person for whom a commodity intermediary carries a commodity contract on its books.
(d) Commodity intermediary means:
(1) A person who is registered as a futures commission merchant under the federal commodities laws; or
κ1997 Statutes of Nevada, Page 371 (CHAPTER 157, SB 240)κ
(2) A person who in the ordinary course of his business provides clearance or settlement for a board of trade that has been designated as a contract market pursuant to the federal commodities laws.
(e) Control with respect to a certificated security, uncertificated security or security entitlement has the meaning specified in section 10 of this act. A secured party has control over a commodity contract if by agreement among the commodity customer, the commodity intermediary and the secured party, the commodity intermediary has agreed that he will apply any value distributed on account of the commodity contract as directed by the secured party without further consent by the commodity customer. If a commodity customer grants a security interest in a commodity contract to his own commodity intermediary, the commodity intermediary as secured party has control. A secured party has control over a securities account or commodity account if the secured party has control over all security entitlements or commodity contracts carried in the securities account or commodity account.
(f) Investment property means:
(1) A security, whether certificated or uncertificated;
(2) A security entitlement;
(3) A securities account;
(4) A commodity contract; or
(5) A commodity account.
2. Attachment or perfection of a security interest in a securities account is also attachment or perfection of a security interest in all security entitlements carried in the securities account. Attachment or perfection of a security interest in a commodity account is also attachment or perfection of a security interest in all commodity contracts carried in the commodity account.
3. A description of collateral in a security agreement or financing statement is sufficient to create or perfect a security interest in a certificated security, uncertificated security, security entitlement, securities account, commodity contract or commodity account, whether it describes the collateral by those terms, or as investment property, or by description of the underlying security, financial asset or commodity contract. A description of investment property as collateral in a security agreement or financing statement is sufficient if it identifies the collateral by specific listing, category, quantity, a computational or allocational formula or procedure, or any other method, if the identity of the collateral is objectively determinable.
4. The perfection of a security interest in investment property is governed by the following:
(a) A security interest in investment property may be perfected by control.
(b) Except as otherwise provided in paragraphs (c) and (d), a security interest in investment property may be perfected by filing.
(c) If the debtor is a broker or securities intermediary, a security interest in investment property is perfected when it attaches. The filing of a financing statement with respect to a security interest in investment property granted by a broker or securities intermediary has no effect for purposes of perfection or priority with respect to that security interest.
κ1997 Statutes of Nevada, Page 372 (CHAPTER 157, SB 240)κ
(d) If a debtor is a commodity intermediary, a security interest in a commodity contract or a commodity account is perfected when it attaches. The filing of a financing statement with respect to a security interest in a commodity contract or a commodity account granted by a commodity intermediary has no effect for purposes of perfection or priority with respect to that security interest.
5. Priority between conflicting security interests in the same investment property is governed by the following:
(a) A security interest of a secured party who has control over investment property has priority over a security interest of a secured party who does not have control over the investment property.
(b) Except as otherwise provided in paragraphs (c) and (d), conflicting security interests of secured parties each of whom has control rank equally.
(c) Except as otherwise agreed by the securities intermediary, a security interest in a security entitlement or a securities account granted to the debtors own securities intermediary has priority over any security interest granted by the debtor to another secured party.
(d) Except as otherwise agreed by the commodity intermediary, a security interest in a commodity contract or a commodity account granted to the debtors own commodity intermediary has priority over any security interest granted by the debtor to another secured party.
(e) Conflicting security interests granted by a broker, a securities intermediary or a commodity intermediary that are perfected without control rank equally.
(f) In all other cases, priority between conflicting security interests in investment property is governed by subsections 5, 6 and 7 of NRS 104.9312. Subsection 4 of that section does not apply to investment property.
6. If a security certificate in registered form is delivered to a secured party pursuant to agreement, a written security agreement is not required for attachment or enforceability of the security interest, delivery suffices for perfection of the security interest and the security interest has priority over a conflicting security interest perfected by means other than control, even if a necessary endorsement is lacking.
Sec. 35. 1. If a person buys a financial asset through a securities intermediary in a transaction in which the buyer is obligated to pay the purchase price to the securities intermediary at the time of the purchase, and the securities intermediary credits the financial asset to the buyers securities account before the buyer pays the securities intermediary, the securities intermediary has a security interest in the buyers security entitlement securing his obligation to pay. A security agreement is not required for attachment or enforceability of the security interest, and the security interest is automatically perfected.
2. If a certificated security, or other financial asset represented by a writing that in the ordinary course of business is transferred by delivery with any necessary endorsement or assignment, is delivered pursuant to an agreement between persons in the business of dealing with such securities or financial assets, and the agreement calls for delivery versus payment, the person delivering the certificate or other financial asset has a security interest in the certificated security or other financial asset securing his right to receive payment.
κ1997 Statutes of Nevada, Page 373 (CHAPTER 157, SB 240)κ
to receive payment. A security agreement is not required for attachment or enforceability of the security interest, and the security interest is automatically perfected.
Sec. 36. NRS 104.1105 is hereby amended to read as follows:
104.1105 1. Except as otherwise provided in this section, when a transaction bears a reasonable relation to this state and also to another state or nation , the parties may agree that the law [either] of this state or of such other state or nation [shall govern] governs their rights and duties. Failing such agreement , this chapter applies to transactions bearing an appropriate relation to this state.
2. Where one of the following provisions of this chapter specifies the applicable law, that provision governs and a contrary agreement is effective only to the extent permitted by the law (including the conflict of laws rules) so specified:
Rights of creditors against sold goods. NRS 104.2402.
Applicability of the article on leases. NRS 104A.2105 and 104A.2106.
Applicability of the article on bank deposits and collections. NRS 104.4102.
Letters of credit. Section 6 of this act.
Applicability of the article on investment securities. NRS 104.8106.
Perfection provisions of the article on secured transactions. NRS 104.9103.
Governing law in the article on funds transfers. NRS 104A.4507.
Sec. 37. NRS 104.1110 is hereby amended to read as follows:
104.1110 1. Transactions validly entered into before March 1, 1967, and the rights, duties and interests flowing from them remain valid thereafter and may be terminated, completed, consummated or enforced as required or permitted by any statute or other law amended or repealed by this chapter as though such repeal or amendment had not occurred.
2. Transactions validly entered into after March 1, 1967, and before July 1, 1975, which were subject to the provisions of this chapter before July 1, 1975, and which would be subject to the provisions of this chapter as amended effective July 1, 1975, if they had been entered into after July 1, 1975, and the rights, duties and interests flowing from such transactions remain valid after July 1, 1975, and may be terminated, completed, consummated or enforced as required or permitted by this chapter as amended effective July 1, 1975. Security interests arising out of such transactions which are perfected on July 1, 1975, shall remain perfected until they lapse as provided by this chapter as amended effective July 1, 1975, and may be continued as permitted by this chapter as amended effective July 1, 1975, except as stated in NRS 104.902.
3. A transaction arising out of or associated with a letter of credit that was issued before October 1, 1997, and the rights, obligations and interests flowing from that transaction are governed by the former provisions of this chapter as if the amendment effective October 1, 1997, had not occurred, and may be terminated, completed, consummated or enforced under those former provisions.
κ1997 Statutes of Nevada, Page 374 (CHAPTER 157, SB 240)κ
and may be terminated, completed, consummated or enforced under those former provisions.
4. Rights and obligations that arose after March 1, 1967, and before October 1, 1991, under NRS 104.6101 to 104.6111, inclusive, Uniform Commercial Code-Bulk Transfers, remain valid and may be enforced as though those sections had not been repealed.
5. If a security interest in a security governed by NRS 104.8101 to 104.8406, inclusive, and sections 8 to 33, inclusive, of this act is perfected before October 1, 1997, and the action by which the security interest was perfected would suffice to perfect a security interest under this chapter as amended effective on that date, no further action is required to continue perfection. If a security interest in a security is perfected before October 1, 1997, but the action by which the security interest was perfected would not suffice to perfect a security interest under this chapter as amended effective on that date, the security interest remains perfected for a period of 4 months after that date and remains perfected thereafter if appropriate action to perfect it under this chapter as so amended is taken within that period. If a security interest is perfected before October 1, 1997, and the security interest can be perfected by filing under this chapter as amended effective on that date, a financing statement signed by the secured party instead of the debtor may be filed within that period to continue perfection or thereafter to perfect.
Sec. 38. NRS 104.2512 is hereby amended to read as follows:
104.2512 1. Where the contract requires payment before inspection nonconformity of the goods does not excuse the buyer from so making payment unless:
(a) The nonconformity appears without inspection; or
(b) Despite tender of the required documents the circumstances would justify injunction against honor under the provisions of this chapter . [(NRS 104.5114).]
2. Payment pursuant to subsection 1 does not constitute an acceptance of goods or impair the buyers right to inspect or any of his remedies.
Sec. 39. NRS 104.4104 is hereby amended to read as follows:
104.4104 1. In this article, unless the context otherwise requires:
(a) Account means any deposit or credit account with a bank including a demand, time, savings, passbook, share draft or like account, other than an account evidenced by a certificate of deposit.
(b) Afternoon means the period of a day between noon and midnight.
(c) Banking day means that part of any day on which a bank is open to the public for carrying on substantially all of its banking functions.
(d) Clearing house means any association of banks or other payors regularly clearing items.
(e) Customer means any person having an account with a bank or for whom a bank has agreed to collect items, including a bank that maintains an account at another bank.
(f) Documentary draft means a draft to be presented for acceptance or payment if specified documents, certificated securities [(NRS 104.8102)] or instructions for uncertificated securities , [(NRS 104.8308),] or other certificates, statements or the like are to be received by the drawee or other payor before acceptance or payment of the draft.
κ1997 Statutes of Nevada, Page 375 (CHAPTER 157, SB 240)κ
certificates, statements or the like are to be received by the drawee or other payor before acceptance or payment of the draft.
(g) Draft means a draft as defined in NRS 104.3104 or an item, other than an instrument, that is an order.
(h) Drawee means a person ordered in a draft to make payment.
(i) Item means an instrument or a promise or order to pay money handled by a bank for collection or payment. The term does not include a payment order governed by article 4A or a credit or debit card slip.
(j) Midnight deadline with respect to a bank is midnight on its next banking day following the banking day on which it receives the relevant item or notice or from which the time for taking action commences to run, whichever is later.
(k) Settle means to pay in cash, by clearinghouse settlement, in a charge or credit or by remittance, or otherwise as instructed. A settlement may be either provisional or final.
(l) Suspends payments with respect to a bank means that it has been closed by order of the supervisory authorities, that a public officer has been appointed to take it over or that it ceases or refuses to make payments in the ordinary course of business.
2. Other definitions applying to this article and the sections in which they appear are:
Agreement for electronic presentment. NRS 104.4110.
Bank. NRS 104.4105.
Collecting bank. NRS 104.4105.
Depositary bank. NRS 104.4105.
Intermediary bank. NRS 104.4105.
Payor bank. NRS 104.4105.
Presenting bank. NRS 104.4105.
Presentment notice. NRS 104.4110.
3. The following definitions in other articles apply to this article:
Acceptance. NRS 104.3409.
Alteration. NRS 104.3407.
Cashiers check. NRS 104.3104.
Certificate of deposit. NRS 104.3104.
Certified check. NRS 104.3409.
Check. NRS 104.3104.
Good faith. NRS 104.3103.
Holder in due course. NRS 104.3302.
Instrument. NRS 104.3104.
Notice of dishonor. NRS 104.3503.
Order. NRS 104.3103.
Ordinary care. NRS 104.3103.
Person entitled to enforce. NRS 104.3301.
Presentment. NRS 104.3501.
Promise. NRS 104.3103.
κ1997 Statutes of Nevada, Page 376 (CHAPTER 157, SB 240)κ
Prove. NRS 104.3103.
Tellers check. NRS 104.3104.
Unauthorized signature. NRS 104.3403.
4. In addition , article 1 contains general definitions and principles of construction and interpretation applicable throughout this article.
Sec. 40. NRS 104.5101 is hereby amended to read as follows:
104.5101 This article [shall be known and] may be cited as Uniform Commercial Code-Letters of Credit.
Sec. 41. NRS 104.5102 is hereby amended to read as follows:
104.5102 1. This article applies [:
(a) To a credit issued by a bank if the credit requires a documentary draft or a documentary demand for payment; and
(b) To a credit issued by a person other than a bank if the credit requires that the draft or demand for payment be accompanied by a document of title; and
(c) To a credit issued by a bank or other person if the credit is not within paragraphs (a) or (b) but conspicuously states that it is a letter of credit or is conspicuously so entitled.
2. Unless the engagement meets the requirements of subsection 1, this article does not apply to engagements to make advances or to honor drafts or demands for payment, to authorities to pay or purchase, to guarantees or to general agreements.
3. This article deals with some but not all of the rules and concepts of letters of credit as such rules or concepts have developed prior to this act or may hereafter develop. The fact that this article states a rule] to letters of credit and to certain rights and obligations arising out of transactions involving letters of credit.
2. The statement of a rule in this article does not by itself require, imply or negate application of the same or a [converse] different rule to a situation not provided for , or to a person not specified [by] , in this article.
3. Except as otherwise provided in this subsection, subsections 1 and 4 of this section, paragraphs (i) and (j) of subsection 1 of NRS 104.5103, subsection 4 of NRS 104.5106 and subsection 4 of section 4 of this act, and except to the extent prohibited in subsection 3 of NRS 104.1102 and subsection 4 of section 7 of this act, the effect of this article may be varied by agreement or by a provision stated or incorporated by reference in an undertaking. A term in an agreement or undertaking generally excusing liability or generally limiting remedies for failure to perform obligations is not sufficient to vary obligations prescribed by this article.
4. Rights and obligations of an issuer to a beneficiary or a nominated person under a letter of credit are independent of the existence, performance or nonperformance of a contract or arrangement out of which the letter of credit arises or which underlies it, including contracts or arrangements between the issuer and the applicant and between the applicant and the beneficiary.
κ1997 Statutes of Nevada, Page 377 (CHAPTER 157, SB 240)κ
Sec. 42. NRS 104.5103 is hereby amended to read as follows:
104.5103 1. In this article [unless the context otherwise requires:
(a) Credit or letter of credit means an engagement by a bank or other person made at the request of a customer and of a kind within the scope of this article (NRS 104.5102) that the issuer will honor drafts or other demands for payment upon compliance with the conditions specified in the credit. A credit may be either revocable or irrevocable. The engagement may be either an agreement to honor or a statement that the bank or other person is authorized to honor.
(b) A documentary draft or a documentary demand for payment is one honor of which is conditioned upon the presentation of a document or documents. Document means any paper including document of title, security, invoice, certificate, notice of default and the like.
(c) An issuer is a bank or other person issuing a credit.
(d) A beneficiary of a credit is a person who is entitled under its terms to draw or demand payment.
(e) An advising bank is a bank which gives notification of the issuance of a credit by another bank.
(f) A confirming bank is a bank which engages either that it will itself honor a credit already issued by another bank or that such a credit will be honored by the issuer or a third bank.
(g) A customer is a buyer or other person who causes an issuer to issue a credit. The term also includes a bank which procures issuance or confirmation on behalf of that banks customer.
2. Other definitions applying to this article and the sections in which they appear are:
Notation of credit. NRS 104.5108.
Presenter. Subsection 3 of NRS 104.5112.
3.] :
(a) Adviser means a person who, at the request of the issuer, a confirmer or another adviser, notifies or requests another adviser to notify the beneficiary that a letter of credit has been issued, confirmed or amended.
(b) Applicant means a person at whose request or for whose account a letter of credit is issued. The term includes a person who requests an issuer to issue a letter of credit on behalf of another person if the person making the request undertakes an obligation to reimburse the issuer.
(c) Beneficiary means a person who, under the terms of a letter of credit, is entitled to have its complying presentation honored. The term includes a person to whom drawing rights have been transferred under a transferable letter of credit.
(d) Confirmer means a nominated person who undertakes, at the request or with the consent of the issuer, to honor a presentation under a letter of credit issued by another person.
κ1997 Statutes of Nevada, Page 378 (CHAPTER 157, SB 240)κ
(e) Dishonor of a letter of credit means failure to honor or to take an interim action in a timely manner, such as acceptance of a draft, that may be required by the letter of credit.
(f) Document means a draft or other demand, document of title, investment security, certificate, invoice or other record, statement or representation of fact, law, right or opinion which is presented in a written or other medium permitted by a letter of credit or, unless prohibited by the letter of credit, by the standard practice referred to in subsection 5 of NRS 104.5109, and which is capable of being examined for compliance with the terms and conditions of the letter of credit. A document may not be oral.
(g) Good faith means honesty in fact in the conduct or transaction concerned.
(h) Honor of a letter of credit means performance of the issuers undertaking in the letter of credit to pay or deliver an item of value. Unless the letter of credit otherwise provides, honor occurs:
(1) Upon payment;
(2) If the letter of credit provides for acceptance, upon acceptance of a draft and, at maturity, its payment; or
(3) If the letter of credit provides for incurring a deferred obligation, upon incurring the obligation and, at maturity, its performance.
(i) Issuer means a bank or other person that issues a letter of credit. The term does not include a natural person who makes an engagement for personal, family or household purposes.
(j) Letter of credit means a definite undertaking that satisfies the requirements of NRS 104.5104 by an issuer to a beneficiary at the request or for the account of an applicant or, in the case of a financial institution, to itself or for its own account, to honor a documentary presentation by payment or delivery of an item of value.
(k) Nominated person means a person whom the issuer designates or authorizes to pay, accept, negotiate or otherwise give value under a letter of credit and undertakes by agreement or custom and practice to reimburse.
(l) Presentation means delivery of a document to an issuer or nominated person for honor or giving of value under a letter of credit.
(m) Presenter means a person making a presentation as or on behalf of a beneficiary or nominated person.
(n) Record means information which is inscribed on a tangible medium, or which is stored in an electronic or other medium and is retrievable in perceivable form.
(o) Successor of a beneficiary means a person who succeeds to substantially all of the rights of a beneficiary by operation of law, including a corporation with or into which the beneficiary has been merged or consolidated, an administrator, executor, personal representative, trustee in bankruptcy, debtor in possession, liquidator and receiver.
2. Definitions in other articles applying to this article and the sections in which they appear are:
Accept or acceptance. NRS 104.3409.
[Contract for sale. NRS 104.2106.
Draft. NRS 104.3104.
κ1997 Statutes of Nevada, Page 379 (CHAPTER 157, SB 240)κ
Holder in due course. NRS 104.3302.
Midnight deadline. NRS 104.4104.
Security. NRS 104.8102.
4. In addition, article] Value. NRS 104.3303 and 104.4211.
3. Article 1 contains general definitions and principles of construction and interpretation applicable throughout this article.
Sec. 43. NRS 104.5104 is hereby amended to read as follows:
104.5104 [1. Except as otherwise required in paragraph (c) of subsection 1 of NRS 104.5102 on scope, no particular form of phrasing is required for a credit. A credit must be in writing and signed by the issuer and a confirmation must be in writing and signed by the confirming bank. A modification of the terms of a credit or confirmation must be signed by the issuer or confirming bank.
2. A telegram may be a sufficient signed writing if it identifies its sender by an authorized authentication. The authentication may be in code and the authorized naming of the issuer in an advice of credit is a sufficient signing.] A letter of credit, confirmation, advice, transfer, amendment or cancellation may be issued in any form that is a record and is authenticated by a signature or in accordance with the agreement of the parties or the standard practice referred to in subsection 5 of NRS 104.5109.
Sec. 44. NRS 104.5105 is hereby amended to read as follows:
104.5105 [No consideration is necessary to establish a credit or to enlarge or otherwise modify its terms.] Consideration is not required to issue, amend, transfer or cancel a letter of credit, advice or confirmation.
Sec. 45. NRS 104.5106 is hereby amended to read as follows:
104.5106 1. [Unless otherwise agreed a credit is established:
(a) As regards the customer as soon as a letter of credit is sent to him or the letter of credit or an authorized written advice of its issuance is sent to the beneficiary; and
(b) As regards the beneficiary when he receives a letter of credit or an authorized written advice of its issuance.
2. Unless otherwise agreed once an irrevocable credit is established as regards the customer it can be modified or revoked only with the consent of the customer and once it is established as regards the beneficiary it can be modified or revoked only with his consent.
3. Unless otherwise agreed after a revocable credit is established it may be modified or revoked by the issuer without notice to or consent from the customer or beneficiary.
4. Notwithstanding any modification or revocation of a revocable credit any person authorized to honor or negotiate under the terms of the original credit is entitled to reimbursement for or honor of any draft or demand for payment duly honored or negotiated before receipt of notice of the modification or revocation and the issuer in turn is entitled to reimbursement from its customer.] A letter of credit is issued and becomes enforceable according to its terms against the issuer when the issuer sends or otherwise transmits it to the person requested to advise or to the beneficiary. A letter of credit is revocable only if it so provides.
κ1997 Statutes of Nevada, Page 380 (CHAPTER 157, SB 240)κ
2. After a letter of credit is issued, rights and obligations of a beneficiary, applicant, confirmer and issuer are not affected by an amendment or cancellation to which he has not consented except to the extent the letter of credit provides that it is revocable or that the issuer may amend or cancel the letter of credit without that consent.
3. If there is no stated expiration date or other provision that determines its duration, a letter of credit expires 1 year after its stated date of issuance or, if none is stated, after the date on which it is issued.
4. A letter of credit which states that it is perpetual expires 5 years after its stated date of issuance, or if none is stated, after the date on which it is issued.
Sec. 46. NRS 104.5107 is hereby amended to read as follows:
104.5107 1. [Unless otherwise specified an advising bank by advising a credit issued by another bank does not assume any obligation to honor drafts drawn or demands for payment made under the credit but it does assume obligation for the accuracy of its own statement.
2. A confirming bank by confirming a credit becomes directly obligated on the credit to the extent of its confirmation as though it were its issuer and acquires the rights of an issuer.
3. Even though an advising bank incorrectly advises the terms of a credit it has been authorized to advise the credit is established as against the issuer to the extent of its original terms.
4. Unless otherwise specified the customer bears as against the issuer all risks of transmission and reasonable translation or interpretation of any message relating to a credit.] A confirmer is directly obligated on a letter of credit and has the rights and obligations of an issuer to the extent of its confirmation. The confirmer also has rights against and obligations to the issuer as if the issuer were an applicant and the confirmer had issued the letter of credit at the request and for the account of the issuer.
2. A nominated person who is not a confirmer is not obligated to honor or otherwise give value for a presentation.
3. A person requested to advise may decline to act as an adviser. An adviser that is not a confirmer is not obligated to honor or give value for a presentation. An adviser undertakes to the issuer and to the beneficiary accurately to advise the terms of the letter of credit, confirmation, amendment or advice received by the adviser and undertakes to the beneficiary to check the apparent authenticity of the request to advise. Even if the advice is inaccurate, the letter of credit, confirmation or amendment is enforceable as issued.
4. A person who notifies a transferee beneficiary of the terms of a letter of credit, confirmation, amendment or advice has the rights and obligations of an adviser under subsection 3. The terms in the notice to the transferee beneficiary may differ from the terms in any notice to the transferor beneficiary to the extent permitted by the letter of credit, confirmation, amendment or advice received by the person who so notifies.
κ1997 Statutes of Nevada, Page 381 (CHAPTER 157, SB 240)κ
Sec. 47. NRS 104.5109 is hereby amended to read as follows:
104.5109 1. [An issuers obligation to its customer includes good faith and observance of any general banking usage but unless otherwise agreed does not include liability or responsibility:
(a) For performance of the underlying contract for sale or other transaction between the customer and the beneficiary; or
(b) For any act or omission of any person other than itself or its own branch or for loss or destruction of a draft, demand or document in transit or in the possession of others; or
(c) Based on knowledge or lack of knowledge of any usage of any particular trade.
2. An issuer must examine documents with care so as to ascertain that on their face they appear to comply with the terms of the credit but unless otherwise agreed assumes no liability or responsibility for the genuineness, falsification or effect of any document which appears on such examination to be regular on its face.
3. A nonbank issuer is not bound by any banking usage of which it has no knowledge.] Except as otherwise provided in section 2 of this act, an issuer shall honor a presentation that, as determined by the standard practice referred to in subsection 5, appears on its face strictly to comply with the terms and conditions of the letter of credit. Except as otherwise provided in section 3 of this act and unless otherwise agreed with the applicant, an issuer shall dishonor a presentation that does not appear so to comply.
2. An issuer has a reasonable time after presentation, but not beyond the end of the 7th business day of the issuer after the day of its receipt of documents:
(a) To honor a letter of credit;
(b) If the letter of credit provides for honor to be completed more than 7 business days after presentation, to accept a draft or incur a deferred obligation; or
(c) To give notice to the presenter of discrepancies in the presentation.
3. Except as otherwise provided in subsection 4, an issuer is precluded from asserting as a basis for dishonor any discrepancy if notice is not given in a timely manner or any discrepancy not stated in the notice if notice is given in a timely manner.
4. Failure to give the notice specified in subsection 2 or to mention fraud, forgery or expiration in the notice does not preclude the issuer from asserting as a basis for dishonor, fraud or forgery as described in subsection 1 of section 2 of this act or expiration of the letter of credit before presentation.
5. An issuer shall observe standard practice of financial institutions that regularly issue letters of credit. Any determination of the issuers observance of the standard practice is a matter of interpretation for the court. The court shall offer the parties a reasonable opportunity to present evidence of the standard practice.
6. An issuer is not responsible for:
κ1997 Statutes of Nevada, Page 382 (CHAPTER 157, SB 240)κ
(a) The performance or nonperformance of the underlying contract, arrangement or transaction;
(b) An act or omission of others; or
(c) Observance or knowledge of the usage of a particular trade other than the standard practice referred to in subsection 5.
7. If an undertaking constituting a letter of credit under paragraph (j) of subsection 1 of NRS 104.5103 contains nondocumentary conditions, an issuer shall disregard the nondocumentary conditions and treat them as if they were not stated.
8. An issuer that has dishonored a presentation shall return the documents or hold them at the disposal of, and send advice to the effect to, the presenter.
9. An issuer that has honored a presentation as permitted or required by this article:
(a) Is entitled to be reimbursed by the applicant in immediately available funds not later than the date of its payment of funds;
(b) Takes the documents free of claims of the beneficiary or presenter;
(c) Is precluded from asserting a right of recourse on a draft under NRS 104.3414 and 104.3415;
(d) Except as otherwise provided in NRS 104.5111 and section 7 of this act, is precluded from restitution of money paid or other value given by mistake to the extent the mistake concerns discrepancies in the documents or tender which are apparent on the face of the presentation; and
(e) Is discharged to the extent of its performance under the letter of credit unless the issuer honored a presentation in which a required signature of a beneficiary was forged.
Sec. 48. NRS 104.5111 is hereby amended to read as follows:
104.5111 1. [Unless otherwise agreed the beneficiary by transferring or presenting a documentary draft or demand for payment warrants to all interested parties that the necessary conditions of the credit have been complied with. This is in addition to any warranties arising under articles 3, 4, 7 and 8.
2. Unless otherwise agreed a negotiating, advising, confirming, collecting or issuing bank presenting or transferring a draft or demand for payment under a credit warrants only the matters warranted by a collecting bank under article 4 and any such bank transferring a document warrants only the matters warranted by an intermediary under articles 7 and 8.] If its presentation is honored, the beneficiary warrants:
(a) To the issuer, any other person to whom presentation is made, and the applicant that there is no fraud or forgery of the kind described in subsection 1 of section 2 of this act; and
(b) To the applicant that the drawing does not violate any agreement between the applicant and beneficiary or any other agreement intended by them to be augmented by the letter of credit.
2. The warranties in subsection 1 are in addition to warranties arising under articles 3, 4, 7 and 8 because of the presentation or transfer of documents covered by any of those articles.
κ1997 Statutes of Nevada, Page 383 (CHAPTER 157, SB 240)κ
Sec. 49. NRS 104.5115 is hereby amended to read as follows:
104.5115 1. [When] If an issuer wrongfully dishonors [a draft or demand for payment presented under a credit the person entitled to honor has with respect to any documents the rights of a person in the position of a seller (NRS 104.2707) and may recover from the issuer the face amount of the draft or demand together with incidental damages under NRS 104.2710 on sellers incidental damages and interest but less any amount realized by resale or other use of disposition of the subject matter of the transaction. In the event no resale or other utilization is made the documents, goods or other subject matter involved in the transaction must be turned over to the issuer on payment of judgment.
2. When an issuer wrongfully cancels or otherwise repudiates a credit before presentment of a draft or demand for payment drawn under it the beneficiary has the rights of a seller after anticipatory repudiation by the buyer under NRS 104.2610 if he learns of the repudiation in time reasonably to avoid procurement of the required documents. Otherwise the beneficiary has an immediate right of action for wrongful dishonor.] or repudiates its obligation to pay money under a letter of credit before presentation, the beneficiary, successor or nominated person presenting on its own behalf may recover from the issuer the amount that is the subject of the dishonor or repudiation. If the issuers obligation under the letter of credit is not for the payment of money, the claimant may obtain specific performance or, at his election, recover an amount equal to the value of performance from the issuer. In either case, the claimant may also recover incidental but not consequential damages. The claimant is not obligated to take action to avoid damages that might be due from the issuer under this subsection. If, although not obligated to do so, the claimant avoids damages, the claimants recovery from the issuer must be reduced by the amount of damages avoided. The issuer has the burden of proving the amount of damages avoided. In the case of repudiation the claimant need not present any document.
2. If an issuer wrongfully dishonors a draft or demand presented under a letter of credit or honors a draft or demand in breach of its obligation to the applicant, the applicant may recover damages resulting from the breach, including incidental but not consequential damages, less any amount saved as a result of the breach.
3. If an adviser or nominated person other than a confirmer breaches an obligation under this article or an issuer breaches an obligation not covered in subsection 1 or 2, a person to whom the obligation is owed may recover damages resulting from the breach, including incidental but not consequential damages, less any amount saved as a result of the breach. To the extent of the confirmation, a confirmer has the liability of an issuer specified in this subsection and subsections 1 and 2.
4. An issuer, nominated person or adviser who is found liable under subsection 1, 2 or 3 shall pay interest on the amount owed thereunder from the date of wrongful dishonor or other appropriate date.
5. Reasonable attorneys fees and other expenses of litigation must be awarded to the prevailing party in an action in which a remedy is sought under this article.
κ1997 Statutes of Nevada, Page 384 (CHAPTER 157, SB 240)κ
6. Damages that would otherwise be payable by a party for breach of an obligation under this article may be liquidated by agreement or undertaking, but only in an amount or by a formula that is reasonable in light of the harm anticipated.
Sec. 50. NRS 104.5116 is hereby amended to read as follows:
104.5116 1. [The right to draw under a credit can be transferred or assigned only when the credit is expressly designated as transferable or assignable.
2. Even though the credit specifically states that it is nontransferable or nonassignable the beneficiary may before performance of the conditions of the credit assign his right to proceeds. Such an assignment is an assignment of an account under article 9 on secured transactions and is governed by that article except that:
(a) The assignment is ineffective until the letter of credit or advice of credit is delivered to the assignee which delivery constitutes perfection of the security interest under article 9; and
(b) The issuer may honor drafts or demands for payment drawn under the credit until it receives a notification of the assignment signed by the beneficiary which reasonably identifies the credit involved in the assignment and contains a request to pay the assignee; and
(c) After what reasonably appears to be such a notification has been received the issuer may without dishonor refuse to accept or pay even to a person otherwise entitled to honor until the letter of credit or advice of credit is exhibited to the issuer.
As used in paragraphs (b) and (c) of this subsection, the word issuer includes any confirming bank.
3. Except where the beneficiary has effectively assigned his right to draw or his right to proceeds, nothing in this section limits his right to transfer or negotiate drafts or demands drawn under the credit.] Except as otherwise provided in section 3 of this act, unless a letter of credit provides that it is transferable, the right of a beneficiary to draw or otherwise demand performance under the letter of credit may not be transferred.
2. Even if a letter of credit provides that it is transferable, the issuer may refuse to recognize or carry out a transfer if:
(a) The transfer would violate applicable law; or
(b) The transferor or transferee has failed to comply with any requirement stated in the letter of credit or any other requirement relating to transfer imposed by the issuer which is within the standard practice referred to in subsection 5 of NRS 104.5109 or is otherwise reasonable under the circumstances.
Sec. 51. NRS 104.8101 is hereby amended to read as follows:
104.8101 This article [shall be known and] may be cited as Uniform Commercial Code-Investment Securities.
κ1997 Statutes of Nevada, Page 385 (CHAPTER 157, SB 240)κ
Sec. 52. NRS 104.8102 is hereby amended to read as follows:
104.8102 1. In this article [unless the context otherwise requires:
(a) A certificated security is a share, participation or other interest in property of or an enterprise of the issuer or an obligation of the issuer which is:
(1) Represented by an instrument issued in bearer or registered form;
(2) Of a type commonly dealt in on securities exchanges or markets or commonly recognized in any area in which it is issued or dealt in as a medium for investment; and
(3) Either one of a class or series or by its terms divisible into a class or series of shares, participations, interests or obligations.
(b) An uncertificated security is a share, participation or other interest in property or an enterprise of the issuer or an obligation of the issuer which is:
(1) Not represented by an instrument and the transfer of which is registered upon books maintained for that purpose by or on behalf of the issuer;
(2) Of a type commonly dealt in on securities exchanges or markets; and
(3) Either one of a class or series or by its terms divisible into a class or series of shares, participations, interests or obligations.
(c) A security is either a certificated or an uncertificated security. If a security is certificated, the terms security and certificated security may mean either the intangible interest, the instrument representing that interest, or both, as the context requires. A writing that is a certificated security is governed by this article and not by Uniform Commercial Code-Negotiable Instruments, even though it also meets the requirements of that article. This article does not apply to money. If a certificated security has been retained by or surrendered to the issuer or its transfer agent for reasons other than registration of transfer, other temporary purpose, payment, exchange, or acquisition by the issuer, that security must be treated as an uncertificated security for purposes of this article.
(d) A certificated security is in registered form if:
(1) It specifies a person entitled to the security or the rights it represents; and
(2) Its transfer may be registered upon books maintained for that purpose by or on behalf of the issuer, or the security so states.
(e) A certificated security is in bearer form if it runs to the bearer according to its terms and not by reason of any endorsement.
2. A subsequent purchaser is a person who takes other than by original issue.
3. A clearing corporation is a corporation registered as a clearing agency under the federal securities laws or a corporation:
(a) At least 90 percent of whose capital stock is held by or for one or more organizations, none of which, other than a national securities exchange or association, holds in excess of 20 percent of the capital stock of the corporation, and each of which is:
κ1997 Statutes of Nevada, Page 386 (CHAPTER 157, SB 240)κ
(1) Subject to supervision or regulation pursuant to the provisions of federal or state banking laws or state insurance laws;
(2) A broker or dealer or investment company registered under the federal securities laws; or
(3) A national securities exchange or association registered under the federal securities laws; and
(b) Any remaining capital stock of which is held by individuals who have purchased it at or before the time of their taking office as directors of the corporation and who have purchased only so much of the capital stock as is necessary to permit them to qualify as directors.
4. A custodian bank is a bank or trust company that is supervised and examined by state or federal authority having supervision over banks and is acting as custodian for a clearing corporation.
5. Other definitions applying to this article or to specified parts thereof and the sections in which they appear are:
Adverse claim. NRS 104.8302.
Bona fide purchaser. NRS 104.8302.
Broker. NRS 104.8303.
Debtor. NRS 104.9105.
Financial intermediary. NRS 104.8313.
Guarantee of the signature. NRS 104.8402.
Initial transaction statement. NRS 104.8408.
Instruction. NRS 104.8308.
Intermediary bank. NRS 104.4105.
Issuer. NRS 104.8201.
Overissue. NRS 104.8104.
Secured party. NRS 104.9105.
Security agreement. NRS 104.9105.
6.] :
(a) Adverse claim means a claim that a claimant has a property interest in a financial asset and that it is a violation of the rights of the claimant for another person to hold, transfer or deal with the financial asset.
(b) Bearer form, as applied to a certificated security, means a form in which the security is payable to the bearer of the security certificate according to its terms but not by reason of an endorsement.
(c) Broker means a person defined as a broker or dealer under the federal securities laws, but without excluding a bank acting in that capacity.
(d) Certificated security means a security that is represented by a certificate.
(e) Clearing corporation means:
(1) A person that is registered as a clearing agency under the federal securities laws;
(2) A federal reserve bank; or
(3) Any other person that provides clearance or settlement with respect to financial assets that would require it to register as a clearing agency under the federal securities laws but for an exclusion or exemption from the requirement of registration, if its activities as a clearing corporation, including promulgation of rules, are subject to regulation by a federal or state governmental authority.
κ1997 Statutes of Nevada, Page 387 (CHAPTER 157, SB 240)κ
under the federal securities laws but for an exclusion or exemption from the requirement of registration, if its activities as a clearing corporation, including promulgation of rules, are subject to regulation by a federal or state governmental authority.
(f) Communicate means to:
(1) Send a signed writing; or
(2) Transmit information by any mechanism agreed upon by the persons transmitting and receiving the information.
(g) Endorsement means a signature that alone or accompanied by other words is made on a security certificate in registered form or on a separate document for the purpose of assigning, transferring or redeeming the security or granting a power to assign, transfer or redeem it.
(h) Entitlement holder means a person identified in the records of a securities intermediary as the person having a security entitlement against the securities intermediary. If a person acquires a security entitlement by virtue of paragraph (a) or (b) of subsection 2 of section 23 of this act, he is the entitlement holder.
(i) Entitlement order means a notification communicated to a securities intermediary directing transfer or redemption of a financial asset to which the entitlement holder has a security entitlement.
(j) Financial asset, except as otherwise provided in section 8 of this act, means:
(1) A security;
(2) An obligation of a person or a share, participation or other interest in a person or in property or an enterprise of a person, which is, or is of a type, dealt in or traded on financial markets, or which is recognized in any area in which it is issued or dealt in as a medium for investment; or
(3) Any property that is held by a securities intermediary for another person in a securities account if the securities intermediary has expressly agreed with the other person that the property is to be treated as a financial asset under this article.
As context requires, the term means the interest itself or the means by which a persons claim to it is evidenced, including a certificated or uncertificated security, a security certificate or a security entitlement.
(k) Good faith, for purposes of the obligation of good faith in the performance or enforcement of contracts or duties within this article, means honesty in fact and the observance of reasonable commercial standards of fair dealing.
(l) Instruction means a notification communicated to the issuer of an uncertificated security which directs that the transfer of the security be registered or that the security be redeemed.
(m) Registered form, as applied to a certificated security, means a form in which:
(1) The security certificate specifies a person entitled to the security; and
(2) A transfer of the security may be registered upon books maintained for that purpose by or on behalf of the issuer, or the security certificate so states.
(n) Securities intermediary means:
κ1997 Statutes of Nevada, Page 388 (CHAPTER 157, SB 240)κ
(1) A clearing corporation; or
(2) A person, including a bank or broker, that in the ordinary course of its business maintains securities accounts for others and is acting in that capacity.
(o) Security, except as otherwise provided in section 8 of this act, means an obligation of an issuer or a share, participation or other interest in an issuer or in property or an enterprise of an issuer:
(1) Which is represented by a security certificate in bearer or registered form, or the transfer of which may be registered upon books maintained for that purpose by or on behalf of the issuer;
(2) Which is one of a class or series or by its terms is divisible into a class or series of shares, participations, interests or obligations; and
(3) Which:
(I) Is, or is of a type, dealt in or traded on securities exchanges or securities markets; or
(II) Is a medium for investment and by its terms expressly provides that it is a security governed by this article.
(p) Security certificate means a certificate representing a security.
(q) Security entitlement means the rights and property interest of an entitlement holder with respect to a financial asset specified in part 5 of this article.
(r) Uncertificated security means a security that is not represented by a certificate.
2. Other definitions applying to this article and the sections in which they appear are:
Appropriate person. Section 11 of this act.
Control. Section 10 of this act.
Delivery. Section 16 of this act.
Investment company security. Section 8 of this act.
Issuer. NRS 104.8201.
Overissue. NRS 104.8104.
Protected purchaser. Section 18 of this act.
Securities account. Section 23 of this act.
3. In addition , article 1 contains general definitions and principles of construction and interpretation applicable throughout this article.
4. The characterization of a person, business or transaction for purposes of this article does not determine the characterization of the person, business or transaction for purposes of any other law, regulation or rule.
Sec. 53. NRS 104.8103 is hereby amended to read as follows:
104.8103 A lien [upon a security] in favor of an issuer [thereof] upon a certificated security is valid against a purchaser only if [:
1. The security is certificated and] the right of the issuer to the lien is noted conspicuously [thereon; or
2. The security is uncertificated and a notation of the right of the issuer to the lien is contained in the initial transaction statement sent to the purchaser or, if his interest is transferred to him other than by registration of transfer, pledge or release, the initial transaction statement sent to the registered owner or the registered pledgee.]
κ1997 Statutes of Nevada, Page 389 (CHAPTER 157, SB 240)κ
of transfer, pledge or release, the initial transaction statement sent to the registered owner or the registered pledgee.] on the security certificate.
Sec. 54. NRS 104.8104 is hereby amended to read as follows:
104.8104 1. [The provisions of this article which validate a security or compel its issue or reissue do not apply to the extent that validation, issue or reissue would result in overissue, but:
(a) If an identical security which does not constitute an overissue is reasonably available for purchase, the person entitled to issue or validation may compel the issuer to purchase the security for him and either to deliver a certificated security or to register the transfer of an uncertificated security to him against surrender of any certificated security he holds; or
(b) If a security is not so available for purchase, the person entitled to issue or validation may recover from the issuer the price he or the last purchaser for value paid for it with interest from the date of his demand.
2. Overissue] As used in this section, overissue means the issue of securities in excess of the amount the issuer has corporate power to issue [.] , but an overissue does not occur if appropriate action has cured the overissue.
2. Except as otherwise provided in subsections 3 and 4, the provisions of this article which validate a security or compel its issue or reissue do not apply to the extent that validation, issue or reissue would result in overissue.
3. If an identical security not constituting an overissue is reasonably available for purchase, a person entitled to issue or validation may compel the issuer to purchase the security and deliver it if certificated or register its transfer if uncertificated, against surrender of any security certificate he holds.
4. If a security is not reasonably available for purchase, a person entitled to issue or validation may recover from the issuer the price he or the last purchaser for value paid for it with interest from the date of his demand.
Sec. 55. NRS 104.8105 is hereby amended to read as follows:
104.8105 [1. Certificated securities governed by this article are negotiable instruments.
2. Statements (NRS 104.8408), notices, or the like, sent by the issuer of uncertificated securities and instructions (NRS 104.8308) are neither negotiable instruments nor certificated securities.
3. In any action on a security:
(a)] The following rules apply in an action on a certificated security against an issuer:
1. Unless specifically denied in the pleadings, each signature on a [certificated] security [,] certificate or in a necessary endorsement [, on an initial transaction statement, or on an instruction,] is admitted . [;
(b)] 2. If the effectiveness of a signature is put in issue, the burden of establishing [it] effectiveness is on the party claiming under the signature, but the signature is presumed to be genuine or authorized . [;
(c)] 3. If signatures on a [certificated] security certificate are admitted or established, production of the [security] certificate entitles a holder to recover on it unless the defendant establishes a defense or a defect going to the validity of the security . [;
κ1997 Statutes of Nevada, Page 390 (CHAPTER 157, SB 240)κ
(d) If signatures on an initial transaction statement are admitted or established, the facts stated in the statement are presumed to be true as of the time of its issuance; and
(e) After]
4. If it is shown that a defense or defect exists, the plaintiff has the burden of establishing that he or some person under whom he claims is a person against whom the defense or defect [is ineffective (NRS 104.8202).] cannot be asserted.
Sec. 56. NRS 104.8106 is hereby amended to read as follows:
104.8106 1. The [law (including the conflict of laws rules) of the jurisdiction of organization of the issuer governs the validity of a security, the effectiveness of registration by the issuer, and the rights and duties of the issuer with respect to:
1. Registration of transfer of a certificated security;
2. Registration of transfer, pledge or release of an uncertificated security; and
3. Sending of statements of uncertificated securities.] local law of the issuers jurisdiction, as specified in subsection 4, governs:
(a) The validity of a security;
(b) The rights and duties of the issuer with respect to registration of transfer;
(c) The effectiveness of registration of transfer by the issuer;
(d) Whether the issuer owes any duties to an adverse claimant to a security; and
(e) Whether an adverse claim can be asserted against a person to whom transfer of a certificated or uncertificated security is registered or a person who obtains control of an uncertificated security.
2. The local law of the securities intermediarys jurisdiction, as specified in subsection 5, governs:
(a) Acquisition of a security entitlement from the securities intermediary;
(b) The rights and duties of the securities intermediary and entitlement holder arising out of a security entitlement;
(c) Whether the securities intermediary owes any duties to an adverse claimant to a security entitlement; and
(d) Whether an adverse claim can be asserted against a person who acquires a security entitlement from the securities intermediary or a person who purchases a security entitlement or interest therein from an entitlement holder.
3. The local law of the jurisdiction in which a security certificate is located at the time of delivery governs whether an adverse claim can be asserted against a person to whom the security certificate is delivered.
4. Issuers jurisdiction means the jurisdiction under which the issuer of the security is organized or, if permitted by the law of that jurisdiction, the law of another jurisdiction specified by the issuer. An issuer organized under the law of this state may specify the law of another jurisdiction as the law governing the matters specified in paragraphs (b) to (e), inclusive, of subsection 1.
5. The following rules determine a securities intermediarys jurisdiction for purposes of this section:
κ1997 Statutes of Nevada, Page 391 (CHAPTER 157, SB 240)κ
(a) If an agreement between the securities intermediary and its entitlement holder specifies that it is governed by the law of a particular jurisdiction, that jurisdiction is the securities intermediarys jurisdiction.
(b) If an agreement between the securities intermediary and its entitlement holder does not specify the governing law as provided in paragraph (a), but expressly specifies that the securities account is maintained at an office in a particular jurisdiction, that jurisdiction is the securities intermediarys jurisdiction.
(c) If an agreement between the securities intermediary and its entitlement holder does not specify a jurisdiction as provided in paragraph (a) or (b), the securities intermediarys jurisdiction is the jurisdiction in which is located the office identified in an account statement as the office serving the entitlement holders account.
(d) If an agreement between the securities intermediary and its entitlement holder does not specify a jurisdiction as provided in paragraph (a) or (b) and an account statement does not identify an office serving the entitlement holders account as provided in paragraph (c), the securities intermediarys jurisdiction is the jurisdiction in which its chief executive office is located.
6. A securities intermediarys jurisdiction is not determined by the physical location of certificates representing financial assets, or by the jurisdiction in which is organized the issuer of the financial asset with respect to which an entitlement holder has a security entitlement or by the location of facilities for data processing or other record keeping concerning the account.
Sec. 57. NRS 104.8201 is hereby amended to read as follows:
104.8201 1. With respect to [obligations] an obligation on or [defenses] a defense to a security, an issuer includes a person who:
(a) Places or authorizes the placing of his name on a [certificated security (otherwise] security certificate, other than as authenticating trustee, registrar, transfer agent or the like , [)] to evidence [that it represents] a share, participation or other interest in his property or in an enterprise , or to evidence his duty to perform an obligation represented by the [certificated security;] certificate;
(b) Creates [shares, participations or other interests] a share, participation or other interest in his property or in an enterprise , or undertakes [obligations, which shares, participations, interests or obligations are uncertificated securities;] an obligation, that is an uncertificated security;
(c) Directly or indirectly creates fractional [interests] interest in his rights or property, [which fractional interests are] if the fractional interest is represented by [certificated securities;] a security certificate; or
(d) Becomes responsible for , or in place of , any other person described as an issuer in this section.
2. With respect to [obligations] an obligation on or [defenses] defense to a security, a guarantor is an issuer to the extent of his guaranty, whether or not his obligation is noted on a [certificated security or on statements of uncertificated securities sent pursuant to NRS 104.8408.] security certificate.
κ1997 Statutes of Nevada, Page 392 (CHAPTER 157, SB 240)κ
3. With respect to registration of transfer, [pledge or release (part 4 of this article),] issuer means a person on whose behalf transfer books are maintained.
Sec. 58. NRS 104.8202 is hereby amended to read as follows:
104.8202 1. Even against a purchaser for value and without notice, the terms of a certificated security include [:
(a) If the security is certificated, those stated on the security;
(b) If the security is uncertificated, those contained in the initial transaction statement sent to such purchaser or, if his interest is transferred to him other than by registration of transfer, pledge or release, the initial transaction statement sent to the registered owner or registered pledgee; and
(c) Those] the terms stated on the certificate and the terms made part of the security by reference [,] on the [certificated security or in the initial transaction statement,] certificate to another instrument, indenture, or document or to a constitution, statute, ordinance, rule, regulation, order or the like, to the extent [that] the terms referred to do not conflict with [the] terms stated on the [certificated security or contained in the statement.] certificate. A reference under this [paragraph] subsection does not of itself charge a purchaser for value with notice of a defect going to the validity of the security, even [though the certificated security or statement] if the certificate expressly states that a person accepting it admits notice. The terms of an uncertificated security include those stated in any instrument, indenture or document, or in a constitution, statute, ordinance, rule, regulation, order or the like, pursuant to which the security was issued.
2. [A certificated security in the hands of a purchaser for value or an uncertificated security as to which an initial transaction statement has been sent to a purchaser for value, other than a security] The following rules apply if an issuer asserts that a security is not valid:
(a) A security other than one issued by a government or governmental [agency or unit,] subdivision, agency or instrumentality, even though issued with a defect going to its validity, is valid [with respect to the purchaser if he is] in the hands of a purchaser for value and without notice of the particular defect unless the defect involves a violation of [constitutional provisions, in which] a constitutional provision. In that case the security is valid [with respect to a subsequent] in the hands of a purchaser for value and without notice of the defect [. This subsection] other than one who takes by original issue.
(b) Paragraph (a) applies to an issuer that is a government or governmental [agency or unit] subdivision, agency or instrumentality only if [either] there has been substantial compliance with the legal requirements governing the issue or the issuer has received a substantial consideration for the issue as a whole or for the particular security and a stated purpose of the issue is one for which the issuer has power to borrow money or issue the security.
3. Except as otherwise provided in [the case of certain unauthorized signatures (] NRS 104.8205 , [),] lack of genuineness of a certificated security [or an initial transaction statement] is a complete defense even against a purchaser for value and without notice.
κ1997 Statutes of Nevada, Page 393 (CHAPTER 157, SB 240)κ
4. All other defenses of the issuer of a [certificated or uncertificated] security, including nondelivery and conditional delivery of a certificated security, are ineffective against a purchaser for value who has taken the certificated security without notice of the particular defense.
5. [Nothing in this section shall be construed to] This section does not affect the right of a party to [a] cancel a contract for a security when, as and if issued or [a] when distributed [contract to cancel the contract] in the event of a material change in the character of the security that is the subject of the contract or in the plan or arrangement pursuant to which the security is to be issued or distributed.
6. If a security is held by a securities intermediary against whom an entitlement holder has a security entitlement with respect to the security, the issuer may not assert any defense that it could not assert if the entitlement holder held the security directly.
Sec. 59. NRS 104.8203 is hereby amended to read as follows:
104.8203 [1.] After an act or event , other than a call that has been revoked, creating a right to immediate performance of the principal obligation represented by a certificated security or [that sets] setting a date on or after which the security is to be presented or surrendered for redemption or exchange, a purchaser is charged with notice of any defect in its issue or defense of the issuer [:
(a) If] if the act or event [is one requiring] :
1. Requires the payment of money, the delivery of a certificated [securities,] security, the registration of transfer of an uncertificated [securities,] security, or any of [these] them on presentation or surrender of the [certificated security, the funds or securities are] security certificate, the money or security is available on the date set for payment or exchange , and he takes the security more than 1 year after that date; [and
(b) If the act or event is] or
2. Is not covered by [paragraph (a)] subsection 1 and he takes the security more than 2 years after the date set for surrender or presentation or the date on which performance became due.
[2. A call that has been revoked is not within subsection 1.]
Sec. 60. NRS 104.8204 is hereby amended to read as follows:
104.8204 A restriction on transfer of a security imposed by the issuer, even if otherwise lawful, is ineffective against any person without actual knowledge of [it] the restriction unless:
1. The security is certificated and the restriction is noted conspicuously [thereon;] on the security certificate; or
2. The security is uncertificated and [a notation of the restriction is contained in the initial transaction statement sent to the person or, if his interest is transferred to him other than by registration of transfer, pledge or release, the initial transaction statement sent to the registered owner or the registered pledgee.] the registered owner has been notified of the restriction.
Sec. 61. NRS 104.8205 is hereby amended to read as follows:
104.8205 An unauthorized signature placed on a [certificated security prior to] security certificate before or in the course of issue [or placed on an initial transaction statement] is ineffective, but the signature is effective in favor of a purchaser for value of the certificated security [or a purchaser for value of an uncertificated security to whom the initial transaction statement has been sent,] if the purchaser is without notice of the lack of authority and the signing has been done by:
κ1997 Statutes of Nevada, Page 394 (CHAPTER 157, SB 240)κ
value of an uncertificated security to whom the initial transaction statement has been sent,] if the purchaser is without notice of the lack of authority and the signing has been done by:
1. An authenticating trustee, registrar, transfer agent or other person entrusted by the issuer with the signing of the security [, of similar securities, or of initial transaction statements] certificate or of similar security certificates, or the immediate preparation for signing of any of them; or
2. An employee of the issuer , or of any of the [foregoing] persons listed in subsection 1, entrusted with responsible handling of the security [or initial transaction statement.] certificate.
Sec. 62. NRS 104.8206 is hereby amended to read as follows:
104.8206 1. If a certificated security contains the signatures necessary to its issue or transfer but is incomplete in any other respect:
(a) Any person may complete it by filling in the blanks as authorized; and
(b) Even though the blanks are incorrectly filled in, the security as completed is enforceable by a purchaser who took it for value and without notice of the incorrectness.
2. A complete certificated security that has been improperly altered, even though fraudulently, remains enforceable, but only according to its original terms.
[3. If an initial transaction statement contains the signatures necessary to its validity but is incomplete in any other respect:
(a) Any person may complete it by filling in the blanks as authorized; and
(b) Even though the blanks are incorrectly filled in, the statement as completed is effective in favor of the person to whom it is sent if he purchased the security referred to therein for value and without notice of the incorrectness.
4. A complete initial transaction statement that has been improperly altered, even though fraudulently, is effective in favor of a purchaser to whom it has been sent but only according to its original terms.]
Sec. 63. NRS 104.8207 is hereby amended to read as follows:
104.8207 1. [Prior to due] Before the presentment for registration of transfer of a certificated security in registered form [,] or of an instruction requesting transfer of an uncertificated security, the issuer or indenture trustee may treat the registered owner as the person exclusively entitled to vote, [to] receive notifications and otherwise [to] exercise all the rights and powers of an owner.
2. [Subject to the provisions of subsections 3, 4 and 6, the issuer or indenture trustee may treat the registered owner of an uncertificated security as the person exclusively entitled to vote, to receive notifications and otherwise to exercise all the rights and powers of an owner.
3. The registered owner of an uncertificated security that is subject to a registered pledge is not entitled to registration of transfer prior to the due presentment to the issuer of a release instruction. The exercise of conversion rights with respect to a convertible uncertificated security is a transfer within the meaning of this section.
κ1997 Statutes of Nevada, Page 395 (CHAPTER 157, SB 240)κ
conversion rights with respect to a convertible uncertificated security is a transfer within the meaning of this section.
4. Upon due presentment of a transfer instruction from the registered pledgee of an uncertificated security, the issuer shall:
(a) Register the transfer of the security to the new owner free of pledge, if the instruction specifies a new owner (who may be the registered pledgee) and does not specify a pledgee;
(b) Register the transfer of the security to the new owner subject to the interest of the existing pledgee, if the instruction specifies a new owner and the existing pledgee; or
(c) Register the release of the security from the existing pledge and register the pledge of the security to the other pledgee, if the instruction specifies the existing owner and another pledgee.
5. Continuity of perfection of a security interest is not broken by registration of transfer under paragraph (b) of subsection 4 or by registration of release and pledge under paragraph (c) of subsection 4, if the security interest is assigned.
6. If an uncertificated security is subject to a registered pledge:
(a) Any uncertificated securities issued in exchange for or distributed with respect to the pledged security shall be registered subject to the pledge;
(b) Any certificated securities issued in exchange for or distributed with respect to the pledged security shall be delivered to the registered pledgee; and
(c) Any money paid in exchange for or in redemption of part or all of the security shall be paid to the registered pledgee.
7. Nothing in this article shall be construed to] This article does not affect the liability of the registered owner of a security for calls, assessments or the like.
Sec. 64. NRS 104.8208 is hereby amended to read as follows:
104.8208 1. A person [placing his signature upon a certificated security or an initial transaction statement] signing a security certificate as authenticating trustee, registrar, transfer agent or the like warrants to a purchaser for value of the certificated security , [or a purchaser for value of an uncertificated security to whom the initial transaction statement has been sent,] if the purchaser is without notice of [the] a particular defect, that:
(a) The [certificated security or initial transaction statement] certificate is genuine;
(b) His own participation in the issue or registration of the transfer, pledge or release of the security is within his capacity and within the scope of the authority received by him from the issuer; and
(c) He has reasonable grounds to believe that the certificated security is in the form and within the amount the issuer is authorized to issue.
2. Unless otherwise agreed, a person [by so placing his signature] signing under subsection 1 does not assume responsibility for the validity of the security in other respects.
κ1997 Statutes of Nevada, Page 396 (CHAPTER 157, SB 240)κ
Sec. 65. NRS 104.8304 is hereby amended to read as follows:
104.8304 1. A [purchaser (including a broker for the seller or buyer but excluding an intermediary bank) of a certificated security is charged with notice of adverse claims if:
(a) The security, whether in bearer or registered form, has been endorsed for collection or for surrender or for some other purpose not involving transfer; or
(b) The security is in bearer form and has on it an unambiguous statement that it is the property of a person other than the transferor. The mere writing of a name on a security is not such a statement.
2. A purchaser (including a broker for the seller or buyer but excluding an intermediary bank) to whom the transfer, pledge or release of an uncertificated security is registered is charged with notice of adverse claims as to which the issuer has a duty under subsection 4 of NRS 104.8403 at the time of registration and which are noted in the initial transaction statement sent to the purchaser or, if his interest is transferred to him other than by registration of transfer, pledge or release, the initial transaction statement sent to the registered owner or the registered pledgee.
3. The fact that the purchaser (including a broker for the seller or buyer) of a certificated or uncertificated security has notice that the security is held for a third person or is registered in the name of or endorsed by a fiduciary does not create a duty of inquiry into the rightfulness of the transfer or constitute constructive notice of adverse claims. However, if the purchaser (excluding an intermediary bank) has knowledge that the proceeds are being used or that the transaction is for the individual benefit of the fiduciary or otherwise in breach of duty, the purchaser is charged with notice of adverse claims.] person has notice of an adverse claim if he:
(a) Knows of the adverse claim;
(b) Is aware of facts sufficient to indicate that there is a significant probability that the adverse claim exists and deliberately avoids information that would establish the existence of the adverse claim; or
(c) Has a duty, imposed by statute or regulation, to investigate whether an adverse claim exists, and the investigation so required would establish the existence of the adverse claim.
2. Having knowledge that a financial asset or interest therein is or has been transferred by a representative imposes no duty of inquiry into the rightfulness of a transaction and is not notice of an adverse claim. However, a person who knows that a representative has transferred a financial asset or interest therein in a transaction that is, or whose proceeds are being used, for the individual benefit of the representative or otherwise in breach of duty has notice of an adverse claim.
3. An act or event that creates a right to immediate performance of the principal obligation represented by a security certificate or sets a date on or after which the certificate is to be presented or surrendered for redemption or exchange does not itself constitute notice of an adverse claim except in the case of a transfer more than:
κ1997 Statutes of Nevada, Page 397 (CHAPTER 157, SB 240)κ
(a) One year after a date set for presentment or surrender for redemption or exchange; or
(b) Six months after a date set for payment of money against presentation or surrender of the certificate, if money was available for payment on that date.
4. A purchaser of a certificated security has notice of an adverse claim if the security certificate:
(a) Whether in bearer or registered form, has been endorsed for collection or for surrender or for some other purpose not involving transfer; or
(b) Is in bearer form and has on it an unambiguous statement that it is the property of a person other than the transferor, but the mere writing of a name on the certificate is not such a statement.
5. Filing of a financing statement under article 9 is not notice of an adverse claim to a financial asset.
Sec. 66. NRS 104.8316 is hereby amended to read as follows:
104.8316 Unless otherwise agreed, the transferor of a [certificated security or the transferor, pledgor or pledgee of an uncertificated] security on due demand [must supply his] shall supply the purchaser with [any] proof of [his] authority to transfer [, pledge or release] or with any other requisite necessary to obtain registration of the transfer [, pledge or release] of the security , [;] but if the transfer [, pledge or release] is not for value, a transferor [, pledgor or pledgee] need not [do so] comply unless the purchaser [furnishes] pays the necessary expenses. [Failure] If the transferor fails within a reasonable time to comply with [a demand made gives] the demand, the purchaser [the right to] may reject or rescind the transfer . [, pledge or release.]
Sec. 67. NRS 104.8317 is hereby amended to read as follows:
104.8317 1. [Subject to the exceptions in subsections 3 and 4, no attachment or levy upon a certificated security or any share or other interest represented thereby which is outstanding is valid until the security is actually seized by the officer making the attachment or levy, but a certificated security which has been surrendered to the issuer may be reached by a creditor by legal process at the issuers chief executive office in the United States.
2. An uncertificated security registered in the name of the debtor may not be reached by a creditor except by legal process at the issuers chief executive office in the United States.
3. The interest of a debtor in a certificated security that is in the possession of a secured party not a financial intermediary or in an uncertificated security registered in the name of a secured party not a financial intermediary (or in the name of a nominee of the secured party) may be reached by a creditor by legal process upon the secured party.
4. The interest of a debtor in a certificated security that is in the possession of or registered in the name of a financial intermediary or in an uncertificated security registered in the name of a financial intermediary may be reached by a creditor by legal process upon the financial intermediary on whose books the interests of the debtor appears.
κ1997 Statutes of Nevada, Page 398 (CHAPTER 157, SB 240)κ
may be reached by a creditor by legal process upon the financial intermediary on whose books the interests of the debtor appears.
5. Unless otherwise provided by law, a creditors lien upon the interest of a debtor in a security obtained pursuant to subsection 3 or 4 is not a restraint on the transfer of the security, free of the lien, to a third party for new value; but in the event of a transfer, the lien applies to the proceeds of the transfer in the hands of the secured party or financial intermediary, subject to any claims having priority.
6. A creditor whose debtor is the owner of a security is entitled to aid from courts of appropriate jurisdiction, by injunction or otherwise, in reaching the security or in satisfying the claim by means allowed at law or in equity in regard to property that cannot readily be reached by ordinary legal process.
7. An officer executing an attachment or levy in this state upon an uncertificated security may provide notice of the attachment or levy to:
(a) The issuer; and
(b) The debtor or other person in whose name the security is registered,
in lieu of actually seizing evidence of ownership of the security. Notice must be given in person or by certified mail, return receipt requested, to the last known address of the person served.] Except as otherwise provided in subsection 4, the interest of a debtor in a certificated security may be reached by a creditor only by actual seizure of the security certificate by the officer making the attachment or levy. However, a certificated security for which the certificate has been surrendered to the issuer may be reached by a creditor by legal process upon the issuer.
2. Except as otherwise provided in subsection 4, the interest of a debtor in an uncertificated security may be reached by a creditor only by legal process upon the issuer at its chief executive office in the United States.
3. Except as otherwise provided in subsection 4, the interest of a debtor in a security entitlement may be reached by a creditor only by legal process upon the securities intermediary with whom the debtors securities account is maintained.
4. The interest of a debtor in a certificated security for which the certificate is in the possession of a secured party, or in an uncertificated security registered in the name of a secured party, or a security entitlement maintained in the name of a secured party, may be reached by a creditor by legal process upon the secured party.
5. A creditor whose debtor is the owner of a certificated security, uncertificated security or security entitlement is entitled to aid from a court of competent jurisdiction, by injunction or otherwise, in reaching the certificated security, uncertificated security or security entitlement or in satisfying the claim by means allowed at law or in equity in regard to property that cannot readily be reached by other legal process.
Sec. 68. NRS 104.8318 is hereby amended to read as follows:
104.8318 [An agent or bailee who in good faith (including observance of reasonable commercial standards if he is in the business of buying, selling or otherwise dealing with securities) has received certificated securities and sold, pledged or delivered them or has sold or caused the transfer or pledge of uncertificated securities over which he had control according to the instructions of his principal, is not liable for conversion or for participation in breach of fiduciary duty although the principal had no right so to deal with the securities.]
κ1997 Statutes of Nevada, Page 399 (CHAPTER 157, SB 240)κ
securities and sold, pledged or delivered them or has sold or caused the transfer or pledge of uncertificated securities over which he had control according to the instructions of his principal, is not liable for conversion or for participation in breach of fiduciary duty although the principal had no right so to deal with the securities.] A securities intermediary that has transferred a financial asset pursuant to an effective entitlement order, or a broker or other agent or bailee that has dealt with a financial asset at the direction of his customer or principal, is not liable to a person having an adverse claim to the financial asset, unless he:
1. Took the action after he had been served with an injunction, restraining order or other legal process enjoining him from doing so, issued by a court of competent jurisdiction, and had a reasonable opportunity to act on the injunction, restraining order or other legal process;
2. Acted in collusion with the wrongdoer in violating the rights of the adverse claimant; or
3. In the case of a security certificate that had been stolen, acted with notice of the adverse claim.
Sec. 69. NRS 104.8319 is hereby amended to read as follows:
104.8319 A contract [for the sale of securities is not enforceable by way of action or defense unless:
1. There is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker sufficient to indicate that a contract has been made for sale of a stated quantity of described securities at a defined or stated price;
2. Delivery of a certificated security or transfer instruction has been accepted, or transfer of an uncertificated security has been registered and the transferee has failed to send written objection to the issuer within 10 days after receipt of the initial transaction statement confirming the registration, or payment has been made, but the contract is enforceable under this provision only to the extent of the delivery, registration or payment;
3. Within a reasonable time a writing in confirmation of the sale or purchase and sufficient against the sender under subsection 1 has been received by the party against whom enforcement is sought and he has failed to send written objection to its contents within 10 days after its receipt; or
4. The party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract was made for the sale of a stated quantity of described securities at a defined or stated price.] or modification of a contract for the sale or purchase of a security is enforceable whether or not there is a writing signed or record authenticated by a party against whom enforcement is sought, even if the contract or modification is not capable of performance within 1 year after its making.
Sec. 70. NRS 104.8401 is hereby amended to read as follows:
104.8401 1. If a certificated security in registered form is presented to [the] an issuer with a request to register transfer or an instruction is presented to [the] an issuer with a request to register transfer [, pledge or release,] of an uncertificated security, the issuer shall register the transfer, pledge or release as requested if:
κ1997 Statutes of Nevada, Page 400 (CHAPTER 157, SB 240)κ
release,] of an uncertificated security, the issuer shall register the transfer, pledge or release as requested if:
(a) [The security is endorsed or the instruction was originated by the appropriate person or persons (NRS 104.8308);
(b) Reasonable assurance is given that those endorsements or instructions are genuine and effective (NRS 104.8402);
(c) The issuer has no duty as to adverse claims or has discharged the duty (NRS 104.8403);] Under the terms of the security, the person seeking registration of transfer is eligible to have the security registered in his name;
(b) The endorsement or instruction is made by the appropriate person or by an agent who has actual authority to act on behalf of the appropriate person;
(c) Reasonable assurance is given that the endorsement or instruction is genuine and authorized;
(d) Any applicable law relating to the collection of taxes has been complied with; [and]
(e) The transfer does not violate any restriction on transfer imposed by the issuer in accordance with NRS 104.8204;
(f) A demand that the issuer not register transfer has not become effective under NRS 104.8403, or the issuer has complied with subsection 2 of that section but no legal process or indemnity bond is obtained as provided in subsection 4 of that section; and
(g) The transfer [, pledge or release] is in fact rightful or is to a [bona fide] protected purchaser.
2. If an issuer is under a duty to register a transfer [, pledge or release] of a security, [the issuer is also] he is liable to the person presenting a certificated security or an instruction for registration or his principal for loss resulting from [any] unreasonable delay in registration or [from] failure or refusal to register the transfer . [, pledge or release.]
Sec. 71. NRS 104.8402 is hereby amended to read as follows:
104.8402 1. [The] An issuer may require the following assurance that each necessary endorsement [of a certificated security] or each instruction [(NRS 104.8308)] is genuine and [effective:] authorized:
(a) In all cases, a [guarantee] guaranty of the signature [(subsection 1 or 2 of NRS 104.8312)] of the person [endorsing a certificated security] making an endorsement or originating an instruction including, in the case of an instruction, [a warranty of the taxpayer identification number or, in the absence thereof, other] reasonable assurance of identity;
(b) If the endorsement is made or the instruction is originated by an agent, appropriate assurance of actual authority to sign;
(c) If the endorsement is made or the instruction is originated by a fiduciary [,] pursuant to paragraph (d) or (e) of subsection 1 of section 11 of this act, appropriate evidence of appointment or incumbency;
(d) If there is more than one fiduciary, reasonable assurance that all who are required to sign have done so; and
κ1997 Statutes of Nevada, Page 401 (CHAPTER 157, SB 240)κ
(e) If the endorsement is made or the instruction is originated by a person not covered by [any of the foregoing,] another provision of this subsection, assurance appropriate to the case corresponding as nearly as may be to the [foregoing.
2. A guarantee] provisions of this subsection.
2. An issuer may elect to require reasonable assurance beyond that specified in this section.
3. As used in this section:
(a) Guaranty of the signature [in subsection 1] means a [guarantee] guaranty signed by or on behalf of a person reasonably believed by the issuer to be responsible. [The] An issuer may adopt standards with respect to responsibility if they are not manifestly unreasonable.
[3.] (b) Appropriate evidence of appointment or incumbency [in subsection 1 means:
(a)] means:
(1) In the case of a fiduciary appointed or qualified by a court, a certificate issued by or under the direction or supervision of [that] the court or an officer thereof and dated within 60 days before the date of presentation for transfer [, pledge or release; or
(b)] ; or
(2) In any other case, a copy of a document showing the appointment or a certificate issued by or on behalf of a person reasonably believed by the issuer to be responsible or, in the absence of that document or certificate, other evidence reasonably deemed by the issuer to be appropriate. [The issuer may adopt standards with respect to the evidence if they are not manifestly unreasonable. The issuer is not charged with notice of the contents of any document obtained pursuant to this paragraph (b) except to the extent that the contents relate directly to the appointment or incumbency.
4. The issuer may elect to require reasonable assurance beyond that specified in this section, but if it does so and, for a purpose other than that specified in paragraph (b) of subsection 3, both requires and obtains a copy of a will, trust, indenture, articles of copartnership, bylaws or other controlling instrument, it is charged with notice of all matters contained therein affecting the transfer, pledge or release.]
Sec. 72. NRS 104.8403 is hereby amended to read as follows:
104.8403 1. [An issuer to whom a certificated security is presented for registration shall inquire into adverse claims if:
(a) A written notification of an adverse claim is received at a time and in a manner affording the issuer a reasonable opportunity to act on it prior to the issuance of a new, reissued or reregistered certificated security, and the notification identifies the claimant, the registered owner and the issue of which the security is a part and provides an address for communications directed to the claimant; or
(b) The issuer is charged with notice of an adverse claim from a controlling instrument it has elected to require under subsection 4 of NRS 104.8402.
κ1997 Statutes of Nevada, Page 402 (CHAPTER 157, SB 240)κ
2. The issuer may discharge any duty of inquiry by any reasonable means, including notifying an adverse claimant by registered or certified mail at the address furnished by him or, if there be no such address, at his residence or regular place of business that the certificated security has been presented for registration of transfer by a named person, and that the transfer will be registered unless within 30 days from the date of mailing the notification, either:
(a) An appropriate restraining order, injunction or other process issues from a court of competent jurisdiction; or
(b) There is filed with the issuer an indemnity bond, sufficient in the issuers judgment to protect the issuer and any transfer agent, registrar or other agent of the issuer involved, from any loss it or they may suffer by complying with the adverse claim.
3. Unless an issuer is charged with notice of an adverse claim from a controlling instrument which it has elected to require under subsection 4 of NRS 104.8402 or receives notification of an adverse claim under subsection 1, if a certificated security presented for registration is endorsed by the appropriate person or persons the issuer is under no duty to inquire into adverse claims. In particular:
(a) An issuer registering a certificated security in the name of a person who is a fiduciary or who is described as a fiduciary is not bound to inquire into the existence, extent or correct description of the fiduciary relationship, and thereafter the issuer may assume without inquiry that the newly registered owner continues to be the fiduciary until the issuer receives written notice that the fiduciary is no longer acting as such with respect to the particular security;
(b) An issuer registering transfer on an endorsement by a fiduciary is not bound to inquire whether the transfer is made in compliance with a controlling instrument or with the law of the state having jurisdiction of the fiduciary relationship, including any law requiring the fiduciary to obtain court approval of the transfer; and
(c) The issuer is not charged with notice of the contents of any court record or file or other recorded or unrecorded document even though the document is in its possession and even though the transfer is made on the endorsement of a fiduciary to the fiduciary himself or to his nominee.
4. An issuer is under no duty as to adverse claims with respect to an uncertificated security except:
(a) Claims embodied in a restraining order, injunction or other legal process served upon the issuer if the process was served at a time and in a manner affording the issuer a reasonable opportunity to act on it in accordance with the requirements of subsection 5;
(b) Claims of which the issuer has received a written notification from the registered owner or the registered pledgee if the notification was received at a time and in a manner affording the issuer a reasonable opportunity to act on it in accordance with the requirements of subsection 5;
κ1997 Statutes of Nevada, Page 403 (CHAPTER 157, SB 240)κ
(c) Claims (including restrictions on transfer not imposed by the issuer) to which the registration of transfer to the present registered owner was subject and were so noted in the initial transaction statement sent to him; and
(d) Claims as to which an issuer is charged with notice from a controlling instrument it has elected to require under subsection 4 of NRS 104.8402.
5. If the issuer of an uncertificated security is under a duty as to an adverse claim, he discharges that duty by:
(a) Including a notation of the claim in any statements sent with respect to the security under subsections 3, 6 and 7 of NRS 104.8408; and
(b) Refusing to register the transfer or pledge of the security unless the nature of the claim does not preclude transfer or pledge subject thereto.
6. If the transfer or pledge of the security is registered subject to an adverse claim, a notation of the claim must be included in the initial transaction statement and all subsequent statements sent to the transferee and pledgee under NRS 104.8408.
7. Notwithstanding subsections 4 and 5, if an uncertificated security was subject to a registered pledge at the time the issuer first came under a duty as to a particular adverse claim, the issuer has no duty as to that claim if transfer of the security is requested by the registered pledgee or an appropriate person acting for the registered pledgee unless:
(a) The claim was embodied in legal process which expressly provides otherwise;
(b) The claim was asserted in a written notification from the registered pledgee;
(c) The claim was one as to which the issuer was charged with notice from a controlling instrument it required under subsection 4 of NRS 104.8402 in connection with the pledgees request for transfer; or
(d) The transfer requested is to the registered owner.] A person who is an appropriate person to make an endorsement or originate an instruction may demand that the issuer not register transfer of a security by communicating to the issuer a notification that identifies the registered owner and the issue of which the security is a part and provides an address for communications directed to the person making the demand. The demand is effective only if it is received by the issuer at a time and in a manner affording the issuer reasonable opportunity to act on it.
2. If a certificated security in registered form is presented to an issuer with a request to register transfer or an instruction is presented to an issuer with a request to register transfer of an uncertificated security after a demand that the issuer not register transfer has become effective, the issuer shall promptly communicate to the person who initiated the demand at the address provided in the demand and the person who presented the security for registration of transfer or initiated the instruction requesting registration of transfer a notification stating that:
(a) The certificated security has been presented for registration of transfer or the instruction for registration of transfer of the uncertificated security has been received;
κ1997 Statutes of Nevada, Page 404 (CHAPTER 157, SB 240)κ
(b) A demand that the issuer not register transfer had previously been received; and
(c) The issuer will withhold registration of transfer for a period of time stated in the notification in order to provide the person who initiated the demand an opportunity to obtain legal process or an indemnity bond.
3. The period described in paragraph (c) of subsection 2 may not exceed 30 days after the date of communication of the notification. A shorter period may be specified by the issuer if it is not manifestly unreasonable.
4. An issuer is not liable to a person who initiated a demand that the issuer not register transfer for any loss he suffers as a result of registration of transfer pursuant to an effective endorsement or instruction if he does not, within the time stated in the issuers communication:
(a) Obtain an appropriate restraining order, injunction or other process from a court of competent jurisdiction enjoining the issuer from registering transfer; or
(b) File with the issuer an indemnity bond, sufficient in the issuers judgment to protect the issuer and any transfer agent, registrar or other agent of the issuer involved from any loss it or they may suffer by refusing to register transfer.
5. This section does not relieve an issuer from liability for registering transfer pursuant to an endorsement or instruction that was not effective.
Sec. 73. NRS 104.8404 is hereby amended to read as follows:
104.8404 1. Except as otherwise provided in NRS 104.8406, an issuer is liable for wrongful registration of transfer if the issuer has registered a transfer of a security to a person not entitled to it, and the transfer was registered:
(a) Pursuant to an ineffective endorsement or instruction;
(b) After a demand that the issuer not register transfer became effective under subsection 1 of NRS 104.8403 and the issuer did not comply with subsection 2 of NRS 104.8403;
(c) After the issuer had been served with an injunction, restraining order or other legal process enjoining it from registering the transfer, issued by a court of competent jurisdiction, and the issuer had a reasonable opportunity to act on the injunction, restraining order or other legal process; or
(d) By an issuer acting in collusion with the wrongdoer.
2. An issuer that is liable for wrongful registration of transfer under subsection 1 on demand shall provide the person entitled to the security with a like certificated or uncertificated security and any payments or distributions that the person did not receive as a result of the wrongful registration. If an overissue would result, the issuers liability to provide the person with a like security is governed by NRS 104.8104.
3. Except as otherwise provided in [any] subsection 1 or in a law relating to the collection of taxes, [the] an issuer is not liable to [the owner, pledgee] an owner or any other person suffering loss as a result of the registration of [a transfer, pledge or release] transfer of a security if [:
(a) There were on or with a certificated security the necessary endorsements or the issuer had received an instruction originated by an appropriate person (NRS 104.8308); and
κ1997 Statutes of Nevada, Page 405 (CHAPTER 157, SB 240)κ
(b) The issuer had no duty as to adverse claims or has discharged the duty (NRS 104.8403).
2. If an issuer has registered a transfer of a certificated security to a person not entitled to it, the issuer on demand shall deliver a like security to the true owner unless:
(a) The registration was pursuant to subsection 1;
(b) The owner is precluded from asserting any claim for registering the transfer under subsection 1 of NRS 104.8405; or
(c) The delivery would result in overissue, in which case the issuers liability is governed by NRS 104.8104.
3. If an issuer has improperly registered a transfer, pledge or release of an uncertificated security, the issuer on demand from the injured party shall restore the records as to the injured party to the condition that would have obtained if the improper registration had not been made unless:
(a) The registration was pursuant to subsection 1; or
(b) The registration would result in overissue, in which case the issuers liability is governed by NRS 104.8104.] registration was made pursuant to an effective endorsement or instruction.
Sec. 74. NRS 104.8405 is hereby amended to read as follows:
104.8405 1. If [a certificated security has been lost, apparently destroyed or wrongfully taken and the owner fails to notify the issuer of that fact within a reasonable time after he has notice of it and the issuer registers a transfer of the security before receiving notification, the owner is precluded from asserting against the issuer any claim for registering the transfer under NRS 104.8404 or any claim to a new security under this section.
2. If the] an owner of a certificated security , whether in registered or bearer form, claims that the [security] certificate has been lost, destroyed or wrongfully taken, the issuer shall issue a new [certificated security or, at the option of the issuer, an equivalent uncertificated security in place of the original security] certificate if the owner:
(a) So requests before the issuer has notice that the security has been acquired by a [bona fide] protected purchaser;
(b) Files with the issuer a sufficient indemnity bond; and
(c) Satisfies [any] other reasonable requirements imposed by the issuer.
[3.] 2. If, after the issue of a new [certificated or uncertificated security, a bona fide] security certificate, a protected purchaser of the original [certificated security] certificate presents it for registration of transfer, the issuer shall register the transfer unless [registration would result in overissue, in which event] an overissue would result. In that case, the issuers liability is governed by NRS 104.8104. In addition to any rights on the indemnity bond, the issuer may recover the new [certificated security] certificate from the person to whom it was issued or any person taking under him except a [bona fide purchaser or may cancel the uncertificated security unless a bona fide purchaser or any person taking under a bona fide purchaser is then the registered owner or registered pledgee thereof.] protected purchaser.
κ1997 Statutes of Nevada, Page 406 (CHAPTER 157, SB 240)κ
Sec. 75. NRS 104.8406 is hereby amended to read as follows:
104.8406 [1. If a person acts] A person acting as authenticating trustee, transfer agent, registrar or other agent for an issuer in the registration of [transfers of its certificated securities or in the registration of transfers, pledges and releases of its uncertificated] a transfer of its securities, in the issue of new security certificates or uncertificated securities or in the cancellation of surrendered [securities:
(a) He is under a duty to the issuer to exercise good faith and due diligence in performing his functions; and
(b) With regard to the particular functions he performs, he] security certificates has the same obligation to the holder or owner of a certificated [security or to the owner or pledgee of an] or uncertificated security [and has the same rights and privileges] with regard to the particular functions performed as the issuer has in regard to those functions.
[2. Notice to an authenticating trustee, transfer agent, registrar or other agent is notice to the issuer with respect to the functions performed by the agent.]
Sec. 76. NRS 104.9103 is hereby amended to read as follows:
104.9103 1. Documents, instruments , letters of credit and ordinary goods.
(a) This subsection applies to documents , [and] instruments , rights to proceeds of letters of credit, and [to] goods other than those covered by a certificate of title described in subsection 2, mobile goods described in subsection 3 and minerals described in subsection 5.
(b) Except as otherwise provided in this subsection, perfection and the effect of perfection or nonperfection of a security interest in collateral are governed by the law of the jurisdiction where the collateral is when the last event occurs on which is based the assertion that the security interest is perfected or unperfected.
(c) If the parties to a transaction creating a purchase money security interest in goods in one jurisdiction understand at the time that the security interest attaches that the goods will be kept in another jurisdiction, then the law of the other jurisdiction governs the perfection and the effect of perfection or nonperfection of the security interest from the time it attaches until 30 days after the debtor receives possession of the goods and thereafter if the goods are taken to the other jurisdiction before the end of the 30-day period.
(d) When collateral is brought into and kept in this state while subject to a security interest perfected under the law of the jurisdiction from which the collateral was removed, the security interest remains perfected, but if action is required by part 3 of this article to perfect the security interest:
(1) If the action is not taken before the expiration of the period of perfection in the other jurisdiction or the end of 4 months after the collateral is brought into this state, whichever period first expires, the security interest becomes unperfected at the end of that period and is thereafter deemed to have been unperfected as against a person who became a purchaser after removal;
κ1997 Statutes of Nevada, Page 407 (CHAPTER 157, SB 240)κ
(2) If the action is taken before the expiration of the period specified in subparagraph (1), the security interest continues perfected thereafter;
(3) For the purpose of priority over a buyer of consumer goods (subsection 2 of NRS 104.9307), the period of the effectiveness of a filing in the jurisdiction from which the collateral is removed is governed by the rules with respect to perfection in subparagraphs (1) and (2).
2. Certificate of title.
(a) This subsection applies to goods covered by a certificate of title issued under a statute of this state or of another jurisdiction under the law of which indication of a security interest on the certificate is required as a condition of perfection.
(b) Except as otherwise provided in this subsection, perfection and the effect of perfection or nonperfection of the security interest are governed by the law (including the conflict of laws rules) of the jurisdiction issuing the certificate until 4 months after the goods are removed from that jurisdiction and thereafter until the goods are registered in another jurisdiction, but in any event not beyond surrender of the certificate. After the expiration of that period, the goods are not covered by the certificate of title within the meaning of this section.
(c) Except with respect to the rights of a buyer described in the next paragraph, a security interest, perfected in another jurisdiction otherwise than by notation on a certificate of title, in goods brought into this state and thereafter covered by a certificate of title issued by this state is subject to the rules stated in paragraph (d) of subsection 1.
(d) If goods are brought into this state while a security interest therein is perfected in any manner under the law of the jurisdiction from which the goods are removed and a certificate of title is issued by this state and the certificate does not show that the goods are subject to the security interest or that they may be subject to security interests not shown on the certificate, the security interest is subordinate to the rights of a buyer of the goods who is not in the business of selling goods of that kind to the extent that he gives value and receives delivery of the goods after issuance of the certificate and without knowledge of the security interest.
3. Accounts, general intangibles and mobile goods.
(a) This subsection applies to accounts (other than an account described in subsection 5 on minerals) and general intangibles and to goods which are mobile and which are of a type normally used in more than one jurisdiction, such as motor vehicles, trailers, rolling stock, airplanes, shipping containers, road-building and construction machinery and commercial harvesting machinery and the like, if the goods are equipment or are inventory leased or held for lease by the debtor to others, and are not covered by a certificate of title described in subsection 2.
(b) The law (including the conflict of laws rules) of the jurisdiction in which the debtor is located governs the perfection and the effect of perfection or nonperfection of the security interest.
κ1997 Statutes of Nevada, Page 408 (CHAPTER 157, SB 240)κ
(c) If, however, the debtor is located in a jurisdiction which is not a part of the United States, and which does not provide for perfection of the security interest by filing or recording in that jurisdiction, the law of the jurisdiction in the United States in which the debtor has its major executive office in the United States governs the perfection and the effect of perfection or nonperfection of the security interest through filing. In the alternative, if the debtor is located in a jurisdiction which is not a part of the United States or Canada and the collateral is accounts or general intangibles for money due or to become due, the security interest may be perfected by notification to the account debtor. As used in this paragraph, United States includes its territories and possessions and the Commonwealth of Puerto Rico.
(d) A debtor shall be deemed located at his place of business if he has one, at his chief executive office if he has more than one place of business, otherwise at his residence. If, however, the debtor is a foreign air carrier under the Federal Aviation Act of 1958, as amended, it shall be deemed located at the designated office of the agent upon whom service of process may be made on behalf of the foreign air carrier.
(e) A security interest perfected under the law of the jurisdiction of the location of the debtor is perfected until the expiration of 4 months after a change of the debtors location to another jurisdiction or until perfection would have ceased by the law of the first jurisdiction, whichever period first expires. Unless perfected in the new jurisdiction before the end of that period, it becomes unperfected thereafter and is deemed to have been unperfected as against a person who became a purchaser after the change.
4. Chattel paper. The rules stated for goods in subsection 1 apply to a possessory security interest in chattel paper. The rules stated for accounts in subsection 3 apply to a nonpossessory security interest in chattel paper, but the security interest may not be perfected by notification to the account debtor.
5. Minerals. Perfection and the effect of perfection or nonperfection of a security interest which is created by a debtor who has an interest in minerals or the like (including oil and gas) before extraction and which attaches thereto as extracted or which attaches to an account resulting from the sale thereof at the wellhead or minehead are governed by the law (including the conflict of laws rules) of the jurisdiction wherein the wellhead or minehead is located.
6. Investment property.
(a) This subsection applies to investment property.
(b) Except as otherwise provided in paragraph (f), during the time that a security certificate is located in a jurisdiction, perfection of a security interest, the effect of perfection or nonperfection, and the priority of a security interest in the certificated security represented thereby are governed by the local law of that jurisdiction.
(c) Except as otherwise provided in paragraph (f), perfection of a security interest, the effect of perfection or nonperfection, and the priority of a security interest in an uncertificated security are governed by the local law of the issuers jurisdiction as specified in subsection 4 of NRS 104.8106.
κ1997 Statutes of Nevada, Page 409 (CHAPTER 157, SB 240)κ
(d) Except as otherwise provided in paragraph (f), perfection of a security interest, the effect of perfection or nonperfection, and the priority of a security interest in a security entitlement or securities account are governed by the local law of the securities intermediarys jurisdiction as specified in subsection 5 of NRS 104.8106.
(e) Except as otherwise provided in paragraph (f), perfection of a security interest, the effect of perfection or nonperfection, and the priority of a security interest in a commodity contract or commodity account are governed by the local law of the commodity intermediarys jurisdiction. The following rules determine a commodity intermediarys jurisdiction for purposes of this paragraph:
(1) If an agreement between the commodity intermediary and commodity customer specifies that it is governed by the law of a particular jurisdiction, that jurisdiction is the commodity intermediarys jurisdiction.
(2) If an agreement between the commodity intermediary and commodity customer does not specify the governing law as provided in subparagraph (1), but expressly specifies that the commodity account is maintained at an office in a particular jurisdiction, that jurisdiction is the commodity intermediarys jurisdiction.
(3) If an agreement between the commodity intermediary and commodity customer does not specify a jurisdiction as provided in subparagraph (1) or (2), the commodity intermediarys jurisdiction is the jurisdiction in which is located the office identified in an account statement as the office serving the commodity customers account.
(4) If an agreement between the commodity intermediary and commodity customer does not specify a jurisdiction as provided in subparagraph (1) or (2) and an account statement does not identify an office serving the commodity customers account as provided in subparagraph (3), the commodity intermediarys jurisdiction is the jurisdiction in which is located the chief executive office of the commodity intermediary.
(f) Perfection of a security interest by filing, automatic perfection of a security interest in investment property granted by a broker or securities intermediary, and automatic perfection of a security interest in a commodity contract or commodity account granted by a commodity intermediary are governed by the local law of the jurisdiction in which the debtor is located.
Sec. 77. NRS 104.9104 is hereby amended to read as follows:
104.9104 This article does not apply:
1. To a security interest subject to any statute of the United States such as the Ship Mortgage Act, 1920, to the extent that such statute governs the rights of parties to and third parties affected by transactions in particular types of property;
2. To a landlords lien;
3. To a lien given by statute or other rule of law for services or materials except as otherwise provided in NRS 104.9310, on priority of such liens;
4. To a transfer of a claim for wages, salary or other compensation of an employee;
κ1997 Statutes of Nevada, Page 410 (CHAPTER 157, SB 240)κ
5. To a transfer by a government or governmental subdivision or agency;
6. To a sale of accounts or chattel paper as part of a sale of the business out of which they arose, or an assignment of accounts or chattel paper which is for the purpose of collection only, or a transfer of a right to payment under a contract to an assignee who is also to do the performance under the contract or a transfer of a single account to an assignee in whole or partial satisfaction of a preexisting indebtedness;
7. To a transfer of an interest or claim in or under any policy of insurance, except as otherwise provided with respect to proceeds (NRS 104.9306) and priorities in proceeds (NRS 104.9312);
8. To a right represented by a judgment (other than a judgment taken on a right to payment which was collateral);
9. To any right of setoff;
10. Except to the extent that provision is made for fixtures in NRS 104.9313, to the creation or transfer of an interest in or lien on real estate, including a lease or rents thereunder;
11. To a transfer in whole or in part of any claim arising out of tort;
12. To a transfer of an interest in any deposit account (subsection 1 of NRS 104.9105), except as otherwise provided with respect to proceeds (NRS 104.9306) and priorities in proceeds (NRS 104.9312); [or]
13. To perfection or notice of a security interest created by a security instrument as defined in NRS 105.010 [.] ; or
14. To a transfer of an interest in a letter of credit other than the right to proceeds of a written letter of credit.
Sec. 78. NRS 104.9105 is hereby amended to read as follows:
104.9105 1. [In] As used in this article , unless the context otherwise requires:
(a) Account debtor means the person who is obligated on an account, chattel paper or general intangible.
(b) Chattel paper means a writing or writings which evidence both a monetary obligation and a security interest in or a lease of specific goods , but a charter or other contract involving the use or hire of a vessel is not chattel paper. When a transaction is evidenced both by such a security agreement or a lease and by an instrument or a series of instruments, the group of writings taken together constitutes chattel paper.
(c) Collateral means the property subject to a security interest, and includes accounts and chattel paper which have been sold.
(d) Debtor means the person who owes payment or other performance of the obligation secured, whether or not he owns or has rights in the collateral, and includes the seller of accounts or chattel paper. Where the debtor and the owner of the collateral are not the same person, the term debtor means the owner of the collateral in any provision of the article dealing with the collateral, the obligor in any provision dealing with the obligation, and may include both where the context so requires.
(e) Deposit account means a demand, time, savings, passbook or like account maintained with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a certificate of deposit.
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or like organization, other than an account evidenced by a certificate of deposit.
(f) Document means document of title as defined in the general definitions of article 1 (NRS 104.1201), and a receipt of the kind described in subsection 2 of NRS 104.7201.
(g) Encumbrance includes real estate mortgages and other liens on real estate and all other rights in real estate that are not ownership interests.
(h) Goods includes all things which are movable at the time the security interest attaches or which are fixtures (NRS 104.9313), but does not include money, documents, instruments, investment property, accounts, chattel paper, general intangibles or minerals or the like (including oil and gas) before extraction. Goods also include standing timber which is to be cut and removed under a conveyance or contract for sale, the unborn young of animals and growing crops.
(i) Instrument means a negotiable instrument (defined in NRS 104.3104) [, or a security (defined in NRS 104.8102)] or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in ordinary course of business transferred by delivery with any necessary endorsement or assignment. The term does not include investment property.
(j) Mortgage means a consensual interest created by a real estate mortgage, a trust deed on real estate or the like.
(k) An advance is made pursuant to commitment if the secured party has bound himself to make it, whether or not a subsequent event of default or other event not within his control has relieved or may relieve him from his obligation.
(l) Security agreement means an agreement which creates or provides for a security interest.
(m) Secured party means a lender, seller or other person in whose favor there is a security interest, including a person to whom accounts or chattel paper have been sold. When the holders of obligations issued under an indenture of trust, equipment trust agreement or the like are represented by a trustee or other person, the representative is the secured party.
2. Other definitions applying to this article and the sections in which they appear are:
Account. NRS 104.9106.
Attach. NRS 104.9203.
Commodity contract. Section 34 of this act.
Commodity customer. Section 34 of this act.
Commodity intermediary. Section 34 of this act.
Construction mortgage. NRS 104.9313.
Consumer goods. Subsection 1 of NRS 104.9109.
Control. Section 34 of this act.
Equipment. Subsection 2 of NRS 104.9109.
Farm products. Subsection 3 of NRS 104.9109.
Fixture. NRS 104.9313.
Fixture filing. NRS 104.9313.
κ1997 Statutes of Nevada, Page 412 (CHAPTER 157, SB 240)κ
General intangibles. NRS 104.9106.
Inventory. Subsection 4 of NRS 104.9109.
Investment property. Section 34 of this act.
Lien creditor. Subsection 5 of NRS 104.9301.
Proceeds. Subsection 1 of NRS 104.9306.
Purchase money security interest. NRS 104.9107.
United States. NRS 104.9103.
3. The following definitions in other articles apply to this article:
Check. NRS 104.3104.
Contract for sale. NRS 104.2106.
Holder in due course. NRS 104.3302.
Letter of credit. NRS 104.5103.
Note. NRS 104.3104.
Proceeds of a letter of credit. Section 4 of this act.
Sale. NRS 104.2106.
4. In addition , article 1 contains general definitions and principles of construction and interpretation applicable throughout this article.
Sec. 79. NRS 104.9106 is hereby amended to read as follows:
104.9106 1. Account means any right to payment for goods sold or leased or for services rendered which is not evidenced by an instrument or chattel paper, whether or not it has been earned by performance.
2. General intangibles means any personal property (including things in action) other than goods, accounts, chattel paper, documents, instruments , investment property, rights to proceeds of letters of credit, and money.
3. All rights to payment earned or unearned under a charter or other contract involving the use or hire of a vessel and all rights incident to the charter or contract are accounts.
Sec. 80. NRS 104.9203 is hereby amended to read as follows:
104.9203 1. Subject to the provisions of NRS 104.4210 on the security interest of a collecting bank , sections 34 and 35 of this act on security interests in investment property, and NRS 104.9113 on a security interest arising under the article on sales, a security interest is not enforceable against the debtor or third parties with respect to the collateral and does not attach unless:
(a) The collateral is in the possession of the secured party pursuant to agreement, the collateral is investment property and the secured party has control pursuant to agreement, or the debtor has signed a security agreement which contains a description of the collateral and in addition, when the security interest covers crops growing or to be grown or timber to be cut, a description of the land concerned; [and]
(b) Value has been given; and
(c) The debtor has rights in the collateral.
2. A security interest attaches when it becomes enforceable against the debtor with respect to the collateral. Attachment occurs as soon as all of the events specified in subsection 1 have taken place unless explicit agreement postpones the time of attaching.
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events specified in subsection 1 have taken place unless explicit agreement postpones the time of attaching.
3. Unless otherwise agreed , a security agreement gives the secured party the rights to proceeds provided by NRS 104.9306.
4. A transaction, although subject to this article, is also subject to chapters 97, 646, 649, and 675 of NRS and to NRS 482.516, 482.5161 and 482.5163, and in the case of conflict between the provisions of this article and any such statute, the provisions of such statute control. Failure to comply with any applicable statute has only the effect which is specified therein.
Sec. 81. NRS 104.9301 is hereby amended to read as follows:
104.9301 1. Except as otherwise provided in subsection 2, an unperfected security interest is subordinate to the rights of:
(a) Persons entitled to priority under NRS 104.9312.
(b) A person who becomes a lien creditor before the security interest is perfected.
(c) In the case of goods, instruments, documents and chattel paper, a person who is not a secured party and who is a transferee in bulk or other buyer not in ordinary course of business, or is a buyer of farm products in ordinary course of business, to the extent that he gives value and receives delivery of the collateral without knowledge of the security interest and before it is perfected.
(d) In the case of accounts , [and] general intangibles [,] and investment property, a person who is not a secured party and who is a transferee to the extent that he gives value without knowledge of the security interest and before it is perfected.
2. If the secured party files with respect to a purchase money security interest before or within 20 days after the debtor receives possession of the collateral, he takes priority over the rights of a transferee in bulk or of a lien creditor which arise between the time the security interest attaches and the time of filing.
3. A lien creditor means a creditor who has acquired a lien on the property involved by attachment, levy or the like and includes an assignee for benefit of creditors from the time of assignment, and a trustee in bankruptcy from the date of filing of the petition or a receiver in equity from the time of appointment.
4. A person who becomes a lien creditor while a security interest is perfected takes subject to the security interest only to the extent that it secures advances made before he becomes a lien creditor or within 45 days thereafter or made without knowledge of the lien or pursuant to a commitment entered into without knowledge of the lien.
Sec. 82. NRS 104.9302 is hereby amended to read as follows:
104.9302 1. A financing statement must be filed to perfect all security interests except the following:
(a) A security interest in collateral in possession of the secured party under NRS 104.9305.
κ1997 Statutes of Nevada, Page 414 (CHAPTER 157, SB 240)κ
(b) A security interest temporarily perfected in instruments , certificated securities or documents without delivery under NRS 104.9304 or in proceeds for a 10-day period under NRS 104.9306.
(c) A security interest created by an assignment of a beneficial interest in a trust or a decedents estate.
(d) A purchase money security interest in consumer goods; but filing is required for a motor vehicle required to be registered; and fixture filing is required for priority over conflicting interests in fixtures to the extent provided in NRS 104.9313.
(e) An assignment of accounts which does not alone or in conjunction with other assignments to the same assignee transfer a significant part of the outstanding accounts of the assignor.
(f) A security interest of a collecting bank (NRS 104.4210) or arising under the article on sales (see NRS 104.9113) or covered in subsection 3.
(g) An assignment for the benefit of all the creditors of the transferor, and subsequent transfers by the assignee thereunder.
(h) A security interest in investment property that is perfected without filing under section 34 or 35 of this act.
(i) An agreement for the financing of insurance premiums governed by NRS 686A.330 to 686A.520, inclusive.
2. If a secured party assigns a perfected security interest, no filing under this article is required in order to continue the perfected status of the security interest against creditors of and transferees from the original debtor.
3. The filing of a financing statement otherwise required by this article is not necessary or effective to perfect a security interest in property subject to:
(a) A statute or treaty of the United States which provides for a national or international registration or a national or international certificate of title or which specified a place of filing different from that specified in this article for filing of the security interest;
(b) The following statutes of this state: Chapter 105 of NRS, NRS 482.423 to 482.431, inclusive, 488.1793 to 488.1827, inclusive, and 489.501 to 489.581, inclusive; but during any period in which collateral is inventory held for sale by a person who is in the business of selling goods of that kind, the filing provisions of this article (part 4) apply to a security interest in that collateral created by him as debtor; or
(c) A certificate of title statute of another jurisdiction under the law of which indication of a security interest on the certificate is required as a condition of perfection (subsection 2 of NRS 104.9103).
4. Compliance with a statute or treaty described in subsection 3 is equivalent to the filing of a financing statement under this article, and a security interest in property subject to the statute or treaty can be perfected only by compliance therewith except as otherwise provided in NRS 104.9103 on multiple state transactions. Duration and renewal of perfection of a security interest perfected by compliance with the statute or treaty are governed by the provisions of the statute or treaty; in other respects the security interest is subject to this article.
κ1997 Statutes of Nevada, Page 415 (CHAPTER 157, SB 240)κ
governed by the provisions of the statute or treaty; in other respects the security interest is subject to this article.
Sec. 83. NRS 104.9303 is hereby amended to read as follows:
104.9303 1. A security interest is perfected when it has attached and when all of the applicable steps required for perfection have been taken. Such steps are specified in NRS 104.9302, 104.9304, 104.9305 and 104.9306 [.] and section 34 of this act. If such steps are taken before the security interest attaches, it is perfected at the time when it attaches.
2. If a security interest is originally perfected in any way permitted under this article and is subsequently perfected in some other way under this article, without an intermediate period when it was unperfected, the security interest shall be deemed to be perfected continuously for the purposes of this article.
Sec. 84. NRS 104.9304 is hereby amended to read as follows:
104.9304 1. A security interest in chattel paper or negotiable documents may be perfected by filing. A security interest in the right to proceeds of a letter of credit may be perfected only by the secured partys taking possession of the letter of credit. A security interest in money or instruments (other than instruments which constitute part of chattel paper) can be perfected only by the secured partys taking possession, except as otherwise provided in subsections 4 and 5 of this section and subsections 2 and 3 of NRS 104.9306 on proceeds.
2. During the period that goods are in the possession of the issuer of a negotiable document therefor, a security interest in the goods is perfected by perfecting a security interest in the document, and any security interest in the goods otherwise perfected during such period is subject thereto.
3. A security interest in goods in the possession of a bailee other than one who has issued a negotiable document therefor is perfected by issuance of a document in the name of the secured party or by the bailees receipt of notification of the secured partys interest or by filing as to the goods.
4. A security interest in instruments , certificated securities or negotiable documents is perfected without filing or the taking of possession for a period of 21 days from the time it attaches to the extent that it arises for new value given under a written security agreement.
5. A security interest remains perfected for a period of 21 days without filing where a secured party having a perfected security interest in an instrument, a certificated security, a negotiable document or goods in possession of a bailee other than one who has issued a negotiable document therefor:
(a) Makes available to the debtor the goods or documents representing the goods for the purpose of ultimate sale or exchange or for the purpose of loading, unloading, storing, shipping, transhipping, manufacturing, processing or otherwise dealing with them in a manner preliminary to their sale or exchange, but priority between conflicting security interest in the goods is subject to subsection 3 of NRS 104.9312; or
(b) Delivers the instrument or certificated security to the debtor for the purpose of ultimate sale or exchange or of presentation, collection, renewal or registration of transfer.
κ1997 Statutes of Nevada, Page 416 (CHAPTER 157, SB 240)κ
6. After the 21-day period in subsections 4 and 5 perfection depends upon compliance with applicable provisions of this article.
Sec. 85. NRS 104.9305 is hereby amended to read as follows:
104.9305 A security interest in [letters of credit and advices of credit (paragraph (a) of subsection 2 of NRS 104.5116),] goods, instruments, money, negotiable documents or chattel paper may be perfected by the secured partys taking possession of the collateral. A security interest in the right to proceeds of a letter of credit may be perfected by the secured partys taking possession of the letter of credit. If [such] collateral other than goods covered by a negotiable document is held by a bailee, the secured party is deemed to have possession from the time the bailee receives notification of the secured partys interest. A security interest is perfected by possession from the time possession is taken without relation back and continues only so long as possession is retained, unless otherwise specified in this article. The security interest may be otherwise perfected as provided in this article before or after the period of possession by the secured party.
Sec. 86. NRS 104.9306 is hereby amended to read as follows:
104.9306 1. Proceeds includes whatever is received upon the sale, exchange, collection or other disposition of collateral or proceeds. Insurance payable by reason of loss or damage to the collateral is proceeds, except to the extent that it is payable to a person other than a party to the security agreement. Any payments or distributions made with respect to investment property as collateral are proceeds. Money, checks, deposit accounts and the like are cash proceeds. All other proceeds are noncash proceeds.
2. Except where this article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.
3. The security interest in proceeds is a continuously perfected security interest if the interest in the original collateral was perfected but it ceases to be a perfected security interest and becomes unperfected 10 days after receipt of the proceeds by the debtor unless:
(a) A filed financing statement covers the original collateral and the proceeds are collateral in which a security interest may be perfected by filing in the office or offices where the financing statement has been filed and, if the proceeds are acquired with cash proceeds, the description of collateral in the financing statement indicates the types of property constituting the proceeds; [or]
(b) A filed financing statement covers the original collateral and the proceeds are identifiable cash proceeds; [or]
(c) The original collateral was investment property and the proceeds are identifiable cash proceeds; or
(d) The security interest in the proceeds is perfected before the expiration of the 10-day period.
κ1997 Statutes of Nevada, Page 417 (CHAPTER 157, SB 240)κ
Except as otherwise provided in this section, a security interest in proceeds can be perfected only by the methods or under the circumstances permitted in this article for original collateral of the same type.
4. In the event of insolvency proceedings instituted by or against a debtor, a secured party with a perfected security interest in proceeds has a perfected security interest only in the following proceeds:
(a) In identifiable noncash proceeds and in separate deposit accounts containing only proceeds;
(b) In identifiable cash proceeds in the form of money which is neither commingled with other money nor deposited in a deposit account prior to the insolvency proceedings;
(c) In identifiable cash proceeds in the form of checks and the like which are not deposited in a deposit account prior to the insolvency proceedings; and
(d) In all cash and deposit accounts of the debtor in which proceeds have been commingled with other funds, but the perfected security interest under this paragraph is:
(1) Subject to any right of setoff; and
(2) Limited to an amount not greater than the amount of any cash proceeds received by the debtor within 10 days before the institution of the insolvency proceedings less the sum of:
(I) The payments to the secured party on account of cash proceeds received by the debtor during such period; and
(II) The cash proceeds received by the debtor during such period to which the secured party is entitled under paragraphs (a) to (c), inclusive, of this subsection.
5. If a sale of goods results in an account or chattel paper which is transferred by the seller to a secured party, and if the goods are returned to or are repossessed by the seller or the secured party, the following rules determine priorities:
(a) If the goods were collateral at the time of sale for an indebtedness of the seller which is still unpaid, the original security interest attaches again to the goods and continues as a perfected security interest if it was perfected at the time when the goods were sold. If the security interest was originally perfected by a filing which is still effective, nothing further is required to continue the perfected status; in any other case, the secured party must take possession of the returned or repossessed goods or must file.
(b) An unpaid transferee of the chattel paper has a security interest in the goods against the transferor. Such security interest is prior to a security interest asserted under paragraph (a) to the extent that the transferee of the chattel paper was entitled to priority under NRS 104.9308.
(c) An unpaid transferee of the account has a security interest in the goods against the transferor. Such security interest is subordinate to a security interest asserted under paragraph (a).
(d) A security interest of an unpaid transferee asserted under paragraph (b) or (c) must be perfected for protection against creditors of the transferor and purchasers of the returned or repossessed goods.
κ1997 Statutes of Nevada, Page 418 (CHAPTER 157, SB 240)κ
Sec. 87. NRS 104.9309 is hereby amended to read as follows:
104.9309 [Nothing in this article limits] This article does not limit the rights of a holder in due course of a negotiable instrument (NRS 104.3302) or a holder to whom a negotiable document of title has been duly negotiated (NRS 104.7501) or a [bona fide] protected purchaser of a security [(NRS 104.8301)] (section 18 of this act) and such holders or purchasers take priority over an earlier security interest even though perfected. Filing under this article does not constitute notice of the security interest to such holders or purchasers.
Sec. 88. NRS 104.9312 is hereby amended to read as follows:
104.9312 1. The rules of priority stated in other sections of this part and in the following sections [shall] govern when applicable: NRS 104.9208 with respect to the security interests of collecting banks in items being collected, accompanying documents and proceeds; NRS 104.9103 on security interests related to other jurisdictions; NRS 104.9114 on consignments [.] ; section 34 of this act on security interests in investment property.
2. [There is no subsection 2.]
3. A perfected purchase money security interest in inventory has priority over a conflicting security interest in the same inventory and also has priority in identifiable cash proceeds received on or before the delivery of the inventory to a buyer if:
(a) The purchase money security interest is perfected at the time the debtor receives possession of the inventory; [and]
(b) The purchase money secured party gives notification in writing to the holder of the conflicting security interest if the holder had filed a financing statement covering the same types of inventory:
(1) Before the date of the filing made by the purchase money secured party; or
(2) Before the beginning of the 21-day period where the purchase money security interest is temporarily perfected without filing or possession (subsection 5 of NRS 104.9304); [and]
(c) The holder of the conflicting security interest receives the notification within 5 years before the debtor receives possession of the inventory; and
(d) The notification states that the person giving the notice has or expects to acquire a purchase money security interest in inventory of the debtor, describing such inventory by item or type.
4. A purchase money security interest in collateral other than inventory has priority over a conflicting security interest in the same collateral or its proceeds if the purchase money security interest is perfected at the time the debtor receives possession of the collateral or within 20 days thereafter.
5. In all cases not governed by other rules stated in this section (including cases of purchase money security interests which do not qualify for the special priorities set forth in subsections 3 and 4 of this section), priority between conflicting security interests in the same collateral shall be determined according to the following rules:
κ1997 Statutes of Nevada, Page 419 (CHAPTER 157, SB 240)κ
(a) Conflicting security interests rank according to priority in time of filing or perfection. Priority dates from the time a filing is first made covering the collateral or the time the security interest is first perfected, whichever is earlier, provided that there is no period thereafter when there is neither filing nor perfection.
(b) So long as conflicting security interests are unperfected, the first to attach has priority.
6. For the purposes of subsection 5 a date of filing or perfection as to collateral is also a date of filing or perfection as to proceeds.
7. If future advances are made while a security interest is perfected by filing or the taking of possession, or under section 34 or 35 of this act on investment property, the security interest has the same priority for the purposes of subsection 5 of this section or subsection 5 of section 34 of this act with respect to the future advances as it does with respect to the first advance. If a commitment is made before or while the security interest is so perfected, the security interest has the same priority with respect to advances made pursuant thereto. In other cases a perfected security interest has priority from the date the advance is made.
Sec. 89. NRS 31.040 is hereby amended to read as follows:
31.040 The writ must be directed to the sheriff of any county in which property of the defendant may be [, and except as otherwise provided in subsection 7 of NRS 104.8317,] and require him to attach and keep safely all the money or property of the defendant described in the order for attachment within his county not exempt from execution, or so much thereof as is sufficient to satisfy the amount demanded by the writ of attachment, whichever is less, unless the defendant gives him security by the undertaking of at least two sufficient sureties in an amount equal to the amount demanded by the writ or the value of the property levied upon, whichever is less, apart from costs, in lawful money of the United States, in which case the writ must require the sheriff to take such an undertaking.
Sec. 90. NRS 31.060 is hereby amended to read as follows:
31.060 Subject to the requirements of NRS 31.045, the sheriff to whom the writ is directed and delivered shall execute it without delay, and if the undertaking mentioned in NRS 31.040 is not given, as follows:
1. Real property must be attached by leaving a copy of the writ with the occupant of the property or, if there is no occupant, by posting a copy in a conspicuous place on the property and filing a copy, together with a description of the property attached, with the recorder of the county.
2. [Except as otherwise provided in subsection 7 of NRS 104.8317, personal] Personal property must be attached:
(a) By taking it into immediate custody, and, if directed by the plaintiff, using the services of any company which operates a tow car, as defined in NRS 706.131, or common motor carrier, as defined in NRS 706.036, to transport it for storage in a warehouse or storage yard that is insured or bonded in an amount not less than the full value of the property; or
(b) By placing a keeper in charge of a going business where the property is located, with the plaintiff prepaying the expense of the keeper to the sheriff, during which period, the defendant, by order of the court or the consent of the plaintiff, may continue to operate in the ordinary course of business at his own expense if all sales are for cash and the full proceeds are paid to the keeper for the purpose of the attachment.
κ1997 Statutes of Nevada, Page 420 (CHAPTER 157, SB 240)κ
sheriff, during which period, the defendant, by order of the court or the consent of the plaintiff, may continue to operate in the ordinary course of business at his own expense if all sales are for cash and the full proceeds are paid to the keeper for the purpose of the attachment.
If the property is stored pursuant to paragraph (a), the property must be segregated from other property and marked by signs or other appropriate means indicating that it is in the custody of the sheriff.
3. Any mobile home, as defined in NRS 40.215, must be attached by:
(a) Posting a copy of the writ in a conspicuous place on the mobile home;
(b) Taking it into immediate custody, subject to the provisions of subsection 2; or
(c) Placing a keeper in charge of the mobile home for 2 days, with the plaintiff prepaying the expense of the keeper to the sheriff:
(1) During which period, the defendant may continue to occupy the mobile home; and
(2) After which period, the sheriff shall take the mobile home into his immediate custody, subject to the provisions of subsection 2, unless other disposition is made by the court or the parties to the action.
4. Debts and credits, due or to become due, and other personal property in the possession or under the control of persons other than the defendant must be attached by service of a writ of garnishment as provided in NRS 31.240 to 31.460, inclusive.
Sec. 91. NRS 162.230 is hereby amended to read as follows:
162.230 [1. The rights and duties of a corporation and its transfer agents in registering a security in the name of a fiduciary or in making a transfer of a security pursuant to an assignment by a fiduciary are governed by the law of the jurisdiction under whose laws the corporation is organized.
2.] The provisions of NRS 162.150 to 162.250, inclusive, apply to the rights and duties of a person other than the issuing corporation and its transfer agents with regard to acts and omission in this state in connection with the acquisition, disposition, assignment or transfer of a security by or to a fiduciary and of a person who guarantees in this state the signature of a fiduciary in connection with such a transaction.
Sec. 92. NRS 104.5108, 104.5110, 104.5112, 104.5113, 104.5114, 104.5117, 104.81015, 104.8107, 104.8108, 104.8301, 104.8302, 104.8303, 104.8305, 104.8306, 104.8307, 104.8308, 104.8309, 104.8310, 104.8311, 104.8312, 104.8313, 104.8314, 104.8315, 104.8320, 104.8321, 104.8407, 104.8408, 162.190 and 162.200 are hereby repealed.
Sec. 93. The legislative counsel shall reserve for reuse the numbers of the sections repealed by section 92 of this act and, in preparing the 1997 reprint of NRS, shall number the sections of chapter 104 of NRS that are added, amended or left unchanged by this act, and the internal references thereto, to correspond to the numbers assigned within the respective articles of the Uniform Commercial Code by the National Conference of Commissioners on Uniform State Laws. The reserved numbers not so used are reserved for future use for similar purposes.