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H0583...........................................................by BUSINESS UNIFORM COMMERCIAL CODE - Amends existing law to provide that persons who transfer demand drafts for consideration make certain warranties unless such warranties are not given under applicable conflict of law rules; and to define terms. 02/08 House intro - 1st rdg - to printing 02/11 Rpt prt - to Bus 02/20 Rpt out - rec d/p - to 2nd rdg 02/21 2nd rdg - to 3rd rdg 02/26 3rd rdg - PASSED - 69-0-1 AYES -- Aikele, Barraclough, Barrett, Bedke, Bell, Bieter, Black, Block, Boe, Bolz, Bradford, Bruneel, Callister, Campbell, Clark, Collins, Crow, Cuddy, Deal, Denney, Ellis, Ellsworth, Eskridge, Field(13), Field(20), Gagner, Gould, Hadley, Hammond, Harwood, Henbest, Higgins, Hornbeck, Jaquet, Jones, Kellogg(Duncan), Kendell, Kunz, Lake, Langford, Loertscher, Mader, Martinez, McKague, Meyer, Montgomery, Moyle, Pearce, Pischner, Pomeroy, Raybould, Ridinger, Roberts, Robison, Sali, Schaefer, Sellman, Shepherd, Smith(33), Smith(23), Smylie, Stevenson, Stone, Tilman, Trail, Wheeler, Wood, Young, Mr. Speaker NAYS -- None Absent and excused -- Mortensen Floor Sponsor - Higgins Title apvd - to Senate 02/27 Senate intro - 1st rdg - to Com/HuRes 03/12 Rpt out - rec d/p - to 2nd rdg 03/13 2nd rdg - to 3rd rdg 03/15 3rd rdg - PASSED - 34-0-1 AYES -- Andreason, Boatright, Branch Brandt, Bunderson, Burtenshaw, Cameron, Darrington, Davis, Deide, Dunklin, Frasure, Geddes, Goedde, Hill, Ingram, Ipsen, Keough, King-Barrutia, Little, Lodge, Marley, Noh, Richardson, Risch, Sandy, Schroeder, Sims, Sorensen, Stegner, Stennett, Thorne, Wheeler, Williams NAYS -- None Absent and excused -- Hawkins Floor Sponsor - Andreason Title apvd - to House 03/15 To enrol - rpt enrol - Sp signed Pres signed 03/18 To Governor 03/20 Governor signed Session Law Chapter 121 Effective: 07/01/02
|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-sixth Legislature Second Regular Session - 2002IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 583 BY BUSINESS COMMITTEE 1 AN ACT 2 RELATING TO THE UNIFORM COMMERCIAL CODE; AMENDING SECTION 28-3-103, IDAHO 3 CODE, TO PROVIDE A REFERENCE TO DEMAND DRAFTS; AMENDING SECTION 28-3-104, 4 IDAHO CODE, TO PROVIDE A REFERENCE TO DEMAND DRAFTS AND TO DEFINE "DEMAND 5 DRAFT"; AMENDING SECTION 28-3-416, IDAHO CODE, TO PROVIDE THAT PERSONS WHO 6 TRANSFER DEMAND DRAFTS FOR CONSIDERATION MAKE CERTAIN WARRANTIES UNLESS 7 SUCH WARRANTIES ARE NOT GIVEN UNDER APPLICABLE CONFLICT OF LAW RULES; 8 AMENDING SECTION 28-3-417, IDAHO CODE, TO PROVIDE THAT PERSONS OBTAINING 9 PAYMENT OR ACCEPTANCE ON DEMAND DRAFTS AND PREVIOUS TRANSFERORS OF DEMAND 10 DRAFTS MAKE CERTAIN WARRANTIES UNLESS SUCH WARRANTIES ARE NOT GIVEN UNDER 11 APPLICABLE CONFLICT OF LAW RULES AND TO DEFINE "DEMAND DRAFT"; AMENDING 12 SECTION 28-4-207, IDAHO CODE, TO PROVIDE THAT CUSTOMERS OR COLLECTING 13 BANKS TRANSFERRING DEMAND DRAFTS FOR CONSIDERATION MAKE CERTAIN WARRANTIES 14 UNLESS SUCH WARRANTIES ARE NOT GIVEN UNDER APPLICABLE CONFLICT OF LAW 15 RULES; AND AMENDING SECTION 28-4-208, IDAHO CODE, TO PROVIDE FOR PRESENT- 16 MENT WARRANTIES FOR DEMAND DRAFTS AND TO PROVIDE THAT SUCH WARRANTIES 17 SHALL NOT APPLY UNDER CERTAIN CONFLICT OF LAW RULES AND TO DEFINE "DEMAND 18 DRAFT." 19 Be It Enacted by the Legislature of the State of Idaho: 20 SECTION 1. That Section 28-3-103, Idaho Code, be, and the same is hereby 21 amended to read as follows: 22 28-3-103. DEFINITIONS. (1) In this chapter: 23 (a) "Acceptor" means a drawee who has accepted a draft. 24 (b) "Drawee" means a person ordered in a draft to make payment. 25 (c) "Drawer" means a person who signs or is identified in a draft as a 26 person ordering payment. 27 (d) "Good faith" means honesty in fact in the conduct or transaction con- 28 cerned. 29 (e) "Maker" means a person who signs or is identified in a note as a per- 30 son undertaking to pay. 31 (f) "Order" means a written instruction to pay money signed by the person 32 giving the instruction. The instruction may be addressed to any person, 33 including the person giving the instruction, or to one (1) or more persons 34 jointly or in the alternative but not in succession. An authorization to 35 pay is not an order unless the person authorized to pay is also instructed 36 to pay. 37 (g) "Ordinary care" in the case of a person engaged in business means 38 observance of reasonable commercial standards, prevailing in the area in 39 which the person is located, with respect to the business in which the 40 person is engaged. In the case of a bank that takes an instrument for 41 processing for collection or payment by automated means, reasonable com- 42 mercial standards do not require the bank to examine the instrument if the 43 failure to examine does not violate the bank's prescribed procedures and 2 1 the bank's procedures do not vary unreasonably from general banking usage 2 not disapproved by this chapter or chapter 4. 3 (h) "Party" means a party to an instrument. 4 (i) "Promise" means a written undertaking to pay money signed by the per- 5 son undertaking to pay. An acknowledgment of an obligation by the obligor 6 is not a promise unless the obligor also undertakes to pay the obliga- 7 tion. 8 (j) "Prove" with respect to a fact means to meet the burden of establish- 9 ing the fact (section 28-1-201(8)). 10 (k) "Remitter" means a person who purchases an instrument from its issuer 11 if the instrument is payable to an identified person other than the pur- 12 chaser. 13 (2) Other definitions applying to this chapter and the sections in which 14 they appear are: 15 "Acceptance" Section 28-3-409 16 "Accommodated party" Section 28-3-419 17 "Accommodation party" Section 28-3-419 18 "Alteration" Section 28-3-407 19 "Anomalous indorsement" Section 28-3-205 20 "Blank indorsement" Section 28-3-205 21 "Cashier's check" Section 28-3-104 22 "Certificate of deposit" Section 28-3-104 23 "Certified check" Section 28-3-409 24 "Check" Section 28-3-104 25 "Consideration" Section 28-3-303 26 "Demand draft" Section 28-3-104 27 "Draft" Section 28-3-104 28 "Holder in due course" Section 28-3-302 29 "Incomplete instrument" Section 28-3-115 30 "Indorsement" Section 28-3-204 31 "Indorser" Section 28-3-204 32 "Instrument" Section 28-3-104 33 "Issue" Section 28-3-105 34 "Issuer" Section 28-3-105 35 "Negotiable instrument" Section 28-3-104 36 "Negotiation" Section 28-3-201 37 "Note" Section 28-3-104 38 "Payable at a definite time" Section 28-3-108 39 "Payable on demand" Section 28-3-108 40 "Payable to bearer" Section 28-3-109 41 "Payable to order" Section 28-3-109 42 "Payment" Section 28-3-602 43 "Person entitled to enforce" Section 28-3-301 44 "Presentment" Section 28-3-501 45 "Reacquisition" Section 28-3-207 46 "Special indorsement" Section 28-3-205 47 "Teller's check" Section 28-3-104 48 "Transfer of instrument" Section 28-3-203 49 "Traveler's check" Section 28-3-104 50 "Value" Section 28-3-303 51 (3) The following definitions in other chapters apply to this chapter: 52 "Bank" Section 28-4-105 53 "Banking day" Section 28-4-104 54 "Clearing house" Section 28-4-104 55 "Collecting bank" Section 28-4-105 3 1 "Depositary bank" Section 28-4-105 2 "Documentary draft" Section 28-4-104 3 "Intermediary bank" Section 28-4-105 4 "Item" Section 28-4-104 5 "Payor bank" Section 28-4-105 6 "Suspends payments" Section 28-4-104 7 (4) In addition, chapter 1 contains general definitions and principles of 8 construction and interpretation applicable throughout this chapter. 9 SECTION 2. That Section 28-3-104, Idaho Code, be, and the same is hereby 10 amended to read as follows: 11 28-3-104. NEGOTIABLE INSTRUMENT. (1) Except as provided in subsections 12 (3) and (4) of this section, "negotiable instrument" means an unconditional 13 promise or order to pay a fixed amount of money, with or without interest or 14 other charges described in the promise or order, if it: 15 (a) Is payable to bearer or to order at the time it is issued or first 16 comes into possession of a holder; 17 (b) Is payable on demand or at a definite time; and 18 (c) Does not state any other undertaking or instruction by the person 19 promising or ordering payment to do any act in addition to the payment of 20 money, but the promise or order may contain (i) an undertaking or power to 21 give, maintain, or protect collateral to secure payment, (ii) an authori- 22 zation or power to the holder to confess judgment or realize on or dispose 23 of collateral, or (iii) a waiver of the benefit of any law intended for 24 the advantage or protection of an obligor. 25 (2) "Instrument" means a negotiable instrument. 26 (3) An order that meets all of the requirements of subsection (1) of this 27 section, except paragraph (a), and otherwise falls within the definition of 28 "check" in subsection (6) of this section is a negotiable instrument and a 29 check. 30 (4) A promise or order other than a check is not an instrument if, at the 31 time it is issued or first comes into possession of a holder, it contains a 32 conspicuous statement, however expressed, to the effect that the promise or 33 order is not negotiable or is not an instrument governed by this chapter. 34 (5) An instrument is a "note" if it is a promise and is a "draft" if it 35 is an order. If an instrument falls within the definition of both "note" and 36 "draft," a person entitled to enforce the instrument may treat it as either. 37 (6) "Check" means (i) a draft, other than a documentary draft, payable on 38 demand and drawn on a bank,or(ii) a cashier's check or teller's check, or 39 (iii) a demand draft. An instrument may be a check even though it is 40 described on its face by another term, such as "money order." 41 (7) "Cashier's check" means a draft with respect to which the drawer and 42 drawee are the same bank or branches of the same bank. 43 (8) "Teller's check" means a draft drawn by a bank (i) on another bank, 44 or (ii) payable at or through a bank. 45 (9) "Traveler's check" means an instrument that (i) is payable on demand, 46 (ii) is drawn on or payable at or through a bank, (iii) is designated by the 47 term "traveler's check" or by a substantially similar term, and (iv) requires, 48 as a condition to payment, a countersignature by a person whose specimen sig- 49 nature appears on the instrument. 50 (10) "Certificate of deposit" means an instrument containing an acknowl- 51 edgment by a bank that a sum of money has been received by the bank and a 52 promise by the bank to repay the sum of money. A certificate of deposit is a 53 note of the bank. 4 1 (11) "Demand draft" means a writing not signed by the customer that is 2 created by a third party under the purported authority of the customer for the 3 purpose of charging the customer's account with a bank. A demand draft shall 4 contain the customer's account number and may contain any or all of the fol- 5 lowing: 6 (a) The customer's printed or typewritten name; 7 (b) A notation that the customer authorized the draft; or 8 (c) The statement "no signature required" or words to that effect. 9 "Demand draft" does not include a check purportedly drawn by and bearing 10 the signature of a fiduciary, as defined in section 68-301, Idaho Code. 11 SECTION 3. That Section 28-3-416, Idaho Code, be, and the same is hereby 12 amended to read as follows: 13 28-3-416. TRANSFER WARRANTIES. (1) A person who transfers an instrument 14 for consideration warrants to the transferee and, if the transfer is by 15 indorsement, to any subsequent transferee that: 16 (a) The warrantor is a person entitled to enforce the instrument; 17 (b) All signatures on the instrument are authentic and authorized; 18 (c) The instrument has not been altered; 19 (d) The instrument is not subject to a defense or claim in recoupment of 20 any party which can be asserted against the warrantor;and21 (e) The warrantor has no knowledge of any insolvency proceeding commenced 22 with respect to the maker or acceptor or, in the case of an unaccepted 23 draft, the drawer; and 24 (f) If the instrument is a demand draft, creation of the instrument 25 according to the terms on its face was authorized by the person identified 26 as drawer. 27 (2) A person to whom the warranties under subsection (1) of this section 28 are made and who took the instrument in good faith may recover from the 29 warrantor as damages for breach of warranty an amount equal to the loss suf- 30 fered as a result of the breach, but not more than the amount of the instru- 31 ment plus expenses and loss of interest incurred as a result of the breach. 32 (3) The warranties stated in subsection (1) of this section cannot be 33 disclaimed with respect to checks. Unless notice of a claim for breach of 34 warranty is given to the warrantor within thirty (30) days after the claimant 35 has reason to know of the breach and the identity of the warrantor, the lia- 36 bility of the warrantor under subsection (2) of this section is discharged to 37 the extent of any loss caused by the delay in giving notice of the claim. 38 (4) A cause of action for breach of warranty under this section accrues 39 when the claimant has reason to know of the breach. 40 (5) If the warranty in subsection (1)(f) of this section is not given by 41 a transferor under applicable conflict of law rules, then the warranty is not 42 given to that transferor when that transferor is a transferee. 43 SECTION 4. That Section 28-3-417, Idaho Code, be, and the same is hereby 44 amended to read as follows: 45 28-3-417. PRESENTMENT WARRANTIES. (1) If an unaccepted draft is presented 46 to the drawee for payment or acceptance and the drawee pays or accepts the 47 draft, (i) the person obtaining payment or acceptance, at the time of present- 48 ment, and (ii) a previous transferor of the draft, at the time of transfer, 49 warrant to the drawee making payment or accepting the draft in good faith 50 that: 51 (a) The warrantor is, or was, at the time the warrantor transferred the 5 1 draft, a person entitled to enforce the draft or authorized to obtain pay- 2 ment or acceptance of the draft on behalf of a person entitled to enforce 3 the draft; 4 (b) The draft has not been altered;and5 (c) The warrantor has no knowledge that the signature of the drawer of 6 the draft is unauthorized; and 7 (d) If the draft is a demand draft, creation of the demand draft accord- 8 ing to the terms on its face was authorized by the person identified as 9 drawer. 10 (2) A drawee making payment may recover from any warrantor damages for 11 breach of warranty equal to the amount paid by the drawee less the amount the 12 drawee received or is entitled to receive from the drawer because of the pay- 13 ment. In addition, the drawee is entitled to compensation for expenses and 14 loss of interest resulting from the breach. The right of the drawee to 15 recover damages under this subsection is not affected by any failure of the 16 drawee to exercise ordinary care in making payment. If the drawee accepts the 17 draft, breach of warranty is a defense to the obligation of the acceptor. If 18 the acceptor makes payment with respect to the draft, the acceptor is entitled 19 to recover from any warrantor for breach of warranty the amounts stated in 20 this subsection. 21 (3) If a drawee asserts a claim for breach of warranty under subsection 22 (1) of this section, based on an unauthorized indorsement of the draft or an 23 alteration of the draft, the warrantor may defend by proving that the indorse- 24 ment is effective under section 28-3-404 or 28-3-405 or the drawer is pre- 25 cluded under section 28-3-406 or 28-4-406 from asserting against the drawee 26 the unauthorized indorsement or alteration. 27 (4) If (i) a dishonored draft is presented for payment to the drawer or 28 an indorser or (ii) any other instrument is presented for payment to a party 29 obliged to pay the instrument, and (iii) payment is received, the following 30 rules apply: 31 (a) The person obtaining payment and a prior transferor of the instrument 32 warrant to the person making payment in good faith that the warrantor is, 33 or was, at the time the warrantor transferred the instrument, a person 34 entitled to enforce the instrument or authorized to obtain payment on 35 behalf of a person entitled to enforce the instrument. 36 (b) The person making payment may recover from any warrantor for breach 37 of warranty an amount equal to the amount paid plus expenses and loss of 38 interest resulting from the breach. 39 (5) The warranties stated in subsections (1) and (4) of this section can- 40 not be disclaimed with respect to checks. Unless notice of a claim for breach 41 of warranty is given to the warrantor within thirty (30) days after the claim- 42 ant has reason to know of the breach and the identity of the warrantor, the 43 liability of the warrantor under subsection (2) or (4) of this section is dis- 44 charged to the extent of any loss caused by the delay in giving notice of the 45 claim. 46 (6) A cause of action for breach of warranty under this section accrues 47 when the claimant has reason to know of the breach. 48 (7) A demand draft is a check, as provided in section 28-3-104. 49 (8) If the warranty in subsection (1)(d) of this section is not given by 50 a transferor under applicable conflict of law rules, the warranty is not given 51 to that transferor when the transferor is a transferee. 52 SECTION 5. That Section 28-4-207, Idaho Code, be, and the same is hereby 53 amended to read as follows: 6 1 28-4-207. TRANSFER WARRANTIES. (1) A customer or collecting bank that 2 transfers an item and receives a settlement or other consideration warrants to 3 the transferee and to any subsequent collecting bank that: 4 (a) The warrantor is a person entitled to enforce the item; 5 (b) All signatures on the item are authentic and authorized; 6 (c) The item has not been altered; 7 (d) The item is not subject to a defense or claim in recoupment (section 8 28-3-305(1)) of any party that can be asserted against the warrantor;and9 (e) The warrantor has no knowledge of any insolvency proceeding commenced 10 with respect to the maker or acceptor or, in the case of an unaccepted 11 draft, the drawer; and 12 (f) If the item is a demand draft, creation of the item according to the 13 terms on its face was authorized by the person identified as drawer. 14 (2) If an item is dishonored, a customer or collecting bank transferring 15 the item and receiving settlement or other consideration is obliged to pay the 16 amount due on the item (i) according to the terms of the item at the time it 17 was transferred, or (ii) if the transfer was of an incomplete item, according 18 to its terms when completed as stated in sections 28-3-115 and 28-3-407. The 19 obligation of a transferor is owed to the transferee and to any subsequent 20 collecting bank that takes the item in good faith. A transferor cannot dis- 21 claim its obligation under this subsection by an indorsement stating that it 22 is made "without recourse" or otherwise disclaiming liability. 23 (3) A person to whom the warranties under subsection (1) of this section 24 are made and who took the item in good faith may recover from the warrantor as 25 damages for breach of warranty an amount equal to the loss suffered as a 26 result of the breach, but not more than the amount of the item plus expenses 27 and loss of interest incurred as a result of the breach. 28 (4) The warranties stated in subsection (1) of this section cannot be 29 disclaimed with respect to checks. Unless notice of a claim for breach of war- 30 ranty is given to the warrantor within thirty (30) days after the claimant has 31 reason to know of the breach and the identity of the warrantor, the warrantor 32 is discharged to the extent of any loss caused by the delay in giving notice 33 of the claim. 34 (5) A cause of action for breach of warranty under this section accrues 35 when the claimant has reason to know of the breach. 36 (6) If the warranty in subsection (1)(f) of this section is not given by 37 a transferor under applicable conflict of law rules, the warranty is not given 38 to that transferor when the transferor is a transferee, nor to any prior col- 39 lecting bank. 40 SECTION 6. That Section 28-4-208, Idaho Code, be, and the same is hereby 41 amended to read as follows: 42 28-4-208. PRESENTMENT WARRANTIES. (1) If an unaccepted draft is presented 43 to the drawee for payment or acceptance and the drawee pays or accepts the 44 draft, (i) the person obtaining payment or acceptance, at the time of present- 45 ment, and (ii) a previous transferor of the draft, at the time of transfer, 46 warrant to the drawee that pays or accepts the draft in good faith that: 47 (a) The warrantor is, or was, at the time the warrantor transferred the 48 draft, a person entitled to enforce the draft or authorized to obtain pay- 49 ment or acceptance of the draft on behalf of a person entitled to enforce 50 the draft; 51 (b) The draft has not been altered;and52 (c) The warrantor has no knowledge that the signature of the purported 53 drawer of the draft is unauthorized; and 7 1 (d) If the draft is a demand draft, creation of the demand draft accord- 2 ing to the terms on its face was authorized by the person identified as 3 drawer. 4 (2) A drawee making payment may recover from a warrantor damages for 5 breach of warranty equal to the amount paid by the drawee less the amount the 6 drawee received or is entitled to receive from the drawer because of the pay- 7 ment. In addition, the drawee is entitled to compensation for expenses and 8 loss of interest resulting from the breach. The right of the drawee to 9 recover damages under this subsection is not affected by any failure of the 10 drawee to exercise ordinary care in making payment. If the drawee accepts the 11 draft (i) breach of warranty is a defense to the obligation of the acceptor, 12 and (ii) if the acceptor makes payment with respect to the draft, the acceptor 13 is entitled to recover from a warrantor for breach of warranty the amounts 14 stated in this subsection. 15 (3) If a drawee asserts a claim for breach of warranty under subsection 16 (1) of this section based on an unauthorized indorsement of the draft or an 17 alteration of the draft, the warrantor may defend by proving that the indorse- 18 ment is effective under section 28-3-404 or 28-3-405 or the drawer is pre- 19 cluded under section 28-3-406 or 28-4-406 from asserting against the drawee 20 the unauthorized indorsement or alteration. 21 (4) If (i) a dishonored draft is presented for payment to the drawer or 22 an indorser or (ii) any other item is presented for payment to a party obliged 23 to pay the item, and the item is paid, the person obtaining payment and a 24 prior transferor of the item warrant to the person making payment in good 25 faith that the warrantor is, or was, at the time the warrantor transferred the 26 item, a person entitled to enforce the item or authorized to obtain payment on 27 behalf of a person entitled to enforce the item. The person making payment 28 may recover from any warrantor for breach of warranty an amount equal to the 29 amount paid plus expenses and loss of interest resulting from the breach. 30 (5) The warranties stated in subsections (1) and (2) of this section can- 31 not be disclaimed with respect to checks. Unless notice of a claim for breach 32 of warranty is given to the warrantor within thirty (30) days after the claim- 33 ant has reason to know of the breach and the identity of the warrantor, the 34 warrantor is discharged to the extent of any loss caused by the delay in giv- 35 ing notice of the claim. 36 (6) A cause of action for breach of warranty under this section accrues 37 when the claimant has reason to know of the breach. 38 (7) A demand draft is a check, as provided in section 28-3-104. 39 (8) If the warranty in subsection (1)(d) of this section is not given by 40 a transferor under applicable conflict of law rules, the warranty is not given 41 to that transferor when the transferor is a transferee.
STATEMENT OF PURPOSE RS 11955 “Demand drafts” are a type of negotiable instrument which are authorized by a bank customer but need not be signed by that customer. They are commonly used by consumers to purchase goods or services by telephone. The purpose of this bill is to establish that in the case of a fraudulent demand draft, the perpetrator’s banks bears the risk of loss, not the consumer’s bank. Occasionally, an identity thief (“perpetrator”) steals a consumer’s bank account number, and then uses this number to draw funds from the consumer’s account by creating a fraudulent demand draft. The consumer will not discover the fraud until he receives his bank statement, but so long as he notifies his bank within thirty (30) days following the receipt of his statement, the bank is required to re-credit the customer’s account. Under present UCC rules, the customer’s bank is stuck with the loss, because it is too late to return the fraudulent demand draft to the bank which accepted it from the perpetrator. This bill would change the UCC rule on demand drafts to be the same as the rule for stolen or forged checks: the customer’s bank would have up to a year to pursue recovery of the item from the bank which took the fraudulent demand draft from the perpetrator. As between the two banks, this is the fairer outcome, since the bank which dealt with the perpetrator is in the best position to prevent the fraud in the first place. Similar legislation has already been enacted in California, Hawaii, North Dakota, Oregon, Texas, Utah and West Virginia. FISCAL IMPACT This legislation would have no impact on the general fund. Contact Name: Patrick V. Collins Hawley Troxell Ennis & Hawley LLP Counsel for the Idaho Bankers Association Phone: (208) 334-6000 STATEMENT OF PURPOSE/FISCAL NOTE H 583