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S1407aa...................................................by TRANSPORTATION
HIGHWAYS - RIGHTS-OF-WAY - Amends existing law to clarify mapping of
highways and rights-of-way by commissioners of highway jurisdictions; to
extend the date by which boards of county or highway district commissioners
shall have published in map form and made available the location of all
public rights-of-way under their jurisdictions; to provide limitations on
the authority of a public highway agency to assert or claim rights superior
to or in conflict with rights-of-way that resulted from the creation of
certain facilities in the transmission of water; to provide for abandonment
or vacation of federal land rights-of-way; to revise the use of surveys
when a highway jurisdiction validates a highway or public right-of-way; to
provide a procedure for validation of a federal land right-of-way; and to
provide for recording acknowledgments of federal land rights-of-way.
02/11 Senate intro - 1st rdg - to printing
02/14 Rpt prt - to Transp
03/10 Rpt out - to 14th Ord
03/15 Rpt out amen - to engros
03/16 Rpt engros - 1st rdg - to 2nd rdg as amen
03/17 2nd rdg - to 3rd rdg as amen
03/21 3rd rdg as amen - PASSED - 29-0-6
AYES--Andreason, Boatright, Branch, Bunderson, Burtenshaw, Cameron,
Danielson, Darrington, Davis, Deide, Dunklin, Frasure, Hawkins,
Ingram, Ipsen, Keough, King-Barrutia, Lee, McLaughlin, Richardson,
Riggs, Risch, Sandy, Schroeder, Sorensen, Stennett, Thorne,
Whitworth, Williams
NAYS--None
Absent and excused--Crow, Geddes, Noh, Parry, Stegner, Wheeler
Floor Sponsor - Whitworth
Title apvd - to House
03/22 House intro - 1st rdg as amen - to Transp
03/27 Rpt out - rec d/p - to 2nd rdg as amen
03/28 2nd rdg - to 3rd rdg as amen
04/03 3rd rdg as amen - PASSED - 63-1-6
AYES -- Alltus, Barraclough(Barraclough), Barrett, Bell, Bieter, Boe,
Bruneel, Chase, Cheirrett, Crow, Cuddy, Deal, Denney, Ellsworth,
Field(13), Field(20), Geddes, Gould, Hadley, Hammond, Hansen(23),
Hansen(29), Henbest, Hornbeck, Judd, Kellogg, Kempton, Kendell, Kunz,
Lake, Linford, Loertscher(Loertscher), Mader, Marley, McKague, Meyer,
Montgomery, Mortensen, Moss, Moyle, Pearce, Pischner, Pomeroy,
Reynolds, Ridinger, Ringo, Robison, Sali, Schaefer, Sellman,
Shepherd, Smith, Smylie, Stevenson, Stoicheff, Stone, Taylor, Tilman,
Trail, Wheeler, Wood, Zimmermann, Mr Speaker
NAYS -- Campbell
Absent and excused -- Black, Callister, Clark, Gagner, Jaquet, Jones
Floor Sponsor - Ringo
Title apvd - to Senate
04/04 To enrol - rpt enrol - Pres signed
04/05 Sp signed
04/06 To Governor
04/12 Governor signed
Session Law Chapter 251
Effective: 04/12/00
S1407
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
IN THE SENATE
SENATE BILL NO. 1407, As Amended
BY TRANSPORTATION COMMITTEE
1 AN ACT
2 RELATING TO HIGHWAYS AND PUBLIC RIGHTS-OF-WAY; AMENDING SECTION 40-202, IDAHO
3 CODE, TO PROVIDE THAT A MAP OF THE HIGHWAYS AND PUBLIC RIGHTS-OF-WAY
4 WITHIN A HIGHWAY JURISDICTION SHALL SHOW THE GENERAL LOCATION OF EACH SUCH
5 HIGHWAY AND PUBLIC RIGHT-OF-WAY, TO CLARIFY USE OF AN OFFICIAL HIGHWAY
6 SYSTEM MAP, TO EXTEND THE DATE BY WHICH BOARDS OF COUNTY OR HIGHWAY DIS-
7 TRICT COMMISSIONERS SHALL HAVE PUBLISHED IN MAP FORM AND MADE READILY
8 AVAILABLE THE LOCATION OF ALL PUBLIC RIGHTS-OF-WAY UNDER THEIR JURISDIC-
9 TIONS, AND TO PROVIDE LIMITATIONS ON THE AUTHORITY OF A PUBLIC HIGHWAY
10 AGENCY TO ASSERT OR CLAIM RIGHTS SUPERIOR TO OR IN CONFLICT WITH RIGHTS-
11 OF-WAY THAT RESULTED FROM THE CREATION OF CERTAIN FACILITIES FOR THE
12 TRANSMISSION OF WATER; AMENDING SECTION 40-203, IDAHO CODE, TO CLARIFY TO
13 WHOM NOTICE SHALL BE SENT OF HEARINGS SCHEDULED ON ABANDONMENT OR VACATION
14 OF A HIGHWAY OR RIGHT-OF-WAY, TO PROVIDE THAT DECISIONS OF COMMISSIONERS
15 SHALL BE IN THE PUBLIC INTEREST OF THE AFFECTED HIGHWAY JURISDICTION AND
16 TO PROVIDE FOR REVERSION OF FEDERAL LAND RIGHTS-OF-WAY AND TO MAKE A TECH-
17 NICAL CORRECTION; AMENDING SECTION 40-203A, IDAHO CODE, TO PROVIDE THAT
18 HIGHWAYS AND PUBLIC RIGHTS-OF-WAY ON HIGHWAY SYSTEM MAPS SHALL GENERALLY
19 CONFORM AS TO LOCATION, TO PROVIDE FOR THE OPTIONAL USE OF SURVEYS WHEN
20 VALIDATING A HIGHWAY OR PUBLIC RIGHT-OF-WAY AND TO PROVIDE PROPER TERMI-
21 NOLOGY; AMENDING SECTION 40-204A, IDAHO CODE, TO PROVIDE FOR VALIDATION OF
22 FEDERAL LAND RIGHTS-OF-WAY, TO PROVIDE FOR RECORDING OF ACKNOWLEDGEMENTS
23 OF FEDERAL LAND RIGHTS-OF-WAY AND TO MAKE TECHNICAL CORRECTIONS; AND
24 DECLARING AN EMERGENCY.
25 Be It Enacted by the Legislature of the State of Idaho:
26 SECTION 1. That Section 40-202, Idaho Code, be, and the same is hereby
27 amended to read as follows:
28 40-202. DESIGNATION OF HIGHWAYS AND PUBLIC RIGHTS-OF-WAY. (1) The initial
29 selection of the county highway system and highway district system may be
30 accomplished in the following manner:
31 (a) The board of county or highway district commissioners shall cause a
32 map to be prepared showing the general location of each highway and public
33 right-of-way in their jurisdiction, and the commissioners shall cause
34 notice to be given of intention to adopt the map as the official map of
35 that system, and shall specify the time and place at which all interested
36 persons may be heard.
37 (b) After the hearing, the commissioners shall adopt the map, with any
38 changes or revisions considered by them to be advisable in the public
39 interest, as the official map of the respective highway system.
40 (2) If a county or highway district acquires an interest in real property
41 for highway or public right-of-way purposes, the respective commissioners
42 shall:
43 (a) Cause any order or resolution enacted, and deed or other document
2
1 establishing an interest in the property for their highway system purposes
2 to be recorded in the county records; or
3 (b) Cause the official map of the county or highway district system to be
4 amended as affected by the acceptance of the highway or public right-of-
5 way.
6 Provided, however, a county with highway jurisdiction or highway district may
7 hold title to an interest in real property for public right-of-way purposes
8 without incurring an obligation to construct or maintain a highway within the
9 right-of-way until the county or highway district determines that the necessi-
10 ties of public travel justify opening a highway within the right-of-way. The
11 lack of an opening shall not constitute an abandonment, and mere use by the
12 public shall not constitute an opening of the public right-of-way.
13 (3) Highways laid out, recorded and opened as described in subsection (2)
14 of this section, by order of a board of commissioners, and all highways used
15 for a period of five (5) years, provided they shall have been worked and kept
16 up at the expense of the public, or located and recorded by order of a board
17 of commissioners, are highways. If a highway created in accordance with the
18 provisions of this subsection is not designated on the official map of the
19 respective highway system or is not opened as described in subsection (2) of
20 this section, there shall be no duty to maintain that highway, nor shall there
21 be any liability for any injury or damage for failure to maintain it or any
22 highway signs, until the highway is designated as a part of the county or
23 highway district system by inclusion on the official map as a highway and
24 opened to public travel as a highway.
25 (4) When a public right-of-way is created in accordance with the provi-
26 sions of subsection (2) of this section, or section 40-203 or 40-203A, Idaho
27 Code, there shall be no duty to maintain that public right-of-way, nor shall
28 there be any liability for any injury or damage for failure to maintain it or
29 any highway signs.
30 (5) Nothing in this section shall limit the power of any board of commis-
31 sioners to subsequently include or exclude any highway or public right-of-way
32 from the county or highway district system.
33 (6) By July 1, 20005, and every five (5) years thereafter, the board of
34 county or highway district commissioners shall have published in map form and
35 made readily available a map showing the general location of all public
36 rights-of-way under its jurisdiction. Any board of county or highway district
37 commissioners may be granted an extension of time with approval of the legis-
38 lature by adoption of a concurrent resolution.
39 (7) Nothing in this section or in any designation of the general location
40 of a highway or public right-of-way shall authorize the public highway agency
41 to assert or claim rights superior to or in conflict with any rights-of-way
42 that resulted from the creation of a facility for the transmission of water
43 which existed before the designation of the location of a highway or public
44 right-of-way.
45 SECTION 2. That Section 40-203, Idaho Code, be, and the same is hereby
46 amended to read as follows:
47 40-203. ABANDONMENT AND VACATION OF COUNTY AND HIGHWAY DISTRICT SYSTEM
48 HIGHWAYS OR PUBLIC RIGHTS-OF-WAY. (1) A board of county or highway district
49 commissioners, whichever shall have jurisdiction of the highway system, shall
50 use the following procedure to abandon and vacate any highway or public right-
51 of-way in the county or highway district system including those which furnish
52 public access to state and federal public lands and waters:
53 (a) The commissioners may by resolution declare its intention to abandon
3
1 and vacate any highway or public right-of-way considered no longer to be
2 in the public interest.
3 (b) Any resident, or property holder, within a county or highway district
4 system including the state of Idaho, any of its subdivisions, or any
5 agency of the federal government may petition the respective commissioners
6 for abandonment and vacation of any highway or public right-of-way within
7 their highway system. The petitioner shall pay a reasonable fee as deter-
8 mined by the commissioners to cover the cost of the proceedings.
9 (c) The commissioners shall establish a hearing date or dates on the pro-
10 posed abandonment and vacation.
11 (d) The commissioners shall prepare a public notice stating their inten-
12 tion to hold a public hearing to consider the proposed abandonment and
13 vacation of a highway or public right-of-way which shall be made available
14 to the public not later than thirty (30) days prior to any hearing and
15 mailed to any person requesting a copy not more than three (3) working
16 days after any such request.
17 (e) At least thirty (30) days prior to any hearing scheduled by the com-
18 missioners to consider abandonment and vacation of any highway or public
19 right-of-way, the commissioners shall mail notice by United States mail to
20 known owners and operators of an underground facility, as defined in sec-
21 tion 55-2202, Idaho Code, that lies within the highway or public right-of-
22 way.
23 (f) At least thirty (30) days prior to any hearing scheduled by the com-
24 missioners to consider abandonment and vacation of any highway or public
25 right-of-way, the commissioners shall mail notice to owners of record of
26 land abutting the portion of the highway or public right-of-way proposed
27 to be abandoned and vacated at their addresses as shown on the county
28 assessor's tax rolls and shall publish notice of the hearing at least two
29 (2) times if in a weekly newspaper or three (3) times if in a daily news-
30 paper, the last notice to be published at least five (5) days and not more
31 than twenty-one (21) days before the hearing.
32 (g) At the hearing, the commissioners shall accept all information relat-
33 ing to the proceedings. Any person, including the state of Idaho or any
34 of its subdivisions, or any agency of the federal government, may appear
35 and give testimony for or against abandonment.
36 (h) After completion of the proceedings and consideration of all related
37 information, the commissioners shall decide whether the abandonment and
38 vacation of the highway or public right-of-way is in the public interest
39 of the highway jurisdiction affected by the abandonment or vacation. The
40 decision whether or not to abandon and vacate the highway or public right-
41 of-way shall be written and shall be supported by findings of fact and
42 conclusions of law.
43 (i) If the commissioners determine that a highway or public right-of-way
44 parcel to be abandoned and vacated in accordance with the provisions of
45 this section has a fair market value of twenty-five hundred dollars
46 ($2,500) or more, a charge may be imposed upon the acquiring entity, not
47 in excess of the fair market value of the parcel, as a condition of the
48 abandonment and vacation; provided, however, no such charge shall be
49 imposed on the landowner who originally dedicated such parcel to the pub-
50 lic for use as a highway or public right-of-way; and provided further,
51 that if the highway or public right-of-way was originally a federal land
52 right-of-way, said highway or public right-of-way shall revert to a fed-
53 eral land right-of-way.
54 (j) The commissioners shall cause any order or resolution to be recorded
55 in the county records and the official map of the highway system to be
4
1 amended as affected by the abandonment and vacation.
2 (k) From any such decision, a resident or property holder within the
3 county or highway district system, including the state of Idaho or any of
4 its subdivisions or any agency of the federal government, may appeal to
5 the district court of the county in which the highway or public right-of-
6 way is located pursuant to section 40-208, Idaho Code.
7 (2) No highway or public right-of-way or parts thereof shall be abandoned
8 and vacated so as to leave any real property adjoining the highway or public
9 right-of-way without access to an established highway or public right-of-way.
10 (3) In the event of abandonment and vacation, rights-of-way or easements
11 may be reserved for the continued use of existing sewer, gas, water, or simi-
12 lar pipelines and appurtenances, or other underground facilities as defined in
13 section 55-2202, Idaho Code, for ditches or canals and appurtenances, and for
14 electric, telephone and similar lines and appurtenances.
15 (4) A highway abandoned and vacated under the provisions of this section
16 may be reclassified as a public right-of-way.
17 (5) Until abandonment is authorized by the commissioners, public use of
18 the highway or public right-of-way may not be restricted or impeded by
19 encroachment or installation of any obstruction restricting public use, or by
20 the installation of signs or notices that might tend to restrict or prohibit
21 public use. Any person violating the provisions of this subsection shall be
22 guilty of a misdemeanor.
23 (6) When a county or highway district desires the abandonment or vacation
24 of any highway, public street or public right-of-way which was accepted as
25 part of a platted subdivision said abandonment or vacation shall be accom-
26 plished pursuant to the provisions of chapter 13, title 50, Idaho Code.
27 SECTION 3. That Section 40-203A, Idaho Code, be, and the same is hereby
28 amended to read as follows:
29 40-203A. VALIDATION OF COUNTY OR HIGHWAY DISTRICT SYSTEM HIGHWAY OR PUB-
30 LIC RIGHT-OF-WAY. (1) Any resident or property holder within a county or high-
31 way district system, including the state of Idaho or any of its subdivisions,
32 or any agency of the federal government, may petition the board of county or
33 highway district commissioners, whichever shall have jurisdiction of the high-
34 way system, to initiate public proceedings to validate a highway or public
35 right-of-way, including those which furnish public access to state and federal
36 public lands and waters, provided that the petitioner shall pay a reasonable
37 fee as determined by the commissioners to cover the cost of the proceedings,
38 or the commissioners may initiate validation proceedings on their own resolu-
39 tion, if any of the following conditions exist:
40 (a) If, through omission or defect, doubt exists as to the legal estab-
41 lishment or evidence of establishment of a highway or public right-of-way;
42 (b) If the location of the highway or public right-of-way cannot be accu-
43 rately determined due to numerous alterations of the highway or public
44 right-of-way, a defective survey of the highway, public right-of-way or
45 adjacent property, or loss or destruction of the original survey of the
46 highways or public rights-of-way; or
47 (c) If the highway or public right-of-way as traveled and used does not
48 generally conform to the location of a highway or public right-of-way
49 described on the official highway system map or in the public records.
50 (2) If proceedings for validation of a highway or public right-of-way are
51 initiated, the commissioners shall follow the procedure set forth in section
52 40-203, Idaho Code, and shall:
53 (a) If the commissioners determine it is necessary, cCause the highway or
5
1 public right-of-way to be surveyed;
2 (b) Cause a report to be prepared, including the consideration of any
3 survey and any other information required by the board commissioners;
4 (c) Establish a hearing date on the proceedings for validation;
5 (d) Cause notice of the proceedings to be provided in the same manner as
6 for abandonment and vacation proceedings; and
7 (e) At the hearing, the commissioners shall consider all information
8 relating to the proceedings and shall accept testimony from persons having
9 an interest in the proposed validation.
10 (3) Upon completion of the proceedings, the commissioners shall determine
11 whether validation of the highway or public right-of-way is in the public
12 interest and shall enter an order validating the highway or public right-of-
13 way as public or declaring it not to be public.
14 (4) From any such decision, any resident or property holder within a
15 county or highway district system, including the state of Idaho or any of its
16 subdivisions, or any agency of the federal government, may appeal to the dis-
17 trict court of the county in which the highway or public right-of-way is
18 located pursuant to section 40-208, Idaho Code.
19 (5) When a board of commissioners validates a highway or public right-of-
20 way, it shall cause the order validating the highway or public right-of-way,
21 and if surveyed, cause the survey to be recorded in the county records and
22 shall amend the official highway system map of the respective county or high-
23 way district system.
24 (6) The commissioners shall proceed to determine and provide just compen-
25 sation for the removal of any structure that, prior to creation of the highway
26 or public right-of-way, encroached upon a highway or public right-of-way that
27 is the subject of a validation proceeding, or if such is not practical, the
28 commissioners may acquire property to alter the highway or public right-of-way
29 being validated.
30 (7) This section does not apply to the validation of any highway, public
31 street or public right-of-way which is to be accepted as part of a platted
32 subdivision pursuant to chapter 13, title 50, Idaho Code.
33 SECTION 4. That Section 40-204A, Idaho Code, be, and the same is hereby
34 amended to read as follows:
35 40-204A. FEDERAL LAND RIGHTS-OF-WAY. (1) The state recognizes that the
36 act of construction and first use constitute the acceptance of the grant given
37 to the public for federal land rights-of-way, and that once acceptance of the
38 grant has been established, the grant shall be for the perpetual term granted
39 by the congress of the United States.
40 (2) The only method for the abandonment of these rights-of-way shall be
41 that of eminent domain proceedings in which the taking of the public's right
42 to access shall be justly compensated. Neither the mere passage of time nor
43 the frequency of use shall be considered a justification for considering these
44 rights-of-way to have been abandoned.
45 (3) All of the said rights-of-way shall be shown by some form of documen-
46 tation to have existed prior to the withdrawal of the federal grant in 1976 or
47 to predate the removal of land through which they transit from the public
48 domain for other public purposes. Documentation shall may take the form of at
49 least a map, and an affidavit. S, surveys, books and or other historic infor-
50 mation. may also be included.
51 (4) These rights-of-way shall not require maintenance for the passage of
52 vehicular traffic, nor shall any liability be incurred for injury or damage
53 through a failure to maintain the access or to maintain any highway sign.
6
1 These rights-of-way shall be traveled at the risk of the user and may be main-
2 tained by the public through usage by the public.
3 (5) Any member of the public, the state of Idaho and any of its political
4 subdivisions, and any agency of the federal government may choose to seek val-
5 idation of its rights under law to use granted rights-of-way either through a
6 process set forth by the state of Idaho, through processes set forth by any
7 federal agency or by proclamation of user rights granted under the provisions
8 of the original act, Revised Statute 2477.
9 These rights of way shall not be required to possess centerline surveys
10 typical of publicly maintained roads, but shall be surveyed prior to being
11 accepted into the maintained public highway system Persons seeking to have a
12 federal land right-of-way, including those which furnish public access to
13 state and federal public lands and waters, validated as a highway or public
14 right-of-way as part of a county or highway official highway system, shall
15 follow the procedure outlined in section 40-203A, Idaho Code.
16 Neither the granting of the original right-of-way nor any provision in
17 this or any other state act shall be construed as a relinquishment of either
18 federal ownership or management of the surface estate of the property over
19 which the right-of-way passes.
20 (6) Persons seeking acknowledgement of federal land rights-of-way shall
21 file with the county recorder the request for acknowledgement and for any sup-
22 porting documentation. The county recorder shall place the record acknowledge-
23 ments, on the official county road system map including supporting documenta-
24 tion, and maintain an appropriate index of same.
25 SECTION 5. An emergency existing therefor, which emergency is hereby
26 declared to exist, this act shall be in full force and effect on and after its
27 passage and approval.
AS1407
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
Moved by Whitworth
Seconded by Boatright
IN THE SENATE
SENATE AMENDMENT TO S.B. NO. 1407
1 AMENDMENTS TO SECTION 1
2 On page 2 of the printed bill, in line 27, delete "2000" and insert:
3 "20005"; and following line 32, insert:
4 "(7) Nothing in this section or in any designation of the general loca-
5 tion of a highway or public right-of-way shall authorize the public highway
6 agency to assert or claim rights superior to or in conflict with any rights-
7 of-way that resulted from the creation of a facility for the transmission of
8 water which existed before the designation of the location of a highway or
9 public right-of-way.".
10 CORRECTION TO TITLE
11 On page 1, in line 5, delete the second "AND" and insert: ","; and in line
12 6, following "MAP" insert: ", TO EXTEND THE DATE BY WHICH BOARDS OF COUNTY OR
13 HIGHWAY DISTRICT COMMISSIONERS SHALL HAVE PUBLISHED IN MAP FORM AND MADE
14 READILY AVAILABLE THE LOCATION OF ALL PUBLIC RIGHTS-OF-WAY UNDER THEIR JURIS-
15 DICTIONS, AND TO PROVIDE LIMITATIONS ON THE AUTHORITY OF A PUBLIC HIGHWAY
16 AGENCY TO ASSERT OR CLAIM RIGHTS SUPERIOR TO OR IN CONFLICT WITH RIGHTS-OF-WAY
17 THAT RESULTED FROM THE CREATION OF CERTAIN FACILITIES FOR THE TRANSMISSION OF
18 WATER".
STATEMENT OF PURPOSE
RS09906
The purpose of this legislation is to implement recommendations to the Report to the
Senate Transportation Committee and the House Transportation and Defense Committee,
submitted by the Local Highway Technical Assistance Council in response to Senate concurrent
Resolution - 136, passed in 1998.
Clarification of the statutory requirements of 40-202 (1) related to mapping accuracy and
liability of a county or highway district "official highway system map." All references to location
are changed to "general location" the intent of the maps is to illustrate where the public can
travel-not as an indication of property boundaries. Also eliminates the provision that liability for
maintaining a highway is determined by showing a highway on the official highway system map.
Clarifies the status of Federal land right of way used as a highway or public
rights-of-way and under the jurisdiction of a county and highway district. If the highway or public
rights-of-way is abandoned according to 40-203, that abandonment would not destroy the legal
status of the Federal land right of way.
Clarifies the statutory requirements of 40-203A (I)c related to mapping accuracy and-
liability, all references to location are to general location." With this modification, the lack of
absolute geographical accuracy of a highway or public rights-of-way on the official highway
system map would not trigger an expensive survey according to 40-203A (c). However, highway
district or county commissioners are directed to consider a survey.
Simplifies the acknowledgement of federal land rights-of-way, and clarifies the method
of incorporating federal land rights-of-way into highway district or county highway systems.
Amendment of 40-204A directs anyone seeking have a Federal land rights of way declared a
highway or public rights-of-way to use the validation process outlined in 40-203A. Therefore, this
amendment strikes from 40-204A that Federal land rights of way "shall not be required to possess
centerline surveys typical of publicly maintained roads, but shall be surveyed prior to being
accepted into the maintained public highway system." Removes reference to placement of
acknowledgement on the "official county map" this provision inadvertently allows county clerks
to add a road to a highway district system without a public hearing; and identifies that an "index"
would be the recording and identification method of Federal land rights of way
acknowledgements. Additionally, this amendment properly adds hyphens to denote the
rights-of-way refers to property and not a traffic rule.
FISCAL NOTE
No impact to the General Fund.
CONTACT: Byron Keely, Local Highway Technical Assistance Council
344-0565 or 1-800-259-6841
STATEMENT OF PURPOSE/FISCAL NOTE S140