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(1) The board hereby adopts and incorporates by reference the citizen participation rules of the department of commerce as set forth in ARM 8.2.201 through 8.2.207. A copy of these rules may be obtained from the Montana Board of Investments, PO Box 200126, Helena, Montana 59620-0126.

(1) Any person who purposely or knowingly makes a false or deceptive statement in an application or purposely or knowingly omits information necessary to prevent the statements in an application from being misleading may be prosecuted under 45-6-317 and 45-7-203, MCA, or other applicable provisions of law.

(2) The submission of false, misleading, or deceptive information in an application shall be grounds for rejection of the application and denial of further consideration.

(1) The board adopts and incorporates by reference ARM Title 1, chapter 3, subchapter 2, the Attorney General's Model Procedural Rules and ARM Title 1 chapter 3, subchapter 3, the Secretary of State's Organizational and Procedural Rules. A copy of these rules may be obtained from the Montana Board of Investments, PO Box 200126, Helena, Montana 59620-0126. Hearings on applications shall not be considered contested cases. 

(1) Information submitted to the board will be treated as public information, except when the demand of individual privacy clearly exceeds the merits of public disclosure, the information is confidential, or contains intellectual property or proprietary information.

(2) Confidential information includes:  

(a)  information determined to be personally identifiable information under Montana law;

(b)  documents and discussions protected by the attorney-client privilege or attorney work product doctrine; and

(c)  personnel matters.

(3)  Intellectual property and proprietary information will be protected from public disclosure in accordance with the board's nondisclosure agreement.

(1) If the bond capacity of the board is not sufficient to finance all eligible projects, the board, in determining which projects to fund, shall consider the following:            

(a) the order in which the applications are submitted;            

(b) the availability of financing through one of its other programs;

(c) the availability of tax-exempt financing through another issuer; and

(d) the degree to which the project meets the policies set forth in 17-5-1502, MCA, of the Act.

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For the purposes of this subchapter, the following definitions apply:

(1) "Act" means the Municipal Finance Consolidation Act of 1983 as set forth in Title 17, chapter 5, part 16, MCA.

(2) "Bond" means any bond or note issued by the board pursuant to Title 17, chapter 5, part 16, MCA.

(3) "Eligible government unit" means eligible government unit as defined in 17‑5‑1604(3), MCA.

(4) "INTERCAP revolving program" or "INTERCAP program" means the intermediate term capital program administered by the board pursuant to Title 17, chapter 5, part 16, MCA.

(5) "Loan agreement" means the agreement, including the exhibits attached thereto and the security instrument, if any, between the borrower and the board or the bond or note resolution of the eligible government unit, all as originally executed or from time to time supplemented, modified or amended in accordance with the terms of the agreement, or the resolution, respectively.

(6) "Obligation" means any bond, note or bond anticipation note issued by an eligible government unit and payable from taxes, funds, special assessments, revenues derived from an enterprise owned by the eligible government unit, or any combination thereof.

(7) "Program(s)" include, but are not limited to, the INTERCAP revolving loan program and other board programs developed pursuant to the Act.

(8)  "Reserve fund" means the Municipal Finance Consolidation Act reserve fund, as described in 17-5-1604, MCA, and created by the board pursuant to 17‑5‑1630, MCA.

(9)  "Short term obligation" means any obligation with an actual or stated term of less than 12 months. 

(1) This subchapter shall govern the submittal of and processing of applications to the board for financing and the purchase of obligations under the Act including, but not limited to, the INTERCAP revolving program.

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(1) An eligible government unit may apply for financing under a program by submitting an application to the board on a form provided by the board. The form shall elicit sufficient information to enable the board to determine whether the eligible government unit and the proposed loan meets the requirements of 17-5-1611(8), MCA.

(2) The bond program office of the board shall review the application to determine whether the application is complete. The bond program office may request the eligible government unit to provide additional information relevant to the evaluation of the application. Upon a determination by the bond program office that the application is complete, the executive director and bond program office may approve the loan, if authorized by these rules or board policy or make a recommendation to the board for action on the application. The executive director shall have final discretion to refer any application to the board for its approval.

(3) If the application is approved, the bond program office shall notify the eligible government unit of the terms and conditions of the loan.

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(2) A loan agreement must be executed and delivered prior to disbursement of any loan funds. The loan agreement must contain the pledges, agreements and covenants necessary and appropriate to the type of loan being made and the project being financed.

(3) Prior to closing of the loan, an eligible government unit may withdraw its application for a loan for any reason. If an application is withdrawn, the commitment fee will be returned to the eligible government unit.

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(1) The board may require an eligible government unit to pay interest on its obligations at a rate or rates sufficient to enable the board to pay debt service on any bonds or notes issued by the board, to reimburse the board for its administrative costs incurred in undertaking the program and its general operating and administrative expenses and to provide a reasonable allowance for losses that may be incurred in the program, including funding the reserve fund.

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(a) a complete transcript of all proceedings, if applicable, taken by the eligible government unit in connection with the authorization, issuance and sale of the obligations and security therefor, certified by the recording officer of the eligible government unit;

(b) certificates of the duly-authorized representatives of the eligible government unit as to the absence of litigation and the application to be made of the proceeds of the obligations;

(c) a legal opinion acceptable to the board as to the due and proper authorization and validity of the obligations and the security thereof; and

(d) such other items as may be requested by the board or its counsel.

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(1) "Board" or "board of investments" means the board of investments created in 2-15-1808, MCA.

(2) "Loan program" means loans funded from the Montana permanent coal tax trust pursuant to 17-6-305 and 17-6-308, MCA.

(3) "Basic sector of the economy" businesses as envisioned in 17-6-309, MCA, means:

(a) business activity conducted in the state that produces goods and services for which 50% or more of the gross revenues are derived from out-of-state sources; or

(b) business activity conducted in-state that produces goods and services, 50% or more of which will be purchased by in-state residents in lieu of like or similar goods and services which would otherwise be purchased from out-of-state sources.

(4) "Commitment" means a letter from the board agreeing to reserve a stated amount of its funds for a particular financing and setting forth the interest rates and other terms and conditions therefor.

(5) "Financial institution" means an institution approved by the board that

(a) is a state or federally-chartered bank, savings and loan association, credit union, mortgage company, mortgage servicing company, development credit corporation, investment company, trust company, savings institution, small business investment company, insurance companies, public and private pension funds, credit and finance companies, specialized financiers or sophisticated institutional investors.

(6) "Infrastructure loan" means a loan for infrastructure projects which may include the acquisition, construction and improvement of infrastructure or industrial infrastructure, which includes streets, roads, curbs, gutters, sidewalks, pedestrian malls, alleys, parking lots and off-street parking facilities, sewer lines, sewage treatment facilities, storm sewers, waterlines, waterways, water treatment facilities, natural gas lines, electrical lines, telecommunication lines, rail lines, rail spurs, bridges, publicly owned buildings and any other public improvements authorized under 7-15-4288(4) , MCA.

(7) "Job credit interest rate reduction" means the interest rate reduction allocated for the creation of any job which pays at least 100% of the average weekly wage as defined in 39-71-116, MCA.

(8) "Permanent full-time employee," as cited in 17-6-309(2) , MCA, means an employee who is scheduled to work full-time (i.e. a minimum of 35-40 hours per week) for an indefinite period of time.   Temporary or part-time employees, and employees on contract or supplied by personnel supply companies, are not to be counted for purposes of qualification for the loan (i.e. the employer must provide a W-2 to its employee) .

(9) "Seller/servicer" means the same as financial institution for the purposes of these rules.

(10) "Service fees" means the fees charged by sellers/servicers as defined in 17-6-302(11) , MCA, for servicing loans, including the collection of payments and remitting payments to the board.

(11) "Nonprofit corporation" means a corporation as per internal revenue service regulations.

(12) "Small-and medium-sized business," as used in 17-6-309(1) (f) , MCA, means those businesses defined by the board in written loan policy based on business net worth, average net income, number of employees or other criteria established by the board.

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(a) federally guaranteed loans up to 100% of the guaranteed interest of loans guaranteed by the United States or any agency or instrumentality of the United States, including, but not limited to, the small business administration, the U.S. department of agriculture and the federal aviation administration;

(b) participation loans up to 80% in loans to Montana businesses.   The board's security in a participation loan must be in the same proportion as the loan participation amount;

(c) linked deposit loans with financial institutions that utilize the deposits to fund loans to businesses. The financial institution retains all risk on loans financed with the proceeds of a linked deposit and the deposits are subject to the collateral and pledging requirements provided in 17-6-101 through 17-6-105, MCA, or such other collateral and pledging requirements as may be necessary to secure the deposits; and

(d) infrastructure loans to local governments to finance infrastructure provided to businesses creating permanent, full-time jobs in the basic sector of the Montana economy.   The local government borrower must demonstrate that the business for whom the infrastructure is provided has the ability to repay the loan upon the terms and conditions set by the board.

(a) seller/servicer approval criteria and procedures, including the application form;  

(b) seller/servicer agreement forms, providing for loan servicing, loan monitoring, foreclosure procedures and suspension/revocation of seller/servicer approval;

(c) loan application forms and the type of information required on the application;

(d) how loan commitments are made and for what periods of time;   

(e) the establishment of commitment fees, when those fees may be waived and what, if any, portion of the fee is retained if the loan application is rejected or withdrawn;

(f) the parameters and criteria for setting loan interest rates;

(g) the development and approval of loan underwriting policies for the various types of loans authorized by the board, including the level of authority granted staff to approve loans, and any appeals process available to loan applicants whose application is rejected;    

(h) the setting of fees of interest rate buy-downs, loan assumptions and/or loan modifications;      

(i) a definition of small and medium sized businesses, if required; and

(j) criteria for consideration of loans to non-profit corporations.

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(1) A business enterprise may apply for financing under the economic development bond programs by submitting a loan application to the board which will review project eligibility and the proposed use of the money.

(2) For moral obligation bonds, the financial institution shall submit a complete loan application on a form provided by the board. The application shall be properly signed and certified by the borrower and the financial institution. An application signed by the financial institution shall constitute a commitment by the financial institution to originate the loan or participate in the financing (if such participation is required) , in the manner set forth in the application. The board shall review the complete application with bond counsel to determine whether the project meets the requirements of these rules and the regulations of the Internal Revenue Code.

(3) If the applicant has applied for bond financing which is subject to federal tax exemption and the project appears eligible, the board shall notify the governing body of the local government in which the project is located of the pending application for financing and of the local government's right to conduct a public hearing on the project for the purpose of determining whether the project is in the public interest. The local government shall notify the board within fourteen days after receipt of notification of the pending application of whether the local government intends to conduct the public hearing.

(4) If the local government elects to conduct the public hearing, the board and local government shall determine the date for the public hearing and the board shall publish notice of the public hearing pursuant to the requirements of 17-5-1526(4) and 17-5-1527(4) , MCA. If the local government, after the public hearing, determines that the project is in the public interest, it shall adopt a resolution which makes appropriate findings of public interest with respect thereto. The local government must notify the board within fourteen days of the public hearing of its findings and provide the board with a copy of the resolution. The board, upon notification that the local government has determined that the project is in the public interest, may issue an inducement resolution.

(5) If the local government declines to conduct the public hearing or fails to notify the board of its intention to conduct the hearing within fourteen days, the board shall hold a public hearing on the project for the purpose of determining whether the project is in the public interest. If the local government fails to notify the board of its determination of public interest within fourteen days of the hearing, the board may hold a public hearing on the project for the purpose of determining whether the project is in the public interest. At the conclusion of the public hearing, the board may issue its inducement resolution for the project.

(6) If the board determines that time is of the essence to an applicant applying for financing from federally tax-exempt bonds, the board may adopt a preliminary inducement resolution after an application has been submitted in accordance with terms and conditions deemed necessary by the board.

(7) Upon receipt of the local government's determination or upon its own determination that the project is in the public interest, the board may adopt an inducement resolution. This inducement resolution shall only constitute an expression of present intention of the board with respect to the project and shall not constitute a binding commitment on the part of the board that its bonds or notes will be issued for the project. This resolution expires one year from its date of adoption.

(8) After the board has approved an application for financing with federally tax-exempt bonds, but before the board issues such bonds, a project description shall be submitted to the governor. The governor shall, in writing, approve the project and certify that the required public hearing was conducted in compliance with the Internal Revenue Code.

(9) After an application has been approved by the board, the board may issue a conditional commitment.

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(1) Section 75-1-201, MCA, requires state agencies to integrate use of the natural and social sciences and the environmental design arts in planning and in decision-making, and to prepare an environmental impact statement (EIS) on each proposal for projects, programs, legislation, and other major actions of state government specifically affecting the quality of the human environment.   In order to determine the level of environmental review for each proposed action that is necessary to comply with 75-1-201, MCA, the agency shall apply the following criteria:

(a) The agency shall prepare an EIS as follows:

(i) whenever an EA indicates that an EIS is necessary; or

(ii) whenever, based on the criteria in ARM 8.2.305, the proposed action is a major action of state government significantly affecting the qualify of the human environment.

(b) An EA may serve any of the following purposes:

(i) to ensure that the agency uses the natural and social sciences and the environmental design arts in planning and decision-making.   An EA may be used independently or in conjunction with other agency planning and decision-making procedures;

(ii) to assist in the evaluation of reasonable alternatives and the development of conditions, stipulations or modifications to be made a part of a proposed action;

(iii) to determine the need to prepare the EIS through an initial evaluation and determination of the significance of impacts associated with a proposed action;

(iv) to ensure the fullest appropriate opportunity for public review and comment on proposed actions, including alternatives and planned mitigation, where the residual impacts do not warrant the preparation of an EIS; and

(v) to examine and document the effects of a proposed action on the quality of the human environment, and to provide the basis for public review and comment, whenever statutory requirements do not allow sufficient time for an agency to prepare an EIS.   The agency shall determine whether sufficient time is available to prepare an EIS by comparing statutory requirements that establish when the agency must make its decision on the proposed action with the time required by ARM 8.2.313 to obtain public review of an EIS plus a reasonable period to prepare a draft EIS and, if required, a final EIS.

(c) The agency shall prepare an EA whenever:

(i) the action is not excluded under (e) or (f) and it is not clear without preparation of an EA whether the proposed action is a major one significantly affecting the quality of the human environment;

(ii) the action is not excluded under (e) or (f) and although an EIS is not warranted, the agency has not otherwise implemented the interdisciplinary analysis and public review purposes listed in (b) (i) and (iv) through a similar planning and decision-making process; or

(iii) statutory requirements do not allow sufficient time for the agency to prepare an EIS.

(d) The agency may, as an alternative to preparing an EIS, prepare an EA whenever the action is one that might normally require an EIS, but effects which might otherwise be deemed significant appear to be mitigable below the level of significance through design, or enforceable controls or stipulations or both imposed by the agency or other government agencies.   For an EA to suffice in this instance, the agency must determine that all of the impacts of the proposed action have been accurately identified, that they will be mitigated below the level of significance, and that no significant impact is likely to occur.   The agency may not consider compensation for purposes of determining that impacts have been mitigated below the level of significance.

(e) The agency is not required to prepare an EA or an EIS for the following categories of action:

(i) actions that qualify for a categorical exclusion as defined by rule or justified by a programmatic review.   In the rule or programmatic review, the agency shall identify an extraordinary circumstance in which a normal excluded action requires an EA or EIS;

(ii) administrative actions:   routine, clerical or similar functions of a department, including but not limited to administrative procurement, contracts for consulting services and personnel actions;

(iii) minor repairs, operations or maintenance of existing equipment or facilities;

(iv) investigation and enforcement; data collection, inspection of facilities or enforcement of environmental standards;

(v) ministerial actions:   actions in which the agency exercises no discretion, but rather acts upon a given state of facts in a prescribed manner; and

(vi) actions that are primarily social or economic in nature and that do not otherwise affect the human environment.

(f) In addition to the categories of actions listed under (e) , the board has determined that the following programs and/or actions do not have a significant impact on the human environment, are primarily economic in nature, and therefore do not require the preparation of an EA or an EIS;

(i) the purchase of all stocks publicly traded on any national or international stock exchange;

(ii) the purchase of all bonds issued by governmental   entities or by corporations whose stock is listed on any national or international stock exchange.   This exemption does not apply to bonds purchased by the board by private placement where the board is the sole provider of funds;

(iii) the issuance of bonds under the Municipal Consolidation Finance Act through the Montana cash anticipation finance program (Title 17, chapter 5, part 16, MCA) when the proceeds are used to fund loans to local governments to cover temporary cash deficits;

(iv) the issuance of bonds under the Montana Consolidation Finance Act through the Montana cash anticipation finance program (Title 17, chapter 5, part 16, MCA) when the proceeds are used to prepay debt to the federal bureau of reclamation where original loan money from the federal government was used to improve existing irrigation structures;

(v) the issuance of bonds under the Municipal Consolidation Finance Act through the intermediate term finance program when proceeds are used to finance loans to local governments to acquire vehicles and equipment, or to make modest repairs or improvements to real property.   All other uses made under this program are reviewed under these rules;

(vi) the purchase of all residential loans made with pension funds;

(vii) the purchase of all federally guaranteed loans;

(viii) the purchase of all residential multi-family loans;

 (ix) all deposits made under the linked deposit program pursuant to ARM Title 8, chapter 97, subchapter 14; and

(x) limited partnerships where the board is not involved in the investment decision.

(g) If an extraordinary circumstance pertaining to one of the programs and/or actions excepted in (f) is brought to the attention of the board or board staff, the board shall determine whether such circumstance may create a significant impact on the human environment.   If the board determines that such circumstance may create a significant impact on the human environment, then the program and/or action is no longer exempt under (f) and ARM 8.2.302 through 8.2.327 applies.